Bombay High Court
Mrs. Rohini K. Butte & Ors vs M/S. E. Merck (I) Ltd. & Anr on 26 October, 2016
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1103 OF 2000
1. M/s. Rohini S. Kurghode, ]
(Mrs. Rohini K. Butte) ]
Chendani, Koliwada, Kerubai ]
Thanekar Chawl, ]
Thane (W) 400 601. ]
2. Miss. Veena S. Pimpalwadkar ]
(Mrs. Veena K. Sardeshmukh) ]
32, R. S. road, Vinayak Bhavan ]
Chendani, Thane 400 601.
ig ]
3. Miss. Sadhana R. Pote ]
(Mrs. Sadhana A. Kokate) ]
B.17, Laxman Nagar, Near ]
Aradhana Cinema, Thane 2. ]
4. Miss. Nutan Pingulkar, ]
(Mrs. Nutan S. Chikalikar) ]
C.6/14/01. Sector 18, CIDCO ]
Colony Panvel, Raigad. ]
5. Miss. Kalpana G. Waghmare ]
Waldhuni, Shivaji Nagar, ]
Shindewadi, Kalyan, ]
Dist. Thane. ]
6. Miss. Kalpana P. Mankame ]
Joshi Wada No.2, ]
Tembhi Naka, Thane. ]
7. Miss. Pushpa C. Tange, ]
At & Post Palaspe, ]
Tal. Panvel, District Thane. ]
8. Miss. Vanshri Y. Bagade ]
(Mrs. Vanashri V. Kalaskar) ]
C-3/102, Narmada, ]
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Lokgram Kalyan Dist. Thane. ]
9. Miss. Arundhati M. Marathe, ]
(Mrs. Vasudha V. Patankar) ]
35/13, Near M.P.P. Ground, ]
Ambernath, Dist. Thane. ]
10. Miss. Sandhya H. Singansane ]
(Mrs. Sandhya S. Vanage) ]
Ganesh-Ashish Building, ]
Block No.1, Vadavli, ]
Ambernath (East). ]
11. Miss. Sunanda S. Badrika, ]
A.59/10, Sector 13, CIDCO
Colony, New Panvel,
ig ]
]
Dist. Raigad-410 206. ]
12. Miss. Nalini Shankar Mokal ]
(Mrs. Nalini Ashok Patil) ]
At Kanthavli, Post. Dighode ]
Tal. Uran, District Raigad. ]
13. Miss. Sandhya Sadashiv Chavan, ]
Amol Co-Op. Housing Society, ]
Bhusar Lane, At & Post Kalwa, ]
Thane 400605. ]
14. Miss. Arti Lahu Sawant ]
C/o S. S. Rane, PL 6/20, ]
Room No.9, CIDCO Colony, ]
New Panvel. ]
15. Miss. J. D. Mayekar ]
(Mrs. J. Ansurkar) ]
KL2/1215, Sector 5/E, ]
Kalamboli, New Bombay. ]
16. Miss. Savitri H. Patil, ]
(Mrs. Savitri Pradip Patil) ]
At Vindhane, Post Dighoda, ]
Tal. Uran, Raigad. ]..Petitioners
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Versus
1. M/s. E. Merck (I) Limited, ]
Plot No.1, MIDC Estate, ]
Taloja, Panvel, Dist Raigad. ]
2. Mr. H. G. Broots ]
Managing Director ]
M/s. E-Merck (I) Limited ]
Plot No.1 MIDC Estate, ]
Taloja, Panvel, Dist. Raigad ]
Maharashtra. ]..Respondents
Shri. Y. M. Pendse for the Petitioners.
Shri. S. K. Talsania, Senior Advocate i/by Shri. R. V. Paranjape for the
Respondents.
CORAM : R. M. SAVANT, J.
JUDGMENT RESERVED ON : 19/09/2016
JUDGMENT PRONOUNCED ON : 26/10/2016
JUDGMENT
1 The writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the judgment and order dated
23.12.1999 passed by the Learned Member of the Industrial Court,
Thane, by which, the Revision Applications being Revision Application
(ULP) Nos.13 to 22 of 1998 and 42 to 46 of 1998 and 56 of 1999 were
dismissed and resultantly, the judgment and order dated 08.09.1997
passed by the Learned Judge of the Labour Court, Thane, dismissing the
Complaints in question came to be confirmed.
2 The facts necessary to be cited for the adjudication of the
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above Petition can in brief be stated thus :-
The Petitioners herein are the original Complainants who
had filed Complaints (ULP) invoking Items 1(a), (b), (d) and (f) of
Schedule IV of the Maharashtra Recognition of Trade Union & Prevention
of Unfair Labour Practices Act, 1971 (For short "the MRTU & PULP Act").
The Petitioners had filed separate Complaints being Complaints (ULP)
Nos.124 to 135, 148 to 153 and 158 of 1995. Since the Petitioners were
all identically situated, the Complaints were identical in nature and were
seeking the same relief. The said Complaints were therefore heard
together by the Learned Judge of the Labour Court.
The Petitioners would be referred to as the Complainants/
Petitioners and Respondents, though the Respondent No.2 has been
deleted would be referred to as the Respondents.
3 The facts which would be narrated hereinafter would be in
respect of one such Complaint in respect of the Petitioner No.3 Sadhana
R. Pote whose case was alluded to by the Respondents whilst filing their
written statement as also the facts relating to Mrs. Kokate and Miss. A. M.
Marathe who have deposed in favour of the Complainants. It was the
case of the Petitioners in the said Complaints that they are in service of
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the Respondents as packers since 27.08.1985 continuously and that their
last drawn wages were Rs.1700/- per month, though the other persons
doing identical job were getting 3500/- per month and other benefits. It
was the case of the Petitioners that they have been kept temporary for
years together without giving them the benefit of permanency and were
thereby denied all other benefits and facilities such as sick leave, casual
leave, medical allowance, house rent allowance to which the permanent
employees were entitled to. It was the case of the Petitioners that the
posts in which they were working were permanent posts and that the
work discharged was permanent in nature. It was the case of the
Petitioners that the Respondents were intentionally giving them artificial
breaks though the work was existing and continuing. It was the case of
the Petitioners that such artificial breaks were given with a view to deny
the status of permanency to them. It was their case that when the
Petitioners approached the Respondents with a request to make them
permanent, the same was not liked and resulted in the termination of the
Petitioners from 28.07.1994. It was the case of the Petitioners that whilst
issuing the termination letter the Respondents promised that they would
employ them again and kept on giving false assurance. It is the case of
the Petitioners that in January 1995 the Respondents assured that they
would be positively provided work from 22.03.1995. However, on the
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said day when the Petitioners approached the Respondent, the
Respondent flatly refused any employment to the Petitioners. It was
therefore the case of the Petitioners that the termination of the Petitioners
was illegal by way of victimisation and for patently false reasons. The
Petitioners therefore sought the relief by way of a direction against the
Respondents to reinstate them with full backwages with effect from
28.07.1994 with continuity or service and to direct the Respondents to
extend all benefits privileges, allowances etc. which their counterparts
are being paid. A further direction was sought against the Respondents to
temporarily withdraw the termination letter dated 28.07.1994, in the
alternative the Petitioners prayed that they be paid full months wages
and all other allowances in the event the Respondents do not utilise their
services. It was also prayed that the Respondents be restrained from
engaging fresh hands including juniors until preference of employment is
given to the Petitioners.
4 The Respondents filed their written statement which was
numbered as Exh.15. The Respondents at the outset took an objection to
the maintainability of the Complaints on the ground that the same are
barred in view of the settlement dated 08.02.1994 entered into between
the Respondent No.1 and the E. Merck Employees Union which was the
recognized union of employees working in the E. Merck (I) Ltd. The
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Respondent No.1 also took a stand that the relief sought does not fall
within the sweep and mischief of Item No.1 of Schedule IV of the MRTU
& PULP Act and therefore the Complaints as filed for the relief sought
were beyond the jurisdiction of the Labour Court. The Respondents also
took an objection that having regard to the nature of the Complaints the
cause of the employees was to be espoused only through the recognized
employees union i.e. E. Merck Employees Union. It was the case of the
Respondents that the Model Standing Orders 4-C and 4-D are not
applicable to the instant case in view of the fact that in the instant case,
at all times and at the time of every engagement as a temporary
employee a specific contract of employment was entered into by the
employee with the Respondent No.1. It was the case of the Respondent
No.1 that the manufacturing activities and business activities of the
Respondent No.1 are prone to fluctuations thereby entailing engagement
of a few temporary hands for specific duration on account of temporary
increase in the manufacturing activities and the work load and some
times reduction in the work force on account of the decline in the
manufacturing activities. It was therefore the case of the Respondents
that as the Respondents were required to engage temporary hands on
account of temporary increase in the work as also reduce the temporary
hands as and when there was decline in the manufacturing activities. The
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Respondents alluded to the case of the said Sadhana R. Pote and
contended that the said employee was employed between 22.03.1994
and 28.07.1994 and during the said tenure of temporary employment,
the said Petitioner i.e. the Complainant had not put in 240 days of actual
work with the Respondent No.1. It was the case of the Respondent No.1
that the settlement dated 08.02.1994 is binding on all the employees.
The said settlement contains Clause No.30 which relates to grant of
permanency and since the said settlement contemplates grant of
permanency to only 13 employees mentioned therein, the Petitioners
were not entitled to claim permanency. It was also the case of the
Respondents that the Petitioners are not entitled to the terms and
conditions applicable to permanent employees in a Complaint of this
nature. As indicated above, the Respondents questioned the
maintainability of the Complaints on the aforesaid grounds and
contended that the Labour Court did not have the jurisdiction to try and
entertain the Complaints. On the basis of the pleadings of the parties, the
Learned Judge of the Labour Court framed the following issues :-
"1. Whether the Complainant proves the alleged unfair
labour practice under item 1(a) (b) (d) & (f) of Sch.
IV of the MRTU & PULP Act, 1971 ?
2. Whether the Complainants are entitled for the reliefs
claimed ?
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3. Whether the Respondents prove that the termination
is proper and legal ?
4. What Order ?"
5 The parties led evidence in support of their respective cases.
The Petitioners filed pursis for leading common evidence in all the
Complaints. Accordingly two of the Petitioners i.e. Mrs. Kokate and Miss.
A. M. Marathe deposed in respect of all the Petitioners i.e. the original
Complainants. On behalf of the Respondents, the Plant Manager Shri.
Raman Raghunath Kole was examined as also Shri. Ratnakar was
examined. The Learned Judge of the Labour Court proceeded to consider
the said Complaints on the basis of the material that had come on record.
The Labour Court recorded findings having regard to the evidence that
had come on record on behalf of the Complainants as also the
appointment letters issued from time to time that the Complaints would
not lie under Item 1 of Schedule IV and would have to be one under Item
6 of Schedule IV before the Industrial Court. The Learned Judge of the
Labour Court held that the contention raised on behalf of the
Complainants that on account of completion of 240 days of service they
have become permanent and therefore the termination is in violation of
Section 25-F of the Industrial Disputes Act, 1947 (For short "the I. D.
Act") is illegal, could not be accepted in view of the fact that the
Complainants were engaged under a specific contract which is admitted
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by the Complainants and only the last termination on 28.07.1994 was
challenged. The Learned Judge of the Labour Court has referred to the
judgment of the Apex Court reported in (1994) 2 SCC 323 in the matter
of M. Venugopal Vs. LIC of India, Machilipatnam, A.P. & others. The
Learned Judge of the Labour Court has also adverted to the fact that after
the termination of the Complainants, no fresh appointment has taken
place. The Learned Judge of the Labour Court also did not accept the
case of the Complainants that they had completed 240 days in the
preceding calender year as in the instant case, each contract was for three
months and the contract came to an end by efflux of time stipulated in
the contract. The Learned Judge has also adverted to the admission
which has come on behalf of the Complainants through their witness that
she has not completed 240 days of service during the last contract. The
Learned Judge therefore held that the termination being on account of
the contract coming to an end, it was not retrenchment falling within the
meaning of Section 2(oo) of the I. D. Act. The Learned Judge further held
that the termination of the Complainants falls under Section 2(oo)(bb) of
the I. D. Act and therefore the rule of continuous aggregate service as
defined in Model Standing Order 4-C is not applicable. The Learned
Judge however held that the settlement dated 08.02.1994 is not binding
on the Complainants in so far as Item 1 of Schedule IV is concerned,
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having regard to the category of employees covered by the said
settlement. The Learned Judge of the Labour Court however held that the
Complainants failed to prove the alleged unfair labour practice under
Items 1(a), (b), (d) and (f) of Schedule IV of the MRTU & PULP Act. The
gist of the reasoning if one can say of the Learned Judge of the Labour
Court is therefore based on Section 2(oo)(bb) of the I. D. Act which
carves out an exception in so far as retrenchment is concerned if the
conditions therein are satisfied. The Learned Judge of the Labour Court
accordingly by judgment and order dated 08.09.1997 dismissed the
Complaints.
6 The Petitioners aggrieved by the said judgment and order
dated 08.09.1997 passed by the Labour Court challenged the same by
filing Revisions (ULP) being Nos.13 to 22 of 1998, 42 to 46 of 1998 and
56 of 1999. The Learned Member of the Industrial Court reiterated the
findings of the Labour Court that on account of the contract of the
employment which was for a period of three months, the Complainants
had not completed 240 days of service, as also on account of the fact that
the termination was on account of the contracts coming to an end,
Section 2(oo) of the I. D. Act is not attracted. The Learned Member of the
Industrial Court also adverted to the case of M. Venugopal (supra). The
Learned Member in the said process did not accept the contention raised
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on behalf of the Complainants that even if there is contract of
employment and it is likely to come to an end after a stipulated period
then also the provisions of the Industrial Court Employment Standing
Orders would be applicable. The Learned Member observed that the
substantive provision as contained in the I. D. Act i.e. Section 2(oo)(bb)
would override the provisions of the Industrial Court Employment
Standing Orders and especially Standing Order 4-C thereof. The Learned
Member of the Industrial Court accordingly confirmed the finding of the
Labour Court that the instant case is covered by Section 2(oo)(bb) of the
I. D. Act and therefore is not a case of retrenchment. The Learned
Member of the Industrial Court accordingly upheld the finding of the
Labour Court that the Respondents have not committed any unfair labour
practice under Item 1(b) of Schedule IV of the MRTU & PULP Act and
accordingly dismissed the Revision Applications. As indicated above, it is
the said judgment and order dated 23.12.1999 passed by the Learned
Member of the Industrial Court which is taken exception to by way of the
above Petition.
7 Submissions by the Learned Counsel Shri. Y. M. Pendse
on behalf of the Petitioners :-
A) That the Courts below have erred in reckoning the service tendered
by the Petitioners only preceding the twelve months prior to the last
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appointment and thereby erroneously have not taken into consideration
that the Petitioners had worked intermittently for the last ten years prior
to their services being terminated.
B) That the Courts below failed to appreciate that though the
Petitioners were shown as temporary they had worked for more than 240
days and therefore were entitled to be treated as permanent in terms of
Standing Order 4-C of the Model Standing Orders.
C) That since the Petitioners had attained the status of being
permanent workmen, their termination without following the provisions
of Section 25-F, 25-G and 25-N of the I. D. Act was illegal and therefore
the Petitioners were entitled to reinstatement with continuity of service
and backwages.
D) That the provisions of Section 2(oo)(bb) of the I. D. Act cannot be
construed to deprive the workman of permanency if he has completed
240 days of service if having regard to the nature of the work and the
length of service tendered by the workman, would indicate that the work
was continuous and of a permanent nature. In support of the said
contention reliance is placed on the judgments of the Apex Court
reported in (2006) 9 SCC 434 in the matter of Haryana State
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Electricity Development Corporation Ltd. vs. Mamni, (2014) 11 SCC
85 in the matter of Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries
Limited, 1996-III-(Suppl) LLJ-1126
Bhikku Ram v. Presiding Officer,
Industrial Tribunal-Cum-Labour Court, Rohtak and unreported
judgment of a Learned Single Judge of this Court sitting at Aurangabad
dated 09.02.2006 in Writ Petition No.4557 of 2014 in the matter of
Dattu Bapu Bhokare Vs. Mahatma Phule Krishi Vidyapith.
E)
That Section 2(oo)(bb) of the I. D. Act would have no application
since the pre-requisites for the same have not been complied in the
instant case. Reliance is placed on the judgment of the Apex Court
reported in (2003) 4 SCC 27 in the matter of S. M. Nilajkar Vs.
Telecom District Manager.
F) That the Courts below erred in not appreciating that the Petitioners
were engaged for years together by issuing appointment letters with
notional breaks given in between so as to deprive the Petitioners of
permanency and to get out of the cluches of Section 25-F of the I. D. Act.
G) That the Courts below erred in not taking into consideration that
the appointment letters do not disclose that there was any increase of
work because of which the Petitioners were required to be appointed and
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hence the conclusion that was required to be reached was that the work
was of a permanent nature and the Petitioners were therefore entitled to
permanency having regard to Standing Order 4-C having completed 240
days of continuous service.
H) That the termination of the services of the Petitioners were by way
of victimisation and in colourable exercise of the rights of employer to
terminate the services of the employee by relying upon the clause in the
letter of appointment.
I) That having regard to the fact that Section 2(oo)(bb) is part of the
I. D. Act which is a social welfare legislation. The said provision would
have to be reasonably construed and on such construction, it would have
to be held that it would not override the provisions of Standing Order 4-
C.
8 Submissions on behalf of the Respondents by the Learned
Senior Counsel Shri. S. K. Talsania :-
I) That it has come in the evidence of the witnesses examined on
behalf of the Petitioners that they were challenging the last termination
which has taken effect from 28.07.1994 and that there was no relation
between the earlier termination and the termination challenged in the
present Complaints, and hence the Petitioners have admittedly not
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completed 240 days since the said termination.
II) That the Petitioners are now estopped from claiming permanency
etc. in the present Complaints as the Petitioners have advisedly filed the
Complaints under Item 1 of Schedule IV of the MRTU & PULP Act
challenging their last termination on the expiry of their contract of
employment. Reliance is placed on the judgment of the Apex Court
reported in (2005) 5 SCC 91 in the matter of Haryana State Co-
operative Land Development Bank Vs. Neelam.
III) That the relief of permanency sought by the Petitioners cannot be
granted in Complaints filed under Item 1 of Schedule IV of the said Act.
IV) That by accepting the fact that on 22.03.1995 the Respondents
refused to re-employ the Petitioners, the Petitioners have implicitly
accepted the practice of appointment for a fixed term under a contract.
V) That there are no pleadings to the effect that by operation of
Standing Order 4-C of the Model Standing Orders, the Petitioners had
become permanent on some date in the past. In fact the cause of action
for filing the Complaints is shown as 28.07.1994 and 22.03.1995 i.e. the
dates when the Petitioners were terminated, and the date on which the
Petitioners were refused reappointment.
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VI) That assuming Standing Order 4-C applies the same cannot operate
in derogation of Section 2(oo)(bb) of the I. D. Act as the Standing Orders
have no force in law and are in fact statutorily imposed service
conditions, but they are not statutory in nature. Reliance is placed on the
judgments of the Apex Court reported in (1995) 5 SCC 75 in the matter
of Rajasthan State Road Transport Corporation and another Vs.
Krishnakant and others followed by (2004) 4 SCC 268 in the matter of
U. P. State Bridge Corporation Ltd. Vs. U. P. Rajya Setu Nigam S.
Karmachari Sangh and again in (2010) 6 SCC 697 in the matter of
Rajasthan State Road Transport Corporation and others Vs. Deen
Dayal Sharma.
VII) That the substantive provisions of law i.e. Section 2(oo)(bb) of the
I. D. Act will prevail over the Standing Orders in the case of conflict
between the two.
VIII) That the appointments of the Petitioners were temporary for a
fixed period and coming to an end upon the expiry of the period of
contract of employment, the case of the Petitioners is therefore governed
by Section 2(oo)(bb) of the I. D. Act and therefore is an exception to
retrenchment. Reliance is placed on the judgment of the Apex Court in
M. Venugopal's case (supra), (1997) 11 SCC 521 in the matter of Escorts
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Ltd. Vs. Presiding Officer and another, (2006) 3 SCC 81 in the matter
of Municipal Council, Samrala Vs. Raj Kumar.
IX) That the judgment of the Apex Court S. M. Nilajkar's case (supra)
that the application of the judgment is restricted only to the employment
in project or scheme has been clarified by the Apex Court holding that the
judgment in S. M. Nilajkar's case (supra) is not an authority for the
proposition that apart from a project or scheme of temporary duration
Section 2(oo)(bb) of the I. D. Act will have no application.
X) That in view of the settlement dated 08.12.1994 with the
recognized Union, by which settlement, it was agreed to regularise the
services of 27 employees amongst whom were 12 packers, the Petitioners
were not entitled to claim permanency beyond that contemplated by the
settlement and that they were bound by the said settlement. The
Complaints filed for the said relief were therefore not maintainable.
Reliance is placed on the Division Bench judgment of this Court reported
in 2006(3) ALL MR 449 in the matter of Pune Municipal Corporation
and others Vs. Shri. Dhananjay Prabhakar Gokhale.
XI) That the judgments cited on behalf of the Petitioners are all under
the I. D. Act rendered in References where the scope of enquiry is much
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wider and are therefore clearly distinguishable.
CONSIDERATION
9 Before proceeding further, it would be necessary to refer to
the provisions in contention. Section 2(oo)(bb) of the I. D. Act and
Standing Order 4-C of the Model Standing Orders are reproduced
hereinunder :-
"(oo) "retrenchment" means the termination by the
employer of the service of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the
employer and the workman concerned contains a
stipulation that behalf; or
(bb) termination of the service of the workman as a result
of the non-renewal of the contract of employment between
the employer and the workman concerned on its expiry or
of such contract being terminated under a stipulation in
that behalf contained therein; or"
Standing Order
"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
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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."
10 To consider whether the termination of the services of the
Complainants would amount to retrenchment within the meaning of
Section 2(oo) of the I. D. Act or whether the Complainants are entitled to
the grant of the relief of permanency, the facts involved in the above
Petition would have to be revisited. As indicated above, the Complaints
in question filed by the Complainants have been filed challenging their
termination dated 28.07.1994 under Items 1(a), (b) (d) and (f) of
Schedule IV of the MRTU & PULP Act. It was the case of the
Complainants that they had been engaged as packers since the year 1985
and that they use to be given artificial breaks in between despite of work
being available with the Respondents. It was further alleged that the
Complainants were kept temporary for years together without getting
any benefits of permanency as well as denial of other facilities which
their counterparts who are permanent use to get. The termination was
therefore challenged on the ground of violation of Section 25-F, 25-G and
25-N of the I. D. Act. This was on the basis that the Complainants had
completed 240 days of service and therefore were deemed to be
permanent and therefore their services were terminated without
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following the procedure i.e. payment of retrenchment, compensation etc.
As indicated above, the factual matrix involved in each of the Complaints
filed by the Complainants was identical. However it is required to be
noted that it was not the case of the Complainants in the Complaints that
they had become permanent on the application of Standing Order 4-C of
the Model Standing Orders. It is also required to be noted that it was the
case of the Complainants that the Respondents had committed unfair
labour practice on or from 28.07.1994 and 22.03.1995. In so far as the
date 28.07.1994 is concerned, it was the date of termination of the
services of the Complainants upon the expiry of the contract of
employment. In so far as the date 22.03.1995 is concerned, it is the date
on which the Complainants alleged that they were told by the
Respondents that they would not be re-employed.
11 In so far as the Respondents are concerned, they filed their
written statement and an objection was raised to the maintainability of
the Complaint on the ground that the relief sought in the Complaint by
way of permanency would be outside the scope of Item 1 of Schedule IV
of the MRTU & PULP Act and would be beyond the jurisdiction of the
Labour Court. It was the case of the Respondents that the Complainants
were appointed on a fixed term contract and stood terminated upon
expiry of the contract period. The employment of the Complainants for
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the new term was by a separate contract. It was also the case of the
Respondents that the recognized union had raised a charter of demands
amongst which was the demand of seeking permanency for temporary
employees. The said recognized union and the Respondents had entered
into a settlement dated 08.02.1994 whereby certain temporary
employees which include some packers numbering 13 were made
permanent. It was also the case of the Respondents that after the
settlement, no temporaries were engaged. It was also the case of the
Respondents that the Petitioners had not completed 240 days in a
calender year.
12 At this stage, it would be apposite to refer to a sample
appointment letter and sample termination letter in respect of one of the
Complainants Miss. A. M. Marathe, which for the sake of ready reference
is reproduced hereinunder :-
"To
Miss. A. M. Marathe
Pharma Pkg,
Taloja.
Madam,
We are pleased to appoint you as a packer purely on
temporary basis in our Taloja Plant with effect from
22.3.94.
The work for which you have been appointed is upto and
including 28.7.94 during which period you will receive a
consolidated Salary of Rs.1700/- per month. No other
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allowance will be paid to you except the above consolidated
salary during this period.
This temporary appointment may be terminated by either
of us, without assigning any reason, by giving one day's
notice.
You will be governed by the rules and regulations of the
Company that may be in force from time to time.
You will make your own arrangements for travel to and
from your place of work.
Please return the copy of this letter duly signed by you in
token of acceptance of the terms and conditions.
Sd/-
Personnel Executive
I accept
Marathe A. M.
Exh. 28 last termination letter
To,
Miss A. M. Marathe,
Pharma pkg. Dept.
Taloja.
Madam,
Further to our letter of temporary appointment No.PER:
RRK: 94 dated 22.03.94 your temporary appointment
stands terminated from the close of working hours on
28.7.94.
Please collect your dues if any, from our Accounts
Department, Taloja.
Thanking you,
Sd/-
Personnel Executive"
13 In the context of the pleadings and the documents as above
BGP. 23 of 56
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the evidence led on behalf of the Complainants would have to be seen.
The Complainants had examined Mrs. Kokate being Complainant in
Complaint (ULP) No.124 of 1995 and Miss. A. M. Marathe being
Complainant in Complaint (ULP) No.125 of 1995. In so far as Mrs.
Kokate is concerned, she has deposed on behalf of all other
Complainants. In so far as her evidence is concerned, it would be
relevant to note that in her cross-examination she has admitted to the
following :-
"1) That as per the appointment letter she was appointed
on a temporary basis as packer for specific duration for
three months;
2) That the Company did not engage any fresh temporary
employee after termination of her services with effect from
28.07.1994;
3) That she and others had not completed 240 days of
service."
14 In so far as Miss. A. M. Marathe is concerned, she has
admitted in her cross-examination to the following :-
"A) That in the present Complaint she was challenging her
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termination of services with effect from 28.07.1994;
B) That she had come to the Court challenging her last
termination and there is no relation between the earlier
termination and the termination challenged in the present
Complaint;
C) That whenever she was appointed, it was by way of
fresh appointment;
D) That during the period 22.03.1994 i.e. from the date
of appointment till my termination on 28.07.1994, I have
not put in 240 days of work and it is true that this position
remains the same always;
E) It is true that whenever I was appointed, I was
appointed as a fresh packer;
F) In so far as the temporary adhoc appointments which
were given for specific period as per the various
appointment letters between the years 1985-1986 to 1994,
the same were filed as Exhs. 27 Colly and Exh.29."
BGP. 25 of 56
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15 Both the witnesses i.e. Mrs. Kokate and Miss. A. M. Marathe
have admitted that at the time of their last termination letter i.e. on
28.07.1994 they had not put in 240 days of continuous service. Both the
witnesses have also admitted that they have come to Court against their
last termination on 28.07.1994. It is in the light of the aforesaid material,
it would have to be considered whether the case of retrenchment under
Section 2(bb) has been made out by the Complainants in so far as their
termination is concerned. It cannot be lost sight of that the termination of
the services of the workmen was in terms of the contract of employment
entered into with them. The Complainants accepted their appointments
on the said basis and therefore the question arises as to whether they can
now be heard to complain against the manner in which they were
appointed. The question also arises whether the Complainants are now
estopped from claiming the relief sought vide said Complaints on the
ground of acquiescence and waiver as also whether the Complaints
claiming the nature of the reliefs claimed would lie under Item 1 of
Schedule IV of the MRTU & PULP Act.
16 In so far as the first issue as to whether the termination of
services of the Complainants amounts to retrenchment under Section
2(bb) of the I. D. Act is concerned, it is required to be noted that the
contracts of employment have been entered from time to time from the
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year 1985-1986 to the year 1994. The said contracts were of specific
duration. The same was sought to be justified through the evidence of the
witness of the Company wherein he had deposed that the packing
department was chiefly manned by permanent employees in the category
of packers and appointment of non-permanent employees in the category
of packers under a specific contract only intermittently due to temporary
increase in work load and after closure of the Syrup and Allergology
Departments and the consequent curtailment in the work-load the
Respondents are not required to engage any temporary employees in the
category of packers. It has also come in the evidence of Mrs. Kokate that
after their termination on 28.07.1994, the Company i.e. Respondents
herein did not engage any fresh temporary hands. The termination of the
Respondents on their contracts coming to an end is therefore covered by
Section 2(oo)(bb) of the I. D. Act.
The said issue has also to be answered in the context of the
fact whether the Complainants had completed 240 days of continuous
service in the preceding 12 calender months. In so far as the said aspect
is concerned, it is required to be noted that the Complainant Miss. A. M.
Marathe has also admitted that she has not worked for 240 days during
her last tenure starting on 22.03.1994. It would have to be borne in mind
that the Complainants never made any grievance as regards their earlier
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appointments and termination. In fact as indicated above the cause for
filing the Complaints was that on 22.03.1995 the Respondents refused to
appoint them. It has also come in the evidence of the Complainants that
they are challenging their last termination on 28.07.1994. Hence, the
benefit of the number of days for which they worked under the earlier
contracts would not be available to the Complainants.
17 Hence the conclusion would be that the Complainants
having not worked for 240 days in the preceding 12 calender months
prior to their last termination, it therefore cannot be said that the
termination amounts to retrenchment within the meaning of Section
2(oo) of the I. D. Act. In so far as the maintainability of the Complaint
under Item 1 of Schedule IV of the MRTU & PULP Act is concerned, it is
required to be noted that the Complainants have claimed the relief of
permanency and benefit on par with the permanent employees, such a
Complaint would obviously not lie under Item 1 of Schedule IV of the
MRTU & PULP Act and would have to be filed under Item 6 of Schedule
IV of the MRTU & PULP Act and the same would have to be filed before
the Industrial Court. The Complainants are also now estopped from
challenging their appointments on the basis of the contracts entered into
from time to time as the Complainants by accepting such appointments
have acquiesced in them and have waived their right for seeking the
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reliefs which they have now sought vide the instant Complaints. A
reference could be made to the judgment of the Apex Court reported in
Haryana State Co-operative Land Development Bank's case (supra),
wherein the Apex Court has held that the procedural laws like estoppel,
waiver and acquiescence are equally applicable to the industrial
proceedings.
18 The next question that arises is whether the Complainants
can claim the benefit of Standing Order 4-C of the Model Standing
Orders so as to claim permanency, or whether the case of the
Complainants is covered by Section 2(oo)(bb) of the I. D. Act. In so far as
Section 2(oo)(bb) of the I. D. Act is concerned, the same was inserted in
the I. D. Act on 18.08.1984. The said section carves out an exception to
retrenchment. In the instant case, there is no dispute about the fact that
the Complainants were appointed in terms of the contract for a fixed
duration and were terminated after the duration of the contract came to
an end. Last of such contracts is dated 22.03.1994 and the contract came
to an end on 28.07.1994 on which day, the services of the Complainants
came to be terminated. It has come in the evidence adduced on behalf of
the Complainants that after their termination no temporaries were
appointed by the Respondents. It has also come in the evidence of the
Respondents that packers were required to be appointed for a short
BGP. 29 of 56
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duration on account of the temporary increase in demand of the
products. In the context of the applicability of Section 2(oo)(bb) of the I.
D. Act, it would be relevant to refer to the judgments of the Apex Court
relating to the said provision.
19 In M. Venugopal's case (supra), the termination of a
probationer who was appointed for a fixed term for not complying with
the requirement of the target fixed by the LIC was held to be covered by
Section 2(oo)(bb) of the I. D. Act. Paragraph 9 of the said judgment is
material and is reproduced hereinunder :-
"9. Regulation 14 aforesaid has to be read as a statutory
term of the contract of employment between the
Corporation and the appellant. The order of appointment
had fixed a target in respect of the performance of the
appellant which admittedly the appellant failed to achieve
within the period of probation which was extended up to
two years. As such the Corporation was entitled not to
confirm the appellant in terms of the order of appointment
and to terminate his service during the period of probation
without any notice in terms of Regulation 14(4) aforesaid.
Clauses 10 and 11 of the order of appointment along with
Regulation 14 shall be deemed to be stipulations of the
contract of employment under which the service of the
appellant has been terminated. Any such termination, even
if the provisions of the Industrial Disputes Act were
applicable in the case of the appellant, shall not be deemed
to be "retrenchment" within the meaning of Section 2(oo),
having been covered by exception (bb). Before the
introduction of clause (bb) in Section 2(oo), there were
only three exceptions so far as termination of the service of
the workman was concerned, which had been excluded
from the ambit of retrenchment - (a) voluntary retirement;
BGP. 30 of 56
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(b) retirement on reaching the age of superannuation; and
(c) on ground of continued ill-health. This Court from time
to time held that the definition of "retrenchment" being
very wide and comprehensive in nature shall cover, within
its ambit termination of service in any manner and for any
reason, otherwise than as a punishment inflicted by way of
disciplinary action. The result was that even discharge
simpliciter was held to fall within the purview of the
definition of "retrenchment". (State Bank of India v. N.
Sundara Money' [(1976) 1 SCC 822: 1976 SCC (L&S) 132 :
AIR 1976 SC 1111], Santosh Gupta v. State Bank of Patiala
[(1980) 3 SCC 340 : 1980 SCC (L&S) 409 : AIR 1980 SC
1219)]. Now with introduction of one more exception to
Section 2(oo), under clause (bb) the legislature has
excluded from the purview of "retrenchment" (i)
termination of the service of the workman as a result of the
non-renewal of the contract of employment between the
employer and the workman concerned on its expiry; (ii)
such contract being terminated under a stipulation in that
behalf contained in contract of employment. It need not be
impressed that if in the contract of employment no such
stipulation is provided or prescribed, then such contract
shall not be covered by clause (bb) of Section 2(oo). In the
present case, the termination of service of the appellant is
as a result of the contract of employment having been
terminated under the stipulations specifically provided
under Regulation 14 and the order of the appointment of
the appellant. In this background, the non-compliance of
the requirement of Section 25-F shall not vitiate or nullify
the order of termination of the appellant."
20 The judgment of the Apex Court in M. Venugopal's case
(supra) was followed by the Apex Court in Escorts Ltd. (supra).
Paragraph 4 of the said judgment is material and is reproduced
hereinunder :-
"4. We do not consider it necessary to go into the question
whether the workman had worked for 240 days in a year
and whether Sundays and other holidays should be
BGP. 31 of 56
Reserve Jt. in WP-1103-00.doc.
counted, as has been done by the Labour Court, because, in
our opinion, Shri. Shetye is entitled to succeed on the other
ground urged by him that the termination of services of the
workman does not constitute retrenchment in view of
clause (bb) in Section 2(oo) of the Act. Clause (bb)
excludes from the ambit of the expression "retrenchment"
as defined in the main part of Section 2(00) "termination of
the services of the workman as a result of the non-renewal
of the contract of employment between the employer and
the workman concerned on its expiry or of such contract
being terminated under a stipulation in that behalf
contained therein". The said provision has been considered
by this Court in M. Venugopal V. Divisional Manager, LIC
[(1994) 2 SCC 323: 1994 SCC (L&S) 664: (1994) 27 ATC
84]. The appellant in that case had been appointed on
probation for a period of one year from 23.5.1984 to
22.5.1985 and the said period of probation was extended
for further period of one year from 23.5.1985 to 22.5.1986.
Before the expiry of the said period of probation, his
services were terminated on 9.5.1986. It was held that
since the termination was in accordance with the terms of
the contract though before the expiry of the period of
probation it fell within the ambit of Section 2(oo)(bb) of
the Act and did not constitute retrenchment. Here also the
services of the workman were terminated on 13.2.1987, as
per the terms of the contract of employment contained in
the appointment letter dated 9.1.1987 which enabled the
appellant to terminate the services of the workman at any
stage without assigning any reason. Since the services of
the workman were terminated as per the terms of the
contract of employment, it does not amount to
retrenchment under Section 2(oo) of the Act and the
Labour Court was in error in holding that it constituted
retrenchment and was protected by Sections 25-F and 25-G
of the Act."
21 The view taken in M. Venugopal's case (supra) and Escorts
Ltd's case (supra) was reiterated by the Apex Court in Municipal Council,
Samrala's case (supra). Paragraph 10 of the said judgment is material and
BGP. 32 of 56
Reserve Jt. in WP-1103-00.doc.
is reproduced hereinunder :-
"10. Clause (oo)(bb) of Section 2 contains an exception. It
is in two parts. The first part contemplates termination of
service of the workman as a result of the non-renewal of
the contract of employment or on its expiry; whereas the
second part postulates termination of such contract of
employment in terms of stipulation contained in that
behalf. The learned Presiding Officer of the Labour Court as
also the High Court arrived at their respective findings
upon taking into consideration the first part of Section
2(oo)(bb) and not the second part thereof. The
circumstances in which the respondent came to be
appointed have been noticed by us hereinbefore."
22 However on behalf of the Petitioners i.e. the original
Complainants reliance was sought to be placed on the judgment of the
Apex Court in S. M. Nilajkar's case (supra) to contend that Section 2(oo)
(bb) of the I. D. Act operates only in respect of appointments made on
projects which appointments come to an end on the projects coming to
an end. The said judgment in S. M. Nilajkar's case (supra) was clarified
by the Apex Court in Municipal Council, Samrala's case (supra) by holding
that the judgment in S. M. Nilajkar's case (supra) is not an authority for
the proposition that Section 2(oo)(bb) of the I. D. Act would apply only
to a project or a scheme of temporary duration. Paragraph 14 of the
judgment in Municipal Council, Samrala's case (supra) is material and is
reproduced hereinunder :-
BGP. 33 of 56
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"14. The decision of this Court is not an authority for the
proposition that apart from a project or a scheme of
temporary duration, Section 2(oo)(bb) of the Industrial
Disputes Act will have no application. Furthermore, in the
instant case, as has been noticed by this Court in S. M.
Nilajkar [(2003) 4 SCC 27 : 2003 SCC (L&S) 380] itself,
the respondent was categorically informed that as per the
terms of the contract, the same was a short-lived one and
would be liable to termination as and when the appellant
thought it fit or proper or necessary to do so. Yet again, this
Court in view of the facts and circumstances prevailing
therein had no occasion to consider the second part of
Section (oo)(bb) of the said Act."
It would be significant to note that in Municipal Council,
Samrala's case (supra), the stipulation in the appointment letter was to
the following effect :-
"his services will be availed till it is considered as fit, proper
and necessary, after that the services will be dispensed
with."
The Apex Court held that the termination pursuant to the clause as above
would be covered by Section 2(oo)(bb) of the I. D. Act.
A reference could also be made to the judgment of a Learned
Single Judge of this Court in Bajaj Auto Ltd. Vs. Shrikant Vinayak Yogi
(Writ Petition No.1100/1998) 2015 SCC Online Bom. 8292. In the said
case after considering the judgment of the Apex Court in Municipal
Council, Samrala's case (supra), the Learned Single Judge held that all
the concerned employees in the matter were covered by Section 2(oo)
BGP. 34 of 56
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(bb) of the I. D. Act. Paragraph 43 of the said judgment is material and is
therefore reproduced hereinunder for the sake of ready reference :-
"43. When the facts of the present case are seen in the light
of the above decisions, there can be no doubt that they fit
into the exception in sub-clause (bb) to take the
termination out of the definition of retrenchment. To repeat
the facts, the respondents-employees were engaged as
temporary worker for several years. They were engaged for
a fixed period of 7 months. Their services were terminated
on the expiry of the fixed period and they were not re-
employed. The reason for termination and no re-
employment was non-availability of work, which is
established by evidence. Under the settlement dated 3 rd
September, 1990 arrived at in the complaints filed by the
employees, they agreed for temporary employment for a
period of seven months with suitable breaks thereafter. The
Company had agreed to absorb them into permanency
depending upon seniority amongst them, conduct,
behaviour, fitness, attendance and the requirement of the
Company. Since the requirement of the Company was not
there due to unavailability of work, they were not re-
employed. Mr. Deo, relying upon the subsequent
settlements of the years 1998, 2003, 2008 and 2014 sought
to submit that non-availability of the work claimed by the
Company is a myth. Undoubtedly, there are settlements
arrived at with the permanent workers. It has not been the
case of the Company that, there is no work whatsoever
available to it. It's claim is that, the spurt in the business at
the relevant time, which was the reason for employing
temporary workers, having died down, there is no
availability of work for the respondents. In any case, the
following recital in the settlement of the year 2008 speaks
for itself............"
24 The aforesaid judgments therefore lay down that where the
termination is on account of non-renewal of the contract of employment
on its expiry or such contract being terminated under a stipulation
BGP. 35 of 56
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contained in the contract of employment the said termination would be
covered by Section 2(oo)(bb) of the I. D. Act. In fact in Municipal
Council, Samrala's case (supra), the clause in question did not have any
stipulation as regards when the appointment would come to an end, the
termination even under such a clause was held to be covered by Section
2(oo)(bb) of the I. D. Act.
25 Now coming to the judgments cited on behalf of the
Petitioners by the Learned Counsel Shri. Y. M. Pendse in support of his
contention that the benefits of permanency under Standing Order 4-C
cannot be deprived of on the basis of the provisions of Section 2(oo)(bb)
of the I. D. Act.
Pravin Krishna Jadhav and others Vs. Rashtriya
Chemicals and Fertilizers Limited reported in 2000(4) Mh.L.J. 382. In
the said case, a Learned Single Judge of this Court held that even if the
termination of the casual labour cannot be termed as retrenchment under
Section 25-F of the I. D. Act because appointment was for a fixed period.
They had as per the Standing Order 4-B automatically become
permanent and could not be terminated without one months notice. The
said judgment was rendered by the Learned Single Judge in a matter of
arising out of an Award passed under the I. D. Act where the jurisdiction
BGP. 36 of 56
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of the Court is wider than the jurisdiction under Item 1 of Schedule IV of
the MRTU & PULP Act. The said judgment can be said to be per-incurium
as it did not notice the provisions of law and especially the effect of
Section 2(oo)(bb) of the I. D. Act.
Sarita S. Melwani Vs. Pallavi Talekar reported in 2008(1)
Mh.L.J. 522 is concerned, the said judgment has no application as what
was in contention before the Learned Single Judge of this Court is the
correct computation of the retrenchment compensation to be payable
under Section 25-F of the I. D. Act and not the issue of exception to
retrenchment as postulated by Section 2(oo)(bb) of the I. D. Act.
Keru Kisan Rokade Vs. Geoffery Manners & Co. Ltd.
reported in 2011(1) Mh.L.J. 115 is concerned. The said judgment is also
arising out of an Award passed by the Labour Court under the I. D. Act.
The Learned Single Judge noticed the judgment of the Apex Court in M.
Venugopal's case (supra) and observed that in view of the said judgment
an earlier judgment of this Court in the matter of Dilip Hanumantrao
Shirke Vs. Zilla Parishad, Yavatmal reported in 1990(I) LLJ 445 must
be held to be impliedly overruled as held in Maharashtra State
Electricity Board Vs. Suresh Vaidyanath Pagar reported in 1995 (II)
CLR 1046. However the Learned Single Judge then relied upon the
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judgment in S. M. Nilajkar's case (supra) and rejected the claim of the
employer based on Section 2(oo)(bb) of the I. D. Act holding that the
workman had been continued for many years by continuously issuing
appointment letters for a month or two and that the evidence on record
indicated that work was available with the employer and that the
workman had completed 240 days in the preceding twelve months.
However it appears that the attention of the Learned Single Judge was
not drawn to the judgment of the Apex Court in Municipal Council,
Samrala's case (supra) which has clarified the judgment in S. M.
Nilajkar's case (supra) by holding that Nilajkar's case was not an
authority for the proposition that Section 2(oo)(bb) of the I. D. Act
applies only to schemes or projects. The said judgment was therefore
rendered oblivious of the judgment in Municipal Council, Samrala's case
(supra) and is therefore denuded of its efficacy.
In so far as Bhuvnesh Kumar Dwivedi's case (supra) is
concerned, the said judgment of the Apex Court would have no
application in the facts of the present case as the said case involved the
UP Industrial Disputes Act and secondly, the fact that the concerned
workman was appointed on a contractual basis was not made out.
In so far as Dattu Bapu Bhokare's case (supra) is concerned, a
BGP. 38 of 56
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Learned Single Judge of this Court had remitted the matter back to the
Labour Court for a de-novo consideration as the Learned Single Judge in
the facts of the said case where the workman had alleged that he was
appointed on temporary basis though work was of a perennial nature had
come to a conclusion that the consideration of the Labour Court as to
whether the said case was covered by Section 2(oo)(bb) of the I. D. Act
was not proper.
In Voltas Limited Vs. M. M. Kendrekar reported in 1984(2)
Bom.C.R. 15 is concerned, the facts in the said case related to the period
prior to insertion of Section 2(oo)(bb) of the I. D. Act which has been
introduced with effect from 18.08.1984 and therefore the said judgment
cannot have any application in so far as the applicability of Section 2(oo)
(bb) of the I. D. Act is concerned.
26 Hence the judgments cited (supra) on behalf of the
Petitioners and having regard to the facts of the present case which have
been adverted to hereinabove, the said judgments do not impact the
conclusion that the termination of the Complainants is covered by
Section 2(oo)(bb) of the I. D. Act.
27 The question also arises as regards the efficacy of Standing
BGP. 39 of 56
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Order 4-C of the Model Standing Orders vis-a-vis the provisions of
Section 2(oo)(bb) of the I. D. Act. The Model Standing Orders have been
prescribed by the State Government in exercise of powers conferred by
Section 15 of the Industrial Employment Standing Orders Act. It is well
settled that Standing Orders are not delegated or subordinate legislation
and therefore have no statutory flavour. At best they can be said to be
statutorily imposed service conditions. Reference could be made to the
judgment of the Apex Court in Rajasthan State Road Transport
Corporation's case (supra). Paragraph 18 of the said judgment is material
and is reproduced hereinunder :-
"18. It is evident from a perusal of the above decisions that
while the first decision referred to the certified Standing
Orders as constituting " the statutory terms of employment".
they were described as "conditions of service in a statutory
form" and as "binding on the parties at least as much, if not
more, as private contracts embodying similar terms and
conditions of service" in the second decision. The third
decision, reiterated the holding in the first decision. So far
as the two last-mentioned decisions are concerned, it is
obvious, they only purport to set out the purport of the
earlier decisions. Vaidialingam, J. used the very expression
"part of the statutory terms and conditions of service", while
K. Ramaswamy, J. stated more emphatically that "certified
standing orders have statutory force". It must, however, be
said that in the decision rendered by Ramaswamy, J., the
question as to the nature and character of the certified
Standing Orders did not arise for consideration; the said
observation was made in another context. The consensus of
these decisions is: the certified Standing Orders constitute
statutory terms and conditions of service. Though we have
some reservations as to the basis of the above dicta as
BGP. 40 of 56
Reserve Jt. in WP-1103-00.doc.
pointed out supra, we respectfully accept it both on the
ground of stare decisis as well as judicial discipline. Even
so, we are unable to say that they constitute "statutory
provisions" within the meaning of the dicta in Sukhdev
Singh [(1975) 1 SCC 421: 1975 SCC (L&S) 101: (1975) 3
SCR 619] where it was held: (SCC p. 447, para 67)
"(T)he employees of these statutory bodies have a
statutory status and they are entitled to declaration of
being in employment when their dismissal or removal
is in contravention of statutory provisions".
Indeed, if it is held that certified Standing Orders constitute
statutory provisions or have statutory force, a writ petition
would also lie for their enforcement just as in the case of
violation of the Rules made under the proviso to Article 309
of the Constitution. Neither a suit would be necessary nor a
reference under Industrial Disputes Act. We do not think
the certified Standing Orders can be elevated to that status.
It is one thing to say that they are statutorily imposed
conditions of service and an altogether different thing to
say that they constitute statutory provisions themselves."
(emphasis supplied)
28 The said view was reiterated by the Apex Court in the
subsequent judgment in U. P. State Bridge Corporation Ltd's case (supra).
Paragraph 13 of the said judgment is material and is reproduced
hereinunder :-
"13. There is another aspect of the matter. Certified
Standing Orders have been held to constitute statutory
terms and conditions of service - D. K. Yadav V. J.M.A.
Industries Ltd. [(1993) 3 SCC 259: 1993 SCC (L&S) 723]
Although this statement of the law was doubted in
Rajasthan SRTC v. Krishna Kant [(1995) 5 SCC 75: 1995
SCC (L&S) 1207: (1995) 31 ATC 110] it was not deviated
from. It was however made clear that Certified Standing
BGP. 41 of 56
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Orders do not constitute "standing provisions" in the sense
that dismissal or removal of an employee in contravention
of the Certified Standing Orders would be a contravention
of statutory provisions enabling the workman to file a writ
petition for their enforcement. This is what was said by this
Court in Rajasthan Transport Corpn. [(1995) 5 SCC 75:
1995 SCC (L&S) 1207: (1995) 31 ATC 110]: (SCC p. 86,
para 18)
"Indeed, if it is held that certified Standing Orders
constitute statutory provisions or have statutory force,
a writ petition would also lie for their enforcement just
as in the case of violation of the Rules made under the
proviso to Article 309 of the Constitution. Neither a
suit would be necessary nor a reference under
Industrial Disputes Act. We do not think the certified
Standing Orders can be elevated to that status. It is
one thing to say that they are statutorily imposed
conditions of service and an altogether different thing
to say that they constitute statutory provisions
themselves."
(emphasis supplied)
29 The same view has been reiterated by the Apex Court in the
subsequent judgment in Rajasthan State Road Transport Corporation's
case (supra), wherein the Apex Court again held that the Standing
Orders are statutorily imposed conditions of service and binding both
upon employers and employees, though do not amount to "statutory
provisions" and any violation of these Standing Orders entitles an
employee to seek appropriate relief either before the forum created
under the Industrial Disputes Act or the Civil Court.
30 In the said context, it would also be relevant to take note of
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Standing Order 32 of the Model Standing Orders which reads thus :-
"32. Nothing contained in these Standing Orders shall
operate in derogation of any law for the time being in force
or to the prejudice of any right under a contract of service,
custom or usage or an agreement, settlement or award
applicable to the establishment."
Hence a reading of the Standing Order 32 discloses that
nothing contained in the Standing Orders shall operate in derogation of
any law for the time being in force. The logical corollary to the same
would therefore be that in case of any conflict between the substantive
provision of law i.e. Section 2(oo)(bb) and Standing Orders, the
substantive provision of law will prevail over the Standing Orders which
are held to be not statutory in nature. Hence the conclusion would be
that once the termination of the employment of the Complainants was
covered by Section 2(oo)(bb) of the I. D. Act, the operation of the Model
Standing Orders cannot have any impact.
31 On behalf of the Petitioners the Learned Counsel Shri. Y. M.
Pendse made the following further submissions whilst rejoining the
submissions made by the Learned Senior Counsel Shri. S. K. Talsania on
behalf of the Respondents in reply :-
i) That the Apex Court in Haryana State Electricity Development
Corporation Ltd's case (supra) has taken a different view though one of
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the Learned Judges who was part of the Bench was a party to the
judgment of the Apex Court in Municipal Council, Samrala's case (supra).
ii) That in the event of conflict between Standing Order 4-C of the
Model Standing Orders and Section 2(oo)(bb) of the I. D. Act, the benefit
of the more beneficial provision should be granted to the Petitioners.
Reliance is sought to be placed on the judgments of this Court reported in
1991(2) Bom.C.R. 184 in the matter of Indian Tobacco Company Vs.
Industrial Court, Nagpur, 1996 III LLJ (Suppl) 666 in the matter of
Philipos Babu Vs. Bajaj Tempo Ltd., 2010(6) Mh.L.J. 178 in the matter
of Raymond UCO Denim Ltd. Vs. Praful Warade and others, 1996 III
LLJ (Suppl) P & H HC in the matter of Bhikku Ram Vs. Presiding
Officer Rohatak and 2003(1) Mh.L.J. 745 in the matter of Saudi
Arabian Air Lines Vs. Ashok Panchal.
iii) That if the two provisions i.e. Standing Order 4-C and Section
2(oo)(bb) of the I. D. Act are read harmoniously, there is no conflict
between the two.
iv) That the contracts on the basis of which the Petitioners were
appointed were against public policy. Reliance was placed on the
judgment of the Apex Court reported in (1986) 3 SCC 156 in the matter
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of Central Inland Water Transport Company Vs. Brojonath Ganguly
and another.
v) That the interpretation should be such as to confer benefits on the
workman rather than denial of the same. Reliance is sought to be placed
on the judgment of the Apex Court reported in (2001)7 SCC 1 in the
matter of Steel Authority of India Vs. National Water Front Union.
Before dealing with the aforesaid submissions, at the cost of
repetition, it would be apposite to revisit the facts in the instant case. As
indicated hereinabove, the Petitioners challenged their termination dated
28.07.1994 and have shown the cause of action for filing the Complaint
as 22.03.1995 as according to them on the said day they were informed
by the Respondents that they would not be appointed anymore. It has
come in the evidence which has been adduced on behalf of the
Complainants that they have not completed 240 days of service preceding
their last appointment. It has also come in their evidence that they are
aggrieved by the act of the Respondents of informing them on
22.03.1995 that they would not be appointed. It has also come in their
evidence that after their termination, the Respondents have not
appointed any person on temporary basis. On behalf of the Respondents,
it has come in their evidence that the cause for appointing persons like
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the Petitioners on contract basis was the temporary increase in demand of
its products.
33 The aforesaid is the gist of the factual background and
therefore the contentions urged in rejoinder would have to be considered
in the said context.
In so far as the judgment in Haryana State Electronic
Development Corporation Ltd's case (supra), the said judgment was
delivered in the facts of the said case where the appointment of the
workman concerned therein with one days break was found fault with
and was held not to be covered by Section 2(oo)(bb) of the I. D. Act.
However what is significant to note is that the Apex Court observed that
even if the employee therein was reinstated she could not be regularized
and therefore deemed it appropriate to award lump-sum compensation of
Rs.25000/-. The said judgment was therefore rendered in the facts which
can be distinguished from the facts of the instant case which have been
adverted to hereinabove.
In so far as the second submission is concerned, the instant
case is not a case where the Petitioners are deprived of the benefit of a
more beneficial provision, but is a case where the applicability of Section
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2(oo)(bb) of the I. D. Act having regard to the nature of the contract is in
contention. It is also not a case where there is material difference
between the service conditions contemplated under the contract of
employment and the service conditions stipulated by the Model Standing
Orders and is a case where the issue is whether the substantive provisions
would override the provisions of the Model Standing Orders. Once the
termination is covered by Section 2(oo)(bb) the applicability of Standing
Order 4-C is ruled out.
In so far as the judgment in Bhikku Ram's case (supra) is
concerned, a Division Bench of the Punjab and Haryana High Court in the
facts of the said case wherein juniors were retained, observed that the
Labour Court had failed to appreciate the controversy in the proper
perspective and therefore had remanded the matter back to the Labour
Court for a de-novo consideration.
In Saudi Arabian Air Lines's case (supra), it was held by a
Learned Single Judge of this Court that the workman concerned was
liable to be made permanent under the Model Standing Order 4-C since
the job of the security guard was of a permanent nature and even after
his termination the Petitioner i.e. Saudi Arabian Air Lines had employed
permanent guards. In the said fact situation, it was held by the Learned
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Single Judge that the job of the security guard cannot be said to be of a
temporary nature which would end by efflux of time nor could it be said
that Section 2(oo)(bb) of the I. D. Act was attracted. The said judgment
was also rendered in the facts which were before the Learned Single
Judge of this Court.
In Indian Tobacco Company Limited's case (supra), it was held
by a Learned Single Judge that the provisions of Industrial Employment
(Standing Orders) Act are engrafted into Bombay Shops and
Establishment Act with only necessary changes in points of details. Hence
only Model Standing Orders framed under the Industrial Employment
(Standing Orders) would govern the relations between the parties. It was
further held that prohibition is cast against operation of Standing Orders
only when better rights acquired by an employee under a contract of
service are likely to be prejudiced. The said judgment would have no
application, as there is no question of better rights acquired by the
Complainants, but as indicated above, the question is about the
applicability of Section 2(oo)(bb) of the I. D. Act which is a substantive
provision.
In Philipos Babu's case (supra), the same view as taken in
Indian Tobacco Company's case (supra) was taken by a Learned Single
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Judge of this Court namely that the Model Standing Orders would
override any provision in the contract of employment.
In Raymond UCO Denim Ltd's case (supra), a Learned Single
Judge of this Court held that the benefit of more beneficial provision is to
be granted even to employees on probation.
In my view, the said judgments would not further the case of
the Petitioners in so far as their claim for permanency under Section 4-C
of the Standing Order is concerned having regard to the factual
differences.
34 In so far as the submission (iv) that the contracts entered
into between the Petitioners and the Respondents were against public
policy is concerned, in my view, as already held hereinabove, the
Petitioners having accepted the said contracts without demur from the
year 1985 and having raised a dispute only as regards their last
termination which has taken effect on 28.07.1994 and also coming with
the case that the cause of action for filing the Complaints was the fact
that they were denied employment on 22.03.1995, the Petitioners are
now estopped from challenging the said contracts of employment being
against public policy. The Petitioners whilst the contracts were in
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existence did not question them, and have taken the benefit under them.
It is long after their termination and when they were denied fresh
appointment that the Petitioners are now seeking to call in question the
said contracts. The termination of the Petitioners pursuant to the said
contracts having been held to be covered by Section 2(oo)(bb) of the I. D.
Act, the said contention would have to be rejected.
35 In so far as the judgment of the Apex Court in Central Inland
Water Transport Company's case (supra). The Apex Court in the said case
was concerned with the term in the contract of employment providing for
termination of services of the permanent employees without assigning
any reasons on three months notice or pay in lieu thereof on the other
side. Such a clause was held by the Apex Court in the said case to be
unconscionable, arbitrary and opposed to public policy. The said
judgment would have no application as in the instant case, the
termination has been effected on account of the contract coming to an
end on account of efflux of time and similar terminations in the past were
accepted by the Petitioners without demur.
36 Now coming to the last contention that the interpretation
should be such as to confer benefits on the workman rather than denial
of the same, in my view, as mentioned hereinabove, the issue in the
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instant proceedings is as regards the applicability of Section 2(oo)(bb) of
the I. D. Act which is an exception to retrenchment as contemplated
under Section 2(oo) of the I. D. Act. If the requisites for the application of
Section 2(oo)(bb) of the I. D. Act are satisfied, then the legal
consequences thereof would necessarily have to follow and therefore
there is no question of conferring benefits on the workman rather than
denial of the same. If an interpretation as sought by the Petitioners is
given, then the result would be that Section 2(oo)(bb) of the I. D. Act,
which has been incorporated to cover specific cases of termination would
become otiose.
37 In so far as the judgment in Steel Authority of India's case
(supra) is concerned, in the said case, the Apex Court was concerned with
the dispute relating to the abolition of contract labour and it is held by
the Apex Court in the said judgment that in case of ambiguity in the
labour legislation, although the question is to be resolved in favour of
conferment of, rather than denial of benefits to the labour but that is to
be done without rewriting or doing violence to the provisions of the
enactment. For the reasons aforestated, the said judgment would also
have no application in the facts of the present case.
38 The Respondents also opposed the maintainability of the
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Complaints for the relief claimed by way of permanency by the
Petitioners on the ground of the settlement dated 08.02.1994 entered
into between the recognized union and the Respondents. It seems that
the recognized union in its charter of demands dated 01.01.1993 had
sought permanency for 61 employees including temporary packers and
after due negotiations the parties agreed to the regularization of the 27
employees including 12 packers whose names are mentioned in the
settlement. It was therefore the contention of the Respondents that the
Petitioners who are admittedly left out would also be bound by the
settlement and cannot seek permanency contrary to the terms of the
settlement. It was also sought to be contended that since there was no
challenge to the settlement, the said recognized union and the Petitioners
would be bound by the said settlement. It was also the submission of the
Respondents that Standing Order 4-C cannot have application de-hors the
settlement.
39 Reliance was placed on the Division Bench judgment of this
Court in Pune Municipal Corporation and others. The facts in the said
case were that the concerned employees union therein had entered into a
settlement with the employer in September 1989 and in terms thereof it
was agreed that the claim of permanency would be available to the
employees only on completion of service of five years. The employees
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relying upon Standing Order 4-C of the Model Standing Orders had
claimed permanency on the completion of 240 days in service. The said
relief was refused on the ground that mere completion of 240 days in
service in the absence of the availability of permanent posts duly
approved by the Competent Authority would not be sufficient to claim
permanency. The Division Bench also observed that one cannot ignore the
lawful settlement arrived at between the parties. The Division Bench also
adverted to Standing Order 32 of the Model Standing Orders which has
already been referred to hereinabove which provides that nothing
contained in the Standing Orders shall operate in derogation of any law
for the time being in force or to the prejudice of any right under a
contract etc. The Division Bench concluded that once it is not in dispute
that under the valid and lawful settlement their claim of permanency
would be available only on completion of five years of continuous service
and depending upon the availability of permanent vacant post duly
approved by the Government, no claim under Standing Order 4-C of the
Standing Orders ignoring the settlement arrived at can be entertained.
Hence in the aforesaid case of Pune Municipal Corporation, the employees
who were members of the union had sought the relief contrary to the
terms of the settlement. Such is not the case in the instant matter. As in
the instant case, the Petitioners who were temporaries were not covered
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by the settlement which has been observed by the Learned Judge of the
Labour Court by recording a finding that the Petitioners who were
working on contract basis for temporary period were not bound by the
settlement and therefore were entitled to prosecute the Complaint for the
relief sought under Item 1 of Schedule IV of the MRTU & PULP Act. In my
view, no fault can be found with the said finding of the Labour Court as
confirmed by the Industrial Court. It would be one thing to say that the
Complaints are not maintainable and another thing to say that the
Complainants are not entitled to the relief of permanency. Hence in so far
as the said ground is concerned, the Petitioners were entitled to prosecute
the Complaints as they were not bound by the settlement. However in the
instant case the Petitioners are not entitled to the relief of permanency in
view of the fact that their cases are covered by Section 2(oo)(bb) of the I.
D. Act. It is also required to be noted that in so far as the judgment of the
Division Bench of this Court in Pune Municipal Corporation's case (supra),
it has been held by a Learned Single Judge of this Court in the judgment
dated 07.06.2010 in Writ Petition No.443 of 2010 and companion
matters as per-incurium to the extent of the finding in paragraph 9 of the
said judgment after the quotation of Standing Order 32 in view of the
judgment of the Supreme Court reported in 1974 SCC 330 in the matter
of Western India Match Company Ltd. Vs. Workmen.
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The said finding was recorded by the Division Bench of this
Court on the basis of the clause in the agreement which provided for
permanency after putting in 5 years of service. Hence the issue was the
efficacy of the said Standing Order 4-C of the Model Standing Orders. In
which context the Apex Court in Western India Match Company Ltd's case
(supra) held that the clause in the agreement inconsistent with the
Standing Order cannot prevail over the Standing Order. However in the
instant case, the issue is whether the substantive provision i.e. Section
2(oo)(bb) of the I. D. Act would override the Standing Order 4-C, which
this Court has answered in the affirmative, and therefore the efficacy of
Standing Order 32 of the Standing Orders does not stand denuded.
Hence in the instant case, Section 2(oo)(bb) of the I. D. Act would be the
law that is envisaged by Standing Order 32 and therefore Standing Order
4-C cannot operate in derogation of Section 2(oo)(bb) of the I. D. Act.
40 In the instant case, both the Courts below have concurrently
held that the termination of the Petitioners is covered by Section 2(oo)
(bb) of the I. D. Act. Both the Courts below having regard to the material
on record i.e. the pleadings and evidence have concurrently held that the
Petitioners have not completed 240 days of service in the preceding 12
calender months. In my view, the view taken by the Courts below cannot
be said to be a view which could not be taken in the facts and
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circumstances of the case.
41 This Court has also recorded a finding that the claim of the
Petitioners is barred on the application of the principles of estoppel and
acquiescence. This Court has also reached a conclusion that Section 2(oo)
(bb) of the I. D. Act would override Standing Order 4-C of the Model
Standing Orders. The fact that the Petitioners have been discontinued as
long back as on 28.07.1994 would also have to borne in mind. In that
view of the matter, no case for interference in the writ jurisdiction of this
Court has been made out. The Writ Petition is accordingly dismissed. Rule
discharged with parties to bear their respective costs.
[R. M. SAVANT, J]
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