# M/S Gangeshwar Ltd v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 224
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-03
- **Case number:** Writ C No. 6562 of 2002
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-gangeshwar-ltd-v-state-of-u-p-ors-45579
- **Pages:** 16

## Headnote

Labour Court's impugned order-based on
evidence on record-no illegality to invite
interference under Article 226 of the
Constitution-impugned order reinstated
the
workman
and
other
admissible
benefits-held-cannot be reinstated after
21 years as a seasonal hand-a lump-sum
of Rs. 5 Lakhs within two months be
paid-order modified to the extent. W.P.
partly allowed.

Cases cited:

## Text

_Characters 0–39,916 of 54,162. This is a partial read: ask again with offset=39916 for what follows._

224 INDIAN LAW REPORTS ALLAHABAD SERIES
with this Adjudication Case, with a
direction that the Labour Court concerned shall
decide the Adjudication Case afresh within a
period of four months of receipt of this order
by the Presiding Officer, Labour Court, U.P.,
Gorakhpur, or its successor Court, if
reconstituted. In making its fresh award, the
Labour Court shall bear in mind what has been
held by this Court in this judgment in so far as
it relates to Writ - C No.4975 of 2001.

70. Writ - C No.20683 of 2001 shall be
listed before the appropriate Bench after the
decision of Adjudication Case no.118 of 1987
afresh, in terms of the judgment and order
passed today in Writ - C No.4976 of 2001.

71. There shall be no order as to
costs in any of writ petitions decided
today.
----------
(2020)02ILR A224

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2020

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ C No. 6562 of 2002

M/S Gangeshwar Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bharati Sapru, Sri Diptiman Singh, Sri
S.D. Singh

Counsel for the Respondents:
C.S.C., Sri Suman Sirohi, Sumati Rani
Gupta

Labour Court's impugned order-based on
evidence on record-no illegality to invite
interference under Article 226 of the
Constitution-impugned order reinstated
the
workman
and
other
admissible
benefits-held-cannot be reinstated after
21 years as a seasonal hand-a lump-sum
of Rs. 5 Lakhs within two months be
paid-order modified to the extent. W.P.
partly allowed.

Cases cited:

1. Bhogpur Coop. Sugar Mills Ltd. vs. Harmesh
Kumar, (2006) 13 SCC 28

2. Ganga Kisan Sahkari Chini Mills Ltd. vs. Jai
Veer Singh, (2007) 7 SCC 748.

3. M/s 7 Triveni Engineering & Industries Ltd.
vs. State Of U.P. And Others, Writ - C No. -
19918 of 2009, decided on 07.01.2010

4. Batala Coop. Sugar Mills Ltd. v. Sowaran
Singh, (2005) 8 SCC 481

5. Rohtas Sugar Ltd vs. Mazdoor Seva Sangh,
AIR 1960 SC 671

6. Jaswant Sugar Mills Ltd. vs. Badri Prasad,
AIR 1967 SC 513 : (1961) 1 LLJ 649

7.
Managing
Director,
Chalthan
Vibhag
Sahakari Khand Udyog vs. Govt. Labour Officer,
(1981) 2 SCC 147.

(Delivered by Hon'ble J.J. Munir, J.)

1. The pith and substance of the
controversy, that has given rise to this Writ
Petition, centers around two questions, to
wit, (1) Whether in a reference made to the
Labour Court regarding the validity of
termination of services of the respondentworkman,
could
the
Labour
Court
pronounce upon his status as a temporary
or seasonal workman, in the absence of a
specific reference to that effect?, (2)
Whether
the
respondent-workman
is
seasonal or temporary within the meaning
of Clause B. 1(2) or (3) of the Standing
Orders
Covering
the
Condition
of
Employment of Workmen in Vacuum Pan
Sugar
Factories
in
U.P.?
4 All. M/S Gangeshwar Ltd. Vs. State of U.P. & Ors.
225

2. The facts giving rise to this Writ
Petition are that the petitioners are a sugar
mill, owned by a company incorporated
under the Indian Companies Act, 1956,
known as M/s. Gangeshwar Limited,
Deoband, Saharanpur. The said company
has its registered office at Deoband,
District Saharanpur. It is the petitioner's
case
that
the
company
has
been
rechristened as ''Triveni Engineering and
Industries Limited, Deoband, Saharanpur'.
The petitioners are engaged in the
manufacture of crystal sugar through the
vacuum pan process. It is the petitioner's
case that the nature of the industry is
seasonal. Business commences in the
month of November and ends in April,
invariably. Looking to the nature of the
petitioner's
business,
engagement
of
employees in the petitioner's sugar mill is
of
varied
terms
and
tenure.
Some
workmen are retained as temporary hands,
others as seasonal ones, and some on a
permanent basis. This variation of the
terms and tenure of employment depends
on the nature of the job that a particular
workman discharges in the sugar factory.
It is the petitioner's case that they are a
seasonal industry as already said, and that
conditions of services of their workman
are
governed
by
''Standing
Orders
Covering the Condition of Employment of
Workmen in Vacuum Pan Sugar Factories
in U.P.' (for short, the Standing Orders)
issued under Section 3(b) of the U.P.
Industrial Disputes Act, 1947 (for short,
the Act). Under the Standing Orders,
workmen may be employed on various
kinds of tenure, that are spelt out in Clause
B-1 (1) to (6). These are:

"B. Classification of Workmen-

1. Workmen shall be classed as-

(1) Permanent,

(2) Seasonal,

(3)Temporary,

(4) Probationers,

(5) Apprentices, and

(6) Substitutes."

3. It is the petitioner's further case
that varied nature of work assigned to the
above referred categories of workmen, is
done as provided in the Standing Orders. It
is stated by the petitioner for a fact that the
raw material, on which the petitioner's
industry runs, is sugarcane, and, therefore,
the business of a sugar mill is entirely
dependent on sugarcane production and its
availability.
The
petitioner
has
also
pleaded that availability of sugarcane
fluctuates during different years, and in
proportion to that, the requirement of
hands to run the petitioner's sugar mill. It
has
been
averred
categorically
in
paragraph 9 of the Writ Petition that
during
years
that
there
is
excess
production of sugarcane, the sugar mill per
necessity requires a stronger work force in
order to cope with increased business. A
fortiori
in
years
during
which
the
production of sugarcane goes down, or the
supply is otherwise short, the requirement
of services of workmen also dwindles.

4. The cause of action leading to this
petition appears to have arisen with Punjab
Singh son of Dharmpal Singh, respondent
no.3 to this petition, alleging that he was
retained by the petitioners as a Cane
Weighment
Clerk
during
the
entire
crushing seasons 1994-95, 1995-96, 199697 and 1997-98. He regularly discharged
his duties as such, at the various sugarcane
procurement centres during all these
seasons. It was claimed by the third
respondent that during the crushing season
1998-99 also, he was retained on the post
of a Cane Weighment Clerk, but on
06.01.1999 his services were dispensed
226 INDIAN LAW REPORTS ALLAHABAD SERIES
with without prior notice. In short, he
asserted his status to be a seasonal
employee with the petitioners, and a cause
of action arising in his favour on account
of illegal termination of his services
without notice as required by law. An
industrial dispute was, accordingly, raised
under Section 4-K of the Act between the
petitioner-employers and respondent no.3,
their workman, through a reference dated
09.09.1999 made by the Deputy Labour
Commissioner, Saharanpur Region in the
following terms (translated into English
from Hindi vernacular):

"Whether
the
act
of
the
employers in terminating the services of
their workman, Sri Punjab Singh son of
Dharmpal Singh, Cane Weighment Clerk,
w.e.f. 06.01.1999, is lawful and proper? If
no, what relief the concerned workman is
entitled to?"

5. On the basis of the said reference,
Adjudication Case no.323 of 1999 was
registered
before
the
Labour
Commissioner, U.P., Dehradun, the said
Labour Court at the relevant time being
the jurisdictional Labour Court for the
district
of
Saharanpur,
before
reorganization of the State of Uttar
Pradesh vide Act no.29 of 2000. Notice on
the aforesaid case was issued to the
employer
and
the
workman.
The
respondent-workman filed his written
statement on 24.01.2000 setting up a case
that he was a seasonal Weighment Clerk,
and that his services have been illegally
terminated during the crushing season
1998-99,
w.e.f.
06.01.1999.
The
petitioners filed their written statement
dated 20.12.1999 taking a case that the
respondent-workman
had
never
been
engaged in the regular establishment of the
petitioners in any of the specified
classifications of employees mentioned in
the Standing Orders, and that the industrial
dispute has been raised with an ulterior
motive to seek employment by exerting
pressure upon the petitioner-employers to
absorb the workman in their service. It has
been specifically averred in paragraph no.7
of the written statement filed by the
petitioners that since the workman had
never remained in their employment, the
question of terminating his services does
not arise. In substance, thus, the employers
disowned
the
factum
of
the
third
respondent being ever employed in their
establishment. The respondent-workman
and the petitioner-employers, both filed
their
rejoinder
statements
dated
24.01.2000 and 25.05.2000, respectively.

6. The workman as part of his
evidence filed thirteen documents through
a list numbered as 7-B(II). In addition, the
workman entered the witness box and
testified in support of his case before the
Labour Court as WW-1. The Employers
on the other hand examined two witnesses
in support of their case, to wit, Randeep
Singh, Cane Supervisor and another
Ravindra Singh, Mukhya Samaypal. It is
recorded for a fact by the Labour Court
that no documentary evidence was filed on
behalf of the employers.

7.

The
Labour
Court
upon
appreciation of the evidence on record
returned a finding that the workman was
employed during more than one crushing
season. He held, therefore, that the
workman fulfilled the requirement of a
seasonal workman, who had a right to be
engaged during the following crushing
seasons
and
to
receive
emoluments
therefor,
until
his
services
were
determined
in
accordance
with
the
Standing Orders. This Court proposes to
4 All. M/S Gangeshwar Ltd. Vs. State of U.P. & Ors.
227
scrutinize a little later the manner in which
the Labour Court has considered the
evidence in order to arrive at its
conclusions, within the limited parameters
of this Court's jurisdiction under Article
226 of the Constitution. On the basis of the
findings hereinbefore referred to, the
Labour Court proceeded to pass an award
that the workman was unlawfully denied
work w.e.f. 06.01.1999. It was further
awarded that the workman be reinstated
during the current crushing season, and be
given other admissible benefits, to which
he was entitled. It was still further awarded
that for the denial to retain during the
previous crushing seasons, the workman
be paid compensation in the sum of
Rs.5000/-. Cost of Rs.1000/- was also
ordered in favour of the workman, and
against the employers.

8. Assailing the aforesaid award,
dated
31.10.2000
(published
on
29.09.2001) made in Adjudication Case
no.323/1999, the present writ petition has
been filed.

9. The employer has assailed the
award on grounds, amongst others, that no
finding has been returned in terms of
Clause 2K of the Standing Orders, where
the various categories of workmen have
been classified.

10. Dilating on the submissions,
learned counsel for the petitioner, Sri
Diptiman Singh has urged that the
reference order did not proceed on the
assumption
that
the
workman
was
seasonal.
According
to
the
learned
counsel, therefore, it was imperative for
the Labour Court to return a finding in
accordance with Clause 2K of the
Standing
Orders,
based
on
relevant
evidence to the effect that the workman
was retained on a seasonal tenure. He
points out that the said finding returned by
the Labour Court is sketchy in its terms
and not based on relevant evidence
postulated under the Standing Orders. The
conclusion, therefore, that the workman
was retained on a seasonal basis is vitiated.
In further elucidation of that submission, it
is urged by Sri Diptiman Singh that no
finding has been recorded by the Labour
Court regarding the specific number of
days during which the workman has
worked, or is there any finding that he
worked during the second half of the
preceding crushing season. It is urged with
much emphasis that in the absence of a
clear finding that the workman was
retained during the second half of the
preceding crushing season, it is absolutely
unlawful to conclude that the third
respondent was a seasonal workman.

11. Learned counsel for the
petitioner has placed reliance upon a
decision of the Supreme Court in
Bhogpur Coop. Sugar Mills Ltd. vs.
Harmesh Kumar, (2006) 13 SCC 28
in support of his contention that where
the order of reference was to the effect
whether the termination of services of
the workman was lawful, the Labour
Court could not have gone into the
question whether the employer was
bound to re-engage the workman in all
subsequent seasons. Learned counsel
for the petitioner has drawn the
attention of the Court to paragraphs 7
and 8 of the report in Bhogpur Coop.
Sugar Mills Ltd. (supra), where it is
held:

"7. The Labour Court derived its
jurisdiction from the terms in reference. It
ought to have exercised its jurisdiction
within the four corners thereof.
228 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The principal question which
was referred by the State Government was
as to whether the termination of services
of the respondent was justified. The
Labour Court was, therefore, not required
to go into the question as to whether the
appellant was bound to take the services of
the respondent in all subsequent seasons or
not."

12. Sri Diptiman Singh has further
placed reliance upon a decision of the Supreme
Court in Ganga Kisan Sahkari Chini Mills
Ltd. vs. Jai Veer Singh, (2007) 7 SCC 748.
He submits that in the said decision that arose
out of a reference whether the services of the
workman were lawfully terminated, their
Lordships did not approve of the Labour Court
and the High Court going into the nature of
appointment of the workman on this kind of a
reference, holding him entitled to be absorbed
on permanent basis and reinstating him with
back-wages. He has invited the attention of the
Court to paragraph 8 of the Report in Ganga
Kisan Sahkari Chini Mills Ltd. (supra),
where it is held:

"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 subjectmatter 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 reinstated with back
wages, was clearly erroneous."

13. The learned counsel for the
petitioner has further invited attention of
the Court to an unreported decision of this
Court in M/s Triveni Engineering &
Industries Ltd. vs. State Of U.P. And
Others, Writ - C No. - 19918 of 2009,
decided on 07.01.2010. In the said case
too, the services of a Weighment Clerk
were terminated by the employer, Sugar
Factory. A reference was made to the
Labour Court as to whether the action of
the employer terminating the services of
their workman from the start of the
crushing season 1998 - 99 was just and
valid or not. The workman had come up
with a case that he was engaged as a
Weighment Clerk in the crushing season
1992 - 93 and worked as such for four
crushing seasons, the last being 1997 - 98.
The employer on the other hand came up
with a case that the workman was never
engaged by them. The Court proceeded
much on basis of the requirement that the
right to engagement of a seasonal
workman or to assail his termination
during a particular crushing season,
depended upon an answer to the issue
whether during the later half of the last
crushing season he had been engaged, or
he had worked for the complete period of
time, envisaged under Clause 2K(1) of the
Standing Orders. The Court proceeded to
hold that no specific evidence was referred
to by the Labour Court in order to record a
finding that the workman did work in the
later half of the crushing season 1997 - 98,
and that he was engaged for the complete
half period of the last season. It was also
held that most of the documents produced
by the workman relate to the period only
1996 - 97. No document for the relevant
season 1997-98 were produced, except the
authority letter, claimed to have been
issued by the employer. The period for
which the authorization is granted is not
mentioned. It has also been held by this
Court in M/s Triveni Engineering &
Industries Ltd. (supra) that all other
4 All. M/S Gangeshwar Ltd. Vs. State of U.P. & Ors.
229
documents relied upon by the workman
relate to a period of time prior to the last
crushing season. It was also, in particular,
noticed by this Court that it was averred in
para 10 of the written statement filed on
behalf of the employer that the workman
was not called at all for the crushing
season 1998 - 99. This Court then also
noticed that the industrial dispute was
raised with a delay of about three and a
half years that went against the workman.
In these circumstances, the award of the
Labour Court was quashed. It must be
remarked here that this decision is not
about the issue that in a reference about
the legality of termination of a workman,
the question whether he was a temporary
hand or a seasonal employee, could not
have been gone into by the Labour Court.
Rather, it is related to the allied issues
raised by the learned counsel for the
petitioner that the Labour Court has
wrongly answered the reference, inasmuch
as, no finding in accordance with Clause
2K(1) of the Standing Orders has been
recorded to the effect that the workman
has rendered work for the required number
of days, in the last crushing season. The
decision has also turned much on the fact
that there is no evidence considered by the
Labour Court to hold that in the later half
of the crushing season 1997 - 98, the
workman was engaged for the complete
half
period.
The
absence
of
an
appointment
letter
or
engagement
documents for the past four crushing
seasons have also weighed with the Court.
This decision may have some bearing on
the question of the validity of the
impugned judgment, in case it were to be
held by this Court here that the Labour
Court had jurisdiction on facts, that
emerge in this case to determine the
question that the workman held on
seasonal terms. In case it were held that
answering the question regarding nature of
the workman's tenure was beyond the
scope of reference, the question whether
the reference was correctly answered on
the basis of facts and evidence on record,
would be superfluous. Thus, the effect of
the decision of this Court in M/s Triveni
Engineering & Industries Ltd. (supra)
would be considered, a little later,
depending upon the outcome of the answer
to the principal question raised about the
competence of the Labour Court to decide
in the manner that it has done, within the
terms of the reference made.

14. There are two other decisions
relied upon by Sri Diptiman Singh in
support of his case that he canvasses here.
One is the decision of this Court in M/s
Gangeshwar Ltd., Deoband, Saharan-
pur vs. State Of U.P. & Others, decided
on 12.04.2017, and the other is a decision
of their Lordships of the Supreme Court in
Batala Coop. Sugar Mills Ltd. v.
Sowaran Singh, (2005) 8 SCC 481. A
consideration of these decisions would
also come about during the course of this
judgment, once the principal issue, above
noticed, is answered.

15. In answer to the proposition that
the Labour Court could not have gone into
the question of the workman being
employed
on
a
seasonal
tenure
contemplated under Clause B-1(2) of the
Standing Orders, entitling him to the
benefits of Clause 2-K, Ms. Sumati Rani
Gupta has urged that in order to ascertain
whether a workman held on a seasonal
tenure, he has to demonstrate that he was
employed in the last crushing season as
per Clause 2-K of the Standing Orders, so
far as the employers are concerned. She
submits that the employers are a Sugar
Factory in U.P., to whom the Standing
230 INDIAN LAW REPORTS ALLAHABAD SERIES
Orders apply. They are a seasonal
industry,
and,
therefore,
a
seasonal
workman has to bring his case within the
four corners of Clause 2-K of the Standing
Orders. He has nothing more to establish,
in order to prove that he is a seasonal
workman. She has further argued that
payment
of
retaining
allowance
demonstrates that the workman had put in
a minimum period of actual working days,
which in the least has to be a period of two
months. This submission of Ms. Gupta has
been advanced in the context of a strong
suggestion by the learned counsel for the
petitioner that a seasonal workman has to
prove that he is in receipt of a retaining
allowance, and since there is no evidence
about such receipt by the workman, he
cannot
be
regarded
as
a
seasonal
employee. To entertain these kinds of
submissions would appear to be a bit out
of context here, where the question
examined is whether the Labour Court
could go into the question on the terms of
the reference made that the workman held
on seasonal terms. The thrust of Ms.
Gupta's submission is that considering the
reference order admittedly relates to the
post of a Weighment Clerk held by the
workman, it is inherent in the nature of
that work that retention is as a seasonal
workman.
Learned
Counsel
for
the
workman
has,
therefore,
termed
as
completely specious the basis of the
employers' case that the Labour Court has
travelled beyond the reference, inasmuch
as, the work of a Weighment Clerk relates
to a crushing season alone in a Sugar
Factory.

16. It is argued by the learned
counsel for the workman that as per
Clause 2-K of the Standing Orders, a
seasonal clerk has a right to be called for
the next crushing season, if he has worked
during the previous crushing season,
which normally lasts 180 days. She
submits that the period of 240 days would
not be applicable to a seasonal workman,
unless he is a retainer. She has further
submitted that the concept of retaining
allowance is not a concomitant of seasonal
employment; there could be a seasonal
workman with no right to receipt of a
retaining allowance. As such, in the
submission of the learned counsel for the
workman, it is not imperative for the
workman to establish that he is in receipt
of retaining allowance before he can claim
to be a seasonal workman. She has pointed
out that the concept of retaining allowance
dates back to disputes and conflicts that
erupted between the employers and the
workman during the years 1955 to 1960
when certain class of workmen were paid
retaining allowance. The conflict resulted
in the formation of a Wage Board and
various categories of workmen were
directed to raise their grievances about the
right to receive a retaining allowance also,
before the Wage Board. In this connection,
she has referred to the decision of their
Lordships of the Supreme Court in Rohtas
Sugar Ltd vs. Mazdoor Seva Sangh,
AIR 1960 SC 671, where it has been held:

"8. Nor is it clear from the
materials on the record that unskilled
workmen employed in a particular factory
consider themselves attached to that
factory. It appears to be clear that once the
season is over the unskilled workmen
cease to have any contractual relations
with the employers and may rejoin on the
commencement of the season or may not
rejoin at their sweet will. As regards the
observations of the Tribunal that "the
seasonal employees are entitled to the
benefit of provident fund, gratuity and also
bonus which shows that in fact their
4 All. M/S Gangeshwar Ltd. Vs. State of U.P. & Ors.
231
connection with the employers is not
broken" the materials on the record are too
scanty for arriving at any definite
conclusion.

9. In consideration of the nature
and extent of the materials on the record
we are of opinion that for alleviating the
distress of unskilled workmen in these
sugar factories, with whom we are
concerned in the present appeals a much
better course will be to raise the wage
structure with an eye to this fact that for a
part of the off season at least when (sic)
they remain unemployed than to pay a
retaining allowance for the entire off
season.

10.
The
appellant's
counsel
readily agrees that the fact that these
unskilled workmen find employment in
the sugar factories only for a few months
and are in comparative difficulty in the
matter of finding employment during the
remaining months, should be taken into
consideration in fixing their wages. We are
informed that a Wage Board entrusted
with the task of fixing the wages of the
workmen concerned in these disputes is
sitting at the present time. The interests of
both the employers and labour will, we
think be best served if instead of
confirming the order made by the
Appellate Tribunal as regards the retaining
allowance the workmen will raise this
question of raising their wages in view of
the seasonal nature of their employment
before this Wage Board. We have no
doubt
that
such
a
claim
will
be
sympathetically considered by the Wage
Board, especially as the employers have
through their counsel, recognized before
us the reasonableness of their claim. The
appellants have through their counsel also
undertaken that they will not claim
restitution of the amounts already paid as
retaining allowance and further that they
will
continue
to
pay
the
retaining
allowance for the next season-half at the
commencement of the season and the other
half midway during the season-till the
wages have been fixed by the Wage
Board. Accordingly we allow the appeals
and set aside the order passed by the
Labour Appellate Tribunal of India,
Dhanbad, as regards retaining allowance to
unskilled workmen and also its order as
regards payment of halting allowance and
travelling
allowance
and
wages
to
workmen
attending
proceedings
of
necessity of the Industrial Tribunal. But as
has been mentioned earlier the appellants
have undertaken not to seek restitution as
regards the halting or retaining allowance
already paid and further that they will
continue to pay retaining allowance for the
next season-half at the commencement of
the season and the other half mid-way
during the season-till the wages are fixed
by the Wage Board."

17. Learned counsel for the workman
has further urged that the nature of a
workman's job whether it is permanent,
seasonal or temporary, depends upon the
nature of the work and the purpose of his
engagement. This submission, the learned
counsel for the workman has stressed
looking to the nature of the work of a
Weighment Clerk in a Sugar Factory, that
is admittedly the workman's assignment.
The submission is advanced in aid of the
proposition that a Weighment Clerk in a
Sugar
Factory,
as
already
said
hereinbefore, can be nothing, but a
seasonal workman. A fortiori, according to
the learned counsel for the workman, there
was nothing wrong about the Labour Court
proceeding on basis that the nature of the
workman's engagement was seasonal. In
order
to
substantiate
the
distinction
between a permanent, seasonal and a
232 INDIAN LAW REPORTS ALLAHABAD SERIES
temporary workman, learned counsel for
the workman has placed reliance upon the
decision of the Supreme Court in Jaswant
Sugar Mills Ltd. vs. Badri Prasad, AIR
1967 SC 513 : (1961) 1 LLJ 649. The said
appeal before their Lordships arose out of
a reference to the Labour Court in terms
"Whether
the
employers
should
be
required
to
designate
their
fifteen
workmen mentioned in the annexure as
permanent workmen. If so, with what
details?" In Jaswant Sugar Mills Ltd.
(supra), it was held thus:

"3. The main question for our
consideration in the present appeal by the
employer by special leave is the proper
construction of the definition of a
permanent workman. In deciding on the
proper meaning to be attached to the
words and phrases used in the definition it
will be proper to consider the question in
the background of the definition in the
Standing Order of two other kinds of
workmen, viz., Seasonal Workmen and
Temporary
Workmen.
A
Seasonal
Workman is defined as one who is
engaged for the crushing season only
and/or may also be employed for the
period
necessary
for
cleaning
and
overhauling either before or after the
season and is discharged after the work is
finished. A Temporary Workman is
defined as one who is engaged in the work
of a temporary and casual nature or to fill
in a temporary need of extra hands on
permanent or temporary jobs.

4. Reading the three definitions
together it is abundantly dear that while a
seasonal workman is engaged in a job
which lasts during the crushing season
only, a temporary workman may be
engaged either for work of a temporary or
casual nature or work of a permanent
nature; but a permanent workman is one
who is engaged on a permanent nature of
work only. The distinction between a
permanent workman engaged on work of a
permanent
nature
and
a
temporary
workman engaged on work of a permanent
nature is in the fact that a temporary
workman is engaged to fill in a temporary
need of extra hands of permanent jobs. In
this background it becomes clear that the
words engaged on a permanent nature of
work throughout the year" were intended
to mean "engaged on a permanent nature
of work lasting throughout the year" and
not "engaged throughout the year on a
permanent nature of work." When a
workman is engaged on a work of
permanent nature which lasts throughout
the year it is legitimate to expect that he
would continue there permanently unless
he has been engaged to fill in a temporary
need. It will be unreasonable to think that
the Standing Orders left a loop-hole for the
employer to prevent a person engaged on a
work of permanent nature which lasts
throughout the year, from becoming
permanent by the device of discharging
him from time to time. By such a device it
would be possible for the employer to
prevent any workman from becoming
permanent, even though the work on
which he is engaged lasts throughout the
year and is in its nature permanent. That
could not have been the intention when the
Standing Orders were framed. It stands
much more to reason that in speaking of a
workman being engaged on a permanent
nature of work throughout the year, those
who
framed
the
Standing
Orders
proceeded on the assumption that if the
work
of
a
permanent
nature
lasts
throughout the year a workman who has
completed his probationary period, if any,
will continue to be engaged in that work.
We are, therefore, of opinion that the
Appellate Tribunal was right in thinking
4 All. M/S Gangeshwar Ltd. Vs. State of U.P. & Ors.
233
that to be a permanent workman within the
definition it is not necessary that the
workman should be engaged throughout
the year. What is necessary is that the
work on which he is engaged is of a
permanent nature and lasts throughout the
year."

18. At this stage, one submission put
forward by Sri Diptiman Singh, learned
counsel for the petitioner, to which some
allusion
has
already
been
made
hereinbefore, urged from the contrary
perspective must be noticed. It is argued
that payment of retaining allowance is a
necessary
incident
of
seasonal
engagement. In the absence of proof of the
fact that the workman was in receipt of
retaining allowance, there can be no case
of seasonal engagement. It is emphasized
that there is no finding by the Labour
Court that retaining allowance was paid to
the workman. In this context, reliance has
been placed by the learned counsel for the
employers upon a decision of the Supreme
Court in Managing Director, Chalthan
Vibhag Sahakari Khand Udyog vs.
Govt. Labour Officer, (1981) 2 SCC
147. Learned counsel for the petitioner has
invited attention of the Court to paragraph
6 of the Report in Managing Director,
Chalthan
Vibhag
Sahakari
Khand
Udyog (supra):

"6. There can be no doubt that
the retaining allowance paid to the
workmen during the off-season falls
within the substantive part of the definition
of the expression "salary or wage". It
undoubtedly is remuneration which would,
if the terms of employment, express or
implied, were fulfilled, be payable to any
employee in respect of his employment.
The retaining allowance is a remuneration
on a lower scale which is paid to the
workmen by the management during the
off-season for their forced idleness. The
payment of such allowance by the
management to its workmen during the
off-season when there is no work and
when the factory is not working, is
indicative of the fact that it wants to retain
their services for the next crushing season.
The very fact that retaining allowance is
paid to the workmen clearly shows that
their services are retained and, therefore,
the jural relationship of employer and the
employee continues. It is true that a
workman may not return to work and may
take up some other job or employment. In
that event, he forfeits the right of payment
of the retaining allowance. But when the
workman returns to work when the next
crushing season starts, the payment of
retaining allowance during the off-season,
partakes of the nature of basic wage on a
diminished scale. The definition of the
expression "salary or wage" given in
Section 2(21) of the Act is wide enough to
cover the payment of retaining allowance
to the workmen. It is nothing but
remuneration correlated to service and it
would be a misnomer to call it an
allowance. The retaining allowance does
not fall within the purview of clause (i) of
the exclusionary clause of Section 2(21),
but comes within the substantive part of
the definition of "salary or wage" in
Section 2(21) of the Act. The retaining
allowance cannot be construed to be any
other allowance which the employee is, for
the time being, entitled. The High Court
was, therefore, justified in holding that the
retaining allowance paid to the seasonal
employees was a part of their "salary or
wage" within the meaning of Section 2(21)
of the Act and, therefore, must be taken
into account for the purpose of calculation
of bonus payable under the Payment of
Bonus Act, 1965."
234 INDIAN LAW REPORTS ALLAHABAD SERIES

19. To determine what a seasonal
workman connotes, a brief survey of the
definition of a 'seasonal workman' and
conditions
governing
employment
of
seasonal workmen under the Standing
Orders, must be undertaken. Clause
B.1.(2) of the Standing Orders defines a
seasonal workman thus:

"B. Classification of workmen

1. Workmen shall be classed
as:

(1) x x

(2) A "Seasonal Workman" is
one who is engaged only for the crushing
season and has completed his probationary
period, if any."

20. Likewise, a temporary workman,
and a probationer who are two other
classes of workmen, of the total six
hereinbefore detailed, are defined under
Clause B. 1 (3) and (4) as under:

"(3) A "Temporary Workman" is
one who is engaged for meeting a
temporary or casual requirement.

(4) A "Probationer" is one who
is provisionally employed for a period
specified by the management at the time of
employment to fill a permanent/seasonal
vacancy
or
a
new
post
of
permanent/seasonal nature & who may be
confirmed at the completion of that period
if his services are found satisfactory. The
probationary period shall be six months in
the case of permanent workmen & the one
month or half of the season whichever is
less in the case of seasonal workmen.

Provided that if no period of
probation is specified by the management
at the time of employment, the period of
probation shall be deemed to be six
months in the case of permanent workmen
& one month or half of the season
whichever is less, in the case of seasonal
workmen.

Provided further that if after the
expiry of probationary period, no orders
are passed by the management the
probationers shall be deemed to have been
confirmed automatically."

21. So far as the special condition
governing
employment
of
seasonal
workman
are
concerned,
these
are
governed by Clause K, 1, 2 and 3 of the
Standing Orders. Sub clause 4 of Clause K
is not relevant and is, therefore, not being
referred to. Clause K. 1, 2 and 3 of the
Standing Orders read thus:

"1. A seasonal workman who
has worked or, but for illness or any other
unavoidable cause, would have worked
under a factory during the whole of the
second half or the last preceding season
shall be employed by the factory in the
current season and shall be entitled to get
retaining allowance provided he joins the
current season and works for at least one
month.
The
payment
of
retaining
allowance shall be made within two
months of the date of commencement of
the season.

Explanation-Unauthorised
absence during the second of the last
preceding season of a workman who has
not been validly dismissed under these
Standing Orders and of a workman who
has been re-employed by the management
in the current season, shall be deemed to
have been condoned by the management.

2. Every seasonal workman who
worked during the last season shall be put
on his old job whether he was in the "R"
shift or in any of the usual shifts.

However, if the exigencies of
work so require, the management may
transfer a workman from one job to
4 All. M/S Gangeshwar Ltd. Vs. State of U.P. & Ors.
235
another or from one shift to another
including 'R' shift so however, that the
number of workmen so transferred does
not exceed five percent of total number of
the employees of the factory and that the
wages and status of such workman is not
affected in any way.

3. A seasonal workman, who is a
retainer shall be liable to be called on duty
at any time in the off season and if he does
not report for duty within 10 days, he shall
lose his retaining allowance for the period
for which he was called for duty."

22. So far as the termination of
services of a workman is concerned, the
same are governed by Clause L of the
Standing
Orders,
whereas
termination/dismissal
on
ground
of
misconduct is governed by Clause M.

23. This Court has considered the
rival submissions advanced on behalf of
both
parties,
vis-a-vis,
the
question
whether in a reference relating to validity
of
termination
of
services
of
the
respondent-workman, the Labour Court
can pronounce upon his status as a
temporary or seasonal hand, in the absence
of those specific terms referred. The
proposition that the Labour Court could
not hold the workman to be a seasonal
employee, draws support from the decision
of their Lordships of the Supreme Court in
Bhogpur
Coop.
Sugar
Mills
Ltd.
(supra). In the aforesaid decision, the
question arose in the context of facts that
the workman was engaged by the
employers, a Sugar Mill at the beginning
of the crushing season along with others.
The workmen were recruited at the
commencement
of
the
season
and
retrenched at the end of it. The respondent,
no doubt, was appointed as a seasonal
workman as the facts of the case would
show. It also figures from the facts there,
that he was retained on daily-wage basis.
The workman appears to have raised an
industrial dispute against the termination
of his services at the end of the crushing
season, which apparently came to an end
with end of the season. A reference was
made in the following terms [extracted
from the Report in Bhogpur Coop. Sugar
Mills Ltd. (supra)]:

"Whether termination of services
of Shri Harmesh Kumar workman is
justified and in order? If not, to what
relief/exact amount of compensation is he
entitled?"

24. The Labour Court held that the
workman had not been able to establish
that he had worked for 240 days, but
further held that the employers having not
called the workman in the subsequent
crushing season, whereas his juniors were
invited to join, constituted a violation of
Section 25-G of the Industrial Disputes
Act. In accord with the finding, an award
was made directing the employers to reemploy the workman from the season in
which juniors to him were called, but the
workman was not.