Bombay High Court
Ballarpur Industries Ltd. Office ... vs Mah. Lok Kamgar Sanghatana, ... on 18 December, 2015
Bench: B.R. Gavai
1 LPA466-10.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
LETTERS PATENT APPEAL NO.466/2010
IN
WRIT PETITION NO. 3944/2006
...
Ballarpur Industries Limited,
incorporated under Indian Companies
Act and having manufacturing plant
and office at Ballarpur,
District Chandrapur - 442 901.
(BILT Graphic Paper Products Limited,
P.O. Ballarpur Paper Mills,
District Chandrapur, Pin 442 901) .. APPELLANT
.. Versus ..
1. Maharashtra Lok Kamgar Sanghatana,
registered under Trade Union Act,
1926 and having office at Berrack
No.4, Sir Dindsha Vechche Road,
Churchgate, Mumbai - 400 020,
through its General Secretary.
2. Member, Industrial Court,
Chandrapur. .. RESPONDENTS
Vidarbha Prahar Kamgar Sanghatna,
through its President, Advocate
Mrs. Harshal w/o Kumar Chiplunkar,
Arvind Nagar, Mul Road, Chandrapur. .. INTERVENER
Ballarpur Paper Mill Mazdoor Sabha,
a registered Union having registered
No. NGP 2542 and Reg. No.3/90
::: Uploaded on - 18/12/2015 ::: Downloaded on - 18/12/2015 23:58:05 :::
2 LPA466-10.odt
under MRTU and PULP Act, through
General Secretary, Ballarpur. .. INTERVENER
Shri K.H. Deshpande, Senior Advocate with
Shri R.E. Moharir, Advocate for Appellant.
Shri R.S.Upadhyay, Advocate for Respondent No.1.
Smt. S.S.Jachak, AGP for Respondent No.2.
Shri A.R. Patil, Advocate for Intervener.
Shri A.S. Kilor, Advocate for Intervener.
...
CORAM : B.R. Gavai & P.N. Deshmukh, JJ.
DATE OF RESERVING THE JUDGMENT : 09.12.2015
DATE OF PRONOUNCING THE JUDGMENT : 18.12.2015
JUDGMENT (per B.R. Gavai, J. )
1. Being aggrieved by the judgment and order passed by
the learned Single Judge of this Court in Writ Petition No.3944 of
2006 thereby allowing the petition of respondent no.1 and setting
aside the order passed by the learned Industrial Court and allowing
the complaint of respondent no.1, the appellants have approached
this Court.
2. The facts in brief giving rise to the present appeal are as
under:-
Respondent no.1 which is undisputedly an unrecognised
Union filed a complaint being Complaint ULP No.1286 of 1987
3 LPA466-10.odt
under Section 28 of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971 (hereinafter
referred to as "MRTU & PULP Act) under Item Nos. 5,6 and 9 of
Schedule IV of the said Act. However, the said complaint came to
be withdrawn.
3. A subsequent complaint being Complaint ULP No. 964
of 2000 came to be filed only under Item Nos. 5 and 9 of Schedule
IV of the MRTU & PULP Act. In the said complaint it was contention
of the complainant (respondent no.1 herein) that though the
financial condition of the appellant-employer was sound and
though it was making huge profits, the service conditions of the
employees remained static and poor. It was also contended that to
certain section of workmen the appellant-employer has not been
paying the minimum wages in accordance with the provisions of the
Minimum Wages Act. It was submitted that though the complainant
had approached the appellant-employer on various occasions for
permanency and payment of the minimum wages, the same went
unheard.
4. It was basically contended that though the workmen who
were the members of the complainant Union were working from
the year 1974 and in many cases for more than 5 years and have
completed 240 days in a calendar year, the appellant-employer had
4 LPA466-10.odt
not granted the status of permanency to the said workmen. It was
also contended that though the nature of work performed by the
workmen was of permanent nature, they were denied the
permanency without any valid reason. The complainant had
annexed the list to the complaint showing the names of the
workmen, their joining date, token number, designation, monthly
wages and provident fund number.
5. It was also averred that the workmen were compelled to
accept the terms of the settlement signed by the recognised Union
i.e. Ballarpur Paper Mill Majdoor Sabha with the employer. It was
contended that under the said settlement only paltry benefits were
given to the workmen who were the members of the complainant
Union. It was contended that since the workmen had completed
240 days in a calendar year and were not made permanent, there
was a breach of Clause 4- C of the Model Standing Orders, which
are applicable to the employer-Company. It was, therefore,
contended that the employer had engaged in an unfair labour
practice under Item 9 of Schedule IV of the MRTU & PULP Act.
6. It was also contended by the complainant that about
3000 workmen were made permanent, whereas the workmen who
were the members of the complainant Union were deprived of the
permanency. It was, therefore, submitted that the employer had
5 LPA466-10.odt
indulged in partiality and favouritism to a set of workers and as
such had indulged in unfair labour practice under Item No.5 of
Schedule IV of the MRTU & PULP Act. With these allegations, the
complaint came to be filed on 13.10.2000.
7. The claim of the complainant was denied by the
employer. It was the basic contention of the employer, that there
was a recognised Union for the establishment of the employer and
it was the sole bargaining agent which represent the entire work
force. It was also urged that the complaint was basically under Item
No.6 and, therefore, only the recognised Union could file the
complaint and the complainant had no locus. The contention of the
complainant that the workmen had completed 240 days in a
calendar year was also denied. The allegations regarding
favouritism and partiality to one set of workers was also denied.
8. The complainant examined one P.M. Vaidya, General
Secretary of the complainant Union, one Chandu Samba who was
workman employed with the employer and another workman
Purushottam Balirram Bhandarkar. The employer examined its
Deputy General Manager- HR Shri Lav Sharma. The learned
Industrial Court vide judgment and order found that in view of
Section 21(1) of the MRTU & PULP Act, no complaint would be
tenable with regard to Item Nos. 2 and 6 of Schedule 4 of the MRTU
6 LPA466-10.odt
& PULP Act, unless the same is filed by the recognised Union. The
learned Judge, therefore, held that since grant of permanency to the
members of the complainant Union would fall under Item 6, the
complaint was not tenable since it was not filed by the recognised
Union. The learned Industrial Court also found that in view of
Clause 32 of the Model Standing Orders, since there was a
practice of maintaining list of temporary workers by
accommodating them in a separate pool and which has continued
for years together and none of the workers of this pool had ever
complained or expressed their grievance, the allegations regarding
favouritism and partiality were not established and as such
dismissed the complaint.
9. Being aggrieved thereby, a petition came to be preferred
before this Court. When the matter was listed before the learned
Single Judge on 15.12.2008, it was sought to be contended on
behalf of the employer that it has got its own Standing Orders i.e.
Certified Standing Orders and, therefore, the learned Single Judge
vide the order passed on the said date, remanded the matter to the
Industrial Court for deciding the question about existence and
applicability of such Standing Orders. The learned Industrial Court
vide order dated 24.08.2009 held that no such Standing Orders are
available and applicable. The said finding was also questioned
before the learned Single Judge by filing a Civil Application No. 420
7 LPA466-10.odt
of 2010. The learned Single Judge by an elaborate judgment and
order dated 6.7.2010 allowed the writ petition, setting aside the
judgment and order passed by the learned Industrial Court and
allowed the complaint and declared that the employer had indulged
in unfair labour practice falling under Items 5 and 9 of Schedule IV
of MRTU & PULP Act by not giving similar wages to the members of
petitioner-Union and by not treating them as permanent workmen
after they completed 240 days of uninterrupted service. The
respondent-employer was also directed to cease and desist from
continuing said unfair labour practices. It was further directed to
extend to all daily wage members of petitioner-Union the benefits
and privileges as permanent workmen after they put in 240 days of
continuous service as per chart produced by the petitioner-Union at
Exh. B and to pay them wages as per their grades and designations
as permanent workmen. The learned Single Judge further directed
the arrears to be paid from the date of filing of complaint. Being
aggrieved thereby, the present appeal.
10. We have heard Shri K.H. Deshpande, learned Senior
Counsel appearing on behalf of the appellant; Shri Upadhyay,
learned counsel for the respondent no.1-Union and Shri A.R. Patil,
learned counsel for the interveners - workmen who support the
complainant.
8 LPA466-10.odt
11. Shri Deshpande, learned Senior Counsel submits that
since the complaint is basically for grant of permanency, the same
would fall under Item 6 of Schedule IV of MRTU & PULP Act. The
learned Senior Counsel, therefore, submits that a complaint by an
unrecognised Union under the garb of filing it under Items 5 and 9
which is in effect for a relief under Clause 6 itself would not be
tenable. He submits that the learned Industrial Court rightly held
that the complainant had no locus to file the said complaint and
dismissed the same. The learned Senior counsel submits that the
learned Single Judge has grossly erred in reversing the well
reasoned order passed by the learned Industrial Court.
12. The learned Senior Counsel submits that on 23.04.1946
the Industrial Employment (Standing Orders) Act, 1946 (hereinafter
referred to as "the Central Act) was made applicable to the
industrial establishment of the appellant under the provisions of
Section 2-A of the Central Act. He further submits that on 2.6.1947
the Central Provinces And Berar Industrial Disputes Settlement Act,
1947 was made applicable to the establishment of the appellant.
He submits that under Section 30 of the C.P. & Berar Act, it was
necessary to get the Standing Orders certified and as a matter of
fact the Standing Orders of the appellant were certified. He submits
that by Maharashtra Act No.22 of 1965, the C.P. & Berar Act came
to be repealed and the provisions of the Bombay Industrial
9 LPA466-10.odt
Relations Act, 1946 (for short "BIR Act") were made applicable to
the Paper Industry in Vidarbha Region. He submits that after that
by issuing a notification under sub-section (5) of Section 2 of the
BIR Act, the paper industry was withdrawn from the applicability of
the provisions of the BIR Act on 2.6.1967. The learned Senior
Counsel, therefore, submits that after 2.6.1967, the position would
be that the certified Standing Orders which were certified under the
C.P. & Berar Act, shall stand revived and the industry would be
governed only by the said Standing Orders.
ig He submits that as
such the learned Single Judge has grossly erred in holding that the
appellant-industry would be governed by the Model Standing
Orders.
13. Shri Deshpande further submits that the workmen
concerned are daily wagers and they are not governed by any of
the categories mentioned in the Model Standing Orders. He,
therefore, submits that the members of the complainant Union
would not be governed by the Model Standing Orders.
14. The learned Senior Counsel submits that the learned
Industrial Court as well as the learned Single Judge has grossly
erred in holding that the appellant had failed to prove that the
Standing Orders as certified under the C.P. & Berar Act were
available. He submits that the appellant had placed on record
10 LPA466-10.odt
sufficient material to establish that the standing orders as certified
under Section 30 of the C.P. & Berar Act existed. He further
submits that once the appellant had established that the Standing
Orders as certified under Section 30 of the C.P. & Berar Act existed,
then in view of the judgment of the learned Single Judge of this
Court in the case of Berar Oil Industry, Akola .vs. National
Berar Oil Industry Workers' Union, Akola reported in 1987
Mh.L.J. 519, the learned Single Judge while deciding the present
matter ,ought to have come to a conclusion that the Model Standing
Orders were not applicable to the appellant-industry.
15. The learned Senior Counsel relying on the judgment of
the Apex Court in the case of M.S.R.T.C. And another .vs.
Casteribe Rajya P. Karmachari Sanghatana reported in 2009
III CLR 262 and the Division Bench of this Court in the case of
State of Maharashtra and another .vs. Pandurang Sitaram
Jadhav reported in 2008 III CLR 151 and the Single Judge of this
Court in the case of Chief Conservator of Forests .vs. Ashikque
reported in 2012(3) Mh.L.J. 478 submits that it is not permissible
for the Courts to create posts. He submits that the direction of the
learned Single Judge in effect amounts to creation of posts and as
such the direction would be beyond the jurisdiction of the learned
Single Judge.
11 LPA466-10.odt
16. On facts, the learned Senior counsel submits that there
are no specific averments regarding the nature of work, how the
workmen have completed 240 days and that the vacancies are
permanent. He submits that in the absence of such a factual matrix
being on record, the directions issued by the learned Single Judge
would be without jurisdiction. He, therefore, submits that the
appeal deserves to be allowed and the judgment and order passed
by the learned Industrial Court needs to be restored.
17.
Shri Upadhyay, the learned counsel appearing on behalf
of the respondent no.1 submits that the complainant had
specifically pleaded the ingredients, so as to bring the case within
the ambit of Item Nos. 5 and 9 of Schedule IV of the MRTU & PULP
Act. He submits that not only this but the entire details with regard
to the name of the workers, their date of appointment, the wages
earned by them, their P.F. Number etc. have been specifically given
by the witnesses who were examined on behalf of the complainant.
It is further submitted by him that even the names of the juniors
who were given permanency overlooking the claim of the
complainant are also given. He submits that though it was a
specific case of the complainant that the strength of the permanent
workers had come down from 10,000 to 2500, the witness
examined on behalf of the appellant-employer gave a vague
answer. He submits that though the entire material could have
12 LPA466-10.odt
been placed before the learned Industrial Court on behalf of the
employer, for the reasons best known, the same was withheld. It is
submitted that the tenor of the answers given in the cross-
examination by the witness of the employer would reveal that the
witness was evading to give answers, so that the factual position
does not come on record. The learned counsel submits that since
the ingredients to prove the case under Item Nos. 5 and 9 were not
only pleaded but since an evidence in that regard was also given,
no error could be found in the judgment of the learned Single Judge.
18. The learned counsel further submits that insofar as the
Standing Orders certified under the C.P. & Berar Act are concerned,
the evidence of the employer before the learned Industrial court
would itself reveal that even according to the employer they were
governed by the Model Standing Orders. He submits that the issue
which is raised regarding applicability of the Standing Orders
certified under the C.P. & Berar Act is by way of an after thought. In
any case, it is submitted that in view of the concurrent findings on
the said issue, no interference is warranted in the appellate
jurisdiction.
19. The learned counsel submits that if the workers are
working for a long time, it is to be presumed that there are
vacancies. He relies on the judgment of the Apex Court in the case
13 LPA466-10.odt
of Gujarat Agricultural University vs. Rathod Labhu Beehar
reported in AIR 2001 Supreme Court 706.
20. No doubt that Shri Deshpande is right in contending that
under Item Clause 6 of Schedule IV of the MRTU & PULP Act, the
same is specifically reserved for a recognised union and It is only a
recognised Union which can file a complaint under the said Act. We
will, therefore, have to consider as to whether the complainant has
proved the case under Item Nos.5 and 9 of Schedule IV of the said
Act.
21. It will be appropriate to refer to Items 5 and 9 of the
Schedule IV of the MRTU & PULP Act:-
"5. To show favouritism or partiality to one set of
workers, regardless of merits.
9. Failure to implement award, settlement or
agreement."
It could thus be seen that Item No.5 deals with showing favouritism
and partiality to one set of workers, regardless of merits. Item No.9
deals with failure to implement award, settlement or agreement. To
appreciate rival contention, it will be appropriate to refer to the
pleadings in the complaint. It will be relevant to refer to para 3
(VIII) of the complaint which reads thus:-
14 LPA466-10.odt
3.(VIII) The complainants submit that the
workmen mentioned in EXHIBIT "B" ought to have
been paid the wages of the permanent workmen
employed by the respondents. However, the
Respondents have created a discrimination and
favouritism between the two sets of the workmen
in payment of the wages and provide the facilities
regardless of merits. The Respondents as such
have saved a huge amount taking the advantages
of the present status of workmen. The
complainants state that 3000 workmen are made
permanent whereas the workmen concerned with
this complaint are deprived the permanency. The
respondents have shown the partiality and
favouritism to a set of workers while granted them
the benefits of permanency in the employment of
the Respondents, whereas the workmen
concerned with this Complaint or engaged
through out the year since the date of their joining
in category of Mazdoor and designated as a daily
paid employees for not made permanent. The
Complainants therefore say that the Respondents
are engaged in Unfair Labour Practices under item
No.5 of Schedule IV of M.R.T.U. & P.U.L.P. Act,
1971."
It could thus be seen that the complainant has specifically averred
regarding the workmen mentioned in Exh.B not being paid the
wages of the permanent workmen. It has been specifically averred
that the employer had created a discrimination and favouritism
between the two sets of the workmen in payment of the wages and
15 LPA466-10.odt
providing the facilities, regardless of merits. It has been further
stated that 3000 workmen are made permanent, whereas the
workmen concerned with this complaint are deprived of
permanency. It could thus be seen that the specific pleadings
regarding partiality and favouritism which is a requirement under
Item No.5 has been specifically made. A perusal of the Annexure
to the complaint would reveal that the entire details of 224
workmen are given, i.e. name, joining date, designation, token
number, monthly wages, P.F. Number etc. The perusal of Exh.B
would reveal that some of the workers have been working as back
as from 1974. Except evasive denial, there is nothing in the written
statement. The only reliance that is sought to be placed is on the
provisions of Section 21 of the MRTU & PULP Act contending that
what the complainant-Union could not get under Item 6 of Schedule
IV, the Union cannot get the same relief under Item 5 of Schedule
IV.
22. In the evidence led on behalf of the complainant, the
witness Chandu Samba has specifically averred that he along with
other workmen, worked for 240 days in the year 1999, but the
Company never accorded the permanency and has also not given
the amenities and facilities which are given to the permanent
workmen. He has specifically given the details of salaries paid as
well as other amenities given to the permanent employees. It will
16 LPA466-10.odt
be relevant to refer to following part of his evidence:-
"As such I as well as other workmen looses in the
wages per month approximately Rs.5000/-
comparative to a permanent workmen employed
in the company. I and other workmen work
continuously and regularly and the nature of work
being performed by me and other workmen are of
the permanent nature. In order to deprive the
differential wages, variable dearness allowances,
benefits and other facilities mentioned by me
hereinabove the respondent company refused to
grant permanency to me and other workmen."
23. Similar evidence has been given by another employee
Purushottam Baliram Bhandarkar. He has specifically deposed as
under:-
"I say that the company had made the permanent
to the junior workmen and deprived the
permanency of senior workmen. The company
have not followed the seniority list in making the
workmen permanent. I further say that company
have also been making the workmen permanent
to the workmen employed by contractor and
ignore the workmen who have been working for
20 to 25 years as daily paid employees. The
respondent company have made the junior as
permanent and deprived the senior workmen the
17 LPA466-10.odt
right of permanency. I are the some of the
workmen made permanent being junior are.
Sr.No. Name of junior workmen Ticket
No.
1. D. Kamtakar 7372
2. Ravi Tajane 7259
3. Dilip Sharma 7206
4. Gurudas Kunte 7368
5. Parag Kaffe 7276
ig Indrajitsingh Pal
Rakesh Nelson
I further say that but ignoring the seniority list of
the daily paid workmen, the respondent company
have shown the partiality and favouritism and
made the permanent the workmen who were
employed by the contractor and their names are:-
Sr.No. Name of junior workmen Ticket
No.
1. Bhagwan 2777
2. Sudam Jaiswal 2778
3. Nagmani Mishra 2779
4. Shaikh 2780
5. Pradip Pawar 2781
6. Mujammil Hussain 2782
7. Raju Vyavahare 2783
8. Nagraj P. Shastry 2784
9. Deepak Kondagurle 2785
18 LPA466-10.odt
10. Ashok 2786
11. Ramesh 2787
12. P.M. Jaykar 2788
13. Namod 2789
14. Manoj Dixit 2790
15. Sudhir Damdam 2791
16. Tariq Khan 2792
17. Kamlesh Gedam 7757
I say that the union have brought this
discrimination point to the management of the
respondent company but the management have
not considered the complaint of the union.
Subsequently the respondent company have
continued to employ fresh recruits and make
them permanent and ignore the workmen who
are concerned with this complaint in according
the permanency."
24. It could thus be seen that the said witness has specifically
deposed that the Company has made the workmen permanent who
were junior to him. He has further deposed that various workmen
who were employed by the Contractor, have also been made
permanent and the claim of the workmen on whose behalf the
complaint was filed, was ignored. It could thus be clearly seen that
the complainant has specifically pleaded and also substantiated by
leading evidence that the appellant was showing favouritism or
partiality to one set of workers regardless of merits. As against this,
it will be appropriate to refer to the cross-examination of Shri Lav
19 LPA466-10.odt
Sharma, Deputy General Manager-HR who was examined on behalf
of the appellant-employer:-
"5. It is true to say that difference of wages
of permanent employees and daily wages workers
is of Rs.5000/-. I say that it could be of Rs.2000/-
approximately per month. Not true to any that
workers employed from 1974 as per Exh.34 are
working continuously without breaks. I have not
filed any document showing details of break
given. I say that these workers though not given
break out they are daily rated, daily paid
employees. Normally, all daily paid workers have
given assignment on receiving requisition from
various department of company. Not true to say
that all these daily paid workers are sent to work
on the basis of permanent work being available
for permanent employee. Not true that these
employees are not made permanent for the
reason that they will have to be paid wages of
permanent employees."
25. It could thus be seen that though this witness has initially
admitted the difference of wages between permanent employees
and daily wages workers to be of Rs.5000/-, he has improved by
stating that it could be of Rs.2000/- approximately. The evidence
would also show that he has not filed any document showing details
of breaks given. He has further admitted that though these workers
are not given break, they are daily paid employees. It could thus be
seen that though this witness could have placed relevant material
20 LPA466-10.odt
on record to substantiate the claim of the employer, nothing was
placed on record. In that view of the matter, we do not find that
the learned Single Judge has committed any error, in coming to the
conclusion that the appellant-employer has shown favouritism to
set of workers and has given a partial treatment to them, regardless
of merit.
26. Now we will deal with the issue as to whether the
complainant had made out a case under Item 9. Item 9 deals with
failure to implement award, settlement or agreement. To decide
the issue, it will have to be decided as to whether the relationship
between the appellant and the workmen of the appellant are
governed by which Standing Orders.
27. The perusal of the judgment of the learned Industrial
Court would reveal that even according to the appellants they were
governed by the Model Standing Orders inasmuch as it could be
seen that reliance was placed on Clause 32 of the Model Standing
Orders, which reliance was found to be well merited by the learned
Industrial Court. However, it appears that for the first time, the
appellant by way of an after thought contended before the learned
Single Judge that the employer was having its own Standing Orders
i.e. Certified Standing Orders. The learned Single Judge remitted
the matter to the learned Industrial Court to consider the issue as to
21 LPA466-10.odt
whether the appellant was having its own Certified Standing Orders
or as to whether the appellant was governed by the Model Standing
Orders. The learned Industrial Court, on remand held that no such
Certified Standing Orders are available or applicable. The same
finding of fact has been affirmed by the learned Single Judge. The
learned Single Judge from paras 13 to 23 has elaborately
considered this issue. The learned Single has firstly held that there
is no perversity in finding of fact as recorded by the learned
Industrial Court that no such Certified Standing Orders existed. The
learned Single Judge has elaborately discussed the evidence that
was led on behalf of the parties, before the learned Industrial Court,
while upholding the finding that no such Certified Standing Orders
exist. The scope of interference in concurrent findings of fact is
limited. Unless the finding is found to be perverse or impossible, it
will not be permissible for this Court to interfere with the same. We
notice no perversity to entertain.
28. The learned Single Judge has also relied on the judgment
of the Larger Bench of this Court in the case of Gangadhar
Balgopal Nair vs. Voltas Ltd. & Anr, reported in 2007 (1)
Bombay C.R. 1. It will be relevant to refer to the following
observations of the Larger Bench in the said judgment:-
"We must, therefore, conclude that Clause 4-C
was introduced in the Model Standing Orders on
28.9.1977 and was made applicable to industrial
22 LPA466-10.odt
establishments immediately except where the
industrial establishment had certified Standing
Orders prior to 15.1.1959 i.e. the coming into
force of the Industrial Employment (Standing
Orders) (Bombay Amendment) Act, 1957."
It could thus be clearly seen that the Larger Bench has in
unequivocal terms has held that Clause 4-C which was in the Model
Standing Orders on 28.9.1977 and was made applicable to
industrial establishments immediately except where the industrial
establishment had certified Standing Orders prior to 15.1.1959 i.e.
prior to coming into force of the Industrial Employment (Standing
Orders) (Bombay Amendment) Act, 1957. As such no error could be
noticed with the finding of the learned Single Judge that since there
were no preexisting certified Standing Orders in respect of the
appellant, Clause 4-C of the Model Standing Orders was applicable
to industrial establishment with effect from 28.9.1977. We find that
the view taken by the learned Single Judge is in consonance with
the law laid down by the larger Bench of this Court.
29. It is next contended by of Shri Deshpande that Clause 4-C
applies only to a badli or temporary workman. It is submitted that
the workmen concerned are neither badli nor temporary but daily
wage earners. He further submits that the workmen would not be
entitled to benefit of Clause 4-C of the Model Standing Orders. To
23 LPA466-10.odt
consider the submission of Shri Deshpande, we will have to refer to
Clause 3 (1) and 4-C of the Model Standing Orders:-
"3. (1) Workmen shall be classified as-
(a) permanent workmen;
(b) probationers;
(c) 'badlis' or substitutes;
(d) temporary workmen;
(e) casual workmen; and
(f) apprentices.
4-C. A badli or temporary workman who has put
in 190 days' uninterrupted service in the
aggregate in any establishment of seasonal
nature or 240 days "uninterrupted service" in the
aggregate in any other establishment, during a
period of preceding twelve calendar months, shall
be made permanent in that establishment by
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 establishment throughout the
period of the said twelve calendar months.
Explanation:- For purposes of this clause any
period of interrupted service, caused by
cessation of work which is not due to any fault of
the workman 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 workman permanent."
24 LPA466-10.odt
As held by the larger Bench of this Court in the case of Gangadhar
(supra) , a badli or temporary workman who has put in 190 days
uninterrupted service in the aggregate in any establishment of
seasonal nature or 240 days uninterrupted service in the aggregate
in any other establishment during a period of preceding twelve
calendar months, shall be made permanent in that establishment
by 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 establishment throughout the
period of the said twelve calendar months. It could thus be seen
that the mandate of Clause 4-C is to grant permanency to Badli or
temporary workman who has put in 190 days' uninterrupted service
in the aggregate in any establishment of seasonal nature or 240
days in case of other establishment. We find that the argument
that the petitioners are not Badli or temporary workmen and as
such they are not entitled to benefit of Clause 4-C will have to be
rejected.
30. Similarly the argument that no details regarding the
availability of the work, the nature of work done by the workmen
being not given, will also have to be rejected. As is already
discussed hereinabove in para 3(IX) of the complaint, the
complainant has specifically averred that the workmen have
rendered the services and completed 240 working days in each
25 LPA466-10.odt
year. It will also be relevant to refer to para 3(IX) of the complaint:-
"(IX) The Complainants state that workmen
have been paid lower wages for the work they
carry out and pay higher wages to the permanent
workmen although the said permanent workmen
perform the same work as done by the
Complainant workmen. Although the workmen are
required to work permanently on their
designations regularly, the Respondents deprived
them the wages which is being paid to the
permanent workmen on same designations in the
Respondents employment. By virtue of the
services being rendered by the workmen for many
years and completion of 240 working days in each
year, the workmen are entitled all the benefits
and wages payable to the permanent workmen
under the agreements entered between the Union
and the Respondents from time to time. The
workmen are entitled the basic wages variable
dearness allowances and other benefits such as
yearly increments, bonus, leave travel allowances,
causal leave and sick leaves etc. The
complainants crave leave of the Hon'ble Court to
refer and produce the wage-slip of the permanent
workmen when produced."
31. It could thus be clearly seen that the complainant has
specifically averred that the workmen since the date of their
employment have been working regularly and continuously. The
departments in which the workmen were working are also given.
26 LPA466-10.odt
Except the vague denial, there is nothing in the written statement.
The written statement only says that no comparison can be made
with the permanent workmen. The perusal of the evidence of Shri
Chandu Samba and Shri Purushottam Baliram Bhandarkar who have
been examined on behalf of the complainant, would reveal that the
entire details regarding the date from which each of the workers
mentioned in Exh.B is working, are given. It is also specifically
stated in the evidence that these witnesses along with the other
workers have worked for 240 days in the year 1999. It has also
been specifically stated that these witnesses along with other
workmen are employed to work on permanent nature of work in the
department but for the same work, permanent workmen are paid
more than the temporary workmen and difference of wages are
around Rs.5000/- per month.
32. As against this, it could be seen that the answers given in
the evidence of the witness examined on behalf of the employer are
evasive in nature. Though specific suggestions are put to the said
witness that the production capacity has increased substantially,
the only answer given is that he cannot say. Whereas to a specific
query put to him that in the year 1980 the strength of workers was
10,000, his answer is that without checking the record, he cannot
tell. To a specific query to him that the strength of permanent
employees in the P.F. Plant in 1980 was 500 and now it is reduced
27 LPA466-10.odt
to 300, the answer is he cannot say. Similar are the evasive
answers to the specific questions put to him with regard to the PULP
MILL, Boiler Department, Paper Machine Department, Chemical
Department, Chemical Preparation Department, Engineering
Department etc. To the specific suggestions that the strength of
permanent staff in all these departments had been substantially
reduced, his only answer is he cannot say. It could thus be seen
that the evidence of the complainant that for last several years they
have put in uninterrupted service in the aggregate for 240 days,
has gone unchallenged. We, therefore, find that the learned Single
Judge has rightly held that the complainant has proved its case
under Item 9 also, inasmuch as the appellant had failed to
implement Clause 4-C of the Model Standing Orders.
33. Insofar as the contention of Shri Deshpande that the
unrecognised Union did not have locus to file a complaint is
concerned, the said issue is no more res integra. It will be relevant
to refer to paras 36 and 42 of the judgment of the Division Bench of
this Court in the case of Warden and Co. (I) Ltd. .vs. Akhil
Maharashtra Kamgar Union, Thane reported in 2001 II CLR
359:-
"36. Since the case before us is different in
that it concerns the right on an unrecognised
Union in an industry to which the I.D. Act applies
to file or prosecute a complaint under the MRTU &
28 LPA466-10.odt
PULP Act, we have ourselves perused the
statutory scheme and we find ourselves in
agreement with the submission that the law laid
down in Raymond case was not in respect of a
matter arising in an industry where the I.D. Act
applies, but a matter relating to an industry
governed by the Bombay Industrial Relations Act.
42. We, therefore, hold that it is not the
exclusive right of a recognised Union to institute
and prosecute a complaint under the MRTU &
PULP Act in respect of an industry governed by
the I.D. Act in relation to unfair labour practices
other than those specified in items 2 and 6 of
Schedule IV of the MRTU & PULP Act. We,
therefore, uphold the judgment of the learned
single Judge in this regard."
In view of the law laid down by the Division Bench, the objection in
that regard, in our view, is without substance.
34. That leaves us with the last issue raised by Shri
Deshpande that the Courts cannot direct creation of posts. As
already discussed hereinabove, the evidence of the witnesses
examined on behalf of the complainant, that for last several years,
the workmen who were the members of the complainant-union had
completed an uninterrupted service in the aggregate for 240 days,
has gone unchallenged. Some of these workmen have been
29 LPA466-10.odt
working uninterruptedly from 1974 onwards. In this respect it will
be relevant to refer to the following observations of the Apex Court
in the case of Workmen of Bhurkunda Colliery of Central
Coalfields Ltd. And Anr .vs. Mgmt of Bhurkunda Colliery of
Central Coalfields Ltd. & Anr reported in 2006 I CLR 635:-
"19. Where a temporary or ad hoc appointment is
continued for long, the Court presumes that there
is regular need for his services on a regular post
and accordingly considers regularization."
35. We may also refer to the observations of the Hon'ble
Apex Court in the case of U.P. State Electricity Board .vs.
Pooran Chandra Pandey and Ors. reported in 2008 II CLR 147:-
"19. In the present case many of the writ
petitioners have been working from 1985 i.e. they
have put in about 22 years' service and it will
surely not be reasonable if their claim for
regularization is denied even after such a long
period of service. Hence apart from
discrimination, Article 14 of the Constitution will
also be violated on the ground of arbitrariness and
unreasonableness if employees who have put in
such a long service are denied the benefit of
regularization and are made to face the same
selection which fresh recruits have to face."
36. It will be relevant to refer to the following observations in
the case of Mineral Exploration Corporation Employees' Union
30 LPA466-10.odt
.vs. Mineral Exploration Corporation Ltd. & Anr. Reported in
2006 III CLR 956:-
"22. The respondent-management itself
effected transfer of employees from one project
to another and granted them benefit e.g. T.A. ,
D.A. Etc. The term contingent employee is totally
unknown to Industrial Law. To deny the benefits
available to regular employees, certain employees
are termed as contingent workers. Once an
employee completes 240 days, he is deemed to
be a permanent employee. The term contingent
employee is not included in Standing Orders.
Usual practice of the Corporation has been to
keep contingent workmen for long duration of
time and offering regular appointment periodically
which abruptly had stopped due to unfair attitude
of the Management. Reduction in work leading to
poor physical and financial performance has been
a result of incompetent and poor management
which cannot be allowed to play with the future of
thousands of employees and their families."
(Emphasis supplied)
37. It could thus be clearly seen that having extracted the
work for a period of 240 days in the aggregate and that too for last
several years, now the employer cannot be permitted to say that
the said workers are not badli or temporary workmen but daily
wagers. As could be seen from the evidence led on behalf of the
complainant, the work is of permanent nature. Cogent evidence is
31 LPA466-10.odt
also led in support of the said fact. In that view of the matter, we
find that the complainant has succeeded in establishing that the
appellant has indulged in unfair labour practice under Item No.9 of
Schedule IV of the MRTU & PULP Act.
38. Insofar as the reliance placed by Shri Deshpande on the
judgment of the Hon'ble Apex Court in the case of MSRTC & Anr
(supra) is concerned, their Lordships of the Apex Court have held
that a complaint in respect of Item No.6 of Schedule IV by an
unrecognised Union was not maintainable. As already discussed
hereinabove, though earlier a complaint was filed by the
complainant under Item Nos. 4,5,6, the same was withdrawn with
liberty to file a complaint under Item Nos. 5 and 9. As already
discussed hereinabove, we find that the complainants have
succeeded in establishing that the appellant had indulged into
unfair labour practice under Item Nos. 5 and 9 of Schedule IV of the
MRTU & PULP Act.
39. No doubt that Shri Deshpande , the learned Senior
Counsel is justified in relying on the aforesaid judgment of the Apex
Court in the case of MSRTC & Anr (supra) in support of the
proposition that the Courts cannot grant permanency where no post
exists. However, as could be seen from the evidence which is led on
behalf of the complainant that the workmen have been rendering
32 LPA466-10.odt
services uninterruptedly for 240 days in the aggregate in a
calendar year for last several years and some of them from 1974.
The tenor of the cross-examination of the witness examined on
behalf of the appellant would reveal that the appellants have not
brought any record with respect to the non-availability of the posts
etc. To the specific questions put by the complainant with respect to
each department that the number of permanent workers working in
each department in the year 1980 has substantially reduced in the
year 2006, the only answer given by the witness of the appellant is
that either he does not know or he cannot answer without verifying
the record. It could thus be seen that the appellant has attempted
to withhold the pertinent and relevant information. We are of the
considered view that the appellant could not be permitted to extract
the services of the workmen for years together and deny them the
benefit of permanency.
40. In that view of the matter, we find that the appeal is
without merit and as such dismissed.
(P.N. Deshmukh, J. ) (B.R. Gavai, J.)
41. At this stage, Shri Deshpande, learned Senior Counsel
appearing on behalf of the appellant prays for stay to the
implementation of the judgment and order passed by the learned
33 LPA466-10.odt
Single Judge. In the light of the view taken by us, we do not find
that request deserves consideration. The prayer for stay is rejected.
42. In any case Shri Patil, learned counsel holding for Shri
Upadhyay, Advocate appearing for respondent No.1, as well as on
behalf of the intervenor, makes a statement that no coercive steps
would be taken by respondent No.1 and the intervenor for a period
of four weeks from today.
(P.N. Deshmukh, J. ) (B.R. Gavai, J.)
...
halwai/p.s.
