Bombay High Court
Parke-Davis (India) Ltd. vs Shri Mahadev Bhiku Jadhav And Ors. on 18 January, 2008
Equivalent citations: 2008(2)BOMCR559, 2008(3)MHLJ823
Author: Nishita Mhatre
Bench: Nishita Mhatre
JUDGMENT Nishita Mhatre, J.
1. Writ Petition No. 1003 of 1996 has been filed by the Company challenging the order of the Industrial Court dated 19.12.1995. Writ Petition No. 6385 of 1996 has been filed by the workmen impugning the same order insofar as it does not grant certain reliefs to them. The Industrial Court has declared that the company has committed an unfair labour practice under Items 6 and 9 of Schedule IV of the MRTU & PULP Act. The company was directed to confirm all the workmen in service as permanent workmen w.e.f. the date they were actually provided work as permanent workmen. The Company was also directed to pay the difference in wages to the workmen which they were entitled to as permanent workmen together with all other allowances and benefits, whether monetary or otherwise, enjoyed by the permanent workmen. The company was directed to provide work to these workmen and to treat them as permanent in service.
2. Although Writ Petition No. 6385 of 1996 has been filed 18 workmen who were the complainants before the Industrial Court, all the workmen except two i.e. the petitioner Nos.8 and 18 have settled their dispute with the company. Thus, the petitions survive only with respect to Suresh Kandu and Savita Patil, Petitioner No. 8 and Petitioner No. 18 respectively.
3. The workmen were employed in various capacities with the company since 1980. They were employed as temporary or badli workmen although they performed work which was essentially of a permanent nature. Artificial breaks in service were given to these workmen by the company. Settlements were arrived at between the company and the workmen pursuant to which some of the badli workmen were made permanent although they had not completed 240 days of continuous service with the company. A charter of demands was raised by the Parke-Davis (India) Limited Employees Union representing the workmen on 1.4.1989 which included a demand for permanency of temporary and badli workmen concerned in the present petitions. A settlement was arrived at before the Conciliation Officer Under Section 18 r/w 2(p) of the Industrial Disputes Act. However, this settlement did not contain any agreement in respect of the demand for permanency. On 6.5.1991, the union was assured by the company that it would actively consider the issue of confirmation of badli workmen. Minutes of this meeting were recorded and an arrangement was arrived at which was to remain in force upto the expiry of the settlement dated 16.11.1990. Under this arrangement, the union agreed that the workmen whose names wee enlisted in annexure A to the agreement would be engaged by the company depending upon the availability of the work and as per the existing practice. On 10.2.1992, the workmen approached the company and requested it to make them permanent by implementing the assurance given earlier.
4. Since the demand of the workmen for permanency was not acceded by the company, the workmen filed a complaint (ULP) No. 539 of 1992 under Section 28 of the MRTU & PULP Act complaining that the company had indulged in unfair labour practices under Items 5, 6 and 9 of Schedule IV of the MRTU & PULP Act on 8.4.1992.
5. The workmen also preferred an application for interim relief which was dismissed by the Industrial Court on 17.6.1992 after an affidavit was filed by the company. However, the company was restrained from terminating the services of the workmen without following the due process of law. Initially the complaint was filed only by 12 workmen including Suresh Kandu. Six other workmen including Savita Patil filed an application to be impleaded as Complainants as they were similarly situated. The application was allowed by the Industrial Court, though opposed by the company.
6. Evidence of one of the complainants was recorded on behalf of all the other complainants. In rebuttal, the company examined its project manager and assistant personnel manager. The Industrial Court by its impugned judgment has allowed the complaint partly by declaring that the company had indulged in unfair labour practices under Items 6 and 9 of Schedule IV. However, the Industrial Court held that the unfair labour practice under Item 5 of Schedule IV had not been proved by the workmen against which fiinding the workmen have preferred their writ petition.
7. Several submissions have been advanced by Mr. Cama appearing for the Company. The principal submissions on which he rests his case are: (i) that the complaint was filed beyond the period of limitation and was hopelessly delayed; (ii) that there is no pleading regarding an unfair labour practice having been committed under Item 9 of Schedule IV; (iii) that the workmen, who were working admittedly as badli workmen, were not entitled to be made permanent in view of a settlement signed on 16.11.1990 which stipulated that no further demands of a financial nature would be made on the company by the union; (iv) that the minutes of the meeting of 6.5.1991 imply that the workmen were to be continued as badlis till the expiry of the settlement of 1990 i.e. upto 31.3.1993; (v) that there was no existing vacancy with the company for employing permanent workmen or to make the badli workers permanent; (vi) that the workmen had not completed 240 days in service and had not led any evidence in that behalf. (vii) that no record was produced by the workmen to show that they had completed 240 days in each year of service. The two workmen concerned in the petitions have not led any evidence by examining themselves. The Industrial Court directed the company to make the workmen permanent without there being any evidence to indicate that the company had continued the workmen as badli workmen with an object to deprive them of the status of permanency. (vii) that the workmen were not entitled to benefits from the date stipulated by the Industrial Court.
8. Mr. Cama has submitted that according to the complainants i.e. the workmen in the present petitions, they were employed as badli workers since 1980. They had raised a demand for permanency through the union only in 1989 when the charter of demands was submitted. He points out that the complaint was filed in April 1992 by 12 workmen including Suresh Kandu who was impleaded as one of the complainants by an order of the Industrial Court dated 5.8.1993 on the application made by her and other workmen on 15.4.1993. He submits that assuming the complaint in respect of Kandu is within the period of limitation, Savita Patil was not impleaded initially and therefore the complaint with respect to her was delayed. The Industrial Court has held that the complaint was maintainable, though filed after 90 days from the date on which the cause of action has arisen. The Industrial Court has rightly found that the denial of permanency was a continuing cause of action. The company had deprived the workmen of their legitimate right to be made permanent and to be paid wages and other benefits like permanent employees. The Industrial Court has therefore rightly held that the cause of action being continuous, there was no question of the complaint being barred by limitation. The distinction sought to be drawn by Mr. Cama between the case of Suresh Kandu and that of Savita Patil is not of any consequence. Savita Patil was joined as party to the complaint and, therefore, the Industrial Court has rightly found that her case would relate back to the date on which the complaint was filed though she was joined as a party pursuant to the orders of the Court in 1993. Therefore in my opinion the Industrial Court was right in concluding there was no delay on the part of the workmen, in approaching the court.
9. The next submission of Mr.Cama relates to the settlement arrived at between the company and the union representing the workmen. The settlement was signed in conciliation on 16.11.1990. This settlement was arrived at consequent upon a charter of demands being submitted by the union on behalf of the workmen on 1.4.1989. The settlement was made applicable to all permanent workmen including the probationers. It was agreed that such demands which were not specifically dealt with in their settlement but had been raised, would not be insisted by the union during the currency of the settlement. The settlement was to remain in force upto March 31, 1993. The benefits accruing from the settlement were to be paid to permanent workmen who gave an undertaking to the company in terms of the annexure to the settlement. The meeting between the company and the union on 6.5.1991 resulted in minutes being recorded with respect to the confirmation of temporary and badli workmen in service. The arrangement arrived at was that pending finalisation of the discussion in respect of the confirmation of the workmen whose names were in annexures A to the settlement, they would be engaged by the company depending on the availability of work as per the existing practice. This arrangement was to remain in force till the expiry of the settlement dated 16.11.1990 i.e. upto 31.3.1993. According to Mr.Cama, the complaint filed in 1992 itself was not maintainable in view of these minutes where the union had categorically agreed not to raise any demand regarding permanency and had agreed that the workman should be engaged as per the existing practice, depending on the availability of both. He submits that the workmen are bound by this arrangement and therefore, could not have filed the complaint in 1992. This submission of the learned Counsel cannot be accepted. The minutes of 6.5.1991 are not in the nature of an agreement or settlement as understood in industrial jurisprudence. These minutes are not a settlement as defined Under Section 2(p) of the Industrial Disputes Act and, therefore, cannot be binding on the workmen. Apart from this, the individual workmen could not have been prevented from filing a complaint to agitate for their right of permanency which is available to them in law.
10. The learned Counsel has drawn my attention to the evidence on record. According to him, the workmen who have been examined before the Industrial Court have admitted that no vacancy exists and, therefore, it is submitted by the learned Counsel, the Company cannot be held responsible for denying them the privileges of permanent employees. He submits that since there was no vacancy, it was not possible for the company to absorb these workmen as permanent workmen. In the affidavit filed on behalf of the company in reply to the complaint, it is averred that 23 workmen had been made permanent, in excess of the normal requirements of the company. Badli workmen who were maintained in a permanent pool of workmen were assigned work in various departments on a regular basis and were subsequently made permanent. According to the affiant, a large number of badli workmen were employed and as and when there were temporary vacancies arising on account of absenteeism of permanent workmen, badli workmen were directed to work in those temporary vacancies. It is then averred that some of the complainants were in a pool of badli workmen and were employed off and on in temporary vacancies. The Production Manager of the company indicates that no badlis were being engaged for 7 months prior to the date when the deposition was recorded since the existing labour strength was in excess. According to Mr.Cama, the basic requirement for proving an unfair labour practice under Item 6 is that, the management should deliberately refuse to fill up existing vacancies in order to deny the badli or temporary workmen their rightful status and privileges as permanent workmen. The learned Counsel has cited the judgments in the case of Gangadhar Pillai v. Siemens 2007 II CLR 139 and in the case of Pune Municipal Corporation and Ors. v. Dhananjay Prabhakar Gokhale 2006 II CLR 105 in support of his submission.
11. In Gangadhar Pillai's case (supra), the workman was employed on different projects undertaken by the management. His services were terminated on the conclusion of a project. The Supreme Court has held that merely because a person is employed for a number of years intermittently as a casual or temporary employee, depending on the availability of a project, that by itself would not be a ground to infer a motive on the part of the company that it had deliberately done so with a view to deprive him of the status and privileges of permanent employees. It was observed by the Supreme Court that the period of employment was commensurate with the period of work undertaken by the company under respective contracts and it was for this reason the company could not be held to have committed an unfair labour practice Under Section Items 6 & 9 of Schedule IV. In the present case, the workmen were not employed on any project of the company but were maintained in a pool of badli/temporary workmen and were directed to work on temporary and permanent vacancies. They were made to do work of a permanent nature as held by the Industrial Court and, therefore, the case of Gangadhar Pillai does not apply to the facts and circumstances of the present case.
12. The Division Bench of this Court has held in the case of Pune Municipal Corporation & Ors. (supra) that unless there is a vacant post, no claim can be made for regularisation in a complaint filed under Item 6 of Schedule IV of the MRTU & PULP Act. This was a case where the Pune Municipal Corporation required the sanction of the State Government for absorption of workmen on a permanent basis. It is in these circumstances that this Court has concluded that unless there were vacant posts duly sanctioned by the State Government, the workmen could not claim permanency merely on the basis that they had completed 240 days of uninterrupted service. The Division Bench observed that despite Model Standing Order 4C, which provides that a person who completes 240 days of uninterrupted service is entitled to permanency, the union in that case had agreed that the claim of permanency would be available to the workmen only on completion of continuous service of 4-5 years. It was for these reasons that the Division Bench dismissed the complaint filed by the workmen.
13. The learned Counsel then relied on the judgment in the case of Punjabrao Krishi Vidyapeeth, Akola v. General Secretary, Krishi Vidyapeeth Kamgar Union and Ors. 1994 I CLR 913 where a learned Single Judge of this Court has observed that in order to hold an employer guilty of an unfair labour practice described in Item 6 of Schedule IV, there must be some tangible evidence to show that it was a deliberate act. It is observed that the employer cannot be accused of committing an unfair labour practice under this Item unless the intention or design of depriving the workmen of the status and privileges of a permanent workman is apparent. The learned Counsel submits that in the present case, the company has stated all along and proved through its evidence that there were no vacancies and, therefore, the question of making these workmen permanent does not arise. This judgment of the learned Single Judge is in respect of filling up vacancies in a university. Posts were to be created at the discretion of the Government. It is in this situation that the court held that the university cannot be held to be responsible for continuing workmen as badlis or temporary or casual employees for years together when the State Government had not sanctioned the posts. The case before me is of a private employer where no sanction is required from government for creation of posts. Therefore, in my opinion, these judgments do not advance the case of the company.
14. Reliance is also placed by the learned Counsel on the judgment of the Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. to buttress his submission that the workmen cannot be regularised in service. He lays specific emphasis on the observations of the Court in paragraphs 45 and 47 which read as follows:
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arm's length since he might have been searching for some employment so as eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to avoid a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, i not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
These observations in my opinion cannot apply to the present case. The employer before me is not the State or a public sector undertaking but a private employer. The "constitutional scheme of appointment" which governs employment in the public sector was considered by the Supreme Court in Umadevi's case (supra). The Court frowned upon appointments being made in such organisations or by the State by giving a "back door entry" in breach of the proper procedure for selection and confirmation. It is in this context that the Supreme Court held that temporary or casual workmen cannot be made permanent merely since they worked as such for a number of years. In the present case the workmen and the Company are governed by the labour laws. An employer is guilty of committing an unfair labour practice under Item 6 of Schedule IV of the MRTU & PULP Act if he continues to employ workmen on a temporary, casual or badli basis in order to deprive them of permanency. The Industrial Court while declaring that such an unfair labour practice has been committed can direct the employer to cease and desist from such action. It is also empowered under Section 30(1)(b) to take such affirmative action as may be necessary to effectuate the policy of the Act. That is precisely what the Industrial Court has done by declaring that the Company has committed an unfair labour practice under Item 6 of Schedule IV and directing that the workmen be made permanent. It is now well settled that a workman need not demonstrate that he had completed 240 days in service in order to prove that Item 6 of Schedule IV is attracted. The Industrial Court has concluded on the basis of evidence led before it that the workmen were employed to do work of a perennial nature, regularly. They were employed for five days in a week almost throughout the year and not merely when a temporary vacancy arose. I do not find that there is any error of law in the impugned judgment, much less an error apparent on the face of the record requiring interference under Article 227 of the Constitution of India.
15. It is next submitted on behalf of the company that none of the workmen had completed 240 days in service especially the two workmen who are now concerned in these petitions. It is submitted that neither of the concerned workmen had stepped into the witness box to prove that he/she had completed 240 days in service and was therefore entitled to be made permanent in accordance with the model standing orders. The learned Counsel has submitted that before the workmen are entitled to permanency under the model standing order, he must prove that he has completed 240 days of continuous service.
16. The question which therefore arises is what is meant by continuous service. Before considering this question, it is necessary to point out that the witness for the workman had stated that all the workmen had completed 240 days of continuous service. But he was not able to state the exact number of days completed by each workman. He has stated that they were directed to work 5 days in a week and were given holidays for two days in each week. The witness has stated that the complainants were in service for a period ranging from 1.1/2 years to 10 years and they worked as helpers, operators or attendants. The witness has also denied in his cross-examination that the workmen were given work only if permanent workmen were on leave i.e. in a leave vacancy. He has admitted in his cross-examination that they were paid on a daily rated basis but were paid at the end of each month. They were paid leave wages at the rate of 1 day per 20 working days. The witness for the company i.e. the assistant personnel manager has denied that the workmen worked continuously for 240 days at any point of time. He, however, later admitted that two of the workmen had completed more than 240 days and that those days included paid holidays and not just the actual working days. He has stated that since the workmen were paid on a daily rate they were never paid for weekly offs. The witness has then admitted in his cross-examination that the muster book of badlis, casuals or temporaries in respect of whom the statements were filed with Exhibit C7 was not produced in Court. It appears that this document was produced thereafter as recorded by the Industrial Court in the impugned order. The witness has admitted that annexure A to the affidavit in reply filed by the Company did not include the weekly offs as the workmen were daily rated. The Industrial Court in the impugned order has observed that some of the workmen had completed 240 days in service others had not. However, since the witness has admitted that the days of weekly offs were not computed for considering whether the workmen had completed 240 days, in my opinion, it cannot be said with certainty the workmen had not completed 240 days. Surprisingly, although the company in its petition has annexed the copy of the complaint and the reply filed by it, the annexures to these pleadings have not been filed with the petition. Therefore, it is not possible to decide whether the workmen had completed 240 days if the weekly offs are taken into consideration.
17. Mr. Cama has submitted that in view of the judgment in the case of Bajaj Auto Ltd., Pune v. Ashok Dnyanoba Dhumal and Anr. 2006 I CLR 441, the weekly offs are not be reckoned for the purposes of computing whether the workman has completed 240 days in service. He submits that since the workmen are not paid for the weekly offs, they are not entitled to include these days for the purposes of computing 240 days. He submits that the contention of the workmen that they are entitled to be confirmed in service as permanent workmen should not be accepted as the workmen were governed by the certified standing orders and not the model standing orders. According to him, the Industrial Court was not right in concluding that there was a breach of model standing order 4C and, therefore, the company had indulged in an unfair labour practice under Item 9 of Schedule IV. He points out that the establishment was governed by its certified standing orders and there was no provision in the certified standing orders which enable the workmen to claim permanency on completion of 240 days, assuming that the two workmen had completed 240 days.
18. This submission of the learned Counsel cannot be accepted in view of the decision of the Full Bench of this Court in the case of Gangadhar Balgopal Nair v. Voltas Ltd. and Anr. . The Full Bench has concluded that where the standing orders are applicable to an industrial establishment have been certified prior to 15.1.1959 i.e. before the Industrial Employment (Standing Orders) Bombay Amendment Act, 1957 came into force, an amendment to the model standing orders would not automatically apply to the certified standing orders. In the present case, the certified standing orders have come into force on 29.4.1957. However, there is nothing on record to indicate when these certified standing orders were certified i.e. whether before 15.1.1959 or thereafter. If the certified standing orders have been certified subsequent to 15.1.1959, the Full Bench has held that any amendment to he model standing orders would ipso facto apply without incorporation into a pre-existing certified standing order. The full bench has held that model standing order 4C would apply automatically by virtue of Section 2A of the Industrial Employment (Standing Orders) Act. Therefore, it would be necessary to remand he complaint to the Industrial Court for a decision as to whether the certified standing orders have been certified prior to 18.1.1959 or thereafter. If it is found that they have been certified after the relevant date, standing order 4C would ipso facto be applicable. In such an event, the workmen would have to prove that they had completed 240 days uninterrupted service in order to prove that they are entitled to be made permanent under this standing order. Interruption in service which is not due to any fault of the workman has to be included for the purposes of computing 240 days. The certified standing orders indicate that the employees of the establishment are classified as permanent employees, probationers, temporary employees and part time employees. Presumably, the workmen who are called badli workmen would be included as temporary employees. A temporary employee has been defined in the certified standing orders as "an employee who has been appointed for a limited period for work which is of an essentially temporary nature, or who is employed temporarily as an additional employee in connection with temporary increase in work of a permanent nature and includes an employee who is appointed in the post of a permanent or probationary employee who is temporarily absent".
19. The evidence on record discloses that the workmen were made to do work which was both of a permanent nature as well as a temporary nature. In these circumstances, it would be necessary for the Industrial Court to consider whether the workmen had completed 240 days in service to decide the issue regarding unfair labour practice under Item 9 of Schedule IV.
20. However, for concluding that the company has committed an unfair labour practice under Item 6 of Schedule IV there is no need to prove that the workmen had completed 240 days in service. The mere fact that the workmen were made to perform work of permanent nature for years together would in my opinion, indicate that the company had directed them to work as such with an ulterior motive of denying them their legitimate right to permanency.
21. The workmen have contended in their petition that the order of the Industrial Court is erroneous insofar as it dismisses the complaint with respect to the unfair labour practice committed under Item 5 of Schedule IV. In my opinion, there is no evidence on record to indicate that there has been an unfair labour practice under this Item. It is true that the witnesses have said some workmen have been made permanent from the pool of badli workers. However, there is no evidence on record to indicate that this was because of favouritism or because the company wished to favour one set of workmen regardless of merit. On a perusal of the impugned order, I find that the Industrial Court has mainly discussed as to whether the company has committed an unfair labour practice under Item 6 of Schedule Iv. There is no discussion regarding the unfair labour practice alleged under Item 9 of Schedule IV and in this view, it would be necessary to remand the complaint for a decision on this aspect.
22. The order of the Industrial Court declaring that the company has committed an unfair labour practice under Item 6 of Schedule IV of the MRTU & PULP Act and dismissing the complaint with respect to the unfair labour practice under Item 5 of Schedule IV is upheld. The petition of the workmen is dismissed. The petition of the Company is allowed partly and the complaint is remanded to the Industrial Court to decide whether there is an unfair labour practice under Item 9 of Schedule IV. The Industrial Court will decide the issue within 3 months from today.
23. Rule accordingly made absolute partly in Writ Petition No. 1003 of 1996 and Rule discharged in Writ Petition No. 6385 of 1996. No order as to costs.