Reliance Energy Ltd. vs Yadayya Giri & Ors
2010 Latest Caselaw 250 Bom

                                                              WP/4554 & 4694/2006
                                        :1:

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                    CIVIL APPELLATE JURISDICTION

                     WRIT PETITION NO.4554 OF 2006




                                                     
    Reliance Energy Ltd., Mumbai                         .. Petitioner
           V/s.
    Yadayya Giri & Ors.                                  .. Respondents




                                                    
                              ALONG WITH
                     WRIT PETITION NO.4694 OF 2006




                                             
    Reliance Energy Ltd., Mumbai                         .. Petitioner
            V/s.
    Sanjay S. Gujar & Ors.    ig                         .. Respondents


    Mr. J.P. Cama, Sr. Advocate, i/b. Mr. K.P.
                            
    Anil Kumar for the Petitioner.

    Mr. S.K. Talsania, Sr. Advocate, i/b. Mr. M.D.
    Nagle for the Respondent Nos.1 to 15 in
           

    WP/4554/2006 and for the Respondent
    Nos.1 to 5 in WP/4694/20069.
        



                     CORAM                    : SMT. NISHITA MHATRE, J.





                     RESERVED ON              : 14TH OCTOBER, 2010.

                     PRONOUNCED ON            : 6TH DECEMBER, 2010.

    JUDGMENT :

1. These Writ Petitions are being heard together as they

challenge a common order passed in Complaint (ULP) No.1230 of

2000 and Complaint (ULP) No.749 of 2001 passed by the Industrial

Court, Mumbai on 29th April, 2006. The Writ Petition No.4554 of 2006

has been filed against 15 employees. Respondent No.2 has expired

and respondent No.11 has resigned. Therefore this Petition is

WP/4554 & 4694/2006

confined against the other respondents. Writ Petition No.4694 of

2006 is filed against five workmen.

2. The petitioner is a Public Limited Company generating,

supplying and distributing electricity in the Suburbs and surrounding

areas of Mumbai and Thane District. It has a Contract Division for

securing annual maintenance contracts of sub-stations which are

used for the supply of captive electric power by various parties

including Private Companies, Government and Semi Government

Agencies. According to the petitioner, the workmen were engaged in

the maintenance work undertaken by the Contract Division. The

petitioner claims that the workers were engaged to work on the

several projects undertaken by the Contract Division till 2003.

Thereafter no project or contract work was undertaken by the

Contract Division and therefore on completion of the last project the

petitioner, instead of terminating the services of the workmen,

directed them to work in the office of the Contract Division till it

secured a new contract or project. Admittedly, no appointment

letters were issued to the workmen. They were directed to work as

temporary workmen and were deployed on various projects.

3. On 16th October, 2000, the workmen called upon the petitioner

to grant them the status and benefits of permanent employees as

WP/4554 & 4694/2006

they had completed 240 days in service and had been working for a

number of years. Since the petitioner did not pay heed to the

demand of the workmen, they filed the aforesaid Complaints, being

Complaint (ULP) No.1230 of 2000 and Complaint (ULP) No.749 of

2001, respectively, before the Industrial Court, Mumbai on 7th March,

2001. The complaints were filed under Items 3, 5, 6, 9 and 10 of

Schedule IV of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971, (for short "the MRTU

& PULP Act").

4. The respondents contended in the complaints that although

they were categorized as "Core Staff", they were known as "Voucher

Staff" because their emoluments including allowances, bonus etc.

were paid on vouchers. It was further pleaded that they were

employed by the petitioner directly and not through any contractor.

They relied on letters and other documents to establish this fact.

The workmen contended that they had worked for several years with

the petitioner without any break in service and that they had

performed duties which are regular, permanent and of a perennial

nature in the Company. The workmen then contended that 13

workmen, who they named in the complaints, had been granted the

status of permanent workmen and the benefits and privileges due to

permanent workmen were also paid to them. As a result, although

WP/4554 & 4694/2006

the respondents and those 13 workmen performed the same nature

of work, the difference in their wages per month was about Rs.

10,000/-. The respondents therefore contended that the petitioner

had indulged in unfair labour practices under Item 5 of Schedule IV

of the MRTU & PULP Act. It was then contended that because they

were performing the same duties as the other permanent workmen,

they were entitled to the same grades and pay scales in view of the

"doctrine of equal pay for equal work". The respondents then

pleaded that they had completed 240 days of service despite which

the petitioner had not made them permanent and had thereby

violated the Standing Orders 4B and 4C of the Model Standing

Orders which govern the service conditions of the workmen. It was

categorically pleaded that in the year 2000 each one of the

complainants had completed 240 days in service. The respondents

therefore sought a declaration that the petitioner had committed

unfair labour practices under Items 5, 6, 9 and 10 of Schedule IV of

the MRTU & PULP Act.

5. The complaints were contested by the petitioner. It was

contended that the complaints were not maintainable because the

workmen were engaged for the purpose of certain projects

undertaken by the petitioner and that their engagement with the

Company was limited to the duration of the project. The petitioner

WP/4554 & 4694/2006

then denied any relationship of master and servant between the

workmen and itself. It was contended that the workmen were

employed in the vacancies created in the Contract Division, which

was a separate Unit altogether, dependent upon the exigencies of

work on a particular project undertaken by the petitioner on a

turnkey basis. The petitioner contended that there was no perennial

work for temporary employees. It was then pleaded that since the

workmen were Voucher Staff, they were not covered by the Certified

Standing Orders. There is a denial contained in the written

statement about the workers having completed 240 days of

continuous service. The petitioner then objected to the comparison

made in the complaint of the respondents with 13 other workmen.

6. Several documents were produced on record by the parties to

establish their respective cases. One workman, i.e. respondent No.6

in Writ Petition No.4554 of 2006, has deposed that he was working

continuously since 1987 and was being paid @ Rs.100/- per day. He

has further deposed that the difference in the salary of the

respondents and the permanent workmen was about Rs.10,000/- per

month. He has further mentioned the names of the workmen who

were junior to him and the other complainants who were granted

permanency by the petitioner. He has further stated that he and his

20 colleagues, i.e. his co-complainants, were employed by the

WP/4554 & 4694/2006

petitioner for 20 years without a break in service for work which was

of a permanent nature. In his cross-examination he has admitted

that though he was deposing on behalf of all the workmen, he was

not aware of the particulars regarding those workmen, but that he

had a broad idea of their service record. He has reiterated that when

he was appointed, no appointment order was issued to him. He has

also stated that he was not employed through a contractor but by

the petitioner directly. He has also stated that the 13 employees,

whose names were mentioned in the complaint, were junior to the

complainants and that they were less qualified. The petitioner

examined one of their Senior Managers who has deposed that all the

workmen were recruited for the maintenance work undertaken by

the Contract Division of the petitioner from 2002 to 2003. In his

cross-examination he has admitted that he had no personal

knowledge about the facts contended and pleaded in the written

statement. The muster roll produced at Exhibit "U-18" by the

complainants was not admitted by him.

7. The Industrial Court, on appreciating both the oral and

documentary evidence led before it, has allowed the complaints. It

has held that the petitioner was guilty of committing unfair labour

practices under Items 5, 6 and 9 of Schedule IV of the MRTU & PULP

Act. The Industrial Court directed the petitioner to confer the status

WP/4554 & 4694/2006

of permanency on the respondents from the date each complainant

completed 240 days of uninterrupted services. The petitioner was

further directed to pay wages and other allowances to the

complainants at par with the permanent employees. The Industrial

Court was of the view that the workmen had established that an

unfair labour practice had been committed under Item 6 of Schedule

IV of the MRTU & PULP Act. It further concluded that the workmen

were not employed as project employees but as direct employees of

the petitioner. The Industrial Court did not accept the contention of

the petitioner that the workmen had been engaged temporarily only

for a particular project. The Industrial Court then came to the

conclusion that no evidence was adduced by the petitioner to

establish the fact that the workmen were working on a particular

project. The Industrial Court therefore held that the nature of duties

required to be performed by the respondents was permanent and

perennial. After considering the judgments of the Supreme Court,

the Industrial Court held that there was a violation of Item 6 of

Schedule IV of the MRTU & PULP Act. Besides this, the Industrial

Court was of the view that an unfair labour practice under Item 5 of

Schedule IV of the MRTU & PULP Act had also been established. The

Industrial Court then discussed whether there was a breach of any

Settlement Award or Agreement. It concluded that the workmen

having completed 240 days in service, the petitioner had engaged in

WP/4554 & 4694/2006

an unfair labour practice under Item 9 of Schedule IV of the MRTU &

PULP Act by not confirming them in service. The Industrial Court has

held that the petitioner has committed unfair labour practices under

Items 5, 6 and 9 of Schedule IV of the MRTU & PULP Act.

PROJECT WORKERS

8. The first issue which needs to be addressed is whether the

respondents were project workers. Mr. Cama has submitted that the

workmen in the present complaints were not temporary workmen as

understood in common parlance but were project workers. They

were employed for the duration of a particular project and no

further. He has submitted that it was only due to fortuitous

circumstances that the projects on which the workmen were

employed continued over some period of time. Immediately after

one project was over, the workers were engaged on another project.

This procedure continued for some time only because of the fact

that the petitioner was able to secure several maintenance projects,

submitted Mr. Cama. According to the learned Counsel, these

workmen were employed on the projects, not because they had any

right, but because the work was available. He submitted that the

petitioner has categorically pleaded in its written statement that the

workmen were employed on various projects and that these projects

having been discontinued either because they were completed or for

WP/4554 & 4694/2006

other reasons; no work was available for workmen such as the

respondents. No existing projects were available for the workers to

be absorbed as permanent workmen. Mr. Cama relied on the

judgments of the Supreme Court in the case of Gangadhar Pillai vs.

Siemens Ltd., reported in 2007 II CLR 139, in the case of M.N.

Mishra vs. Siemens Ltd. & Ors., reported in 2004 III CLR 1046 and

in the case of Gurbachan Lal vs. Regional Engineering College,

Kurukshetra & Ors., reported in (2007) 11 SCC 102 in support of

his contentions.

9. Mr. Talsania has argued that these workmen were not engaged

on any project but were engaged by the petitioner for its own work.

They happened to be deployed at various places where the

petitioner had undertaken a maintenance contract. However that by

itself would not establish that the workmen were employed only for

a particular project, according to him. He cited the judgement of the

Supreme Court in the case of S.M. Nilajkar & Ors. vs. Telecom

District Manager, Karnataka, reported in (2003) 4 SCC 27, where

the Court has laid down certain criteria which would indicate

whether workmen were engaged as project workers. Furthermore,

he submitted that no evidence was led by the employer to indicate

that the employment of the respondents was co-terminus with a

particular project. He pointed out that a heavy burden was cast on

the employer to prove that such workers were engaged on a

WP/4554 & 4694/2006

particular project; not having discharged that burden the employer

cannot claim that these were project workmen.

10. The documents which are produced on record including the

duty pass issued to the workmen indicate that the workmen were

deployed at a particular site for the maintenance contract

undertaken by the petitioner's predecessors in title. The identity

cards or contractor's passes have been issued by the petitioner to

the workmen mention that they were deployed on a particular

maintenance project in Mumbai. However, that by itself would not

lead to the conclusion that the workmen were engaged only for the

duration of a particular project of maintenance undertaken by the

petitioner at various different sites.

11. The Supreme Court in the case of Gangadhar Pillai vs. Siemens

Ltd. (supra) was dealing with a case where the employer contended

that the workman was employed for a particular period and that on

the completion of the project, he was liable to be terminated under

Section 2(oo)(bb) of the Industrial Disputes Act. The Supreme Court

observed that there had been breaks in service which were not

artificial. On the basis of the facts before it, the Supreme Court held

that the burden to prove that the employer had committed an unfair

labour practice had not been discharged by the workmen.

Considering the nature of the projects undertaken by the employer,

WP/4554 & 4694/2006

the Supreme Court observed that the requirement to employ

employees on a temporary basis was writ large. The Court held that

termination of service on account of a project being discontinued

would fall within the purview of Section 2(oo)(bb) of the Industrial

Disputes Act.

12. In the case of M.N. Mishra vs. Siemens Ltd. (supra), a learned

Single Judge of this Court (Khandeparkar J.) has held that the letters

of appointment issued to the workman in that case indicated that he

was engaged only for particular projects. The period of employment

was specific and related to a particular project. The Court observed

that it was not the case of the workman that such projects were

continuously in progress and had been undertaken without

interruption. There was no functional integrality between various

projects undertaken by the employer. In these circumstances, the

learned Judge accepted the finding of the Industrial Court that the

workman was appointed at various sites for fixed terms and that he

could not claim the status of permanency only because letters

extending his tenure or fresh appointment letters were issued to

him, due to which he had completed 240 days service.

13. In the present case, admittedly, no appointment letters were

issued to the workmen. There is no material on record to indicate

that the workmen were being engaged only for the tenure of a

WP/4554 & 4694/2006

particular project. In fact the evidence on record indicates that there

were ongoing projects on which the respondents were deployed by

the petitioner to fulfill the annual maintenance contracts undertaken

by it for various parties. The petitioner, therefore, cannot claim that

merely because the project had come to an end, the workmen need

not be made permanent. Though the maintenance contract with one

party could have come to an end, the workmen were immediately

deployed for another annual maintenance contract. This work was

perennial in nature.

14. In the case of S.M. Nilajkar & Ors. (supra), the Supreme Court

observed that the termination of service of an employee engaged in

a scheme or project may not amount to retrenchment within the

meaning of sub-section 2(oo)(bb) of the Industrial Disputes Act if the

following conditions were satisfied namely;

(a). that the workmen was employed in a

project or scheme of a temporary duration;

(b). the employment was on a contract and not

as a daily- wager simpliciter, which provided

inter alia that the employment shall come

to an end on the expiry of the scheme or

project;

WP/4554 & 4694/2006

(c). the employment came to an end

simultaneously with the termination of the

scheme or project and consistently with the

terms of the contract and;

(d). the workman ought to have been apprised

or made aware of the above said terms by

employment.

the employer at the commencement of

15. The Supreme Court has held that it is for the employer to prove

the above said ingredients so as to attract the provisions of Section

2(oo)(bb) of the Industrial Disputes Act and to exclude the

termination of a scheme or project employee from the definition of

retrenchment. In the present case there is no material whatsoever

on record to establish that the workmen had been appraised that

their term of employment was co-terminus with any project. The

evidence led before the Industrial Court established that no

appointment letters were issued to the workmen. They continued to

be employed even after a particular project came to an end. There

was no break in service whatsoever. Therefore, none of the aforesaid

criteria are applicable to the facts and circumstances of the present

case. Thus the contention of Mr. Cama that the respondents were

WP/4554 & 4694/2006

project workers is unsustainable. The evidence on record

unmistakably established that the workmen were employed

continuously for years together as temporary workmen and not as

project workers as contended by the petitioner.

16. As the petitioner disputes the conclusions of the Industrial

Court that it has committed unfair labour practices under Items 5, 6

and 9 of Schedule IV of the MRTU & PULP Act, I will deal with each of

these items separately.

ITEM 6 OF SCHEDULE IV OF THE MRTU & PULP ACT

17. Mr. Cama, the learned Counsel appearing for the petitioner,

has submitted that before a Court can draw the conclusion that an

employer has indulged in an unfair labour practice under Item 6 of

Schedule IV of the MRTU & PULP Act, it is necessary for the workers

to prove that the employer had a motive to deprive them of the

benefits of permanency. Besides this, he argued that in the present

case the workmen have not proved that they have been engaged by

the petitioner for several years which is one of the criteria required

for concluding that an unfair labour practice has been committed

under Item 6 of Schedule IV of the MRTU & PULP Act. He further

submitted that there were no pleadings in the complaints either in

respect of the motive of the employer or with regard to whether any

WP/4554 & 4694/2006

vacancies exist for making these workmen permanent. He relied on

the judgments of this Court in the cases of Punjabrao Krishi

Vidyapeeth, Akola vs. General Secy., Krishi Vidyapeeth Kamgar

Union & Ors., reported in 1994 I CLR 913, Maharashtra Association

of General Workers vs. Steelage Industries Ltd. & Ors., reported in

2005 III CLR 132, and Pune Municipal Corporation & Ors. vs.

Dhananjay Prabhakar Gokhale, reported in 2006 II CLR 105, in

support of his submission that there must be unambiguous

pleadings in respect of the motive of the employer and the

availability of vacancies. He has further submitted that the muster

roll which the workmen relied on has been discarded by the

Industrial Court and therefore there is no material on record to

indicate that the workmen have put in long years of service.

18. Mr. Talsania, the learned Counsel appearing for the

respondents-workmen, submitted that Item 6 of Schedule IV of the

MRTU & PULP Act must be read in two parts. According to him, the

first part consists of the duty cast on the workmen to prove that

they had been employed as badlis, casuals or temporaries for years

together; the second part follows as a natural consequence, namely

that, an inference must be drawn that the object of the employer

was to deprive the workmen of their status and privileges of

permanent employees once it is found that the workmen have

WP/4554 & 4694/2006

proved the first part of the Item. He submitted that various defences

can be raised by an employer to get out of the rigors of Item 6 of

Schedule IV of the MRTU & PULP Act including the defences which

have been raised in the present matter namely that the workmen

were project workers and that there was no vacancy for the

workmen to be made permanent. He pointed out that though there

is a pleading about the workmen being project workers, there is no

contention whatsoever regarding the non availability of vacancies.

He submitted that the documents on record, which have been

admitted by the petitioner, conclusively proved that the workmen

were engaged by the petitioner for years together, without a break

in service. He further pointed out that there is evidence on record to

establish that the difference in wages payable to temporary

workmen such as the respondents herein and the permanent

workmen is Rs.10,000/-. Therefore, according to Mr. Talsania, the

object or motive of the employer to deprive the workmen of their

permanent status is clear and unambiguous. He then submitted by

relying on the judgment of the Supreme Court in the case of Chief

Conservator of Forests & Anr. vs. Jagannath Maruti Kondhare,

reported in 1996 I CLR 680, that it is not for the workers to prove

that there exists a motive on the part of the employer to deprive

them of their permanent status. He urged that an inference must be

drawn as such a heavy burden cannot be cast on the workmen. They

WP/4554 & 4694/2006

also relied on my judgment in the case of Pune Municipal

Corporation & Ors. vs. Ashok Sakharam Jadhav, reported in 2002 I

CLR 357, where I have followed the judgment in Kondhare's case.

Mr. Talsania submitted that once an unfair labour practice on the

part of the employer under Item 6 of Schedule IV of the MRTU &

PULP Act is established, the Industrial Court is empowered to direct

the employer to make the workers permanent, regardless of whether

there are any vacancies. He has relied on the judgment of the

Supreme Court in the case of Maharashtra State Road Transport

Corporation & Anr. vs. Casteribe Rajya P. Karmachari Sanghatana,

reported in 2009 III CLR 262, and on my judgment in the case of

Parke-Devis (India) Ltd. vs. Mahadev Bhiku Jadhav & Ors., reported

in 2008 II CLR 638.

19. On a perusal of the evidence led before it, the Industrial Court

has concluded that the workmen have been working continuously

for several years with the petitioner. Some of the documents filed

before the Industrial Court were produced by the parties before me.

These documents which were filed by the workmen at Exhibit "U-7"

have been filed again by the employer at Exhibit "C-9". A perusal of

these documents indicates that the workmen have in fact been

working for years together with the petitioner. There is no perversity

as sought to be made out by Mr. Cama in this conclusion drawn by

WP/4554 & 4694/2006

the Industrial Court that the workers were engaged by the petitioner

for years together as temporary workmen. In the case of Punjabrao

Krishi Vidyapeeth, Akola (supra), a learned Single Judge of this

Court, (Sirpurkar J., as he then was), has observed that there must

be tangible evidence to show that the workmen had been employed

as casuals, temporaries and badlis for years together, deliberately. It

must be shown that there was an intention or mens rea on the part

of the employer or a certain design to achieve the object of

depriving them of their permanent status. The learned Judge has

opined that the language of Item 6 speaks of a specific object and

not merely the result of the action of the employer. It has been held

that if the result of the action of the employer deprives the

employees of the status and privileges of permanent employees,

that by itself would not bring the act within the ambit of entry 6 as

there has to be a definite object which must be proved by evidence.

20. In Kondhare's case, the Supreme Court noted the submissions

of the employer's Advocate that the burden was cast on the

workmen to establish that the object of the employer, in continuing

them for years together as temporaries, was to deprive them of the

status and privileges of permanent employees. However, the

Supreme Court has accepted the submission of the workman that it

would be difficult for him to establish what object the employer had

WP/4554 & 4694/2006

in such a matter as that would be within the realm of his subjective

satisfaction, known only to him. The Court therefore held that if such

a heavy burden was cast on the workman, the object of the MRTU &

PULP Act of preventing unfair labour practices would be thwarted or

get frustrated. It held further that a burden cannot be placed on a

workman which he cannot reasonably discharge. It then observed

that it would be permissible on the facts of a particular case to draw

the inference mentioned in the second part of the Item, if badlis,

casuals or temporaries are continued as such for years together.

21. In my view, in the present case there is tangible evidence in

the form of documents to indicate that the workmen have been

employed for years together with the petitioner. It is undisputed that

they were employed as temporary workmen. The fact that the

difference in wages of temporary workmen and permanent workmen

is Rs.10,000/- also cannot be disputed. Therefore an inference must

be drawn that the mens rea or intention of the employer in

continuing such workmen for years together as temporary workmen

was clearly to deprive them of their permanent status. One of the

reasons for depriving them of their permanent status is obviously

because the salary payable to temporary workmen was Rs.10,000/-

less than that payable to permanent workmen. Therefore, the

Industrial Court has not committed any error in declaring that the

WP/4554 & 4694/2006

petitioner had committed an unfair labour practice under Item 6 of

Schedule IV of the MRTU & PULP Act.

ITEM 5 OF SCHEDULE IV OF THE MRTU & PULP ACT

22. It was the case of the workmen before the Industrial Court that

13 other workmen who were similarly situated, performing the same

work as themselves, had been made permanent in the Supply

Division. The Industrial Court on the basis of the evidence, both

documentary and oral, has concluded that the workmen had

established their case that an unfair labour practice under Item 5 of

Schedule IV of the MRTU & PULP Act had been committed by the

petitioner.

23. Mr. Cama has argued in this respect that no details were

provided by the workmen in respect of Item 5 of Schedule IV of the

MRTU & PULP Act. He pointed out that before an inference can be

drawn that the employer has committed such an unfair labour

practice, the workmen must establish the favoritism or partiality of

the employer towards one set of workmen, regardless of their merit.

He submitted that the workmen had furnished no details in the

pleadings regarding Item 5 of Schedule IV of the MRTU & PULP Act.

According to him, even assuming the workers whose names have

been mentioned in the complaint have been made permanent, they

WP/4554 & 4694/2006

were conferred this status because they were working in the Supply

Division which is completely different from the Contract Division.

They were found to be suitable for the post and therefore they were

accorded the status of permanency. He submitted that the present

workmen are not entitled to parity as they do not belong to the

Supply Division but were engaged in the Contract Division. The two

Divisions are mutually exclusive and therefore no comparison can be

drawn between the workers of the Supply Division and the Contract

Division.

24. On a perusal of the complaints, I find that the workmen had in

fact named the 13 workmen who had been made permanent. They

were also Voucher Staff and were performing the same duties as the

respondents-workmen. This pleading has been supported by the

evidence of the witness for the workmen. The employer's witness on

the other hand has stated that he is not personally aware of any of

the relevant details.

25. In my opinion, the workmen have established a case under

Item 5 of Schedule IV of the MRTU & PULP Act. The Industrial Court

has drawn proper inferences in this regard which need not be

interfered with under the writ jurisdiction of this Court.

WP/4554 & 4694/2006

ITEM 9 OF SCHEDULE IV OF THE MRTU & PULP ACT

26. The case of the respondents is that each of the workman had

completed 240 days in service. They were entitled to permanency in

view of the provisions of Standing Order 4C of the Model Standing

Orders. The respondents have contended that there was a breach of

the Standing Orders, which form a part of the contract service,

resulting in an unfair labour practice under Item 9 of Schedule IV of

the MRTU & PULP Act. Mr. Cama has argued the pleadings in the

written statement about the workmen having completed 240 days in

service and the evidence on record fell woefully short of establishing

this fact. He pointed out that the muster roll which was produced by

the workmen has not been accepted by the Industrial Court.

Therefore, no particulars of the workmen having completed 240

days in service have been placed on record, nor had they been

proved.

27. The pleadings in the written statement indicate that it was the

contention of the petitioner that the Certified Standing Orders are

applicable to the workmen and not the Model Standing Orders.

These Certified Standing Orders are framed under the Bombay

Industrial Relations Act which is applicable to the Supply Division. If

it is to be accepted that the workmen were employed in the Supply

Division, then certainly the Certified Standing Orders would be

applicable. However, Mr. Cama has been at pains to point out that

WP/4554 & 4694/2006

the respondents-workmen were not employed in the Supply Division

but the Contract Division. The workmen proceeded in their

complaint on the footing that they are employed in the Contract

Division and that the Model Standing Orders framed under the

Industrial Employment Standing Orders Act are applicable to them.

Under Standing Order 4C, a badli or temporary workman who has

put in 240 days of uninterrupted service in the aggregate in any

establishment, which is not a seasonal establishment, during the

preceding 12 calendar months shall be made permanent in that

establishment irrespective of whether or not his name was on the

muster roll of the establishment throughout the period of his service

during the preceding 12 calendar months. An employer is expected

to maintain a waiting list of temporary workmen under Standing

Order 4D. Whenever vacancies which arise in the establishment are

required to be filled, the persons included in the waiting list must be

given preference after taking into consideration the nature of work

done by them while employing.

28. Thus, what is material is whether the workmen have completed

240 days in 12 calendar months. The Industrial Court has held that

the services of the workmen have been utilized by the petitioner for

long. An inference has been drawn by the Industrial Court that the

workman had been continued without any interruption in service by

the Company and therefore they had completed 240 days in service

WP/4554 & 4694/2006

in the 12 months prior to the filing of the complaints. The petitioner

has not produced the muster rolls on record. The muster rolls would

have been the best evidence available. The muster rolls were in

custody of the petitioner, despite which they were not produced in

Court. It appears that an application for production of the muster

rolls was made by the workmen before the Industrial Court, which

was granted by the Industrial Court. However, the petitioner chose

not to produce the records. The witness of the respondents has

stated in his evidence that he and his 20 colleagues were working

with the Company for 20 years without a break on work which is of a

permanent nature. No suggestion has been put to this workman in

his cross-examination that he had not completed 240 days in service

in 12 months. In fact, the suggestion was that in spite of having

completed 240 days in 1988 neither he nor the other workmen had

filed a complaint for permanency. Thus, there is a tacit admission on

the part of the petitioner that the workmen had completed 240 days

in service.

29. Mr. Cama has argued that unless there is evidence on record

that the workmen had completed 240 days during the 12 calendar

months preceding the filing of the complaint, the workmen are not

entitled to permanency under Standing Order 4C. He has placed

reliance on the judgment of the Division Bench of this Court in the

case of Pune Municipal Corporation & Ors. (supra) and the

WP/4554 & 4694/2006

judgments of the Supreme Court in the case of D.G.M. Oil and

Natural Gas Corporation Ltd. & Anr. vs. Ilias Abdul Rehman, reported

in 2005 I CLR 488, and in the case of Mohan Lal vs. The

Management of M/s. Bharat Electronics Ltd., reported in AIR 1981

SC 1253, and in the case of Bhogpur Co-operative Sugar Mills Ltd.

vs. Harmesh Kumar, reported in 2007 I CLR 227.

30. The documents on record and the oral evidence led by the

parties unmistakably prove that the workmen had worked for 240

days in service in 12 months, soon after they were employed. Under

Model Standing Order 4C, the Manager or the person authorised is

duty bound to issue an order in writing making any workman, who

had completed 240 days of uninterrupted service in the previous 12

calendar months, permanent. The moment a workman completes

240 days of service in a span of 12 calendar months, he must be

made permanent by issuing a written order. The contention of the

workmen in the complaint was that the Company had failed to

comply with the provisions of Model Standing Order 4C and had,

therefore, committed an unfair labour practice under Item 9 of

Schedule IV of the MRTU & PULP Act. To establish this unfair labour

practice it is not necessary for the individual workman to

demonstrate that he had worked for 240 days in the 12 months

immediately preceding the filing of the complaint. He must establish

that he had completed 240 days of service in 12 calendar months,

WP/4554 & 4694/2006

despite which no order of confirmation had been issued. The

employer cannot take the benefit of his own wrong of not issuing

such a letter immediately. The workmen had completed 240 days.

There is evidence on record that the workmen had completed 240

days in the past. Therefore, they would certainly be entitled to

permanency from the dates that they have completed 240 days in

service.

31.

The Division Bench in the case of Pune Municipal Corporation

(supra) was considering a matter where the workman contended

that the Corporation had committed an unfair labour practice under

Item 6 of Schedule IV of the MRTU & PULP Act, as he was not made

permanent although he had completed 240 days in service. It was

argued before the Division Bench that in view of the Model Standing

Order 4C, he would be entitled to permanency. The Division Bench,

however, noted that there was an agreement between the

Corporation and the Union, of which the workman was a member,

that the employees would be entitled to permanency on completion

of continuous service of five years with the Corporation. The Division

Bench observed that in view of Standing Order 32, since there was

an agreement governing the issue of permanency, that would

prevail over the Model Standing Orders. This judgement, in my

opinion, is not applicable to the present case since the Model

Standing Orders govern the employees working in the Contract

WP/4554 & 4694/2006

Division of the petitioner. The judgement in the case of Mohan Lal

(supra) also has no application to the facts in the present case. The

Supreme Court in the case of Bhogpur Co-operative Sugar Mills Ltd.

(supra) has observed that a workman, who contends that the

provisions of Section 25F of the I.D. Act had been violated, must

prove that he was in continuous service of 240 days during the 12

months preceding the order of termination.

32.

In the case of D.G.M. Oil and Natural Gas Corporation Ltd. &

Anr.(supra), the Supreme Court observed that while calculating the

continuous service for the purposes of Section 25F of the I.D. Act,

the number of days of work put in by a workman in broken periods in

different departments of the Company and at different places cannot

be taken as conjoined. These observations were made in view of the

fact the workman himself contended that he had worked under

different administrations of the employer in projects at Baroda and

Mhesana. It is in these circumstances that the Court held that the

Units could not be considered as a single Unit or Department under

the Corporation. Mr. Cama has attempted to submit that since the

respondents were working on different projects, the number of days

they had put in on each project cannot be clubbed together for

determining whether each of them had completed 240 days of

service in 12 calendar months. In my opinion, this judgement has no

application to the facts and circumstances of this case as I have

WP/4554 & 4694/2006

already held that the workmen were not project workers and were

directly employed by the petitioner to work on its maintenance

contracts which were perennial in nature.

33. In my view, the judgements in the case of Pune Municipal

Corporation (supra), D.G.M. Oil and Natural Gas Corporation Ltd. &

Anr.(supra), Mohan Lal (supra) and Bhogpur Co-operative Sugar Mills

Ltd. (supra) have no application in the facts of the present case. As

observed earlier, there is sufficient evidence on record to indicate

that the workers had completed 240 days in service, much prior to

the filing of the complaint. The petitioner has not complied with the

provisions of Model Standing Order 4C by issuing an order in writing,

making them permanent in service immediately on completion of

240 days. Therefore, in my opinion, the workman had amply proved

that the petitioner had committed an unfair labour practice under

Item 9 of Schedule IV of the MRTU & PULP Act.

34. The next issue is whether the workmen can be made

permanent without there being any vacancies. Mr. Cama has

submitted that there are no vacancies in the Contract Division and,

therefore, in view of various judgements of the Supreme Court, the

workmen would not be entitled to permanency. In the case of

Maharashtra State Road Transport Corporation & Anr. (supra), the

Supreme Court has observed that permanency can be granted when

WP/4554 & 4694/2006

the posts exist. The Supreme Court was, however, considering a

case of a Public Corporation and held that, "there is no doubt that

creation of posts is not within the domain of judicial functions which

obviously pertains to the executive, it is also true that the status of

permanency cannot be granted by the Court when no such posts

exist and that executive functions and powers with regard to the

creation of posts cannot be arrogated by the Courts." These

observations, in my opinion, would indicate that it is only in the case

of Government or Public Corporation that the question of sanctioned

and vacant posts would arise. The present petitioner is a Public

Limited Company and not bound by any executive fiat regarding the

number of posts which can be created in any Department. Once the

Court concludes that the petitioner has committed unfair labour

practices under Items 6 and 9 of Schedule IV of the MRTU & PULP

Act, the Court can always grant appropriate reliefs in terms of

Section 30(1) of the MRTU & PULP Act. The Court is empowered to

take such affirmative action as is necessary to effectuate the policy

of the Act. The policy of the Act is to prevent unfair labour practices.

By declaring that the petitioner has committed unfair labour

practices, as aforesaid, the Industrial Court has rightly granted the

further consequential relief of directing the petitioner to confer the

status of permanency on the employees from the date each of them

completed 240 days of uninterrupted service.

WP/4554 & 4694/2006

35. The Industrial Court has drawn proper and legal inferences and

conclusions and, therefore, there is no need to interfere in the

findings of facts recorded by the Industrial Court. The Writ Petitions

are, therefore, dismissed.

36. Rule discharged in both the Writ Petitions.

37. No orders as to costs.