Bombay High Court
Pravin Krishna Jadhav And Ors. vs Rashtriya Chemicals And Fertilizers ... on 29 June, 2000
Equivalent citations: [2001(88)FLR260], (2001)IIILLJ1BOM
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. The petitioners were all employees of the respondent. The petitioners Nos. 1 to 5 have worked during the following periods and assigned work in the following departments.
Petitioner No. 1Period Department
1. 09-10-86 to 07-11-1986 ANP (Elect.)
2. 10-11-86 to 21-11-1986 DF Office
3. 22-03-87 to 03-04-1987 Tr. IV Bagging
4. 13-04-87 to 05-05-1987 Soil Testing
5. 20-05-87 to 05-06-1987 Soil Testing
6. 08-06-87 to 29-06-1987 Soil Testing
7. 05-12-87 to 31-12-1987 Tr. IV Bagging
8. 01-01-88 to 19-09-1988 Tr. V Bagging
9. 20-10-88 to 21-11-1988 Tr. V. Bagging
10. 27-12-88 to 24-03-1989 Tr. V. Bagging
11. 15-05-89 to 31-05-1989 Old Bagging
12. 01-06-89 to 11-06-1989 Tr. IV. Bagging Petitioner No. 2 Period Department
1. 08-12-86 to 28-01-1987 Tr. V Bagging
2. 10-03-87 to 03-04-1987 Tr. V Bagging
3. 01-05-87 to 25-05-1987 Tr. V Bagging
4. 27-08-87 to 26-09-1987 Tr. V Bagging
5. 06-1 1-87 to 12-11-1987 Tr. IV Bagging
6. 01-01-88 to 19-10-1988 Tr. IV Bagging
7. 27-12-88 to 24-03-1989 Tr. IV Bagging
8. 19-05-89 to 31-05-1989 Old Bagging
9. 01-06-89 to 11-06-1989 Tr. IV Bagging Petitioner No. 3 Period Department
1. 05-12-87 to 31-12-1987 Tr. IV Bagging
2. 01-01-88 to 19-10-1988 Tr. V Bagging
3. 22-10-88 to 21-11-1988 Tr. V Bagging
4. 27-12-88 to 24-03-1989 Tr. V Bagging
5. 19-05-89 to 31-05-1989 Tr. V Bagging
6. 01-06-89 to 11-06-1989 Tr. IV Bagging Petitioner No. 4 Period Department
1. 05-12-87 to 31-12-1987 Tr. IV Bagging
2. 01-01-88 to 21-11-1988 Tr. V Bagging
3. 07-12-88 to 24-03-1989 Transportation
4. 19-05-89 to 31-05-1989 Tr. V Bagging Petitioner No. 5 Period
1. 12-04-85 to 22-04-1985
2. 05-10-85 to 19-10-1985
3. 28-05-86 to 13-06-1986
4. 17-07-86 to 23-07-1986
5. 29-07-86 to 01-09-1986
6. 16-09-86 to 09-10-1986
7. 01-11-86 to 06-02-1987
8. 12-02-87 to 30-04-1987
9. 06-08-87 to 15-08-1987
10. 14-02-88 to 29-02-1988 A perusal of the above snows that petitioners Nos. 1, 2, 3 and 4 had completed more than 240 days in the year 1988. Petitioner No. 5, however, has not completed 240 days in any of the years. Hence Mr. Gonsalves has not pressed the petition on behalf of petitioner No. 5. The services of the petitioners were terminated on different dates. The petitioners, therefore, raised a grievance before the Labour Commissioner stating that the termination was by way of retrenchment and as retrenchment notice and retrenchment compensation was not tendered, the retrenchment was illegal. Without prejudice to the above, the workmen also submitted that the termination was punitive for alleged misconduct of absence without leave and no enquiry was conducted and no charge-sheet was issued. Reference was made to the 7th Labour Court, Mumbai. Statements of claim were filed. In the statement of claim, in addition to the aforesaid pleas, it is also stated that the petitioners have continued in the employment without any break of service for more than 240 days in a calendar year. Therefore, they are entitled to be treated as permanent employees as per law. The Model Standing Orders are not specifically mentioned.
2. After considering the entire matter, the 7th Labour Court, Mumbai, has dismissed the Reference.
3. I have heard the counsel for the parties at length and perused the Award. The Labour Court framed four issues. One of the issues was as to whether or not the services of the petitioners have been illegally terminated. All the issues have been decided against the petitioners. After noticing the various citations and the submissions made by the counsel, it has been held that the termination of the petitioners does not amount to retrenchment. It is further held that it is an automatic cessation of service by efflux of time. Therefore, by not giving any further appointment to the petitioners, there cannot be said to be any termination of service. The Labour Court notices the admission of the petitioners that the appointments of the petitioners have been given for a fixed period. It is further held that the employment of the petitioners was not of a permanent nature. The Labour Court also notices that although persons junior to the petitioners have been retained in service but the appointment of those persons was given on compassionate grounds. It is further observed that even the petitioners have been appointed on compassionate grounds. From the above it becomes apparent that the Labour Court has not taken into account the provisions of the Model Standing Orders. The Labour Court also has failed to take into consideration the settled proposition of law that repeated appointments for short periods merely to avoid the completion of 240 days would not disentitle the workmen of their rights. Clause 4-B occurring in Model Standing Orders, Schedule I-B of Bombay Industrial Employment (Standing Orders) Rules, 1959 reads as under:
"4-B. A temporary workman, who has put in 190 days uninterrupted service in the aggregate in any establishment of a seasonal nature or 240 days, uninterrupted service in the aggregate in any other establishment during a period of preceding twelve calendar months, shall be made permanent in that establishment 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 establishment throughout the period of the said twelve calendar months."
A perusal of the above clearly shows that if a workman completes 240 days in the preceding calendar year, then the next following year he is to be treated as a permanent employee. There is much force in the submission of Mr. Cama to the effect that the petitioners would not be entitled to complain of any breach of Section 25-F of the Industrial Disputes Act as the appointment was for a fixed period and it has come to an end by efflux of time. I, however, do not find much force in the second submission of Mr. Cama that even if the petitioners are to be treated permanent on the basis of Model Standing Orders, no relief can be granted to the petitioners as there is neither any discharge nor termination nor dismissal nor superannuation of the workmen. He submitted that cessation from work by efflux of time cannot be equated with either of the four categories mentioned above. In my view, the petitioners were illegally not declared permanent workmen as they had satisfied the conditions laid down in Model Standing Order 4-B (supra). Under this Standing Order the petitioners automatically became permanent employees of the respondent. The Manager of the respondent was under an obligation to pass an order in writing declaring that the petitioners are permanent employees of the respondent. Instead of complying with the Standing Order the respondent continued to employ the petitioners for short periods by treating them as temporary employees. This course was not open to the respondents. The action of the respondent was wholly arbitrary and against law. I am also of the considered opinion that it would make no difference whatsoever as to whether the employment has come to an end by efflux of time or by some other reason which would tantamount to discharge or termination of service. The effect of cessation is clearly non- employment. This would amount to discharge/termination of service of the petitioners since the procedure prescribed under the Model Standing Orders for discharge/termination of services of the permanent workmen has not been followed. The action was clearly illegal. Under Model Standing Order No. 21(1), the employment of a permanent workman may be terminated by one month's notice or on payment of one month's wages (including all allowances), in lieu of notice. This procedure has not been followed. Apart from this, under Model Standing Order No. 21 (7) it was obligatory on the respondents to pass an order in writing. This order had to be signed by the Manager. Copy of this order had to be given to the concerned workman. None of these procedures have been followed. In such circumstance it would be difficult to hold that the services of the petitioners had not been illegally terminated. As noticed earlier, once the workman completes 240 days he is entitled to be automatically treated as a permanent employee on the basis of Clause 4-B of Model Standing Orders. Merely because he would not be entitled to any benefit under the Industrial Disputes Act by virtue of Section 2(oo)(bb) would not disentitle the workman from the benefits which would flow from his being declared as a permanent workman by operation of Model Standing Order. That being so, I am of the considered opinion that the petitioners could not have been removed from service without complying with the provisions of the Model Standing Order, which would be applicable for discharge/termination of a permanent workman.
4. Consequently, the Writ Petition is allowed. The Award of the Labour Court is set aside. The respondents are directed to reinstate the petitioners into service with full back wages and continuity of service and all benefits. Mr. Gonsalves has very fairly stated that the petition is not being pressed on behalf of petitioner No. 5, The respondents are directed to comply with the order within a period of six weeks from today.
5. Certified copy expedited.