New Hind Textile Mills Unit Of ... vs Rashtriya Mill Mazdoor Sangh
2003 Latest Caselaw 621 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard learned Advocates for the parties. Perused the records.

The petitioner challenges the Judgment and order dated 19-6-2001 passed by the Industrial Court dismissing Appeal No. 36/97 which was filed by the petitioner against the Judgment and order dated 5-12-1997 of the Labour Court in Application No. 83/94. The said application was filed by the respondents under Section 78 read with Section 42(4) of the Bombay Industrial Relations Act, 1946 (hereinafter called as the said Act) claiming permanency in the employment of the petitioner. The said application was allowed by the said order dated 5-12-1997 and the petitioners were directed to make the concerned operatives mentioned in the Annexure-A of the application as the permanent employee and the appeal filed against the same was dismissed by the impugned order. Hence, the present petition.

2. Contending that the six employees who were working in the electrical and mechanical department of the petitioner, had completed continuous service of more than 240 days in a year, the respondents approached the Labour Court seeking the relief of permanency to the said employees in the employment of the petitioner. The claim of the respondents was sought to be contested on the ground of service of a notice of change under Section 42 of the said Act as also Memorandum of Understanding arrived at between the petitioner and the respondents regarding the proposed reduction in complement of the employees of various departments including Electrical and Mechanical department, while contending that there was no case for claim of permanency made out for the said workmen and therefore, the application was required to be dismissed. It was further case of the petitioner that the said Memorandum of Understanding was drawn after following the procedure prescribed under Section 42 of the said Act and even the necessary notice of change was issued on 21-4-1995 a copy of which was also placed on record. The respondent adduced their evidence by examining the Secretary of the Union. However, the petitioner choose not to lead any evidence before the Labour Court. The Labour Court on analyses of the evidence on record held that the copy of the notice of change dated 14-2-1995 which was produced on record was a zerox copy and the same was not proved and therefore, could not be relied upon and hence it is of no relevancy to the matter in issue. It was also held that the concerned employee joined the Mill as badli workers in 1985 and had been working continuously since 1991 on the vacant post in electrical/mechanical department and they had completed 240 days in each year of their service besides they were the senior most badli workers and that there were vacant posts available in the said department and the same was revealed from the testimony of the witness produced on behalf of the respondents and nothing has been placed on record to controvert the said testimony and therefore, allowed the claim of the respondents. The Industrial Court while dismissing the appeal held that the findings arrived at by the Labour Court were neither perverse nor illegal and the materials on record did not justify interference in the Judgment and order passed by the Labour Court.

3. Upon hearing the learned Advocates for the parties and on perusal of record, point which arises for my consideration is whether the Memorandum of Understanding dated 22-6-1995 would entitle the petitioner to deny the claim for permanency to the workmen more particularly in view of the provisions of law contained in Standing Orders and in particular Standing Order No.4-C.

4. Before considering the contentions relating to the said Memorandum of Understanding and service of notice of change and effect thereof, it would be appropriate to deal with the point which is canvassed in relation to alleged illegality on the part of the Labour Court in ignoring the said notice of change on the ground that only zerox copy thereof was placed on record. As already observed (above, the Labour Court while passing Judgment and order on 5-2- 1997 has refused to take a note of the notice of change dated 14-2-1995 on the ground that the same is merely a zerox copy. It is to be noted that undisputedly, a party has to produce primary evidence on record and Question of allowing the parties to produce secondary evidence can arise only when the party satisfies the Court about non availability of the primary evidence and that the secondary evidence to be produced is in consonance with the provisions of law in respect thereof contained in the Evidence Act. At the same time, it is well established that the provisions of Evidence Act are not strictly applicable to the proceedings before the Labour Court, nevertheless, the principles thereof are required to be observed as they are in consonance with the principles of natural justice. At the same time, it is to be noted that once a document is taken on record and exhibited, there cannot be any justification for any Court to refuse to look into such document or to refuse to consider such document on the ground that it is a zerox copy of the original. Once it is not disputed that a copy produced on record is a true copy of the original and it is admitted in evidence, it is incumbent upon the Court to deal with such document in accordance with the provisions of law. Any objection as regards the genuineness of such copy is required to be raised before the document is admitted in evidence and marked as Exhibit and no contention in that regard can be entertained at the final stage once the document is marked as Exhibit in evidence. Being so, the refusal on the part of the Labour Court consider the notice of change solely on the ground it being a zerox copy is clearly improper and illegal.

5. Reverting to the main contention in the matter in relation to the Memorandum of Understanding and notices of change as rightly submitted by the learned Advocate for the respondent that, to appreciate the contentions raised by the petitioner, it would be necessary to take note of the relevant clause from the Standing Orders. Clause 4-C of the Standing Orders thereof reads thus :--

"A badli or temporary operative who has put in 240 days of uninterrupted service in the aggregate in any other undertaking during a period of preceding twelve calendar months, shall be made permanent in that undertaking by an order in writing signed by the Manager or any person authorised in that behalf by the Manager, irrespective of whether or not his name is on the muster roll of the undertaking throughout the period of the said twelve calendar months.

Explanation -- For the purpose of this clause any period of interrupted service, caused by cessation of work which is not due to any fault of the operative concerned, shall not be counted for the purpose of computing 190 days or 240 days or, as the case may be, for making a badli or temporary operative permanent.

6. The contention on behalf of the petitioner is that Section 42(1) of the said Act empowers the employer to effect any change in respect of industrial matters specified in Schedule I, item (2) by giving notice of intended change in the prescribed form to the representative of the employees. Once such notice is given and thereafter settlement is arrived at between the employer and employee in terms of the provisions contained in Chapter-VIII of the said Act and the same is consequently registered in terms of Section 44(2) of the said Act, the provisions of law contained in Section 114 of the said Act come into play and the agreement then becomes binding upon the parties. In the case in hand, it is not in dispute that the agreement was duly registered and therefore, it is binding upon the parties. This argument is sought to be countered on behalf of the respondent submitting that Clause 4C of Standing Orders clearly entitles temporary operatives who have put 240 days uninterrupted service in a twelve Calendar months to be made permanent and any agreement contrary to such clause in the Standing Orders would be bad in law and cannot override the provisions of the Standing Orders and therefore, the provisions contained in Memorandum of Understanding, irrespective of the provisions of law contained in Section 114 or the said Act, cannot defeat the right accrued to the employees under the Standing orders. Reliance is placed in the matter of Gangaram Atmaram Vishwasrao v. The National Textile Corporation (SN) Ltd. and Ors. reported in (7995) II CLR 787, Rashtriya Mill Mazdoor Sangh v. S.L. Mehendale and Ors. reported in (2000) I CLR 542, National Textile Corporation (NM) Ltd. v. Shivaji Gopal Gorule and Anr. reported in 2007(2) Mh.L.J. 120 = (2001) II CLR 234, as well as in the case of Western India Match Company Ltd. v. Workmen reported in (1970) II LLJ 403, in support of their contention.

7. The learned Advocate for the petitioner has further submitted that while considering the scope of Clause 4-C of the Standing orders, it is not sufficient only to read Clause 4-C itself but it will have to be read with other clauses of the Standing Orders and more particularly Clauses 4-A, 4-B, 4-D and 4-E of the Standing Orders and has further contended that the provisions regarding the entitlement of temporary operative to be made permanent found in Clause 4-C is subject to the availability of permanent vacant post in the establishment as also the regularisation has to be on the basis of seniority/regularity of attendance as specified in Clause (3) of 4-B of the Standing Orders. Clause (3) of 4-B of the Standing Orders reads thus :--

"In filling permanent vacancies in any class of occupation in the undertaking, badlis who have worked in that class of occupation shall be given preference wherever they are employed, subject to Clause 4C, badlis appointed in such vacancies shall be made permanent on the basis of seniority-cum-regularity in attendance. Where badlis system does not prevail, temporary operatives shall be given preference."

8. The learned Advocate for the respondent however, has submitted that the entitlement for permanency in terms of Clause 4C is not subject to the provisions contained in Clause-4B(3) but on the contrary the regularisation of the temporary employee as permanent in terms of Clause-4C is to be monitored as per the provisions contained in Clause 4B (3) but that does not empower the employer to deny the right of permanency to the temporary operatives once they satisfy the criteria necessary for permanency as provided under Clause 4C.

9. As regards the first contention that in view of Section 114 of the said Act, a registered agreement is binding upon the parties even though it amounts to change of the service conditions, undoubtedly, Section 42 thereof empowers an employer intending to effect any change in respect of any industrial matters specified in Schedule II thereto to give notice of such intention in prescribed form to the representative of employees. Indeed, referring to items (1) and (2) under Schedule II of the said Act it was sought to be contended that they relate to the changes in the matter of transfer of employees from one department to other as well as to the issue of permanency of the employees. Item-1 of Schedule II thereof relates to reduction intended to be of permanent or semi permanent character in the number of persons employed or to be employed in any occupation or process or department or departments or in a shift, not due to force majeure. Item-2 relates to permanent or semi-permanent increase in the number of persons employed or to be employed in any occupation or process or department or departments.

10. Undoubtedly, Section 44(2) of the said Act provides that on receipt of such memorandum of agreement, the Registrar shall enter the same in a register maintained for the purpose unless on enquiry he is satisfied that the agreement was in contravention of any of the provisions of the said Act or was the result, of mistake, misrepresentation, fraud, undue influence, coercion or threat. Equally it is true that Section 114(1) provides that a registered agreement, or a settlement submission or award shall be binding upon all person who are parties thereto provided that in the case of an employer, who is a party to such agreement, settlement submission or award, his successors in interest, heirs or assigns in respect of the undertaking as regards which the agreement, settlement, submission or award is made and in the case of a registered union which is a party to such agreement, settlement, submission or award all employees in the industry in the local area whose representative, the said union is.

11. Clause 1 of Schedule I relates to the classification of employees i.e. permanent, temporary, badlis etc. and the manner of filling post and all matters connected thereto. Bearing in mind the said provisions of law, before analysing the rival contentions, it would be worthwhile to scan through' the decisions sought to be relied upon in the matter.

12. The Apex Court in Western India Match Company Ltd. (supra) while dealing with the matter relating to discharge of a workmen and the order of reinstatement by, the Labour Court as well as the issue relating to the effect of special agreement inconsistent with the standing orders and referring to the various decisions delivered by the Supreme Court on the related matters, held thus:--

"The terms of employment specified in the standing order would prevail over the corresponding terms in the contract of service in existence on the enforcement of the standing order. It was in effect so held in Agra Electric Supply Co. Ltd., v. Shri Alladin, , Avery India Ltd., v. Second Industrial Tribunal, West Bengal, and United Provinces Electric Supply Co. Ltd., Allahabad v. Their Workmen, , while the standing orders are in force, it is not permissible to the employer to seek statutory modification of them so that there may be one set of standing orders for some employees and another set for the rest of the employees. In Salem Erode Electricity Distribution Company Ltd. v. Salem Erode Electricity Distribution Co., Ltd. Employees Union, Gajendragadkar, C.J. said:

".... there is no scope for having two separate standing orders in respect of any one of them."

It was further ruled that:--

"If a prior agreement inconsistent with the standing orders will not survive, an agreement posterior to and inconsistent with the standing order should also not prevail. Again, as the employer cannot enforce two sets of standing orders governing the classification of workmen, it is also not open to him to enforce simultaneously the standing orders regulating the classification of workmen and a special agreement between him and an individual workman settling categorisation.

13. The learned single Judge of this Court B. N. Shrikrishna, J. as he was then, in Gangaram Atmaram Vishvasrao case after taking note of the decision of this Court in Anjani Kumar Co. Ltd. v. Manubai Kashinath and Ors. reported in (1989) II LLN 154 observed that in the said Anjani Kumar's case this Court had held that:--

"Because of the provision of Section 40-A of the BIR Act Model Standing Orders made and notified by the State Government in respect of any additional matter included in Chapter I of the BIR Act or any alteration made in Schedule I on and after the date of commencement of Bombay Industrial Relations (Amendment) Act 1977, shall unless the said Model Standing Orders are held by the Commissioner of Labour to be less advantageous to the employees than the corresponding Certified Standing Orders applicable to them, also apply in relation to such employees."

14. In the case of Rashtriya Mill Mazdoor Sangh, the learned single Judge while dealing with the issue as to whether under the Standing Order 4(C) even if the employees have completed 240 days of service, there must be a post available to regularise them, it was held that the said Standing Order provides in clear terms that a badli or temporary employee who had put in 240 days uninterrupted service in the aggregate in any undertaking, during the period of preceding twelve months were to be made permanent in that undertaking by the employer. Reference was also made to the observations by the another learned single Judge (F. I. Rebello. J) in another matter, wherein it was held that though the right to create a post is undoubtedly that of an employer, but by virtue of the Model Standing Order, a statutory condition of service has been introduced whereby the employer has assured the worker completing 240 days of service would be made permanent, and that implicit in this is that posts will be created, as a workman cannot be made permanent unless a post exists. Therefore, reading Model Standing Order 4(C) by itself will indicate that the employer assures permanency to the workman completing 240 days of service. It was clearly observed by the learned single Judge that "Interpretation suggested on behalf of the employer would mean that the Model Standing Order 4(C) would become totally redundant and the very purpose of introducing the said Model Standing Order would be defeated."

It was further held that:--

"The said Standing Order was introduced in order to stop the exploitation of the workmen in the textile mills who were kept temporary for number of years without conferring any status of permanency and benefits of permanent workmen."

15. The learned single Judge of this Court in Shivaji Gopal Gomle's case while dealing with the scope of Clause 4(C) of the Standing Order held that:-- "Standing orders constitute operative provisions which are regarded by Statute as being part of the terms and conditions of service of the workmen of undertaking."

Further it was held that the Standing Order 4(C) is a special provision which has been incorporated in the Standing Orders in order to protect interests of employees who have been engaged as temporaries or badlis and that the employees, it is well known, are subject to grave forms of exploitation. It was further observed that the provisions of Standing Order (4C) are a salutory attempt to protect the interest of temporary or badli employees and interpretation of Sections 40 and 40-A and the Standing Orders, such as Standing Order 4(C), must hence be purposive so as to advance the object and purpose underlying those provisions and it is not permissible to read into the provisions of Standing Order 4(C) an additional requirement that there must be a vacant post available before an employee can be given the benefit of the operation of Standing Order 4(C). Taking note of item 1 of the First Schedule of the said Act which inter alia provides for the manner of filling the posts becoming vacant and determining seniority of badlis and all matters connected thereto it was observed that Standing Order 4(C) which deals with the industrial matters enunciated in items (1) and (14) of the First Schedule does not incorporate the requirement or condition that there be a vacant post before granting the benefit of the completion of 240 days uninterrupted service to the employee and reading any such condition in Standing Order 4(C) would defeat the very object and purpose of said provision itself. Referring to the provisions of Section 42 of the said Act and considering the law that the Standing Orders are determinative of the relations between the employer and the employee under Section 40 of the said Act and under the provisions of the Standing Orders, ground of permanency operates by virtue of a mandate of law, the learned single Judge has held that-

"When as a result of the operation of law, the benefit of permanency in service is conferred upon an employee, there is really no occasion for the employee to give notice of change under Section 42(2) before he receives the benefit of permanency under the Standing Order."

16. Indeed as rightly submitted by the learned Advocate for the respondent the law on the issue sought to be raised in the matter is well settled by the above referred decisions of this Court as well as of the Apex Court. There is hardly any scope for further discussion on this issue as all the three decisions of the learned single Judges read with decision of the Apex Court in Western India Match Company, leave no room for doubt about the obligation of the employer to grant permanency to the temporary workmen who had put up uninterrupted service for 240 days during the period of preceding 12 calendar months and any action contrary to the said right assured to the temporary workmen or an attempt to defeat such right would be in breach of the said obligation of the employer under the said clause of the Standing Order.

17. The point which is now sought to be canvassed is that in none of those decisions referred to above, the provisions of Clauses 4A, 4B and 4D of the Standing Orders were considered. Undisputedly, 4A relates to the probation and can be of no help. However, according to the learned Advocate for the petitioner Clause 4B clearly provides for maintenance of various records in relation to attendance of the badli and temporary workers and Clause C provides that the regularisation has to be on the basis of seniority/regularity in attendance by such temporary workers. Being so, according to the learned Advocate for the petitioner, unless the seniority is ascertained and permanent vacancy is available in the employment of the employer, question of granting permanency in terms of 4C cannot arise and this issue has not been addressed to in any of the decisions referred to above.

18. Undisputedly, Clause 4B(1) provides that wherever the Badli system prevails the Manager shall maintain a register of badlis, shift-wise containing the particulars thereunder and those particulars shall include the names and address of such workmen, nature of work for occupation in which they are employed, the wages paid to them during employment and dates of termination of their service. It further provides that names of the badlis who are found to be irregular in attendance or inefficient in work may be removed from such register after giving them sufficient opportunity to improve. Sub-clause (2) of Clause 4B provides that all temporary vacancies of permanent operatives shall be filled by appointing their badlis whose names are entered in the register maintained under Sub-clause (1) and such appointment shall be made on the basis of seniority-cum-regularity in attendance. As already seen above Sub-clause (3) provides that in filling permanent vacancies in any class of occupation in the undertaking, badlis who have worked in their class of occupation shall be given preference wherever they are employed and subject to Clause 4C badlis appointed in such vacancies shall be made permanent on the basis of seniority-cum-regularity in attendance and where badli system does not prevail, the temporary operatives shall be given preference. The Clause 4B therefore, discloses that the same does not pertain to any right of the badli or temporary workers but they relate to the procedure which is to be followed in relation to the maintenance of record pertaining to the services rendered by such workers as also modalities to be followed while regularising such badli temporary operatives under Clause 4C. They nowhere prescribe any embargo or ore-condition for the purpose of claim of permanency by the workmen in terms of Clause 4C of the Standing Orders.

19. The contention of the learned Advocate for the petitioner however is to the effect that Clause 4D prescribes maintenance of waiting list of temporary operatives and Sub-clause (2) of 4D deals with the filling of the vacancies by exhausting the waiting list in the manner specified therein and that itself discloses that the right assured to the badlis or temporary operatives under 4C is not absolute right but is subject to the availability of the vacant permanent posts and subject to the seniority of such workers as disclosed from the records which are required to be maintained by the employer. Clause 4D(1) provides that- The Manager shall maintain a waiting list of all temporary operatives whose services have been terminated on account of completion of the work for which they were appointed on account of expiry of period in which they were employed, containing particulars mentioned thereunder and such particulars relates to the names and addresses of the operatives, nature of work and occupation in which they are employed, the wages paid to them during the employment and the dates of termination of their services.

Sub-clause (2) of Clause 4D provides that --

"whenever any vacancies in the undertaking are required to be filled, the persons included in the waiting list shall be given preference after taking into consideration the nature of work done by them while in employment or occupation in which they are employed and on the basis of undertaking prior to the termination of their services."

Clause 4E provides that --

"No person whose name is not entered in the waiting list maintained under Clause 4D shall be appointed in the undertaking as badli or temporary operative unless all persons included in the list have been provided with the employment with the undertaking.

Much stress is laid on Sub-clause (2) of Clause 4D wherein it is provided that "whenever any vacancies in the undertaking are required to be filled" to contend that the question of granting permanency would arise only when vacant post is available and that this provision of law has not been considered while interpreting Clause C in the above referred decisions. There is no doubt that the said clauses were not referred to in any of the above referred decisions by the learned single Judges of this Court. The question, therefore, is whether the provisions in Clauses 4D and 4E would warrant any different view than that was taken by the Court in the above decisions in relation to the right of the employees to claim permanency under Clause 4C.

20. As already observed above, Clause 4C clearly speaks of the right of the badlis and temporary operatives to claim permanency on fulfilment of certain conditions enumerated thereunder. Neither Clause 4B nor Clause 4D speaks of any right of the employer or the employees in relation to the claim of permanency by badlis or temporary operatives which is assured to them under Clause 4C. Clauses 4B and 4D speak of the procedure which is to be followed by the employer for maintenance of record of such badlis and temporary operatives as also the modalities to be followed while granting the permanency to such worker. However, "manner of grant of permanency" has nothing to do with the right of badlis or the temporary operatives assured to them under Clause 4C. The expression "whenever any vacancies in undertaking are required to be filled" cannot be interpreted in a manner sought to be contended on behalf of the petitioner as it neither deals with the right which has been assured under Clause 4C to the badlis or temporary operatives nor it speaks about the obligation of the employer to fill up the vacancies but on the contrary it speaks about the modalities to be followed by the employer while granting the permanency to the badlis and temporary operatives in compliance of right assured to those workers under Clause C. This obligation which is cast upon the employer cannot be interpreted to give the right to the employer to deny the right which has been assured to the badlis and temporary operatives under Clause 4C.

21. To interpret the Clause 4D in the manner it was sought to be contended would virtually render the provisions of 4C to be negatory. It will defeat the very purpose for which the said provision has been introduced in the Standing Orders. As observed by the learned single Judge in Shivaji Gopal Garule's case the interpretation of the Standing Order 4C must be purposive so as to advance the object and purpose underlying the said provision. Being so, the contention sought to be canvassed that the law laid down in the above referred decision was without taking into consideration the provisions of Clauses 4B, 4D and 4E and that on consideration of those provisions a different view in the matter is called for is to be rejected. The provisions in Clauses 4B, 4D and 4E are apparently to ensure due compliance of the right assured to badlis and temporary operatives under Clause 4C and no way they render the said right to be ineffective in any manner nor prescribe any fetters on the said right or any sort of restriction thereon.

22. The second limb of argument relates to the settlement and change in service condition on compliance of the provisions of Section 42 read with Section 114 of the said Act. This issue also stands concluded in view of the decision by the Apex Court in Western India Match Company case as well as by the learned single Judge of this Court in Gangaram Atmaram Vishwasrao.

23. In Shivaji Gopal Gorule's case though similar issue was sought to be raised, ultimately in the course of argument, it was conceded by the Advocate appearing for the Corporation in the said case that the settlement arrived at between the parties cannot override the Standing Orders. The relevant observation in that regard is to be found in paragraph-12 which reads thus:-- "In all fairness, Learned Counsel appearing on behalf of the petitioner conceded that the settlement which has been entered into cannot possibly override the Standing Orders and it was not indeed his submission that the settlement would have precedence over them."

There is no estoppel on the point of law. However, the law in this regard is well settled by the decision of the Apex Court in Western India Match company case. The Apex Court therein has clearly ruled that --

"If a prior agreement inconsistent with the Standing orders will not survive, an agreement posterior to and inconsistent with the standing order should also not prevail".

The ruling having been given in clear words on the point that the settlement inconsistent with the Standing orders whether it is entered between the parties prior to the Standing orders or subsequent thereto, would not prevail upon the said Standing orders, there is no substance in the contention or the petitioners that on account of settlement dated 22-6-1995 and consequent to the notice of change issued under Section 42, the respondent would not be entitled to claim permanency unless there is permanent vacant post available in the employment of the petitioner, and is to be rejected. Admittedly, the settlement dated 22-6- 1995 which provides for abolition of the posts consequent to the workers being allowed to avail the benefit of V.R.S it is sought to be enforced as an exception to Clause 4C and thereby deny the claim of permanency to the badlis or temporary operatives; however, the said settlement is inconsistent with the provisions of Clause 4C of the Standing orders and therefore, cannot be said to be enforceable against the respondents ignoring the provisions of Clause 4C of the Standing orders.

24. Needless to say that it has also been-brought to the notice of this Court that out of the six employees who had approached with their complaint to the Labour Court three of the employees have already opted for V.R.S. and resigned, and remaining three employees have been granted permanency in terms of the order passed by the Labour Court. Considering the fact that the three of the employees have already opted V.R.S. and resigned, question of granting any benefit under the said provisions of law to those three employees who have opted for V.R.S. cannot arise at this stage.

25. In the result, as no other ground of challenge is canvassed, the Petition fails and is hereby dismissed. Rule is discharged with no order as to costs.