IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 7101 of 2001 (M/S) Rai Bahadur Narain Singh ..……… Petitioner Versus Presiding Officer and others ……… Respondents. Mr. C.K. Sharma, Advocate for the petitioner. Mr. Mohd. Umar, Advocate on behalf of Mr. Navneet Kaushik, Advocate for the respondents. Hon’ble Tarun Agarwala, J. Heard Shri C.K. Sharma, the learned counsel for the petitioner and Shri Mohd. Umar, the learned counsel holding the brief of Mr. Navneet Kaushik, the learned counsel for the respondent-workman. The petitioner has challenged the validity and legality of the award by which the workman was directed to be reinstated in service in the ensuing crushing season and was further directed to pay 50% of the backwages and ¼ of the retaining allowance alongwith cost of Rs.500/-. The facts leading to the filing of the writ petition is, that the workman has been working in the sugar mill from the crushing season 1978-79 till 1985-86 and that when the crushing season started on 18/11/1986 for the season 1986-87, he was not allowed to enter the factory premises and, accordingly, he raised an industrial dispute with regard to the validity and legality of his alleged termination w.e.f. 28/11/1986. The workman before the Labour Court contended that he was a seasonal workman and that he was entitled to be given work when the crushing started on 28th November, 1986 for the crushing season 1986-87. The petitioner, on the other hand, contended that the workman was engaged as a substitute workman and that he was never engaged as a seasonal workman. The petitioner contended 2 that the workman never worked during the entire crushing season in any of the crushing season and that he had worked intermittently in the crushing season as a substitute worker. The Labour Court, after considering the material evidence on record, held that the dispensation of the service of the workman w.e.f. 28/11/1986 was illegal and accordingly directed the employer to re-engage him in the ensuing crushing season and pay 50% of the backwages alongwith ¼ of the retaining allowances. The petitioner, being aggrieved by the said award, has filed the present writ petition. During the pendency of the writ petition, an interim order was passed directing the employer to pay wages every month and, based on the interim order, the learned counsel for the petitioner contended that the workman has been reinstated and that he has been paid the retaining allowance of a seasonal worker and that he is working as a seasonal worker in every crushing season. Having heard the learned counsel for the parties and having perused the record, the Court is of the opinion that neither party has been able to prove their case. The petitioner’s contention that the workman is a substitute is not borne out from any cogent record since neither the attendance register nor was the substitute register was produced by the petitioner before the Labour Court. The employer has relied upon an agreement entered with the Union in which the workman was shown as a substitute worker. This agreement has been denied by the workman contending that he was not a member of this Union and that he was a member of another Union and that the said agreement was not binding upon him. The Labour Court, has however, considered this agreement to the extent that substitute workers mentioned in the agreement are still continuing in service whereas the workman who was senior to some of the substitute workers had not been allowed to 3 work and the action of the employers was arbitrary and discriminatory. On the other hand, the workman has not produced any documents to indicate that he was given the status of a seasonal employee under the U.P. Payment of Retaining Allowance to Unskilled Seasonal Workmen of Sugar Factories Order, 1972. A retaining allowance is given to a seasonal workman if he had worked the whole of the second half of the last season. The workman has nowhere contended that he had worked for the whole of the second half of the last season and, therefore, was entitled for a retaining allowance. No evidence has been filed to show that the workman was engaged as a seasonal workman. In the light of the aforesaid, this Court is of the opinion that the direction of the Labour Court directing the petitioner to pay 50% of the backwages and ¼ of the retaining allowance appears to be arbitrary. Since it has been stated at Bar that the workman has been reinstated pursuant to the interim order passed by this Court and is working continuously since then without any break in service, this Court is of the opinion that the direction of the Labour Court in its award directing reinstatment of the workman should not be disturbed. In view of the aforesaid, the writ petition is partly allowed. The award of the Labour Court in so far as reinstatment of the workman is concerned, is affirmed but the direction for the payment of backwages and ¼ of the retaining allowance is being set aside. In view of the partial success, the parties shall bear their own cost. (Tarun Agarwala, J.) Dated 31.05.2010 Shiv