Posted On by &filed under Bombay High Court, High Court.


Bombay High Court
Burroughs Welcome (I) Ltd. vs D.H. Ghosle And Ors. on 10 August, 2000
Equivalent citations: 2000 (87) FLR 740, (2001) IIILLJ 57 Bom
Author: D Chandrachud
Bench: D Chandrachud

JUDGMENT

D.Y. Chandrachud, J.

1. These two petitions challenge the validity of an order passed by the Industrial Court in a Complaint, being Complaint (ULP) No. 834 of 1996, filed by 17 employees under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (“The Act”). In Writ Petition No. 1661 of 2000, the Petitioner before the Court is the employer, while in the companion petition, being Writ Petition (Lodging) No. 1628 of 2000, the Petitioners before the Court are the 17 employees. The employer is aggrieved by the direction to the effect that the complainant-employees be absorbed in service within two years as permanent employees. The employees are aggrieved by the finding of the Labour Court, that there was no unfair labour practice committed by the employer specifically in keeping the workers as temporary employees for several years. The complaint before the Industrial Court was filed with reference to Items 6, 9 and 10 of Schedule IV of the Act, and had been disposed of by the Judgment dated June 27, 2000 of the Industrial Court which is impugned in these proceedings.

2. On August 12, 1996, the Respondents (in the first petition) filed a complaint in the Industrial Court. Briefly stated, the complaint recites that the Petitioner is a manufacturer of pharmaceutical products ranging from Septran to Sudafed, from Neosporin powder to Eye and Ear Drops. The Complainants before the Industrial Court stated that they were working with the employer since 1983. For nearly 12 years they had been asked to work as casuals or temporary employees and they were being exploited. The work which was done by them was the same job and work which was also done by permanent employees. The Complainants stated and this appears to have been an admitted position as the evidence would disclose, that while the complainants were paid Rs. 1500/-per month, the permanent workmen doing jobs of the same kind or of a similar nature were drawing about Rs. 4,500/- per month. The complainants stated that they were denied the benefits and facilities provided to permanent workmen though they had been working for years together. They were given artificial breaks in service merely in order to ensure that they should not make a claim for permanency. In these circumstances, it was alleged that the employer had committed a breach of Item 6 of Schedule IV of the Act. The conduct of the employer in not paying the workers the same wages and benefits as allowed to permanent workmen, was alleged to constitute a breach of the provisions of Items 9 and 10 of Schedule IV of the Act. In the context of these factual averments, a declaration that the employer had been indulging in an unfair labour practice and a direction to cease and desist therefrom, was prayed for. Exhibit – A to the complaint contains the dates, with reference to each employee, since when he had been working with the employer as a temporary employee. These dates range from 1983 in the case of 5 employees, 1984 in the case of 8 employees and 1986 in the case of 4 employees.

3. The employer filed a Written Statement denying that the workman had been employed as casuals or temporaries with the object of depriving them of the status and privileges of permanent employees. The case of the employer on affidavit was that the workmen had been employed from time to time to meet temporary increases in the sales demand of the products of the company. According to the employer, this demand may be due to general ill-health amongst the masses during a particular season on account of “climate change, breaking of any epidemic etc.” In other words, the defence was that temporary man power was employed for a specific period to meet the exigencies of work and the sanction for the employment of such temporary workers was granted by the Company for a specified period upon the requisition of a concerned department. The employer contended that between 1982 and 1995, 78 workmen who had earlier worked as temporaries have been absorbed as permanent workers and the Company had, since its inception, regularised the services of 256 workmen. As regards the grievance of the workers that they have been deprived of the benefits payable to permanent workers, it was stated that permanent workers are governed by the Settlements which do not apply to the temporary workmen.

4. Evidence was adduced before the Industrial Court on behalf of the Complainant -workmen as well as by the employer. It would be necessary to consider the evidence which was adduced at some length later, not with a view to reappreciate the evidence given the limited parameters of judicial review in such cases, but with a view to consider whether the Industrial Court had, at all, had regard to the evidence before it. By an order dated June 27, 2000 the Industrial Court came to the conclusion that the workers had not completed 240 days’ service in the years that they had worked. The Court, however, did take notice of the fact that the workers had been working since 1983, 1984 and 1985 temporarily and on ad hoc basis in accordance with the exigencies of the work. In view of its finding that the workers had not completed 240 days of service, the Industrial Court came to the conclusion that no unfair labour practice was committed by the employer under Item 6 of Schedule IV of the Act. In para 35 of its judgment, the Industrial Court seems to have proceeded on the basis that the completion of 240 days was a sine qua non of a valid claim under Item 6. The relevant finding of the Industrial Court in para 35 of its judgment may be adverted to because a fair bit of submission of the learned Counsel has been founded on it. In that para, the Industrial Court held as follows:-

“From the above details in respect of each of the complainants about their working days in each year for 1983 to 1996, it is crystal clear that none of the complainants have worked for more than 240 days in a particular year. Normal rule is that before filing the complaint, the complainant has to work continuously for more than 240 days in the preceding 12 months. But it does not appear from the statement filed on record mentioned above in case of the complainants. It is also strange to note that there is no pleading of the complainants that they have worked for more than 240 days continuously in each and every year. The record shows that they have been employed temporarily as per the exigency of work. However it is not in dispute that since 1983, 1984 and 1985 onwards these 17 complainants have been working temporarily and on ad hoc basis as per the exigency of work. Therefore I am of the opinion that the Respondents have not engaged in unfair labour practice as alleged, under Item-6 of Schedule IV of the Act.”

The Industrial Court, thereafter, held that there was no failure to implement any award, settlement or agreement and that no breach of either of Item 9 or Item 10 of Schedule IV of the Act had been made out. Having held thus the Industrial Court directed the employer to absorb the complainant-workmen within two years as permanent employees. The Industrial Court did so on the rationale that it could not be ignored that since 1983 onwards the workmen have been working with the employer as and when the work was available. Between 200 to 250 employees who had earlier worked as temporaries, had been absorbed. In directing the absorption within a period of two years, the Industrial Court relied upon an order passed by a Learned single Judge of this Court in Writ Petition No. 4578 of 1990. Consequently, the Industrial Court directed that in terms of the Order passed by this Court in the aforesaid Writ Petition, the employer shall confirm the complainants in two batches; the first of 10 workers and the second of 7 workers within a period of two years.

5. Two Writ Petitions, as stated earlier, have been filed in this Court under Article 226 against the Order of the Industrial Court. The employer contends that in view of its express finding that there was no unfair labour practice, the Industrial Court could not have directed the absorption of the workmen. The workmen in their Writ Petition challenge the finding of the Industrial Court that no unfair labour practice was committed by the employer.

6. In dealing with the Judgment of the Industrial Court and the submissions urged at
the Bar, the matter may be looked at from two perspectives; firstly, the length of service rendered by the workers and, secondly, whether there was any circumstance on the record to establish that the workmen had been engaged as temporaries with a view to deprive them of the benefits which accrued to permanent workmen. Item 6 of Schedule IV of the Act reads thus:-

“To employ employees as ‘badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees.”

Item 6 of Schedule IV of the Act makes it an unfair labour practice to employ workers inter alia as temporaries and to continue them for years together with the object of depriving them of the status and privileges of permanent employees. In other words, the foundation and basis of Item 6 is not merely the employment of temporary workers but that their employment as such must be with the object of depriving them of the benefits conferred upon permanent employees. This position emerges from the language of Item 6 itself but, that has also been interpreted by a learned single Judge of this Court (V. S. sIRPURKAR, J.) in a Judgment in Punjabrao Krishi Vidyapeeth, Akola v. General Secy, Krishi Vidyapeeth Kamgar Union reported in 1994 Vol ICLR 913. In para 7 of his Judgment, the learned single Judge has held that undoubtedly the continued practice of employing the workers for years together as casuals or temporaries would tend to point out such an object being present in the mind of the employer but that, by itself, would fall short of an unfair labour practice under Item 6 of Schedule IV 9f the Act. It must be noted that in the case before the Learned Single Judge at issue were the provisions of Section 50-B of the Punjabrao Agricultural University (Krishi Vidyapeeth) Act, 1968 which created a complete embargo on the powers of the University to create new posts except with the sanction of the State Government. Since the University was powerless to create a new post without sanction of the Government, the learned single Judge held that the mere continuation of employees as temporaries did not amount to an unfair labour practice under Item 6 of Schedule IV of the Act.

7. The interpretation to be placed on the provisions of Item 6 of Schedule IV of the Act has been considered by the Supreme Court in Chief Conservator of Forests and Anr. v. Jagannath Maruti Kondhare . In the matter which arose before the Supreme Court for its consideration, the factual background was that the Respondent-workmen had admittedly been in the employment of the State for between 5 to 6 years and had worked in each year for periods ranging between 100 days to 330 days and in issue was a claim of casual employees for permanency in employment. On behalf of the Employer-State, it was sought to be argued that under Item 6, it was not enough to establish that the workers had been engaged as temporaries for several years but the burden lay on the workmen to establish that the object of continuing them for years was of depriving them of the status and privileges of permanent employees. Mr. Justice B.L. hANSARIA, speaking for the Bench of the Supreme Court, held that if a burden was to be placed on the workmen which could not be reasonably discharged, namely, the burden of establishing that they had been engaged as temporary workmen for years to deprive them of the status and privileges of permanent employees, the salutary provisions of the Act would be thwarted and frustrated. Consequently, the Supreme Court held that when a complaint arises under the provisions of Item 6 of Schedule IV of the Act, a broad realistic view would have to be taken and if the circumstances so warrant, an inference would have to be drawn as regards the object for which employees had been kept as temporaries for years together. In para 22 of the Judgment, the Supreme Court held thus:-

“22. We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a ‘ case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent, We would say the same about environment-pollution-care work of Ahmednagar, whose need is on increase \ because of increase in pollution. Permanency is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. We, therefore, answer the second question also against the appellants.”

The Judgment of the Supreme Court in Kondhare’s case (supra) is thus a clear authority for the principle that while it is true that it is not a mere employment for years together that” constitutes an unfair labour practice under Item 6 of Schedule IV of the Act, whether or not the engagement of temporary persons for years together was with the object of depriving them of the status and privileges of permanent employees, can be a matter of inference based on the circumstances on the record. The object of the employer is ultimately a matter of subjective evaluation which can only be present in the mind of the employer. Consequently, the establishment of the object of keeping temporaries as such for years together cannot be stretched to unreasonable limits because if that were to be done, the whole purpose and spirit of the Act would be defeated. Therefore, in every case in which there is an allegation of a violation of Item 6 of Schedule IV of the Act, the Court must make a realistic appraisal of the circumstances on the record for the purpose of evaluating whether the object of the employer came within the mischief of Item 6. The length of service which is rendered by the employees as temporary workers, the difference, if any, between the benefits allowed to temporary workers as opposed to permanent workers, the nature of the work which is being performed by the temporary workers and the nature of the business of the employer; these are the circumstances which may be of relevance in arriving at an inference in regard to the object of the employer in employing temporary or casual workers. As in other areas, it would be hazardous to the Court to attempt an exhaustive enumeration of the circumstances which would be relevant fcr an analysis of Item 6 and ultimately each case will have to be considered on its own facts.

8. In the present case, the Industrial Court initially in paragraphs 18 to 34 of its order gave the facts relating to each individual worker who had moved the Court. The extent of service of the workers was adverted to. The workers, as already stated earlier, had been working since 1983, 1984 and 1985; the extent of work which was rendered varied from year to year. As and by way of illustration, the facts relating to Respondent No.     1 herein may be extracted from the Judgment of the Industrial Court in para 18 as follows:-
 "Complainant Shri D.H. Ghosale has worked for 112 days in the year 1983, for 155 days in the year 1984, for 152 days in the year 1985, for 179 days in the year 1986, for 199 days in the year 1987. For 123 days in the year 1988, for 125 days in the year 1989, he has not worked for the year 1990 at all. Further the complainant Shri Ghosale has worked for 114 days in the year 1991, for 80 days in the year 1992, for 71 days in the year 1993, for 145 days in the year 1994, for 79 days in the year 1995 and for 74 days in the year 1996."
 

The worker had worked for durations of varying nature, the maximum being 199 days in 1987 and the minimum, 71 days in 1993. In 1990 the worker has not rendered any work. The facts relating to all the workers, however, do evidence that in 1996. the year in which the complaint was filed, work was taken and rendered up to the date of filing of the complaint which was August 12, 1996. After the complaint was filed, the Management, did not engage any temporary workers but employed workers from another Division to do the work. The work did not cease, but the temporaries who had asserted their legal rights were excluded. The Industrial Court on the basis of the actual work which was rendered by each one of the 17 workmen cane to the conclusion that none of them had rendered work for 240 days. In the extract of its judgment which has already been adverted to earlier, it is clear that the Industrial Court seems to proceed on the basis that the “normal rule” is that before a complaint is filed, the complainant must work for more than 240 days. The Industrial Court found it “strange to note” that there was no pleading on the part of the complainants that they had worked for more than 240 days in each and every year. The reason why the Industrial Court brought in the issue of the 240 days may be partly due to the fact as submitted by the Learned Counsel appearing on behalf of the employer that cases relating to 240 days rule were cited before the Court but, be that as it may, there can be no manner of doubt that in applying the requirement of 240 days work, the Industrial Court fell into a serious error. Item 6 of Schedule IV of the Act refers to a case where persons are employed as badlis, casuals, or temporaries for years together with the object of depriving them of the status and privileges of employees. Item 8 has no reference at all to a requirement of 240 days work and the Learned Counsel appearing on behalf of the employer did not seriously controvert the position that the requirement of 240 days work is neither expressly nor implicitly a part of Item 6 of Schedule IV. The Industrial Court, in the circumstances, applied a standard or test which is clearly extraneous to Item 6 of Schedule IV which renders its Judgment unsustainable in the present case. In seeking to read the requirement of rendering work of 240 days, the industrial Court had read into the provisions of the Act, and specifically Item 6 a requirement which has not been incorporated by the Legislature. This is impermissible but particularly more so in the case of labour welfare legislation where the court ought not to, by introducing conditions which had not been inserted by the legislature, impose additional burdens to the grant of relief of those for whom the legislation was intended. In my view, therefore, the very foundation of the order of the Industrial Court is, thus, unsustainable.

9. The Learned Counsel appearing on. behalf of the employer, however, adverted to the last three sentences in para 35 of the Judgment of the Industrial Court in which it was recorded that since 1983, 1984 and 1985, the 17 complainants had been employed temporarily on an ad hoc basis as per the exigency of work. It was sought to be urged that in this view, independent of the finding as regards the requirement of 240 days, the Industrial Court had reason enough to hold that there was no violation of Item 6 of Schedule IV of the Act. In considering the correctness of this submission, regard must be had to the evidence on record which unfortunately has not been considered by the Industrial Court. In para 16 of the Judgment of the Industrial Court, there is a brief reference to the evidence tendered on behalf of the workers by two employees while in para 17 there is again a brief reference to the evidence tendered on behalf of the employer. In this background, reference may be made to material evidence which has not been adverted to at all and has not even been discussed. The 1st witness for the employees was Shri Mahesh Mahimkar who is the 2nd Respondent in the 1st petition and one of the Complainants before the Industrial Court. He deposed to the fact that in 1983 there were about 800 to 900 permanent workmen, while when the complaint came to be filed this figure was reduced to 500 to 600 workmen. The witness stated that there were, vacancies in the company but the Respondent Company is not going to give the status of permanency as Company wants to take more work in less ‘pay’ from the temporary workers. The witness stated that after the complaint was filed, the employer had stopped allotting work to the temporaries and was getting the same work a was done by them through the workmen of the Chemical Division of the Company. In cross-examination, the witness was sought to be confronted with the voluntary retirement scheme which had been framed by the Company, He was asked as to whether he knew that permanent employees were drawing a salary in accordance with a settlement with the Union. The 2nd witness for the workmen was Yogendra Dalvi, Respondent No. 11 in the 1st Petition. The witness deposed to the dates on which the workmen had joined initially and stated that all of them were working in the manufacturing process. The witness stated that the nature of the work performed by the temporary workmen was similar to the work of permanent employees. He stated that the nature of the work was permanent. Yet while the temporary workmen were being paid a daily wage of Rs. 61/- per day, the permanent employees were drawing a minimum of Rs. 4500/- per month. The witness was cross-examined, inter alia, in regard to the manner in
which the services of temporary workmen were requisitioned and the manner in which their salaries were disbursed.

10. In so far as the witness for the employer was concerned, he was a Production Manager, Shri Vilas Yashwant Nevrekar. The witness deposed to the fact that there used to be a temporary increase in production due to temporary sales demand of certain products of the Company. He, therefore, stated that the concerned departmental heads would give requisitions for temporary appointment giving details of the requisition and the period for which temporary workers were required. The witness stated in his evidence that when permanent posts were filled in, certain temporary employees were regularised as and when vacancies arose. According to the witness, temporary employees were not covered by the settlement which was entered into by the employer with the Union, but he admitted that Certified Standing Orders were applicable to the permanent employees as well as to the casuals and temporary workmen. The witness admitted that the workmen had been engaged since 1985 as temporary workmen from time to time; while the strength of permanent employees was around 700 in 1985 it was reduced to 525 in 1999, though the turnover of the Company in 1998 was higher than that in 1996. Since the case of the Management was that temporary workmen had been engaged to deal with a seasonal increase in the sales demand, the witness was sought to be questioned on what was the nature of the increase in demand. In para 10 of his cross-examination the witness however admitted that he could not state in which season the products of the Company were in greater demand and stated that it was difficult to explain the same. The witness for the employer admitted that no leave benefits were extended to the complainant- workmen. He admitted that the complainants were working in different departments on the packing line and that from time to time permanent workers were also working on the packing line. He further admitted that in 1996 permanent workers working on the packing line were drawing emoluments of Rs. 4500/- to Rs. 5000/- per month. In addition to this, the witness admitted that the complainants may be drawing Rs. 1500/- in 1996 as they were merely employed on daily wages. The witness admitted that no benefits enjoyed by the permanent workers were extended to the complainants. A suggestion to the effect that the workers had been kept temporaries for years together on daily wages in order to deprive them of a right of permanency, was put to the witness but it was denied.

11. Unfortunately, the Industrial Court did not discuss the clear evidence which had emerged from the record in any manner at all. Para 16 contains a brief reference to the evidence of the witness for the workmen and para 17 another brief reference to what was deposed to by the witness for the employer. Perhaps the Industrial Court did not consider it appropriate to discuss the evidence in view of its conclusion that the complainants were disentitled to the reliefs not having completed 240 days. As I have stated earlier, the fact that the complainants had not completed 240 days in a year was a consideration which was not germane to Item 6 of Schedule IV of the Act and the Industrial Court fell into a serious error in declining to grant relief on that basis.

12. This Court must be conscious of the fact that in the exercise of its writ jurisdiction under Article 226, there are limitations on the scope of its power to reappreciate or re-evaluate the evidence. But at the same time, in a case where the Industrial Court applies a palpably wrong test in law in interpreting an entry relating to an unfair labour practice, and ignores the material evidence, the Court, in my view, would be justified in having regard to the evidence particularly when a failure to do so has led to a serious and manifest failure of justice in the Industrial Court. The admitted facts are that the workers had been working for long years, since 1983 in the case of some, and 1984 and 1985 in the case of others. Unquestionably as was submitted by the Learned Counsel appearing on behalf of the employer, the length of service varies from year to year and there may be a certain time where the company did not consider it fit to engage temporaries at all. These considerations, however, do not detract the consistent pattern, when an overview is taken, which is that the employer in the present case did require services of the workers over long years. These workers were engaged over a long period of time well over a decade. The work which had been done by the temporary workers was identical to the work which had been done by the permanent workers. Permanence was writ large on the type of work. There was a great disparity in the emoluments of permanent workers as opposed to the temporary workers. The benefits allowed to permanent workers were not granted to the temporary workers. Whereas the permanent workers who did the same jobs, received a salary between Rs. 4500/- and Rs. 5000/- per month in 1996, the temporary workers who were on daily wages received a salary of Rs. 1500/- per month or a little more. The wide disparity in the service conditions which were applied to temporary workers as opposed to permanent workers, is eloquent testimony of the fact that this is not an engagement of temporary workers to meet a seasonal increase in sales demand of the products of the Company but an effort to exclude a class of workers to whom the benefits of permanent workmen would not be allowed. The Company sought to justify the disparity in service conditions by stating that the reason why the temporary workers were not given the same emoluments was that they were not covered by the settlement which was entered into by the Union. In a given case it may well be that the Union which represents the permanent workers does not choose to espouse the cause of temporary workers. However, that is no ground for the employer to sustain such a wide disparity. To say that the temporary workers were not given the service conditions of permanent workmen because a settlement did not cover the temporary workmen, would be a mere tautology but not a valid justification. Consequently, in the present case, I have arrived at the conclusion that the evidence on the record is capable of only one conclusion and that is that the workmen in question were continued for several years as temporaries, only with a view to depriving them of the status and privileges of permanent workmen. The Court, in these cases, must have a broad realistic view of the industrial situation and having regard to the principles of interpretation which have been laid down by the Supreme Court in relation to Item 6 of Schedule IV of the Act in Chief Conservator of Forests v. Kondhare (supra) the inescapable conclusion is that the workmen are entitled to relief. An unfair labour practice has been committed by the employer under Item 6 of Schedule IV of the Act.

13. The Learned Counsel appearing on behalf of the Employer is correct in his grievance that once the Industrial Court arrived at the conclusion that an unfair labour practice is not established, it was not open to the Industrial Court to thereafter grant relief to the workmen. Undoubtedly, the foundation of the grant of relief under the MRTU & PULP Act, 1971, is the finding that there has been an unfair labour practice and in a case where there is no finding of unfair labour practice, it would not be appropriate for the Industrial Court to grant the relief particularly since under Section 30 of the Act grant of relief is conditioned by a finding that an unfair labour practice has been engaged on or is being engaged in. The Industrial Court sought to rely upon an order passed by this Court at the interim stage during the pendency of a complaint before the Industrial Court. The order dated October 9, 1990 is annexed at Exhibit-A to the petition. I have, however, upon considering the submissions of the parties at the Bar, as also on a consideration of the entire record of the case, come to the conclusion that there was, in fact, an unfair labour practice which was being engaged in by the employer under Item 6 of Schedule IV. In that view of the matter, the Respondent-workmen are clearly entitled to the relief which they have sought.

14. In the circumstances, Writ Petition (Lodging) No.     1628 of 2000 which has been filed by the Respondent-workmen, is allowed. I am of the view that the Petitioner-Employer is clearly guilty of an unfair labour practice within the meaning of Item 6 of Schedule IV of the Act. The workers are, therefore, entitled to a declaration as sought for in the Complaint filed before the Industrial Court. The Respondent shall, therefore, grant the benefit of permanency to the workmen with effect from August 12, 1996 which was the date on which the complaint was filed before the Industrial Court together with all consequential benefits.
 

15. Writ Petition No.     1661 of 2000 filed by the employer is,  in the circumstances, rejected, though with the clarification issued by the Court as stated earlier.
 

16. The two petitions will consequently stand disposed of in the aforesaid terms. In the premises, there shall be no order as to costs.
 

17. The learned Counsel for the employer in the two petitions seeks for a stay of operation of this Judgment. On the request of the Learned Counsel, operation of the Judgment is stayed for a period of two weeks from today.
 

18. Certified Copy expedited.
 

19. An ordinary copy of this order may be made available to the parties.

 


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