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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 294 OF 2010
(ARISING OUT OF WRIT PETITION NO. 1274 OF 1992).
Deorao Gopal Thakre
(since deceased through his
Legal Heirs)
1) Smt. Manjulabai w/o Deorao
Thakre, aged 65 years,
Occupation : Household,
2) Dattu s/o Deorao Thakre,
Aged 48 years,
Occupation : Service,
3) Gunwant s/o Deorao Thakre,
Aged 45 years,
Occupation : Service,
4) Shantaram s/o Deorao Thakre,
Aged 35 years,
Occupation : Service,
All the appellants resident of
Near Kamble Flour Mill,
Tandapeth, Nagpur,
5) Sou. Nirmala w/o Anand Bhange,
aged 30 years, Occupation :
Household, R/o Milind Nagar,
Nagpur. ..... APPELLANTS.
....Versus....
1] Maharashtra State Handloom
Corporation Limited, Opposite
Tajbag, Umred Road, Nagpur,
Through its Managing Director,
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2] The Manager, Model Dye House,
C/o Maharashtra State Handloom
Corporation Limited, Opposite
Tajbag, Umred Road, Nagpur. ...... RESPONDENTS.
Mr. P.D. Meghe, Advocate for the appellants,
Mr. H.D. Dangre, Advocate for the respondents,
CORAM : B.P. DHARMADHIKARI & MRS. SWAPNA S. JOSHI, JJ.
DATED : NOVEMBER 23, 2017.
B.P. DHARMADHIKARI
ORAL JUDGMENT (PER , J.)
1] Judgment delivered by learned Single Judge on 8.6.2009
in Writ Petition No. 1274/92 filed by respondents/employees assailing the order of Industrial Court dated 28.2.1992 in Complaint (ULP) Nos. 497/87 to 546/87 is assailed in present appeal by legal heirs of deceased complainant Deorao Gopal Thakre. Deorao Gopal Thakre had filed Complaint (ULP) No. 514/87 urging unfair labour practice under Item 5 and Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act No. I of 1972). Deorao and other complainants admittedly worked as Dyers in Dying Department on piece-rate basis. To all other employees of respondents, pay-scales were extended and they continued to ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:46 ::: 3 lpa294.10 receive their wages on piece-rate basis. This discrimination and denial of pay-scale was pointed out as unfair labour practices. 2] Industrial Court has looked into the material made available to it and by order dated 28.2.1992 found Deorao and others entitled to lowest of pay-scales available in the establishment of respondents, i.e. pay-scale of Mazdoors. The employer was directed to extend benefit of pay-scale to them from next date, i.e. from 1st March, 1992. Employer assailed this common order in Writ Petition No. 1274/92. Learned Single Judge has vide judgment dated 8.6.2009 recorded a finding that Dyers being paid on piece-rate basis were not "employee" falling in Rule 6(ii) of the Maharashtra State Handloom Corporation Recruitment/Appointment, etc, Rules, 1977 (hereinafter referred to as "1977 Rules"). This adjudication by the learned Single Judge is questioned in the present L.P.A. 3] Mr. P.D. Meghe, learned Advocate for the appellants, submits that the complainant Deorao expired during the pendency of Writ Petition No. 1274/92 and petition has been decided without bringing on record his legal heirs. He further adds that L.P.A. has been filed by his widow and sons as also daughter. Widow has expired during the pendency of present L.P.A. and hence, he seeks ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:46 ::: 4 lpa294.10 leave to delete her name.
4] Mr. P.D. Meghe, learned Advocate for the appellants, also states that employer never filed any Written Statement before the Industrial Court and as such, evidence adduced by employer pointing out the above-mentioned 1977 Rules or then their defence that Deorao could not have been treated as employee under Rule 6(ii) is not open. Lastly, without prejudice he argues that in same establishment when manufacturing process is one and indivisible, there cannot be two sets of service conditions. According to him, the workers in Dying Department, therefore, could not have been paid on piece-rate basis and salary hike in the shape of pay-scale could not have been restricted only to others. He claims that all should have been treated alike and pay-scales should have been made applicable to all. As the 1977 Rules or pay fixation thereafter did not contain any pay-scale for the post of Dyers, the Industrial Court has rightly made applicable pay-scale of Mazdoor to the Dyers.
5] It is also pointed out that the reason given by the learned Single Judge that Dyers could not be treated as employees under Rule 6(ii) is erroneous because later integral requirement of excluding clause, namely, payment of their wages out of contingencies has not ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:46 ::: 5 lpa294.10 been established in the present matter. Burden to bring this fact on record was on employer and employer has failed to do so. He, therefore, prays for restoration of order of Industrial Court. 6] Mr. H.D. Dangre, learned Advocate for the respondents, submits that by moving Civil Application Nos. 569/08 & 570/08 leave was sought to bring legal heirs of deceased Deorao on record. Notices were issued to proposed legal heirs on 28.1.2008 and then applications were allowed on 15.9.2008. Thus, the lacuna that legal heirs of Deorao were not brought on record and contention that petition had abated as against Deorao is misconceived. He further submits that not filing of written statement was never raised as ground of attack before the Industrial Court. Employer entered the witness-box and pointed out only legal position flowing from applicability of 1977 Rules. Witness was subjected to cross- examination without any objection. On that basis, a finding delivered in favour of Deorao was accepted by him. When on the basis of very same material the learned Single Judge has overruled it, an objection is being raised. He submits that in this situation, learned Single Judge has rightly applied the test of prejudice.
7] He points out that only unfair labour practice under Item 5
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& Item 9 was alleged and there was no reference to unfair labour practice under Item 6 of Schedule IV of Act No. I of 1972. In this situation, as there is no challenge to 1977 Rules statutorily framed and operating, the Industrial Court could not have issued direction as contained in the impugned order. He states that as Dyers are not recognized as "employees" under Rule 6(ii), there is no pay-scale prescribed for them and the Industrial Court, therefore, could not have in limited jurisdiction available to it directed or evolved a particular pay-scale for them. He, therefore, prays for dismissal of the Letters Patent Appeal.
8] We find that the learned Single Judge has by order dated 15.9.2008 permitted widow of Deorao, namely, Smt. Manjulabai to be brought on record as his heir. She was represented by a Counsel and hence, it cannot be stated that the petition as against Deorao filed by employer had abated. However, attention of the learned Single Judge was never invited to the fact that Deorao had three sons and a daughter. With the result, three sons and daughter were not brought on record along with Manjulabai. Those sons and daughter are now appellants at serial nos. 2 to 5 along with appellant no.1 Manjulabai. In this situation, it is apparent that adjudication by learned Single Judge is without opportunity to appellant nos. 2 to 5. ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:46 :::
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9] As appellant no.1 has already expired and her heirs, i.e.
sons and daughter are already on record, we grant oral leave sought by Mr. P.D. Meghe, learned Advocate and permit him to delete appellant no.1.
10] Not filing of written statement is looked into by Industrial Court itself in the course of delivery of its order. In paragraph 8, it has found that employer was entitled to make submissions on law points and not filing of written statement cannot automatically entitle complainants to get final relief. This position in law is accepted by the learned Single Judge. We do not see any error or perversity in it. 11] The fact that Deorao was working as Dyer on piece-rate basis is not in dispute. His piece rate was worked out looking to the provisions of Minimum Wages Act is also not in dispute. Perusal of 1977 Rules shows that the same have been framed by Board of Directors of the Handloom Corporation in exercise of powers conferred by Article 75 of Memorandum of Maharashtra State Handloom Corporation Limited. The 1977 Rules, therefore, have got some statutory semblance. The provisions contained in Rule 6 define employee and said definition read as under :-
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Note :- Persons employed on weekly/daily wages or on piece rates and paid out of contingencies will not be deemed to be "employees" of the Corporation."
The learned Single Judge has relied upon this Note which shows that persons employed on weekly/daily wages or on piece-rate and paid out of contingencies are not deemed to be employees of Corporation. Below it, Chapter-II Rule 8 gives categories of employees. Those categories are (i) Deputations, (ii) Permanent, (iii) Temporary, (iv) Contracted and (v) Casual. Thus, after both these clauses are compared, various questions arise. Whether daily wager or person working on weekly basis can receive salary from Corporation or always used to be paid out of contingencies or whether piece-rate worker like Deorao cannot receive salary and his salary cannot be charged on Corporation are those questions. The learned Single Judge has relied upon Note appearing in Rule 6(ii) to conclude that piece-rate Dyer is excluded from the definition of employee. This may not be the correct position in all situations. 12] However, whether the 1977 Rules do not prescribe any pay-scale for Dyers and hence Industrial Court has adopted lowest ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:46 ::: 9 lpa294.10 pay-scale available in pay structure of Corporation, the finding of learned Single Judge cannot be lightly brushed aside. Had there been any piece-rated Dyers whose salary was charged on Corporation, definitely a pay-scale would have been provided for by them. In this situation, perusal of evidence of witness Shri Manohar Zade becomes relevant. In his cross-examination, he has spoken about distinction between the employee and non-employee. It is to be noted that this distinction is brought on record by complainant in cross-examination and, therefore, non-filing of written statement by itself cannot be a valid defence in this respect. 13] Item 5 of Schedule IV is about favouritism or partiality to one set of workers regardless of merits. Item 9 is failure to implement award, settlement or agreement. None of the complainants before Industrial Court pointed out any award, settlement or agreement. On the contrary, they relied upon pay-scale extended to all others except them. Thus, they were pointing out discrimination emerging after 1977 Rules were implemented. Item 5 speaks of favouritism or partiality. This favouritism or partiality has been urged after implementation of 1977 Rules. The complainants nowhere state that till a particular point of time they were also being paid at par with others and then others were given pay-scale while they were denied ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:46 ::: 10 lpa294.10 the same. They have not pointed out that others were also getting piece-rate and, therefore, there was discrimination amongst piece- rate workers. In other words, there were always two definite categories, namely, piece-rate workers and non-piece-rate workers. Non-piece-rate workers earlier were not getting pay-scales and later on they got it because of 1977 Rules. Till they got pay-scales, complainants were happy with their piece-rate. After implementation of pay-scales, they got aggrieved and raised a demand. Order of Industrial Court and subsequent challenge shows that piece-rate Dyers were/are happy even if they are paid lowest pay-scale, i.e. pay- scale of Mazdoors. If one goes by designation/occupation of a post, worker as a Dyer may qualify either as skilled or semi-skilled worker while work of all Mazdoors may be totally manual. We are pointing out this only to show that when pay-scale for Dyers was not prescribed, normally pay-scale of a person doing manual work like Mazdoor could not have been extended to a person working as Dyer. 14] Had complainants or Deorao in complaint invoked Item 6 of Fourth Schedule and pointed out that he was being continued as piece-rate worker for years together with the object of depriving him the status of permanent employee, the situation would have been different. In that event, recourse could also have been taken to ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:46 ::: 11 lpa294.10 clause IV-C of Model Standing Orders to show that after completion of 240 days of continuous service the deceased Deorao had attained status of permanency and as such, his salary was chargeable on revenue of Corporation and not on contingencies. That has not been done by any complainant. Taking overall view of the matter, we find that the view taken by the learned Single Judge cannot be said to be totally erroneous or perverse. The complainants also did not approach Industrial Court with correct facts and challenge. The respondent employer also could not and did not file written statement. 15] In this situation, we grant legal heirs of Deorao liberty to file appropriate proceedings for redressal of his/their grievance as per law. We also direct that if such grievance is made within a period of one month from today, the concerned authority/court shall try to decide it as per law at the earliest. In that event, the earlier adjudication by Industrial Court or by this Court shall not prejudice its consideration.
16] With this liberty and observations, we dispose of the Letters Patent Appeal. No costs.
J. JUDGE. JUDGE.
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