{"id":180487,"date":"2008-10-13T00:00:00","date_gmt":"2008-10-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indian-smelting-and-refining-vs-sarva-shramik-sangh-on-13-october-2008"},"modified":"2016-08-09T13:29:11","modified_gmt":"2016-08-09T07:59:11","slug":"indian-smelting-and-refining-vs-sarva-shramik-sangh-on-13-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indian-smelting-and-refining-vs-sarva-shramik-sangh-on-13-october-2008","title":{"rendered":"Indian Smelting And Refining … vs Sarva Shramik Sangh on 13 October, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Indian Smelting And Refining … vs Sarva Shramik Sangh on 13 October, 2008<\/div>\n
Bench: A.M. Khanwilkar<\/div>\n
                                         1\n\n                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                  ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                                               \n                          WRIT PETITION NO.3123 OF 2005\n\n\n\n\n                                                       \n    Indian Smelting and Refining Co.Ltd.       ..PETITIONER\n\n\n\n\n                                                      \n                  VS.\n\n\n    Sarva Shramik Sangh                        ..RESPONDENT\n\n\n\n\n                                            \n                               \n    Mrs.Meena Doshi with Ms.Naina Dutia i\/b Nameet & Co. for\n    petitioner.\n                              \n    Ms.Hutoxi Tavadia a\/w Mr.H.V.Kode i\/b. Mahesh Thorat for\n    respondent.\n              \n           \n\n\n\n                                    CORAM : A.M.Khanwilkar, J.\n<\/pre>\n
                                    DATE : OCTOBER 13, 2008.\n<\/p>\n
    P.C.:\n<\/p>\n
    1.            This Writ Petition under Article 226 of the Constitution of<\/p>\n
    India takes exception to the Judgment and Order passed by the
\n    Industrial Court, Maharashtra, Mumbai dated 23rd September, 2005
\n    in Complaint (ULP) No. 834 of 2000. The subject complaint was
\n    filed by Respondent-Union to espouse the cause of 21 employees<\/p>\n
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\n                                            2<\/span><\/p>\n
    enlisted in Annexure A to the Complaint, alleging that the Petitioner
\n    Company had indulged in unfair labour practice covered by Items 6,<\/p>\n
    9 and 10 of the Schedule IV of Maharashtra Recognition of Trade<\/p>\n
    Unions & Prevention of Unfair Labour Practices Act, 1971(hereinafter
\n    referred to as “the Act”). The substance of the case made out in the
\n    complaint filed by the Respondent is as follows.\n<\/p>\n
    2.           It is stated that the Petitioner Company is a public limited<\/p>\n
    company registered under the provisions of Indian Companies Act, 1956<\/p>\n
    and is engaged in the business of manufacturing and sale of copper, bronze,<\/p>\n
    nickel, sheets, strips and foils and non ferrous alloys, etc. It is alleged that<\/p>\n
    the Petitioner company has a standing of over 30 years with a reputation<\/p>\n
    and a very good market position. Its financial position is very sound and<\/p>\n
    strong. The Company had employed about 1000 workers including staff,<\/p>\n
    watchman and wards. It is stated that the Respondent union is registered<\/p>\n
    trade union under Trade Unions Act, 1926 and is also recognized union for<\/p>\n
    the undertaking of the Petitioner company under the provisions of the Act of<\/p>\n
    1971. It is stated that the Union enjoys majority of membership of the<\/p>\n
    workers of the     petitioner company.       As aforesaid, the complaint in<\/p>\n
    question was filed to espouse the cause of 21 employees enlisted in<\/p>\n
    Annexure A to the complaint. It is stated that the respective employees<\/p>\n
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\n                                           3<\/span><\/p>\n
    joined Petitioner company on dates shown against their name in Annexure<\/p>\n
    A to the complaint and thus were deemed permanent employees of the<\/p>\n
    Petitioner company as per law. It is alleged that inspite of the fact that the<\/p>\n
    said employees were working in the Petitioner company for several years,<\/p>\n
    they have been termed as temporary and are denied and deprived of<\/p>\n
    permanency status and its benefits and privileges, which are made<\/p>\n
    applicable to the employees, who are termed as permanent employees. It is<\/p>\n
    alleged that the named employees are denied of grade and variable Dearness<\/p>\n
    Allowance of 140% or fixed DA as per settlement dated 3rd February, 1999<\/p>\n
    signed between the Management of the Petitioner company and the<\/p>\n
    Respondent union for and on behalf of the workers and which is made<\/p>\n
    applicable to the daily rated permanent workers of the company. It is<\/p>\n
    alleged that the Petitioners have discriminated and discriminating amongst<\/p>\n
    the employees and are denying and depriving the permanency and its<\/p>\n
    benefits and privileges so also the benefits of the settlement dated 3rd<\/p>\n
    February, 1999 to the employees named in Annexure `A’ to the Complaint.\n<\/p>\n
    It is further stated that the employees named in the Annexure `A’ to the<\/p>\n
    Complaint have been appointed by the Petitioner company in the category<\/p>\n
    of dependents of the retired\/expired workers of the Petitioner company, as<\/p>\n
    per the terms of settlements and Award dated 19th March, 1980. It is then<\/p>\n
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\n                                            4<\/span><\/p>\n
    stated that the said employees were entitled to be made permanent after<\/p>\n
    completing 18 months continuous service as per the settlement dated 6th<\/p>\n
    December, 1971.      It is further stated that      the employees named in<\/p>\n
    Annexure A to the complaint have already completed more than 18 months<\/p>\n
    continuous service and were entitled to permanency and its benefits, which<\/p>\n
    has been wrongfully denied to them by the Petitioner company.                    It is<\/p>\n
    alleged that the Union had sent communication to the Petitioner company<\/p>\n
    in this regard making this grievance vide letter dated 2 nd June, 2000, but no<\/p>\n
    satisfactory reply was received. According to the Respondent union, as the<\/p>\n
    Petitioner company had failed to comply with the settlement dated 6th<\/p>\n
    December, 1971 or the award dated 19th March, 1980 or the settlements<\/p>\n
    dated 21st February, 1996 and dated 3rd February, 1999, the Petitioner<\/p>\n
    continued to knowingly and deliberately breach\/violate the said settlements<\/p>\n
    and award thereby denying and depriving the employees named in<\/p>\n
    Annexure `A’ to the complaint their status of permanency and its benefits<\/p>\n
    and privileges. It is stated that the Union therefore, sent another letter dated<\/p>\n
    31st August, 2000 to the Petitioner company which was received by the<\/p>\n
    company on 4th September, 2000. However, no response was received from<\/p>\n
    the Petitioner company.     The Union therefore, asserted that the Petitioner<\/p>\n
    company was bound to implement the settlements dated 6th December, 1971<\/p>\n
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\n                                           5<\/span><\/p>\n
    and Award dated 19th March, 1980 and to extend the benefits of settlements<\/p>\n
    dated 21st February, 1886 and 3rd February, 1999 to the employees named in<\/p>\n
    Annexure `A’ to the complaint. It is alleged that as per settlement dated 6th<\/p>\n
    December, 1971 the company and the management were obliged to hold<\/p>\n
    meeting with the complainant union and the committee members in the<\/p>\n
    month of June every year regularly for the claim of permanency and other<\/p>\n
    benefits of the workers. Having failed to do so, the Union addressed letter<\/p>\n
    dated 2nd June, 2000 to the Petitioner company.\n<\/p>\n
                                ig                            Inspite of the said<\/p>\n
    communication, the Petitioner company failed to call any meeting nor made<\/p>\n
    the named employees permanent nor offered them benefits or privileges till<\/p>\n
    the date of filing of the complaint. It is alleged that on the other hand, the<\/p>\n
    Petitioner company is refuting the said claim and has failed and neglected to<\/p>\n
    implement the service conditions as per settlement dated 6th December,<\/p>\n
    1971, Award dated 19th March, 1980, settlement dated 21st February, 1996<\/p>\n
    and settlement dated 3rd February, 1999. In that, the named employees have<\/p>\n
    been continued by the Petitioner company as temporaries, violating<\/p>\n
    settlement and have denied and deprived the said employees the status,<\/p>\n
    privileges and benefits of permanency resulting in unfair labour practice<\/p>\n
    under Item 6, 9 and 10 of Schedule IV of the Act. It is further stated in the<\/p>\n
    complaint that the provisions of Industrial Employment(Standing Orders)<\/p>\n
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\n                                           6<\/span><\/p>\n
    Act, 1946 is applicable to the establishment. The complaint then gives<\/p>\n
    details of the furnaces operated by the Petitioner company and the number<\/p>\n
    of permanent employees working during the three shifts and the minimum<\/p>\n
    number of permanent employees required in a day to maintain the normal<\/p>\n
    level of establishment. Similar details are furnished in respect of several<\/p>\n
    mills in the establishment and it is asserted that the named employees were<\/p>\n
    working in the same place where the employees were given the benefits of<\/p>\n
    permanency while working. Assertion in the complaint is to the effect that<\/p>\n
    the work undertaken by the named employees is perennial in nature and<\/p>\n
    they were performing the same job as their counter-parts, who were called<\/p>\n
    as permanent by the employer and were given higher DA and other benefits.\n<\/p>\n
    Similar details are provided in respect of four Yadar machines and four<\/p>\n
    Pickling machines.     It is also asserted that employee at Sr.No.14 in<\/p>\n
    Annexure A to the complaint is a Crane Driver, whose work is permanent<\/p>\n
    and of perennial nature. Details about other named employees are also spelt<\/p>\n
    out in the complaint. It is then stated that the Petitioner company had<\/p>\n
    employed about 1150-1200 permanent employees in the establishment.\n<\/p>\n
    However, gradually the strength of permanent employees was reduced due<\/p>\n
    to various reasons such as retirement, death, resignation etc. over the period<\/p>\n
    of years. The Petitioners however, did not fill up the permanent vacancies<\/p>\n
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\n                                            7<\/span><\/p>\n
    and managed the work by engaging employees as casuals, temporaries or<\/p>\n
    contract employees. It is stated that besides the named 21 employees in<\/p>\n
    Annexure `A’ to the complaint, there are other set of about 170 employees,<\/p>\n
    who are junior to these employees and another about 200 employees who<\/p>\n
    are still called as contract employees in the establishment. It is then asserted<\/p>\n
    that the Petitioner company was extending the facilities of casual leave,<\/p>\n
    sick leave, privilege leave etc. to the employees who are junior to the<\/p>\n
    employees named in Annexure `A’ to the complaint. At the same time, the<\/p>\n
    Petitioner was not extending even the minimum facility of casual leave and<\/p>\n
    sick leave to these employees named in Annexure `A’ to the complaint. It<\/p>\n
    is stated that the employees called as permanent by the Petitioner were<\/p>\n
    being paid DA at the rate of 140%, whereas the employees named in<\/p>\n
    Annexure `A’ were paid only 100% thereby denying them the substantial<\/p>\n
    amount of wages every month.       It is also asserted by the Respondent union<\/p>\n
    that the monthly production in the years before 1984, was around 250 to<\/p>\n
    300 tonnes with the strength of 750 employees. After 1985, during the<\/p>\n
    period from 1988 to 1991, the production is increased to 500 tonnes and<\/p>\n
    thereafter during the period 1994-95, it was 625 tonnes and then in the year<\/p>\n
    1999, it was about 700 tonnes and from around year 2000 onwards, it is<\/p>\n
    around 800 tonnes. However, the strength of permanent employees of the<\/p>\n
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\n                                          8<\/span><\/p>\n
    Company has reduced drastically and going down every year by year;\n<\/p>\n
    because the Petitioners are not showing employees doing the extra work as<\/p>\n
    permanent with a view to deprive them the status and benefits of permanent<\/p>\n
    employees. It is further asserted that under the provisions of Standing<\/p>\n
    Orders all the employees listed in Annexure A are entitled to be made<\/p>\n
    permanent on completion of 240 days of service in the establishment. On<\/p>\n
    the basis of the above assertions, the Respondent Union prayed that it be<\/p>\n
    declared that the Petitioner has engaged in unfair labour practice under<\/p>\n
    Items 6,9 and 10 of the Schedule IV of the Act, 1971, and to direct the<\/p>\n
    Petitioner to cease and desist from engaging in unfair labour practice<\/p>\n
    complained of. Further relief was claimed by the Respondent to declare that<\/p>\n
    the employees named in the Annexure `A’ to the complaint are permanent<\/p>\n
    employees on completion of       continuous service of 18 months as per<\/p>\n
    settlement dated 6th December, 1971. It was further prayed that direction be<\/p>\n
    issued to the Petitioner to extend benefits under settlements dated 21 st<\/p>\n
    February, 1996 and 3rd February, 1996 and 3rd February, 1999 respectively<\/p>\n
    to the employees named in the Annexure `A’ to the complaint and to direct<\/p>\n
    the Petitioner to pay the difference of the benefits of the settlements dated<\/p>\n
    21st February, 1996 and 3rd February, 1999 to the employees named in the<\/p>\n
    Annexure `A’ to the complaint with retrospective effect. Lastly, it was<\/p>\n
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\n                                            9<\/span><\/p>\n
    prayed that direction be issued to the Petitioner to issue letters of<\/p>\n
    permanency to the employees named in Annexure `A’ to the complaint with<\/p>\n
    retrospective effect from the date they have completed 18 months<\/p>\n
    continuous service.\n<\/p>\n
    3.           The Petitioner-company contested the complaint. In the first<\/p>\n
    place, the Petitioner filed affidavit in reply to the interim relief application.\n<\/p>\n
    That reply was treated as Written Statement of the Petitioner. In addition,<\/p>\n
    the Petitioner filed additional Written Statement.             Significantly, the<\/p>\n
    Petitioner has conceded that the workmen named in Annexure `A’ to the<\/p>\n
    complaint, were neither badli nor casuals nor temporary but were deemed<\/p>\n
    to be permanent by virtue of provisions of Industrial Employment (Standing<\/p>\n
    Orders) Act, 1946. It is the case of the Petitioner that the said workmen<\/p>\n
    were getting consolidated wages, mostly minimum wages, as prescribed by<\/p>\n
    Government of Maharashtra for engineering workers. However, as and<\/p>\n
    when they became entitled to        the benefits under Industrial Employees<\/p>\n
    (Standing Orders) Act, 1946 they were fitted in basic wage and granted<\/p>\n
    100% revised textile DA and other terms and conditions were fixed. This<\/p>\n
    was done with the knowledge of the complainant union as well as workers<\/p>\n
    when the settlement dated 3rd February, 1999 was signed. It is the case of<\/p>\n
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\n                                          10<\/span><\/p>\n
    the Petitioner that the named workmen were not getting benefits which<\/p>\n
    regular permanent workers were getting        due to settlement dated 3rd<\/p>\n
    February, 1999 and no fault can be found with the Petitioner company in<\/p>\n
    that behalf. In support of its contention that the named workmen were not<\/p>\n
    entitled for benefits under the settlement dated 3rd February, 1999, reliance<\/p>\n
    was placed on Clauses 26 and 27 of the said settlement, which according to<\/p>\n
    the Petitioner, preserved the right of the Petitioner company to fix separate<\/p>\n
    service condition for temporary, casual, badli or other types of workmen. It<\/p>\n
    is the case of the Petitioner that by filing present complaint, the Union is<\/p>\n
    attempting to resile from the settlement which is only for the benefit of<\/p>\n
    permanent workmen who were on the rolls of the company on the day of<\/p>\n
    signing of the settlement and who signed it. According to the Petitioner,<\/p>\n
    named workmen were not temporaries or were getting service condition of<\/p>\n
    temporary workmen but were getting basic plus 100% revised textile DA, as<\/p>\n
    determined by the Petitioner company with mutual consent of the workmen<\/p>\n
    concerned.   According to the Petitioner, while fixing service conditions of<\/p>\n
    the named workmen, the Petitioner has mostly followed the provisions of<\/p>\n
    clause 4 of the settlement dated 6th December, 1971 signed with the<\/p>\n
    respondent union.    In substance, the stand of the Petitioner is that the<\/p>\n
    Petitioner was entitled to provide separate service conditions in respect of<\/p>\n
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\n                                          11<\/span><\/p>\n
    workmen named in Annexure A to the complaint as they were not covered<\/p>\n
    by the settlement dated 3rd February, 1999.\n<\/p>\n
    4.          The Industrial Court, on analyzing the rival stand and<\/p>\n
    considering the evidence on record, proceeded to hold that the real<\/p>\n
    controversy centers around the applicability of agreement qua the workmen<\/p>\n
    named in Annexure A to the complaint. At the outset, the lower Court<\/p>\n
    opined that there was neither any pleading nor any evidence with regard to<\/p>\n
    the violation of Item 10 of Schedule IV. The lower Court accordingly,<\/p>\n
    confined the enquiry only regarding violation or breach of Item Nos. 6 and 9<\/p>\n
    of Schedule IV. It found as of fact that the benefits under the settlement<\/p>\n
    were not offered or extended to the workmen named in Annexure “A” to the<\/p>\n
    complaint. It then considered as to whether the justification offered by the<\/p>\n
    Petitioner company can be countenanced. It went on to observe that as per<\/p>\n
    the agreement or settlement, the benefits of the settlement will have to be<\/p>\n
    extended to daily rated permanent workmen. It went on to observe that<\/p>\n
    even if the settlement deems to exclude the workmen named in Annexure A<\/p>\n
    to the complaint, the same cannot bind them as they were not signatories to<\/p>\n
    the said agreement. In as much as the settlement was against their interest<\/p>\n
    and detrimental to them. It further found that if the office bearers of the<\/p>\n
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\n                                          12<\/span><\/p>\n
    Trade Union have agreed to do certain act ignoring interest of one set of<\/p>\n
    employees who were going to be affected by the arrangement, such<\/p>\n
    agreement would not disentitle the concerned workmen from claiming their<\/p>\n
    legitimate rights and ventilating their grievance. It then proceeded to hold<\/p>\n
    that admittedly the workmen named in Annexure A were continuously<\/p>\n
    working with the Petitioner company for number of years and their services<\/p>\n
    were uninterrupted, which was sufficient to confer permanency on them as<\/p>\n
    well as to extend benefits as given to the permanent employees; failure to<\/p>\n
    do so results in unfair labour practice within the meaning of Item 6 and 9 of<\/p>\n
    Schedule IV of the Act.      The lower Court has found that in fact the<\/p>\n
    Petitioner has conceded that the workmen named in Annexure A to the<\/p>\n
    complaint were deemed permanent employees and that the said employees<\/p>\n
    had put in more than 240 days of continuous service and were entitled to<\/p>\n
    seek protection   of provisions of law including section 25 (F) of the<\/p>\n
    Industrial Disputes Act. It has then found that since the Petitioner admits<\/p>\n
    that the concerned employees were deemed permanent, the Petitioner was<\/p>\n
    under obligation to     confer all the benefits extended to permanent<\/p>\n
    employees even to the complainant-employees. The lower Court has then<\/p>\n
    adverted to rule 4(B) of the Industrial Employment(Standing Orders) Rules,<\/p>\n
    1959 which stipulates that the temporary workman, who has put in 190<\/p>\n
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\n                                         13<\/span><\/p>\n
    days’ uninterrupted service in aggregate in any establishment of a seasonal<\/p>\n
    nature or      240 days uninterrupted service in the aggregate            in any<\/p>\n
    establishment during the period of preceding 12 calendar months, shall be<\/p>\n
    made permanent in that establishment by an order in writing signed by the<\/p>\n
    Manager or any person authorized in that behalf by the Manager,<\/p>\n
    irrespective   of whether or not his name is on the muster roll of the<\/p>\n
    establishment during the said 12 calendar months. The lower Court then<\/p>\n
    adverted to the communication sent by the Respondent Union to the<\/p>\n
    Petitioner on 2nd June, 2000 calling upon the Petitioner to confer<\/p>\n
    permanency to the employees concerned.      Notwithstanding the Company<\/p>\n
    asserted that the concerned employees were not temporary employees,<\/p>\n
    relying on the reported decision, the lower Court then went on to observe<\/p>\n
    that even if the concerned employees were daily rated employees, denial to<\/p>\n
    confer permanency and permanency benefits despite clear vacancy, was<\/p>\n
    admittedly unfair labour practice. The lower Court has found as of fact that<\/p>\n
    even though the concerned employees were appointed on compassionate<\/p>\n
    ground, however, they were appointed on clear vacant post and those<\/p>\n
    persons after their appointment were continued for number of years as<\/p>\n
    temporary. The lower Court has thus found that ipso facto and ipso jure, the<\/p>\n
    Petitioner employer has indulged in unfair labour practice within the<\/p>\n
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\n                                              14<\/span><\/p>\n
    mischief of Item 6 and Item 9 of the Schedule IV of the Act. It is on the<\/p>\n
    basis of these findings the Court below proceeded to pass following order:\n<\/p>\n
                 “Complaint is allowed.<\/p>\n
                 It is hereby declared that the respondents have engaged in an
\n                 unfair labour practices under items 6 and 9 of Schedule-IV of
\n                 the MRTU & PULP Act, 1971 and respondents are directed to<\/p>\n
                 cease and desist from engaging in such practices.\n<\/p><\/blockquote>\n
                 It is hereby declared that the employees concerned are entitled
\n                 for status of permanency as well as the permanency benefits in<\/p>\n
                 pursuance of the agreements that were timely entered into by
\n                 the respondent employer, with effect from the date of<\/p>\n
                 completion of 19 months continuous service by the concerned
\n                 each employee.\n<\/p><\/blockquote>\n
                 No order as to the cost.”\n<\/p><\/blockquote>\n
    5.           After having considered the pleadings and documents on<\/p>\n
    record, to my mind the real controversy is whether the workmen who are<\/p>\n
    deemed permanent would be entitled to the benefits under the settlement<\/p>\n
    dated 3rd February, 1999. For, it is common ground that the workmen<\/p>\n
    named in the Annexure `A’ to the complaint were appointed between 1996<\/p>\n
    to 1998 on different dates. Their date of appointment is not in dispute. It is<\/p>\n
    also not in dispute that the said workmen were continuously employed by<\/p>\n
    the Petitioner. It is also evident from the record that the service of those<\/p>\n
    workmen was engaged in relation to work which was permanent and<\/p>\n
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\n                                          15<\/span><\/p>\n
    perennial in nature. It is conceded by the Petitioner that the workmen<\/p>\n
    named in Annexure A acquired the status of deemed permanent on<\/p>\n
    completion of 240 days by virtue of provisions of Industrial Employment<\/p>\n
    (Standing Orders) Act, 1946. It is a different matter that in response to the<\/p>\n
    representation sent by the Respondent union, the Petitioner termed the<\/p>\n
    concerned workmen as temporary. The question is whether the Petitioner<\/p>\n
    has committed breach of such nature that it results in unfair labour practice<\/p>\n
    within in the meaning of Item 6 of Schedule IV of the Act.\n<\/p>\n
    Item 6 read thus:\n<\/p>\n
                “To employ employees as Badlis, casuals or temporaries and to
\n                continue them as such for years with the object of depriving<\/p>\n
                them of the status and privileges of permanent employees.”\n<\/p><\/blockquote>\n
    6.          It is not in dispute that on completion of 240 days of<\/p>\n
    continuous service of the concerned workman, no letter has been issued by<\/p>\n
    the manager of the Petitioner company informing in writing that they have<\/p>\n
    been made permanent in the establishment, as required by rule 4B of the<\/p>\n
    Industrial Employment (Standing Orders) Rules 1959. Indeed, till recently<\/p>\n
    even when the Respondent made representation to treat the workmen<\/p>\n
    permanent or deemed permanent employees, the Petitioner company<\/p>\n
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\n                                         16<\/span><\/p>\n
    asserted that the said workmen were temporary. The fact remains that<\/p>\n
    before the Court, the Petitioner has conceded that the concerned workmen<\/p>\n
    were   deemed    permanent    by   virtue   of   provisions     of     Industrial<\/p>\n
    Employment(Standing Order) 1946.         Even so the Petitioner cannot be<\/p>\n
    absolved of the unfair labour practice within the meaning of Item 6. It<\/p>\n
    would have been a different matter if the manager of the Petitioner company<\/p>\n
    in compliance of the mandate of the rule 4 B of the Industrial<\/p>\n
    Employment(Standing Orders) Rules had issued order in writing treating the<\/p>\n
    concerned workmen as permanent soon after completion of the continuous<\/p>\n
    service of 240 days in aggregate during a period of preceding 12 calendar<\/p>\n
    months. Having failed to do so, rigours of item 6 were clearly attracted.\n<\/p>\n
    The fact that the concerned workmen were paid on the basis of basic plus<\/p>\n
    100% revised textile D.A. and other allowances, by itself does not result in<\/p>\n
    treating the workmen as permanent or deemed permanent.               If the said<\/p>\n
    workmen were to be treated as permanent by the Petitioner company, the<\/p>\n
    Petitioner Company would be obliged to provide all the privileges and<\/p>\n
    status as given to its permanent employees. It necessarily follows that the<\/p>\n
    object of not issuing order in writing as required on account of Rule 4B of<\/p>\n
    the Industrial Employment (Standing Orders) Rules, was to deprive the<\/p>\n
    workmen named in the Annexure `A’ of the status and privileges of the<\/p>\n
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\n                                           17<\/span><\/p>\n
    permanent employees. This is the gravamen of the grievance made in the<\/p>\n
    complaint as filed.\n<\/p>\n
    7.           To get over this position, Counsel for the Petitioner would<\/p>\n
    contend that even if the complaint is read as a whole, there is no pleading<\/p>\n
    that the object of not treating the named workmen as permanent was to<\/p>\n
    deprive them of the status of permanent employees.              Counsel for the<\/p>\n
    Petitioner would rely on the decision of the Apex Court in the case of<\/p>\n
    Regional Manager, SBI V\/s. Rakesh Kumar Tewari, reported in (2006) 1<\/p>\n
    SCC 530, in particular, paragraph-14 thereof, where the Apex Court has<\/p>\n
    expounded that unless foundation has been laid in the pleadings, no amount<\/p>\n
    of evidence can be looked into. Reliance is also placed on the decision<\/p>\n
    reported in 1994 (I) CLR page 913 in the case of Punjabrao Krishi<\/p>\n
    Vidyapeeth, Akola Vs. General Secretary, Krishi Vidyapeeth Kamgar Union<\/p>\n
    & Ors.. Obviously, this submission is advanced on misreading of the<\/p>\n
    pleadings in the complaint. In my opinion, on a fair reading of the<\/p>\n
    complaint as a whole, it is seen that at more than one place it is asserted that<\/p>\n
    the object of not recognising the named workmen was to deprive them of<\/p>\n
    the status and privilege of permanent employees. That can be culled out<\/p>\n
    from    paragraph-3(c), where it is asserted that the Petitioner had<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                           18<\/span><\/p>\n
    discriminated and discriminating amongst employees and are denying and<\/p>\n
    depriving the permanency and benefits and privileges thereof so also the<\/p>\n
    benefits of the settlement dated 3rd February, 1999 to the employees named<\/p>\n
    in Annexure A to the complaint. In last sub-paragraph of paragraph 3, it is<\/p>\n
    once again stated as follows:\n<\/p>\n
                 “..Whereas the strength of permanent employees of the<\/p>\n
                 Company has reduced drastically and going down year by year
\n                 because the Respondents are not showing employees doing<\/p>\n
                 permanent job as permanent with a view of deprive them the
\n                 status and benefit of permanent employees.”\n<\/p><\/blockquote>\n
    In my opinion, there is sufficient pleading so as to attract the provisions of<\/p>\n
    Item 6 of Schedule IV. It is well established position that the strict rules of<\/p>\n
    pleadings as required by the civil code do not apply in relation to the<\/p>\n
    disputes before the Labour and Industrial Court. If any authority is required<\/p>\n
    in support    of this proposition, reliance can be usefully made to the<\/p>\n
    observation in paragraph-4 in the case of Bombay Mothers & Children’s<\/p>\n
    Society V\/s. General Labour Union(Red Flag) & anr. reported in 1992 I<\/p>\n
    CLR 656; as well as Indian Express Newspapers(Bombay) Ltd. v\/s. Brihan<\/p>\n
    Mumbai Union of Journalists, reported in 2001 II CLR page 76 and P.D<\/p>\n
    Siddhave V\/s.G.N.Patwardhan & Ors., reported in 1997 II CLR 1090.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                         19<\/span><\/p>\n
    8.          As aforesaid, there is enough pleading to suggest that the<\/p>\n
    object of the Petitioner to not recognize the named workmen as permanent<\/p>\n
    was to deprive them of their status and privileges of the permanent<\/p>\n
    employees. The question is whether the onus was on the respondent union<\/p>\n
    to establish the factum of object of the Petitioner in not recognizing the<\/p>\n
    named workmen as permanent. Even this issue is no more res intigra. The<\/p>\n
    Apex Court in the case of Chief Conservator of
\n                                  ig                        Forests & Anr. v\/s.\n<\/p>\n
    Jagannath Maruti Kondhare & Ors. Reported in (1996) 2 SCC 293, has<\/p>\n
    considered this very aspect. The Apex Court in paragraph-22 however,<\/p>\n
    proceeded to observe thus:\n<\/p>\n
                “We have given our due thought to the aforesaid rival
\n                contentions and, according to us, the object of the State Act,
\n                inter alia, being prevention of certain unfair labour practices,
\n                the same would be thwarted or get frustrated if such a burden is<\/p>\n
                placed on a workman which he cannot reasonably discharge.<\/p><\/blockquote>\n
                In our opinion, it would be permissible on facts of a particular
\n                case to draw the inference mentioned in the second part of the
\n                item, if badlis, casuals or temporaries are continued as such for
\n                years….” (emphasis supplied)<\/p>\n
    The Division Bench of our High Court has restated the above principle in<\/p>\n
    the decision in the case of R.P.Sawant vs. Bajaj Auto Ltd.,<\/a> reported in 2001<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                               20<\/span><\/p>\n
    II CLR 982. In paragraph-41 of the said decision, the Court has observed<\/p>\n
    thus:\n<\/p>\n
                 “41. Mr.Singh also relied on the judgment of the Supreme
\n                 Court in Chief Conservator of Forests & Anr. V.\n<\/p><\/blockquote>\n
                 J.M.Kondhare, 1996 I CLR 680, in which the Supreme Court<\/p>\n
                 severely criticized the Forest Department of the Government of
\n                 Maharashtra for indulging in similar tactics of repeatedly
\n                 terminating the services of employees to prevent them from
\n                 becoming permanent. The Supreme Court was considering the<\/p>\n
                 very same Item 6 of Schedule IV of the 1971 Act and observed
\n                 (vide paragraph 22) as under:-\n<\/p><\/blockquote>\n
                        “… In our opinion, it would be permissible on facts of a
\n                        particular case to draw the inference mentioned in the<\/p>\n
                        second part of the item, if badlis, casuals, or temporaries are
\n                        continued as such for years. …”<\/p><\/blockquote>\n
                        Considering the type of work before them, the Supreme Court
\n                 observed as under :\n<\/p><\/blockquote>\n
                        “Permanency is thus writ large on the face of both the types of<\/p>\n
                        work. If, even in such projects, persons are kept in jobs on casual
\n                        basis for years the object manifests itself; no scrutiny is required.”<\/p><\/blockquote>\n<\/blockquote>\n
                         We are of the view that these observations of the Supreme Court<\/p>\n
                 clearly apply to the case before us. The evidence on record fully justified
\n                 drawing the inference that the object of the Company in keeping the
\n                 employees temporary for repeated periods of seven months was to deprive
\n                 them of the benefits of permanency so as to amount to an unfair labour
\n                 practice within the meaning of Item 6 of Schedule IV of the 1971 Act.”\n<\/p><\/blockquote>\n
    It will be useful to refer to another decision of the single Judge of our High<\/p>\n
    Court in the case of Burroughs Welcome (I) Ltd. Vs. D.H. Ghosle [2001 (2)<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                          21<\/span><\/p>\n
    MLJ 54], which has followed the said principle. In the present case, the<\/p>\n
    finding recorded by the lower Court to the effect that the named workmen<\/p>\n
    were continuously in service for years and were engaged in activities, which<\/p>\n
    were permanent and perennial in nature is unquestionable. Besides, even<\/p>\n
    the finding of the lower court that the named workmen were doing the same<\/p>\n
    work as their counter parts who were called permanent is also<\/p>\n
    unquestionable.    With this    background it necessarily follows that the<\/p>\n
    purpose of not recognizing the named workmen as permanent was with a<\/p>\n
    view to deprive them of the status and privileges of permanent employees<\/p>\n
    and would attract provisions of Item 6 of Schedule IV of the Act.\n<\/p>\n
    9.           That takes me to the question whether the opinion formed by<\/p>\n
    the lower Court that the Petitioners have also indulged in unfair labour<\/p>\n
    practice within the meaning of item 9 of Schedule IV of the Act is just and<\/p>\n
    proper. Item 9 of Schedule IV of the Act reads thus:\n<\/p>\n
                 “9. Failure to implement award, settlement or agreement.”\n<\/p>\n
    On the finding already recorded that the named workmen were deemed<\/p>\n
    permanent, it would necessarily follow that they ought to get all the benefits<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                          22<\/span><\/p>\n
    and facilities, as have been extended to the permanent employees for the<\/p>\n
    relevant period.\n<\/p>\n
    10.          As aforesaid, it is common ground that the named workmen<\/p>\n
    have been employed between 1996 to 1998 on different dates.                      On<\/p>\n
    completion of continuous and uninterrupted service, in law, they would<\/p>\n
    become permanent. They will have to be treated as permanent workmen.\n<\/p>\n
    The fact that a formal order in writing has not been issued by the manager as<\/p>\n
    required in Rule 4B of the Industrial Employment(Standing Order) Rules<\/p>\n
    1959 would make no difference. For, the law recognizes such workmen to<\/p>\n
    be    permanent workmen.        If so, the real question is whether the<\/p>\n
    memorandum of settlement dated 3rd February, 1999 purports to expressly<\/p>\n
    exclude the deemed permanent workmen. For that, we will have to analyse<\/p>\n
    the terms of memorandum of settlement dated 3rd February, 1999. Indeed,<\/p>\n
    the Petitioner was at pains to point out that the charter of demand of<\/p>\n
    workers employed in Petitioner company submitted by the Union<\/p>\n
    specifically makes reference to the daily rated workmen including<\/p>\n
    temporary and casual workmen in company at Bhandup, relying on the<\/p>\n
    recital of memorandum of settlement dated 3rd February, 1999. That would<\/p>\n
    militate against the daily rated workmen employed in the establishment of<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                            23<\/span><\/p>\n
    the company at Bhandup. Even so, the question is whether the terms of the<\/p>\n
    said settlement expressly or by implication deny the benefits provided<\/p>\n
    thereunder to daily rated deemed permanent workmen. Significantly, the<\/p>\n
    Petitioner’s witness has unambiguously stated that the demand which was<\/p>\n
    raised by the union and was the subject matter of the said settlement was in<\/p>\n
    respect “temporary and casual workmen” other than the named workmen in<\/p>\n
    Annexure-A to the complaint. In view of this admission, as a matter of fact,<\/p>\n
    no further scrutiny on the point in issue is required.\n<\/p>\n
    11.          Be that as it may, the law recognizes only two categories of<\/p>\n
    workmen. One, being the permanent workman and the other a temporary<\/p>\n
    workman. On account of legal fiction, a deemed permanent workman, for<\/p>\n
    all purposes, is a permanent workman. In other words, the expression<\/p>\n
    “permanent workman” within the meaning of provisions of the Act and the<\/p>\n
    Rules would cover both the categories of workmen                 namely de facto<\/p>\n
    permanent workman and de jure permanent workman.                        A de facto<\/p>\n
    permanent workman is one, who has been appointed by the company by an<\/p>\n
    order in writing, as a permanent workman; whereas a de jure permanent<\/p>\n
    workman is one, who, irrespective of whether such order in writing is issued<\/p>\n
    by the company, is recognised by law to be a permanent workman. With<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                         24<\/span><\/p>\n
    this background, we will have to consider whether the memorandum of<\/p>\n
    settlement in any way provides that the de jure permanent workmen have<\/p>\n
    been excluded from deriving the benefits under the stated settlement.\n<\/p>\n
    12.         As aforesaid, the Memorandum of settlement has been reached<\/p>\n
    in respect of daily rated permanent workman employed in the petitioner<\/p>\n
    company at Bhandup.     The term permanent workmen has not been defined<\/p>\n
    in the memorandum of settlement. For that, we will have to give the<\/p>\n
    natural meaning to that expression which is consistent with the provisions<\/p>\n
    of law. As aforesaid, permanent workman is one who is de facto permanent<\/p>\n
    workmen and also includes de jure permanent workman. Thus understood,<\/p>\n
    it is not possible to suggest that the memorandum of settlement dated 3rd<\/p>\n
    February, 1999 expressly excludes the workmen who fall within the class<\/p>\n
    of deemed permanent workman on the relevant date as such.               In other<\/p>\n
    words, it will have to be assumed that all workmen who have acquired the<\/p>\n
    status of permanent workmen as on 3rd February, 1999 would be entitled to<\/p>\n
    enjoy the benefits provided under the memorandum of settlement dated 3rd<\/p>\n
    February, 1999.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                             25<\/span><\/p>\n
    13.         The Petitioner would rely on clause 20 of the Memorandum of<\/p>\n
    settlement which reads thus:\n<\/p>\n
                “20. NO DEMANDS DURING THE PERIOD OF THIS SETTLEMENT<\/p>\n
                The union and workmen agree that during the period of operation of this
\n                settlement neither they nor any union nor any party will raise and demand
\n                or disputes on their behalf in respect of any matter which may directly or<\/p>\n
                indirectly involve additional financial burden on the Company except the
\n                demand for bonus under the Payment of Bonus Act, 1965.”\n<\/p><\/blockquote>\n
    However, in my opinion, this clause does not take the matter any further for<\/p>\n
    the Petitioner. This clause merely provides that the agreement has been<\/p>\n
    reached that the demand or dispute in respect of any matter, which may be<\/p>\n
    directly or indirectly covered by the settlement and involve additional<\/p>\n
    financial burden on the company except demand for bonus under the<\/p>\n
    payment of Bonus Act, 1965 can be raised by the Union or any party. Once<\/p>\n
    it is found that the workmen named in the Annexure-A to the complaint are<\/p>\n
    covered by the term permanent workmen having completed 240 days of<\/p>\n
    uninterrupted services on or before 3rd February, 1999, would be covered by<\/p>\n
    the settlement dated 3rd February, 1999.         Emphasis was then placed on<\/p>\n
    Clauses 22, 26 and 27 of the settlement which read thus:\n<\/p>\n
                “22. DEMANDS NOT COVERED IN THIS SETTLEMENT NOT
\n                PRESSED<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                              26<\/span><\/p>\n
                The union and workmen agree that in view of this settlement the demands
\n                which are not specifically covered by this settlement shall be deemed to<\/p>\n
                have not been pressed by them and as such will be treated as withdrawn.”\n<\/p><\/blockquote>\n
                “26. APPLICABILITY<\/p>\n
                It is specifically declared that this settlement is applicable only to daily-
\n                rated permanent workmen and not to temporary, casual, badli or other
\n                types of workmen, if any, for whom the Company will be entitled to lay<\/p>\n
                down separate service conditions. It will also not apply to the ex-
\n                workmen whose demands for reinstatement is pending before Courts\/
\n                Competent authorities under the law. It is further agreed that the terms of
\n                this settlement will be applicable only to those daily-rated permanent
\n                workmen who are on the rolls of the Company on the day of signing of<\/p>\n
                this settlement and who sign it.”\n<\/p><\/blockquote>\n
                “27. SIGNING BY WORKMEN<\/p>\n
                It is further agreed that all the daily-rated permanent workmen who are on
\n                the rolls of the Company, will sign this settlement as token of their<\/p>\n
                acceptance of the terms of this settlement and then only the settlement will
\n                be applicable to them.”\n<\/p><\/blockquote>\n
    Reverting to the Clause-22 of the settlement, the agreement was that<\/p>\n
    demand not specifically covered by the settlement shall be deemed to have<\/p>\n
    not been pressed by the union and thus the same will be treated as<\/p>\n
    withdrawn. Relying on this clause, it was argued that the original demand<\/p>\n
    was for and on behalf of the temporaries and casual workmen of the<\/p>\n
    companies and that has been withdrawn by the Union.                      As aforesaid,<\/p>\n
    management witness in his evidence has conceded that the dropping of<\/p>\n
    demand was in relation to different set of workmen and not the named<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                         27<\/span><\/p>\n
    workmen in Annexure-A to the complaint. At any rate, for the view that I<\/p>\n
    have taken, the workmen named in Annexure-A cannot be treated as<\/p>\n
    temporary and casual workmen, but those of the workmen who have<\/p>\n
    completed 240 days of uninterrupted service would be deemed permanent<\/p>\n
    workman and will have to be treated as daily rated permanent workman as<\/p>\n
    on 3rd February, 1999.    Insofar as those workmen are concerned, the<\/p>\n
    demand of parity to be extended to such workmen cannot be said to have<\/p>\n
    been withdrawn under the settlement. Assuming that such a view was<\/p>\n
    possible, I am in agreement with the opinion recorded by the lower Court<\/p>\n
    that it would not preclude the named workmen to agitate before the court of<\/p>\n
    law that the settlement is prejudicial to their interest and not binding on<\/p>\n
    them.\n<\/p>\n
    14.         To get over this position, Counsel for the Petitioner would<\/p>\n
    contend that such grievance cannot be put forth by the Union, who was<\/p>\n
    party to the settlement. According to the Petitioner, settlement would be<\/p>\n
    binding on all workmen as it has been entered with the registered and<\/p>\n
    recognized union. This argument has been rightly countered by the Counsel<\/p>\n
    for the Respondent by relying on the decision in the case of Oswal Agro<\/p>\n
    Furnace Ltd. vs. Workers Union reported in (2005) 3 SCC page 224, in<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                         28<\/span><\/p>\n
    particular paragraph-15 and 16 thereto, which takes the view that if<\/p>\n
    settlement arrived at is in effect opposed to the requirements of law, such<\/p>\n
    settlement will have to be treated as void for which no declaration would be<\/p>\n
    necessary. The voidness of such settlement can be considered even in a<\/p>\n
    collateral proceeding. Besides, I am in agreement with the argument of the<\/p>\n
    respondent union that even if the union has entered into settlement with the<\/p>\n
    management, it is open to the union to file complaint against the company<\/p>\n
    and management alleging commission of unfair labour practice within the<\/p>\n
    meaning of Item 6 of Schedule IV read with      Section 21 of the MRTU &<\/p>\n
    PULP Act, 1971. As a matter of fact, section 21 of the Act, 1971 mandates<\/p>\n
    that such complaint should be filed only through a         recognized union<\/p>\n
    alleging commission of unfair labour practice within the meaning of this<\/p>\n
    section. If it so, the named workmen have no other option but to pursue<\/p>\n
    their grievance through the respondent union.     Therefore, institution of<\/p>\n
    complaint at the instance of such workmen by the Union inspite of being<\/p>\n
    party to the settlement would be a necessity due to the mandate of section<\/p>\n
    21 of the Act of 1971. Since the Complaint in relation to the unfair labour<\/p>\n
    practice in respect of Item 6 could be pursued by the named workmen only<\/p>\n
    through the Respondent Union, it was logical for the union to also espouse<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                           29<\/span><\/p>\n
    the cause of the stated workmen of unfair labour practice under Item 9 of<\/p>\n
    the Schedule IV.\n<\/p>\n
    15.          Reverting to clause 26 of the settlement, it specifies that it is<\/p>\n
    applicable to the daily-rated permanent workmen and not to temporary,<\/p>\n
    casual, badli or other types of workmen, if any, for whom company was<\/p>\n
    entitled to lay down separate service condition. As aforesaid, even the de<\/p>\n
    jure permanent workmen are permanent workmen and therefore covered by<\/p>\n
    the term daily-rated permanent workers referred to in the settlement.\n<\/p>\n
    16.          To my mind, clause 26 preserves the privilege of the Petitioner<\/p>\n
    company to provide for separate service condition only in respect of<\/p>\n
    temporary, casual, badli or other types of workmen(other than the daily-\n<\/p>\n
    rated permanent workmen). Since the workmen named in Annexure-A, in<\/p>\n
    law, are covered by the expression daily- rated permanent workmen, it will<\/p>\n
    not be open to the Petitioner company to provide for separate service<\/p>\n
    conditions qua them. According to the Petitioner, the later part of clause 26<\/p>\n
    is self eloquent as it indicates that the settlement will be applicable only to<\/p>\n
    those daily rated workmen, who are on the roll of the company on the date<\/p>\n
    of signing of the settlement and who sign it. This clause will have to be<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                         30<\/span><\/p>\n
    construed to mean that the settlement is applicable to those daily-rated<\/p>\n
    workmen, who are de facto permanent or de jure permanent on the relevant<\/p>\n
    date. Indeed, the names of the de facto permanent workmen would be on<\/p>\n
    the rolls of the company       as permanent workmen; whereas de jure<\/p>\n
    permanent workmen would be deemed to be on the rolls of the company as<\/p>\n
    permanent workmen notwithstanding the fact that the Company has shown<\/p>\n
    them on the rolls of temporary workmen.\n<\/p>\n
    17.<\/p>\n
                Emphasis was then also placed on Clause 27 of the agreement,<\/p>\n
    which provides that all the daily-rated permanent workmen who are on the<\/p>\n
    rolls of Company will sign the settlement as token of their acceptance of<\/p>\n
    the terms of that settlement and then only the settlement will be applicable<\/p>\n
    to them. This clause does not militate against the claim of the workmen<\/p>\n
    named in the Annexure A to the complaint merely because they have been<\/p>\n
    wrongly treated as temporary workmen by the management inspite of the<\/p>\n
    fact that the   law recognises them as       permanent workmen, having<\/p>\n
    completed uninterrupted service of over 240 days on the relevant time in the<\/p>\n
    preceding 12 months of the calendar year. The fact that this workers did not<\/p>\n
    have the opportunity of signing the settlement does not mean they can be<\/p>\n
    deprived of the settlement. That is only a ministerial act to be performed<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                           31<\/span><\/p>\n
    once the named workmen are given the status of permanent workmen. Any<\/p>\n
    other view would result in perpetrating injustice and discrimination between<\/p>\n
    similarly placed persons.\n<\/p>\n
    18.          Counsel for the Respondent has rightly invited my attention to<\/p>\n
    the dictum of the Apex Court in the case of Bajaj Auto Ltd. Vs. Bhojane<\/p>\n
    Gopinath [(2004) 9 SCC 488]. The Apex Court with particular reference to<\/p>\n
    the provision of the Industrial Employment (Standing Order) Act, 1946,<\/p>\n
    applicable in the State of Maharashtra after incorporating State amendment<\/p>\n
    together with the State Rules and Model Standing Orders prescribed<\/p>\n
    thereunder, held that subsection 2 of section 3 lays down that the provision<\/p>\n
    shall be made in such draft for every matter set out in the Schedule which<\/p>\n
    may be applicable to the industrial establishment, and             where Model<\/p>\n
    Standing Orders have been prescribed, shall be, so far as is practicable, in<\/p>\n
    conformity with the model standing order. It is further held that under<\/p>\n
    section 4 Standing Orders shall be certifiable, if provision is made therein<\/p>\n
    for every matter set out in the Schedule, which is applicable to the industrial<\/p>\n
    establishment and the standing orders are otherwise in conformity with the<\/p>\n
    provisions of the Act. Inasmuch as, duty is cast on the certifying Officer<\/p>\n
    or the Appellate Authority to adjudicate upon the fairness and<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                                 32<\/span><\/p>\n
    reasonableness of the provisions of any draft standing orders.                              In<\/p>\n
    paragraph-10, the Apex Court while considering the efficacy of rule 4-C<\/p>\n
    proceeded to observe thus:\n<\/p>\n
                  “… Rule 4-C was incorporated in the Model Standing Orders which lays<\/p>\n
                  down that a temporary workman who has put in 240 days’ uninterrupted
\n                  service in the aggregate in any establishment during a period of preceding
\n                  twelve calender months, shall be made permanent in that establishment by
\n                  order in writing signed by the Manager or any person authorised in that<\/p>\n
                  behalf by the Manager, irrespective of whether or not his name is on the
\n                  muster roll of the establishment throughout the period of the said twelve
\n                  calendar months. Rule 4-C in the Model Standing Orders has been<\/p>\n
                  incorporated relating to the matter set out in Item 10-C of the Schedule, as
\n                  such deletion of the said rule by the Certifying Officer, being in the teeth
\n                  of legislative command incorporated in the proviso to Section 3(1), was<\/p>\n
                  wholly without jurisdiction and would make the order of the Certifying
\n                  Officer to that effect null and void and liable to be disregarded as it is well
\n                  settled that if an order is null and void, the same can be disregarded in
\n                  collateral proceeding or otherwise. Reference in this connection may be
\n                  made to decision of this Court in the case of Dhurandhar Prasad Singh v.\n<\/p><\/blockquote>\n
                  Jai Prakash University.”\n<\/p><\/blockquote>\n
    Applying the principle expounded by the Apex Court, it would necessarily<\/p>\n
    follow that     it was not open to the management to deprive deemed<\/p>\n
    permanent workmen of the benefit, which is extended to the permanent<\/p>\n
    workmen as on 3rd February, 1999. Any other view would necessarily<\/p>\n
    result in permitting the management to show favouritism to one set of<\/p>\n
    workers regardless of merits. Indeed, that situation would attract Item 5 of<\/p>\n
    Schedule IV which reads:\n<\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                            33<\/span><\/p>\n
                 “5. To show favouritism or partiality to one set of workers,
\n                 regardless of merits.”\n<\/p>\n
    This grievance is expressly noted in the complaint filed before the lower<\/p>\n
    Court.   Amongst other in paragraph-3(c) whether the Respondent have<\/p>\n
    alleged that the Petitioners have discriminated discriminating amongst the<\/p>\n
    employees and are denying and depriving the permanency and its benefits<\/p>\n
    and privileges so also the benefits of the settlement dated 3 rd February,<\/p>\n
    1999, to the employees named in the Annexure-A to the Complaint. It is a<\/p>\n
    different matter that no specific relief is claimed by the union in the context<\/p>\n
    of item 5 of Schedule IV of the Act.\n<\/p>\n
    19.          Counsel for the Respondent has rightly pressed into service<\/p>\n
    dictum of Apex Court in the case of Oswal Agro Furnace Ltd. V\/s. Workers<\/p>\n
    Union reported in (2005) 3 SCC 224. In paragraph-15 of this decision, the<\/p>\n
    Apex Court has expounded that settlement within the meaning of section<\/p>\n
    2(p) read with sub section 3 of Section 18 of the Act undoubtedly binds the<\/p>\n
    workmen but the question which would arise is, would it mean that thereby<\/p>\n
    provisions contained in section 25-N and 25-O are not required to be<\/p>\n
    complied with ? It went on to answer the said question in the negative. It<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                              34<\/span><\/p>\n
    has further opined that settlement can be arrived at between the employer<\/p>\n
    and workmen. But, an Industrial dispute may arise as regards validity of a<\/p>\n
    retrenchment or a closure or otherwise. Such a settlement, however, as<\/p>\n
    regards retrenchment or closure can be arrived at provided such<\/p>\n
    retrenchment or closure has been effected in accordance with the law. In<\/p>\n
    paragraph-16 the Apex Court went on to observe as follows:\n<\/p>\n
                 “16. It is trite that having regard to the maxim “ex turpi causa non oritur<\/p>\n
                 actio”, an agreement which opposes public policy as laid down in terms of
\n                 Sections 25-N and 25-O of the Act would be void and of no effect.
\n                 Parliament has acknowledged the governing factors of such public policy.\n<\/p><\/blockquote>\n
                 Furthermore, the imperative character of the statutory requirements would
\n                 also be borne out from the fact that in terms of sub-section (7) of Section
\n                 25-N and sub-section (6) of Section 25-O, a legal fiction has been created.
\n                 The effect of such a legal fiction is now well known. (See East End
\n                 Dwellings Co.Ltd. v. Finsbury Borough Council, Om Hemrajani v. State<\/p>\n
                 of U.P. And Maruti Udyog Ltd. v. Ram Lal.\n<\/p><\/blockquote>\n
    Suffice it to observe that merely because the Respondent union is party to<\/p>\n
    the settlement dated 3rd February, 1999 that would not preclude the union to<\/p>\n
    espouse the cause of the workmen named in the Annexure-A to the<\/p>\n
    Complaint.\n<\/p>\n
    20.          We may usefully refer to the decision of the Division Bench of<\/p>\n
    our High Court in the case of R.P.Sawant Vs. Bajaj Auto Ltd. (Supra). In<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                             35<\/span><\/p>\n
    paragraph-40 of this decision, settled legal position has been restated. The<\/p>\n
    Court observed thus:\n<\/p>\n
                “40. With regard to the Complaint of unfair labour practice under Item 9<\/p>\n
                of Schedule IV of the 1971 Act by contravention of Model Standing
\n                Orders, Mr.Singh rightly urges that the learned Single Judge has dismissed
\n                it without any reason. Mr. Singh rightly relied on the judgment of the
\n                Division Bench of this Court in Borosil Glass Works Ltd. v. M.G.Chitale,<\/a>
\n                1974 I LLJ 184, and the judgment of the Division Bench of this Court in<\/p>\n
                The Premier Automobiles Ltd. v. The Engineering Mazdoor Sabha & Ors.<\/a>
\n                1976 ICR 206 as also the judgment of the Single Judge of this Court<\/p>\n
                (Nagpur Bench) in Mill Manager, S.R.Mills v. Industrial Court, Nagpur,<\/a>
\n                1987(1) Bom.C.R. 517, to urge that the provisions of Standing Orders –<\/p><\/blockquote>\n
                whether Model or Service – are mandatory and contravention thereof will<\/p>\n
                be an unfair labour practice within the meaning of Item 9 of Schedule IV
\n                of the 1971 Act.”(emphasis supplied)<\/p>\n
    Relying on this observation the Respondent would rightly argue that the<\/p>\n
    Petitioner having failed to recognize the workmen named in Annexure-A<\/p>\n
    have acted in contravention of Model Standing Order, that itself would<\/p>\n
    attract unfair labour practice within the meaning of item 9 of Schedule IV of<\/p>\n
    the Act. I am in agreement with this contention. In any case, for the<\/p>\n
    reasons already discussed in the earlier part of this order, I hold that the<\/p>\n
    workers named in Annexure-A to the complaint were entitled for the same<\/p>\n
    benefit provided to their counter-part daily rated permanent workmen under<\/p>\n
    the settlement dated 3rd February, 1999. For that reason, there has been<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                          36<\/span><\/p>\n
    failure on the part of the Petitioner-company to implement the said<\/p>\n
    settlement, attracting Item 9 of Schedule IV of the Act, 1971.\n<\/p>\n
    21.          I shall now revert to the other contention canvassed on behalf<\/p>\n
    of the Petitioner. It was argued that the Petitioner had treated the named<\/p>\n
    workmen in Annexure-A to the Complaint as separate set of workers and<\/p>\n
    were being offered separate service conditions, which were permissible.\n<\/p>\n
    Indeed, this stand has been taken in the reply filed before the lower Court.\n<\/p>\n
    The question is: whether it was open to the Petitioner to treat the deemed<\/p>\n
    permanent workmen differently than the permanent workmen in service at<\/p>\n
    the relevant time. If this contention is to be accepted, it would inevitably<\/p>\n
    attract unfair labour practice within the meaning of Item 5 of Schedule IV.\n<\/p>\n
    As a matter of fact, the stand taken by the Petitioner presupposes that the<\/p>\n
    object of not recognizing the named workmen as permanent workmen was<\/p>\n
    with a view to deprive them of their status and privileges of permanency,<\/p>\n
    which were extended to the permanent employees. It was argued that the<\/p>\n
    Petitioner had consciously provided for separate service conditions for the<\/p>\n
    named workmen and if the Petitioner was required to treat these workmen<\/p>\n
    on par with the other permanent workmen, Petitioner would not be in a<\/p>\n
    position to bear the financial implications. It is not possible to countenance<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                          37<\/span><\/p>\n
    this argument. The fact that the Petitioner would suffer additional financial<\/p>\n
    burden, if the named workmen were to be treated on par with the permanent<\/p>\n
    workmen cannot be the basis to legitimize discriminatory treatment meeted<\/p>\n
    out to similarly placed workmen. As aforesaid, the named workmen though<\/p>\n
    treated temporary workmen by the Petitioner company, in fact, on account<\/p>\n
    of legal fiction were already permanent workmen on completion of 240<\/p>\n
    days’ continuous and uninterrupted service in the aggregate. On completion<\/p>\n
    of such qualifying service they have automatically acquired the status of<\/p>\n
    permanent workmen. In settlement, no reference is made to the fact that the<\/p>\n
    same is applicable only to workmen, who are appointed on or after a<\/p>\n
    particular date. The generality of provisions in clause 22, 26 and 27 cannot<\/p>\n
    be the basis to hold that there was express understanding or for that matter<\/p>\n
    implied settlement that workmen appointed on or after 1996, 1998 will be<\/p>\n
    covered by separate service conditions. That is not the settlement between<\/p>\n
    the Petitioner and the Union. Suffice it to mention that similar argument<\/p>\n
    regarding financial implications was considered by the Apex Court in the<\/p>\n
    case of Chief Conservator of Forests (Supra) and came to be negatived on<\/p>\n
    the reasoning that the same is one of desperation or in terrorem. The Court<\/p>\n
    opined that the fact remains that on the finding that the Petitioner has<\/p>\n
    indulged in commission of unfair labour practice within the meaning of<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                              38<\/span><\/p>\n
    Item 6 as well as Item 9, it is the duty of the Court to issue appropriate<\/p>\n
    direction to meet the ends of justice.\n<\/p>\n
    22.          It was then argued that the allegation on the basis of which the<\/p>\n
    Union instituted complaint was barred by limitation.               Inasmuch as,<\/p>\n
    appointment of concerned workmen was in 1996, 1997 and 1998<\/p>\n
    respectively, whereas complaint is filed on 17th October, 2002. It was also<\/p>\n
    argued that the demand regarding permanency of the named workmen was<\/p>\n
    given up while entering into settlement on 3rd February, 1999. Taking last<\/p>\n
    argument first, the same is already dealt with in the earlier part of this<\/p>\n
    Judgment. In the first place, the management witness has conceded in his<\/p>\n
    evidence that dropping of demand was in respect of different set of workers.\n<\/p>\n
    In any case, named workmen cannot be denuded of their right to agitate<\/p>\n
    about the illegality and unfair labour practice committed by the Petitioner<\/p>\n
    qua them. Insofar as the claim being barred by limitation and the Industrial<\/p>\n
    Court could not have entertained complaint unless delay in filing complaint<\/p>\n
    is condoned is concerned, the same is ill-advised. It is well established<\/p>\n
    position that unfair labour practice referable to Item 6, Item 9 are continuing<\/p>\n
    and recurring in nature, as has been found in the case of Maharashtra State<\/p>\n
    Co-op. Cotton Growers Marketing Federation Ltd. & Anr. V\/s. Maharashtra<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                           39<\/span><\/p>\n
    State Co-op. Cotton Growers Marketing Federation Emp.Union & Ors.\n<\/p>\n
    reported in 1992 1 CLR 350. The substance of the grievance of the named<\/p>\n
    workmen is that they were denied wages and benefits as made available to<\/p>\n
    their counter-part permanent workmen in terms of settlement dated 3rd<\/p>\n
    February,1999.    Non-payment of wages on par would give rise to the<\/p>\n
    recurring cause of action. If it is so, question of complaint in relation to<\/p>\n
    such unfair labour practice being barred by limitation does not arise.\n<\/p>\n
    23.<\/p>\n
                 It was also argued that there is no pleading in the complaint to<\/p>\n
    the effect that breach has been committed qua the named workmen in<\/p>\n
    relation to the settlement to attract item 9 of Schedule IV. This argument<\/p>\n
    deserves to be stated to be rejected. The complaint, if read as a whole, there<\/p>\n
    is sufficient reference to the act of commission and omission of the<\/p>\n
    Petitioner resulting in breach of settlement attracting Item 9 of the Schedule<\/p>\n
    IV of the Act. In paragraph-3(d) of the complaint, it is asserted that no<\/p>\n
    satisfactory reply was given by the Petitioner-company for having failed to<\/p>\n
    comply with the settlement dated 6th December, 1971 or the award dated 19th<\/p>\n
    March, 1980 or the settlement dated 21st February, 1996 and settlement<\/p>\n
    dated 3rd February, 1999. It is further asserted that the Petitioner-company<\/p>\n
    continued to breach\/violate the said settlements and award thereby denying<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                           40<\/span><\/p>\n
    and depriving the employees named in Annexure-A to the Complaint the<\/p>\n
    status of permanency and its benefits and         privileges, knowingly and<\/p>\n
    deliberately. Suffice it to observe that on a fair reading of the complaint as<\/p>\n
    a whole, it makes out a clear case for attracting Item 9 of Schedule IV of the<\/p>\n
    Act.\n<\/p>\n
    24.    It was also argued that relief in terms of      prayer clause (d) was<\/p>\n
    unavailable to the Respondent in absence of pleadings in respect of non-\n<\/p>\n
    compliance of settlement dated 21st February, 1996. In the first place, this<\/p>\n
    argument overlooks the nature of final relief granted by the Industrial Court.\n<\/p>\n
    The Industrial Court has declared that the Petitioner has engaged in unfair<\/p>\n
    labour practice under item 6 and 9 of the Schedule IV of the Act and<\/p>\n
    directed the Petitioner to cease and desist from engaging in such practice.\n<\/p>\n
    The Lower Court has further declared that employees concerned are entitled<\/p>\n
    for status of permanency as well as permanency benefits in pursuance of the<\/p>\n
    agreements entered into by the Respondent union with effect from the date<\/p>\n
    of completion of 18 months continuous service by the concerned each<\/p>\n
    employee. On the finding recorded by the lower Court, direction as issued<\/p>\n
    against the Petitioner was inevitable, rather it was the duty of the Industrial<\/p>\n
    Court to issue such direction.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                            41<\/span><\/p>\n
    25.          It was next contended that the evidence adduced by the<\/p>\n
    Respondent-union was clearly in variance with the case made out in the<\/p>\n
    complaint and was in relation to the matters, which have already been given<\/p>\n
    up by the union. The argument though attractive, at the first blush, will<\/p>\n
    have to be stated to be rejected. The lower Court has decided the matter on<\/p>\n
    the basis of relevant facts, which have been either admitted by the Petitioner<\/p>\n
    company in its pleadings or in evidence by its witness. Even this Court has<\/p>\n
    proceeded on the same basis. The facts which have been referred to in the<\/p>\n
    earlier part of the Judgment, in no way, are disputed. Rather those facts are<\/p>\n
    indisputable.   In the circumstances, it is not necessary to burden this<\/p>\n
    Judgment with the nature of variance in the evidence and the related issues,<\/p>\n
    as those aspect will not take the matter any further for the Petitioner.\n<\/p>\n
    26.          During the course of argument, it was contended on behalf of<\/p>\n
    the Petitioner that although original complaint was filed to espouse the<\/p>\n
    cause of 21 workmen named in Annexure-A to the Complaint, however, out<\/p>\n
    of the said 21 workmen 16 workmen have already accepted the offer made<\/p>\n
    to them by the Petitioner company. Whereas, only five workmen amongst<\/p>\n
    21 workmen have accepted the offer without prejudice to their rights and<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                           42<\/span><\/p>\n
    contention in the pending proceedings. That development will be of no<\/p>\n
    avail to the Petitioner. The fact remains that atleast five employees have<\/p>\n
    persisted with their demand for permanency and giving parity alongwith<\/p>\n
    other daily rated permanent workmen employed by the Petitioner. The<\/p>\n
    claim put forth on behalf of the said five workmen will have to be accepted<\/p>\n
    on the finding that the petitioner-company will be obliged to comply with<\/p>\n
    the mandate of law by treating each of the workmen who has become<\/p>\n
    permanent on completion of qualifying service and as a consequence grant<\/p>\n
    same benefits extended to other permanent workmen employed during the<\/p>\n
    relevant time.\n<\/p>\n
    27.            It was also contended that the lower Court has not recorded a<\/p>\n
    clear finding about breach of Item 9 of Schedule IV of the Act. It has only<\/p>\n
    recorded the fact that the workmen were not party to the settlement, for<\/p>\n
    which the settlement was not binding on them. In my opinion, the Judgment<\/p>\n
    of the Industrial Court has mixed up the discussion with regard to the<\/p>\n
    violation of     two separate items of Schedule IV. It would have been<\/p>\n
    appropriate, if the Court below were to deal with each item separately so<\/p>\n
    that a clear finding in respect of each item could be discerned. Suffice it to<\/p>\n
    observe that it is not as if the lower Court has not recorded any finding<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                          43<\/span><\/p>\n
    regarding violation of item 9 of Schedule IV. If the Judgment from<\/p>\n
    paragraph-10 on wards till paragraph-19 is read as a whole, it would appear<\/p>\n
    that the lower Court has addressed to the violation of both the items albeit<\/p>\n
    together. In my opinion, some error here or there cannot be the basis to<\/p>\n
    overturn the entire Judgment of the lower Court, which is otherwise based<\/p>\n
    on tangible material and cogent basis.\n<\/p>\n
    28.          It was then argued that the question regarding applicability of<\/p>\n
    settlement could not be gone into while considering complaint under the<\/p>\n
    provisions of Act of 1971. To buttress this submission, reliance was placed<\/p>\n
    on the general observations made by the Apex Court in Cipla Ltd. Vs.<\/p>\n
    Maharashtra General Kamgar Union & Ors. [(2001) 3 SCC 101].                     This<\/p>\n
    argument deserves to be stated to be rejected. Inasmuch as, it is not the case<\/p>\n
    of the Petitioner that there was no relationship of employer and employee.\n<\/p>\n
    Once relationship was indisputable, all incidental matters to answer the<\/p>\n
    claim in the complaint was required to be addressed by the Industrial Court<\/p>\n
    for complete and effectual adjudication of the complaint. In that context,<\/p>\n
    the Court below was required to consider as to whether the settlement dated<\/p>\n
    3rd February, 1999 and\/or other settlements were applicable to the deemed<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>
\n                                           44<\/span><\/p>\n
    permanent workmen, such as named workmen in Annexure-A to the<\/p>\n
    complaint.\n<\/p>\n
    29.          Taking over all view of the matter, therefore, Petition is devoid<\/p>\n
    of merits. The same should fail. Accordingly, the Petition is dismissed with<\/p>\n
    costs.\n<\/p>\n
    30.          At this stage, Counsel for the Petitioner prays that interim<\/p>\n
    arrangement operating during the pendency of the Petition be continued for<\/p>\n
    some time to enable the Petitioner to carry the matter in appeal.\n<\/p>\n
    Accordingly, it is ordered that the interim arrangement, which operated<\/p>\n
    during the pendency of this Petition shall continue till 31st January, 2009.\n<\/p>\n
                                                  (A.M.KHANWILKAR,J)<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:58:16 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Indian Smelting And Refining … vs Sarva Shramik Sangh on 13 October, 2008 Bench: A.M. Khanwilkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.3123 OF 2005 Indian Smelting and Refining Co.Ltd. ..PETITIONER VS. Sarva Shramik Sangh ..RESPONDENT Mrs.Meena Doshi with Ms.Naina Dutia i\/b Nameet […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-180487","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nIndian Smelting And Refining ... vs Sarva Shramik Sangh on 13 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indian-smelting-and-refining-vs-sarva-shramik-sangh-on-13-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indian Smelting And Refining ... vs Sarva Shramik Sangh on 13 October, 2008 - 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