IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.520 of 2003 M/S BHARAT SUGAR MILLS LTD., At & P.O. Sidhwalia, Distt. Gopalganj through its Sr.Executive Vice-President Bishnu Kumar Sureka----------------------------petitioner Versus 1.THE PRESIDING OFFICER,LABOUR COURT, CHAPRA 2.Sri Ramesh Prasad Singh, resident of village Larauli P.O. Bishunpura Bazar, Distt. Gopalganj------respondents ----------- For the petitioner:M/S K.N.Gupta Satyendra Krishna Prasad, Advocates For respondent No.2:Mr.Kumar Veerendra Narayan, Advocate For the State :Mr.Jawed Gaffar Khan, A.C. to S.C.17 ----- 4. 29.3.2010 Heard learned counsel for the petitioner, learned counsel for the respondent No.2 and learned counsel for the State. The petitioner seeks quashing of the award dated 5.9.2002 in Reference Case No. 11 of 1992 by the Presiding Officer, Labour Court, Chapra by which he has directed the petitioner-Sugar Mills Ltd. to reinstate the respondent No.2 Ramesh Prasad Singh in service along with payment of 50% of his back wages. The petitioner is a Company which is running a sugar mill at Sidhwalia, District Gopalganj. The respondent No.2 wrote a letter dated 13.9.1989 to the Minister, Labour and Welfare, Bihar claiming himself to be a seasonal employee of the company who had worked continuously in all the seasons from 1980-81 till 1987-88 as Checking Kanta 2 Lipik. His further case was that he was employed on wage of Rs.500/- per month which was less than the minimum wages and, accordingly, he filed a case before the Deputy Labour Commissioner who by order dated 2.11.1988 directed for payment of arrears of March, 1987 Rs.1087/- which was paid to him on 5.11.1988. The respondent No.2 stated that in January, 1988 he was told that he would not be given any work. He further claimed that in season 1988-89 he was not given any work and in 1989 season also he was not expecting that he would be given any work. He also further claimed that arrears amount should be directed to be paid and his services should be made permanent. On the basis of the said representation of the respondent No.2 it appears that a reference was made under Section 10(1)(c)of the Industrial Disputes Act, 1947 by the Government of Bihar under Notification dated 9.9.1992 in the following terms : “Whether the dismissal of the services of Shri Ramesh Prasad Singh as a Checking Kanta Lipik is justified ? If not whether he is entitled for reinstatement and/or any other compensation ?” In the written statement filed by Respondent No.2 before the Labour Court he claims to be a seasonal permanent worker appointed in the year 3 1986 and worked as a Checking Kanta Lipik for the full crushing season in 1980 and continued from the crushing season of 1981 till 1987-88 and he received the payments. He further claims that because he had applied for minimum wages before the Deputy Labour Commissioner an order was passed in his favour and he was not engaged for work in the crushing season 1988-89. He also claims that as a Checking Kanta Lipik he used to sign the factory receipts; in the off-season he used to participate in the work in the field regarding survey of cane production and enquiry into the payments made to the agriculturists. For the said reason, he challenged the termination of his service by the Management in whimsical manner, and prayed for his reinstatement and payment of full back wages. In the written statement filed on behalf of the Management, the petitioner herein, it was stated that the reference was not made in accordance with law as no material was produced by the respondent No.2 for getting a fresh reference made when the earlier reference had been rejected. On a consideration of the materials on the record the Labour Court came to the conclusion 4 that the Management has illegally removed the respondent No.2 and while removing him it had not followed the provisions of Section 25F of the Industrial Disputes Act since neither one month’s notice was given to the workman nor one month’s wages in lieu of notice was given and for the said reason, the removal of the respondent No.2 was totally illegal. It further came to the conclusion that the respondent No.2 who has stated himself to be an agriculturist by profession was earning his livelihood by doing agriculture work and, accordingly, it was directed that the respondent No.2 should be reinstated in service and he was entitled to receive 50% of his back wages. Learned counsel for the petitioner submits that the statement of demand was never made before the employer rather the same was made before the Labour & Welfare Minister on 13.9.1989 but even then reference was not made in accordance with the statement of demand. It is further submitted that earlier the Government of Bihar having exercised its power and having refused to refer the dispute the same could not have been referred again for 5 adjudication as there was no fresh material for reconsideration by the Government. It is also submitted that although the specific question had been raised before the Labour Court regarding the maintainability but no issue regarding the maintainability on the basis of refusal of the earlier reference was framed. It is contended that the respondent No.2 having admitted in his statement of demand before the Labour Minister that he was a seasonal worker and not a permanent seasonal worker it was not open to him to have raised the claim before the Labour Court that he was a permanent seasonal worker as he could not have gone beyond the statement of demand made by him. Learned counsel urges that the finding that there has been violation of the provisions of Section 25F of the Industrial Disputes Act by the Labour Court is perverse as the same is not backed by any finding that the respondent No.2 had worked for a period of 240 days in the year prior to the alleged retrenchment or for any previous year. In fact, since the earlier claim of the respondent No.2 was that he was being given work in every season from 1980-81 to 1987- 88, but the crushing season itself lasts for 6 three to four months and not for 240 days and thus there could be no question of a finding being recorded that the provisions of Section 25F of the Industrial Disputes Act were applicable to the case of the respondent No.2 or they were violated. It is submitted that the respondent No.2 has produced only 58 receipts signed by him during the period of 7-8 years that too for some years there was not even a single receipt showing his signature among the same. It is evident that he had hardly worked for more than 8-10 days in any particular crushing season and signed some of the receipts which goes to show that he used to be engaged on a casual basis from time to time in the absence of the regular employee. Learned counsel also submits that there being no finding at all in the entire award that the respondent no.2 had worked continuously for 240 days in any particular year it was not open to the Labour Court to have come to the conclusion that there was violation of Section 25F of the Industrial Disputes Act in the present matter. That being so, the entire award is perverse and illegal and fit to be set aside. 7 It is urged by learned counsel for the petitioner that onus of proving that he has worked for 240 days in a particular year is entirely upon the workman which the respondent no.2 has hopelessly failed to discharge. In support of the aforesaid proposition, learned counsel relies upon a decision of the Supreme Court in the case of Ganga Kisan Sahkari Chini Mills Ltd. vs. Jaivir Singh : 2007(7) Supreme 646, in paragraphs 8 to 12 of which it has been laid down as follows : “8. In support of the appeals, learned counsel for the appellant submitted that approach of the High Court is factually and legally wrong. Even if it is accepted that the period is 120 days, the workmen were not entitled to any relief. They admittedly worked for 109 days. The nature of appointment was not the subject matter of reference and, therefore, the conclusion of the Labour Court, as affirmed by the High Court that the workmen were entitled to be absorbed on permanent basis and re-instated with back wages, was clearly erroneous. 9. It was wrongly held by the High Court that it was the employer to show the nature of appointment. 10. Learned counsel for the respondents in the written submissions filed supported the orders of the Labour Court and the High Court. 11. We find that the Labour Court and the High Court have completely loss sight of the settled position in law. In Batala Coop. Sugar Mills Ltd. v. Sowaran Singh, (2005(8) SCC 481) it was held as follows : 8 “8. We find that the High Court’s judgment is unsustainable on more than one count. In Morinda Coop. Sugar Mills Ltd. v. Ram Kishan and Ors. (1995 (5) SCC 653) it was observed as follows : 4. It would thus be clear that the respondents were not working throughout the season. They worked during crushing seasons only. The respondents were taken into work for the season and consequent to closure of the season, they ceased to work. 5. The question is whether such a cessation would amount to retrenchment. Since it is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in clause (bb) of Section 2(oo) of the Act. Under these circumstances, we are of the opinion that the view taken by the Labour Court and the High Court is illegal. However, the appellant is directed to maintain a register for all workmen engaged during the seasons enumerated hereinbefore and when the new season starts the appellant should make a publication in neighbouring places in which the respondents normally live and if they would report for duty, the appellant would engage them in accordance with seniority and exigency of work.” 12. It was accepted that the workmen belonged to the seasonal category. In the claim petition and the pleadings it was urged that they were permanent workmen. The High Court noted that the workmen were not permanent employees. It was further noted that they failed to establish the nature of their appointment. No appointment orders were filed. It came to an abrupt conclusion that the burden of proof lay on the employer to establish the nature of appointment. The conclusion is clearly contrary to law. The Labour Court found 9 that the workmen were appointed to posts which continued for the whole season and they were appointed on seasonal posts. After having arrived at the conclusion, the Labour Court held that the workmen were entitled to be re-instated.” Learned counsel also relies upon a decision of the Apex Court in the case of State of Haryana vs. Ramesh Kumar : 2008(5) Supreme 97 in paragraphs 9, 10 & 11 of which, it has been held as follows : “9. In Mohan Lal v. Bharat Electronics Ltd., (1981 (3) SCC 225), it is said by the Court that before a workman can claim retrenchment not being in consonance with Section 25-F of the Industrial Disputes Act, he has to show that he has been in continuous service for not less than one year with the employer who had retrenched him from service. 10. In Range Forest Officer vs. S.T.Hadimani, (2002(3) SCC 25) this Court held that: (SCC p. 26, para 3) “In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman 10 had, in fact, worked for 240 days in a year. No proofof receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside.” 11. This Court again in Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan, (2004 (8) SCC 161), Municipal Corpn., Faridabad v. Siri Niwas, (2004(8) SCC 195) and M.P.Electricity Board v. Hariram, (2004(8) SCC 246), has reiterated the principle that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce evidence apart from examining himself to prove the factum of his being in employment of the employer.” He also relies upon a decision of the Apex Court in the case of Ranip Nagar Palika v. Babuji Gabhaji Thakore and Ors. : 2008 Lab. I.C. 4210 in paragraphs 15 to 16 of which, it has been laid down as follows : “15. It was held in all these cases that the burden of proof lies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer. 16. It is to be noted that the appellant had produced materials to show that the claim of the respondents that they had worked from 1991 was patently wrong. In fact, finding has been recorded that one of the respondents had worked 11 since January, 1994 contrary to the claim of having worked from 1991. In view of the fact that the Labour Court and the High Court have not considered the matter in the proper perspective and the view expressed is contrary to the decision in several decisions referred to above, the orders of the Labour Court and the High Court cannot be sustained.” Learned counsel also relies upon several other decisions which in view of the clear statement of the law in the aforesaid cases need not be multiplied. Learned counsel for the petitioner also submits that by the interim order dated 24.4.2003 this Court had directed the petitioner to reinstate the respondent No.2 within 15 days from the said order and then recovery of the past arrears shall remain in abeyance until further orders from this Court. Pursuant to the said order the respondent No.2 was informed through a registered letter dated 2.5.2003 that he has been reinstated in service on the post of Checking Kanta Clerk and the same was returned with postal remarks “left without address”. Again a request was made to the Officer-in-Charge, Sidhwalia Police Station to find out the whereabouts of respondent No.2 and the police reported that the brother of respondent No.2, namely, Shri Harendra Singh, 12 informed that he works in Saudi Arabia and at that point of time he was not available in the village. Another brother Shri Suresh Singh also informed the petitioner that the respondent No.2 is working in Saudi Arabia since last about four years. Ultimately, the respondent No.2 wrote a letter on 14.8.2003 claiming for the payment of past dues without expressing any intention to join the duties. However, on receipt of further letters from the petitioner the respondent No.2 joined his duties on 4.9.2003 and continued to work till 25.9.2003 and was paid off since his requirement was seasonal and he was also given a letter that he should inform his availability and willingness to work before start of crushing season 2003- 04. Letters were also sent to him to join his duties on 24.11.2003 whem the season 2003-04 was going to commence but till date he did not report for duty. The subsequent communications made by the petitioner to the respondent No.2 have also remained unanswered. Learned counsel for the respondent No.2, on the other hand, submits that there is no challenge to the reference in the writ petition and thus the same cannot be permitted to be 13 raised in the absence of such challenge in pleadings. It is further submitted that the receipts showing the checking done by the petitioner had been called for by the Labour Court but the petitioner did not produce the same stating that they had been destroyed at the head office. It is urged by learned counsel that it was the Company which was having the documents but it did not produce the same and thus adverse inference ought to be drawn on the Company for the same. In support of the said stand, learned counsel relies upon a decision of the Supreme Court in the case of H.S.Chandra Shekara Chari vs. Divisional Controller, K.S.R.T.C. and another : 1999 Lab. I.C. 2082, in paragraph 9 of which, it has been held as follows : “9. It was for this reason that full backwages were not awarded to the appellant. Once the Tribunal had found that the charges against the appellant were not established, it was not open to the learned single Judge, who had rightly refused to reappraise the evidence, to say that with better proof the charges could have been established. The learned single Judge had no jurisdiction, not even under S. 11-A of the Industrial Disputes Act, 1947, to enter into the question whether the charges could have been established by better or further evidence. That 14 is not the function of the Court or any quasi-judicial authority. If it is found as a fact that the charges are not established, then the necessary consequences have to follow and, as a corollary thereto, appropriate orders are to be passed. There may be circumstances justifying non-payment of full backwages, but they cannot be denied for the reason that the charges could have been established with better proof. If “better proof” was available with the management, and it was not furnished or produced before the Court, a presumption would arise that such proof, if furnished, would have gone against the management. We are surprised that the view pronounced by the learned single Judge, which falls in the realm of speculation, has been upheld by the Division Bench.” Learned counsel also submits that the respondent No.2 had worked for a period of 240 days which is to be calculated for a period of 12 months prior to the date of termination and the same is supported by the evidence led on his behalf. In this regard he relies upon a decision of a Division Bench of this Court in the case of Kailash Paswan and others vs. The Union of India and others : 1984 PLJR 597 in paragraph 10 of which, it has been laid down as follows : “10. Amendment Act 36 of 1964 has drastically changed the provision of section 25B and has repealed section 2(eee) of the Industrial Disputes Act. These changes brought about by 15 the aforesaid amendment is designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. (See AIR 1981 Supreme Court 422-Surendra Kumar Verma v. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi). Section 25B of the Act introduce a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter V-A. It provides (a) a deeming fiction that where a workman is in service for a certain period he shall be deemed to be in continuous service for that period even if service is interrupted on account of reasons enumerated in the said section. One of such reason is “cessation of work which is not due to any fault on the part of the workman”. “These interruptions have to be ignored to treat the workman in uninterrupted service”. (b) The other deeming fiction is for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than 240 days. If the deeming fiction of sub-section (1) do not cover a case in such a case if the workman satisfied the condition of sub-section (2) (a) he would be deemed to be in continuous service for a period of one year. It is not 16 necessary for the purposes of sub- section (2) (a) that the workman should be in service for a period of one year. In the case of Mohan Lal v. Management, Bharat Electronics Ltd. (AIR 1981 Supreme Court 1253) it was held “to invoke the fiction enacted in sub-section (2) (a) it is necessary to determine first the relevant date, i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in sub-section (2) (a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in Section 25F.” On a consideration of the aforesaid facts and circumstances and the submissions of learned counsels for the parties, this Court is of the view that the decision of the Labour Court suffers from serious infirmities. It is evident that the finding of violation of Section 25F of the Industrial Disputes Act must be preceded by first coming to a conclusion that the workman concerned had been engaged in the 12 calendar months prior to the termination of the service/retrenchment for at least 240 days in terms of Section 25-B of the said Act. 17 There is no such finding in the entire award. This is a glaring lacuna in the award. While this Court in its writ jurisdiction does not enter into a re-appreciation of the evidence and the materials on the record to arrive at its own independent conclusion in the matter, but, if it finds that the conclusion arrived at by the Labour Court is not based upon any evidence then the award becomes fit to be set aside. In the present matter while the Labour Court dealt with the various receipts, 58 in number filed by the respondent No.2, after procuring the same from the persons who had supplied cane, showing that as a Checking Kanta Lipik he had signed the same, the same by itself does not lead to any conclusion that he had worked for 240 days in any particular year, much less in the preceding 12 months before his services were allegedly terminated in January, 1988. The mere existence of 58 receipts for a