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1999 Supreme(Bom) 1029
In the High Court of Judicature at Bombay
A.P. SHAH, J.
Rashtriya Mill Mazdoor Sangh – Appellant
Versus
S.L. Mehendale, Member, Industrial Court, Bombay, and another – Respondents
O.O.C.J. Writ Petition No. 341 of 1996
Decided on : 25-11-1999
For the Petitioners: Sri S.N. Deshpande
For the Respondent: Sri Sekhar Naphade and Sri K.S. Bapat
Model Standing Order 4(C) grants a statutory condition of service whereby the employer agrees to make a worker permanent upon completing 240 days of service, and this implies that posts will be created as necessary.
Headnote:
STANDING ORDER 4(C) - PERMANENCY OF BADLI WORKERS - MODEL STANDING ORDER 4(C), BOMBAY INDUSTRIAL RELATIONS ACT, 1946 - INTERPRETATION - WHETHER A BADLI WORKER IS ENTITLED TO BECOME PERMANENT AFTER COMPLETING 240 DAYS ACTUAL WORKING ONLY IF THERE IS A VACANT POST.
Fact of the Case:
The petitioner, a representative union in the cotton textile industry, filed a complaint alleging unfair labor practices by the respondent mill. The complaint alleged that the mill was not regularizing badli workers who had completed 240 days of service, in violation of the Model Standing Orders and the Industrial Disputes Act. The Industrial Court rejected the complaint, holding that the workers were not entitled to permanency as they were temporary or badli workers and had not completed 240 days of service. The union challenged this order in the High Court.
Finding of the Court:
The High Court held that the Model Standing Order 4(C) applied to the respondent mill and that it gave an additional benefit to the workmen of completing 240 days of service. The Court rejected the argument that there was a conflict between the Model Standing Order and the provisions of the Bombay Industrial Relations Act, 1946, and held that the Model Standing Order was more advantageous to the workmen. The Court also held that the interpretation suggested by the respondent mill would render the Model Standing Order redundant and defeat its purpose of stopping the exploitation of workmen.
Issues: 1. Whether Model Standing Order 4(C) must be read in harmony with the provisions of the Bombay Industrial Relations Act, 1946? 2. Whether a temporary or badli employee is entitled to become permanent after completing 240 days actual working only if there is a vacant post?
Ratio Decidendi: 1. Model Standing Order 4(C) applies to the respondent mill and gives an additional benefit to the workmen of completing 240 days of service. 2. There is no conflict between Model Standing Order 4(C) and the provisions of the Bombay Industrial Relations Act, 1946, as the Model Standing Order is more advantageous to the workmen. 3. The interpretation suggested by the respondent mill would render the Model Standing Order redundant and defeat its purpose of stopping the exploitation of workmen.
Final Decision: The High Court quashed the order of the Industrial Court and allowed the complaint filed by the union. It declared that the respondent mill had engaged in unfair labor practices and restrained it from giving lay-off to the concerned employees without following the procedure prescribed by law. The mill was also directed to deposit in the Industrial Court the full wages of the employees with effect from 2 April 1990 and to extend to them facilities like casual leave, earned leave, and leave travel concession.
JUDGMENT :
1. The only issue which falls for consideration in this petition is “whether, under the Standing Order 4(C) even if the employees have completed 240 days of service, there must be a post available to regularise them?” Only few facts need to be stated in order to appreciate the controversy raised in the petition. The petitioner is a representative union in the cotton textile industry under the provisions of the Bombay Industrial Relations Act, 1946, hereinafter referred to as the “BIR Act.” Respondent 2 is a Cotton Textile Mill covered under the said Act and employed more than 100 employees. The petitioner filed Complaint (ULP) No. 1625 of 1991 in the Industrial Court, Mumbai, alleging unfair labour practices on the part of the employer under items (8) and (9) of Sch. I of the MRTU and PULP Act, 1971. In the said complaint, the union espoused the cause of the employees of respondent 2 whose names are listed in Exhibit A to this petition. The grievance of the listed employees was that even though they had completed 240 days and were working for years without any break in the service, they were not held and declared as permanent employees and in fact from 2 April 1990 were getting lay-off, which was in violation of S. 32M of the Industrial Disputes Act, 1947 as well as the provisions ofthe settled Standing Orders. The union sought a direction to restrain the employer from giving lay-off without following due process of law and also for directing the second respondent to pay their full wages for all the days on which they were laid-off since 2 April 1990. The union also prayed for a direction to the second respondent to extend the facility of casual leave, E.L., leave travel concession, etc. The main defence raised on behalf of the second respondent was that the employees concerned were badli/temporary employees and, therefore, they cannot claim the status of permanent employees and thus there is no question of application of S. 32M of the Industrial Disputes Act. It was contended that the concerned employees had not completed 240 days of service and in any event they cannot claim permanency under the Model Standing Orders in the absence of any vacant posts. The Industrial Court rejected the complaint solely on the ground that the workman cannot claim the status of a permanent workman as they are temporary or badli workers. The Industrial Court held that although all the workmen have completed 240 days as per Standing Orders, they do not have any right in any employment and consequently the question of giving them any lay-off does not arise. The legality and correctness of the order of the Industrial Court is impugned in this petition.
2. I have heard Sri Deshpande, appearing for the petitioner and Sri Naphade, appearing for the second respondent. Before I deal with the submission made by the learned counsel it may be mentioned that in view of the defences raised by the employer, the union had filed another complaint being Complaint (ULP) No. 1678 of 1990 claiming permanency in the second respondent's establishment. The Industrial Court allowed the said complaint and granted a declaration of permanency in favour of the workmen. Against the order of the Industrial Court, second respondent preferred Writ Petition No. 1358 of 1997, which came to be dismissed by Rebello, J., by an order, dated 18 November 1997. An identical contention was raised before Rebello, J., that it is not enough that the employee had completed 240 days and he cannot be made permanent unless there is vacancy available to regularise him. The learned Judge rejected the contention made on behalf of the employer and dismissed the writ petition.
3. Sri Naphade strenuously contended that the Model Standing Order 4(C) must be read in harmony with the provisions of the BIR Act and if it is so read then the conclusion is inevitable that a temporary or badli employee is entitled to become permanent after completing 240 days actual working only if there is a vacan
