IMPORTANT POINT
Workman who has worked for 240 days in an establishment would be entitled to be made permanent and no contract/settlement which abridges such a right can be agreed upon, let alone be binding.

JUDGMENT

Sanjay Karol, J.

The present appeal arises out of the judgment of the High Court of Bombay in Writ Petition No. 2657 of 2017, wherein it confirmed the award dated 30.03.2017 passed by the Central Government Industrial Tribunal (hereinafter referred to as CGIT) rejecting the demand of the Appellant-Union for reinstatement with full back wages.

2. The brief facts involved in the case are as follows: The respondent company operates a commercial airline, flying aircraft for transporting passengers and cargo. The Appellant represents around 169 workmen temporarily engaged on a fixed-term contract by the Respondent in various cadres like loader-cum-cleaners, drivers and operators. The Appellant contends that the workmen were treated as temporary despite completing 240 days in service in terms of the Model Standing Order provided under the Bombay Industrial Employment (Standing Orders) Rules, 1959 (hereinafter referred to as "Bombay Model Standing Order") and despite the nature of the work being permanent and regular. The Trade Union had raised a charter of demands which, after negotiations, resulted in a settlement dated 02.05.2002. In the said charter of demands, Bhartiya Kamgar Sena gave up the demand for the grant of permanency and a comprehensive settlement dated 02.05.2002 was signed as a package deal that conferred many benefits on the workmen who gave up the said demand. The Respondent Company claims that the workers are not entitled to permanency as per the settlement dated 02.05.2002 entered between the Union and Company. The workmen raised disputes and the matter landed up for adjudication. However, the CGIT, in its award dated 30.03.2017, while answering a reference framed the issue, whether the Union's demand for re-employment /reinstatement with full back wages of these 169 workmen in service of that first party is just and proper and answered it in the negative. Relying upon Section 25-H of the Industrial Disputes Act, 1947 it was held that there is no retrenchment since the nonrenewal of fixed term contract did not amount it to be so as provided under Section 2(oo)(bb) of the said Act. Thus, there was no question of re-employment of the concerned workmen.

OPINION OF THIS COURT

3. After hearing learned counsel of the parties at great length, the following issues arise for our consideration:

- Which is the Appropriate Authority empowered to issue the Standing Order(s) under the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as The Act)?

- Whether private agreement/settlement between the parties would override the Standing Order?

ISSUE I

4. The Act applies to every industrial establishment wherein one hundred or more workmen are employed or were employed on any day of the preceding twelve months. The expression 'appropriate government' is defined by Section 2(b) of the Act to mean in respect of industrial establishments under the control of the Central Government or Railway Administration, or a major port, mine or oilfield, the Central Government, and in all other cases, the State Government. Section 2(e) defines the expression 'industrial establishment'. Under Section 15 of the Act, the appropriate Government is empowered to make rules for carrying out the purposes of the Act. In exercise of the powers conferred by Section 15, the then State of Bombay had issued the Bombay Industrial Employment (Standing Orders) Rules, 1959. Insofar as those establishments in respect of which the appropriate Government is the Central Government, the Industrial Employment (Standing Orders) Central Rules, 1946, stand framed.

5. Insofar as the Respondent Company is concerned, the appropriate Government is clearly not the Central, but the State Government since the Respondent is not, within the meaning of Section 2(b), under the control of the Central Government. The present case falls under the latter part of the section; thus, the appropriate Government means the State Government. The Bombay Model Standing Orde