JUDGMENT
P. Sathasivam, J.
1. Aggrieved against the order of the Government in G.O. Ms. No. 1573, Labour, dated July 27, 1988, and the subsequent Government letter No. 47174/C2/88-2, Labour and Employment, dated November 10, 1988, Management of Stanmore Estate has filed W.P.
No. 4992 of 1989. The very same petitioner against the consequential order made in I.D. No. 55 of 1984 on the file of the Industrial Tribunal, Tamil Nadu, dated January 30, 1992, filed W.P. No. 3026 of 1993. Since the subsequent order of the Tribunal is based on the order of the Government impugned in the earlier writ petition, both may be disposed of by the following common order.
2. The case of the petitioner is briefly stated hereunder: The petitioner Stanmore Estate is a coffee plantation in Nagalur Village, Yercaud Taluk, Salem District. The estate comprises about 300 acres under coffee cultivation employing about 100 workers, apart from a few casual labourers. By G.O. Ms. No. 1307, Labour, dated June 15, 1984, the State Government referred a dispute between the petitioner and the second respondent-union regarding non-employment of 120 workers for the period March 1 to May 31 1983, to the Industrial Tribunal, for adjudication. The Industrial Tribunal, Madras, took the reference on file as I.D. No. 55 of 1984. The second respondent-union filed a claim statement before the Tribunal stating that the Stanmore Estate is not a seasonal establishment and they are not entitled to declare annual closure as a seasonal establishment. The petitioner filed a counter statement repudiating the aforesaid connotation raised by the union and also raised a plea that the seasonal character or in which work is performed only intermittently has to be considered only by the Government under Section 25-A(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). In the circumstances the petitioner moved the first respondent Government in an application, dated July 21, 1986, for a decision on the said question as to whether the petitioner estate is an industrial establishment of a seasonal character or whether work is performed thereon only intermittently under Section 25-A(2) of the Act (or the cognate provision Section 25-K(2) of the Act). The second respondent-union filed a counter- affidavit, in the said proceedings. By order, dated July 16, 1987, the first respondent-Government rejected the application made by the petitioner against which the petitioner W.P. No. 9145 of 1987, before this Court. Ultimately, the impugned non-speaking order of the Government was set aside and the matter remitted to first respondent for reconsideration. Thereafter, the Government passed fresh orders in G.O. Ms. No. 1573, Labour, dated July 27, 1988, which is impugned in the first writ petition. Even after remand, the Government have held that the petitioner-management have not made out a case to declare the establishment as a seasonal establishment under Section 25-K(2) of the Act.
3. It is further stated that thereafter the first respondent filed a representation to the Government on August 10, 1988 to reconsider the matter since the question has not been considered by the Government in terms of the remand order of this Court. The petitioner also filed a further, representation to the Government, dated August 19, 1988, reiterating that claims and contentions and inviting attention to the reports on the condition of labour in plantations in India by Sri D.V Rege, I.C.S. Chairman, Labour Investigation Committee, published by the Government of India in 1946 and the Report of the Plantation Enquiry Commission, 1958, and the study of the working and living condition of labour in South India published by the Central Government in 1984, all of which have pointed out that work in a coffee plantation is seasonal. By letter, dated November 10, 1988, the first respondent Government have informed the petitioner that they see no reason to revise the orders already issued in G.O.Ms.No. 1573, Labour, dated July 27, 1988, and the request for reconsideration cannot be complied with. Aggrieved by the Government Order as well as the subsequent letter affirming the same, the petitioner has filed the first writ petition.
4. None of the respondents has chosen to file counter-affidavit.
5. As stated earlier, if the petitioner is able to succeed in the first writ petition the order impugned in the latter writ petition is liable to be set aside. Since the very same contentions have been raised in the subsequent writ petition, I am not referring the same once again.
6. In the light of the above position, I have heard the learned counsel for the petitioners as well as respondents.
7. Sri T.R. Mani, learned senior counsel for the petitioner, in both the writ petitions after taking me through the earlier order of the Government as well as the Court in various proceedings and the relevant statutory provisions, has raised the following contentions:
(i) The petitioner establishment is a coffee estate which works only for nine months in a year is a seasonal establishment. After coffee plants blossom, they should not be disturbed in any manner and therefore all work in the estate would be stopped for over a month. Accordingly during April, May and June depending on the occurence of Monsoonic rains there will be annual closure. This aspect has not been considered by the first respondent.
(ii) The plantation has no operations to perform after the harvest till about a month after the blossoms set in, this aspect has not been considered by the first respondent.
(iii) Though the seasonal establishment is not defined under the Act, it is well understood that an establishment which by its very nature does not work for the whole of the year is a seasonal establishment and this has been recognised and declared in Employees’ Provident Fund Scheme, and the same has not been considered by the first respondent.
(iv) The coffee crop being seasonal, the manufacture of coffee in a factory is also statutorily declared seasonal as per Section 2(12) of the Employees’ State Insurance Act. This aspect has beem missed by the first respondent. The particulars mentioned in the impugned order are factually incorrect and the so-called inspection reports were not intimated to the petitioner.
8. Sri N.G.R. Prasad, learned counsel appearing for the workers’ union, has contended that the first respondent after getting relevant particulars and materials, rightly rejected the claim of the petitioner. He also submitted that blossom period consists only of a very few days and not a month or three months as claimed by the management. He further submitted that inasmuch as the Government after through adjudication and after considering all the relevant materials, rejected the claim of the petitioner-management to declare their establishment as a seasonal establishment under Section 25-K(2) of the Act, interference by this Court under Article 226 of the Constitution of India is very limited; accordingly he prayed for dismissal of the writ petition.
9. Sri S. Gopinathan, learned Government Advocate appearing for the first respondent-Government, while reiterating the contentions of Sri N.G.R. Prasad, also submitted that all the relevant particulars including the statutory provisions have been considered by the Government before rejecting the claim of the petitioner, accordingly he also prayed for dismissal of the writ petitions.
10. I have carefully considered the rival submissions.
11. It is seen that the petitioner, Stanmore Estate have made an application under the provisions of the Industrial Disputes Act before the Government to decide whether the said estate is a seasonal establishment or not? In pursuance of the order of this Court No. 9145 of 1987 and Writ Appeal No. 2246 of 1987, the Government re-examined the materials placed before them and passed the impugned order on July 27, 1988. The question to be decided is whether the conclusion of the Government holding that Stanmore Estate, Yercaud, is not i a seasonal establishment is correct?
12. It is not in dispute that the petitioner was not given adequate opportunity before the first respondent. As a matter of fact, before considering the claim of the petitioner, the Government had obtained further representation from the petitioner estate and also the defence of the workers through their union. It is the definite case of the petitioner that the entire agricultural operations on a
coffee estate are for the purpose of producing the coffee crop. The crop is a seasonal fruit crop, which can be collected only during the specified season, usually November/January for Arabica coffee. April/May is the usual time for blossoms which depend upon rainfall. After blossom the coffee plants should not be disturbed and therefore the work in the plantation has been usually stopped. In the petitioner estate, there has been annual closure approximately in this period April May and June. It is further stated that in the years 1983 and 1984 there was such closure for three months between March and May 1983 and April to June 1984 respectively. The consistent practice has been that during the period of annual closure most of the workers will leave the estate and go to their villages, and during such period only a few workers would be engaged as watchers and for repairs and maintenance of gardens and buildings, but there would be no estate operations or cultivating operations during such period. There is no dispute that Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, has recognised coffee plantation as seasonal establishment as per the definition in Section 2(kkk) of the Employees’ Provident Funds and Miscellaneous Provisions Scheme, 1952. Likewise it is also emphasised that while definition “seasonal factory” in the Employees’ State Insurance Act, 1948, coffee manufacture being seasonal has bean recognised. It is also pressed into service certain provisions in the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, exempting establishments which are of a seasonal character or in which work is performed only intermittently. After going through the definition in Section 2(kkk) of the Employees’ Provident Funds and Miscellaneous Provisions Scheme, considering the nature of the work, the Government is competent under Section 25-K(2) of the Industrial Disputes Act to decide whether a particular establishment is a seasonal one or not? It is true that if it is a seasonal establishment, the same is exempted from the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workman) Act, 1981. While rejecting the claim, the Government have considered that the work in the coffee plantation is carried out throughout the year in the following manner:
“January
Picking
February
Stripping
March
Clearing and pruning
April and May
Weeding,
pre-blossom manuring, borer
control, boundry cleaning, nursery
work, etc.
June
Shade lopping, removing sukkers, handling and spraying.
July and August
Weeding,
post-blossom manuring and planting.
September and October
Spraying lime
application, borer control and fly picking.
November and December
Picking. ”
The particulars furnished by the Government show that the blossom period consists only of a very few days and not three months as claimed by the management. In this regard, Sri T.R. Mani, learned senior counsel has very much relied on the following passage in the book study of the working and living conditions of Plantation Labour in South India (Karnataka, Kerala and Tamil Nadu) published by Government of India, Ministry of Labour and Rehabilitation, Department of Labour, New Delhi. He referred to 2.2 in Chap.2. By referring this it is contended that coffee plantation is only a seasonal establishment. Even a perusal of the said clause shows that majority of the workers are on a permanent basis and the temporary or casual workers are taken only for picking or tapping. From the said report, it is not possible to conclude that coffee plantation is a seasonal one.
13. Learned senior counsel for the petitioner has also brought to my notice a book called an enquiry into Labour in Plantations in India (1946) by D.V. rEGE, I.C.S., Chairman, Investigation Committee, published Management of Publications, Delhi, in 1946. He very much relied on Clause (5) of the features of the plantation labour under the caption “special feature” at page 5 of the book. The said Clause (5) is as follows:
“(5) The common method of payment of wages in South Indian plantations is the annual settlement at the end of 9 or 10 months when the actions is the settlement at the end of 9 or 10 months when the labourers go home for three months and may or may not return to the same estate. This period of absence is usually either December to February or July to September in tea areas, April to July in coffee areas and January to March in rubber areas”.
By relying on the above mentioned passage, he has contended that there may not be work for 2 or 3 months in coffee plantations, accordingly he contended that the establishment is only seasonal. Likewise, he has also emphasized the meaning for the word “coffee” from the glossary of the Madras Presidency-Edited by C.D. mACLEAN. No doubt, the particulars furnished by the learned senior counsel from the above books would show that there may not be any work for 2 or 3 months in the coffee plantation, particularly after blossoms. However, the details furnished by the Government in the order impugned, namely, the work from January to December show that the blossom period consists only few days and not 2 or 3 months as claimed by the petitioner-management. In this regard, it is relevant to note that even though the management claimed that there was an annual closure during April, May and June, it is seen from the inspection report of the Inspector of Plantation, Yercaud, that when he visited the petitioner plantation on April 21, 1983, he found about 140 workers were employed. No doubt, learned counsel for the petitioner complained that without any notice, the Inspector of Plantation has inspected the plantation and, accordingly, he disputes the figures furnished by the said authority. When the concerned officer, namely, Inspector of Plantation, after personal inspection, makes a statement that on April 21, 1983, 140 workers were employed in the petitioner plantation, there is no need to reject the same and in such circumstances, the Government is justified in relying in the said statement.
14. It is also brought to my notice that the petitioner establishment is paying gratuity to the workers under the Payment of Gratuity Act, 1972, as applicable to regular or non-seasonal establishment. This has been disputed. If that is so, the claim that their establishment is a seasonal one cannot be accepted.
15. Learned senior counsel for the petitioner relied on a decision reported in Kohinoor Saw Mills Company, Ltd. v. Madras State, . In that decision, their Lordships after considering the meaning for the word seasonal have observed that seasonal would certainly appear to imply dependance on nature, over which obviously neither the employer nor the employees in a given industrial establishment has any control. He also referred to the following passage in that decision:
“Whether that period of working is controlled by seasonal conditions would be a factor for consideration.”
The above Division Bench judgment has been followed in a decision of this Court reported in Gokuldas v. Employees’ State Insurance Corporation 1965 (1) MLJ 587. He also relied on a decision reported in Morinda Co-operative Sugar Mills Ltd. v. Ram Kishan, and another decision reported in Anil Bapurao Kanase v. Krishna Sahakari Sakhar Karhhana Ltd. . In both the decisions, the question that arose was whether a cessation would amount to retrenchment. In those cases the workers were engaged only during crushing season in sugar factory. The findings in those cases were that the workers worked during crushing season only and they were taken to work for the season and consequent to closure of the season, they ceased to work. The last two decisions referred to by the learned senior counsel are not helpful to the petitioner’s case, since after close of the sugar factory there was complete cessation of work; accordingly the principle laid down in those cases are not applicable to the case on hand. Regarding the earlier two decisions, absolutely there is no dispute with regard to the proposition or test to be adopted in deciding the question whether an establishment is seasonal or not.
16. Sri N.G.R. Prasad has relied on a Division Bench decision of the Gujarat High Court reported in Jagjivan Bhimji Vaja v. Union of India and Ors., 1996-I-LLJ-629 (Guj-DB). In that decision, their Lordships have considered the decision of this Court (supra). The relevant discussion and conclusion arrived at in that decision are as follows, in 1996-I- LLJ-629 at 634, 635:
“20. Learned counsel for the respondents, relied upon the decision of the Madras High Court in the case of Kohinoor Saw Mills Company, Ltd. v. State of ‘Madras (supra). It is contended that the term ‘seasonal’ would imply dependence on nature, over which neither the employer nor the employees in a given industrial establishment had control. Relying upon these observations in Para. 26 of the decision it is submitted that in the instant case also neither the employer nor the employees have any control over the availability of sugarcane which is dependent upon natural rainfall. It is nobody’s case that the sugarcane crop is not the raw material for manufacturing of sugar and that it is available all throughout the year. The question is whether the industrial activities are being carried on in the establishment all throughout the year or not? The question is whether in the activity which has been carried on round the year substantial number of employees are employed or not? These questions need to be answered. Examining the question from this angle in both the establishments, industrial activity is being carried on for the entire year. The Government has failed to take into consideration the employment in other sections. The Government has arrived at its decision only by referring to the crushing operations.
21. The decision of Madras High Court is relied upon by the Government as regards certain observations made therein with regard to the pattern of employment. We have already pointed out that the pattern of employment in both the establishments has not been properly taken into consideration by the Government The Government has erred in ignoring the employment in all other sections of both the sugar societies. In the aforesaid decision of Madras High Court three factors have been mentioned which may be taken into consideration for deciding as to whether the industrial establishment is seasonal in character or not. They are:
(1) dependence on nature over which neither the employer nor the employees in a given industrial establishment may have control;
(2) the period of working in a normal year in a given industrial establishment; and
(3) pattern of employment of labour.
22. As far as the first factor, i.e., dependence on nature is concerned, we have already dealt with the same. As far as the pattern of employment is concerned, in Para. 27 of the judgment it is observed as follows:
“Even where practically no work could be carried on in an industrial establishment when seasonal conditions necessitated virtual stoppage of work, a skeleton establishment have to be kept on, and that by itself may not disentitle the employer from claiming the exemption for which Section 25-A(2) provides.”
In the instant case, it cannot be said that for the period during which there is no crushing activity, there will be virtual stoppage of work or that there will be only skeleton establishment which will be in operation. On the contrary, as indicated here-inabove the permanent establishment in one sugar factory ie., Una Sugar Factory is around 300 while in another, i.e., Talala it is around 250. This much employment of work force by no stretch of reasoning can be said to be skeleton in view of total strength of 600 or 500 even during the peak season as indicated hereinabove.
23. Learned counsel for the respondents las relied upon dictionary meaning of the term ‘seasonal employment’ occurring in BLACK’S Law Dictionary, WEBSTER’S Dictionary by MULCHANDANI and LAW LEXICON by MUKHERJEE. We do not think it necessary to refer to all these different meanings given in different dictionaries. The question as to whether the establishment is seasonal in character or not is
required to be decided by referring to the dictionary meaning of the phrase. The phrase ‘seasonal in character’ is not to be understood in the context of the expression used in the statute. In the instant case, what the Court has to see is as to whether the entire work of the industrial establishment is seasonal in character. In case only one of the sections of the industrial establishment is working during a particular season only can it be said that the entire establishment is seasonal in character? This is the question to be decided. The answer to the question would again depend upon other factors which have been referred to hereinabove. The most important factor would be the pattern of employment and the continuous employment of sizable work force. It is shown on facts that continously for the entire period sizable number of workmen remain employed in the establishment, the fact that one of the sections operated only during a season would not be sufficient to label the establishment as seasonal in character. It is probably for this very reason that the Legislature has refrained from giving a definition of the phrase ‘seasonal in character”.
With respect, particularly with reference to the factual position in the case on hand, I am inclined to follow the said decision. In this regard, it is to be noted that even though it is stated that after blossom, the coffee plants should not be disturbed and there may not be any work for a period of three months, in the affidavit filed by the petitioner, it is stated that all work in the estate would be stopped only for a period of a month. In Para 12 (a) it is stated as follows:
“…. After the coffee plants blossom, they should not be disturbed in any manner lest the blossom would fall and therefore all work in the estate would be stopped for over a month”.
As rightly concluded by the Government during that period of one month, it is possible to employ those persons in the other work, namely, cleaning etc.
17. Finally, with regard to power of this Court to interfere in a matter like this more particularly, with reference to the order passed
the Government after considering the claim of the management as well as workers coupled with Section 25-K(2) of the Industrial Disputes Act, reliance is placed on the Division Bench decision of the Karnataka High Court in the case of Vanivilas Sugar Factory v. Workmen reported in 1996 (3) LLN 99. While construing power of this Court to interfere in a decision taken by the Government under Section 25-K(2), their Lordships in that Division Bench have concluded thus, in Para 6, at page 103:
“In view of this rival submission, the first question which requires determination, is whether order, dated November 7, 1986, passed by the State Government in exercise of powers conferred under Section 25-K(2) of the Act, is valid and legal. The sub-section provides that if a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final. It hardly requires to be stated that the mere expression in the sub-section ‘the decision shall be final’ cannot entitle the Government to claim that it is not justiciable in a Court of law. In case the decision is found to have been recorded mala fide or is a perverse decision or is based on facts which are totally irrelevant for the decision, then it is always open for this Court to strike down the same…”
By applying the ratio laid down in that decision, in the absence of any plea of mala fide, the decision arrived by the Government which is based on acceptable materials which are relevant for the same cannot be lightly interfered by this Court.
18. In the light of what is stated above, I am unable to accept the arguments raised by the learned senior counsel for the petitioner and I do not find any error or infirmity in the order of the Government, dated July 27, 1988,
holding that Stanmore Estate, Yercaud, is not a seasonal establishment. Accordingly, both the writ petitions are dismissed. However, there will be no order as to costs.