IMPORTANT POINT
Provisions of the Industrial Employment (Standing Orders) Act, 1946, as are applicable to the State of Maharashtra are more stringent as the model standing orders are ipso facto made applicable to industrial establishment within the State of Maharashtra and no such amendment can be made in the model standing orders which may have the effect of deleting or omitting any of the rules therefrom in relation to matters enumerated in the Schedule.

Headnote:Labour Law-Maharashtra Recognition of Trade unions and Prevention of unfair Labour Practices Act, 1971-Section 28-Industrial Employment (Standing Orders) Act, 1946 as amended by industrial employment (standing Orders) (Bombay Amendment) Act, 1957 and (Maharashtra Amendment) Act, 1974-Section 3, 4, 5, 7, 13 Model Standing Oreders-Rule 4C-Conditions of employment in industrial establishments State of Maharashtra-A temporary workman who has put in 240 days uninterrupted service in any establishment during a period of twelve calendar months, shall be made permanent-Respondents-workmen who were in employment of appellant company filed complaints u/s 28 of the Maharashtra Act, 1971, complaining unfair labour practices-They were allegedly appointed as welder, fitter, turner, mechanic, helper etc and were working since the year 1990 and used to be granted employment in each year for about seven months-This practice went on for a period of seven years till before filing of complaint by them in year 1997-Appellant company stating that there was no provision akin to rule 4C of Model Standing Orders in their standing orders, duly certified on 10-3-1986-Whether High Court was justified in directing reinstatement of workmen with back wages-(No)-Management directed to pay compensation to workmen.
       Held : It would be relevant to state that item No. 10-C has been incorporated in the Schedule of 1946 Act by the State Legislature in the year 1974 with effect from 2nd October, 1977 which enumerates matters to be provided in the model standing orders in relation to "employment or re-employment of probationers or badlis or temporary or causal workmen, and their conditions of service". By virtue of Bombay Industrial Employment (Standing Order) (Amendment) Rules, 1977, which were published in the Bombay Gazette on 28th September, 1977 and came into force with immediate effect, rule 4C was incorporated in the model standing orders which lays down that a temporary workman, who has put in 240 days uninterrupted service in the aggregate in any establishment during a period of preceding twelve calendar months, shall be made permanent in that establishment by 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 said twelve calendar months. Rule 4C in the model standing orders has been incorporated relating to the matter set out in item No. 10-C of the Schedule, as such deletion of the said rule by the certifying officer, being in the teeth of legislative command incorporated in proviso to Section 3(1), was wholly without jurisdiction and would make the order of certifying officer to that effect null and void and liable to be disregarded as it is well settled that if an order is null and void, the same can be disregarded in collateral proceeding or otherwise. (Para 10)
       By Section 4 of the 1946 Act, as amended in 1956 by the Parliament, which is not applicable to the State of Maharashtra, as would appear from the State amendment, a duty has been cast upon the certifying officer and appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any draft standing orders which have been submitted before the certifying officer. Thus the provision in the 1946 Act being much more wider, the question of fairness or reasonableness of the draft standing orders submitted for certification is required to be considered by the aforesaid authorities. So far as the State of Maharashtra is concerned, no such discretion has been at all given either to the certifying officer or the appellate authority in view of the fact that Section 4 has been deleted by State Amendment. This shows that provisions of the 1946 Act as are applicable to the State of Maharashtra are more stringent as the model standing orders are ipso facto made applicable to industrial establishments within the State of Maharashtra from 15th of January, 1959 as notified by the State Government and no such amendment can be made in the model standing orders which may have the effect of deleting or omitting any of the rules therefrom in relation to matters enumerated in the Schedule. (Para 11)
       From a bare perusal of item No. 9 of the said Schedule, it would appear that the unfair labour practice on the part of the employer enumerated thereunder is "failure to implement award, settlement or agreement". In the present case, undisputedly, there is neither any averment nor evidence to show that there was failure on the part of the employer to implement any settlement or agreement. The only point raised was that in the writ application arising out of order passed by the Industrial Court in the present proceeding, an interim order was passed by the High Court permitting the employer to terminate services of workmen in accordance with the procedure prescribed under the law and there was failure on the part of the employer to carry out the said direction. Thus, the only question that arises is as to whether the aforesaid order of High Court in writ application can be treated to be an award. The expression "award" has not been defined in the 1971 Act. Sub-section (18) of Section 3 lays down that where words and expressions used in the 1971 Act are not defined therein, the same shall have the meaning assigned to them by the Central Act which would obviously mean Industrial Disputes Act, 1947 enacted by the Parliament. Section 2(b) whereof defines "award" to "mean an interim or final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10(A)." The interim order passed by the High Court in the writ application cannot be treated to be an award, as determination interim or final by labour court and tribunals, alone would come within the sweep of the said definition. Thus, in our view, it cannot be said that the appellant company was in any manner employing unfair labour practice enumerated under item No. 9 of Schedule IV, as such the High court was not justified in confirming finding of the Industrial Court on that score. (Para 14)
       According to Section 30 of the 1971 Act, if an industrial Court or Labour Court, as the case may be, comes to the conclusion that the employer has employed or is employing any unfair labour practice, it may pass a declaratory order to that effect and direct such employer to cease and desist from such unfair labour practice. Apart from that, further, in such an eventuality, such courts could pass any of the consequential orders enumerated under Sections 30(1)(b) of the 1971 Act, namely, reinstatement of the employees with or without back wages or the payment of reasonable compensation to the employees affected by the unfair labour practice. In the facts and circumstances of the present case, we are of the view that it was not a fit case in which the High Court should have directed reinstatement of the workmen. It was also not justified in directing payment of 50 back wages to them as, in our view, they were entitled to payment of reasonable amount of compensation in terms of Section 30(1)(b) of the 1971 Act. (Para 15)

JUDGMENT

B.N. Agrawal, J.-These appeals by special leave have been filed by appellant-Company against judgment rendered by Aurangabad Bench of Bombay High Court in writ applications whereby Award made by Industrial Court, Aurangabad, in the individual complaints filed by respondents-workmen has been modified.

2. The short facts are that the respondent-workmen, 1197 in number, who were in employment of the appellant-Company in its factory at Bajaj Nagar, Waluj, within the District of Aurangabad, filed individual complaints before the Industrial Court at Aurangabad, under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 1971 Act ) complaining thereunder that unfair labour practices enumerated in item Nos. 5, 6, 9 and 10 of Scheduled IV appended to the 1971 Act were employed by the appellant-Company in the establishment in question. According to the workmen, they were appointed as welder, fitter, turner, mechanic, helper, grinder, etc., and were working since the year 1990 and used to be granted employment in each year for about a period of seven months and expiry of the said term their services used to be discontinued, which practice went on for a period of seven years till before filing of the complaints by them in the year 1997. It was stated that a rotation system was followed by the appellant-Company whereby different set of workmen came to be appointed by rotation displacing the workmen appointed earlier which was indicative of the fact that work of permanent nature was available with the appellant-Company, but the rotational system was introduced by it with a view to deprive the workmen of rights and privileges of permanent employees so that they may not be entitled to claim benefit of permanency on completion of 240 days uninterrupted service in the aggregate in any establishment during a period of preceding twelve calendar months as envisaged under rule 4C of the Model Standing Orders which was applicable to the establishment in question.

3. The appellant-Company contested claims of the workmen by stating that conditions of employment of the workmen were governed by the Standing Orders, duly certified on 10th March, 1986 by the Certifying Officer under the provisions of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the 1946 Act ) wherein there was no provision akin to rule 4C of the Model Standing Orders. According to the appellant-Company, it had employed 4250 workmen on permanent basis so as to meet the requirement of normal production. However, due to periodical fluctuations of a temporary nature in the quantum of production at the factory from time to time, dictated by the conditions at the national and international market, to which the said establishment is exposed, the work force is increased or decreased. In order to meet the fluctuations, the appellant-Company was required to employ workmen on temporary basis and, so also, as to when production decreased, it was required to terminate services of the temporary workmen. Further, as, undisputedly, none of the workmen had worked continuously for 240 days, much less during a period of preceding twelve calendar months, they were not entitled to claim any benefit on that count.

4. In support of their respective cases, both the parties led oral and documentary evidence and the Industrial Court came to the conclusion that no unfair labour practice, as enumerated in Item Nos. 5 and 10 of Scheduled IV, could be established, but found that the workmen had succeeded in proving the unfair labour practices enumerated under item Nos. 6 and 9 of the said Schedule. After recording the aforesaid findings vide Award dated 9.11.2000 the Industrial Court directed the appellant-Company "how many permanent employees are required as per the production norms be fixed and after making the employees permanent from these temporary employees, if there is a need of a

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2003 Supreme(SC) 1289

Cases Referred (4)