CWP No.12954 of 2000 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH 1. CWP No.12954 of 2000 Date of decision September 25, 2009 Randhir Singh and others ....... Petitioners Versus Batala Cooperative Sugar Mills Limited, Batala and others ........ Respondents 2. CWP No.2109 of 2001 Gurdev Singh and others ....... Petitioners Versus Batala Cooperative Sugar Mills Limited, Batala and another. ........ Respondents 3. CWP No.2182 of 2001 Saranjeet Singh and another ....... Petitioners Versus Batala Cooperative Sugar Mills Limited, Batala and another. ........ Respondents 4. CWP No.12292 of 2000 Balwinder Singh and others ....... Petitioners Versus Batala Cooperative Sugar Mills Limited, Batala and another. ........ Respondents 5. CWP No.14296 of 1998 Batala Cooperative Sugar Mills Limited, Batala Distt. Gurdaspur ....... Petitioners Versus CWP No.12954 of 2000 2 The Presiding Officer, Industrial Tribunal, Punjab, Chandigarh and another. ........ Respondents 6. CWP No.5050 of 1999 Batala Cooperative Sugar Mills Limited, Batala Distt. Gurdaspur ....... Petitioners Versus The Presiding Officer, Industrial Tribunal, Punjab, Chandigarh and another. ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Rahul Sharma, Advocate for the petitioner (s) in CWP No. 14296 of 1998, 5050 of 1999 and for respondents in CWP No. 12954 of 2000,2109, 2182 of 2001, 12292 of 2000, Mr. B. R. Mahajan, Advocate with Mr. V.K. Kaushal, Advocate for the petitioner in CWP No. 2109 of 2001, 2182 of 2001 and for the respondents in CWP No. 14296 of 1998. Mr. J. S. Maanipur, Advocate for r the petitioner in CWP No. 12954, 12292 of 2000, and for the respondents in CWP No. 5050 of 1999. **** 1. Whether reporters of local newspapers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? **** K. Kannan, J (oral). 1. All the writ petitions relate to entitlement to retention allowance to be paid to the seasonal workman in Batala Co- operative Sugar Mill. The respective claims of the workmen came in CWP No.12954 of 2000 3 assertion of the rights, which according to them were granted through the Wage Board's recommendation providing for payment of retention allowance at the rate of 50% to Supervisory, Clerical, skilled and highly skilled employees and 25% to semi skilled workmen of the respective Mills of basic pay and dearness allowance subject to certain other conditions. The recommendation of the Board had been purportedly approved by the Management which was the basis of the claim for the workmen. 2. The Management, in refusing to accede to the workmen's claim, contended that recommendations which were approved by the Society were only in relation to claims of seasonal workers who were permanent and in respect of another class of workmen who were though seasonal but temporary, were not entitled to the retention allowance. The statement in defence was rejected by the Labour Court and the writ petitions have been filed at the instance of the Management. All the writ petitions mentioned above except CWP No. 5050 of 1999 have been prosecuted at the instance of the workman collectively or individually. CWP No. 5050 of 1999 has been prosecuted through Gurdaspur District Sugar Workers Union, Batala which claimed to espouse the claims of 38 workmen. 53 workmen in another claim petition which is the subject of adjudication in CWP No. 14296 of 1998. Out of these 38 workmen who were purportedly represented through Gurdaspur District Sugar Worker's Union, 26 workmen had already prosecuted their claims through reference No.157 of 1999 decided on 4.2.1998 and therefore, they sought to withdraw the claim in the references which was the subject of adjudication in CWP No. 5050 of 1999. 3. Learned counsel appearing for the Management placed at the threshold of his arguments that the claim by the Gurdaspur District Sugar Mills Union was not competent since the Union was neither registered nor recognized and therefore, the petition could not have been CWP No.12954 of 2000 4 prosecuted by such an unregistered Union. Learned counsel refers to the decision of the Supreme Court in B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees' Association and others 2006 11 SCC 731 where the Hon'ble Supreme Court dealing with the question of maintainability of filing a writ petition through an unregistered Trade Union held that by virtue of the definition of 'trade union' in Section 2 (qq) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'), a trade Union meant one registered under Trade Union Act and a writ petition by an unregistered Union is not maintainable. Learned counsel appearing for the workman joins issue on the point of maintainability by referring to the fact stated in the replication to the contentions raised by the Management in its written statement that all the workmen had themselves affixed their respective signatures in the appendix filed along with the claim statement vouching for the correctness of the averments. In the course of examination of the witness examined on the side of the workmen, Sulakhan Singh the representative of the Union admitted that it was not registered. The Labour Court held that the issue of registration itself was not relevant for several judicial pronouncements had held that it is the numerical strength of a workman that complained of certain grievances that would be relevant and therefore even if it was unregistered the reference could not fail. 4. In my view, the reference to Section 2 (qq) and the right of representation as provided under Section 36 of the Act ought not in any way to be confused with presentation of demand notice through a Trade Union espousing the cause of several workmen through a reference under Section 10(2) of the Industrial Disputes Act. All that the Section 10(2) requires is that the parties to an Industrial Dispute should apply in a prescribed manner whether jointly or separately for a reference to a Board, Labour Court, Tribunal or National Tribunal. The appropriate CWP No.12954 of 2000 5 Government, if it satisfied that the persons applying represent the majority of each party shall make the reference. The demand notice as well as the claim statement presented before the Labour Court contained the list of workman for whom the reliefs were sought and all the workman had also signed in the Annexure accompanying the claim statement. The actual presence of several workmen would itself rectify any deficiency, if it were to be prescribed that it could have been done only by a registered Union in the manner of presentation of the petition. The same dispute has been raised in several other writ petitions concerning the very same establishment and so long as the dispute which had been referred to the Labour Court was seen not merely as an individual dispute but would come within the definition of Industrial Dispute as defined under Section 2 (k) of the Act, the maintainability of the petition could not be urged by the Management. The decision of Hon'ble Supreme Court shall be confined to filing a writ petition under Article 226 of the Constitution and will not apply to espousal by an unregistered Union on behalf of its members for raising an Industrial Dispute. I therefore, reject the contention of the learned counsel for the petitioner that the petition is not maintainable. 5. Learned counsel for the petitioner would submit with reference to the appointment letters issued to the workman that their engagement was temporary in character. According to him, the Industrial standing orders sets out six categories of workmen. Sub clause (ii) and (iii) of clause 1 of these orders defines 'Seasonal workmen' and 'Temporary workmen' as under:- “Seasonal Workman' is one who is engaged only for the crushing season and 'Temporary Workman is one who is engaged for work of an essentially temporary nature or to fill in a temporary need of extra hands of temporary jobs. CWP No.12954 of 2000 6 6. According to the Management, recommendation that had been approved by the Society was only to extend the retention allowance to Seasonal workmen who were permanent and not to workmen who were temporary. To establish that such a dichotomy was possible, the learned counsel Sh. Rahul Sharma would point out that while setting out classification of workmen sub clause (i) referred to a permanent workman as a workman who had been engaged against a permanent post and had been confirmed as such in accordance with sub clause (iv). Sub clause (ii) which defines a seasonal workman as set above, includes a proviso as under :- “ Provided that if he is a retainee, he shall be liable to be called on duty at any time in the off season and if he refuses to join or does not join within five days of the date on which he received the notice, he shall lose his lien as well as his retaining allowance. However, if he submits a satisfactory explanation of his not joining duty, he shall only lose his retaining allowance for the period he does not join after the receipf of the notice, provided he joins duty within a 15 days period.” 7. Reading this definition of Seasonal Workman, the contention on behalf of the Management was the fact that a retainee was required to report for duty at any time in off season, it was possible that there was another class of persons who were not retainees. According to the learned counsel, there was a scope for permanent workman who were retainees and temporary workmen who were not entitled to such retention allowance. This interpretation, according to the learned counsel for the workmen is fallacious. The reference to a Seasonal workman who was a retainee is in the context of seniority as such, which is prepared by the Management and if there was a need for work even during the off season CWP No.12954 of 2000 7 only the persons higher in the order of seniority could have been called for such engagement and the reference to the expression retainee was merely descriptive of the whole class of Seasonal Workmen who were receiving the retention allowance. While I accept the contention of the learned counsel for the respondent, I would also add that the Management is not entitled to urge that amongst the Seasonal Workmen there could be two classes of persons, one class of obtaining to a right to secure retention allowance and another class not so entitled. The broad classifications which have been made shall not be vivisected further. The classes of persons are mutually exclusive. If the Wage Board had recommended the retention allowance amongst the Seasonal workmen it must be understood that it was so in the context of how of various Sugar Mills were classifying their own workmen in the broad categories stipulated in the Industrial Standing orders. The Management may have internally adopted a classification of seasonal permanent and seasonal temporary amongst their workmen for their own purpose of granting higher scales to persons who had been regularized and made permanent but so long as the Industrial Standing Orders themselves did not make such classification, it will not in any way prevent the persons who had still been retained as Seasonal temporary workmen to be denied such a right. 8. Learned counsel for the petitioner contends that even if all the seasonal workmen had a right of retention allowance it could have been only prospective. I am of the view that it could not have been from the date when they were employed but only from the date when the Society had passed resolution accepting the recommendation of the Wage Board. It cannot also merely be restricted to the date when the award was passed. 9. Even without reference to the discussions made relating to the entitlement of the workmen, I am informed that most of CWP No.12954 of 2000 8 these persons have already received the benefits of the retention allowance during the pendency of the writ petition and many of them have also been superannuated. Even as a matter of fact it would be unjust and inappropriate to deny to them what they have already obtained. 10. All the writ petitions filed at the instance of the Management challenging the respective awards that entitled the workmen to claim retention allowance would stand dismissed. 11. The writ petition Nos. 12954 of 2000, 2109 of 2001, 2182 of 2001 and 12292 of 2000 are filed at the instance of the workmen when their claims were disallowed by the Labour Court to await the decision of this Court in the batch of writ petitions whether the Seasonal workmen who were temporary were entitled to retention allowance or not. In view of the fact that I have upheld the adjudication already made by the Labour Court and rejected the contentions of the Management, the orders already passed by the Labour Court in the above four cases would require to be set aside and the matter shall stand remitted to the Labour Court for consideration of the claims in the light of the judgment rendered by this Court as above. 12. CWP Nos. 14296 of 1998 and 5050 of 1999 are dismissed. CWP Nos. 12954 of 2000, 2109 of 2001, 2182 of 2001 and 12292 of 2000 are disposed of with a direction to the Labour Court for consideration of the claims in the manner indicated above. If there are other issues relating to the entitlement of the claim which have been raised at the instance of the Management, the same shall be considered in accordance with law. Parties shall bear their respective costs. (K. KANNAN) JUDGE September 25, 2009 archana