JUDGMENT
D.Y. Chandrachud, J.
1. The Industrial Court has tried a complaint of unfair labour practice under Items 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, (“the Act”), and directed the conferment of permanency in service upon two workmen who formed the subject-matter of the complaint with consequential benefits. The employer has impugned the order of the Industrial Court in these proceedings under Article 226.
2. The first and second respondents who are the complainant-workmen instituted a complaint of unfair labour practice on 17th October, 1996 under Items 5, 6, 9 and 10 of Schedule IV to the Act. The complainants alleged that about 6000 employees were employed by the petitioner besides whom 100 were working in the Head Office at Industrial House, Churchgate, Mumbai. The two complainants were stated to have been engaged by the petitioner with effect from 1975 and 1984 and it was alleged in the complaint that the two workmen had been in uninterrupted service in the establishment at Mumbai until they were transferred to the establishment at Shahad. The complainants alleged that in April, 1996, they were prevented from reporting for duties and were constrained to file a complaint of unfair labour practice. According to them, in order to defeat their claim, the management stated that the workmen were in employment and were directed to report at the establishment at Shahad. According to the workmen, they were employed at Mumbai in the Head Office. According to the complainants, they were discharging duties as helpers/peons and were made to suffer a loss of emoluments to the extent of Rs. 3500/- to Rs. 4000/- per month as compared to other workers working in the same grade. The complainants stated that they were paid poor wages in comparison and though the work which was performed by them was of a permanent nature, they had been engaged as temporary workmen. The complainants submitted that they were in uninterrupted service from 1975 and 1984 respectively and that the conduct of the management in keeping them as temporaries for years together was in violation of statutory provisions and the Standing Orders. The complainants claimed that they are entitled to permanency upon completing 240 days’ service. They alleged that they had not been given the benefit of other service conditions such as leave, sick leave, earned leave, casual leave, bonus and allowances. On these averments, the complainants sought a declaration that the employer had engaged in unfair labour practice under Items 5, 6, 9 and 10 of Schedule IV and sought directions to the management to confer upon them the status of permanent workmen and to pay them the difference between the wages which were paid to permanent workmen.
3. The employer contested the jurisdiction of the Industrial Court at Mumbai to entertain the complaint on the ground that the workmen had been engaged in the factory at Shahad and on the ground that there was a recognised Union in the establishment at Shahad which alone could have pursued the complaint under Section 21 of the Act. According to the management, the Company was a lessee of a godown situated at the Sitaram Mills Compound and upon the expiry of the lease, the premises were handed over to the lessor. The two workmen had been called upon to report for work at Shahad with effect from 31st July, 1996 and 2nd August, 1996. The management alleged that the complainants were temporary workmen and they had no right of permanency “merely because they had been working for long”. The management submitted in its written statement that the work performed by the two complainants was of an intermittent nature and though they were working since long, they were not entitled to permanency in service. The management admitted that the workmen had worked since 1976 and 1984 respectively. But, according to the management, there was no presumption in law to the effect that the workmen had become permanent. The management submitted that the establishment at Shahad has Certified Standing Orders which did not provide for permanency and that consequently, the Model Standing Orders, particularly MSO 4-C which provides for permanency on the completion of 240 days’ of service, were not attracted.
4. Evidence was adduced before the Industrial Court by both the complainant-workmen. On behalf of the management, evidence was adduced of the Godown in-charge and of the Vice President, Purchases. The Industrial Court, by its order dated 11th January, 2000, came to the conclusion on the basis of the evidence that the last drawn wages of the first respondent were Rs. 98/- per day whereas the second respondent was being paid emoluments of Rs. 1872/- per month. All the peons or helpers who were working on a regular basis were being paid about Rs. 7,000/- per month. The admitted facts according to the Industrial Court showed that there was a wide disparity in the wages paid to these workmen and those paid to the workers at the Head Office and the factory. The Industrial Court noted that the workers had worked uninterruptedly for a long period without the benefit of permanency and without being entitled to the facilities which were made available to permanent workers. In the meantime, the services of the two workmen were terminated. Hence by an amendment to the complaint, the complainants were allowed to seek the relief of permanency and consequential benefits upto 12th May, 1999 on which date they were terminated. The Industrial Court has found that there was a breach both of Items 6 and 9 of Schedule IV and held that the two workmen were entitled to the benefit of permanency with effect from 1st January, 1976 and 1st January, 1985 respectively and to consequential benefits on that basis. The objection in regard to the maintainability of the complaint on grounds of jurisdiction and on the ground that the complaint is barred by Section 21 of the Act has been overruled. The employer has challenged the order of the Industrial Court in these proceedings.
5. Counsel appearing on behalf of the petitioner submits that (i) The Industrial Court at Mumbai had no jurisdiction to entertain the complaint inasmuch as the two workmen had been directed to report at the establishment at Shahad; the Industrial Court erroneously recorded the concession of Counsel to the effect that the challenge to territorial jurisdiction was not pressed and that in any event the challenge to jurisdiction could not have been given up; (ii) The case of the employer was that the work on which the complainants were engaged was inherently intermittent and the complainant-workmen failed to demonstrate that they had completed 240 days’ of service in any calender year consequent upon which the plea for permanency ought to have been denied, particularly in the absence of a vacancy; (iii) The godown where the complainant workmen had been engaged had only four employees to which Model Standing Orders were not applicable and the establishment at Shahad was governed by Certified Standing Orders which do not provide for conferment of permanency on the completion of 240 days’ service; (iv) There were no. pleadings and no evidence to sustain the charge that there was a violation of Item 6 of Schedule IV and there was no demonstration of the fact that the workmen had been kept as temporaries for long years with the object of depriving them of the benefits of permanency and (v) The complaint ought to have been dismissed on grounds of limitation.
6. These submissions can now be considered.
7. The question of jurisdiction of the Industrial Court shall be taken up at the outset. In the course of its order, the Industrial Court noted that admittedly, right from the inception of their service (since 1975 and 1984 respectively) the complainants had worked in the godown at Mumbai. One of the two complainants, the first respondent, had also been working at the Head Office at Churchgate, Mumbai. C. W. 1 Mane, one of the two witnesses for the employer deposed in clear terms that the godown was connected with the Head Office. The witness stated that the Store Keeper of the Godown was reporting for duty to the Manager at the Head Office at Churchgate. On the basis of this evidence, the Industrial Court held that the cause of action had taken place within the jurisdiction of the Court. The Industrial Court also recorded that Counsel for the employer had not pressed the issue of territorial jurisdiction. Having heard Counsel appearing on behalf of the Parties, I am of the view that quite apart from the concession that was recorded by the Industrial Court, the finding that the Industrial Court at Mumbai did have jurisdiction has to be sustained. Both the complainant-workmen had worked for long years in Mumbai, one from 1975 and the other since 1984. Their claim inter alia under Items 6 and 9 of Schedule IV was for conferment of permanency. The workmen claimed the benefit of permanency upon the completion of 240 days’ of service which if upheld would fall within the terms of their service in Mumbai. Whether they were justified in that claim, would be considered separately but, for the purposes of jurisdiction of the Court, the Industrial Court was justified in coming to the conclusion that the material circumstances on the record were sufficient to sustain its jurisdiction. The workmen had worked in Mumbai; both of them at the godown while one of them, the first respondent was also, according to the Company’s witness, required to work at the Churchgate Head Office. A plea in regard to territorial jurisdiction has to be taken at the earliest point of time. Section 21 of the Code of Civil Procedure, 1908, provides that no objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earlier possible opportunity and in all cases where issues are settled at or before such settlement, and unless that has been a consequent failure of justice. The provisions of the Code of Civil Procedure, 1908, are strictly speaking not attracted to the trial of a complaint under the Act particularly since industrial adjudication is not hide bound that the exacting rules of procedure which govern civil trial. Nevertheless fundamental principles lie at the foundation of civil procedure are not alien to adjudication before the Industrial Tribunal insofar as they constitute norms of fairness, consistent with natural justice. An employer in the position of the petitioner who, as recorded by the Industrial Court, has not pressed an objection to territorial jurisdiction cannot be heard to contend after full participation in the proceedings before the Industrial Court that that Court had no territorial jurisdiction. The law is well settled. If a concession has been wrongly recorded, the appropriate forum where this should set right is the very Court which records the concession. In a judgment in Roop Kumar v. Mohan Thedani, (2003)6 SCC 595, a Bench of two Learned Judges of the Supreme Court following the earlier decisions of the Court, placed the matter of principle thus :
“If really there was no concession, the only course open to the appellant was to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak, (1982)2 SCC 463. In a recent decision Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003)2 SCC 111 the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts as stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary.”
8. In any event, for the reasons already noted, the Industrial Court clearly did have jurisdiction to entertain the complaint. No prejudice or failure of justice is shown.
9. The correctness of the order passed by the Industrial Court can, in my view, be adjudged from the standpoint of an unfair labour practice in Item 6 of Schedule IV. The unfair labour practice in Item 6 of Schedule IV is as follows :
“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.”
10. Before dealing with the facts of the present case, it would be instructive to refer to the judgment of the Supreme Court in Chief Conservator of Forests v. Jagannath Maruti Kondhare, (1996)2 SCC 293. The Industrial Court in that case had found that an unfair labour practice has been committed because the workmen had been in employment for 5 to 6 years and had worked in each year for a period ranging from 100 to 530 days. On behalf of the State which was the employer, it was sought to be urged before the Supreme Court that it was not sufficient for the workmen to demonstrate that they had been engaged as casuals for years, but the burden was cast on the workmen to establish that the object of continuing them for years was to deprive them of the status and privileges of permanent employees. The workmen submitted that they could not be foisted with the burden of establishing the objective which the employer had in keeping them as casuals for years on an end. Repelling the submission urged on behalf of the employer, the Supreme Court held thus :
“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 on a particular case to draw the interference 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 the Industrial Court of Pune (and 15 to the Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them of 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 Panchgaon 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 the 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.”
These observations of the Supreme Court lay down binding principles for this Court. The principles are : (i) Consistent with the salutary object underlying the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, which is to prevent certain unfair labour practices an unreasonable burden should not be placed on the workmen of establishing the object of the employer in keeping them as badlis, casuals or temporaries for years because the very purpose of the Act would be thwarted and frustrated if this were done; (ii) On the facts of a particular case, it would be permissible to draw an inference in regard to the object of the employer if badlis, casuals or temporaries are continued as such for years; (iii) Where permanency is writ large on the type of the work, the object of the employer in depriving the workmen of the benefits of permanency would manifest itself by keeping persons in such jobs on a casual basis for years on an end. Whether an inference should be drawn in the facts of a given case is a matter which calls for the exercise of judicial discretion. That discretion, like all judicial discretion, has to be exercised judiciously on the consideration of the facts and circumstances of the case. For instance, in Mahatma Phule Agricultural University v. Nashik Zilla Sheti Kamgar Union, 2001 (111) CLR 4, the appeal before the Supreme Court arose out of proceedings in a complaint under Item 6 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The High Court had noted that there were no posts and the employees could not be made permanent by the University. The complaint had been filed not against the State Government which had the power to sanction posts in the case of a statutory University, but against the University itself. The Supreme Court held that since the inaction in creating permanent posts was on the part of the State Government and that there was a lack of posts on which temporaries could be made permanent, it could not be held that the action of the University in continuing such persons as temporaries was with a view to deprive them of the status and privilege of permanent employees. The Supreme Court held thus :
“The complaint was against the Universities. The High Court notes that as there were no posts the employees could not be made permanent. Once it comes to the conclusion that for lack of posts the employees could not be made permanent how could it then go on to hold that they were continued as “badlis”, casuals or temporaries with the object of depriving them of the status and privileges of permanent employees. To be noted that the complaint was not against the State Government. The complaint was against the Universities. The inaction on the part of the State Government to create posts would not mean that an unfair labour practice had been committed by the Universities.”
This was, therefore, a case where an inference as to the object of the employer could not be drawn. The employer was a Statutory University. The University could not grant permanency unless posts were created. The power to do so lay with the State Government. The State Government was not a party to the proceedings.
11. Now coming to the facts of the present case, it would be necessary to advert to the salient averments contained in the complaint to unfair labour practices. In para 3(a) of the complaint, the complainants stated that they were in the employment of the petitioner herein with effect from 1975 and 1984 respectively. The details of the service of the two workmen were furnished in paragraphs 3(a) and 3(b) and, in para 3(f) of the complaint was the following averment :
“It is submitted that the complainants have been treated as temporary workmen as per the I. D. Order issued to them since they have been transferred to Kalyan Stores but it is quite important and pertinent to note that the complainants are working with the respondent Companies with uninterrupted service right from 1975-1984 respectively. The complainants therefore, submit that to keep them in the same way as temporaries for years together is in clear violation of the breach of the provisions of the Standing orders and the Statutory provisions and they deemed to be the permanent employees of the respondent Company, after 240 days their continuous service with the respondent company; the complainants further submit that (in) disregard (of) the principle of “equal pay for equal work” the complainants have been discriminated without any valid and reasonable ground. The complainants further submit that the aforesaid act on the part of the respondents amount to unfair labour practices as contemplated under the Act particularly under items 5, 6 and 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971.”
In the written statement there was no denial or traverse of the statement made by the complainants that they were in uninterrupted service from 1975 and 1984 respectively. On the contrary what is averred in paragraph 15 of the written statement was thus :
“The Company submits that merely because they have been working since long is not a ground for making them permanent. It is submitted that the work itself is of a temporary nature and it was not a perennial nature. Besides the work itself was intermittent and depended upon the arrival of material which was not on a regular basis. It is submitted that the Standing Orders did not apply to the godown and consequently reference to the Standing Orders is baseless. The Company further submits that reference to working for 240 days is not relevant as the Godown was not covered by the provisions of the Standing Orders. It is submitted that the work was of an intermittent nature depending upon availability of work. It is submitted that the Company has no requirement of these workmen on regular basis but they were continued in service to avoid hardship.”
The employer then averred in the written statement that the work which had been assigned to the complainants was of a temporary nature and was not perennial; that the Standing Orders did not apply to the godown and that though the Company had no requirement for these workmen on a regular basis, “they were continued in service to avoid hardship”.
12. A perusal of the pleadings of the parties is thus sufficient to demonstrate that there was no denial by the employer of the factual position that the two complainant-workmen had continued in service for long years. One of them had joined in 1975, while the other in 1984. The employer did not dispute the position that the workmen were in uninterrupted service for long years. On the contrary, the stand of the employer was that the workmen would not be entitled to permanency merely because they had worked for a long period of time. Both the complainant-workmen stepped into the witness box in support of their respective cases. The first respondent deposed that he had joined the petitioner in 1975 as a peon on daily wages of Rs. 10; that he was required to carry letters to the godown and from the godown to the office and that he was working as an office peon. He deposed that from 1975 to 1997, the Company had not given him any break and that immediately prior to his termination, he was receiving wages of Rs. 90 per day for 22 days in a month. The workman stated that he was not receiving any other benefits. The second respondent who also deposed in support of his case stated that his monthly salary in 1984 when he joined the Company and was posted at the godown as a peon was Rs. 207/-. In 1996 when he was transferred to Kalyan his salary was Rs. 1872/-. The workman stated that peons who are working at the factory at Kalyan were receiving a salary of Rs. 7,000/- to Rs. 8,000/- per month. It must be noted that there was no cross-examination of either of these two workmen on the question as to whether they had completed 240 days of service. On the contrary, the line of examination of the second respondent was on the question as to whether he had worked for one or two hours each day which he denied. The workman stated that he was working 24 days in a month. C. W. 1 Mane who deposed on behalf of the employer stated that the godown was connected with the Head Office. He deposed that the first respondent used to report for work at the Head Office. The second respondent, he stated, was working at the godown from 12 noon to 8 p.m. CW-2 who was the Vice President of the petitioner deposed that the second respondent was working as a whole time Hamal and that the godown was under the supervision of the manager at the Head Office who was reporting to him.
13. The evidence of the two witnesses of the employer is in my view, significant because the evidence completely demolishes the case of the employer that the work which was being rendered by the workmen was intermittent or of a temporary nature. The evidence of both the witnesses for the employer establishes that the two complainant-workmen were engaged on work of a regular nature; that the work was permanent and perennial and the workmen had been engaged on a duty schedule which was anything but temporary. These facts are in my view significant because they show that both the complainants have been engaged for years as temporary workmen on work which was of a permanent nature. The employer failed to establish through his evidence, the defence sought to be urged in the written statement that the work was of an intermittent nature. On the contrary evidence of the workmen shows that the work was regular, perennial and permanent in character.
14. Insofar as a complaint under Item 6 of Schedule IV is concerned, the establishment of an unfair labour practice is not a dovetailed with the requirement that the workmen must be shown to have worked for 240 days in a calendar year. The essence of the unfair labour practice under Item 6 lies in engaging persons as badlis, casuals or temporaries for years together with the object of depriving them of the benefit of permanent workmen. As the Supreme Court held in Kondhare’s case, whether an inference in regard to the object of the employer should be drawn in the facts of a given case is a matter for judicial discretion. The Industrial Court was, in my view, justified in drawing that inference. The Industrial Court has in para 13 of its judgment referred to the wide disparity in service conditions, between the emoluments paid to the two complainant-workmen and those which were paid to permanent workmen. In para 21 of its judgment, the Industrial Court entered a finding of fact that work was continuously available both in the Head Office and at the godown where the workmen had worked for several years. These are findings of fact. This is indeed a gross case. Prior to the institution of the complaint, one of the two workmen worked for over two decades while the second for over a decade on paltry wages. The submission of the employer that there are no pleadings or evidence on Item 6 of Schedule IV requires only to be stated to be rejected. Several of the unfair labour practices in Schedule IV to the Act are not water tight compartments, but as is often the case elsewhere in the law, they have shades of the other. There is a degree of coalescence or overlapping. Counsel appearing on behalf of the petitioner urges that the record may show discrimination by the employer between the permanent and casual workmen, but this would not indicate that the object was to deprive the casual workmen of the benefit of permanency. There is no merit in the submission. The complaint, contains a sufficient elaboration of the factual foundation to sustain the charge of an unfair labour practice under Item 6 of Schedule IV and the evidence which has been adduced on behalf of the workmen proves the commission of that unfair labour practice. The complaint under Item 6 of Schedule IV, in facts, such as the present cannot be rejected on the ground of limitation. The unfair labour practice under Item 6 lies in continuing badlis, casuals or temporaries for years with the object of depriving them of the benefit of permanent workmen.
15. The Industrial Court had to determine the date with effect from which the benefit of permanency should be granted. The Industrial Court has chosen as a yardstick for the conferment of permanency, the date on which the workmen would attain the completion of 240 days’ of service. For the purposes of these proceedings under Article 226 of the Constitution, this yard stick cannot be regarded as erroneous or unlawful.
16. For all these reasons, I am of the view that the order of the Industrial Court insofar as it granted to the workmen the benefit of permanency as on 1st January, 1976 and 1st January, 1985 respectively and the payment of consequential benefits on that basis cannot be faulted. The services of the workmen have been terminated on 12th May, 1999. The workmen would, therefore, be entitled to consequential benefits until the date of termination.
17. In the circumstances, I do not find any merit in the petition. The petition shall accordingly stand dismissed with costs.