Bombay High Court
Maharashtra State Co-Op. Cotton ... vs Maharashtra State Co-Op. Cotton ... on 1 January, 1800
Equivalent citations: (1993)IIILLJ140BOM
JUDGMENT H.H. Kantharia, J.
1. By this writ petition under Article 227 of the Constitution, the Maharashtra State Cooperative Cotton Growers Marketing Federation Limited, a Society registered under the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the 'Petitioner Federation') takes exception to the judgment and order passed by the learned Member of the Industrial Court, Nagpur (second respondent) Complaint (ULPN) No. 316/90 on September 14, 1990, declaring that the petitioner Federation had engaged in unfair labour practices covered by Item Nos. 5, 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "MRTU & PULP ACT") and granting further consequential relief to the employees represented by the first respondent, Maharashtra State Cooperative Cotton Growers Marketing Federation Employees Union.
2. The relevant facts giving rise to this writ petition are as under:-
It is the case of the first respondent Union that under the Maharashtra Raw Cotton (Procurement, processing and Marketing) Act, 1971 (hereinafter referred to as the "Raw Cotton Marketing Act"), the Government of Maharashtra alone was authorised to deal in purchase, sale and processing business or cotton in the State of Maharashtra. The State Government authorised the Maharashtra State Co-operative Marketing Federation (hereinafter referred to as the 'old Federation') the monopoly or cotton purchase business as the sole agent. This agency was continued till October 1984, and since the activities of the old Federation were not confined to any one agricultural produce and cotton monopoly scheme was a huge project, the chief agency was transferred to the petitioner Federation which was specifically formed for the purpose. The transfer of agency was by a letter of the State Government dated September 7, 1984.
3. The first respondent-Union represents the employees belonging to Class III and Class IV cadres viz. the seasonal clerks, peons, watchmen etc. who were working in the Scheme and many of them from the very inception in the year 1971-72 continuously. Thus, according to the first respondent-Union, these employees had put in more than 16 to 17 years of service in the above said categories on the seasonal basis inasmuch as their appointments were made some time in the month of October/November when the collection of cotton crops started and were continued upto the end of April/May of the next year. It is the further case of the first respondent Union that while floating the petitioner Federation, the Government of Maharashtra had issued a letter dated September 6, 1984, by which the assets and liabilities of the old Federation were transferred to the petitioner Federation in respect of the monopoly of the cotton purchase scheme and thus the petitioner Federation was under all the liabilities of the old Federation in respect of the service conditions of the employees who are members of the first respondent-Union. It was the contention of the first respondent-Union that since the monopoly of the cotton purchase scheme was implemented on permanent basis for the last 19 to 20 years and also proposed to be continued hereafter, it was necessary to decide the fate and status of the employees in the scheme as they were treated as if casuals or temporary employees. However, their services were sought to be terminated with effect from April 30, 1990.
4. The first respondent-Union, therefore, filed the unfair labour practice complaint under Items 5, 6 and 9 of Schedule IV of MRTU & PULP Act in the Industrial Court at Nagpur contending that as per Award made in Reference (IT) No. 213 of 1973 on August 31, 1974 by Shri S.K. Patankar (hereinafter referred to as the 'Patankar Award') all those employees who had completed 240 days of continuous service should be treated as permanent employees and the petitioner Federation be not permitted to show favouritism to a set of employees as against another set of employees as they have done in the case of one P.S. Thakre and a group of employees from other regions in the State of Maharashtra.
5. The complaint was resisted by the petitioner Federation and it was mainly contended that the Patankar Award was not applicable to the seasonal employees and that in the meanwhile there was an appointment of a Committee known as 'Bhuibhar Committee' on whose recommendations certain agreement was entered into between the parties according to which the seasonal employees were entitled to work only for six months. It was also contended by the petitioner Federation that the complaint was barred by law of limitation and as such was not maintainable.
6. At the trial, the first respondent union examined its President by name Narayan Ganpat Kohale and General secretary Ramesnwar Pandurang Gawande and also relied upon a number of documents. The petitioner Federation examined its Deputy Zonal Manager-Damodhar Tukaramji Mithey and also relied upon number of documents.
7. On appreciation of the evidence adduced before him, the second respondent came to the conclusion that the petitioner Federation indulged in unfair labour practices covered by Items 5, 6 and 9 of Schedule IV of the MRTU & PULP Act and after so declaring granted consequential relief to the employees represented by the first respondent Union.
8. Being aggrieved, the petitioner Federation invoked the supervisory writ jurisdiction of this court by filing the present writ petition under Article 227 of the Constitution.
9. Mr. Dharmadhikari, appearing on behalf of the petitioner Federation, made four propositions for my consideration as under:-
(I) Patankar Award was not applicable to the seasonal employees;
(II) Assuming that the directions given in the Patankar Award were applicable to the seasonal employees, only such seasonal employees who completed 240 days on 31.8.1974 (i.e. the day of the Patankar Award) would be entitled to the benefits flowing from the said Award.
(III) As the parties agreed to refer the matter of seasonal employees to Bhuibhar Committee, the Patankar Award stood modified to the extent of being inconsistent with the agreement dated January 18, 1984 entered into between the parties;
(IV) The unfair labour practice complaint was barred by limitation.
10. Now, whether or not the Patankar Award was applicable to the seasonal employees represented by the respondent-Union, the point is no more res integra. A similar contention was raised by the old Federation in the case of Shripati Pandurang Khade and Ors. v. Zonal Manager, Maharashtra State Co-operative Marketing Federation Ltd. and Ors. 1987 M.L.J. 694 in this Court. The learned Single Judge (V.V. Vaze, J.) by a judgment and order dated 9th/10th of April, 1987, had negatived the said contention. Feeling aggrieved, the petitioner Federation took the matter to the Supreme Court by filing Appeal No. 37 of 1988 which was decided by the Supreme Court on October 11, 1988 in Maharashtra State Co-op. Cotton Growers Marketing Federation Ltd. v. Shripati 1989 Mah.L.J. 264 when the Supreme Court upheld the judgment of this Court and dismissed the appeal. In other words, it was finally decided by the Supreme Court that the seasonal employees of the petitioner Federation were governed by the Patankar Award. Now, it is pertinent to note that in Reference (IT) No. 213 of 1973 made to Shri G.K. Patankar for adjudication of dispute between the old Federation and the workmen employed by it, Demand No. 4. was in respect of permanency and it was the case of the employees that, "All the workmen who have put in three months of aggregate service and have actually worked for 78 working days in aggregate in spite of break in service be immediately confirmed"
The employer Federation had raised a contention in respect of the said demand that the three months service for making an employee permanent was too short for judging the ability of the worker before he was made permanent and the Federation had to employ workers either on temporary or seasonal basis depending upon the nature of work. It was, therefore, contended that the rule of permanency be applied to the employees who were recruited against permanent post, and there should be no period prescribed for making the workers permanent. The learned Member of the Industrial Tribunal dealt with the contentions raised by the parties in his Award in Para No. 19, thus;
'The next demand is in respect of permanency. It is alleged by the Union that the workers who have put in three months of aggregate service and have put in 78 or more days as working days in spite of any breaks in service, be made permanent, the Federation opposes this demand and contends that it is willing to confirm all the employees who have put in three years of continuous service. Considering, therefore, the arguments advanced for both the sides, it appears that it would be proper to direct that those employees who have put in 240 days of continuous service be treated as permanent employees".
The argument of Mr. Dharmadhikari is that the demand before the Industrial Tribunal consisting of Patankar was not for seasonal employees as the work of cotton purchase was taken over only In October 1972. This argument has no substance inasmuch as in the aforesaid rulings of this Court and the Supreme Court in Shripati case (supra) it was decided that the employees of the old Federation were governed by Patankar Award. Therefore, it cannot lie in the mouth of the petitioner Federation now to say and submit that the Patankar Award was not applicable to the seasonal, employees.
11. I also find no substance in the argument of Mr. Dharmadhikari that assuming that the directions given in Patankar Award were applicable to the seasonal employees, only such seasonal employees who completed 240 days on 31st of August, 1974 (i.e. the day of the Patankar Award) would be entitled to the benefits of the Award. In support of his contention Mr. Dharmadhikari urged that the demand was confined to those employees who were in the employment of the old Federation and had completed 78 days on the day of the demand and as such only those employees who had completed 240 days of continuous service on the day of the Patankar Award alone would be covered by the said Award. First of all the provisions of Section 18(3)(d) of the Industrial Disputes Act, 1947 is a complete answer to the argument of Mr. Dharmadhikari inasmuch as the said provision of law says that:-
"(3) A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under Subsection (3A) of Section 10A, or an arbitration award in a case where there is a recognised union for any undertaking under any law for the time being in force, or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on-
(a).............................
(b).............................
(c).............................
(d) where a party referred to in Clause (a) or Clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons subsequently become employed in that establishment or part'' .
Secondly, it may be mentioned that in Maharashtra State Co-operative Marketing Federation Employees Union v. State of Maharashtra and Ors. 1989 1 CLR 21 this Court (V.A. Mohta, J.) had held that the Federation (i.e. the petitioner Federation) is a successor-in-interest of the old Federation in the matter of chief agency of cotton monopoly scheme and the new Federation as successor-in-interest was obliged to comply with the order of reinstatement and back wages even though arising out of wrongful orders of termination passed by the predecessor and further that the new Federation was liable to pay back wages even for the period earlier to the taking over. In other words, the, employees of the old Federation as also those thereafter recruited by the petitioner Federation would be covered by the Patankar Award made on August 31, 1974.
12. Dealing with the third contention of Mr. Dhamadhikari as stated above, the facts to be noted are that seasonal employees were discontinued on the expiry of the season which practice had not objected to and on the other hand the first respondent had entered into an agreement with the old Federation on 11th of December, 1981, agreeing to refer the matters of service of seasonal employees engaged in cotton purchase scheme to a Committee to be appointed by the State Government and accordingly the matter was referred to a Committee called "Bhuibhar Committee" appointed by the State Government on 7th of January, 1982. Mr. Dharmadhikari pointed out that one of the matters referred to the said Committee was whether seasonal employees engaged in relation to cotton purchase scheme should be given perennial work for all the 12 months and while the report of Bhuibhar Committee was awaited on 22nd of December, 1982, an agreement was again entered into between respondent No. 1 and the old Federation granting interim relief to the seasonal employees in pay etc. pending submission of the report of the Bhuibhar Committee and the benefits of this agreement was given and accepted by each of the seasonal employees including those who had completed 240 days of continuous service. Mr. Dharmadhikari further pointed out that Bhuibhar Committee submitted its report in October 1983, and Government of Maharashtra by its letter dated 3rd November, 1983, suggested that respondent No. 1 and the old Federation should enter into an agreement on the basis of the recommendations made by the Bhuibhar Committee and accordingly on 18th January, 1984, respondent No. 1 and the old Federation entered into an agreement which provides for pay-scales of seasonal employees and for the modalities to absorb them against permanent vacancies as and when they arose. Mr. Dharmadhikari then pointed out that according to the agreement dated 18th January, 1984, right to employment for all the 12 months was given up by the first respondent for and on behalf of seasonal employees and even thereafter various agreements were entered into from time to time with respondent No. l and the benefits reached were made available to seasonal employees who accepted the same. Mr. Dharmadhikari therefore submitted that as the parties agreed to refer the matter of seasonal employees to Bhuibhar Committee, the Patankar Award would be modified to the extent as being inconsistent to the agreement dated 18th January, 1984. I am not able to persuade myself to agree with any of the submissions of Mr. Dharmadhikari in this respect as the agreement dated 18th January, 1984 was very much available to the Petitioner Federation to be pointed out to this Court (V.V. Vaze, J.) and the Supreme Court in the case of Shripati Khade (supra) which was not done and now the present contention is raised only as an afterthought. It is also important to note that there is no change in the circumstances and/or there is no new development after the judgment of the Supreme Court in case of Shripati Khade (supra) and one fails to understand how such an argument now lies in the mouth of the petitioner Federation. But that apart, this Court in case of Maharashtra State Cooperative Marketing Federation Employees Union v. State of Maharashtra and Ors. reported in 1989 I CLR 21 (supra) had also held that the new Federation (the petitioner Federation) was bound by the agreement dated 18th January, 1984, till the period of its expiry and the said agreement was indeed acted upon. It is true that as per agreement dated 18th January, 1984, it was recommended that the seasonal employees would be entitled to work for 6 months in a year but that is not to say that the seasonal employees had given up their legitimate claim of being made permanent as they had admittedly completed 240 days of continuous work and were in the employment for nearly 15 to 20 years with the old Federation and the petitioner Federation. It is under these circumstances that I find no substance in the argument of Mr. Dharmadhikari that as the parties agreed to refer the dispute to arbitration of Bhuibhar Committee, Patankar Award should stand modified to the extent of being inconsistent with the agreement dated 18th January, 1984.
13. The last contention raised by Mr. Dharmadhikari is that the unfair labour practice complaint was barred by limitation and was thus not maintainable. The submission of the learned counsel is that the seasonal employees of 1982-83 and 1983-84 were terminated in September, 1984, and, therefore, the cause of action, if any, arose in September 1984, whereas the present complaint was filed on April 20, 1990 i.e. much beyond the period of 90 days and, therefore, the same is barred by law of limitation. I once again find no force in the arguments of Mr. Dharmadhikari for the simple reason that the termination order impugned in the present unfair labour practice complaint was dated April 6, 1990 which was to be effective from April 30, 1990 regarding which the complaint was filed in the Industrial Court at Nagpur on April 20, 1990 which cannot be said to be after 90 days of the cause of action and barred by law of limitation. Thus, in fact, the complaint under reference was not barred by law of limitation but assuming for the sake of argument that there is substance in the argument of Mr. Dharmadhikari that it was so barred by limitation, the type of unfair labour practices covered by Items 6 and 9 are the continuing or recurring unfair labour practices and, therefore, the complaint as filed on April 20, 1990, cannot be said to be barred by limitation.
14. It may be noted here that all the contentions which are raised here by Mr. Dharmadhikari were also raised before the Industrial Court and a perusal of the judgment and order passed by the learned Member of the Industrial Court shows that all the contentions were very well dealt with by proper reasoning and at any rate I find no infirmity whatsoever in the reasoning and findings given by the learned Member of the Industrial Court. This is, therefore, not a case where it can be said by any stretch of imagination that there are errors apparent on the face of record of the judgment and order passed by the lower Tribunal. Therefore, the writ petition is without any substance and deserves to be rejected.
15. Before parting with the matter, it is pertinent to note that after the Supreme Court delivered the judgment in Shripati's Khade case (supra) admittedly a set of workers were made permanent in different zones in the State of Maharashtra by the petitioner Federation as against another set of workers and that too regardless of merits, except in case of one workman by name Thakre who was absorbed against the permanent vacancy. Item 5 of Schedule IV of MRTU & PULP Act provides that to show favoritism ,or partiality to one set of workers, regardless of merits, would be a general unfair labour practice on the part of the employer. Then in the name of seasonal employees, the employees represented by the first respondent-Union were employed as casuals or temporaries and were continued as such for years (15 to 20 years) with the sole object of depriving them of the status and privilege of permanent employees which can be well seen from a letter dated August 5, 1980 (page 273 of the paper book) by the Deputy Manager (CTN/ADM) to the Zonal Manager, Nagpur of the Maharashtra State Co-operative Marketing Federation Limited stating that proper break should be given to employees before they complete 240 days. In other words, the employer here was bent upon seeing that break was given to the employees represented by the first respondent-union before they completed 240 days so that they would not get the status of permanent employees in terms of Patankar Award. This sort of action on the part of the petitioner Federation to employ employees as casuals or temporaries and to continue them as such for years with the object of depriving them of status and privileges of permanent employees amounts to unfair labour practice covered by Item 6 of Schedule IV of MRTU & PULP Act. Item 9 of Schedule IV of MRTU & PULP Act provides that it would be general unfair labour practice on the part of the employer in failing to implement an Award, a settlement or an agreement and in this case the petitioner Federation did commit an act of unfair labour practice in not implementing or in failing to implement Patankar Award according to which all the employees represented by the first respondent union who had completed 240 days of continuous service were entitled to become permanent. In this view of the matter, the learned Member of the Industrial Court was perfectly justified in holding that the petitioner Federation had indulged in the acts of unfair labour practice covered by Items 5, 6 and 9 of Schedule IV of MRTU & PULP Act. In the result, the writ petition fails and the same stands rejected. Rule is accordingly dismissed.
16. In view of the adamant attitude adopted by the petitioner Federation in denying the legitimate claim of the employees represented by the first respondent union despite the law laid down by the Supreme Court of India, I am inclined to grant the first respondent union a cost of Rs. 10,000/-.