C.W.P. No.2961 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** C.W.P. No.2961 of 1987 Date of Decision:03.09.2008 M/s Punjab Khand Udyog Limited .....Petitioner Vs. The Presiding Officer, Labour Court, Gurdaspur and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Rahul Sharma, Advocate for the petitioner. Mr. J.C. Verma, Senior Advocate with Ms. Meenakshi Verma, Advocate for respondent No.2. **** HARBANS LAL, J. This petition has been moved by M/s Punjab Khand Udyog Limited, Chandigarh under Articles 226 and 227 of the Constitution of India for quashing the impugned award Annexure P.5. The brief facts giving rise to this petition are that Bhupinder Singh- respondent No.2 (hereinafter to be referred as the workman) was appointed as Turbine Attendant at Gurdaspur Mill of the petitioner- Company. This sugar mill is a seasonal industry. The Turbine Attendant is a seasonal post as there is no work of such attendant during the off season. Though it was not specifically mentioned in the appointment letter that he was being appointed as a seasonal worker, but he was aware of the fact that the job of Turbine Attendant, is a seasonal post. He worked during the season 1980-81. He was relieved on the close of the season vide letter dated 1.4.1981. He rejoined the mill after the start of the crushing season on C.W.P. No.2961 of 1987 -2- 2.11.1981. He was paid the retention allowance during the off season. This leaves no manner of doubt that he had accepted his appointment as a seasonal worker. On the close of 1981-1982 season, the list of seasonal workers who were to be paid off during the off season, was drawn. He made a representation for treating him to be a regular employee. The season of 1980-81 continued upto July, 1982 as there was bumper crop of sugarcane and the Central Government had given excise incentive. Therefore, the matter regarding the representation filed by this respondent was considered after the season was over. Keeping in view the manpower, norms and in view of the fact that Turbine Attendant was only seasonal post, he was informed vide letter No.3062 dated 13.10.1982 and was paid off with effect from 13.10.1982. The Labour Court came to the positive conclusion that the work of the petitioner- Company is of a seasonal nature. The respondent- workman in order to obtain the relief of backwages had concealed the material facts with regard to his re-employment. The petitioner- Company on coming to know in November, 1985 that he was working in the Patiala Cooperative Sugar Mills Limited, Rakhra made enquiries. The petitioner- Company had been informed that he was working in the said mill as Turbine Attendant since 7.10.1985. The petitioner- Company is not aware of the previous employment of the respondent- workman. The petitioner- Company has further enquired from the Patiala Cooperative Sugar Mills Limited, Rakhra regarding the present employment of this respondent- workman. The petitioner- Company has been informed vide letter dated 16.5.1987 that he was still working there. This respondent- workman has concealed the material facts from the Labour Court regarding his employment. That not only this, after the passing of the award, he wrote C.W.P. No.2961 of 1987 -3- letter to the General Manager of the petitioner- Company at Gurdaspur stating therein that he is attending office from 9:00 a.m. to 5:00 p.m and is not being allowed to mark his presence. In these premises, the award Annexure P.5 is illegal, arbitrary and against the statutory provisions of law and is liable to be set aside on the grounds as enshrined in this petition. The main law points involved in the present writ petition are as under:- a) Whether a person can be treated to be a permanent employee, even though the post against which he is appointed is only a seasonal in character? b) Whether once an employee accepts the retention allowance and is being paid off, for a off season and especially when he is appointed against a seasonal post can again claim to be a regular employee? c) Whether the learned Labour Court has erred in misinterpreting the appointment, even though the post to which the Respondent No.2 was appointed was only seasonal? d) Whether the award suffers from error apparent on the face of the record? e) Whether the award is liable to be set aside as the Respondent No.2 concealed the material facts regarding his employment? In his written statement, the workman- respondent- Bhupinder Singh has inter-alia pleaded that the post of Turbine Attendant is permanent and the answering respondent was appointed on permanent basis as has been found by the Labour Court and is also clear from his appointment C.W.P. No.2961 of 1987 -4- letter Annexure P.1. The answering respondent was appointed as whole timer against a permanent post. He was illegally relieved vide order dated 1.4.1981 even though he was permanent employee. This action of the management was wholly illegal and amounts to unfair labour practice. The petitioner terminated his services with effect from 13.10.1982. Had he been a seasonal worker, he would have been taken on duty in the month of October, 1982 instead of paying him off, as in the month of October, every year, the petitioner- Company calls the seasonal worker employees. There was no authority with the petitioner- Company to change or alter the service conditions of the answering respondent. The unserved respondent had raised demand of reinstatement alleging therein that he had worked regularly from the date of appointment till 13.10.1982 and after that he has not been allowed to join duty and he has been removed from service without any show cause notice or chargesheet. The Management had never taken up a plea of gainful employment, onus of which was on the writ petitioner. However, the answering respondent to sustain himself, had worked. He has not claimed the wages for the period, he remained gainfully employed. He is interested to join the petitioner- Company which is near to his home and more beneficial. He had reported to the General Manager on 24.4.1987 for duty but he has not been given the duty as yet. Lastly, it has been prayed that this petition may be dismissed with costs. I have heard learned counsel for the parties, besides perusing the impugned award with due care and circumspection. Mr. Rahul Sharma, Advocate appearing on behalf of the petitioner urged with a good deal of force that the post of Turbine Attendant against which the workman was appointed was only seasonal and, therefore, there is no question of treating C.W.P. No.2961 of 1987 -5- him as a regular permanent employee. To tide over this submission, Mr. J.C. Verma, Senior Advocate maintained that as transpires from the terms and conditions of the appointment letter, the respondent- workman was appointed as a permanent employee. This contention merits acceptance. It is own admission of the petitioner that in the appointment letter, it has not been specifically mentioned that the respondent- workman was being appointed as a seasonal worker. The relevant paragraphs No.2 and 7 of the appointment letter Annexure P.1 read as under:- “2. That you will be on probation for a period of six months from the date of your joining duties with us. The probation period can be extended for another six months. The appointment may be confirmed, after the probation period if your work, conduct, general behaviour etc. is found to be satisfactory. xx xx xx xx xx xx 7. That you will be whole time employee of the company and that you will not engage yourself directly or indirectly in any other business.” In paragraph No.4 of Annexure P.1, it has been mentioned that “your services will be governed by the existing rules and regulations of the Company and such other rules which may be enforced from time to time.” A combined reading of these terms and conditions embodied in this appointment letter, leave no room for doubt that the workman was appointed as a permanent employee and not against a seasonal post. Thus, the contention raised by Mr. Sharma pales into insignificance. Mr. Sharma had submitted emphatically in the course of C.W.P. No.2961 of 1987 -6- arguments that as is borne out from the pleadings, the workman had remained gainfully employed in the Mills mentioned in the petition itself, but he did not disclose this fact before the Presiding Officer of the Labour Court and that being so, he is not entitled to get the backwages. Mr. Verma canvassed at the bar that as would be apparent from Annexure R.1, the petitioner reported to the General Manager of the petitioner- Company to allow him to join duty, but he was disallowed and in such a situation he was left with no alternative except to do some work here or there to make his both ends meet. Mr. Sharma pressed into service that as a matter of fact, the workman never reported to the General Manager of the petitioner- Company in the alleged manner. I have given a deep and thoughtful consideration to the rival contentions. Primarily, it is to be noticed as to whether the impugned award is liable to be set aside on any ground as averred in the petition. The first ground is that the workman was an only as a seasonal worker, which stands already repelled. The second ground is that the learned Labour Court has erred in law in not noticing the facts that interpretation of appointment letter was that the workman was an employee on seasonal basis. Again this contention is unsustainable for the reason that if we go by the terms and conditions as enshrined in the appointment letter referred to above, the respondent- workman was employed as a permanent employee against a permanent post. That being so, at this stage, it does not lie in the mouth of the petitioner to contend that on interpreting the terms and conditions in the appointment letter, it emanates that he was employed as a seasonal worker. It would be apparent on the face of the terms and conditions of the appointment letter that the workman was employed as a permanent C.W.P. No.2961 of 1987 -7- employee. In contest, between the oral and documentary evidence, normally, the documents are to be believed as they seldom lie. Axiomatically, the petitioner- Company has made an endeavour but in vain to persuade the Court to hold that the workman was employed as a seasonal employee by blowing hot and cold in the same breath. Thus, the second ground is also untenable. According to the petitioner- Company, the first law point involved in the present petition is whether a person can be treated to be permanent employee even though the post against which he is appointed is only a seasonal in character. It is own plea of the petitioner that he was even being given retention allowance during the off season. There is nothing on the record to show that the post against which the workman- respondent has been appointed is of a seasonal character. Had it been so, this fact would have been mentioned with specificity in the appointment letter itself. On delving into the law points mentioned in this petition, it follows that the same do not sound well. However, a little modification in the impugned award is required. The operative part of the impugned award Annexure P.5 reads as under:- “In the result, I allow the reference and direct the respondent to reinstate the workman with continuity of service. It will also pay one half of the wages to the workman with effect from 1st October, 1982 till reinstatement. The workman shall report for duty within 30 days after the publication of this award.” These findings are modified to the extent that the petitioner- Company shall pay one half of the wages to the workman only for that period during which he remained unemployed with effect from 1.10.1982 C.W.P. No.2961 of 1987 -8- till he joins his duty with the petitioner- Company. He shall report for duty within 30 days from the date of receipt of the certified copy of this judgment. The petitioner- Company shall reinstate him as and when he approaches it within the said period. However, the respondent- workman will submit in writing to the petitioner- Company as to where and when he remained gainfully employed and during such employment, he has earned how much. He will submit these details within two months from the date of his joining. After deducting that much amount, the balance shall be disbursed to him by the petitioner- Company within four months from the date of receipt of certified copy of this judgment. With this modification in the impugned award, this petition is dismissed. Of course, having regard to the peculiarity of the facts and circumstances of the case, the parties are directed to bear their own costs. September 03, 2008 ( HARBANS LAL ) renu JUDGE