JUDGMENT
Srikrishna, J,
1. In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has impugned an order dated 22nd October, 1993 made by the Industrial Court at Bombay in Complaint (ULP) No. 342 of 1988 under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as “the Act”).
2. The petitioner was working as a Fitter in the Ring Department of the New Hind Textile Mills, Bombay, belonging to the first respondent. His service came to be terminated on 1st January, 1981. He filed an application before the Labour Court alleging that he was a permanent employee and that his service had been dispensed with by way of retrenchment contrary to the provisions of Section 25-F of the Industrial Disputes Act, 1947.
3. The petitioner sought the relief of reinstatement in service with full back wages. His Application (BIR) No. 7 of 1981 before the Labour Court was allowed by the Labour Court, which directed reinstatement of the petitioner in service with continuity and full back wages.
4. Being aggrieved by the said order, the first respondent challenged the order by its Appeal (IC) No. 60 of 1986 before the Industrial Court, Maharashtra, Bombay, under Section 84 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as “the BIR Act”). The said appeal was dismissed by the Industrial Court by its order dated 30th January, 1987. In the order dismissing the appeal, the Industrial Court specifically came to the conclusion that the contention of the first respondent that that petitioner had been employed in service only as a temporary workman in connection with the work of erection of Warp Ring Frames and Weft Frames, was untenable and rejected it. The learned Judge of the Industrial Court noticed that a copy of the appointment letter of the petitioner had not been placed on record to substantiate the defence of the first respondent that the petitioner was employed as a temporary employee. He also considered the totality of the evidence on record. After assessing all relevant circumstances, the Industrial Court recorded a clear finding and observed (vide paragraph 10) :-
“… After making a re-appraisal of evidence on record, I have come to the conclusion that the appellant’s (first respondent) defence viz., applicant (petitioner) was appointed as a temporary hand for a specific work is without any basis. At least there is no evidence having the character of compelling acceptance to substantiate the said defence”.
Thereafter, the learned Judge of the Industrial Court came to the conclusion that the termination of the petitioner’s service with effect from 1st January, 1981 was illegal, being violative of the mandatory requirements of section 25-F of the Industrial Disputes Act, 1947. The Industrial Court, therefore, confirmed the order of the Labour Court and dismissed the appeal. It is to be noticed here that the contention raised by the first respondent before the Industrial Court in appeal was that the petitioner had been engaged as a temporary hand for carrying out the specific job of erection of certain machinery and, the said job having come to an end, the petitioner service had come to an end by the expiry of the work, for which he was engaged. This defence put forward by the first respondent was considered and categorically rejected by the Industrial Court. In other words, the Industrial Court was of the view that the first respondent was not a temporary employee and, therefore, the manner in which his service had been discharged was contrary to law. It is on account of this reasoning that the Industrial Court upheld the order of reinstatement of the petitioner in service with continuity and full back wages.
5. After the said order of the Industrial Court dated 30th January, 1987, the petitioner was called and taken back in service with effect from 6th April, 1987. It is the case of the petitioner that, though he was taken back in employment, he was not taken back as a permanent employee and that the first respondent continued to treat him as a temporary workman.
6. The petitioner continued to work for some time, and his entreaties to treat him as a permanent employee having failed, on 15th February, 1988, the petitioner filed a Complaint (ULP) No. 342 of 1988 before the Industrial Court under Section 28 read with Items 9 and 10 of Schedule IV of the Act. The case made out in the complaint was that the petitioner ought to be deemed to be a permanent employee from the date on which he had completed 240 days. It was contended that his status as a permanent employee had already been adjudicated and decided by the Industrial Court by its order dated 30th January, 1987 made in Appeal (IC) No. 60 of 1986. It was also contended in the complaint that there was an agreement between the representative union and the Mill Owner’s Association, acting on behalf of the textile mills in Bombay, under which temporaries and badlies were to be made permanent after completion of 240 days of work.
7. Once again, in its written statement filed by the first respondent, the story that the petitioner had been engaged temporarily “in connection with the erection of machinery in the Warp Ring Frame Section”, was pleaded. It was further pleaded that the petitioner’s service was terminated on 13th December, 1980 because the said work had come to an end. It was admitted in the written statement that the petitioner’s Application (BIR) No. 170 of 1981 had been allowed by the Labour Court by its order dated 14th April, 1986 and that the first respondent’s Appeal (IC) No. 60 of 1986 had been dismissed by the order of the Industrial Court dated 30th January, 1987. The first respondent pleaded.
“… The respondent states that after disposal of the said appeal, the respondent have decided to implement the order dated 15-4-1986 of the Hon’ble Ninth Labour Court, Bombay and accordingly, the complainant was reinstated in his post of temporary fitter and he was also paid the back wages as per the said order”.
8. A careful perusal of the written statement dated 14th September, 1988 filed by the first respondent does not show that any legal objection as to the tenability of the complaint was raised, though, on merits, the claim was contested by the defence indicated in the written statement. On 17th February, 1989, the first respondent’s Advocate filed draft of issues to be framed for the trial of the complaint. The said draft issues are at pages 76 and 77 of the writ petition and, even therein, no issue as to the tenability of the complaint was raised.
9. The Industrial Court tried the complaint and dismissed the complaint by its order dated 30th January, 1987, which is impugned in the present writ petition.
10. The Industrial Court appears to have framed the following points for its determination and answered them as under :-
“1) Does the complainant (petitioner) prove that the respondent has shown favouritism or partiality to one set of workers regardless of merits within the meaning of Item 5 of Schedule IV of MRTU and PULP Act ?
2) Does the complainant prove that the respondent employs the employees as badli/casual and temporary and continue them as such for years with the object of depriving them of their status and privileges of permanent employees and thereby committed unfair labour practice within the meaning of Item 6 of Schedule IV of the MRTU and PULP Act ?
3) Does the complaint prove that the respondents have failed to implement award, settlement, agreement or standing orders and hereby committed unfair labour practices within the meaning of Item 9 of Schedule IV of the MRTU and PULP Act ?
4) Whether the complainant is entitled to permanency with retrospective effect as soon as he has completed 240 days of continuous service and the difference of wages and entitled to file the complaint ?
5) Does the complainant prove that the respondents have indulged in lot of force or violence and thereby committed unfair labour practice within the meaning of Item 10 of Schedule IV of the MRTU and PULP Act ?
6) Whether the complaint is barred by limitation ?
7) What orders ?
11. My findings on the aforesaid points are as under for the following reasons :
1) No; 2) No; 3) No; 4) No; 5) does not prove. 6) No; and 7) As per the final orders”.
11. A perusal of the issues framed by the Industrial Court does not indicate that it was trying the issue as to the maintainability of the Complaint on any ground whatsoever. I am informed by Dr. Kulkarni, learned Counsel appearing for the petitioner, and there appears to be no reason not to accept his statement, for none has appeared on behalf of the first respondent, that the parties had filed written arguments in support of their respective cases before the Industrial Court, and that, in the written arguments filed by the first respondent also, there was no ground urged as to the maintainability of the complaint under the provision of the Act. Dr. Kulkarni brought to my attention a grievance of this effect made in Paragraph 5 of this writ petition. There is no return denying these facts and, therefore, there is no reason why they cannot be accepted as correct.
12. It is strange that the learned Judge of the Industrial Court dismissed the complaint on the ground that the claim of the petitioner for permanency was not tenable, because the complainant had not filed the complaint through the representative union. The most liberal view that can be taken in the matter is that the learned Judge misread and misunderstood the case required to be tried in the complaint before him. Although a copy of the Industrial Court’s earlier order dated 30th January, 1987 had been filed at Exhibit ‘B’ to the complaint, strangely the Industrial Court observes in paragraph 12 of the impugned order :-
“. It is not clear from the record whether the complainant is permanent or temporary. In that respect, no document is place on record, but it is clear from the affidavit of the Production Manager that the complainant was a temporary fitter and he cannot claim for permanency in the lower post of fitter mazdoor”.
Further, in paragraph 13 of the impugned order, dealing with Issue No. 2, the Industrial Court observes :-
“…. It means that the complainant was fully aware about the Labour Court order dated 15-4-1986 and the Industrial Court’s order dated 30-1-1987 for reinstatement as temporary. It is observed from the Court’s order that the status of the complainant is not decided”.
In my view, the observations of the Industrial Court in paragraph 10 of the appellate order dated 30th January, 1987 were clear and needed no gloss to understand them.
13. But shortly, the case of the petitioner in the complaint was :
(i) that, despite completion of 240 days’ working, he had not been given the status of permanency as mandatorily required under Model Standing Order No. 4-C.
(ii) that the status of permanency was not granted to him, inspite of an agreement between the representative union and the representative of employer and Mill-owners’ Association that temporary and badlies who had completed 240 days working should be made permanent.
(iii) that, in any event, the Industrial Court’s Appellate Order dated 30th January, 1987 had clearly rejected the contention of the first respondent that the petitioner had been engaged on a temporary basis and, consequently, it must be held as a direct implication of the said order that the petitioner was a permanent workman.
Surprisingly, there seems to be non-application, or at any rate, misapplication, of mind to these three crucial aspects of the matter.
14. On the issue of model standing orders being applicable, the learned Judge holds in paragraph 30 of the impugned order as it being contrary to the provisions of Section 40-A of the BIR Act. He has also completely misunderstood the observations of this Court in the judgment of Anjani Kumar Co. Ltd. v. Manubai Kashinath & Ors. (1989 II LLN 154). In fact, having referred to the said judgment and certain observations made therein, the learned Judge has held exactly contrary to what was decided therein. It is worthwhile reiterating that in Anjani Kumar’s case (supra), this Court held that, because of the provision of Section 40-A of the BIR Act, Model Standing Orders made and notified by the State Government in respect of any additional matter included in Chapter I of the BIR Act or any alteration made in Schedule I on and after the date of commencement of Bombay Industrial Relations (Amendment) Act, 1977, shall, unless the said Model Standing Orders are held by the Commissioner of Labour to be less advantageous to the employees than the corresponding Certified Standing Orders applicable to them, also apply in relation to such employees. Schedule I was amended by addition of Item 14 by the Amending Act Maharashtra 47 of 1977 adding the words “Employment or re-employment of probationers or badlies or temporary or casual workmen, and their conditions of service” in the item. Model Standing Order 4-C provides :-
“A badli or temporary operative which has put in 240 days uninterrupted service in the aggregate in any other undertaking during the period of preceding twelve calendar months shall be made permanent in that undertaking by an order in writing signed by the Manager or any person authorised in that behalf by the Manager, irrespective of whether or not his name is on the muster roll of the undertaking throughout the period of the said twelve calendar months.
Explanation :- For the purpose of this clause any period of interrupted service, caused by cessation of work which is not due to any fault of the operative concerned, shall not be counted for the purpose of computing 190 days or 240 days or, as the case may be, for making a badli or temporary operative permanent”.
15. Referring to the observations made by the Industrial Court in paragraphs 19 to 23 of the impugned order, Dr. Kulkarni urged that, though the reasoning is completely misconceived, perhaps the benefit of doubt should go to the learned Judge of the Industrial Court, as the text of the Model Standing Order 4-C notified by the appropriate Government in exercise of its powers under the BIR Act, is itself defective. He, however, urged that the interpretation given to this Standing Order by the Industrial Court is likely to create confusion and distort the real intent behind the salutary provision made in framing the said Model Standing Order. He brought to my notice that some amendments were simultaneously carried out in the Central Act, viz., the Industrial Employment (Standing Orders) Act, 1946, and a similar Model Standing Order was also framed thereunder, a conspectus whereof makes the intention very clear. After having perused the corresponding Model Standing Order 4-C framed under the Bombay Industrial Employment (Standing Orders) Rules, 1959, it appears to me that the contention urged by learned Counsel is correct and needs to be upheld. In my view, this is a case where, inspite of the obvious difficulty brought to the notice of the Court, the Court should not throw up its hands in helplessness, but act decisively to resolve the difficulty. In the ringing words of Denning, L.J., the duty of a Judge is :
When a defect appears a Judge cannot simply fold his hands and blame the draftsmen. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give ‘force and life’ to the intention of the legislature. A Judge and should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases”.
Observation of Denning, L.J., in Seaford Court Estates Ltd. v. Asher, (1949 2 All ER 155) referred to with approval by the Supreme Court in Bangalore Water Supply v. A. Rajappa, . The Judge has to discharge the onerous duty of ascertaining the intention of the law-maker, which may be obscure due to error in draftsmanship. In the words of the Privy Council.
“At times the intention of the legislature is clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language. Since Courts strongly lean against reducing a statute to a futility, it is permissible in such cases to reject the surplus words to make the statute effective and workable”.
Salmon v. Duncombe, (1886) 11 AC 627 (PC), the House of Lords, approving the above observations of the Privy Council in Salmon’s case, observed :-
“It is a very serious matter, stated Lord Hobhouse, to hold that when the main object of the statute is clear it shall be reduced to a nullity by the draftsman’s unskilfulness or ignorance of law’, and proceeded to add : ‘It may be necessary for a Court of justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity or the absolute intractability of the language used”.
See, in this connection, Mc Monagle v. Westminster City Council, (1990) 1 All E.R. 993.
16. Model Standing Order 4-C added in Schedule I to the Bombay Industrial Employment (Standing Orders) Rules, 1959, framed under the provision of the Industrial Employment (Standing Order) Act, 1946, reads as under :-
“4-C. A badli or temporary workman who has put in 190 days’ uninterrupted service in the aggregate in any establishment “uninterrupted service” in the aggregate in any other establishment, during a period of preceding twelve calendar months, shall be made permanent in that establishment by order in permanent in that establishment by order in writing signed by the Manager, or any person authorised in that behalf by the Manager, irrespective of whether or not his name is on the muster roll of the establishment throughout the period of the said twelve calendar months.
“Explanation :- For purpose of this clause any period of interrupted service, cause by cessation of work which is not due to any fault of the workmen concerned, shall not be counted for the purpose of computing 190 days or 240 days, or, as the case may be, for making a badli or temporary workman permanent”.
A perusal of this Standing Order shows that 190 days’ uninterrupted service in the aggregate in any establishment of seasonal nature is sufficient for permanency of badli or temporary workman. In the case of “other establishment”, a non-seasonal establishment, the period of service requisite to qualify for permanency is 240 days’ uninterrupted service in the aggregate. I am satisfied that this was the exact result sought to be achieved by Model Standing Order 4-C under the BIR Act also. However, on account of error in drafting, an obvious lacuna is left in Model Standing Order 4-C under the BIR Act. This conclusion gets fortified by a look at the explanation. The explanation is identical in both cases. The explanation in the Model Standing Order under the BIR Act makes pointed reference to computing of 190 days for making a badli or temporary operative permanent. Interestingly, in the substantive provision, there is no reference at all to 190 days. The reference is only to putting in of 240 days’ uninterrupted service in the aggregate in “any other undertaking” during the period of preceding twelve calendar months. If the substantive provision does not make reference to 190 days’ uninterrupted service for making a badli or temporary employee permanent, it is obvious that the explanation cannot. This appears to be a case of a slip between the cup and the lip. Starting with the intention that both concerned Model Standing Orders should produce the same legal result, the legislative draftsman has, by an error somewhere along the line, omitted the words “in any establishment of a seasonal character”, which were material and had to be kept intact in the substantive portion of Model Standing Order 4-C under the BIR Act, as that is the only occasion for making of a badli or term porary operative permanent upon the completion of 190 days. The words “in any other undertaking” would then obviously mean an undertaking other than a seasonal undertaking, such as in the present case. In my view, therefore, the word “other” used in the existing Model Standing Order 4-C under the BIR Act should be understood in this context or be Ignored totally when considering the case of a non-seasonal undertaking. This is the only rational way in which the said Model Standing Order 4-C can be construed, so that the intended benefits to the workmen are not defeated by too literal a construction. That statutes should not be construed in a manner leading to absurd results defeating the legislative intent, is a canon of interpretation widely accepted.
Thus, in my view, though the learned Judge erred by literally construing Model Standing Order 4-C to the point leading to an absurdity, it would not be possible to fault him, as he has carefully read the text of the Model Standing Order and applied it.
17. Dr. Kulkarni fairly conceded that there was no registered agreement between the representative union in the Cotton Textile Industry and the representative of employers, under which it was provided that the workmen would be made permanent upon the completion of 240 days’ aggregate service. I, therefore, need not consider the said contention.
18. Considering the matter from all angles, I am of the view that the impugned order is erroneous, arises on account of a misdirection in law and needs to be interfered with and corrected in the exercise of this Court’s prerogative power under Articles 226 and 227 of the Constitution of India.
19. In the result, the writ petition is allowed. The impugned order of the Industrial Court dated 22nd October, 1993 made in Complaint (ULP) No. 342 of 1988 is hereby quashed and set aside. It is held that the petitioner was entitled to reinstatement as a permanent employee as a consequence of the Industrial Court’s Order dated 30th January, 1987 made in Appeal (IC) No. 60 of 1986 and further that the first respondent, by not giving the petitioner the status of permanency and the consequential benefits, has engaged in an “unfair labour practice’ within the meaning of Item 9 of Schedule IV of the Act. I am informed by Dr. Kulkarni that the petitioner has retired from service with effect from 15th July, 1991. He will therefore, be entitled to the monetary benefits, if any, which may accrue as a result of his being treated as a permanent employee from 30th January, 1987. The aforesaid benefits shall be made available to the petitioner within a period of three months from today, failing which they shall carry simple interest at 12% per annum, apart from other legal consequences.
20. Rule, accordingly, made absolute. The first respondent to pay the costs of this writ petition quantified at Rs. 500/-.
21. Certified copy expedited.