important Point
Onus of proving nature of employment lies on the workmen.

judgment

Dr. ARIJIT PASAYAT, J. —

1.In these appeals challenge is to the order passed by a learned Single Judge of the Allahabad High Court dismissing the writ petitions filed by the appellants. In the writ petitions, challenge was to the awards made by the Presiding Officer, Labour Court (2), Meerut (hereinafter referred to as the ‘Labour Court’). By the impugned award, the Labour Court had directed re-instatement of the respondents-workmen and payment of back wages and retaining allowance. The Labour Court’s awards were in relation to the references made under the Industrial Disputes Act, 1947 (in short the ‘Act’). Reference in all these cases related to the claim for re-instatement and back wages to which the concerned workmen were entitled to. The claim was founded on the basis that termination of services in each case was illegal.

The reference reads as follows (by way of sample) :

“Kya Sewayojako Dwara Apne Shramik Jai Veer Singh (Putra Shri Ram Lal), P.H. Recorder Ki Sewae Dinank 6.3.1985 se Samapt Kiya Jana Uchit Tatha/Athwa Vaidhanki Hai? Yadi Nahi, to Sambandhit Shramik Kya Labh/Anutosh (relief) Pane Ka Adhikari Hai, Tatha Kisi Anya Vivran Sahit?”

2.The workmen claimed that they were permanent appointees and the orders of termination were contrary to the provisions of the U.P. Standing Orders.

3.The appellants’ case was that it was a seasonal factory which commenced its trial season only in the year 1984-85 and certain persons were taken as casual employees on daily wage basis and they did not have any lien on any permanent or seasonal post as the factory was to commence production after the trial season 1984-85 was over after the establishment of the sugar factory.

4.It was submitted that this was done to ascertain whether the sugar factory started proper functioning of its first season from the year 1985-86. Respondent-workman was engaged in stop-gap arrangement only for the trial season after inviting applications from the public at large, in which respondent concerned was not selected. Said respondent joined the sugar factory on 16th November, 1984 and his services were dispensed with on 6.3.1985 and by any stretch of imagination he could not have completed 240 days of services in one calendar year and as such the provisions of Section 6-N of the Act did not apply. Concerned respondent had not filed any appointment letter to show that his appointment was made against any permanent post. As noted above, the Labour Court directed reinstatement with back wages.

5.The award was assailed in writ petition on the grounds that (1) the Labour Court has travelled beyond the terms of reference by framing issue No.1 as the nature of appointment was neither subject matter of reference nor the finding given by it on issue No.1 was correct. (2) There was no evidence on record that the respondent was a workman and was entitled to the protection under the Act. (3) There was no appointment letter filed by the workman, which could show that respondent was not engaged in the trial season. Though it was dis-believed by the Labour Court that appointment of the workman was against a permanent post, yet he was granted the relief of re-instatement with back wages and as such the award cannot be sustained.

6.After receiving notice from the Tahsildar asking payment of the back wages to the concerned workmen the writ petitions were filed. The averment was that they had not received any order of Deputy Labour Commissioner nor any citation in pursuance thereof. The appellant came to know for the first time about recovery on receipt of the letter dated 15.5.1992. The workmen disputed the stand of the employer that they had not completed 240 days. Sugar factories are all of seasonal nature and according to the Standing Orders applicable in respect of sugar factories, the period of 120 days is required. The Labour Court recorded a finding that the workmen were appointed on the posts in the relevant season during the period from 16.11.1984 to 5.3.1985