IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Misc. Writ Petition No. 361 of 2008 Iqbalpur Sugar Workers Union Iqbalpur, Haridwar, Through its Secretary Sri Dharamvir Singh ..…… Petitioner Versus State of Uttarakhand through its Secretary, Labour Department, Dehradun ……… Respondents Shri Manoj Tiwari, Senior Advocate assisted by Shri Alok Mehra, Advocate for the petitioner. Shri Ravi Kiran Jain, Senior Advocate assisted by Shri Navneet Kaushik, Advocate for the respondents. Hon’ble Tarun Agarwala, J. The petitioner has assailed the validity and legality of the award passed by the Labour Court whereby the relief claimed by the union has been declined. The brief facts leading to the filing of the writ petition is, that the State Government referred a dispute to the Labour Court for adjudication u/S 4-K of the U.P. Industrial Disputes Act, 1947. The terms of the reference order is somewhat like this. “Whether the employers were justified in not giving work and wages to the 162 seasonal workers upon the commencement of the crushing season 2001-02 w.e.f. 5th November, 2001? If not, to what relief the workers are entitled to?” The union, which had espoused the cause of the workers, contended in their written statement that the workers, in question, are seasonal workers and are getting retaining allowance from the employers during the off season under the Standing Orders applicable to the Sugar Company. It was stated that the service 2 conditions are governed by the “Standing Orders Governing The Conditions Of The Employment Of The Workers In Vacuum Pan Sugar Factory in U.P.” which are applicable to the sugar factories situate in Uttarakhand, which Standing Orders are framed u/S 3 of U.P. Industrial Dispute Act. The union submitted that prior to the start of the crushing season, there was a change in the managerial staff and new officers were posted and that the management also brought in a force of 200 workers to work in the crushing operation and accordingly, the management did not require the services of the seasonal workers and did not send the intimation as contemplated under Clause-E of the Standing Orders nor informed the workers by registered post about the start of the crushing season. The union further submitted that those workers who came to know about the start of the crushing season, reported for work at the gate on 5th November, 2001 but were denied work and the management did not allow them to report for duty. This led to agitation, dharna and some of them went on a hunger strike, and ultimately, with the intervention of the District administration and Labour Enforcement Officer, that an agreement was arrived at with the management on 24th December whereby the management agreed to take back the workers and also agreed to pay wages w.e.f. 5th November, 2001. The union alleged that inspite of this agreement, the employers did not adhere with the agreement and did not allow the workers to enter the factory premises. The union submitted that eventually they had to take a legal resort by filing an application under the U.P. Industrial Peace (Timely Payment of Wages) Act, 1981 in which a recovery certificate was issued which certificate was challenged by the management in a writ petition in which a direction was issued to raise an industrial dispute and, on that basis, the present dispute has been referred. The union submitted that the action of the respondent was wholly arbitrary and that the seasonal workers were denied employment 3 and, consequently, the action of the respondents in not allowing the seasonal workers to work was wholly illegal and, consequently, prayed that the seasonal workers should be reinstated with continuity of service and with full backwages. The management contested the claim and denied the assertion made by the union. The Management, in their written statement, admitted that there were four registered and recognized trade unions of which the petitioner was one of them and that the union leader Dharamvir insisted that his men should be given duties in a particular department and, when this demand was not accepted, Dharamvir and his goons indulged in arson and damaged the property of the company, as a result of this arson and damaging of the property, a first information report was lodged and Dharamvir was dismissed from the services. This led to further agitation and dharnas. It is alleged that the management sent various notices to the workers to report for duty and also intimated the Labour Enforcement Officer to use their good office and direct the workers to report for duty and eventually with the intervention of the local administration and the Labour Enforcement Officer that a settlement dated 24th November, 2001 was arrived at in which the management agreed to take all the seasonal workers back on duty and pay them their wages w.e.f. 5th November, 2001. The management submitted that inspite of this arrangement, most of the workers did not report for duty as they insisted on the reinstatement of Dharamvir and also insisted that they should be allowed to do their duties in a particular department as they had been doing in the previous years. The management submitted that approximately 62 workers reported for work and were paid their wages w.e.f. 05.11.2001. The Management further submitted that instead of reporting for work, the workers filed a false claim application under the Timely Payment of Wages Act which was initially rejected on the ground that negotiations were 4 going on with the Management, but subsequently, a second application was entertained and, a recovery certificate dated 07/06/2002 was issued for the recovery of three months wages. This recovery certificate was challenged by the management by means of a Writ Petition No.442 of 2002 which was allowed by a judgment dated 21st August, 2003. The recovery certificate was quashed and a direction was issued to the State Government to refer the dispute for adjudication. The Management submitted that most of the workers mentioned in the reference order are not seasonal workers and that some of them are temporary and substitutes and some of them have died or retired and, therefore, the reference order cannot be answered in the affirmative. The Management also submitted that the workers were given full opportunity to report for work but for reasons best known to them have not joined inspite of the settlement arrived at between the parties and that the management was not at fault. The Management, therefore, prayed that the claim raised by the union cannot be answered in the affirmative. In rejoinder affidavit, the union reiterated most of their assertions which they made in the written statement and further submitted that pursuant to the first information report lodged by the management, a final report was filed by the police which was accepted by the Court. In rejoinder affidavit of the employers, it was stated that no new workers as alleged by the union were brought by the management and that due intimation was given to all the workers and, based on such intimation, majority of the workers were present on 4th November, 2001. The Labour Court, on the basis of the pleadings and on the basis of the evidence led by the parties, found that the union were not entitled for any relief and, accordingly, declined to answer the reference in the affirmative. The Labour Court held that on the basis of the statement of the witnesses of the union, it was clear 5 that the workers were intimated about the start of the crushing season and that a majority of them had reported for work but were insisting that they should be given duties as was given to them in previous years and, that for reasons best known to them, did not enter the factory premises. The Labour Court further found that 32 workers mentioned in the reference order were not entitled for any relief in as much as 6 workers mentioned in the list had already died and that 13 workers were not seasonal workers but were temporary and another 13 workers were daily rated. The Labour Court further found that 6 workers had resigned and voluntary left their services and that one workman had never worked in the mill at any moment of time. The Labour Court also found that three workers mentioned in the list are already working in the factory and that one worker was suspended and was chargesheeted in which disciplinary proceedings were continuing. The Labour Court further found that a settlement was arrived at between the management and the union with the intervention of the Labour Authorities and the District administration, pursuant to which, 62 workers had joined and were paid their wages and that the remaining workers did not join for reasons best known to them. The Labour Court, upon appreciation of the evidence, concluded that the management was not at fault in denying work to the workers and that the seasonal workers were at fault for not entering the factory premises and for not reporting for duty. In the light of this evidence, the Labour Court declined to grant any relief to the union and its workers. The petitioner, being aggrieved, has filed the present writ petition. Heard Shri Manoj Tiwari, Senior Advocate duly assisted by Mr. Alok Mehra, Advocate for the petitioner and Mr. Ravi Kiran Jain, Senior Advocate duly assisted by Mr. Navneet Kaushik, Advocate for the respondents. 6 Shri Manoj Tiwari, the learned Senior Counsel for the petitioner assailed the award contending that the findings arrived at by the Labour Court are perverse and against the material evidence on record. The learned counsel placed the evidence of one Mukesh as well as the evidence of Dharamvir to indicate that the workers reported for work but were not given any duty nor were paid any wages and consequently submitted that the findings of the Labour Court that the workers are themselves to be blamed for not reporting for duties is against the material evidence on record and that it is based on surmises and conjectures. The learned counsel further submitted that Clause-E of the Standing Orders was not complied with by the employers which was mandatory in nature, as a result of which, the action of the respondents in denying work to the workers was wholly illegal and that the workers were liable to be reinstated. The learned counsel submitted that under Clause-E of the Standing Orders notice about the start of the crushing operation, was required to be intimated to the workers by registered post, whereas, in the present case, admittedly, as per the stand of the employers, the notices were sent by U.P.C. which was not the intention under Clause-E of the Standing Orders. The learned counsel submitted that since the notice was not sent by registered post which was mandatory, the action of the respondents in not giving the workers the work was wholly illegal and unjustified. The learned counsel, in the end, submitted that the intention of the management to deny the workers the employment was implicit and clear, in as much as, the management had changed and they had brought in a force of 200 workers and, therefore, did not require, any longer, the services of the present set of workers. On the other hand, Shri R.K. Jain, the learned Senior Counsel for the respondent company submitted that the writ petition is not maintainable and that the petitioner has no locus 7 standi to file the present writ petition or even to espouse the cause of the workers, in as much as, the said Union is not a registered trade union. The learned counsel further submitted that the registration of the union had already been cancelled by the Registrar which fact was concealed by the petitioner, as a result of which, the writ petition was liable to be dismissed summarily as observed by the Supreme Court in the case of B.Sirnivasa Reddy Vs. Karnataka Urban Water Suply & Drainage Board Employees’ Association and others AIR 2006 SC 3106. The learned counsel submitted that in view of the provisions of the Trade Union Act read with the provisions of the Industrial Disputes Act, only a registered trade union could espouse the cause of the workers and that an un-registered trade union could not espouse the cause of its workers. The learned counsel submitted that the entire litigation was only a personal interest litigation of the union leader Dharamvir who had an axe to grind because his leadership was at stake coupled with the fact that his services were dismissed by the management and, consequently, submitted that the union leader was not espousing the cause of the workers. Shri R.K. Jain, the learned Senior Counsel further submitted that Clause-E of the Standing Orders was not mandatory in nature and that the intention in the said Clause was only to intimate the workers about the start of the crushing season so that the workers could report for duty. The learned counsel submitted that the intimation was sent to all the workers by U.P.C. which fact was found to be true by the Labour Court and, in any case, the evidence which has been brought on record would indicate beyond a reasonable doubt, namely, that all the workers had reported for duty on 5th November and 7th November. The learned counsel further submitted that the Standing Orders are not statutory in character and that only the terms and conditions are statutorily 8 binding in nature between the employers and its employees. In support of his submission, the learned counsel placed reliance upon a decision of the Supreme Court in Rajasthan Stage Road Transport Corporation and another etc. etc. Vs. Krishna Kant etc. etc AIR 1995 SC 1715 and U.P. State Bridge Corporation Ltd. and others Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh AIR 2005 SC 4067. In the end, the learned counsel submitted that the findings given by the Labour was based on the material evidence that was brought on record and, the Labour Court, after sifting the evidence, has rightly given the award declining to grant any relief to the union. The Learned Counsel submitted that there was no perversity in the award and that the award is based on the evidence brought on record which does not require any interference. In the light of the submissions made by the counsel for the rival parties, and upon a perusal of the record, the Court is of the opinion that the submission of the counsel for the respondents on the question of locus standi is not correct. Admittedly, the employers in their written statement itself admitted that the petitioner’s union is a registered and a recognized trade union. From the evidence that was brought on record, it was clear that no one, i.e., the petitioner or the management knew about the cancellation of the registration of the petitioner’s union. It was during the pendency of the proceeding that this fact came to the knowledge of the parties about the cancellation of the registration of the trade union by an order of the Registrar. Upon realizing this fact, the union has filed an affidavit expressing regret over the mistake committed by them in mentioning that the petitioner was a registered trade union. In my opinion, it appears that the petitioner had made a genuine mistake by addressing itself as a registered trade union and this mistake appears to be bonafide. Consequently, the reliance made by the counsel for the 9 respondents of the decisions of the Supreme Court in B.Sirnivasa Reddy (Supra) is distinguishable to the present facts and circumstances of the case. In any case, the court is of the opinion that even an un-registered union can espouse the cause of the workers. In the present case, the Court finds that the management themselves had recognized the petitioner’s union. There are two ingredients, namely, registration and recognition. The petitioner’s union was registered. It became unregistered because the registration was cancelled by an authority but the union remained recognized by the employers, which in my opinion is, sufficient for the said union to espouse the cause of its workers. In Akhil Bhartiya Soshit Karamchari Sangh (Railway) Vs. Union of India and others AIR 1981 SC 298, the Supreme Court held that even a non-recognized association can maintain a writ petition. The Supreme Court held:- “Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of ‘cause of action’ and ‘person aggrieved’ and individual litigation is becoming obsolescent in some jurisdictions. It must fairly be started that the learned Attorney General has taken no objection to a non-recognised association maintaining the writ petitions.” Similarly, a Full Bench of Allahabad High Court in Umesh Chand Vinod Kumar and others Vs. Krish Utpadan Mandi Samiti, Bharthana and another AIR 1984 Allahabad 46 held that an association of persons whether registered or un-registered could file a petition under Article 226 of the Constitution of India for enforcement of the rights of its members. 10 In the light of the aforesaid, the Court has no hesitation in holding that there was no deliberate concealment on the part of the petitioner in intimating that it was a registered Union. Even otherwise, an un-registered union which is recognized by the management can espouse the cause of the workers. The objection raised by the management for the dismissal of the writ petition on the ground of locus standi is consequently rejected. The court finds that the writ petition is maintainable. On the question of Clause-E of the Standing Orders, it is essential that the said provision is extracted below for facility. Clause-E of the Standing Orders reads as under:- “E. Closure or Reopening of factory or a Department or a section of Department of a Factor ; Notice for Closure and reopening – As far as possible a notice shall be given in advance of the approximate date of closure of reopening of a factory or any department or section of a department of a factory except as provided in standing order J (1). Notice of commencement of the season – The Manager shall intimate in writing the date of commencement of the crushing season of a factory to the Labour commissioner, the Regional Addl./Dy.Labour Commissioner/Conciliation Officer of the area & to all registered trade unions of its workmen and shall also publish the date in a local newspaper. A copy of the general notice be displayed on the Notice Board. Intimation shall also be given by the management to each individual; workmen by the registered post atleast ten days in advance informing him of the date on which he has to report for duty. Such intimation may be sent through a messenger to such workmen who are available locally and an 11 acknowledgement obtained from them in the peon book. In case the workmen does not report for duty within ten days o the date notified to him, he shall lose his lien on the employment. However, if the workman applies to the Manager giving therein reasons for delayed reporting for duty, the Manager if satisfied may continue such workman in employment. Provided that if the Manager for any reason does not intimate ten days in advance the date of commencement of the season, the workman shall not lose his wages upto ten days form the date of the notice of commencement of the season. However, the workman shall report for duty within a reasonable time on receipt of notice.” A perusal of the aforesaid provision indicates that a notice in writing about the commencement of the crushing season is required to be sent by registered post but such intimation can also be sent through a messenger to such workers who are locally available. The provision further indicates that the workman would lose his lien if he does not report for duty within ten days of the notified date. But, if sufficient reasons was given for the delay in reporting for duty, the management, if satisfied, would allow such workmen in employment. The said provision further provides where the Manager does not give any intimation about the commencement of the season, the workman would not lose their wages upto 10 days from the date of the commencement of the season. An entire reading of the provision would indicate that the basic purpose of issuing a notice by registered post to the workers who were living in other districts was to give them advance notice so that they could report for duty in time failing which they could lose their lien for employment. But, in the event, the workman 12 reported late and sufficient reasons were given, in that case, the management would allow such workman any employment. The provisions further indicates that workers who are residing locally could be intimated through a messenger. In the light of the aforesaid provision, the Court is of the opinion that a registered notice was required to be sent and the salient purpose is to give advance information to the seasonal workers to report within the notified time and date failing which the workers would lose their lien on their employment. In the light of the aforesaid, the Court is required to see whether the workers in the present case were given notice. Admittedly, notice of intimation of the start of the crushing season was not sent by the management to the workers residing outside the district by a registered post, but was sent by UPC. It is not the case of the workers that they were not aware of the start of the crushing season. On the other hand, the workers who deposed as witnesses of the Union themselves admitted that a notice under the U.P.C. was served upon them. DW-4 stated that the local workers reported for duty on 5th November and that the workers residing outside the district reported for duty on 7th November. Other witnesses of the Union also intimated that they had received the notice of the start of the crushing season. Consequently, the Court is of the opinion that the workers were duly intimated and had knowledge of the start of the crushing season. Substantial compliance was made by the employers intimating its workers about the start of the crushing season. The mere fact that a registered notice was not sent by the management under Clause-E of the Standing Orders does not mean that the order of termination or denial of work becomes illegal. The submission of the learned counsel for the petitioner on this aspect is bereft of merit, in as much as, the union stand is that the workers were not aware of the start of the crushing season. 13 The stand of the union is that they were not allowed to enter the factory premise when the crushing season commenced from 5th November, 2001. For the sake of repetition, the Labour Court has found that the workers were duly intimated about the start of the crushing season. This Court has perused the evidence and agrees with the findings of the Labour Court that the workers were duly intimated about the start of the crushing season. In the light of the aforesaid, the submission made by the learned counsel for the petitioner on the issue of Clause-E of the Standing Orders is bereft of merit. In the end, the Court finds that the Labour Court has gone in detail and has sifted the evidence led by the parties and, only thereafter, came into conclusion that the workers did not on their own will enter factory premise and did not report for work. The Labour Court also found that inspite of the agreement dated 24th November, 62 workers reported for duty and were paid wages and that the remaining workers did not report for duty for reasons best known to them. The Labour Court also found