Bombay High Court
Rashtriya Mill Mazdoor Sangh vs S.L. Mehendele, Member Industrial ... on 25 November, 1999
Equivalent citations: (2000)IIILLJ1178BOM
Author: A.P. Shah
Bench: A.P. Shah
ORDER A.P. Shah, J.
1. The only issue which falls for consideration in this petition is "whether, under the Standing Order 4(C) even if the employees have completed 240 days of service, there must be a post available to regularise them?". Only few facts need to be stated in order to appreciate the controversy raised in the petition. The petitioner is a representative Union in the cotton textile industry under the provisions of the Bombay Industrial Relations Act, 1946, hereinafter referred to as the "BIR Act". Respondent No. 2 is a Cotton Textile Mill covered under the said Act and employed more than 100 employees. The petitioner filed Complaint (ULP) No. 1625 of 1991 in the Industrial Court, Mumbai alleging unfair labour practices on the part of the employer under items 8 & 9 of Schedule I of the MRTU and PULP Act, 1971. In the said Complaint, the Union espoused the cause of the employees of Respondent No. 2 whose names are listed in Exh. A to this petition. The grievance of the listed employees was that even though they had completed 240 days and were working for years without any break in the service, they were not held and declared as permanent employees and in fact from April 2, 1990 were getting lay-off, which was in violation of Section 32-M of the Industrial Disputes Act, 1947 as well as the provisions of the settled Standing Orders. The Union sought a direction to restrain the employer from giving lay-off without following due process of law and also for directing the 2nd Respondent to pay their full wages for all the days on which they were laid-off since April 2, 1990. The Union also prayed for a direction to the 2nd Respondent to extend the facility of Casual Leave, E.L., Leave Travel Concession, etc. The main defence raised on behalf of the 2nd Respondent was that the employees concerned were badli/temporary employees and, therefore, they cannot claim the status of permanent employees and thus there is no question of application of Section 32-M of the Industrial Disputes Act. It was contended that the concerned employees had not completed 240 days of service and in any event they cannot claim permanency under the Model Standing Orders in the absence of any vacant posts. The Industrial Court rejected the complaint solely on the ground that the workman cannot claim the status of a permanent workman as they are temporary or badli workers. The Industrial Court held that although all the workmen have completed 240 days as per Standing Orders, they do not have any right in any employment and consequently the question of giving them any lay-oft does not arise. The legality and correctness of the order of the Industrial Court is impugned in this petition.
2. I have heard Mr. Deshpande appearing for the petitioner and Mr. Naphade appearing for the 2nd Respondent. Before I deal with the submission made by the learned Counsel it may be mentioned that in view of the defences raised by the employer, the Union had filed another complaint being Complaint (ULP) No. 1678 of 1990 claiming permanency in the 2nd Respondent's establishment. The Industrial Court allowed the said complaint and granted a declaration of permanency in favour of the workmen. Against the Order of the Industrial Court, 2nd Respondent preferred Writ Petition No. 1358 of 1997 which came to be dismissed by REBELLO, J. by an order dated November 18, 1997. An identical contention was raised before REBELLO, J. that it is not enough that the employee had completed 240 days and he cannot be made permanent unless mere is vacancy available to regularise him. The learned Judge rejected the contention made on behalf of the employer and dismissed the writ petition.
3. Mr. Naphade strenuously contended that the Model Standing Order No. 4(C) must be read in harmony with the provisions of the BIR Act and if it is so read then the conclusion is inevitable that a temporary or badli employee is entitled to become permanent after completing 240 days actual working only if there is a vacant post. He drew my attention to item 2 of the Schedule II of the Act which inter alia lays down that if permanent or semi-permanent increase in the number of persons employed or to be employed in any occupation, process or department is to be brought about, then the employer must give a notice of change under Section 42(1) of the BIR Act. The Counsel submitted that if a post is not vacant and the badli employee completes 240 days of actual working, men as per the view taken by REBELLO, J. such badli worker is required to be made permanent and in the process the number of permanent employees employed in the department is going to be increased. Thus, according to the Teamed Counsel, there is a clear conflict between the Model Standing Order 4(C) and the provisions of Section 42(2) of the Act read with Item 2 of Schedule II of the said Act. The learned Counsel submitted that if a wide interpretation is given to the Model Standing Order 4(C), it would run counter to the provisions of Section 42 read with Section 46 and Schedule II of the Act and in that event Model Standing Order 4(C) would be required to be struck down as being ultra vires the rule-making power of the Government contained in Section 35(5) of the Act.
4. I do not find any merit in the argument of Mr. Naphade. It is not in dispute that the Model Standing Order 4(C) as notified by the State Government applies to the respondent No. 2 Mill. In Gangaram Atmaram Vishwasrao v. The National Textile Corporation (SN) Ltd. and Ors. reported in 1996-I-LLJ-1029 (Bom), SRIKRISHNA, J. had held that the Model Standing Order would apply, unless the Commissioner of Labour holds that they are less advantageous to the employees than the corresponding certified Standing Orders applicable to them. In the present case, Model Standing Order 4(C) gives an additional benefit to the workmen of completing 240 days of service and hence it is definitely more advantageous to the workmen. Hence it cannot be disputed that Model Standing Order 4(C) would be applicable to the workman employed in the 2nd Respondent Mill.
5. It would be advantageous to refer to the Scheme of Chapter VII of the Act which deals with the Standing Orders. Section 35 provides for Settlement of Standing Orders by the Commissioner of Labour and further provides that until Standing Orders in respect of an undertaking comes into operation, Model Standing Orders, if any notified in the Official Gazette by the State Government, in respect of the industry, shall apply to such Undertaking. Section 36 provides that any person who feels aggrieved by the decision of the Labour Commissioner in this regard may appeal to the Industrial Court who may confirm, modify, add or rescind any of such Standing Orders. Section 37 envisages review by the Industrial Court of its decision in this behalf. Section 38 speaks in terms of no change to be made in the Standing Orders when they are settled under Sub-section (2) of Section 35 and had not been appealed against for a period of more than one year. Then Section 39 provides about the alteration of Standing Orders on receipt of on an application under Section 38(2) by the Commissioner of Labour and the procedure to be followed by him. Section 40 provides for determinative nature of Standing Orders. And then comes Section 40-A of the Act which reads as follows:
"40-A. Notwithstanding anything contained in the foregoing provisions of the Chapter any Model Standing Orders made and notified in the Official Gazette by the State Government from time to time, in respect of any additional matters included in the Schedule I, or any alteration made in that Schedule, on or after the date of commencement of the Bombay Industrial Relations (Amendment) Act, 1977, shall unless such Model Standing Orders are held by the Commissioner of Labour, to be less advantageous to the employees than the corresponding Standing Orders applicable to them, also apply in relation to such employees in the Undertakings in respect of which Standing Orders have already been settled under Section 35."
6. A bare reading of Section 40-A makes it clear that notwithstanding what is provided in Sections 35 to 40 of the Act, if any Model Standing Order is made and notified in the Official Gazette by the State Government after the amended Act No. XLVII of 1997 by which this particular section was introduced, the same shall be applicable to the employees if such Model Standing Order is not held by the Labour Commissioner to be less advantageous to them than the corresponding Standing Order provided that by making such a Model Standing Order an additional matter was introduced in Schedule I or alteration was made therein.
7. The amended Model Standing Order 4(C) which is the subject matter of the present writ petition reads as follows:
"4(C) - A badli or temporary operative who has put in 240 days uninterrupted service in the aggregate in any other undertaking during the period of preceding twelve months, shall 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".
8. The above Standing Order provides in clear terms that a badli or temporary employee who has put in 240 days uninterrupted service in the aggregate in any undertaking, during the period of preceding twelve months shall be made permanent in that undertaking by the employer. The argument of Mr. Naphade is that the confirmation of the workman after 240 days amounts to a change and therefore unless a Change Notice is given and the procedure prescribed is followed, no automatic permanency can be granted to the employee. Consequently unless there are vacancies the workers are not entitled for deemed permanency inasmuch as granting permanency in the event of above posts would tantamount to creation of new posts which cannot be done without issuing a Notice under Section 42(2) of the Act. Justice REBELLO rejected this contention by observing as follows:
"Reading of the said Standing Order would thus show that on completing 240 days of service, a workman has to be made permanent. The right to create a post no doubt is that of an employer. However, by virtue of the Model Standing Order, a statutory condition of service has been introduced whereby the employer has agreed that the worker would be made permanent. Implicit in this is that posts will be created as a workman cannot be made permanent unless a post exists. Therefore, reading Model Standing Order 4(C) by itself will indicate that the employer (sic) permanent on the workman completing 240 days of service".
9. I am in respectful agreement with brother REBELLO, J. when he says that by virtue of Model Standing Orders a statutory condition of service has been introduced whereby the employer has agreed that the worker would be made permanent. Consequently the question of issuing change notice under Section 42 would not arise. In my opinion, if the interpretation suggested by Mr. Naphade is accepted, it would mean that Model Standing Order 4(C) would become totally redundant and the very purpose of introducing the said Model Standing Order would be defeated. The said Standing Order was introduced in order to stop the exploitation of the workmen in the textile mills who were kept temporary for number of years without conferring any status of permanency and benefits of permanent workmen. Therefore the argument of Mr. Naphade that there is a conflict between Model Standing Order and Section 42 must be rejected.
10. In view of the foregoing discussion, the Petition succeeds. The impugned order dated February 8, 1993 passed by the Industrial Court is quashed and set aside. Complaint No. (ULP) No. 1625 of 1991 filed by the Union is allowed. It is declared that the 2nd respondent has engaged in unfair labour practices under Items 9 and 10 of the Schedule IV of the Act, The Respondents are restrained from giving lay-off to the concerned employees without following procedure prescribed by law. 2nd respondents are directed to deposit in the Industrial Court full wages of the employees with effect from April 2, 1990 and also extend to the said workers facilities like C.L., E.L. and LTC etc. The 2nd respondent is given 4 weeks time to deposit the amount of wages. And on depositing the said amount the workmen are at liberty to withdraw the same.
11. Certified copy expedited.