{"id":42061,"date":"2006-04-05T00:00:00","date_gmt":"2006-04-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dewoo-krishna-gawde-and-ors-vs-shri-ram-mills-and-ors-on-5-april-2006"},"modified":"2018-07-13T03:38:18","modified_gmt":"2018-07-12T22:08:18","slug":"dewoo-krishna-gawde-and-ors-vs-shri-ram-mills-and-ors-on-5-april-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dewoo-krishna-gawde-and-ors-vs-shri-ram-mills-and-ors-on-5-april-2006","title":{"rendered":"Dewoo Krishna Gawde And Ors. vs Shri Ram Mills And Ors. on 5 April, 2006"},"content":{"rendered":"
Bombay High Court<\/div>\n
Dewoo Krishna Gawde And Ors. vs Shri Ram Mills And Ors. on 5 April, 2006<\/div>\n
Equivalent citations: 2006 (3) BomCR 246, 2006 (4) MhLj 578<\/div>\n
Author: S Kamdar<\/div>\n
Bench: S Kamdar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S.U. Kamdar, J.<\/p>\n
1. The present petition challenges the order  and judgment passed by the Industrial Court in  Complaint (ULP) No. 282 of 1997. Some of the  material facts, briefly stated, are as under :\n<\/p>\n
2. The respondent no. 1 is a textile mill and  had at one point of time around 4000 employees. The  petitioner workers are employed by the respondent  company for last many years and according to the petitioners they were given work upto 30.7.1996 and  with effect from 1.8.1996 no work is given to them.  It is the case of the petitioners that the contract  of employment between the petitioners and the  respondents is still subsisting and valid.\n<\/p>\n
3. Sometime in or about 1987 the company was  referred to the Board for Industrial and Financial  Reconstruction (BIFR) under the provisions of the  Sick Industrial Companies (Special Provisions) Act,  1985 (hereinafter referred to as SICA). On  31.10.1991 under section 18 of the said Act the  revival scheme was sanctioned. Under the said  scheme it was provided that the company will operate  1,22,576 spindles, 14,449 looms and process about  80,000 meters of cloth per day. It was also  provided that the company will carry out  modernisation of the plant and machinery. It is the  case of the petitioners that no modernisation was  carried out but in place of doing so various  departments of the respondent company were slowly  and slowly closed down and thus the respondent  company indulged in illegal closure of certain  departments and consequently stoppage of the work  for the various employees. Various employees  thereafter filed complaints through the unrecognised  union in the Industrial Court under the provisions  of the Maharashtra Recognition of Trade Unions and  Prevention of Unfair Labour Practices Act  (hereinafter referred to as the MRTU & PULP Act).  It is the case of the petitioners that during the  pendency of the said complaint which was represented  by Shriram Mill Kamgar Sanghatana around 2200  workers were forced to resign. Ultimately an order  came to be passed by the BIFR recommending winding  up of the company . The Company preferred an appeal  before the appellate authority under SICA and after  hearing the said appeal a fresh revival scheme was  sanctioned on 11.10.1994 by AAIFR. Under the said  scheme the capacity and functioning of the mill was  reduced and the company was required to operate only  40,000 spindles and process 50,000 meters of grey  cloth. Consequently about 1400 workers only were to  be retained and the balance workers were to be  retrenched from the service. Under the said  redevelopment scheme it was also provided that the  land belonging to the respondent will be sold and  the money available from sale of surplus land and  FSI will be used in modernising of the remaining  departments of the said mill. It is the case of the  petitioners that though the excess land was sold no  scheme was implemented. Instead all the 1400  permanent workers who were required to be kept in  employment by AAIFR were forced to resign and the  entire mill has been closed down without obtaining  permission from the State Government and without  complying with the provisions of law. According to  the petitioners, the said mill is closed down since May, 1996. Sometime on or about 7.11.1996, the  respondent once again approached the AAIFR and got  the scheme modified. The said scheme envisaged  further reduction of the work-force and sale of  additional land of about 28000 sq. mtrs. Under the  new scheme the company was obliged only to employ  189 workers and the balance were retrenched.  However, it is the case of the petitioners that even  prior to the amended scheme, the company has been  entirely closed down. It is the case of the  petitioners that about 1200 workers accepted the  voluntary retirement scheme but the petitioners  continued to work upto 31.7.1996 in the ring  department as substitute employees in place of  permanent employees. On 1.8.1996, when they  reported for work they were told that there is no  work and that they must continue reporting for work  and would be provided work as and when available.  In the meantime, the respondent company started  recruiting contract workers and, therefore, the  petitioners registered a complaint before the Labour  Commissioner regarding the illegal employment of  contract workers. By letter dated 13.11.1996, the  Labour Commissioner directed the respondent company  to provide work to the petitioners in preference to  the contract workers. In fact contractors M\/s.  Gurubachan Enterprises has been fined under the  Contract Labour Act also. However, in view of the  persistent refusal of the respondent to give work to the petitioners, the petitioners filed a complaint  of unfair labour practice under item 9 of Schedule  IV of the MRTU & PULP Act in the Industrial Court.  They filed two separate complaint being Complaint  (ULP) No. 282 of 1997 and Complaint (ULP) No. 282  of 1997. The said complaints were in respect of two  different groups of workers. It is the case of the  petitioners that though they were employees of the  respondent company and they had completed 240 days  of continuous service in number of years in respect  of their past service, they were not provided with  work and their work was given to the contract  workers. It is their case that they have achieved a  permanent status by virtue of working for 240 days  continuously in many of the previous years. It is  thus contended that the petitioners have achieved  the permanent status. It is the petitioners case in  para 9 of the petition that their services are  governed by the Standing Orders certified under the  Bombay Industrial Relations Act, 1946 (hereinafter  referred to as the BIR Act) and  agreements\/settlements entered into by the  respondent company with the representative union.  It is the further case of the petitioners that on  30.5.1995 the respondent company had entered into an  agreement with RMMS and under clause 9 of the said  agreement dated 30.5.1995 it was provided that the  respondent will not employ any contract workers for  the normal functioning of the company. Thus, by the complaint, the petitioners sought two-fold relief  (i) that they should be regularised and absorbed in  a regular employment and should be given permanency  and (ii) that the respondent should be restrained  from engaging contract workers. Both the said  complaints were heard together and after leading of  evidence and hearing of the parties, the impugned  order has been passed. The petitioner has led the  evidence of three witnesses. It is this order of  the Industrial Court which is a common order passed  in respect of both the complaints being the order  dated 27.2.1998 against which the present writ  petition has been filed.\n<\/p>\n
4. The complaint of the petitioners were for  various reliefs but in essence the relief sought is  two-fold (i) in prayer (d) that the respondent  should be directed to assign work to the  complainants on the posts which fell vacant and  further to declare them permanent employees on those  posts and (ii) that the petitioners should be  restrained from employing contract labour in the  premises of the respondent no. 1 mil. By the  impugned order and judgment the Industrial Court has  granted part relief i.e. a declaration has been  given that the petitioner workers should approach to  the RMMS Union for taking up the case of abolition  of the permanent posts and their claim for  permanency in place of the permanent employees. It is because RMMS is only the representative union  which can raise the said dispute. In so far as the  prayer that the respondent cannot engage contract  employees is concerned, it has been granted by  holding that if the contract employees are engaged  then equal opportunity should also be given to the  petitioners on the said vacant posts. RMMS being  the recognised union is also directed to take up the  issues of badli workers i.e. the case of the  petitioners herein and ultimately finding is given  that the unfair labour practice under item 9 of  Schedule IV of the MRTU & PULP Act has been partly  proved.\n<\/p>\n
5. The learned counsel appearing for the  petitioners has contended before me that in so far  as rejection of their claim of being granted  permanency because they have completed 240 days  continuous service in the respondent mill is  concerned, the direction given to take up the issue  with the RMMS union is challenged by the petitioners  herein. In so far as the grant of relief i.e. the  respondent should not engage the contractors workers  and the petitioners should be given an equal  opportunity, that part of the order is not  challenged. The learned counsel for the petitioners  in support of the aforesaid reliefs sought in the  present petition has contended that they have  admittedly completed 240 days of continuous work in the mill establishment and they were allowed to work  in the mill premises right upto 31.7.1996 when for  the first time the respondent company stopped the  petitioners from work and employed contract workers  in place of badli workers. It has been further  contended that by virtue of the aforesaid, the  respondent company has committed unfair labour  practice under item 9 of Schedule IV of the MRTU &  PULP Act and, therefore, the trial Court ought to  have granted all the reliefs and ought not to have  relegated the petitioners to approach the RMMS being  the recognised union for part of the reliefs. In  support of the aforesaid contention it has been  contended that it is settled law that violation of  legal provisions would amount to unfair labour  practice under item 9 of Schedule IV of the MRTU &  PULP Act and in support thereof a judgment has been  relied upon in the case of S.G. Chemicals and Dyes  Trading Employees Union v. SG Chemicals and Dyes  Trading Ltd. and<\/a> anr.   being para 23. It has been contended that the  contention of the respondent that the badli passes  of the petitioner workers were cancelled and that  the posts were abolished and that, therefore, they  were not liable to provide work is unsustainable  because the passes of the petitioners are not  cancelled and for abolition the mill has to follow  the procedure for reducing posts as provided in BIR  Act.\n<\/p>\n
6. It is further contended that at any rate  once the badli worker complete 240 days of  continuous service, he ought to be made permanent  irrespective of whether there are posts available or  not. In support of the aforesaid contention, the  judgment of this Court has been relied upon in the  case of National Textile Corporation (NM) Ltd.,  Mumbai v. Shivaji Gopal Gorule and Anr. reported in  2001 (2) Mh. L.J. 120. It has been further  contended that there is no requirement under clause  4C of the Standing Orders that 240 days must be in  respect of employment on one particular post. It  has been further contended that the mills are still  undertaking certain activities and, therefore, the  petitioners must be provided with the work. The  learned counsel has thereafter contended that though  it is true that the petitioners are badli workers,  but according to the learned counsel the said badli  workers have also been conferred with certain  rights. It has been contended that the badli  workers who have completed 240 days of continuous  work cannot be terminated without following due  process of law and in support of the aforesaid  judgement reliance has been made on the judgment of  this Court in the case of Raymonds Woollen Mills  Ltd. v. C.S. Sonawane and Ors. reported in 1993  II CLR 112 and on the judgment of Gujarat High Court  in the case of Deputy Executive Engineer v. Jiviben V. Pandya reported in 2000 II CLR 881. It has  been contended thus that not granting of the work to  the badli workers and to terminate their services  without following due process of law is illegal.  Reliance is also placed on the judgment of the Apex  Court in the case of the the Premier Automobiles  Employees’ Union and ors. v. Premier Automobile  Ltd. and Ors. reported in 1987 I CLR 302. It is  thus contended that the petitioners having completed  240 days they should have been absorbed and given a  permanent status in the respondent employment.\n<\/p>\n
7. On the other hand, the learned counsel  appearing for the respondents has contended that the  order passed by the lower authority is legal and  valid. It has been contended by the learned counsel  for the respondent that admittedly item 9 of  Schedule IV pertains to only failure to implement  any settlement, agreement, award. It has been  further contended that there is no dispute that in  so far as the service conditions of the petitioners  are concerned, the same are governed by the standing  orders for operatives. It has been contended that  under clause 3 of the said standing orders, the  operatives are classified as permanent,  probationary, badlies, temporary and apprentices.  The badli worker is one who is employed on the post  of permanent operative or probationer who is  temporarily absent. It has been further contended that the right of the badli workers are thus  governed by the said standing orders. It has been  further contended that by notification issued on  16.10.1981 the said model standing orders for  operatives in respect of textile industries are  amended and clause 4C has been provided for. It has  been contended that under clause 4C a badli or  temporary operative who has put in 240 days  uninterrupted service in the aggregate in any other  undertaking during a period of 12 preceding calendar  months, is required to be made permanent in that  undertaking by an order in writing signed by the  manager or any person authorised in that behalf by  the manager irrespective of whether or not his name  is on the muster roll of the undertaking throughout  the period of the said twelve calendar months. It  has been contended that the present complaint which  has been filed does not proceed on the footing of  any violation of clause 4C as amended by the Model  Standing orders. The complaint proceeds on the  footing that merely on completion of 240 days in an  earlier 12 calendar months the petitioner employees  have acquired a status of permanent employee. It  has been contended that there is no pleadings in the  present complaints indicating that they have claimed  any breach of clause 4C of the standing orders. The  learned counsel for the respondents has drawn my  attention to the pleadings in the complaint which  inter alia indicates that in fact the petitioners are claiming to be absorbed as permanent workers.  It has been brought to my notice that a person who  seeks to be absorbed as a permanent worker who is in  fact a badli or a casual or temporary workers then  he has to apply under item 6 of Schedule IV of the  MRTU & PULP Act. It has been further drawn to my  attention that for the purpose of making an  application under item 6 of Schedule IV the  complaint must be only by a recognised union under  Section 21 of the MRTU & PULP Act. Sub-section (2)  of Section 21 which inter alia provides that  notwithstanding anything contained in the Bombay  Act, no employee in any industry to which the  provisions of the Bombay Act, for the time being  apply, shall be allowed to appear or act or allowed  to be represented in any proceeding relating to  unfair labour practices specified in items 2 and 6  of Schedule IV of this Act except through the  representative of employees entitled to appear under  section 30 of the Bombay Act. It has been thus  contended that a complaint under item 2 and 6 of  Schedule IV has to be prosecuted by the union and  the cause can be taken up only by the union and not  by the individual employees. It is thus submitted  that, therefore, the Industrial Court has rightly  directed the cause to be taken up by the RMMS which  is the recognised union in the present case. It has  been contended that the pleadings in the complaint  are based on a claim of the petitioners of an absorption by virtue of completion of 240 days and  not on the basis of violation of clause 4C of the  Standing Orders. It has been submitted that the  pleadings are an important factor and in the absence  of pleadings about violation of clause 4C of the  amended standing orders, the petitioners are not  entitled to raise any such claim fork the first time  before this Court. It has been submitted that  neither in the pleadings nor in the evidence nor in  the arguments before the Industrial Court the  contention has been raised that there has been a  breach or violation of clause 4C of the amended  standing orders. In support of the aforesaid  contention, the learned counsel for the respondents  has relied upon the judgment of the Apex Court in  the case of Shankar Chakravarti v. Britania  Biscuit Company<\/a> reported in (1979) 3 SCC 371  particularly paras 32 and 33 thereof wherein it has  been held that the allegation which is not pleaded,  even if there is evidence in support of it, cannot  be examined because the other side had no notice of  it and if entertained it would be tantamount to  granting an unfair advantage to the first mentioned  party. It has been further held that this principle  applies equally to industrial adjudication. It has  been further pleaded that in any event in the  present case there is a scheme modified by the AAIFR  on 7.11.1996 and it overrides the provisions of the  model standing orders in view of clause 29 of the said model standing orders. The said clause 29  reads as follows :\n<\/p>\n
 29. Nothing contained in these Standing  Orders shall operate in derogation of any  law for the time being in force or to the  prejudice of any right under an agreement or  contract of service, custom, usage or award  applicable to the undertaking.\n<\/p>\n
It has been further contended that the provisions of  the SICA overrides the provisions of the model  standing orders and, therefore, the respondents  cannot be held liable for breach of any such model  standing orders.\n<\/p>\n
8. I have considered the contentions of both  the parties. Firstly, the complaint is admittedly  filed only under item 9 of Schedule IV of the MRTU &  PULP Act. The said item 9 of Schedule IV reads as  under :\n<\/p>\n
9. Failure to implement award, settlement  or agreement.”  It has been however contended before me that when  the question arises of a breach of settlement and  the standing orders amounts to a settlement between the parties then in that event the complaint is  maintainable under item 9 because it would cover the  violation of clause 4C of the standing orders which  is a part of the settlement. The aforesaid  submission, in my opinion requires to be rejected  for more than one reason. Firstly it is clear from  the pleadings in the complaint that there is no case  whatsoever made out of any breach or violation of  clause 4C which has been introduced by a  notification dated 16.10.1981. Secondly, the  pleadings before the Court are on the basis that by  virtue of completion of 240 days the petitioners  workers are entitled for absorption in a regular  employment. The pleadings as they sand before the  trial Court squarely fall under item 6 of Schedule  IV of the MRTU & PULP Act. The said item 6 of  Schedule IV of the said Act reads as under :\n<\/p>\n
 6. 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.”  If that is so then in my opinion, the trial Court  was right and justified by virtue of the provisions  contained under Section 21 of the MRTU & PULP Act,  that it is only the recognised union which is  entitled to take up the said cause. Admittedly, in the present case the recognised union has not filed  the complaint nor taken up the said cause. Once it  is so, then, in my opinion, the trial Court was  right and justified in directing that the recognised  union should be approached and they should take up  the cause of breach of item 6 of Schedule IV of the  MRTU & PULP Act. Thirdly, the contention is for the  first time advanced by the petitioner that in fact  the clause 4C provides for absorption if they have  completed 240 days even in the case of badli workers  and once it is so then not absorbing them amounts to  breach of standing orders. I do not find any such  complaint pleaded before the Industrial Court nor I  find from the reading of the workers evidence that  any such case is made out. In fact before the trial  Court the matter proceeded on the footing that the  petitioners are already permanent employees and  therefore, they should be absorbed in a permanent  employment and a direction was sought. The  petitioners are not the permanent employees because  even if clause 4C is read it is clear that the  petitioners are entitled to be permanent employees  but for becoming permanent employees the manager has  to issue orders in that behalf. Admittedly no such  orders have been issued. The petitioners have not  made a complaint before the trial Court that by  virtue of non-issuance of such orders under clause  4C, there is breach of clause 4C of the Standing  Orders. The petitioners have contended that the petitioners are regular employees and they should be  absorbed even though admittedly they are not the  badli workers and admittedly there is no absorption  by issuing orders as contemplated under clause 4 C  of the amended Standing Orders by the said  notification. In that view of the matter, it is not  possible to accept the contention of the petitioners  that the trial Court was wrong and not justified in  dismissing the complaint in part in so far as their  relief of getting absorption on the basis of their  permanent service by virtue of completion of 240  days in earlier 12 calendar months is concerned.\n<\/p>\n
9. The learned counsel for the petitioners  thereafter contended that even if clause 4C of the  Standing Orders is not pleaded still the petitioners  will be entitled to be treated as permanent  employees on completion of 240 days of uninterrupted  service in preceding 12 calendar months. In my  opinion, even if it is so, still the case will fall  under item 6 of Schedule IV of the MRTU & PULP Act  and it is only the recognised union who can take up  such contention. I am of the opinion that no case  is made out by the petitioners for interference with  the impugned order passed by the trial Court.  Except the relief of absorption the other reliefs  are already granted namely, the petitioners should  be given work by the respondent in an equal  opportunity as that of the contract workers and they should not be denied work. In so far as the  absorption is concerned, the Industrial Court has  given direction to the recognised union to take up  the said cause as it falls under item 6 of Schedule  IV of the MRTU & PULP Act. In that light of the  matter, I find no merit in the present petition and  accordingly the same is dismissed. However, there  shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Dewoo Krishna Gawde And Ors. vs Shri Ram Mills And Ors. on 5 April, 2006 Equivalent citations: 2006 (3) BomCR 246, 2006 (4) MhLj 578 Author: S Kamdar Bench: S Kamdar JUDGMENT S.U. Kamdar, J. 1. The present petition challenges the order and judgment passed by the Industrial Court in Complaint (ULP) […]<\/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-42061","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nDewoo Krishna Gawde And Ors. vs Shri Ram Mills And Ors. on 5 April, 2006 - 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\/dewoo-krishna-gawde-and-ors-vs-shri-ram-mills-and-ors-on-5-april-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dewoo Krishna Gawde And Ors. vs Shri Ram Mills And Ors. on 5 April, 2006 - 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