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3. Brief statement of facts involved is necessary. U.L.P. complainants file under Section 28 individually by all employees are more or less identical. The complainants state that they have been the appointed for unskilled work on daily wage basis in temporary capacity either from 1998 or from 1999 and paid salary every month. They have stated that their employer is an engineering industry which manufactures tractors and the establishment is governed by Bombay industrial Relations Act, Industrial Disputes Act and Industrial Employment Standing Order Act, 1946. However it is admitted position between parties that the model Standing Orders framed under Section 35 of Bombay Industrial Relations Act govern their service conditions and Industrial Employment Standing Order Act, 1946 has no application. Each complainant has given period of his service along with period of break between two appointments and has also given the number of days on which he was given artificial break. He has thereafter given certain names to point out that during break period another employee Junior to him was provided said work. There is reference to working days list prepared as on 30/ 9/2000 by employer and effort is to demonstrate from it that persons whose names appear below name of complainant were either provided work or retained and break was given to complainant. It is further stated that this is in violation of provisions of model Standing Orders 3(2) (g), 4C and 4D of model Standing Orders. It is contended that after completion of 240 days of continuous service each complainant became permanent but employer violated these requirements of model Standing Orders and continued to employ new or junior employees. It is further stated that complainants were not given permanent status, privileges and wages or pay scale of permanent employee along with consequential benefits and allowances attached to the post of permanent employee. It is contended that large number of employees were appointed on temporary basis periodically though work of permanent nature was always available and artificial breaks were given to one batch by following rotation. Grievance is again made that apprentices were engaged as helpers and regular production work was extracted from them. It is further stated that new employees were recruited for similar work by disguising them Page 2961 as EPP trainees. It was further stated that the complainants had earlier filed a U.L.P. complaint in 2003 but in view of subsequent development it was withdrawn with liberty to file Complaint individual capacity. All complainants except Shri Sudhakar Narad, petitioner in writ petition 6427/2005 (complainant in Complaint 703/2003) stated that they were at the time of filing of complaint engaged in temporary capacity from September 2004 till 31/12/2004. They contended that cause of action arose when they completed 240 days of service and it is recurring and continuous one. They therefore prayed for declaration that there is unfair Labour practice under item 5 and item 9 of Schedule IV of MRTU & requested for its withdrawal and for grant of consequential benefits. These complaints were opposed by employer who denied any rotation or artificial breaks. It is further stated that though employer has 528 permanent workers in its employment, it is required to engage services of temporary workers as and when there is temporary increase in demand of tractors. They pointed out that on account of increase in work, complainants were appointed by giving them Orders for fixed duration. They gave the period of Employment of each complainant and stated that in any case the complaints as filed were hopelessly time-barred. They pointed out that from 1/4/2003 they did not engage even a single temporary worker and from March 2004 they were required to engage temporary workers due to sudden increase in demand of tractors in the market. They further stated that even as temporary employees, complainants were given benefits available to permanent employees like dearness allowance, ESI facility, provident fund, Conveyance allowance, house rent allowance etc. It is further stated that after expiry of last appointment orders of respective complainant, though employer was ready to give further appointment to them, they did not contact the employer and hence next order was given to them when they reported for work. The entitlement of complainants to wages/pay scales of permanent employees along with their benefits and allowances was denied. The Employment in batches was denied and it was stated that apprentices were engaged as per directions of Apprentice Adviser. It was further stated that EPP trainees were engaged as per list forwarded by Employment change. It was also stated that earlier about 207 employees engaged on temporary basis filed complainants before Industrial Court and in those complaints seniority list as on 30/9/2000 came to be filed. The Employer further contended that there were elected representatives functioning under Section 28 of Bombay Industrial Relations Act and they represented even complainants. It was pleaded that Section 21(2) of MRTU Act therefore did not permit filing of such individual complaints and complainants were in fact seeking permanency by invoking item 6 of Schedule IV of that Act. Objection was taken that the complainants could not claim permanency by invoking item 5 and item 9 of Schedule IV. In case of Sudhakar, in written statement plea was taken that Sudhakar was not in service on the date of institution of complaint and he never challenged his termination. Therefore in any case his complaint for regularisation and grant of permanency was not tenable.

12. Employers have harped again and again that the employees have not cross-examined their witness in relation to statement made by him in first sentence of paragraph 16 of deposition which is "I say and submit that the respondent did not engage even a single temporary worker from May 2003 to March 2004". The employer has in paragraph 15 stated that the 38 complainants were given appointments from time to time till middle of 2001. It is therefore clear that from middle of 2001 till May 2003 temporary workers were engaged and they were also engaged from March 2004 till September 2004 till these complainants were again provided work. It is difficult to accept contention of employer that these employees/complainants suddenly stopped reporting for work & then again suddenly reported in September, 2004. The employer ought to have produced notices displayed by him allegedly after middle of 2001 containing names of these complainants and asking them to join back the work. Admittedly that has not been. In cross examination, this witness has admitted that documents revealing fixation of any production target are not placed on record. He has further stated norms of revised/increased production were settled in every settlement between employer and elected representatives. He is further stated that in every settlement, production norms were increased and has further denied that company acquired more manpower because of increase in production norms. He further stated that in every settlement wages of permanent employee were increased. Though in chief he deposed about changes in design of components and consequential changes in manpower, in cross he admitted that no documents were produced to substantiate the Page 2977 same. He also accepted that settlements effected in the year 1998 (1988?), 1992, 1996 and 2001 were not applicable to complainants. He accepted that the appointment orders did not show the name of department in which complainants were engaged. He also accepted that no documents were produced to show strength of employees required in supply module. He further stated that whenever there was increase in work, it was conveyed by production planning and control, Mumbai to Nagpur. He further stated that one more cell by name Mahindra Production System calculated requirement of manpower, direct as also indirect and then said data came to him. He then conveyed it to personnel and Industrial relations department which then issued appointment orders. He stated that he used to take the decision whether temporary increase can be handled by existing manpower or not and communicate it to department of personnel and Industrial relations. However he accepted that no documents are produced to show this. In his cross examination in paragraph 53 witness for employer accepted that appointment orders at exhibit 20 to 22 were for three successive quarters and he also accepted that if any employee worked continuously for nine months, he would complete 240 days continuous service. He also accepted that no documents were placed the report to show that work was not available for respective complainant during the break period between two appointment orders. This assumes importance because as discussed above, juniors have been continued and break has been given to senior. He also accepted that copy of notice calling employees back to work allegedly published on notice board is not produced on record. He accepted that there is possibility that employer appointed other employees during the period mentioned in the appointment orders of complainants. He further admitted as under --"We continued the new persons is a fact, probably we ought to have continue the old employee too, but I'm not sure". Thereafter this witness stated that old employees were continued only when work was available and denied the suggestion that break in service was given to old employees to deny them benefit of permanency. He stated that list at exhibit 36 is not waiting list but seniority list. He has further stated that Employment Promotion Programme is of government and if employee forwarded to Employer under scheme was skilled, work of skilled nature was assigned to him and if he was unskilled, work of unskilled nature was given to him. He also accepted that no documents to show sending of apprentices by Apprenticeship Adviser were produced on record. He further accepted that agreement entered into with apprentice is not produced on record. Though learned Counsel for complainant employees have tried to contend that work of permanent nature is being taken from these employees disguising them as apprentice, as there is no further cross examination in this respect, the nature of agreement with apprentice is not clear and in the absence of any express suggestion to witness on these lines, I'm not inclined to give any importance to this stray sentence. He also admitted possibility of mentioning name of EPP trainee or Working Supervisor Trainee (WST) in shift schedules maintained by employer in relation to Supply Module. These documents are at exhibit 40 to 42. Such admission is also given in relation to name in list exhibit 39. One thing is thus clear that the defence taken in written statement is not substantiated by this witness. The year in which these documents Page 2978 are prepared is totally irrelevant when effort is to find out the modus operandi of Employer. The gap period between two appointment orders is admitted position and burden to show that the increased work of permanent nature was only temporary, was available only during period mentioned in the appointment orders and was not available during said period of gap was definitely on employer. Definitely only employer possessed material to show this. If the alleged increase was foreseen as contended and quarterly requirement of manpower was worked out, the documents could have been easily produced to show bona fides by employer. Normally there could not have been any fresh appointment in the middle of quarter in such circumstances and also there could not have been any termination before end of quarter. New appointments in the middle of quarter and termination of existing appointments also in middle thereof does not support the stand of employer at all. It has already been demonstrated above that senior like Shri Deshpande was given break while junior like Shri Shende is permitted to continue. These aspects clearly falsify the defence of employer.

13. One more defence of employer needs to be looked into. It is of recruiting additional manpower & reducing it due to fluctuating markets. The break period between two appointments in case of different complainants is also self revealing. If any increase in market demand or production target was noticed in this break, the corresponding documentation looking to the process involved (as alleged by employer) was essential. If case of Employer is accepted then man power is being decided in consultation with Bombay office in advance & there is quarterly review. Local review is twice in a month. That has not been shown to Industrial Court. If any decline in market or rise in market was noticed in the middle of quarter, the new employment ought to have been provided to next senior who is out and if it was necessary to reduce manpower, the junior most ought to have been sent out. Obviously this has not been done and the only idea seems to be to rotate the employees. Employer has not demonstrated that it was effecting recruitment of temporary workers for any particular process or particular product and when it found necessary to discontinue that process or product, such workers were terminated. Temporary increase in any such permanent manufacturing process or product has in fact not been demonstrated at all. There are bound to be written records to establish each such factor.

17. The defence of Employer is that after expiry of last appointment order, respective complainant did not come for work at all and hence there is gap between his last appointment and the appointment which followed thereafter. From crossexamination of employees conducted by Employer it is apparent that Employer has taken dual stand in this respect. The first stand is that it used to display the list of employees for whom work was available and it was Page 2985 duty of such employee to report for work. The other stand is it used to forward telegrams intimating such employee about a availability & accordingly it was their responsibility to report for work. This inconsistency in the stand is apparent & it is on account of afterthought. It cannot be lost sight of that the list produced by Employer as waiting list or seniority list is as on 30/9/2000. If the employer was really systematic in recalling employees back for duty/work, the employer could have produced the waiting list or seniority list as maintained on any date in 1998 or 1999 or even 2000. The periods of employment disclosed in written statement with details of off days, absent days, leave, Doctor's certificate all indicate deliberate with-holding of the lists used by Employer to rotate employees. Further, the defence of Employer that need for additional manpower was worked out on the basis of requirement for each quarter depending upon market demand for tractors also becomes material in this background because no documents showing any application of mind by any department of employer on these lines in any quarter are produced before Industrial Court. Industrial Court has considered this issue in paragraphs 43 to 49 of its judgment and I do not find any perversity or jurisdictional error on its part in the matter. Though Industrial Court has, in express terms not said that the defence of Employer about his always being ready and willing to provide work to complainants and about complainants not turning up to claim it, is incorrect, from its judgment it is apparent that it was satisfied that there was no substance in it. In paragraphs 50 and 51, Industrial Court has found that names of certain EPP trainees and W.S.T. workers appear in shift schedules at exhibit 40 to 42. The shift schedules contain the name of employees with whom employer has employer-- employee relationship. No such relationship can exist between any trainee and they cannot form part of any shift schedule. Industrial Court has also found that these names are also appearing in documents like exhibit 76, 82 to 84 etc. and production work was obtained from these trainees. It cannot be forgotten that from middle of 2001 till March 2004, Employer alleges that it did not engage any temporary worker. Again this statement is not substantiated by producing any document to explain any market situation or other position /circumstance which did not require Employer to recruit temporary workers. In fact the responsible officer for Employer admitted in cross that every type of work is obtained from these trainees. Reliance by Employer on -- Bharat Iron Works v. Bhagubhai Balubhai to contend that pleadings of employees are incomplete or cryptic is misconceived. In this case, the Hon Apex Court notes that ordinarily a person is victimised, if he is made a victim or a scapegoat and is subjected to persecution, prosecution or punishment for no real fault or guilt of his own, in the manner, as it were, of a sacrificial victim. It is also noted that victimisation is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof, is, per se, no crucial instance. The onus of establishing a Page 2986 plea of victimisation will be upon the person pleading it. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced. A proved misconduct is antithesis of victimisation as understood in industrial relations. This is not to say that the Tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimisation. These observations of Hon Apex Court do not help the employer because here it i.e. in present case deliberate design of employer to defeat welfare measures contained in Standing Orders in favour of complainants is pleaded and has been established.