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2008 Supreme(SC) 1435
2008(7) Supreme 136
SUPREME COURT OF INDIA
Altamas Kabir and Markandey Katju, JJ.
U.P. State Sugar & Cane Development Corporation Limited — Appellant
versus
Chini Mill Mazdoor Sangh & Others — Respondents
Civil Appeal No. 5858 of 2008
(@ Special Leave Petition (Civil) No. 2411 of 2006)
Decided on : 26-09-08
For the Appellant :Rakesh Uttamchandra Upadhyay, Advocate.
For the Respondents:Pradip Ku. De., Yatendra Sirohi and Ms. Abha R. Sharma, Advocates.
IMPORTANT POINT
Promotion being a management function, Labour Court cannot arrogate to itself such management function in the absence of findings of mala fides or victimization or any unfair labour practice.
Headnote:Labour Law – Respondent 2 to 15, under appellant as “seasonal workmen alleged that although their services were utilized as permanent workmen they were paid the salary given to seasonal workmen – Labour Court held that said workmen came within the definition of permanent workmen, and were, therefore, entitled to be declared as permanent – Writ Petition -Dismissed – Appeal – No dispute that there are different categories of workers employed in the sugar industries, and, in particular, during the crushing season – Pay scales of different categories of workmen are different – Plea of appellant that even when the seasonal workmen are employed during the off season they are paid the same wages as are paid to them during the crushing season, which is one of the basic distinctions between them and permanent workmen who are on the rolls of the sugar mills – Admittedly in terms of policy followed by the sugar mills, promotions are given from one category to the next higher category depending on the number of vacancies as are available at a given point of time – Even in the instant case, of the 39 workmen referred to in the terms of reference, 13 had been made permanent by the appellant which supported case of appellant that promotion was given from one category to higher categories as and when vacancies were available and that such function was clearly a managerial function which could not have been discharged by the Labour Court – Held this was not a case of fitment depending on the nature of the work performed, but a case of promotion as and when vacancies were available – Both the Labour Court as well as the High Court not appeared to have considered this aspect of the matter with the attention it deserved and proceeded on the basis that this was a case where the respondent Nos. 2-15 had been denied their right to be categorised as permanent workmen on account of the nature of the work performed by them throughout the year – Appeal allowed – Award of the Labour Court and impugned Judgment of High Court, set aside. (Paras 20 to 24)
Facts of the Case :
1. Respondent 2 to 15, employed under appellant as “seasonal workmen here in in the instant case alleged that although their services were utilized as permanent workmen they were paid the salary given to seasonal workmen. Labour Court held that said workmen came within the definition of permanent workmen, and were, therefore, entitled to be declared as permanent. Writ Petition thereagainst was dismissed.
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
In the instant case, of the 39 workmen referred to in the terms of reference, 13 had been made permanent by the appellant which supported case of appellant that promotion was given from one category to higher categories as and when vacancies were available and that such function was clearly a managerial function which could not have been discharged by the Labour Court.Held this was not a case of fitment depending on the nature of the work performed, but a case of promotion as and when vacancies were available. Both the Labour Court as well as the High Court not appeared to have considered this aspect of the matter with the attention it deserved and proceeded on the basis that this was a case where the respondent Nos. 2-15 had been denied their right to be categorised as permanent workmen on account of the nature of the work performed by them throughout the year. Appeal allowed. Award of the Labour Court and the Judgment of the High Court impugned in this appeal were set aside.
Result : Appeal allowed.
Judgment
Altamas Kabir, J. —
1. Leave granted.
2. The respondent Nos.2-15, who are members of the respondent No.1 Union, and had admittedly been employed under the appellant as “seasonal workmen” as defined in the Standing Orders governing the conditions of employment of workmen in vacuum pan sugar factories of the State, raised a claim that although they had been categorized as “seasonal workmen” they had been employed by the appellant not only during the crushing season but throughout the year. It is their that although their services were utilized as permanent workmen they were paid the salary given to seasonal workmen grievance. They, therefore, made a representation to the Conciliation Officer which ultimately resulted in a Reference made by the State of Uttar Pradesh to the Labour Court on 3.11.1989. The terms of Reference are as follows :
i) Whether 39 employees mentioned in the Schedule ‘Ka’ can be declared permanent by their employer. If yes, from which date and with other details ?;
ii) Whether the 28 workmen mentioned in the Schedule ‘Kha’ are to be given salary/pay scales on the posts mentioned against their names by their employer. If yes, from which date and with other details ?”
3. At the very outset it may be recorded that out of 39 employees, referred to in the terms of reference, 8 have died or have retired from service; 13 have been made permanent; 4 workmen have not pressed their claim before the Labour Court and only 14 workmen, mentioned in Schedule ‘Ka’, had continued with their claim before the Labour Court.
4. It may also be noted that the second term of reference was not ultimately pressed before the Labour Court, which was, therefore, required to adjudicate only on the claim of the 14 workmen, who remained out of the 39 workmen, that they were entitled to be declared permanent by the appellant herein.
5. In Order to appreciate the claim of the said 14 workmen it is necessary to look into the circumstances and the system of employment which prevail in the sugar industry in Uttar Pradesh on account of the fact that sugarcane is a seasonal crop and large numbers of workers are required by the sugar mills during the crushing season which is between the month of October in a given year to the month of April of the following year, i.e. roughly for a period of 7 months in a year. During the remaining part of the year only such employees as are required for maintenance of the mill are employed as permanent workmen as defined in the above-mentioned Standing Orders, but there is no bar to the sugar mills employing even seasonal workmen during the off-season in the mill.
6. The other practice which is followed is that workmen from different categories, as defined in the Standing Orders, are promoted to the next higher category as and when vacancies occur and that merely because the workmen may be required to perform other functions during the off-season, a claim could not be raised that such workmen would be entitled to be categorised in the said higher post in the hierarchy. In Order to appreciate the matter with greater clarity the Standing Orders dated 3.12.1958, as revised and published on 27.9.1988, are reproduced hereinbelow:
“Relevant extracts of Standing Orders Uttar Pradesh Extraordinary Gazette, 27th September, 1988
In pursuance of the provision of clause (3) of Article 348 of the Constitution the Governor is pleased to Order the publication of the following English translation of notification No.5692 (HI)/XXXVI-2-110 (HI)-77, dated September 27, 1988:
No.5692(HI) XXXVI-2-110(HI) - 77,
Dated September 27, 1988
Whereas, the Standing Orders governing the conditions of the employment of workmen in vacuum pan sugar factories of the State were enforced under Government notification No.5436- ST/XXXVI-A/208-ST-58, dated October 3, 1958;
And whereas, there was persistent demand for revision of the aforesaid Standing Orders which had become necessary in view of passage of time; Xxxx xxxx xxxx xxxx
B. Classification of wo
