1995 Supreme(Bom) 537

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
SMT.NISHITA MHATRE, J.
WRIT PETITION NO.1003 OF 1996
Parke-Davis (India) Ltd. - Petitioner
Vs.
Mahadev Bhiku Jadhav & Ors - Respondents

The mere fact that the workmen were made to perform work of permanent nature for years together would indicate that the company had directed them to work as such with an ulterior motive of denying them their legitimate right to permanency.

Headnote:

INDUSTRIAL DISPUTE - UNFAIR LABOUR PRACTICE - PERMANENCY OF WORKMEN - INTERPRETATION OF MODEL STANDING ORDER 4C - COMPUTATION OF 240 DAYS OF SERVICE - APPLICABILITY OF CERTIFIED STANDING ORDERS - REMAND OF COMPLAINT.

Fact of the Case:

The workmen were employed in various capacities with the company since 1980. They were employed as temporary or badli workmen although they performed work which was essentially of a permanent nature. Artificial breaks in service were given to these workmen by the company. Settlements were arrived at between the company and the workmen pursuant to which some of the badli workmen were made permanent although they had not completed 240 days of continuous service with the company. A charter of demands was raised by the Parke-Davis (India) Limited Employees Union representing the workmen on 1.4.1989 which included a demand for permanency of temporary and badli workmen concerned in the present petitions. A settlement was arrived at before the Conciliation Officer u/s 18(3) r/w 2(p) of the Industrial Disputes Act. However, this settlement did not contain any agreement in respect of the demand for permanency.

Finding of the Court:

The Industrial Court has rightly found that the complaint was maintainable, though filed after 90 days from the date on which the cause of action has arisen. The Industrial Court has rightly found that the denial of permanency was a continuing cause of action. The company had deprived the workmen of their legitimate right to be made permanent and to be paid wages and other benefits like permanent employees. The Industrial Court has therefore rightly held that the cause of action being continuous, there was no question of the complaint being barred by limitation.

Issues: 1. Whether the complaint was filed beyond the period of limitation? 2. Whether there is an unfair labour practice under Item 9 of Schedule IV? 3. Whether the workmen are entitled to be made permanent in view of the settlement signed on 16.11.1990? 4. Whether the minutes of the meeting of 6.5.1991 imply that the workmen were to be continued as badlis till the expiry of the settlement of 1990? 5. Whether there was an existing vacancy with the company for employing permanent workmen or to make the badli workers permanent? 6. Whether the workmen had completed 240 days in service? 7. Whether the workmen are entitled to benefits from the date stipulated by the Industrial Court?

Ratio Decidendi: 1. The complaint was filed within the period of limitation as the denial of permanency was a continuing cause of action. 2. There is no evidence on record to indicate an unfair labour practice under Item 9 of Schedule IV. 3. The settlement signed on 16.11.1990 does not prevent the workmen from filing a complaint for permanency. 4. The minutes of the meeting of 6.5.1991 are not in the nature of an agreement or settlement and cannot be binding on the workmen. 5. The company had not created any vacancy for employing permanent workmen or to make the badli workers permanent. 6. The workmen had not completed 240 days in service. 7. The workmen are not entitled to benefits from the date stipulated by the Industrial Court.

Final Decision: The order of the Industrial Court declaring that the company has committed an unfair labour practice under Item 6 of Schedule IV of the MRTU & PULP Act and dismissing the complaint with respect to the unfair labour practice under Item 5 of Schedule IV is upheld. The petition of the workmen is dismissed. The petition of the Company is allowed partly and the complaint is remanded to the Industrial Court to decide whether there is an unfair labour practice under Item 9 of Schedule IV. The Industrial Court will decide the issue within 3 months from today.