Secretary vs Ballarpur Industries Limited on 6 July, 2010

[Cites 53, Cited by 0]

Bombay High Court

Secretary vs Ballarpur Industries Limited on 6 July, 2010

Bench: B.P. Dharmadhikari

1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH

WRIT PETITION NO. 3944 OF 2006

Maharashtra Lok Kamgar Sanghatana,

registered under Trade Union Act, 1926
and having office at Berrack No. 4,
Sir Dindsha Vechche Road, Churchgate,
Mumbai 400 020, through its General

Secretary. ... PETITIONER
ig Versus

1. Ballarpur Industries Limited,

incorporated under Indian
Companies Act and having
manufacturing plant and office
at Ballarpur, District - Chandrapur,

Pin No. 442 901.

2. Member, Industrial Court,
Chandrapur. ... RESPONDENTS

Shri R.S. Upadhyay, Advocate for the petitioner.
Shri K.H. Deshpande, Senior Advocate with Shri R.E. Moharir,
Advocate for respondent No.1.
Shri J.B. Jaiswal, AGP for respondent No.2.

.....

CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT : JUNE 15, 2010.
DATE OF PRONOUNCING THE JUDGMENT : JULY 06, 2010.

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2
JUDGMENT :

By this writ petition filed under Articles 226 and 227 of Constitution of India, the petitioner - Union has challenged the order of Industrial Court dated 03.05.2006 in ULP Complaint No. 77 of 2000 (Old No. 964 of 2000) dismissing its complaint filed under items 5, 9 and 10 of Schedule IV of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as ULP Act), on the ground that the grievance was under item 6 of Schedule IV and being an unrecognized union, the petitioner was not competent to maintain ULP Complaint in relation to that item. The matter was heard by me in earlier roster in December 2008 and at that time because of contention of Respondent No. 1 - employer that it has got its own Standing Orders i.e. Certified Standing Orders, by reasoned order passed on 15.12.2008, the question about existence and applicability of such standing orders was remitted to Respondent No. 2 - Industrial Court at Chandrapur. The Industrial Court has passed an order on 24.08.2009 returning a ::: Downloaded on - 09/06/2013 16:06:35 ::: 3 finding that no such Standing Orders are available and applicable. That finding has been questioned by Respondent No. 1 by filing Civil Application No. 420 of 2010. It is also necessary to note that petitioner had earlier filed a ULP Complaint registered as 1286 of 1987 before the Industrial Court at Nagpur under items 5, 6 and 9 of Schedule IV and on its prayer to withdraw it, the Member Industrial Court on 05.09.2000 permitted its withdrawal with liberty to file fresh ULP Complaint in relation to items 5 and 9 and not in respect of item 6.

2. In this background, I have heard Shri Upadhyay, learned counsel for the petitioner - Union, Shri Deshpande, Senior Advocate with Shri Moharir, Advocate for respondent No.1 - employer and Shri Jaiswal, learned AGP for respondent No. 2 - Industrial Court.

3. After mentioning the brief history , Shri Upadhyay, learned counsel has urged that the learned Member of Industrial Court has erred in treating the complaint as one under item 6 of ::: Downloaded on - 09/06/2013 16:06:35 ::: 4 Schedule IV though the petitioner had never raised any grievance under that item and they specifically pointed out that the members belonging to it were being continued on daily wages from 1972 or 1982 till the date of filing of complaint. He points out that the details of service of individuals furnished along with complaint were not in dispute at all and hence completion of 240 days of continuous service has been established and admitted. Present complaint registered as ULP No. 77 of 2000 was specifically filed after withdrawal of earlier complaint and in the light of specific liberty then granted. The recourse to provisions of Order 23, Rule 1 of Civil Procedure Code or then finding that it is still a complaint under item 6 of Schedule IV is unsustainable and unwarranted. The application of mind by the learned Member of Industrial Court in this respect is perverse. He invites attention to grievance that employees on daily wages recruited later on were given permanency prior to these members of Complainant - Union and hence item 5 of Schedule IV was also correctly invoked. For same work its members were being paid substantially less wages than ::: Downloaded on - 09/06/2013 16:06:35 ::: 5 permanent workers. His contention is item 5 has got no bearing on item 6 in any way and that grievance needed to be looked into independently. Attention is invited to item 9 to urge that failure to comply with the provisions of Standing Orders is specifically covered under that item and as Clause 4-C of Model Standing Orders framed under Industrial Employment (Standing Orders) Act, 1986, (hereinafter referred to as Central Act) were not complied with and have been observed in breach, the learned Member of Industrial Court ought to have held that said unfair labour practice is established. He has invited attention to issues as framed by the Industrial Court to urge that because of its erroneous finding that the grievance filed under item 6 of Schedule IV and not under items 5 & 9 thereof, the complaint filed by an unrecognized union is held to be not maintainable.

He has also invited attention to discussion in this respect as contained in that order to urge that the partial treatment given to juniors by Respondent No. 1 has been overlooked. He further argues that the unfair labour practice under item 9 is continuing even today. He relies upon the subsequent order of Industrial ::: Downloaded on - 09/06/2013 16:06:35 ::: 6 Court dated 24.08.2009 to show how Certified Standing Orders are found to be not in existence and not regulating the present dispute. His contention is in any case provisions of Clause 4-C of Model Standing Orders are applicable because of mandatory requirement of provisions of Section 2-A of Central Act, 1947, to the employment of members of petitioner - Union with Respondent No. 1.

4. To show maintainability of complaint, applicability of Model Standing Orders framed under Central Act and to demonstrate how the provisions of items 5 & 9 need to be viewed and interpreted, he has invited attention to several judgments. He has also cited judgments to point out line of approach in Industrial jurisprudence towards regularization, effect of availability of perennial nature of work and irrelevance of contention of Respondent No. 1 about availability and applicability of Certified Standing Orders. According to him, the later provision introduced vide Clause 4-C has to prevail as work of perennial nature is available since long and members of ::: Downloaded on - 09/06/2013 16:06:35 ::: 7 petitioner - Union have been doing it continuously. He contends that this evidence on record shows the availability of workload and, therefore, the vacancies. The various judgments to which the learned counsel has placed reliance can be referred to little later while considering the law on the point to avoid undue repetition. According to Shri Upadhyay, learned counsel, the order dated 24.08.2009 delivered by Industrial Court does not require any interference and Civil Application No. 420 of 2010 filed by Respondent No. 1 is misconceived and liable to be rejected. The impugned order dated 03.05.2006 is unsustainable and a declaration of unfair labour practice under item 5 and under item 9 needs to be granted in the matter with consequential directions to Respondent No. 1 - employer to regularize the services of its members as permanent workers retrospectively.

5. Shri Deshpande, learned Senior Advocate has invited attention to orders passed by me on 15.12.2008 and then to challenge raised by Respondent No. 1 vide C.A. No. 420 of 2010.

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He states that finding of absence of Certified Standing Orders reached by learned Member of Industrial Court is unsustainable and according to him, Respondent No. 1 demonstrated before the Industrial Court the existence of Standing Orders for its clerical staff since 1954 when Standing Orders are certified for clerical staff, presumption that Standing Orders also exist for technical staff ought to have been drawn by learned Member of Industrial Court. He has relied upon the provisions of Section 30 of C.P. & Berar Industrial Disputes Settlement Act, 1946 (hereinafter referred to as C.P. Act) to urge the mandatory requirement of getting Standing Orders certified under that Act and the provision for punishment made in that Act for its violation. The charge sheets issued to technical employees under Certified Standing Orders produced before Industrial Court, the effort made by recognized union to have those Standing Orders amended brought on record before the Industrial Court are relied upon by him to urge that such Standing Orders exist. The requirement of maintaining records in relation to those Standing Orders imposed by Section 30 of C.P. Act is pointed out with ::: Downloaded on - 09/06/2013 16:06:35 ::: 9 evidence of the representative of Labour office showing that those records were not available. He contends that by examining three witnesses after the issue was remitted by this Court to learned Member of Industrial court, Respondent No. 1 has brought on record sufficient material showing preponderance of existence of such certified Standing Orders. He has in this respect relied upon the provisions of Section 65 of Evidence Act to argue that permission to lead secondary evidence as granted is legal and valid. Section 74 thereof is also relied upon by him to urge that the documents are public documents and hence printed copy thereof produced on record by Respondent No. 1 should have been acted upon by the learned Member of Industrial Court. He further presses into service Section 114 particularly illustrations (e) and (f) of Evidence Act to contend that on the basis of facts proved before the Industrial Court, the said Court ought to have legitimately drawn inference of existence of some other facts which according to him conclusively establish the presence of certified standing orders applicable to technical staff i.e. members of petitioner - Union.

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6. To support his contention, that once Certified Standing Orders are shown to be available and applicable, the provisions of Model Standing Orders cannot be looked into, he relies upon the provisions of Section 2-A of Central Act read with its Section 12-A. After repeal of C.P. Act, the provisions of Bombay Industrial Relations Act, 1946 (hereinafter referred to as BIR Act) were applicable to Respondent No. 1 to the paper industry for some time and thereafter provisions of Central Act became available. He points out that Central Government is appropriate Government for Respondent No.1 - industry. He relies upon a judgment of this Court in the case of Berar Oil Industry vs. N.B.O.I. Workers' Union, reported at 1987 Mh.L.J. 519 to advance the contention that after repeal of BIR Act and applicability of Central Act, the Certified Standing Orders settled under C.P. Act continued to apply and hence recourse to Clause 4-C of Model Standing Orders prescribed under Central Act is misconceived.

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7. In the light of these arguments, he relies upon the judgment in the case of Marwari Kumhar vs. Bhagwanpuri Guru Ganeshpuri, reported at (2000) 6 SCC 735, to show how the learned Member of Industrial Court has correctly permitted secondary evidence to be led and upon other judgment of the Hon'ble Apex Court in the case of M/s. Sodhi Transport Co. vs. State of U.P., reported at AIR 1986 SC 1099, to urge how above illustrations under Section 114 of the Indian Evidence Act are helpful to Respondent No.1 in the matter.

8. Attention is invited to the provisions of Section 21 of the ULP Act to show that as the complaint before the Industrial Court is filed by an unrecognized Union seeking grant of regularization and permanency, it is hit by provisions of Section 21 thereof and the learned Member of Industrial Court, therefore, has rightly found it to be not maintainable. He has contended that Schedule IV lays down various unfair labour practices, indulgence into which by employer is prohibited by ULP Act. The said items or entries are mutually exclusive and ::: Downloaded on - 09/06/2013 16:06:35 ::: 12 not overlapping. He argues that the petitioner - Union sought relief of regularization and permanency in its earlier ULP Complaint No. 1286 of 1997 which was withdrawn on 05.09.2000 with liberty. The learned Member of Industrial Court expressly mentioned that liberty was not in respect of item 6 and still in fresh ULP Complaint No. 77 of 2000, the same grievance with same prayers was repeated. He contends that not mentioning item 6 of Schedule IV specifically cannot save the situation for the petitioner - Union as relief flowing under item 6 has only been asked for by invoking items 5 & 9. According to him, in the scheme of schedule IV of ULP Act, items 5 and 6 are the general items while item 6 is a specific entry in the matter of grant of regularization or permanency. While interpreting item 5 or item 9, field occupied by item 6 therefore, needs to be excluded from those items. In support of these contentions, he has relied upon the judgment in the case of Maharashtra S.B.G.S. & H.S. Education vs. Paritosh, reported at AIR 1984 SC 1543. He, therefore, supports the findings reached by the Industrial Court in this respect.

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9. According to Shri Deshpande, learned Senior Advocate, the provisions of Model Standing Orders on which the petitioner - Union has based its complaint, contemplate various categories of employees/ workmen. The daily wagers fall in the category of casuals as defined therein. He points out that item 6 of Schedule IV deals with three categories i.e. Badlies, Casuals or temporaries while Model Standing Orders clause 4-C deals with only Badli or temporary workmen. According to learned Senior Advocate, clause 4-C, therefore, does not deal with daily wager at all. He has invited attention to the scheme as contained in said Model Standing Orders to urge that daily wagers and permanent employees constitute separate and distinct classes and two cannot be compared with each other.

He reads provisions of clause 4-A dealing with appointment of probationer with clause 4-C to attempt to show that for making probationer permanent, existence of a vacancy is pre-requisite.

The same ingredients are required to be fulfilled even under clause 4-C and the word "shall be made permanent" in clause 4- ::: Downloaded on - 09/06/2013 16:06:35 ::: 14 C are not, therefore, mandatory. He states that for these reasons, comparison by the petitioner - Union of daily wagers with permanent workmen is uncalled for and unsustainable as permanent workmen always work against a vacancy in compliment. No finding of any unfair labour practice under item 5 of Schedule IV of ULP Act can be returned on the basis of such misconceived comparison. He invites attention to judgment of the Hon'ble Apex Court in the case of M.S.R.T.C. & Anr. vs. Casteribe Rajya P. Karmachari Sanghatana, reported at 2009 III CLR 262, to show that a Court of law cannot create post and Hon'ble Apex Court granted relief only when posts or vacancies were found to be in existence. His contention is these observations on industrial jurisprudence apply equally to even employment of private nature with Respondent No. 1 also. As unregistered union cannot maintain complaint under item 6, it cannot maintain a complaint for the very same relief by invoking item 9 as ultimately it results into addition or creation of post within permanent compliment with Respondent No.1.

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10. He presses into service the judgment of the Hon'ble Apex Court in the case of State of M.P. vs. Azad Bharat Finance Co., reported at AIR 1967 SC 276, to urge that the word "shall"

used in clause 4-C of Model Standing Orders under Central Act, therefore, needs to be construed as "may" only and said provision does not authorize any workmen to claim permanency automatically. Clause 4-C enables employer to consider the case of Badli or Temporary workman who has put in 240 days of uninterrupted service for grant of permanency provided he has worked satisfactorily & there is a vacancy in permanent compliment. The said provision, therefore, only enables workman to claim consideration of his entitlement under that clause and nothing more. He has highlighted the concept of Badli or Temporary workman as defined in clause 3 of said Model Standing Orders in this background with completion of service of 240 days. According to him, daily wager has not been deliberately mentioned in Clause 4-C. Thus, even in this light, according to him, the field covered by item 6 of Schedule IV of ULP Act cannot be opened for application of items 5 & 9 and the ::: Downloaded on - 09/06/2013 16:06:35 ::: 16 learned Member of Industrial Court has correctly applied the law.

11. Lastly, the learned Senior Advocate points out that there have been various agreements in relation to daily wagers between recognized union and Respondent No. 1 even after framing of alleged Model Standing Orders. The said agreements are determinative of the matters covered and the provisions of Standing Orders must yield to the same. He, therefore, submits that C.A. No. 420 of 2010 as filed with objections raised therein needs to be allowed and a finding of existence of certified Standing Orders and its applicability needs to be delivered by this Court. In any case, according to him, there is no merit in writ petition and the same is liable to be dismissed.

12. Shri Upadhyay, learned counsel, in his brief reply has contended that Section 2-A of Central Act does not save alleged Standing Orders settled under C.P. Act. He further points out the provisions of Section 63 of Indian Evidence Act to urge that ::: Downloaded on - 09/06/2013 16:06:35 ::: 17 printed copy of alleged Standing Orders placed on record of Industrial Court by Respondent No. 1 is not saved and does not meet requirements of sub-sections (2), (3) or (5) of that Act.

According to him, there is no evidence on record to show that any records were maintained in relation to alleged Certified Standing Orders of Respondent No. 1 and as there is no evidence of loss of originals by Respondent No.1, the secondary evidence has been rightly not relied upon by the Industrial Court. He further states that Section 114 of Indian Evidence Act which prescribes a rebutable presentation is of no assistance in present matter. According to him, in the scheme of Model Standing Orders, there is deliberately no mention of daily wager and as the petitioners have been working for long on daily wages, their appointment must be presumed for permanent work on probation. He points out that they have been working in main manufacturing process and, therefore, need to be classified either as Badli or temporary. The provisions of clause 4-C of Model Standing Orders are mandatory and apply automatically against the wish of employer. The same cannot be diluted by ::: Downloaded on - 09/06/2013 16:06:35 ::: 18 interpreting the word "shall" used therein as "may". He has further stated that evidence on record clearly demonstrates that members of petitioner Union are performing same "nature" of work as done by any permanent workmen and they are receiving less salary. Item 5 of Schedule IV of ULP Act, therefore, squarely stands attracted.

13. Shri Deshpande, learned Senior Advocate in his reply on issue raised in Civil Application has contended that words "in this Act" used in Section 2-A - (1) proviso of Central Act in fact indicate "under the relevant local Acts" and these Standing Orders certified under C.P. Act are saved and can be enforced by it. In the alternative, according to him, the provisions of General Clauses Act about repeal and saving apply and imply same thing.

14. From the rival contentions mentioned above, it is clear that there is no dispute between parties about applicability of C.P. Act to the Paper Industry of Respondent No.1. The provisions of C.P. Act continued to apply till the State of ::: Downloaded on - 09/06/2013 16:06:35 ::: 19 Maharashtra came to be constituted and provisions of BIR i.e. Bombay Industrial Relations Act became applicable. The history in this respect is considered by the learned Single Judge of this Court in the judgment in the case of Berar Oil Industry vs. N.B.O.I. Workers Union, (supra). There the industry concerned was oil industry and dispute was in relation to age of retirement.

The Court has noticed that Standing Orders under C.P. Act for that industry were framed on 21.09.1955 under Section 30(1) of C.P. Act. C.P. Act was repealed by Section 123-A of BIR Act which was introduced by Section 52 of the Maharashtra Amendment Act 22 of 1965, i.e. Bombay Industrial Relations (Extension of Amendment) Act, 1964, by which the Bombay Industrial Relations Act was made applicable for the first time to Vidarbha Region (this part where Respondent No. 1 is located) of State of Maharashtra to which previously C.P. Act was applicable. Although C.P. Act was repealed, any Standing Orders settled thereunder were continued in operation as if settled by appropriate authority under the corresponding provisions of Bombay Industrial Relations Act by virtue of saving clause (b) of ::: Downloaded on - 09/06/2013 16:06:35 ::: 20 proviso to Section 123-A of BIR Act. The Standing Orders applicable to oil industry there, therefore, continued to operate though C.P. Act was repealed. In para 5, this Court has then made reference to power under Section 2(5) and a notification issued by Maharashtra Government withdrawing application of BIR Act to the industry of petitioner before it i.e. Berar Oil Industry with effect from 1.11.1972. The learned Single Judge noticed that Section 2(5) itself provided that provisions of Section 7 of Bombay General Clauses Act, 1904, would apply after such cesser as if BIR Act had then been repealed in relation to said industry by Maharashtra Act. In para 6, this Court then considered the provisions of said Section 7 of Bombay General Clauses Act and noticed that said provision was ignored by the Industrial Court which had then decided the controversy in relation to the age of retirement. This Court found that by virtue of saving clause therein, rights and obligations created under the statutory standing orders framed originally under C.P. Act and continued in operation till 01.11.1972 were still effective and continued to operate till replaced by new set of Standing Orders ::: Downloaded on - 09/06/2013 16:06:35 ::: 21 framed under Appropriate Act i.e. the Central Act as applicable to State of Maharashtra. Since the old Standing Orders under C.P. Act were found to be applicable, this Court concluded that Model Standing Orders framed under Central Act were not applicable to Berar Oil Industry and hence view of learned Member of Industrial Court there was found to be incorrect.

15. In facts before me, it is not in dispute that the similar notification under Section 2(5) of BIR Act withdrawing paper industry from application of BIR Act came to be issued on 02.06.1967. Thus, for the period from 1965 till 02.06.1967 only, the provisions of BIR Act were applicable to the industry of Respondent No.1. As per the reasoning in the case of Berar Oil Industry vs. N.B.O.I. Workers Union (supra) of this Court, the certified Standing Orders, if any, of Respondent No. 1 framed under C.P. Act, therefore, continued up to the date of cesser and continue thereafter till they are replaced by Model Standing Orders framed under Central Act. The contention of Respondent No. 1 is that as no such Model Standing Orders have replaced ::: Downloaded on - 09/06/2013 16:06:35 ::: 22 the certified Standing Orders till date, the alleged certified Standing Orders settled in 1954 continue to apply to the unit of Respondent No.1.

16. As pointed out by Shri Upadhyay, learned counsel, I find that the attention of this Court in the case of Berar Oil Industry vs. N.B.O.I. Workers Union, (supra) was not invited to the provisions of Section 2-A of Central Act. As per said Section 2-A, it has been added by Bombay Act No. 21 of 1958 to Central Act, the Model Standing Orders framed under Central Act applied to every industrial establishment to which Central Act applies. The Model Standing Order becomes applicable from the date specified by State Government in the Official Gazette and that date is 15.01.1959. The proviso to sub-section (1) of Section 2-A is important and as per this proviso, nothing in Section 2-A affects any Standing Orders finally certified "under this Act" and have come into operation "under this Act" in respect of any industrial establishment before the date of coming into force of Industrial Employment (Standing Orders) (Bombay ::: Downloaded on - 09/06/2013 16:06:35 ::: 23 Amendment) Act, 1957. In other words, it is apparent that Model Standing Orders cannot apply if Certified Standing Orders under Central Act have come into force before coming into operation of the above mentioned Bombay Amendment 1957.

Respondent No.1 no doubt contends that its certified Standing Orders are of the year 1954 but then this certified standing orders are under C.P. Act and not under Central Act. It is, therefore, obvious that the certified Standing Orders which are not under Central Act are not saved by proviso to sub-section (1) and provisions of Model Standing Orders prescribed under Central Act could have automatically applied to the establishment of Respondent No. 1 from 15.01.1959, had it been subjected to Central Act then. The provisions of Section 2-A of Central Act did not fall for consideration of this Court in Berar Oil Industry vs. N.B.O.I. Workers Union (supra) and hence that judgment has taken a view that the Standing Orders certified under C.P. Act and protected by BIR Act were required to be replaced. Reliance has been placed for this purpose upon the provisions of Section 7 of Bombay General Clauses Act, 1904.

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Had the attention of this Court been then invited to Section 2A of Central Act, the finding would have been definitely different.

All this discussion has become necessary only to note that even if the contention of Respondent No.1 that it has certified Standing Orders of its own is held to be correct, still that contention cannot save the situation for it because of the mandatory language of Section 2-A of Central Act. Alleged certified standing orders were saved by BIR Act & after its cesser on 2/6/1967, by virtue of S.2A of the Central Act, model standing orders framed under Central Act become operative.

17. Section 63 of Indian Evidence Act, 1872, defines Secondary evidence to mean and include certified copies, copies made from original, copies made from or compared with original or then oral account of contents of a document given by some person, who has himself seen that document. Section 65 permits secondary evidence to be given of existence, condition or contents of a document in contingencies stipulated thereunder.

The contingencies specified in clause (a), (b), (d), (e) and (g) ::: Downloaded on - 09/06/2013 16:06:35 ::: 25 are not relevant in present matter. The question, therefore, is whether Respondent No. 1 has proved the destruction or loss of original or then whether original is a document of which certified copy is permitted by any law. Section 74 defines public document. The documents confirming acts or records of acts or sovereign authority, official bodies and Tribunals and of Public Officers, legislative, judicial and executive are public documents.

Even public record kept in any state of private documents is public document. The perusal of Section 30 of C.P. Act shows that it occurs in Chapter IV dealing with Standing Orders regarding Industrial matters. As per its sub-section (3), Labour Commissioner was obliged to record in register, maintained for that purpose the copy of Standing Orders when settled. Sub-

section (4) required Labour Commissioner to forward a copy of Standing Order so settled to the Registrar and Registrar is obliged to record them in the register with him, maintained for that purpose. The settled Standing Orders come into operation from the date of their recording in such register with Registrar.

It is, therefore, apparent that the copy of Standing Orders ::: Downloaded on - 09/06/2013 16:06:35 ::: 26 recorded by Labour Commissioner or by Registrar can be treated as Public documents. The document produced by Respondent No. 1 before Industrial Court is not the original certified Standing Order returned to it after processing by the Commissioner of Labour or even a certified copy issued by that office. The perusal of order dated 15.12.2008 passed in this mater reveals that the printed book claimed to be containing certified Standing Orders dated 28.07.1954 is being relied. It shows that said Standing Orders were of Ballarpur paper and Straw-boards Mills Limited and not of Respondent No.1. The findings recorded by Industrial Court after the issue was remitted to it by this Court and on 24.08.2009, need to be viewed in this background. Those findings show that after the issue was remitted, Respondent No. 1 amended its written statement to point out its initial establishment in 1945 and change of name.

It also pointed out that it has its certified Standing Orders settled under C.P. Act vide Registration No. 138/VIII/SO dated 28.07.1954. The learned Member framed issue whether those certified Standing Orders dated 28.07.1954 govern the ::: Downloaded on - 09/06/2013 16:06:35 ::: 27 relationship of employer and employee between the parties and has answered the issue in negative. Respondent No. 1 examined three witnesses i.e. Assistant Commissioner of Labour at Nagpur Shri Nagbhire (Exh. 109), a staff member Mandhare (Exh. 100) who happened to be General Secretary of recognized Union and its another employee Shri Thakare (Exh. 119). The learned Member of Industrial Court noted the statement of company made before this Court that it was in a position to produce before High Court the original Standing Orders and also noted that in spite of that statement, such original Standing Orders dated 28.07.1954 were not produced before it. Then it has noted evidence of Assistant Commissioner of Labour who proved that on 30.12.2008, an application for grant of certified copy of Standing Orders was made to it and after taking search of various Standing Orders, retained by his office from 1949 onwards in 18 volumes, the bound books from the year 1953, 1954 and 1957 were not traceable in his office. Accordingly, his office gave a reply on 06.08.2009. The learned Member of Industrial Court noticed that attempt of company was only to ::: Downloaded on - 09/06/2013 16:06:35 ::: 28 lead circumstantial evidence about such Standing Orders. The learned Member then noticed that recognized Union claimed that in 1986, it had prayed for certain amendment in those certified Standing Orders and the witness - Assistant Commissioner of Labour deposed accordingly. The witness further stated that notice of that application seeking amendment was issued to Respondent No. 1 Company, however, as none of the parties revealed any interest, the proceedings were closed in 1984. The original application submitted by recognized union was produced at Exh. 116 and notices issued to company (certified copy) was at Exh. 117. The copy of order dated 02.06.1984 passed by the then Deputy Commissioner of Labour came to be produced on record at Exh. 118. The witness was not cross examined by the petitioner - Union. The learned Member of Industrial Court found that this material was not sufficient to infer that amendment sought was to alleged certified Standing Orders of 1954. This finding has not been demonstrated to be either erroneous or perverse.

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18. The evidence of General Secretary of Union (Exh. 100) reveals that said witness disclosed attempt made to amend certified Standing Orders of 1954. The witness accepted that Union by name Mazdoor Sabha came to be recognized on 17.08.1990. He further stated that office of Union has also been maintaining copies of certified Standing Orders. He further deposed that one Darshan Singh serving then as Driver with Respondent No. 1 was served with a charge sheet under the provisions of these Certified Standing Orders and he affirmed that those Standing Orders still applied and govern the relationship. His cross examination reveals that he became General Secretary in 1992 and his knowledge about events prior to it was from records. He also conceded that the Union was not maintaining any record showing notice issued by Certifying Officer or showing receipt of Certified Standing Orders or original copy of Standing Orders of 1954. His evidence disclosed that the Union was not registered under provisions of C.P. Act but has been registered under Trade Union Act, 1926, by M.P. Government. He further could not state whether Darshan Singh ::: Downloaded on - 09/06/2013 16:06:35 ::: 30 provided the copy of charge sheet served upon him to Union.

The third witness Thakare was working in Human Resource Department since 1971 and he deposed that charge sheets and notices were being issued to delinquent and on 19.08.1991 charge sheet against Govardhan (at Exh. 120) was issued. In 1991, charge sheet was served upon Darshan Singh (Exh. 121).

The witness stated that charge sheets were signed by one P.C. Tugnait but the learned Member of Industrial Court has found that those documents were signed by somebody on behalf of P.C. Tugnait. The charge sheets made reference to clauses of certified Standing Orders dated 28.07.1954. The learned Member of Industrial Court found that the burden to show satisfactorily existence of such Standing Orders was upon employer and originals of charge sheet Exhs. 120 and 121 were not brought before it. Further progress of so called departmental inquiries was not established. The learned Member of Industrial Court noticed that employer before it must be possessing all records and could have produced it to show even the punishment imposed under said 1954 Standing Orders. The learned Member ::: Downloaded on - 09/06/2013 16:06:35 ::: 31 of Industrial Court found it difficult to rely upon "xerox copies of isolated documents". It also noticed that originals of 1954 Standing Orders was not produced before it or then the registers or records pertaining to it were also not being produced. Then it has proceeded to consider the provisions of Section 2-A of the Central Act. It also noticed that because of Bombay Industrial Employment (Standing Orders) Rule 1959, which became effective from 06.01.1959, alleged certified standing orders of 1954 ceased to have any force because of its Rule 60. It has then considered Full Bench judgment in the case of Gangadhar Balgopal Nair vs. Voltas Ltd. & Anr., reported at 2007 (1) CLR 460 of this Court. It has answered the issue against Respondent No. 1 - employer and in favour of the petitioner - Union.

19. Shri Deshpande, learned Senior Advocate has relied upon the judgment in the case of Marwari Kumhar vs. Bhagwanpuri Guru Ganeshpuri, reported at (2000) 6 SCC 735.

The said judgment of the Hon'ble Apex Court considers the provisions of Section 65(c)(f) and Section 74 of Indian Evidence ::: Downloaded on - 09/06/2013 16:06:36 ::: 32 Act and in para 10 concludes that clause (c) of Section 65 about loss or destruction of original is an independent clause. The secondary evidence can be led even of public document if conditions as laid down under clause (c) are fulfilled. The Hon'ble Apex Court has found that if original of public document is lost or destroyed than the secondary evidence can be given of a public document. In facts before it, the Hon'ble Apex Court found that original was no longer available in Court's record and loss of certified copy was not disbelieved. Hence, the ordinary copy of earlier judgment is admissible in judgment and was correctly marked exhibit. The facts at hand show that the certified Standing Orders of the petitioner industry are claimed to be registered in 1954. The original Standing Orders which must be with Respondent No. 1 are not produced and effort was made to show that the registers in which Commissioner of Labour or Registrar recorded the Standing Orders on 28.07.1954 were not available. The witness Ramesh Iyyer examined by respondent has not deposed about the loss of original Standing Orders. He has only stated that efforts were made to find out ::: Downloaded on - 09/06/2013 16:06:36 ::: 33 Certified Standing Orders and it was not available. He has then stated about another printed copy of Standing Orders meant for clerks. He produced original certificate of Standing Orders for clerks. The evidence discloses that the said Standing Orders or document is dated 06.03.2009. Even if this evidence is accepted to be correct, the evidence does not show conclusively that such Standing Orders settled on 28.07.1954 existed. The industry has been working since 1954 till date and hence there can be several documents with it to show the reference or reliance upon said Standing Orders in its administration. The Additional Commissioner of Labour has deposed that bound books for the years 1953, 1954 and 1957 are not traceable in his office. He has also stated that the said registers may have been lost in transit during the shifting of office of the Deputy Commissioner of Labour. The evidence on record, therefore, is not sufficient to connect the printed copy produced on record with the Standing Orders allegedly settled in 1954 under C.P. Act or its contents.

The learned Senior Advocate has contended that there was nothing on record to show that any other Standing Orders were ::: Downloaded on - 09/06/2013 16:06:36 ::: 34 used after 1954 by Respondent No.1. The burden was upon Respondent No. 1 and as already mentioned above, the burden could not have been discharged by producing some isolated documents.

20. The reliance upon the provisions of Section 114 of Indian Evidence Act or upon the judgment of the Hon'ble Apex Court in M/s. Sodhi Transport Co. vs. State of U.P., (supra) in this respect is misconceived. The Hon'ble Apex Court has found that such presumption is not itself an evidence but only makes a prima facie case for party in whose favour it exists. It only indicates the person on whom burden of proof lies. In para 15, it has been noticed that the fact A which has relevance in the proof of fact B and inherently has some degree of probative or persuasive value in that behalf may be weighed by a judicial mind after it is proved and before a conclusion is reached as to whether fact B is proved or not. The learned Member of Industrial Court has undertaken that exercise and noted that production of copies of stray charge sheets (not even originals) ::: Downloaded on - 09/06/2013 16:06:36 ::: 35 was not sufficient to infer that Standing Orders allegedly settled on 28.07.1954 were being used by Respondent No. 1 - employer to regulate the working or discipline. Non availability of original registers with the office of Labour Commissioner and copies of charge sheets cannot, therefore, lead to an inference that Standing Orders as contained in printed book were certified on 28.07.1954 under C.P. Act. The evidence of attempted amendment to certified standing orders is also not sufficient to infer this. I am, therefore, not in a position to disagree with the finding reached by the learned Member of Industrial Court in its order dated 24.08.2009. The employer like Respondent No. 1 could have produced several documents to show use of certified standing orders after 1954 till August 2009. In any case, I have already found above that even if such certified standing orders are presumed to exist, they are not saved by virtue of Section 2-A of the Central Act. The proviso to Section 2-A(1) expressly saves only Standing Orders certified under Central Act which have come into operation under Central Act. The second requirement is that such certified Standing Orders must come into force ::: Downloaded on - 09/06/2013 16:06:36 ::: 36 before coming into operation of Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957. The Central Act itself has become applicable to industry of Respondent No. 1 in June 1967 and hence even that requirement is not met in present situation.

21. Maharashtra Amendment of 1974 has added sub-

section (2) of Section 2A of Central Act. The said sub-section opens with non obstante clause and states that Model Standing Orders made in respect of additional matters included in schedule after coming into force of the Act referred to in proviso to sub-section (1), automatically apply to workman unless the same are in the opinion of Certifying Officer less advantageous to them in relation to corresponding Standing Officers already applicable. Bombay Amendment Act, 1957 referred in proviso to sub-section (1) had already come into force. The Schedule of Central Act on which Standing Orders are required to be framed has been amended and on 21.09.1974 by same Maharashtra Amendment Act, 1974, entry 10-C about employment or re-

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employment of probationers or Badlies or temporary or casual workman and their conditions of service has been added to that schedule. The provisions of Clause 4-C have been added to Model Standing Orders framed under Bombay Industrial Employment (Standing Orders) Rules, 1959, on 28.09.1977.

Clause 4-A has also been added on the same day. As per Clause 4-A, every probationer who has completed the period of three months uninterrupted service, is to be made permanent in that post by an order in writing within seven days of completion of such service. As per Clause 4-C, Badli or temporary workmen who has put in 240 days uninterrupted service, is to be made permanent in the establishment. This position is considered by the learned Single Judge of this Court in the case of Rashtriya Mill Mazdoor Sangh vs. S.L. Mehendale & Ors., reported at 2000 1 CLR 542. The said judgment is delivered in the light of provisions of BIR Act but then clause 4-C of Model Standing Orders is identical even there. The said clause 4-C is reproduced in para 7 of the judgment and in para 8, the argument about requirement of issuing a notice of change and about no ::: Downloaded on - 09/06/2013 16:06:36 ::: 38 automatic permanency or need of vacancies is noted and earlier judgment is relied upon to hold that because of clause 4-C, a statutory condition of service has been introduced whereby the employer has agreed that worker would be made permanent and creation of post is held to be implicit in it. The learned Single Judge has expressed agreement with said view. That interpretation of Clause 4-C holds good even in present matter.

22. Shri Upadhyay, learned counsel, has also pointed out a Full Bench judgment in the case of Gangadhar Balgopal Nair vs. Voltas Limited, (supra), wherein the question whether Model Standing Order 4-C as contained in Bombay Industrial Employment (Standing Orders) Rules, 1959, ipso facto applies to a temporary workman in an Industrial Establishment without its incorporation into pre-existing Standing Order has been examined. The relevant discussion is contained from para 6 onwards. The provisions of Section 2-A of Central Act and its effect is considered in para 8 and in para 9 the introduction of Clause 4-C because of item 10-C in Schedule by State of ::: Downloaded on - 09/06/2013 16:06:36 ::: 39 Maharashtra has been noticed. Then it is noticed in para 11 that Certified Standing Orders of Employer before it were dated 25.11.1966 and hence were not saved under Section 2-A. The Full Bench has concluded that Clause 4-C introduced in Model Standing Orders on 28.09.1977 became applicable to Industrial Establishment immediately except where the industrial establishment has certified standing orders prior to 15.01.1959.

Said conclusion applies with full force here. It may be noted that in para 15, the Full Bench has also agreed with Division Bench view of the Allahabad High Court in the case of Artificial Limbs Manufacturers Corporation of India vs. Som Pal Singh & Ors, reported at 1994 II CLR 566, where it has been held that the matters mutually added to the Schedule too are applicable to Industrial establishments, irrespective of Industrial Establishment concerned having or not having certified standing orders. The question has been answered in para 16 by holding that Model Standing Orders Clause 4-C ipso facto applies to a temporary workman in an industrial establishment without its incorporation into a pre-existence Standing Orders. As already observed ::: Downloaded on - 09/06/2013 16:06:36 ::: 40 above, there are no pre-existing Certified Standing Orders. The sub-section (2) of Section 2-A requires Certifying Officer to hold that existing provision in alleged Certified Standing Orders of Respondent No. 1 is more beneficial than Clause 4-C. After this only clause 4-C can be stated to be not relevant and applicable.

There is no such exercise here by Certifying Officer. It is, therefore, apparent that Model Standing Orders on additional matters added by Maharashtra Amendment Act in 1974 including Clause 4-C,4-A are applicable to the employees of Respondent No.1.

23. The judgment of the Hon'ble Full Bench above clearly shows that as mandated by sub-section (2) of Section 2A, the additional matters may be relating to probationers or Badli or temporary or casual and, therefore, clause 4-C is attracted in present matter. The said sub-section operates notwithstanding anything contained in proviso to sub-section (1). Thus, the reliance of Respondent No. 1 upon its alleged certified Standing Orders dated 28.07.1954 settled under C.P. Act, saved by BIR ::: Downloaded on - 09/06/2013 16:06:36 ::: 41 Act and available (allegedly) under Industrial Employment Standing Orders Act, after 02.06.1967, is of no help to them.

Section 2-A has been added by Bombay Amendment 21 of 1958.

Respondent No. 1 has also relied upon Section 12-A which prescribes for temporary application of Model Standing Orders for the period starting from the date on which Central Act becomes applicable to any industry and ending on the date on which Standing Orders certified under it come into force.

However, they are pointing out sub-section (2) thereof which prescribes that this temporary application is not attracted in cases of Industrial Establishment for which appropriate Government is State of Maharashtra. It is to be noted that Section 12-A has been inserted by Act No. 39 of 1963. Thus, on the date on which said provision was inserted, for State of Maharashtra, there already existed a provision in the nature of Section 2-A in Central Act which made Model Standing Orders applicable to such establishment from prescribed date i.e. 06.01.1959. Reliance upon said provision is, therefore, unwarranted. It follows that there is no merit in C.A. No. 420 of ::: Downloaded on - 09/06/2013 16:06:36 ::: 42 2010 and objections raised in it to the order dated 24.08.2009 passed by Industrial court. That application is, therefore, rejected. However, Respondent No. 1 has paid Court fees of Rs.20/- only on that application and hence they are directed to deposit Court fee of Rs. 230/- on it within a period of 15 days from today.

24. Before proceeding further with the consideration of controversy, I find it appropriate to consider the case of unfair labour practice under item 5. The learned Member of Industrial Court has not recorded any express finding in relation to such challenge or about the nature of work being done by members of petitioner - Union working on daily wages. The petitioner -

Union did contend that work done by its members and work done by permanent workmen was identical. The learned Member has considered some evidence in this respect from para 16 onwards and in para 18 it has found that the witness Respondent No. 1 - Deputy General Manager - Lav Sharma accepted in his evidence that there is difference of about ::: Downloaded on - 09/06/2013 16:06:36 ::: 43 Rs.2,000/- per month in earning of permanent workers and daily wagers. The consideration by Industrial Court is mostly based upon Exh. 21 by which about 41 employees on daily wages were absorbed or made permanent. It has been noticed by Industrial Court that all of them were earlier trainees receiving stipend and their category was different because they are possessing technical qualification. Its further observation show that daily paid workers are to be given work on need basis which depends on fluctuating requirement. The requirement of evidence adduced by the petitioner in this respect shows that its witness Pushparaj Vaidya, a General Secretary has deposed that nature of work done by daily wagers was of permanent type and they were doing work connected with manufacturing activities and had completed 240 days in a calender year. It has been further deposed by him that though they are required to work permanently on their designation regularly, they are being deprived of the wages paid to permanent workmen on same designation with Respondent No.1. There is no cross examination in this respect and the nature of work has not been ::: Downloaded on - 09/06/2013 16:06:36 ::: 44 disputed at all. Another witness Chandu Samba has deposed that he was working since 25th May 1982 in Laboratory department and his basic wages were Rs.130/- per day. He has also given wages being paid to permanent workmen in his department and has also pointed out that all the benefits and service conditions or amenities are not available to him and other similarly situated workmen. He has also stated that they receive overtime at single rate while permanent workmen get double wages for it. He has pointed out that monthly difference worked out to Rs.5,000/- per month. He has further stated that work done by him and others was of permanent nature and for the same work permanent workmen are paid Rs.5,000/- per month more. The perusal of his cross examination shows that these statements made by him on affidavit are not subjected to any challenge. Witness Purshottam Bhandarkar has deposed on more or less on same lines and stated that workmen junior to him on daily wages have been made permanent by violating his seniority. He has further stated that Respondent No. 1 had been making appointments of workmen through Contractor and was ::: Downloaded on - 09/06/2013 16:06:36 ::: 45 ignoring workman who worked for more than 22 to 25 years of daily wagers. He has given names of seven junior workers, 17 workmen employed through Contractor and has further stated that permanent workers received better amenities, benefits and salary. His cross examination only shows that he is not I.T.I.

25. The evidence of Respondent No.1 - Lav Sharma only shows the contention that there cannot be any comparison between permanent workers and daily wagers as daily wagers are required in industry for exigencies like increase or decrease in work. He has stated that daily wage earners are given minimum wages. He has not stated that nature of work entrusted to them is different than the work performed by permanent workman. He has deposed how recognized union exists and the requirement of daily wager or increase or decrease is discussed with said Union. He could not say about the existence of workers employed through Contractor. He further stated that the strength of permanent staff in P.F. Plant in 1980 was 500 and it was reduced to 300 in 2006. He further stated ::: Downloaded on - 09/06/2013 16:06:36 ::: 46 that present strength in Pulp Mill was 100 while in 1980 it was about 300. He could not give strength of workers in Boiler Department. He also could not give exact details of permanent workmen in other departments. The effort through this evidence was only to show that previously number of permanent workmen in each department was more and it has come down. He denied that difference in wages of permanent workmen and workmen on daily wages was Rs.5000/- and stated that it could be Rs.2,000/- approximately. He accepted the suggestion that the members of petitioner - Union may have written to management a protest letter not accepting the terms of settlement with recognized union. This evidence, therefore, clearly shows that the strength of permanent workers prevalent in 1980 has come down and Respondent No. 1 - management did not produce relevant data before Industrial Court to explain how this has happened. The identical nature of duties done by permanent workman and those on daily wages have also come on record.

The designation of members of petitioner - Union is mostly Mazdoor/ Reza and relevance of I.T.I. qualification with their ::: Downloaded on - 09/06/2013 16:06:36 ::: 47 work has not been shown. The circumstances, therefore, clearly establish that the members of petitioner - Union were being paid less than the permanent workmen. The length of service put in by members of petitioner - Union as per undisputed charges is varying from 26 years to 5 years as on the date of filing of complaint. In this situation, it is apparent that confirmation or permanency of workers by Respondent No. 1 cannot by itself be a distinguishing feature justifying separate treatment to them. It shows that Respondent No. 1 has practiced partiality in the matter and favoured some workers while daily wagers have been discriminated against. This has been done regardless of merit. It has to be, therefore, held that unfair labour practice under item 5 has been established in the matter by petitioner - Union.

26. The contention that petitioner - Union being unrecognized, cannot maintain a complaint, also needs to be considered. The evidence on record and arguments advanced by Shri Upadhyay insofar as relevant for the purposes of item 5 have not been seriously disputed by Respondent No.1. They ::: Downloaded on - 09/06/2013 16:06:36 ::: 48 have only attempted to show that challenge under item 9 in these circumstances is not available because the complaint falls squarely under item 6. This is because of express language of Section 21 of ULP Act. Section 21(1) prohibits any employee to which provisions of Industrial Disputes Act,1947 apply from appearing or being represented in any proceedings relating to unfair labour practice specified in items 2 and 6 of Schedule IV except through the recognized union. The bar, therefore, is not attracted when unfair labour practice under item 5 is alleged and proved.

27. The provisions of Model Standing Orders pressed into service by the petitioner Union are relied upon by the learned Senior Advocate to show how the same are not relevant and in any case how the same are referable to item 6 of Schedule IV.

The exercise has been undertaken without prejudice to the other contention that such Model Standing Orders are not applicable at all.

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28. The Model Standing Orders framed under Bombay Industrial Employment (Standing Orders) Rules 1959, for workman doing manual or technical work classify workmen as permanent workman, probationers, Badlies or substitutes, temporary workman, casual workman and apprentices in its clause (3). This classification, therefore, does not include a daily wager. The permanent workman has been defined to mean a workman who has been employed on permanent basis or who having been employed as a Badli or temporary workman has been subsequently made permanent. The probationer has been defined to mean a workman provisionally employed to fill in a permanent vacancy or post and who has not completed three months of uninterrupted service in the aggregate in that post.

Badli or substitute means a workman who is appointed to a post of permanent workman or probationer, temporarily absent.

Temporary workman means a workman appointed for limited period for work of a temporary nature or employed as an additional workman to take care of temporary increase in work of permanent nature. Apprentice has been defined to mean a ::: Downloaded on - 09/06/2013 16:06:36 ::: 50 learner. We are not concerned with Apprentices in present matter. Respondent No. 1 has contended before this Court that daily wager is a casual workman. Casual workman has been defined as workman employed for any work not incidental to, or connected with the main work of manufacturing process carried on in the establishment and which is essentially of casual nature.

The evidence considered above while discussing unfair labour practice under item 5 does not show that daily wage members of petitioner - Union are employed for any such work. On the contrary, they are engaged in manufacturing activity and are doing work which is of permanent nature. The evidence also discloses that there number decreases or increases and this at the most may, therefore, make them temporary workmen.

Respondent No.1, therefore, has to show how these workmen have continued for such a long period as temporary workmen and completed continuous service of more than 240 days in every year. There is no explanation in this respect. The term daily wager has not been defined or used in Clause 3 because a daily wager can be either a Badli or a temporary workman or ::: Downloaded on - 09/06/2013 16:06:36 ::: 51 even work as a casual workman. The contention that every daily wager is a casual workman, therefore, cannot be accepted.

29. The Standing Orders on additional matter i.e. item 10- C in Schedule to Central Act are inserted on 28.09.1977. Clause 4-A states that every probationer who has completed three months service uninterruptedly in the post in which he is provisionally employed, is to be made permanent. It is, therefore, apparent that after completion of such service, Respondent No. 1 has no option but to make him permanent workman. Even as per definition of probationer, he ceases to be a probationer if he completes three months of service in aggregate on such post. The management can terminate services if found unsatisfactory after or during such period of probation but in present matter, there is no such termination. Clause 4-B dealing with Badli workers or Badli system is not relevant here.

Clause 4-C stipulates that a Badli or temporary workman completed 240 days uninterrupted service during preceding 12 months is to be made permanent. Its interpretation by this Court ::: Downloaded on - 09/06/2013 16:06:36 ::: 52 in the case of Rashtriya Mill Mazdoor Sangh vs. S.L. Mehendale & Ors., (supra) and Gangadhar Balgopal Nair vs. Voltas Limited, (supra) has already been considered above by me. This Court has found that by virtue of said clause, a Badli or Temporary gets permanency automatically and post stands created for him.

Standing Orders in clause 3(2)(b) uses the words vacancy or post. This requirement of vacancy or post is also specified in Clause 4-A. However, Clause 4-C does not use these words because a Badli may be employed against a permanent post, temporarily vacant while temporary workman is not employed against any post or vacancy. Thus, as per clause 3 itself, their employment and engagement is of limited duration. Clause 4-C steps in only when these provisions are sought to be abused by unduly continuing such Badli or temporary workman for longer periods. The Rule making authority has found 240 days in a calender month a period sufficiently long to draw inference of availability of permanent workload and, therefore, a post or vacancy. In view of this position only, the post or vacancy is automatically presumed to be created under that provision. The ::: Downloaded on - 09/06/2013 16:06:36 ::: 53 reliance upon the judgment of the Hon'ble Apex Court in the case of M.S.R.T.C. & Anr. vs. Casteribe Rajya P. Karmachari Sanghatana, (supra) by Respondent No. 1 to contend that permanency cannot be granted until and unless there is a vacancy is, therefore, misconceived in present facts. The Hon'ble Apex Court there has found existence of vacancies and, therefore, has maintained the order of regularization. The observations in para 33 can be looked into for this purpose. The argument that recruitment of workers was not in conformity with Standing Order 503 did not find favour with the Hon'ble Apex Court as it found that General Standing Order 503 applicable to MSRTC services is contractual in nature and does not have any statutory force. It has noticed that breach of Standing Orders by Corporation is itself an unfair labour practice and MSRTC exploited concerned employees. Here also, violation of Model Standing Order 4-C has been established and exploitation of daily wagers going on for various periods ranging from five years to 26 years has been established.

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30. The approach to be adopted in such matters by Courts is recently indicated by the Hon'ble Apex Court in the case of Harjinder Singh vs. Punjab State Warehousing Corporation, 2010 II - LLJ 277 (SC). The Hon'ble Apex Court has held that the High Court committed serious jurisdictional error by interfering with award of reinstatement passed by Labour Court with compensation by entertaining unfounded plea that the appellant

- employee before it was appointed in violation of Articles 14 and 16 of Constitution of India and the regulations. In para 16, the Hon'ble Apex Court has highlighted that provisions of Industrial Disputes Act, 1947, and other similar legislative instruments are social welfare legislation and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38 , 39(a) to (e), 43 and 43-A in particular. It has in para 18 reproduced the observations made earlier in the case of Y.A. Mamarde vs. Authority under the Minimum Wages Act, reported at AIR 1972 SC 1721, which point out that the State Government has to expressly endeavour to ::: Downloaded on - 09/06/2013 16:06:36 ::: 55 secure to all workers not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. The old principles of absolute freedom of contract and doctrine of laissez faire are found substituted by new principles of social welfare and common good. In para 19, again the observations on same lines are made by the Hon'ble Apex Court with words which show that philosophy of welfare State and Social justice is amply reflected in large number of its judgments and various legislations. The judgment of the Hon'ble Apex Court in the case of S.G. Chemical & Dyes Trading Employees' Union vs. S.G. Chemicals & Dyes Trading Limited & Anr., reported at 1986 (1) CLR 360 relied upon by the petitioners in para 23 declares that it is implied condition of every agreement and settlement that parties thereto will act in conformity with law. It has been noted that failure to pay dues as per settlements to workmen, constituted failure to implement settlement and the employer was, therefore, guilty of unfair labour practice falling under item 9 of Schedule IV. It is, therefore, apparent that failure to implement legal provisions ::: Downloaded on - 09/06/2013 16:06:36 ::: 56 also constitute an unfair labour practice. The petitioners are right when they point out that Division Bench of Orissa High Court has in the case of Bijay Kumar Swain vs. Director, Institute of Physics & Anr., reported at 2000 III CLR 742, noted that when there is a perennial nature of work, the employer cannot avoid creation of post and continue to fill up them by engaging persons on daily wage post for more than 40 years.

31. Coalfields In Workmen of Bhurkunda Colliery of Central Ltd. & Anr. vs. Management of Bhukunda Colliery of Central Coalfields Ltd. & Anr., reported at 2006 I CLR 635, the Hon'ble Apex Court has found that regularization of workmen working since 1973-74 was required to be done expeditiously.

32. In Mahindra & Mahindra Ltd., Nagpur vs. Avinash D. Kamble & Anr., reported at 2008 II CLR 265, Division Bench of this Court has considered the issue of special entry of unfair labour practice and a general entry vis-a-vis items 9 and 6. The discussion reveals that the Division Bench ultimately in para 41 ::: Downloaded on - 09/06/2013 16:06:36 ::: 57 considered this argument and concluded that individual employees undoubtedly have a right to complain about failure to implement award, settlement or agreement, which include Model Standing Orders. It has been further noticed that though the grievance about breach of Model Standing Orders under item 9 may achieve a similar result, as the complaint was not about unfair labour practice under item 6 of Schedule IV, their grievance was of different kind emanating from different rights.

It has been held at the end of para 42 that unfair labour practice under items 5 and 9 of Schedule IV of ULP Act was rightly held to be established by learned Single Judge of this Court in that matter. In R.P. Sawant & Ors. vs. Bajaj Auto Ltd. & Anr., reported at 2001 II CLR 982, Division Bench of this Court has considered challenge under item 9 and noted in para 73 that contravention of Model Standing Orders is an unfair labour practice under item

9. In para 75, it has been observed that Industrial Court there had found contravention of Model Standing Orders 4-C and 4-D. Such contravention constituting unfair labour practice under item 9 of Schedule IV is held to be a matter of law.

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33. The learned Single Judge in the case of Divisional Forest Officer, Gadchiroli vs. M.R. Undirwade & Ors., reported at 1995 II CLR 292, has considered the provisions of Model Standing Orders particularly Clause 4-C but then in said judgment, finding delivered by Industrial Court was of unfair labour practice under items 9 & 6 of Schedule IV of ULP Act.

34. Shri Upadhyay, learned counsel has cited certain other judgments but it is not necessary to refer to all in present matter.

Similar controversy has been considered by me in the case of Mahindra and Mahindra Ltd. vs. Manoj Sukhdeo Deshpande, 2007 (1) All MR 800 and conclusions reached therein in para 15 are in favour of present petitioners and against Respondent No.1. It has to be, therefore, held that violation of Standing Order 4-C constitutes unfair labour practice under item 9 of Schedule IV of ULP Act and hence complaint filed by unrecognized Union in relation thereto is maintainable. Clause 4C requires an individual to complete 240 days continuous service as ::: Downloaded on - 09/06/2013 16:06:36 ::: 59 comprehended in Model Standing Orders to attract item 9 of sch.

IV while continuation as a casual or temporary or badli for years together envisaged in item 6 thereof does not necessarily refer to any individual or to such completion of 240 days service.

Recognised Union only can therefore maintain a complaint pointing out long continuation of this method by employer though individual victim may not have completed such service in any of the three capacities dealt with in item 6. Purpose of item 6 is to control abuse of his position by employer and it acts on his attitude. Identity of an individual workman as beneficiary is not essential there. But a particular individual who completes 240 days of uninterrupted service gets right under clause 4C and can therefore invoke item 9 of sch. IV of the ULP Act. Intention of employer is not relevant under item 9 at all. Both items operate in different spheres though facts necessary to prove respective unfair labour practices may overlap to a certain extent.

35. The Division Bench of this Court in Warden & Co. (I) Ltd. vs. Akhil Maharashtra Kamgar Union, reported at 2001 II ::: Downloaded on - 09/06/2013 16:06:36 ::: 60 CLR 359, considered the complaint of unfair labour practice under items 9 & 10 of Schedule IV in the light of provisions of Section 21 of ULP Act. The learned Single Judge had delivered a finding that unrecognized union is not debarred from filing a complaint on behalf of the workmen in respect of any matter under ULP Act except items 2 & 6 of Scheduled IV. In para 42, the Division Bench has held that it is not the exclusive right of recognized Union to institute and prosecute a complaint under ULP Act in respect of an industry governed by the I.D. Act in relation to unfair labour practices other than those specified in items 2 and 6 of Schedule IV.

36. The Hon'ble Apex Court in M.S.R.T.C. & Anr. vs. Casteribe Rajya P. Karmchari Sanghatana, (supra) has considered the provisions of Section 21 from para 36 onwards. It has been held that Section 21(1) of ULP Act is a special provision in relation to unfair labour practice specified in items 2 and 6 of Schedule IV and unrecognized Unions are barred from acting, appearing or representing any employee. The judgment of the ::: Downloaded on - 09/06/2013 16:06:36 ::: 61 learned Single Judge of this Court in the case of Petroleum Employees Union vs. Bharat Petroleum Corporation Ltd., reported at 1983 Mh.L.J. 618, holding that unrecognized unions can act or appear where there is no recognized union, has been held to be not a correct interpretation. But then in para 42, the Hon'ble Apex Court has in exercise of plenary powers under Article 142 of Constitution of India available to it, did not deprive workmen of the benefits given to them because of finding of unfair labour practice under item 6 though complaints there were not instituted by recognized Union.

37. In present matter, I have already found that complaint as filed is under item 5 and also under item 9 of Schedule IV of MRTU & PULP Act. In this view of the matter, it is clear that complaint as filed cannot be held to be not tenable. In view of these findings, it is clear that the arguments on interpretation of Clause 4-C of words "shall be made permanent" need to be read "may be made permanent" or then need of any post or vacancy for its operation are ill founded and need not be considered ::: Downloaded on - 09/06/2013 16:06:36 ::: 62 further. Law on the point as found by this Court in the case of Rashtriya Mill Mazdoor Sangh vs. S.L. Mehendale & Ors., (supra) and Gangadhar Balgopal Nair vs. Voltas Limited, (supra) already considered by me needs to be followed. It is apparent that Clause 4-C clothes employee with permanency and not with right to be considered for grant of permanency.

38. Respondent No.1 has also attempted to show that after clause 4-C came into force, there have been agreements or settlements with recognized union in relation to daily wagers.

The petitioners have rightly pointed out judgment of this Court in the case of Ibrahim H. Mulani vs. G.M. Walchandnagar Industries Ltd. & Anr., reported at 2002 II CLR 395, wherein the learned Single Judge of this Court has concluded that employer and recognized Union by a settlement cannot decide the fate of workmen by agreeing to terminate their services in violation of provisions of law. The discussion in para 8 shows that such argument was not accepted by this Court in said matter.

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39. In National Textile Corporation (S.N.) Ltd. vs. Gangaram Atmaram Vishwasrao, reported at 2005 I CLR 87, Division Bench of this Court has considered Clause 4-C of Model Standing Orders in the light of contention of the appellant before it that existing settlement with recognized Union provided for number of permanent workers to be engaged in particular department. Division Bench has relied upon the judgment of the Hon'ble Apex Court in the case of Western India Match Company Ltd. vs. Workmen, reported at 1973 II LLJ 403, wherein the Hon'ble Apex Court found that agreement inconsistent with Standing Orders could not survive and answer the contention against the appellant - employer and dismissed its appeal.

40. It may be noted here that same judgment of Hon'ble Apex Court has been followed by learned Single Judge of this Court in the case of The Indian Tobacco Co. Ltd. vs. The Industrial Court & Ors., reported at 1990 I CLR 88. There provisions of Clause 32 of Model Standing Orders were pressed into service to urge that because of settlement the provisions of Standing ::: Downloaded on - 09/06/2013 16:06:36 ::: 64 Orders were not applicable. The learned Single Judge has also observed that only if settlement confers better rights, then only the provisions of Model Standing Orders will not be attracted.

Here, though the learned Member of Industrial Court has relied upon the provisions of said Clause 32 and Shri Upadhyay, Advocate has attempted to demonstrate that said clause 32 is not relevant, Respondent No. 1 has not countered his efforts. This position was required to be looked into by me recently in Writ Petition No. 4996 of 2009 decided on 15.04.2010 wherein the judgment of the Hon'ble Apex Court and later judgment of learned Single Judge with some other precedents are looked into. I, therefore, find that reliance upon the agreements to the contrary is misconceived & Respondent 1 can not defeat Clause 4-C of Model Standing Orders.

41. In view of the discussion above, it is clear that the learned Member of Industrial Court has erroneously found ULP Complaint invoking items 5 & 9 to be referable only to item 6 of Schedule IV of ULP Act. Its finding that such complaint is not ::: Downloaded on - 09/06/2013 16:06:36 ::: 65 maintainable because of bar under Section 21(1) of that Act is, therefore, unsustainable as complaint is for redressal of grievances not falling under item 2 and item 6 of Scheduled IV.

The discussion also shows that the petitioner - Union succeeded in establishing that its employer (Respondent No. 1) has indulged in unfair labour practice under item 9 of Schedule IV.

It is clear that said complaint filed by it exercising liberty granted on 05.09.2000 by the Industrial Court itself in ULP Complaint No. 128 of 1997 was, therefore, legally maintainable. The provision under Order 23, Rule 1 of Civil Procedure Code is not attracted and subsequent complaint filed vide ULP Complaint No. 77 of 2000 ought to have been entertained and allowed by Industrial Court. With the result, the order of Industrial Court dated 03.05.2006 in ULP Complaint No. 77 of 2000 is quashed and set aside. The said complaint stands allowed. It is hereby declared that Respondent No. 1 - employer has indulged in unfair labour practice falling under items 5 & 9 of Schedule IV of ULP Act by not giving similar wages to the members of petitioner

- Union and by not treating them as permanent workmen after ::: Downloaded on - 09/06/2013 16:06:36 ::: 66 they completed 240 days of uninterrupted service. Respondent No.1 is directed to cease and desist from continuing said unfair labour practices. It is further directed to extend to all daily wage members of petitioner - Union the benefits and privileges as permanent workmen after they put in 240 days of continuous service as per chart produced by the petitioner - Union as Exh.

"B" and to pay to them the wages as per their grades and designations as permanent workmen. The arrears on this account shall be payable from the date of filing of complaint i.e. from 13th October 2000. Writ Petition is thus allowed. Rule accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.

JUDGE ******* *GS.

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