BATALA COOPERATIVE SUGAR MILLS LTD.versusSOWARAN SINGH

A               BATALA COOPERATIVE SUGAR MILLS LTD.
                                         V.

                               SOWARAN SINGH

                               OCTOBER 7, 2005

B           [ARIJIT PASAYAT AND DR. AR. LAKSHMANAN, JJ.]


          Industrial Disputes Act, 1947-Sections 2(oo)(bb) and 25F-Workman
    engaged on casual basis for specific period and for specific purpose-
C   Termination of-Held, did not amount to retrenchment within meaning of
    S.2(oo), in view of c/ause(bb) thereof-Relief of re-instatement granted by
    Courts below on ground ofnon-compliance with S.25F cannot be maintained-
    Onus was wrongly placed on the employer to prove that the workman had not
    worked for 240 days in 12 calendar months preceding the date of termination.

D        Respondent-workman raised industrial dispute alleging that he was
    appointed w.e.f. lst April, 1986 on regular basis against a regular post
    and that his services were illegally terminated on 12th February, 1994
    without any notice, notice pay and retrenchment compensation.

         The Labour Court observed that though the appellant-employer took
E the stand that the respondent was only employed on casual basis on daily
    wages for specific period and. for specific purpose, yet i.t gave an evasive
    reply in respect of the respondent's stand that he was appointed in April,
    1986; that no attendance record was produced; that there was no material
    to show that.the respondent had left the job on his own accord and that
    in any event the appellant had not proved that the respondent had worked
F   for less than 240 days in 12 calendar months preceding the date of
    termination. Accordingly, the Labour Court held that there was violation
    of Section 25F of the Act and directed re-instatement of the respondent
    with 50% back wages. High Court declined to interfere with the award
    passed by Labour Court. Hence the present appeal.
G
         Allowing the appeal, the Court

         HELD: 1. The High Court's judgment is unsustainable on more than
    one count. (307-F)

H                                      304
      BATALA COOPERATIVE SUGAR MILLS LTD. v. SOWARAN SINGH[PASAYAT, J.]   305
      2.1. The materials on record clearly establish that the engagement        A
of the VI orkman was for specific period and specific work. In view of the
position as highlighted in Marinda Sugar Mills and Anil Bapurao 's cases,
the relief granted to the workman by the Labour Court and the High
Court cannot be maintained. (309-CI

      2.2. So far as the question of onus regarding working for more than       B
240 days is concerned, the onus is on the workman. But at the same time
as observed in Marinda Sugar Mills case, the modalities indicated shall be
followed by the appellant-employer. In fact before the Labour Court, it
was clearly stated that the employer was willing to offer engagement to
the workman as and when necessity arises. If there is any requirement           C
for engagement the case of respondent-workman shall be considered in
its proper perspective and necessary orders shall be passed.
                                                         (309-D; 310-D-E)

      Marinda Co-operative Sugar Mills Ltd. v. Ram Kishan and Ors., (1995)
5·SCC 653; Anil Bapuraa Kanase v. Krishna Sahakari Sakhar Karkhana Ltd.         D
and Anr., (1997) 10 SCC 590 and Range Forest Officer v. S. T. Hadimani,
12002 J 3 sec 25, relied on.

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7981 of 2004.

     From the Judgment and Order dated 12.12.2003 of the Punjab and             E
Haryana High Court in C. W.P. No. 19304 of 2003.

     M.C. Dhingra for the Appellant.

      Sanjay Sarin, Ms. Manjusha Wadhwa, N.P. Midha and Ashok Mathur
for the Respondent.
                                                                                F
     The Judgment of the Court was delivered by

     ARIJIT PASA YAT, J. Appellant calls in question legality of the
judgment rendered by a Division Bench of the Punjab and Haryana High
Court dismissing the writ petition filed by the appellant and upholding the
award made by the Presiding Officer, Labour Court, Gurdaspur.                   G
     Factual background in a nutshell is as follows:

      The respondent (hereinafter referred to as the 'workman') made a
grievance before the State Government that his services were illegally
terminated by the appellant (hereinafter referred to as the 'employer').        H
    306                      SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A Reference was made by the State Government under Section IO( I) of the
    Industrial Disputes Act, 1947 (in short the' Act') for adjudication the following
    question:

            "Whether termination of services of sh. Sowaran singh workman is
            justified and in order? If not, to what relief/exact amount of
B           compensation is he entitled?

           The case of the workman as pleaded in the demand notice was that he
    was appointed by the employer w.e.f. 1.4.1986 on regular basis against the
    regular post and was being paid Rs. 1200 p.m. His services were illegally
C   terminated by the employer on 12.2.1994 without any notice, notice pay and
    retrenchment compensation. No charge-sheet was filed or enquiry held. Though
    he approached the employer, but to no effect and, therefore, he had prayed
    for his re-instatement with continuity of service and back wages. The employer
    filed its written statement taking the stand that the reference was factually
    and legally erroneous as the services of the workman were never terminated
D   on 12.2.1994 as alleged. In fact he had abandoned the job. He was engaged
    on casual basis on daily wages for specific period and for specific work. He
    was never issued any appointment order in respect of any regular post and/
    or on regular basis. There was also no vacancy at the relevant time. The
    Labour Court framed four issues for adjudication which are as under:

E           "l. Whether the workman abandoned the job of his own accord?
                                                           '
            2. whether the reference is not maintainable as alleged in P.O. of WI
            S?

            3. Whether the applicant is entitled to the amount claimed in the
F           application?

            4. Relief."

          The Labour Court was of the view that though the stand of the employer
    was that the respondent-workman was employed on casual basis on daily
G   wages for specific work and for specific period, yet evasive reply was given
    in respect of the workman's stand that he was appointed in April 1986. It was
    observed that no attendance record was produced. There was also no material
    to show that the workman had left the job on his own accord and in any event
    the employer had not proved that the workman had worked for less than 240
H   days in 12 calendar months preceding the date of termination. Accordingly,          1
    it was held that there was violation of Section 25F of the Act. Direction was
      BATALACOOPERATIVESUGARMILLSLTD. v. SOWARANSINGH[PASAYAT, J.]          307
given to re-instate the workman with 50% back wages.                                A
      The employer filed a Writ Petition which was dismissed by the impugned
order. It was held by the High Court that there was no legal or factual
infirmity in the award. It was noted that the employer had failed to produce
muster roll which was mandatorily required to be maintained under Section
25-D of the Act.                                                     ·              B
      In support of the appeal, learned counsel for the appellant submitted
that both the Labour Court and the High Court fell in grave error by acting
on factually and legally erroneous premises. The definite stand of the appellant
was that the workman was engaged on casual basis on daily wages for specific
work and for specific period. Details in this regard were undisputedly filed.       C
Therefore, the provisions of Section 2(oo)(bb) of the Act are clearly applicable.
Jp addition, the onus was wrongly placed on the employer to prove that the
workman had not worked for 240 days in 12 calendar months preceding the
alleged date of termination. No material was placed on record by the workman
to establish that the workman had offered himself for job after 12.2.1994.          D
The award of the Labour Court does not speak of the requirement to maintain
the muster roll. This point was taken up suo moto by the High Court without
any opportunity to the appellant to have its say.

      In response, leamd counsel for the respondent su~mitted that in the
factual scenario as noticed by the Labour Court the award was made and the          E
High Court has rightly refused to interfere with it.

     We find that the High Court's judgment is unsustainable on more than
one count. In Marinda Coop. Sugar Mills Ltd. v. Ram Kishan and Ors.,
[1995] 5 sec 653, it was observed as follows:
                                                                                    F
        "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                  G
       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           H
    308                    SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

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."

B         The position was re-iterated by a three-Judge Bench of this Court in
    Anil Bapurao Kanase v. Krishna Sahakari Sakhar Karkhana Ltd. and Anr.,
    [1997] IO SCC 599. It was noted as follows:

           "The learned counsel for the appellant contends that the judgment of
           the High Court of Bombay relied on in the impugned order dated
c          28.3.1995 in Writ Petition No. 488of1994 is perhaps not applicable.
           Since the appellant has worked for more than 180 days, he is to be
           treated as retrenched employee and if the procedure contemplated
           under Section 25-F of the Industrial Disputes Act, 1947 is applied,
           his retrenchment is illegal. We find no force in this contention. In
D          Marinda Coop. Sugar Mills Ltd. v. Ram Kishan, in para 3, this Court
           has dealt with engagement of the seasonal workman in sugarcane
           crushing; in para 4 it is stated that it was not a case of retrenchment
           of the workman, but of closure of the factory after the crushing
           season was over. Accordingly, in para 5, it was held that it is not
           'retrenchment' within the meaning of Section 2(oo) of the Act. As a
E          consequence the appellant is not entitled to retrenchment as per clause
           (bb) of Section 2( oo) of the Act. Since the present work is seasonal
           business, the principles of the Act have no application. However, this
           Court has directed that the respondent management should maintain
           a register and engage the workmen when the season starts in the
           succedding years in the order of seniority. Until all the employees
F
           whose names appear in the list are engaged in addition to the
           employees who are already working, the management should not go
           in for fresh engagement of new workmen. [t would be incumbent
           upon the respondent management to adopt such procedure as is
           enumerated above."
G
          Section 2 (oo) (bb) reads as follows:

           "(oo) "retrenchment" means the termination by the employer of the
           service of a workman for any reason whatsoever, otherwise than as
           a punishment inflicted by way of disciplinary action, but does not
H          include-
     BATALA COOPERATIVE SUGAR MILLS LTD. v. SOWARAN SINGH [PASAYAT, J.]     309
       (a) voluntary retirement of the workman; or                                  A
       (b) retirement of the workman on reaching the age of superannuation
       if the contract of employment between the employer and the workman
       concerned contains a stipulation in that behalf; or

       (bb) termination of the service of the workman as a result of the non-       B
       renewal of the contract of employment between the employer and the
       workman concerned on its expiry or of such contract being terminated
       under a stipulation in that behalf contained therein".

    The materials on record clearly establish that the engagement of the
workman was for specific period and specific work.                                  C
     In view of the position as highlighted in Marinda Coop. Sugar Mills
and A nil Bapurao 's cases (supra), the relief granted to the workman by the
Labour Court and the High Court cannot be maintained.

      So far as the question of onus regarding working for more than 240            D
days is concerned, as observed by this court in Range Forest Officer v. S.T
Hadimani, [2002] 3 SCC 25 the onus is on the workman. It was noted in the
said judgment as follows:

       "2. In the instant case, dispute was referred to the Labour Court that
       the respondent had worked for 240 days and his service had been              E
       terminated without paying him any retrenchment compensation. The
       appellant herein did not accept this and contended that the respondent
       had not worked for 240 days. The Tribunal vide its award dated
        I 0.8. I 998 came to the conclusion that the service had been terminated,
       without giving retrenchment compensation. In arriving at the                 F
       conclusion that the respondent had worked for 240 days the Tribunal
       stated that the burden was no the management to show that there was
       justification in termination of the service and that the affidavit of the
       workman was sufficient to prove that he had worked for 240 days in
       a year.

       "3. For the view we are ta~g, it is not necessary to go into the
                                                                                    G
       question as to whether the appellant is an 'industry' or not, though
       reliance is placed on the decision of this Court in State of Gujarat v.
       Pratamsingh Narsinh Parmar, [200 I] (9) SCC 713. 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           H
    310                       SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A            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 so 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. Filir,g of an affidavit is
             only his own statement in his favour and that cannot be regarded as
B            sufficient evidence for any court or tribunal to come to the conclusion
             that a workman had, in fact, worked for 240 days in a year. No proof
             of 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.
C            However, Mr. Hegde, appearing for the Department states that the
             State is really interested in getting the law settled and the respondent
             will be given an employment on compassionate grounds on the same
             terms as he was allegedly engaged prior to his termination, within
             two months form today."

D         The appeal, therefore, deserves to be allowed which we direct. But at
    the same time as observed in paragraph 5 of Marinda Sugar Mills case
    (supra) the modalities indicated shall be followed by appellant-employer. In
    fact before the Labour court, it was clearly stated that the employer was
    willing to offer engagement to the workmans and when necessity arises. If
E   there is any requirement for engagement the cases of respondent-workman
    shall be considered in its proper perspective and necessary orders shall be
    passed. In the ultimate, the appeal is allowed but in the circumstances, there
    will be no order as to costs.

    B.B.B.                                                         Appeal allowed.