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2018 Supreme(All) 2500
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SUNITA AGARWAL, J.
Simbhaoli Sugars Limited - Appellant
Versus
State of U.P. and Others - Respondent
WRIT - C No. 25086 of 2018
Decided On : 17-12-2018
For the Appellant : Rohan Gupta
For the Respondent: C.S.C., Bushra Maryam
The employer has the burden of proving the nature of employment of workmen, and failure to produce records can lead to an adverse inference of suppression of evidence.
Headnote:
INDUSTRIAL DISPUTE - SEASONAL WORKMEN - SUBSTITUTE WORKMEN - STANDING ORDER - BURDEN OF PROOF - ADVERSE INFERENCE - REINSTATEMENT: 1. The onus of proving the nature of employment lies on the workmen, which can be discharged by filing an affidavit of relevant facts, shifting the burden to the employer. 2. Failure to produce records by the employer can lead to an adverse inference of suppression of evidence, presuming the documents would be unfavorable. 3. Seasonal workmen are entitled to re-employment in the subsequent season if they have worked during the whole of the second half of the last preceding season. 4. Substitute workmen are engaged in place of permanent or seasonal workmen who are temporarily absent on leave or otherwise. 5. The employer must maintain records of employment and wages of workmen as mandated by the Standing Orders, which are statutory conditions of service.
Fact of the Case:
The petitioner, a sugar mill, challenged an award passed by the Industrial Tribunal holding that 138 workmen were seasonal workmen and were illegally terminated. The workmen claimed to have worked for several seasons, while the employer asserted they were substitute workmen engaged for specific periods.
Finding of the Court:
The court found that the employer failed to produce records of employment and wages of the workmen, despite a categorical order from the tribunal. This led to an adverse inference that the employer had suppressed evidence unfavorable to them. The court also noted that the workmen had filed an affidavit stating they had worked in each season from the date of their first engagement till the date of termination, and that the employer had not produced any evidence to contradict this.
Issues: 1. Whether the workmen were seasonal or substitute workmen? 2. Whether the termination of their services was illegal?
Ratio Decidendi: 1. The burden of proof lies on the workmen to establish the nature of their employment, which can be discharged by filing an affidavit of relevant facts, shifting the burden to the employer. 2. Failure to produce records by the employer can lead to an adverse inference of suppression of evidence, presuming the documents would be unfavorable. 3. Seasonal workmen are entitled to re-employment in the subsequent season if they have worked during the whole of the second half of the last preceding season. 4. Substitute workmen are engaged in place of permanent or seasonal workmen who are temporarily absent on leave or otherwise.
Final Decision: The court dismissed the petition, upholding the award of the Industrial Tribunal. It also directed the employer to maintain a register for all workmen, noting the nature of their employment, and to intimate them when the new season starts for potential re-engagement.
JUDGMENT :
SUNITA AGARWAL, J.
1. Heard Sri Navin Sinha learned Senior Advocate assisted by Sri Rohan Gupta learned counsel for the petitioner and Ms. Bushra Maryam learned counsel for the respondent no. 3.
2. The present petition is directed against the award dated 29.09.2017 passed by the Industrial Tribunal (5), Meerut U.P. in Adjudication Case No.181 of 2005, published on 24.05.2018.
3. Facts in brief relevant to decide the controversy in hands are that the company namely Simbhaoli Sugars Limited is engaged in the manufacturing of white crystal sugar through vacuum pan process. The manufacturing unit of the petitioner mill operates from November to April each year. The conditions of employment of workmen in the factory is governed by the “Standing Order Governing the Conditions of Employment of Workmen in Vacuum Pan Sugar Industries in UP” (in short be referred as the “Standing Order”), which have been framed by the State Government in exercise of powers under Section 3 (B) of the U.P Industrial Disputes Act' 1947 (in short hereinafter referred as the Act' 1947).
4. The dispute herein has arisen out of the conciliation application filed by the workmen through respondent No. 3, a registered-union. The conciliation failed and the dispute was referred for adjudication as under:-
^^D;k lsok;kstdks }kjk layXu lwph esa vafdr 138 deZdkjks] ftudks Jkfed i{k ekSleh deZdkj rFkk lsok;kstd+ i{k ,oth deZdkj dh laKk ns jgk gS] dh lsok,a fnukad 21-03-2004 ls lekIr fd;k tkuk mfpr rFkk@vFkok oS/kkfud gS \ ;fn ugh] rks lEcaf/kr deZdkj D;k fgrykHk@mi'ke ikus ds vf/kdkjh gS] fdl frfFk ls o vU; fdu fooj.kksa lfgr \**
5. The reference was answered by the Industrial Tribunal vide award dated 29.09.2017 holding that the concerned workmen were working in the establishment as seasonal workmen and they were illegally been terminated w.e.f. 21.03.2004. They were held to be entitled for reinstatement on seasonal basis.
6. The challenge to the award herein is with the assertion that the workmen concerned were working as 'substitute' workmen, engaged in order to meet the exigencies of work as per the corresponding fluctuation depending upon supply of sugarcane in a particular season. The 'substitute' workmen are engaged on Form-'I', which is the ticket for the engagement of 'substitute' workmen and Form-'B' which is the engagement memo for monthly paid workman prescribed in the Standing Order. Whereas the seasonal employee or other permanent workmen are issued ticket under Form-'E' and Form-'D'.
7. The submission is that the concerned workman had been employed in the previous season as substitute workmen, only for few days. They had lodged false and concocted complaint, alleging the termination of their services, whereupon, an enquiry was initiated by the Sub Divisional Officer calling upon the petitioner-management vide communication dated 20.03.2004 to present themselves before him with the relevant records. The complaint dated 17.03.2004 was made by the workmen admitting that they had worked only for few days in different season. While enquiry before the Sub Divisional Officer was going on, the concerned workmen had initiated conciliation proceedings wherein the statements of both the workmen's representatives and that of the employer were recorded. Upon failure of the conciliation, the reference was made, initially only with regard to the alleged termination of services of the workman as on 21.03.2004. Further, on an amendment application filed by the petitioner-management, the reference was amended so as to include the dispute relating to nature of services of the workmen. The reference has thus been made as to whether the workmen concerned were seasonal or substitute and further whether termination of their services w.e.f 21.03.2004 was illegal.
8. In the claim petition before the tribunal, the workmen claimed themselves to be the seasonal workmen. The chart containing the list of workmen as appended with the claim petition, was a forged document as the sa
