Bombay High Court
Raymod Uco Denim Pvt. Ltd. Thr. ... vs Praful Warade And 53 Ors on 18 August, 2021
Bench: A.S. Chandurkar, Govinda Ananda Sanap
1 LPA299.10(j)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 299/2010 IN WRIT PETITION NO.4996/2009
Raymond UCO Denim Private Ltd.
Plot No.C-1, MIDC, Yavatmal,
Post Box No. 12, Lohara, District Yavatmal
(MS)-445001
[Formerly known as M/s.Raymond Ltd.(Denim Division)]
through its Manager (HR and Admn.)
....... APPELLANT
...V E R S U S...
1. Praful Warade,
2. Gajendra Aasole
3. Nilesh Pundlik Bijawa(Bijwe).
R/o.At Post Mahuli Jahangir, Tahsil and Dist. Amravati.
4. Ajay Ajmire
5. Maroti Tonge.
6. Prabhakar Suresh Wankhede.
At Gram Nagepalli, Post Alapalli, Taluka Aheri,
District Gadchiroli.
7. Bharat Lohakare
8. Vinod Raut.
9. Raju Tandra
10. Dinesh Selokar
11. Suryakant Shrawanji Kove
At Gram Shirpur(Hore) Post Bhidi,
Taluka Dewali, District Wardha.
12. Ashish Kubde
13. Pramod Shamkuwar
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2 LPA299.10(j)
14. Amol Ramdasji Paltankar (Faltankar)
At Sankatmochan Road, Near MSEB Office,
Santaji Mandir, Tq. and District Yavatmal.
15. Dinesh Lokhande.
16. Rajpal Kishore Dongre,
c/o.Bhimijot Maland,
Frezarpura, Post Rukhmininagar,
Amravati. District Amravati.
17. Pravin Singh.
18. Sadanand Namdeo Savale(Sawale)
At Post Talkli Viro,
Taluka Shegaon, District Buldhana.
19. Vinod Lonare
20. Dilip Wanjari.
21. Sachin Gote.
22. Dinesh Chirade
23. Pramod Barase.
24. Sandeep Lonare.
25. Sandeep Sahebrao Samose,
At Chimnpur, Rani Amraoti,
Tah.Babhulgaon, District Yeotmal.
26. Bapurao Rupla Rathod.
At Kandali Tanda, Post Kandali (BU),
Tamsa Root, Tah. Himayatnagar,
District Nanded.
27. Narendra Khusram.
28. Uday Ashokrao Kulkarni.
At Uttam Nivas, Saraswati Colony,
Post Selu, District Parbhani.
29. Bhavesh Harparvar
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3 LPA299.10(j)
30. Vinod Narayanrao Zoting.
At Sarai, Post. Chikhali, Tq.Ralegaon,
District Yavatmal.
31. Kunal Chimurkar.
32. Ravindra Yenpeddiwar.
33. Amit Salunkhe.
34. Vinayak Wankhede.
35. Dhananjay Thokal.
36. Nana Kopulwar.
37. Kamaljit Dhyansingh Pawar.
Kamathwara, Post Akola Bazar,
Tq. and District Yavatmal.
38. Abasaheb Bhosale.
39. Vikas Gopal Kurkure.
Plot No.12, Survey No.57, Hanman Nagar, MIDC Area,
Shiddi Vinayak back side,
At Jalgaon, Tah. And District Jalgaon.
40. Mahesh Dhake.
41. Dinesh Bhaskarrao Warkhad
At Post Sahur, Tq. Aashti, District Wardha.
42. Ganesh Giradkar
43. Narayan Thakare.
44. Abhay Ganeshrao Rajgure.
At Vaibhav Nagar, Post Lohara,
Tq. and District Yavatmal.
45. Ringnath Vinayak Kalambe.
At Post Kelwad, Tq. Saoner, District Nagpur.
46. Uday Rajusingh Pawar.
At Post Gunj, Taluka Mahagaon,
District Yavatmal.
47. Sandeep Devghare.
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4 LPA299.10(j)
48. Devnath Gadhge.
49. Rajesh Sonawane.
50. Dadarao Mahore.
51. Dharamraj Choudhary.
52. Rahul Doijad.
53. Surendra Rameshrao Charde.
Manikwara(Dhnaj) Tq. Ner Parsopant,
District Yavatmal.
Respondent Nos. 1, 2, 4, 5, 7 to 10, 12, 13, 15, 17, 19 to 24, 27, 29, 31 to 36,
38, 40, 42, 43, 47 to 52 are
R/o.C/o Aabahasaheb Kachru Bhosle,
C/o. Shri Avinash Navgare, Hans Apartment No.1,
Mahavir Nagar, Darwah Road,
Yavatmal-445 001.
54. Member,
Industrial Court, Godhani Road,
Manhshe Bhavan, At and Post Yavatmal.
.......RESPONDENTS
--------------------------------------------------------------------------------------------------------------------
Shri V.R.Thakur, Advocate with Shri H.V.Thakur, Advocate for appellant.
Shri S.D.Thakur, Advocate with Shri D.S.Thakur, Advocate for respondents.
-------------------------------------------------------------------------------------------------------------------
CORAM : A.S.CHANDURKAR AND G.A.SANAP, JJ.
DATE ON WHICH THE ARGUMENTS WERE HEARD : 22.07.2021
DATE ON WHICH THE JUDGMENT IS PRONOUNCED :18.08.2021
JUDGMENT ( Per A.S.Chandurkar, J. )
This Letters Patent Appeal under Clause 15 of the Letters Patent raises a
challenge to the judgment of the learned Single Judge in Writ Petition
No.4996/2009 decided on 12 th, 13th and 15th April 2010. By the said judgment the
challenge raised by the appellant-employer to the judgment of the Industrial Court in
U.L.P.(Complaint) No.27 of 2007 decided on 01.01.2009 was negatived. That
5 LPA299.10(j)
complaint was filed by the respondents-employees seeking the relief of permanency
on completion of probationary period of three months and the same was allowed.
For the sake of convenience the parties would be referred to as employer and
employees hereinafter.
2. For considering the challenges raised in this appeal it would be necessary
to refer to the factual aspects that are available on record. The employer is an
industrial establishment which is governed by the provisions of the Maharashtra
Industrial Relations Act, 1946 (hereinafter referred to as 'the Act of 1946') as well as
the Model Standing Orders for Operatives framed thereunder. It is the case of the
employees that initially they were appointed as trainees for a period of one year.
After completion of the training period of one year, the employees were appointed
on probation for a period of six months. According to them under Model Standing
Order 4A the probationary period prescribed is only of three months and hence after
completion of that probationary period, the employees had become permanent and
regular on their respective posts. The employer however confirmed the employees
in service on completion of eighteen months service and treated them as regular and
permanent employees after completion of twenty four months service. Having made
oral representations to the employer for grant of benefit of regularisation and
permanency, the employees on 22.03.2007 filed a complaint under Section 28 of the
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices
Act, 1971 (for short, 'the Act of 1971'). In the said complaint the employees sought
relief of declaration that on completion of one year training period, it be declared
that they had become regular and permanent employees. In the alternate, the relief
6 LPA299.10(j)
of they having become permanent in service on completion of probationary period of
three months was prayed for. Other ancillary reliefs in monetary terms was also
prayed for. The complaint was filed invoking Item 9 of Schedule IV of the Act of
1971. There were 53 complainants and the complaint was supported by the
affirmation of the complainant no.1.
3. The employer filed its written statement opposing the aforesaid
complaint. It was admitted that initially the employees had been appointed for a
period of one year as trainees. Some of the complainants did not complete their
training period successfully and hence their training period was extended by a period
of two to three months. Thereafter the complainants were offered employment as
probationers by prescribing the probation period of six months. The offer made to
them to work as probationers was accepted by each complainant in writing. On
completion of the probation period of six months, they were issued orders of
appointment in writing and the same were accepted by them. It was then pleaded
that the permanent employees on roll on 31.03.2004 were governed by the
settlement dated 18.02.2005 entered into between the employer and the
representative Union under Section 58 of the Act of 1946. Since the complainants
became permanent after 31.03.2004 they were not governed by that settlement. It
was also pleaded that the probationary period under the Model Standing Orders
would not apply to the complainants in view of the contract of service between the
parties prescribing probationary period of six months. It was denied that the
employer had indulged in any unfair labour practice under Item 9 Schedule IV of the
Act of 1971. On these counts dismissal of the complaint was sought by the
7 LPA299.10(j)
employer.
4. On behalf of the employees, the complainant no.1-Praful Warade was
examined. He filed his affidavit in lieu of evidence reiterating the contents of the
complaint. He deposed that the payments made to permanent employees and that
made to the complainants were distinct. In his cross-examination he admitted that
the complainants had joined the service after accepting the terms and conditions
mentioned in the appointment orders. The probationary period was mentioned in
the order of appointment. Another witness examined on behalf of the employees
was Mahesh Dhake. He also deposed in terms of the complaint. In his cross-
examination he admitted that he was appointed as trainee on 23.12.2004 and the
offer of appointment as probationer for a period of six months was accepted by the
employees. He also admitted that it was not mentioned in the appointment order
that the wages as per the agreement of 2005 would be paid to them.
On behalf of the employer, its General Manager Pradip Andhare was
examined. He deposed that all the employees were issued identical orders of
appointment initially as trainees and thereafter as probationers. The conditions
mentioned therein were accepted by the employees. In his cross-examination, he
admitted that when the employees were confirmed in service the settlement of 2004
was in existence. Instead of paying the complainants wages as per the 2004
settlement, they were paid as per practice followed by the employer. There was
however no fixed salary that was paid by the employer as per practice. He further
admitted that it was correct that one category of employees was getting wages as per
the settlement dated 18.02.2005 while another category of employees was getting
8 LPA299.10(j)
wages as per practice though all them were confirmed employees. He admitted that
there was no document filed on record to indicate that salary was being paid to the
employees as per any practice.
5. The learned Member of the Industrial Court after considering the
evidence on record held that the employees had failed to prove that they had
become eligible for confirmation in service after completion of the training period of
one year. It was however held that as per the Model Standing Orders applicable the
probationary period was of three months and each complainant had completed this
probationary period of three months successfully. The employer was required to
confirm the employees in service on completion of three months probationary period
but the same was not done. It was further held that the employer had failed to
show the service conditions that were applicable to the employees as per the existing
practice. The complainants were held entitled to all benefits under the settlement
dated 18.02.2005 as were applicable to regular employees. It was held that the
employer had engaged in unfair labour practice under Item 9 of Schedule IV of the
Act of 1971. After holding that the complaint was filed within limitation, the same
was allowed. The complainants were held entitled to be granted permanency from
the date of completion of three months from their appointment as probationers and
were also entitled to all service and monetary benefits as per the agreement dated
18.02.2005.
6. This judgment of the Industrial Court was challenged by the employer
before the High Court by preferring Writ Petition No. 4996/2009. The learned
Single Judge after considering various decisions including the decision of the learned
9 LPA299.10(j)
Single in Indian Tobacco Company Ltd. Vs. Industrial Court and Others 1990 (2)
LLJ 236 (hereinafter referred to as ITC-1) which was thereafter confirmed by the
Hon'ble Supreme Court in Indian Tobacco Company Ltd., Nagpur Vs. Industrial
Court, Nagpur and anr (1994) Supp. 2 SCC 484 (hereinafter referred to as ITC-2)
held that the contention of the employer that the period of probation of six months
as provided in the contract of service must prevail was misconceived and
unsustainable. The probation period of three months as prescribed by Model
Standing Order 4A would prevail. It was further held that the prevalent practice as
pleaded by the employer was not proved and there could not be different set of
service conditions for permanent employees working under the same roof. Since the
employees were not given benefit of the settlement dated 18.02.2005, their
grievances fell under Item 9 of Schedule IV of the Act of 1971. The learned Single
Judge hence proceeded to uphold the judgment of the Industrial Court and the writ
petition filed by the employer came to be dismissed. This judgment is the subject
matter of challenge in this letters patent appeal at the behest of the employer.
7. In support of the appeal Shri V.R.Thakur, learned counsel for the
employer made the following submissions :
(a) The Courts committed an error in holding that the service conditions of
the employees were governed by Model Standing Order 4A which prescribed
probation period of three months, disregarding the appointment order on probation
which was accepted by each employee unconditionally and which order prescribed a
probation period of six months. In view of Model Standing Order 31 it was
permissible for the employer under the contract of service to prescribe probationary
10 LPA299.10(j)
period which was different from the probationary period prescribed by Model
Standing Order 4A. Model Standing Order 31 being the saving clause it was
permissible for the employer to prescribe a larger period of probation for its
employees under the contract of service considering the nature of the industrial
establishment. Each employee having accepted the appointment order on probation
for a period of six months without any demur it was not permissible for them to turn
around and contend that the period of probation was governed by Model Standing
Order 4A. In this regard, the learned counsel placed reliance on the judgment of the
Division Bench in Pune Municipal Corporation and others Vs. Dhananjay Prabhakar
Gokhale, 2006 (4) Mh L J 66 . It was submitted that therein Model Standing Order
4(c) prescribed completion of 240 days of uninterrupted service as a requirement for
permanency in service. In the settlement between the employer and employees,
completion of continuous service for a period of five years was accepted as the basis
for permanency in service. The Division Bench had in the light of Model Standing
Order 32 which was similar in nature to Model Standing Order 31 which was
applicable to the case in hand had held that since there was a valid and lawful
settlement between the employer and employees prescribing completion of five
years of continuous service as the basis for permanency in service, it was not
permissible for the employees to rely upon Model Standing Order 4(c) and seek
permanency on completion of 240 days of uninterrupted service. In other words, it
was urged that despite the fact that the settlement between the parties prescribed
longer period of service for attaining permanency in service, the same was accepted
by the Court in preference to Model Standing Order 4(c) which prescribed a shorter
period of continuous service and which was more advantageous to the employees.
11 LPA299.10(j)
(b) In the light of the aforesaid judgment of the Division Bench in Pune
Municipal Corporation (supra) recognising the right of the employer to prescribe a
larger period of continuous service for seeking permanency in service than that
prescribed under the Model Standing Orders, the judgment of the learned Single
Judge in ITC-1 (supra) holding otherwise stood impliedly overruled. It was
submitted that Model Standing Order 32 which was considered by the Division
Bench in Pune Municipal Corporation (supra) was also the subject matter of
consideration in ITC-1 (supra) by the learned Single Judge. The learned Single
Judge had held that the prohibition against the operation of Standing Orders was
only when better rights acquired by an employee under the contract of service were
likely to be prejudiced. Since this interpretation by the learned Single Judge in ITC-
1 (supra) was contrary to the interpretation of Model Standing Order 32 by the
Division Bench in Pune Municipal Corporation (supra), the judgment of the learned
Single Judge stood impliedly overruled. The learned Single Judge therefore
committed an error in relying upon the decision in ITC-1 (supra) to confirm the
order passed by the Industrial Court.
Referring to another judgment of the Division Bench in Tulshiram K.
Gothad Vs. Superintendent, Mahatma Gandhi Memoral Hospital 2007(3) CLR 718 it
was urged that while interpreting Model Standing Orders it was not permissible for
the Court to add any words therein. The Division Bench had held that under Model
Standing Order 27 the age of retirement could be 60 years or such other age that
may be agreed between the parties by an agreement. The appointment order issued
to the employee therein stipulated that the conditions of service were to be governed
by the service regulations which prescribed 58 years as the age of retirement. After
12 LPA299.10(j)
noting the judgment of the learned Single Judge in Engineering Workers Association
Vs. J.D.Jamdar, 2004 (3) CLR 315 decided by the learned Single Judge, it was held
by the Division Bench that Model Standing Order 27 as interpreted therein was
incorrect. It had been held by the learned Single Judge that the agreement between
the parties would prevail over the age specified in Model Standing Order 27 only if
the age of retirement specified in the agreement was more than 60 years. This
judgment of the learned Single Judge was overruled by the Division Bench. Since
the learned Single Judge in Engineering Workers Association (supra) had placed
reliance on the judgment of the learned Single Judge in ITC-1 (supra), as a
consequence the decision in ITC-1 (supra) was also impliedly overruled.
(d) The settlement under Section 58 of the Act of 1946 dated 18.02.2005
having been made applicable specifically only to those permanent employees who
were on the muster roll on 31.03.2004 it was not permissible to extend the benefits
under that memorandum of settlement to the employees herein. It was an admitted
position that each employee had become permanent in service after 31.03.2004 and
therefore was not covered by the same. Each employee having accepted the
appointment initially as a trainee and then on probation for a period of six months, it
was not permissible for the employees to thereafter contend that by virtue of Model
Standing Order 4A, they were entitled to probationary period of only three months.
Both the Courts erred in extending the applicability of the memorandum of
settlement dated 18.02.2005 to the employees in the present case.
(e) Referring to the pleadings in the complaint filed under Section 28 of the
Act of 1971, it was submitted that there were various shortcomings in it. There were
no pleadings for invoking the provisions of Item 9 of Schedule IV of the Act of 1971
13 LPA299.10(j)
in the entire complaint. There were no averments that each complainant had
"satisfactorily" completed the probationary period of three months. 54 employees
had filed a common complaint that was solemnly affirmed only by the complainant
no.1. There was no authorisation given to the complainant no.1 by the other
complainants. Reference was made to the provisions of Chapter-VI of the Industrial
Court Regulations, 1975 as well as Form 19 which prescribed the details that were
necessary to be stated in the complaint. There was also no pleading with regard to
any agreement or settlement between the parties or its violation to enable invocation
of Item 9 of Schedule IV of the Act of 1971. No declaration had been sought that
each complainant stood confirmed in service. On the basis of such sketchy
complaint, the employees were not entitled to any relief whatsoever and the
complaint was liable to be dismissed. Moreover, without making a proper demand
with the employer the employees directly filed the complaint. In that regard the
learned counsel placed reliance on the observations in paragraph 4 of the judgment
in Pune Municipal Corporation (supra), Siemens Limited and another Vs. Siemens
Employees Union and another 2012 (1) Mh L J 548, Association of Engineering
Workers Vs. Crompton Greaves Limited & Ors 2001 II CLR 64, Regional Manager,
SBI Vs. Rakesh Kumar Tewari (2006) 1 SCC 530, Sindhu Resettlement Corporation
Ltd Vs. Industrial Tribunal of Gujarat and Ors AIR 1968 SC 529, Prabhakar Vs. Joint
Director, Sericulture Department and anr. (2015) 15 SCC 1, Hasmat Rai and
another Vs. Raghunath Prasad (1981) 3 SCC 103 and Church of Christ Charitable
Trust Vs. Ponniammal Education Trust (2012) 8 SCC 706. Further, the complaint
was barred by limitation and the delay as caused was not sought to be condoned.
On this count also no relief could have been granted to the employees.
14 LPA299.10(j)
(f) The conduct of the employees in accepting their appointment on
probation for a period of six months amounted waiver of their rights under Model
Standing Order 4A. It was permissible for an individual to waive the mandatory
benefit admissible to him and each employee having accepted the appointment on
probation as offered by the employer for a period of six months, the rights, if any,
that could accrue under Model Standing Order 4A stood waived. Reference in that
regard was made to the decisions in General Manager, Sri Siddeshwara Co-operative
Bank Limited and another Vs. Ikbal and others (2013) 10 SCC 83, Haryana State Co-
operative Land Development Bank Vs. Neelam AIR 2005 SC 1843 and Rukhmina
Rajesh Dange Vs. Kailash Natthuji Pawar and others 2019 (5) Mh L J 168 .
(g) There could not be any "deemed confirmation" of the employees on
completion of the probationary period in absence of such satisfactory completion
being evinced in writing by the employer. The order of appointment on probation
clearly prescribed that only after successful completion of the probation period as
stated by the employer in writing could it be said that the probation period had been
successfully completed. It was necessary for the employer to declare in writing that
the period of probation had been satisfactorily completed. There was no material to
indicate such successful completion of the probationary period after three months
even under Model Standing Order 4A. When satisfactory completion of the
probation period is required to be certified by the employer in writing the concept of
deemed confirmation in service would not arise. The Courts committed an error in
holding each employee deemed to have satisfactorily completed the period of
probation without the same being certified by the employer in writing. The legal
position in this regard was clear and the same was highlighted by the Hon'ble
15 LPA299.10(j)
Supreme Court in Durgabai Deshmukh Memorial Senior Secondary School and anr.
Vs. J. A. J. Vasu Sena and anr. (2019) 17 SCC 157. Reference was also made to the
decision in High Court of M.P. Through Registrar and ors. Vs. Satyanarayan Jhavar
(2001) 7 SCC 161 in that regard. On the basis of aforesaid submissions it was
urged that the learned Member of the Industrial Court as well as the learned Single
Judge erred in granting relief to the employees.
8. Shri S.D.Thakur, learned counsel for the employees while opposing the
letters patent appeal made the following submissions :
(a) In absence of any certified Standing Orders being approved by the
Commissioner of Labour, the proceedings were governed by the Model Standing
Orders in terms of the provisions of Section 35(5) of the Act of 1946. Referring to
the Scheme of Chapter VII of the Act of 1946, it was submitted that Model Standing
Order 31 could not be interpreted in a manner that would dilute Model Standing
Orders 1 to 30. Attention was invited to the provisions in Chapter VIII of the Act of
1946 to urge that any such attempt would result in an illegal change as
contemplated by Section 46 of the Act of 1946. It was argued that Clause 31 if read
in the manner as sought to be urged by the appellant, it would render that clause
illegal and beyond the provisions of the Act of 1946. Such interpretation as put-
forth by the employer would defeat the object behind framing the Model Standing
Orders which was not permissible. He referred to the provisions of Section 40A of
the Act of 1946 to urge that the aspect as to whether the Model Standing Orders are
less advantageous to the employees than the corresponding Standing Orders
applicable to them has to be examined by the Commissioner of Labour. This
16 LPA299.10(j)
indicated that under the Act of 1946 a provision less advantageous to the employees
gives way to a Model Standing Order that is more advantageous to them. He also
referred to the provisions of Sections 106 and 107 of the Act of 1946 to urge that
illegal change of any nature including a change in the Standing Orders was not
permissible and contravention of a Model Standing Order applicable under Section
35 could attract penalty. The test of justness/fairness was required to be applied for
considering the aspect as to whether the rights of employees were prejudiced under
the garb of a contact of service that was sought to be saved by relying upon Model
Standing Order 31. In view of the decision in Western India Match Company Ltd,
ITC-1 and ITC-2 (supra) it was clear that Model Standing Order 31 could not furnish
any basis to the employer for depriving the employees of completing the
probationary period after the expiry of three months. The learned counsel referred
to the decisions in A.G.Varadarajulu and another Vs. State of T.N. and Others (1998)
4 SCC 231, Additional District Magistrate(Rev.) Delhi Admn. Vs. Siri Ram (2000) 5
SCC 451 and K. A. Abraham and another Vs. The General Manager, Bhilai Steel
Plant 1979 M.P.L.J. 50 in that regard.
(b) The legal position having been settled in view of interpretation of pari
material Model Standing Order 32 in ITC-1 (supra) as affirmed by the Hon'ble
Supreme Court in ITC-2 (supra), it was clear that on completion of probationary
period of three months as per Model Standing Order 31, the employees stood
confirmed in service. The contract of service though entered into by the employees
which prescribed probationary period of six months, it could not be relied upon by
applying Model Standing Order 31 inasmuch as the better rights that were conferred
on the employees by Model Standing Order 4A would be prejudiced. The aforesaid
17 LPA299.10(j)
was the consistent view taken by this Court which ought to be followed. He sought
to distinguish the decisions relied upon by the learned counsel for the employer in
that regard. In Pune Municipal Corporation (supra) there was a settlement between
the employees and employer therein which was not so in the present case. Similarly
in Tulshiram K. Gothad (supra) there was neither any settlement nor award but the
parties were governed by the conditions of service therein. It was urged that in
view of the law as laid down in The U.P.State Electricity Board and another Vs. Hari
Shankar Jain and Ors 1978(4) SCC 16 the decision in Tulshiram K. Gothad (supra)
did not warrant acceptance. He also referred to the decision in Workmen of Lakheri
Cement Works Ltd. vs. The Associated Cement Companies Ltd. (1970) 20 FLR 243.
In any event Model Standing Order 31 could not be read in such a wide manner to
the prejudice of the employees as sought to be urged by the learned counsel for the
employer disregarding the more advantageous situation contemplated by Model
Standing Order 4A.
(c) Referring to the pleadings in the complaint filed under Section 28 of the
Act of 1971 it was submitted that the complaint had to be read as a whole and not
in a piecemeal manner. All necessary facts for invoking Item-9 of Schedule IV of the
Act of 1971 as well as the facts constituting commission of unfair labour practice by
the employer were present in the complaint. The employees had no knowledge or
access to the agreement dated 18.02.2005 and hence no reference to the same was
made in the complaint. In the light of the settled position that there could not be
two different set of rules for permanent employees under the same roof, the learned
Single Judge rightly noticed the same and dismissed the writ petition filed by the
employer. No interference therefore called for with the impugned judgment. It was
18 LPA299.10(j)
thus submitted that the Letters Patent Appeal was liable to be dismissed.
9. The learned counsel for the employer in reply submitted that there were
no pleadings in the complaint so as to challenge the validity of Model Standing
Order 31 as being ab initio void . The said contention was being raised for the first
time in the letters patent appeal which was not permissible. In absence of any
specific challenge to the legality of Model Standing Order 31, the Industrial Court as
well as the learned Single Judge had no occasion to deal with the same. Reliance in
this regard was placed on the decisions in Sanjay Kumar and ors. Vs. Narinder
Verma and ors. (2006) 6 SCC 467 and Md. Shahabuddin Vs. State of Bihar and ors.
(2010) 4 SCC 653. The learned counsel sought to distinguish the decisions relied
upon by the learned counsel for the employees. It was further urged that with the
passage of time out of 53 employees who had initially filed the complaint only 26
now remained in service. By virtue of the interim orders passed in Writ Petition
No.4996/2009 the employer had deposited the amount towards monetary relief
granted to the employees and that amount was still lying in deposit. Reiterating that
there could not be any deemed confirmation of the employees under Model Standing
Order 4A as urged to be applicable, it was submitted that the appeal deserves to be
allowed as prayed for.
10. We have heard the learned counsel for the parties at length and with
their assistance we have gone through the material placed on record. In the light of
rival submissions, the following questions arise for consideration :-
(a) Whether the contract of service prescribing probationary period of six
months can prevail over Model Standing Order 4A that prescribes probationary
19 LPA299.10(j)
period of three months ? In other words, whether the contract of service prescribing
larger period of probation than Model Standing Order 4A is saved by Model Standing
Order 31 ?
(b) The employer having recorded satisfactory completion of the
probationary period of six months, can the same be reconciled with Model Standing
Order 4A which prescribes satisfactory completion of probationary period of three
months by an order in writing? In other words, could there be deemed confirmation
after the period of three months ?
(c) Whether the complaint filed by the employees made out a case for
invocation of Item 9 of Schedule IV of the Act of 1971 ?
(d) Whether the employees are entitled to the reliefs as granted by the
Industrial Court and maintained by the learned Single Judge ?
11. Since the facts of the case require its adjudication on the basis of
interpretation of the Model Standing Orders, it would be necessary to first refer to
the statutory provisions in that regard. Chapter VII of the Act of 1946 pertains to
Standing Orders. Under Section 35 thereof an employer is required to submit for
approval to the Commissioner of Labour draft Standing Orders regulating the
relations between him and his employees with regard to industrial matters
mentioned in Schedule I. The manner in which draft Standing Orders have to be
settled is prescribed therein and until such Standing Orders are settled, the Model
Standing Orders if any, notified by the State Government in the Official Gazette
would apply to such undertaking. The provisions of Sections 36 to 39 of the Act of
1946 pertain to the procedure to be followed by any person who is aggrieved by the
20 LPA299.10(j)
decision of the Commissioner of Labour under Chapter VII as well as matters
pertaining to alteration in Standing Orders. Section 40(1) stipulates that Standing
Orders that have been settled under Chapter VII and in operation or where no such
Standing Orders are in force, the Model Standing Orders that are applicable under
the provisions of Section 35(5) would be determinative of the relations between the
employer and his employees. Section 40A prescribes that any Model Standing Order
made and notified in the Official Gazette in respect of any additional matters
included in Schedule I would apply in relation to such employees in the undertaking
in respect of which Standing Orders have already been settled under Section 35
unless such Model Standing Order is held by the Commissioner of Labour to be less
advantageous to the employees than the corresponding Standing Order applicable to
them.
Answer to Question (a) :-
12. It is undisputed that the employer and the employees herein are
governed by the Model Standing Orders for Operatives as applicable in the Vidarbha
Region of the State as notified on 11.07.1967 and published in the Official Gazette
on 20.07.1967. Model Standing Order 3(b) refers to a probationer as an operative
who is provisionally employed to fill a permanent vacancy or post and who has not
completed three months service in aggregate in that post. It may be stated that by
virtue of Notification dated 07.01.1989, the Model Standing Orders came to be
amended. Amongst other orders, Model Standing Order 4A came to be inserted and
the same reads thus :
"4A- Confirmation of Probationers :- Every probationer who has
satisfactorily completed the period of three months
21 LPA299.10(j)
uninterrupted service in the post in which he is provisionally
employed shall be made permanent in that post by the Manager
by an order in writing within seven days from the date of
completion of such period.
Provided that, where the settled Standing Orders
which prevail on the date of coming into force of this
notification prescribe a probationary period longer than three
months, the probationer shall complete such probationary
period;
Provided further that, if the services of the
probationer are found to be unsatisfactory, the Manager may
terminate his services after the completion of his probationary
period".
Model Standing Order 31 which is the sheet-anchor of the case of the employer
reads thus :
"31-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 of an agreement, settlement or award applicable to the
undertaking".
13. To recapitulate, the employees herein were initially engaged as trainees
for a period of one year. Thereafter they were appointed on probation as operatives
for a period of six months. This according to the employer was under the contract of
service entered into with each employee which was permissible being saved by
Model Standing Order 31. According to the employees they were governed by Model
Standing Order 4A and the contract of service prescribing longer probation period of
six months being contrary to Model Standing Order 4A was not saved by Model
Standing Order 31. The savings clause could not be read in such a manner to defeat
the right of the employees of being confirmed in service after completion of three
months uninterrupted probationary service. For the purpose of adjudicating this
aspect we may first refer to the various decisions relied upon by the parties in that
regard. It is however clarified that we are not examining the legality of Model
22 LPA299.10(j)
Standing Order 31 as the same was not in issue before the learned Single Judge.
14. In Western India Match Company Ltd (supra), the employer had its
separate Standing Orders for the Watch and Ward Staff whereunder a probationer
was a workman who was provisionally employed to fill a permanent vacancy and
who had not completed two months service. The employer engaged a Watchman
and placed him on probation for a period of six months. After expiry of the period of
probation, the employee continued in service and thereafter the employer extended
the period of probation by two more months with retrospective effect. Prior to
completion of the said extended probation period, his services were dispensed with.
One of the questions considered was whether the special agreement prescribing the
period of probation as six months was inconsistent with the Standing Orders which
prescribed probationary period of two months. It was held that the special
agreement was inconsistent with the Standing Orders to the extent that it prescribed
additional probationary period of four months. It was observed that when the
Standing Orders were in force, it was not permissible for the employer to seek a
statutory modification of the same which could result in one set of Standing Orders
being applied to some employees and another set for the rest of the employees. It
was also held that a prior as well as posterior agreement which was inconsistent with
the Standing Orders would not survive. The employer was not permitted to enforce
the special agreement on the pretext that the employee had voluntarily agreed to the
same.
15. The next decision is by the learned Single Judge of this Court in ITC-1
(supra). The facts therein indicate that the employee was engaged as Sales
23 LPA299.10(j)
Representative on probation for a period of twelve months. It was the case of the
employee that under the Model Standing Orders the period of probation could only
be three months and hence on completion of the aforesaid probationary period of
three months, the employee was deemed to have completed the said period
successfully. After referring to the decision in Western India Match Company
(supra) and in the context of Model Standing Order 4A as well as Model Standing
Order 32 which is similarly worded as Model Standing Order 31 herein, it was held
that the provisions contained in the Standing Orders could not operate to the
prejudice of any right under the contract of service, custom or usage or agreement,
settlement or award. The prohibition against the operation of Standing Orders was
only when better rights that were acquired by an employee under the contract of
service were likely to be prejudiced. It was found that while under Model Standing
Order 4A the period of probation was three months, that under the contract of
employment was twelve months. Hence the contract of employment would not be
saved by Model Standing Order 32 and any interpretation which was inconsistent to
the Standing Orders would be invalid and incapable of being enforced.
This decision of the learned Single Judge was the subject matter of
challenge before the Hon'ble Supreme Court in ITC-2 (supra). The Hon'ble Supreme
Court examined the question with regard to interpretation of Section 38-B of the
Bombay Shops and Establishments Act, 1948 and the Standing Orders issued under
the Act of 1946. While upholding the judgment of the learned Single Judge as
regards the interpretation of Section 38-B of the Bombay Shops and Establishments
Act, 1948 in paragraph 10 it was observed as under :
24 LPA299.10(j)
"10. .....Thus it is held that the provisions of Section 38-B of the
Shops Act applied to all establishments as if industrial
establishments irrespective of the number of persons employed
therein and the standing orders would apply instantly providing a
period of probation of three months only. It thus appears to us
that the High Court was right in importing the applicability of the
Standing Orders Act and the standing orders to enable the
respondent ripen his period of probation to one of regularity after
the expiry of three months of successful completion. Our
interpretation being in accord with that of the High Court, as also
on the result achieved, we dispose of this appeal by directing that
the appellant pay to the second respondent the balance of 50%
back wages within a period of two months from today".
16. We find that the learned Single Judge in ITC-1 (supra) has interpreted
Model Standing Order 32 to mean that the provisions contained in the Standing
Orders would not operate to the prejudice of any right under the contract of service,
custom or usage or agreement, settlement or award. In other words, it was held that
the Standing Orders would not operate only in the event better rights acquired by an
employee under a contract of service were likely to be prejudiced. Therein, Model
Standing Order 4A prescribed uninterrupted service for a period of three months
which a probationer was required to complete for ceasing to be a probationer. The
appointment order however prescribed probation period of twelve months. It was
held that the employee by virtue of Model Standing Order 4A ceased to be a
probationer on completion of three months uninterrupted service and the contract
of appointment as a probationer prescribing probation period of twelve months
being longer than the period prescribed under Model Standing Order 4A was not
valid.
Much emphasis was placed by the learned counsel for the employer on
the fact that in paragraphs 1 and 8 of the decision of the Hon'ble Supreme Court in
25 LPA299.10(j)
ITC-2 (supra) the Hon'ble Supreme Court had referred to the limited scope of the
appeal from the judgment of the learned Single Judge. In paragraph 10 it has been
clearly observed that the High Court in ITC-1 was right in importing the applicability
of the Standing Orders so as to enable the employee to ripen his period of probation
to one of regularity after the expiry of three months of successful completion of
probation. These observations leave no manner of doubt that the interpretation as
placed by the learned Single Judge in ITC-1 (supra) that the term in the contract of
service prescribing a larger period of probation had to yield to Model Standing Order
4A which prescribed a lessor period of uninterrupted service for being confirmed in
service. In other words, Model Standing Order 4A continued to operate and the
contract of service to that extent was not saved by Model Standing Order 32 as
better rights acquired by the employee under Model Standing Order 4A had been
prejudiced.
17. Heavy reliance was placed by the learned counsel for the employer on
the judgment of the Division Bench in Pune Municipal Corporation (supra). It was
urged that Model Standing Order 32 applicable to the facts of that case had been
interpreted to mean that a valid settlement arrived at between the employer and the
employees prescribing completion of five years of continuous service for claiming the
right of permanency could not be ignored despite the fact that Model Standing Order
4(c) prescribed completion of 240 days of uninterrupted service for entitlement to
the right of permanency and was more beneficial to the workmen. Though the
settlement prescribed a larger period of five years continuous service for claiming
permanency, it was preferred to Model Standing Order 4(c) that required
26 LPA299.10(j)
completion of only 240 days of uninterrupted service for seeking permanency. It
was thus urged that in view of this conclusion of the Division Bench, the decision of
the learned Single Judge in ITC-1 (supra) stood impliedly overruled.
We are unable to accept this contention. In Pune Municipal Corporation
(supra) the Division Bench held that it was a settled principle of law that mere
completion of 240 days service in the absence of availability of a permanent vacant
post duly approved by the competent authority would not be sufficient to claim
permanency. In addition, it was observed that since there was a valid and lawful
settlement under which the employees had agreed that their claim for permanency
would be available only on completion of five years of continuous service depending
on the availability of a permanent vacant post, the claim as made under Model
Standing Order 4(c) ignoring the settlement could not be entertained. While
upholding the settlement prescribing a longer period of continuous service than that
prescribed by Model Standing Order 4(c), the ratio of the decisions in Western India
Match Company Ltd, ITC-2 and ITC-1 (supra) has not been considered. As held in
Western India Match Company Ltd (supra), the inconsistent part of the special
agreement cannot prevail over the Standing Orders.
18. In this context, we may refer to the judgment of learned Single Judge in
Ramesh Vithal Patil and others Vs. Kalyan-Dombivali Municipal Corporation and
others (2010) 6 BCR 661 . The facts of the said case indicate that the employees
therein were appointed on temporary basis by the employer and by virtue of the
provisions of Model Standing Order 4(c) they claimed that having completed
uninterrupted service of 240 days they were entitled to the relief of permanency.
27 LPA299.10(j)
The Municipal Corporation took the stand that the appointments as made were
without following the procedure prescribed under the Bombay Provincial Municipal
Corporation Act, 1949 and they were not made on sanctioned posts. The provisions
of Model Standing Order 4(c) and Model Standing Order 32 were considered by the
Court. Model Standing Order 32 is in para materia with Model Standing Order 31 as
applicable to the case in hand save and except the expression "establishment" that
finds place in Model Standing Order 32 as against the expression "undertaking" in
Model Standing Order 31. It was held that Model Standing Order 32 operated in two
parts; the first part was in relation to "any law for the time being in force" to mean a
statutory enactment. As regards the second part with which we are concerned in the
present case, it was observed in paragraph 32 as under :
"32 ....The second part of Clause 32 pertains to saving any
benefit that a workman may be entitled to under a contract of
service, custom, or usage or an agreement, settlement or award
applicable to the establishment. In other words, in the event of
a workman being entitled to any higher or better rights under a
contract of service, agreement, settlement, etc. than that
provided in the Standing Orders, the Standing Orders shall not
deprive the workman of the same."
The judgment of the learned Single Judge in the ITC-1 (supra) was cited and it was
observed that the learned Single Judge had not observed in the said decision that the
Model Standing Orders would operate in derogation of or contrary to any existing
enactment.
19. In Ramesh Vithal Patil and ors (supra) it was urged on behalf of the
employees that the decision in Pune Municipal Corporation (supra) was per
incuriam as the question as to whether the Act of 1946 and the Model Standing
28 LPA299.10(j)
Orders would override the provisions of the Bombay Provincial Municipal
Corporation Act, 1949 had not been considered. That submission was not accepted.
However, it was observed that the judgment in Pune Municipal Corporation (supra)
appeared to be per incuriam to the extent it upheld the settlement between the
employer and the employees for claiming permanency only on completion of five
years of continuous service as it was against the spirit of the judgment of the Hon'ble
Supreme Court in Western India Match Company Limited. (supra). The following
observations in paragraph 37 indicate the same and that paragraph reads as under :
37. "Having said that, the judgment in Pune Municipal
Corporation Vs. Dhananjay Prabhakar Gokhale appears to be
per incuriam to the extent of the last portion in paragraph 9
after Clause 32 of the MSO is set out in view of the judgment of
the Supreme Court in Western India Match Co. Ltd. The
Division Bench held that in view of the Settlement of
September, 1989 between the employees and the appellants
the claim for permanency could only be on completion of five
years of continued service and in accordance with Clause 4-C of
the Standing Orders. The judgment of the Supreme Court in
Western India Match Co. Ltd., however, makes it clear that in
the event of there being a conflict between the provisions of the
Standing Orders and any agreement, the provisions of the
Standing Orders would prevail. The attention of the Division
Bench was not invited to the judgment of the Supreme Court.
However, as I have already noted, the rest of the judgment in
Pune Municipal Corporation Vs. Dhananjay Prabhakar Gokhale
is good law and is not affected by the judgment in Western
India Match Co.Ltd."
We find no difficulty in accepting the observations of the learned Single Judge in
Ramesh Vithal Patil (supra) as made in paragraph 37 reproduced hereinabove that
the judgment in Pune Municipal Corporation (supra) to the extent the same is
against the spirit of the judgment of the Hon'ble Supreme Court in Western India
Match Company Ltd. (supra) is rendered per incuriam. As noted above the
judgments in ITC-1 as well in ITC-2 were not cited before nor referred to by the
29 LPA299.10(j)
Division Bench in Pune Municipal Corporation (supra). As observed in paragraph
19 of the decision in Sundeep Kumar Bafna Vs. State of Maharashtra (2014) 16 SCC
623, a judgment can be per incuriam if the decision of the High Court is not in
consonance with the views of the Supreme Court. We thus endorse the observations
made in paragraph 37 of the decision in Ramesh Vithal Patil (supra) in this regard.
In that view of the matter the observations in paragraph 9 of the decision in Pune
Municipal Corporation (supra) permitting the settlement prescribing the right of
permanency after continuous service of five years to operate instead of Model
Standing Order 4(c) prescribing completion of 240 days of uninterrupted service for
permanency cannot be relied upon.
20. We also find that the judgment of the learned Single Judge in ITC-1
(supra) interpreting Model Standing Order 32 to mean that it was intended only to
protect the better rights in favour of a workman/employee and that the Standing
Orders would prevail over the terms of contract of service in case of inconsistency
between the two has been consistently followed in various decisions. In Philipos
Babu Vs. M/s. Bajaj Tempo Ltd. and anr 1996 III LLJ 666 the workman was
appointed on probation initially on temporary basis. He was subsequently given a
letter of appointment in which it was stated that he would be on probation for a
period of six months and at the discretion of the employer the probationary period
could be extended. The workman raised a dispute contending that his services were
governed by the Model Standing Orders and in view of Clause 4A thereof the
probation period could not be more than six months. Since the Labour Court did not
accept this contention and dismissed the complaint, the workman approached this
30 LPA299.10(j)
Court. It was held by Shri B. N. Srikrishna, J (as His Lordship then was) that Model
Standing Order 32 was the subject matter of the interpretation in ITC-1 (supra) and
that the same was intended only for protecting the better rights in favour of the
workmen and that the Standing Orders must prevail over the terms of contract of
service in case there was inconsistency between the two. We are in respectful
agreement with the aforesaid view. It was held that on expiry of three months
probationary period the workman was deemed to have become permanent. Relief
was accordingly granted to the workman.
21. We may now refer to the decision in Tulshiram K. Gothad (supra) on
which considerable reliance was placed by the learned counsel for the employer. The
facts therein indicate that in the appointment order it was stipulated that the
employee would retire from service on completion of age of 58 years whereas under
the Model Standing Orders applicable, the age of retirement fixed was 60 years. The
employee filed a complaint urging that under the Model Standing Orders applicable
the age of retirement was 60 years and he could not be retired at the age of 58
years. The Division Bench held that under Model Standing Order 27 the age of
retirement of an employee could be 60 years or it could be such other age that may
be agreed between the parties by an agreement. Since the order of appointment
itself prescribed the age of retirement to be 58 years, it was held that in the light of
that agreement and the service regulations prescribing the age of retirement of 58
years, the employee was rightly superannuated at the age of 58 years.
Before the Division Bench, the judgment of the learned Single Judge in
Engineering Workers Association (supra) was relied upon. The learned Single Judge
31 LPA299.10(j)
therein by relying upon the judgment of the learned Single Judge in ITC-1 (supra)
had held that Model Standing Order 32 prescribing the age of retirement at 60 years
would override the agreement between the parties which prescribed the age of
retirement as 58 years. The Division Bench in Tulshiram K. Gothad (supra) however
proceeded to overrule the judgment of the learned Single Judge in Engineering
Workers Association (supra) on the ground that the interpretation by the learned
Single Judge of Model Standing Order 27 resulted in addition of words to the said
Model Standing Order which was not permissible. Model Standing Order 32 was
also referred to before the Division Bench but in paragraphs 4 and 5 of its decision,
the Division Bench observed that in view of the clear language of Model Standing
Order 27 it was not necessary for it to consider Model Standing Order 32. The
decision in Tulshiram K. Gothad (supra) has considered and interpreted the
provisions of Model Standing Order 27 alone with which we are not concerned in
the present case. In view of its clear observations that it did not find it necessary to
consider Model Standing Order 32 (which is in pari materia to Model Standing
Order 31), we are not in a position to hold that since the Division Bench in
Tulshiram K. Gothad (supra) had overruled the judgment of learned Single Judge in
Engineering Workers Association (supra) in which decision the judgment of the
learned Single Judge in ITC-1 (supra) had been followed, the judgment of the
learned Single Judge in ITC-1 (supra) also stands impliedly overruled. This is for
two reasons namely; the interpretation of Model Standing Order 32 as arrived at by
the learned Single Judge in ITC-1 (supra) stands confirmed by the Hon'ble Supreme
Court in ITC-2 (supra). In fact, on the grant of Special Leave the doctrine of merger
as explained in S.Shanmugavel Nadar Vs. State of T.N. and another (2002) 8 SCC
32 LPA299.10(j)
361 would apply. Secondly, the Division Bench in Tulshiram K. Gothad (supra) has
in clear terms observed that it was not necessary for it to consider Model Standing
Order 32. Thus the said contention of the learned counsel for the employer cannot
be accepted.
22. Thus in the light of the ratio of the decisions in Western India Match
Company Limited, ITC-1, ITC-2 and Ramesh Vithal Patil and others (supra) it is held
that Model Standing Order 31 cannot be interpreted to mean that it would save a
contract of service prescribing a longer period of probation than that prescribed by
Model Standing Order 4A. In other words, the period of probation prescribed by
Model Standing Order 4A would prevail over the period of probation prescribed
under a contract of service if such probationary period under the contract of service
is more than that prescribed by Model Standing Order 4A. The legislative intent
behind insertion of Section 40A in the Act of 1946 also supports this conclusion.
Question (a) is thus answered by holding that the contract of service
prescribing probationary period of six months would not prevail over Model
Standing Order 4A which prescribes probationary period of three months. Since the
contract of service prescribes a larger period of probation than that prescribed by
Model Standing Order 4A, the contract of service would not be saved by Model
Standing Order Clause 31.
Answer to Question (b) :-
23. It was strenuously urged on behalf of the employer that that in the order
of appointment on probation it was stated that only on satisfactory completion of the
period of probation followed by an order of confirmation in writing, the employee
33 LPA299.10(j)
would gain the status of a regular employee. There was no scope to import the
concept of deemed confirmation in service. In the absence of an act by the employer
recording satisfactory completion of the period of probation after three months
assuming Model Standing Order 4A was applicable, it could not be held that the
period of probation of three months had been satisfactorily completed to enable the
employee to get the benefit of permanency. Perusal of Model Standing Order 4A
indicates that only on satisfactory completion of the period of probation of three
months followed by an order in writing issued by the Manager within seven days
from the completion of such period would the employee be entitled to be made
permanent on the post. In Durgabai Deshmukh Memorial Senior Secondary School
(supra) the Hon'ble Supreme Court has considered the aspect of "deemed
confirmation" of a probationer in the context of the requirements prescribed by the
relevant provisions. After referring to its earlier decision in Satyanarayan Jhavar
(supra) it was observed that where the relevant rule prescribes a positive act to be
done by the employer before the services of a probationer can be confirmed, there
would be no occasion to hold that in the absence of such positive act by the
employer the services of the employee stand deemed confirmed. Continuation of
services even beyond the maximum period of probation would not entitle the
probationer in such situation to be deemed to be confirmed in service. Such
confirmation is only after issuance of an order to that effect by the Appointing
Authority that the period of probation has been satisfactorily completed. In the facts
of the said case it was noticed that the services of the probationer therein were
continued beyond the maximum permissible period of probation which resulted in
violation of law. It was observed that though there was no provision for deemed
34 LPA299.10(j)
confirmation, the conduct of the Management could result in other consequences
including the decision as to whether the recognition of the school which violated the
law should be withdrawn. The Hon'ble Supreme Court after invoking the provisions
of Article 142 of the Constitution of India awarded compensation of Rs. Five lakhs to
the employee therein.
24. The decision in Durgabai Deshmukh Memorial Senior Secondary School
(supra) no doubt supports the contention of the learned counsel for the employer
that in view of the requirement of Model Standing Order 4A, in the absence of any
order in writing being made by the Manager on satisfactory completion of the period
of probation, the services of the employees herein would not be deemed to be
confirmed. It is however necessary to notice certain undisputed facts in the present
case. All employees were issued orders of appointment on probation for a period of
six months and they successfully completed the period of probation of six months as
per the contract of service. All employees were thereafter made permanent in
service by issuing orders of appointment. These are the averments in paragraph 7 of
the written statement. It is not the case of the employer that the services of any of
the aforesaid employees were not satisfactory or that the period of probation of six
months was required to be extended further. In other words, each employee
successfully completed the period of probation of six months and was thereafter
made permanent in service.
25. The question to be considered in these facts is whether the benefit of
permanency could be extended to these 53 employees only after satisfactory
completion of probation period of six months or whether such successful completion
35 LPA299.10(j)
of the probation period of six months would enure to the benefit of the employees by
relating back to the date when they completed the probationary period of three
months as contemplated by Model Standing Order 4A. As noted above, the
employer was not justified in issuing the order of probation for a period of six
months, which was against the spirit of Model Standing Order 4A that prescribes the
probationary period of three months. Model Standing Order 31 would not come to
the aid of the employer in view of the fact that Model Standing Order 4A prescribes
a shorter period than that imposed by the employer in the contract of service with
each employee. Thus, once it is found that the employer ought to have prescribed
the probationary period of three months as stipulated by Model Standing Order 4A
it becomes clear that each employee having successfully completed the probation
period of six months, he would be entitled to the benefits of permanency on the
expiry of period of three months on the principle of "relation back".
In this regard we seek to draw support from the principle of law laid
down in G.P.Doval and others Vs. Chief Secretary, Government Uttar Pradesh and
others (1984) 4 SCC 329 wherein it was held that on confirmation in service by the
Authority having power and jurisdiction to make the appointment, it would relate
back to the date on which the first appointment was made and entire service would
have to be computed in reckoning the seniority according to the length of continuous
officiation. This decision of the Hon'ble Supreme Court was subsequently followed
in L.Chandrakishore Singh Vs. State of Manipur and others, (1999) 8 SCC 287 where
in paragraph 15 it was observed as under :
"15. It is now well settled that even in cases of probation or
officiating appointments which are followed by a confirmation
unless a contrary rule is shown, the service rendered as officiating
36 LPA299.10(j)
appointment or on probation cannot be ignored for reckoning the
length of continuous officiating service for determining the place
in the seniority list. Where the first appointment is made by not
following the prescribed procedure and such appointee is
approved later on, the approval would mean his confirmation by
the authority and shall relate back to the date on which his
appointment was made and the entire service will have to be
commuted in reckoning the seniority according to the length of
continuous officiation. In this regard we fortify our view by the
judgment of this Court in G.P.Doval v. Chief Secy, Govt. of U.P."
Though these decisions pertain to the aspect of reckoning seniority, the
observations that the period spent in successfully completing the probation period
cannot be excluded are relevant.
26. We thus accept the contention made on behalf of the employer that in
the light of the requirement of Model Standing Order 4A, satisfactory completion of
the period of probation has to be specifically acknowledged by the employer by an
order in writing. However, in the light of the facts of the present case wherein each
employee successfully completed his period of probation after six months which was
duly followed by issuance of fresh order of appointment on permanent basis, the
employees would be entitled to the benefit of completion of probationary period at
the end of three months in the light of Model Standing Order 4A. Such
interpretation in these facts would be in consonance with the spirit of Model
Standing Orders 4A and 31 being construed harmoniously. It would also be in accord
with the observations in ITC-2 (supra) wherein the Hon'ble Supreme Court while
considering Model Standing Order 4A affirmed the course followed by this Court in
ITC-1 (supra) of permitting the employee therein "to ripen his period of probation to
one of regularity after the expiry of three months of successful probation." To hold
37 LPA299.10(j)
otherwise would amount to granting premium on the conduct of the employer of
issuing the order of appointment on probation for a period of six months which was
"to the prejudice" of the employees. Having found that the probation period could
have been only three months, the employees cannot be deprived of the benefit of
successful completion of the probationary period only on the ground that the
employer on completion of the probationary period of six months found their
services to be satisfactory. Since there could be no estoppel against law, the
acceptance of appointment on probation for a period of six months would not defeat
the rights of the employees under Model Standing Order 4A. The observations in
paragraph 12 of the decision in Western India Match Company Limited (supra)
support this conclusion. The ratio of the decisions in General Manager, Sri
Siddeshwara Co-operative Bank Limited and another, Haryana State Co-operative
Land Development Bank Ltd. and Rukhmina Dange (supra) would not be applicable
in such situation.
Question (b) is accordingly answered by holding that that on the
principle of "relation back", each employee would be entitled to the benefit of
permanency on completion of probationary period of three months that has been
prescribed by Model Standing Order 4A.
Answer to Question (c) :-
27. As regards the contention of the learned counsel for the employer that
the provisions of Item 9 of Schedule IV of the Act of 1971 were neither applicable in
the facts of the case as pleaded by the employees nor did the complaint make out a
case in that regard, the same does not deserve acceptance. Paragraphs 11 to 13 of
38 LPA299.10(j)
the complaint indicate that the employees had relied upon the Model Standing
Orders framed under the Act of 1946 to contend that in breach thereof they had
been denied the benefits of regularisation and permanency. It was also pleaded that
the Model Standing Orders constituted an "agreement" under the Act of 1971 thus
constituting an unfair labour practice. In reply to these paragraphs, the employer
relied upon the exception carved out in the Model Standing Orders to justify the
probationary period of six months. It was admitted that the Model Standing Orders
framed under the Act of 1946 constituted an "agreement" between the parties. It
was denied that the employer had engaged in an unfair labour practice.
The aforesaid pleadings clearly indicate that while the employees had
relied upon Model Standing Order 4A to urge that the probationary period ought to
have been three months, the employer had relied upon the acceptance of the
probationary period of six months as mentioned in the appointment orders which
amounted to a contract to the contrary as saved under Model Standing Order 31.
The complaint was prosecuted on these pleadings which is also clear from Issue No.3
framed by the Industrial Court. It therefore cannot be said that no case of unfair
labour practice at the instance of the employer so as to attract Item 9 of Schedule IV
of the Act of 1971 was pleaded by the employees. The ratio of the decisions in
Siemens Limited and another, Regional Manager, SBI, Hasmat Rai and Church of
Christ Charitable Trust (supra) cannot be made applicable to the case in hand. This
aspect has been dealt with by the learned Single Judge in paragraph 41 of the
impugned judgment and there is no reason to take a different view.
It was sought to be urged by the employer that the complaint was filed
beyond the period of limitation and hence it ought not to have been entertained by
39 LPA299.10(j)
the Industrial Court. The learned counsel however fairly stated that this contention
had not been urged before the learned Single Judge. Similarly, the contentions of
lack of proper demand being made by the employees before filing the complaint and
verification only by complainant no.1 on behalf of all the complainants do not
appear to have been raised before the learned Single Judge. In that view of the
matter we are not inclined to go into these aspects.
Question (c) is accordingly answered by holding that the provisions of
Item 9 of Schedule IV of the Act of 1971 were invoked by the employees in the
complaint filed by them.
Answer to question (d) :
28. It was strenuously urged on behalf of the employer that in view of the
fact that the settlement dated 18.02.2005 had been made applicable to permanent
employees of the company as on 31.03.2004 and as admittedly the present
employees were made permanent after that date, the present employees were not
entitled to the benefits under the said settlement. In this regard, it is found that the
learned Single Judge in paragraphs 35 to 40 has considered this aspect. It has been
found that it was the specific pleading of the employer in its written statement that
the employees herein were to be paid by the employer as per prevailing practice. It
is then found that the employer could not produce on record any evidence
whatsoever to indicate the prevalent practice or any other service conditions that
could be made applicable to the employees herein on the premise that the terms of
the settlement dated 18.02.2005 would not be applicable to them. It is in the
absence of any such "prevailing practice" that was sought to be relied upon by the
40 LPA299.10(j)
employer that the Industrial Court and thereafter the learned Single Judge found
that there could not be different service conditions for employees under the same
roof. The cross-examination of Pradeep Andhare examined by the employer is also
relevant. Despite the pleading that there was some practice other than the
settlement dated 18.02.2005, there was no evidence brought on record. It in that
context that the finding has been recorded that even those employees who became
permanent after 31.03.2004 were entitled to the benefits of the settlement dated
18.02.2005. In the light of the reasons assigned in paragraphs 35 to 40 in the
impugned judgment, we find that no other view is possible and hence for the said
reasons the challenge as raised by the employer to the applicability of the settlement
dated 18.02.2005 to the employees herein does not deserve to be accepted.
We find that the learned Judge of the Industrial Court and the learned
Single Judge have taken into consideration all relevant aspects and have thereafter
found the employees entitled to the reliefs as granted. We do not find any reason
not to affirm those findings.
Question (d) stands answered accordingly.
29. Before parting with the judgment, we place on record our appreciation
for the able assistance rendered by the learned counsel for the parties in their
attempt to substantiate their respective contentions.
30. As a result of the aforesaid discussion, we do not find any reason to
interfere with the judgment of the learned Single Judge in Writ Petition
No. 4996/2009. The letters patent appeal is accordingly dismissed leaving the
41 LPA299.10(j)
parties to bear their own costs.
The amount lying in deposit in this Court with accrued interest be made
over to the representative of the respondent nos.1 to 53 on behalf of all the
respondents after a period of six weeks from today.
JUDGE JUDGE
[
Andurkar..
