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11. Both the learned Counsel had read to us from the evidence of Shri Murli, who was examined on behalf of the employer and one Shri Rangari whose evidence would be a typical example of evidence tendered on behalf of the workmen. This evidence, along with the relevant charts showing engagement of temporaries from time to time, would leave no doubt that Page 0816 through the mechanism of fixed time appointment, the employer used to relieve a temporary workman and engage another for the work which was available, either soon after the first workman was relieved or at times even in anticipation of such termination. Though the workman had not been able to establish that the employer had engaged two sets of temporaries employed alternatively, they have demonstrated that though the work was still available a temporary workman appointed for a fixed term was not re-employed or continued, but was given a break. Another temporary was appointed likewise for a fixed period and then again given a break.

12. Engaging two sets of temporaries alternatively would have been too obvious an attempt to circumvent the requirement to regularize the temporary workmen employed for a period of 240 days in a preceding calender year. Therefore, the employer seems to have taken care to avoid such a gross attempt at violating legal requirements. The evidence of Shri Murli, and the chart showing number of permanent and temporary workmen employed, would all show that the workmen were relieved not for want of availability of work, but because the employer wanted to engage another temporary workmen for doing the same work.

13. Shri Puranik, learned Counsel for the appellant-employer, vehemently contended that such an inference could not be drawn from the evidence tendered and submitted that the temporaries fall in several categories like those working in the assembly section, plant mechanics, wiremen, painters, etc., and, therefore, it would have been necessary for the workmen to establish that upon discharge of workman of one category, another workman of the same category was engaged. In fact, this is the precise finding of fact recorded by the learned Member, Industrial Court and confirmed by the learned Single Judge. We see no reason to again demonstrate for the sake of satisfaction of Advocate Shri Puranik that the employer has indeed indulged in the practice of discharging a workman doing the same type of work for which another temporary workman was engaged, either in anticipation of the vacancy or soon thereafter. In any case, it would not be open to the employer to now contend that the work was not available after having entered into agreement with the employees' representative on 12-1-2008, whereby it has undertaken to grant permanency to 105 workmen. This has been done obviously because the work is available for those appointed temporarily and were relieved, not for want of work, but because the employer felt entitled to attempt to circumvent the 240-day rule, if it was legally permissible to do so, just like avoiding payment of taxes and not evading them.

29. This takes us to the question whether requirements of Clauses 4D and 4E of the Model Standing Orders have been complied with as claimed by the appellant. The appellant claims that it has arrayed the workmen in descending order of the aggregate service rendered by them in different spells and, therefore, the requirement of keeping a waiting list under Clause 4D is duly complied with. As rightly countered by his learned adversary, preparing a waiting list years after the process of appointments and terminations commenced and then arraying the workmen according to the aggregate service rendered would be violative of the requirement of Clause 4D of the Model Standing Orders. The clause requires that whenever the services of a workman are terminated, his name would be placed in a waiting list. Now this would imply that the moment the first temporary workman of Page 0829 a category is terminated, his name would appear first in the waiting list for that category, and, should work be available, he would have to be employed again before bringing any person whose name is not so entered, because there will be none whose services have been terminated except the first one. When there is a need to employ two workmen, a second temporary will join the list upon his termination and so on. Therefore, a situation where the first workman whose services were terminated, being out of employment, while someone else employed after him, is working, is not contemplated by Clauses 4D and 4E of the Model Standing Orders. As a natural corollary, the person whose services have been terminated first would have the maximum aggregate service if he were not denied the opportunity to be employed, in preference to others, as is mandated by Clause 4D and 4E of the Model Standing Orders. Therefore, the waiting list prepared by the appellant has rightly been assailed by the workmen.