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2009 Supreme(SC) 1798
2009(8) Supreme 179
SUPREME COURT OF INDIA
Tarun Chatterjee, R.M. Lodha, Dr. B.S. Chauhan,JJ.
Mahindra & Mahindra Ltd. — Appellant
versus
Avinash Dhaniramji Kamble — Respondent
Civil Appeal No. 7993 of 2009
(Arising out of S.L.P. (Civil) No. 12402/2008)
Decided on : 3-12-2009
For the Appellants : C.U. Singh, Sr. Adv., R.B. Puranik, Nitin S. Tambwekar, B.S. Sai, K. Rajeev, Advs., with him for the Appellant.
For the Respondents:S.D. Thakur, Ms. Chandan Ramamurhti, Advs., for the Respondents.
Headnote:Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices, Act, 1971– Schedule IV – Complaints filed by respondents seeking declaration of unfair labour practices on the part of the employer –Order passed by Industrial Court,holding that complaints were liable to be rejected in so far as it related to Items 5 & 10 of Schedule IV but as regards the unfair labour practice under Item No.9 of Schedule IV, although relief was granted by the Industrial Court to 149 temporary workmen who had completed 240 days of continuous service, no relief was granted to respondents as they had not completed 240 days of continuous service as required under the Model Standing Orders – Writ petitions thereagainst – Single judge held that period during which employer engaged other batch or other persons in place of the employees like respondents would have to be treated as period of ‘involuntary unemployment’ – Letters Patent Appeals – Disposed of by Division Bench – Appeals thereagainst - Respondents in the complaints had set up a specific case that they had completed 240 days uninterrupted service as required under the Model Standing Orders – Industrial Court recorded a categorical finding of fact in respect of the present respondents that they had never completed 240 days of continuous service – But the single Judge as well as Division Bench, however, treated the gaps between diverse spells of employment as part of continuous service on the ground that these were due to involuntary unemployment – This approach of High Court suffered from legal flaw for more than one reason – For one, this was not even the case set up by the complainants in the complaints – Secondly termination and fresh employment in respect of some temporaries had been several times and none of the complainants challenged their termination being illegal as and when their services were brought to an end on expiry of the period for which they were engaged under the contract of service – In the impugned judgement crucial aspects had been mixed up necessitating reconsideration of letters patent appeals by Division Bench of High Court – Impugned judgment set aside – Letters Patent Appeals restored to the file of High Court for fresh hearing and disposal in accordance with law. (Paras 6 to 9)
Facts of the Case :
Complaints were filed by respondents seeking declaration of unfair labour practices on the part of the employer herein in the instant case. An Order was passed by Industrial Court,holding that complaints were liable to be rejected in so far as it related to Items 5 & 10 of Schedule IV but as regards the unfair labour practice under Item No.9 of Schedule IV, although relief was granted by the Industrial Court to 149 temporary workmen who had completed 240 days of continuous service, no relief was granted to respondents as they had not completed 240 days of continuous service as required under the Model Standing Orders. On Writ petitions thereagainst, Single judge held that period during which employer engaged other batch or other persons in place of the employees like respondents would have to be treated as period of ‘involuntary unemployment’. Letters Patent Appeals were Disposed of by Division Bench
2. Present appeals have been filed against said order of High Court.
Findings of the Court :
Respondents in the complaints had set up a specific case that they had completed 240 days uninterrupted service as required under the Model Standing Orders . Industrial Court recorded a categorical finding of fact in respect of the present respondents that they had never completed 240 days of continuous service. But the single Judge as well as Division Bench, however, treated the gaps between diverse spells of employment as part of continuous service on the ground that these were due to involuntary unemployment . This approach of High Court suffered from legal flaw for more than one reason. For one, this was not even the case set up by the complainants in the complaints. Secondly termination and fresh employment in respect of some temporaries had been several times and none of the complainants challenged their termination being illegal as and when their services were brought to an end on expiry of the period for which they were engaged ununder the contract of service.In the impugned judgement crucial aspects had been mixed up necessitating reconsideration of letters patent appeals by Division Bench of High Court. Impugned judgment was set aside - Letters Patent Appeals was restored to the file of High Court for fresh hearing and disposal in accordance with law.
JUDGMENT
R.M. Lodha, J. —
Leave granted.
2. In this group of 26 appeals, the common judgment dated March 3, 2008 passed by the Division Bench of the High Court of Bombay, Nagpur Bench, Nagpur is under challenge at the instance of the employer.
3. In light of the order that we intend to pass, it is not necessary to set out the facts in detail. Suffice it to say that in the complaints by the present respondents seeking declaration of unfair labour practices on the part of the employer under Items 5, 6, 9 and 10 of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices, Act, 1971 (for short MRTU & PULP Act”), the Industrial Court, Maharashtra (Nagpur Bench) Nagpur, in its order dated March 19, 2003 held that complaints were not maintainable under Item 6 of Schedule IV to the MRTU & PULP Act. The Industrial Court also held that the complaints were liable to be rejected in so far as it related to Items 5 & 10 of Schedule IV but as regards the unfair labour practice under Item No.9 of Schedule IV, although relief was granted by the Industrial Court to 149 temporary workmen who had completed 240 days of continuous service, no relief was granted to the present respondents as they have not completed 240 days of continuous service as required under the Model Standing Orders. The Industrial Court, in its order, in respect of the present respondents held as follows:
“From the evidence adduced by the complainants in all other complaints it appears that in all 58 complainants have not at all completed 240 days working during the entire period they were in the employment of the respondent. The list of these complainants is at Ex.101. Hence, their confirmation in service as per clause 4-C of the Model Standing Orders does not arise.”
4. Dealing with the writ petitions challenging the order of the Industrial Court at the instance of the employees as well as employer, the single Judge in his judgment dated April 29, 2005, inter alia, did notice that there was dispute between parties about putting of uninterrupted service of 240 days by the employees but while dealing with this aspect of the controversy, he held that the period during which the employer engaged other batch or other persons in place of the employees (like the present respondents) will have to be treated as period of ‘involuntary unemployment’. The single Judge held thus:
“.........The case of the present nature where employer resorts to rotation and grants employment only in batches, considering the scheme of Model Standing Orders, it is apparent that the period during which employer engaged other batch or other person in place of employee like present complainants, will have to be treated as period of “involuntary unemployment”. It is not the case where no work is available for an employee with employer but the case is where employer gives that work to another temporary employee”..........
5. The aforesaid judgment of the single Judge was assailed by the employer in a group of Letters Patent Appeals. The Division Bench heard these Letters Patent Appeals together and disposed of them by a common judgment dated March 3, 2008. The Division Bench, inter alia, held as follows:
“........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 as appointed likewise for a fixed period and then again given a break. ................................................................................. .........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.” .
6. Pertinently, the present respondents in the com
