Case: Ballarpur Industries Limited Vs. Maharashtra Lok Kamgar Sanghatana & Another

B.R. Gavai, J.1. Being aggrieved by the judgment and order passed by the learned Single Judge of this Court in Writ Petition No.3944 of 2006 thereby allowing the petition of respondent no.1 and setting aside the order passed by the learned Industrial Court and allowing the complaint of respondent no.1, the appellants have approached this Court.2. The facts in brief giving rise to the present appeal are as under:-Respondent no.1 which is undisputedly an unrecognized Union filed a complaint being Complaint ULP No.1286 of 1987 under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "MRTU & PULP Act) under Item Nos. 5, 6 and 9 of Schedule IV of the said Act. However, the said complaint came to be withdrawn.3. A subsequent complaint being Complaint ULP No. 964 of 2000 came to be filed only under Item Nos. 5 and 9 of Schedule IV of the MRTU & PULP Act. In the said complaint it was contention of the complainant (respondent no.1 herein) that though the financial condition of the appellant-employer was sound and though it was making huge profits, the service conditions of the employees remained static and poor. It was also contended that to certain section of workmen the appellant-employer has not been paying the minimum wages in accordance with the provisions of the Minimum Wages Act. It was submitted that though the complainant had approached the appellant-employer on various occasions for permanency and payment of the minimum wages, the same went unheard.4. It was basically contended that though the workmen who were the members of the complainant Union were working from the year 1974 and in many cases for more than 5 years and have completed 240 days in a calendar year, the appellant-employer had not granted the status of permanency to the said workmen. It was also contended that though the nature of work performed by the workmen was of permanent nature, they were denied the permanency without any valid reason. The complainant had annexed the list to the complaint showing the names of the workmen, their joining date, token number, designation, monthly wages and provident fund number.5. It was also averred that the workmen were compelled to accept the terms of the settlement signed by the recognised Union i.e. Ballarpur Paper Mill Majdoor Sabha with the employer. It was contended that under the said settlement only paltry benefits were given to the workmen who were the members of the complainant Union. It was contended that since the workmen had completed 240 days in a calendar year and were not made permanent, there was a breach of Clause 4- C of the Model Standing Orders, which are applicable to the employer-Company. It was, therefore, contended that the employer had engaged in an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act.6. It was also contended by the complainant that about 3000 workmen were made permanent, whereas the workmen who were the members of the complainant Union were deprived of the permanency. It was, therefore, submitted that the employer had indulged in partiality and favouritism to a set of workers and as such had indulged in unfair labour practice under Item No.5 of Schedule IV of the MRTU & PULP Act. With these allegations, the complaint came to be filed on 13.10.2000.7. The claim of the complainant was denied by the employer. It was the basic contention of the employer, that there was a recognised Union for the establishment of the employer and it was the sole bargaining agent which represent the entire work force. It was also urged that the complaint was basically under Item No.6 and, therefore, only the recognised Union could file the complaint and the complainant had no locus. The contention of the complainant that the workmen had completed 240 days in a calendar year was also denied. The allegations regarding favouritism and partiality to one set of workers was also denied.8. The complainant examined one P.M. Vaidya, General Secretary of the complainant Union, one Chandu Samba who was workman employed with the employer and another workman Purushottam Balirram Bhandarkar. The employer examined its Deputy General Manager- HR Shri Lav Sharma. The learned Industrial Court vide judgment and order found that in view of Section 21(1) of the MRTU & PULP Act, no complaint would be tenable with regard to Item Nos. 2 and 6 of Schedule 4 of the MRTU & PULP Act, unless the same is filed by the recognised Union. The learned Judge, therefore, held that since grant of permanency to the members of the complainant Union would fall under Item 6, the complaint was not tenable since it was not filed by the recognized Union. The learned Industrial Court also found that in view of Clause 32 of the Model Standing Orders, since there was a practice of maintaining list of temporary workers by accommodating them in a separate pool and which has continued for years together and none of the workers of this pool had ever complained or expressed their grievance, the allegations regarding favouritism and partiality were not established and as such dismissed the complaint.9. Being aggrieved thereby, a petition came to be preferred before this Court. When the matter was listed before the learned Single Judge on 15.12.2008, it was sought to be contended on behalf of the employer that it has got its own Standing Orders i.e. Certified Standing Orders and, therefore, the learned Single Judge vide the order passed on the said date, remanded the matter to the Industrial Court for deciding the question about existence and applicability of such Standing Orders. The learned Industrial Court vide order dated 24.08.2009 held that no such Standing Orders are available and applicable. The said finding was also questioned before the learned Single Judge by filing a Civil Application No. 420 of 2010. The learned Single Judge by an elaborate judgment and order dated 6.7.2010 allowed the writ petition, setting aside the judgment and order passed by the learned Industrial Court and allowed the complaint and declared that the employer had indulged in unfair labour practice falling under Items 5 and 9 of Schedule IV of MRTU & PULP Act by not giving similar wages to the members of petitioner-Union and by not treating them as permanent workmen after they completed 240 days of uninterrupted service. The respondent-employer was also directed to cease and desist from continuing said unfair labour practices. It was further directed to extend to all daily wage members of petitioner-Union the benefits and privileges as permanent workmen after they put in 240 days of continuous service as per chart produced by the petitioner-Union at Exh. B and to pay them wages as per their grades and designations as ermanent workmen. The learned Single Judge further directed the arrears to be paid from the date of filing of complaint. Being aggrieved thereby, the present appeal.10. We have heard Shri K.H. Deshpande, learned Senior Counsel appearing on behalf of the appellant; Shri Upadhyay, learned counsel for the respondent no.1-Union and Shri A.R. Patil, learned counsel for the interveners - workmen who support the complainant.11. Shri Deshpande, learned Senior Counsel submits that since the complaint is basically for grant of permanency, the same would fall under Item 6 of Schedule IV of MRTU & PULP Act. The learned Senior Counsel, therefore, submits that a complaint by an unrecognised Union under the garb of filing it under Items 5 and 9 which is in effect for a relief under Clause 6 itself would not be tenable. He submits that the learned Industrial Court rightly held that the complainant had no locus to file the said complaint and dismissed the same. The learned Senior counsel submits that the learned Single Judge has grossly erred in reversing the well reasoned order passed by the learned Industrial Court.12. The learned Senior Counsel submits that on 23.04.1946 the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as "the Central Act) was made applicable to the industrial establishment of the appellant under the provisions of Section 2-A of the Central Act. He further submits that on 2.6.1947 the Central Provinces And Berar Industrial Disputes Settlement Act, 1947 was made applicable to the establishment of the appellant. He submits that under Section 30 of the C.P. & Berar Act, it was necessary to get the Standing Orders certified and as a matter of fact the Standing Orders of the appellant were certified. He submits that by Maharashtra Act No.22 of 1965, the C.P. & Berar Act came to be repealed and the provisions of the Bombay Industrial Relations Act, 1946 (for short "BIR Act") were made applicable to the Paper Industry in Vidarbha Region. He submits that after that by issuing a notification under sub-section (5) of Section 2 of the BIR Act, the paper industry was withdrawn from the applicability of the provisions of the BIR Act on 2.6.1967. The learned Senior Counsel, therefore, submits that after 2.6.1967, the position would be that the certified Standing Orders which were certified under the C.P. & Berar Act, shall stand revived and the industry would be governed only by the said Standing Orders. He submits that as such the learned Single Judge has grossly erred in holding that the appellant-industry would be governed by the Model Standing Orders.13. Shri Deshpande further submits that the workmen concerned are daily wagers and they are not governed by any of the categories mentioned in the Model Standing Orders. He, therefore, submits that the members of the complainant Union would not be governed by the Model Standing Orders.14. The learned Senior Counsel submits that the learned Industrial Court as well as the learned Single Judge has grossly erred in holding that the appellant had failed to prove that the Standing Orders as certified under the C.P. & Berar Act were available. He submits that the appellant had placed on record sufficient material to establish that the standing orders as certified under Section 30 of the C.P. & Berar Act existed. He further submits that once the appellant had established that the Standing Orders as certified under Section 30 of the C.P. & Berar Act existed, then in view of the judgment of the learned Single Judge of this Court in the case of Berar Oil Industry, Akola .vs. National Berar Oil Industry Workers Union, Akola reported in 1987 Mh.L.J. 519, the learned Single Judge while deciding the present matter, ought to have come to a conclusion that the Model Standing Orders were not applicable to the appellant-industry.15. The learned Senior Counsel relying on the judgment of the Apex Court in the case of M.S.R.T.C. And another .vs. Casteribe Rajya P. Karmachari Sanghatana reported in 2009 III CLR 262 and the Division Bench of this Court in the case of State of Maharashtra and another .vs. Pandurang Sitaram Jadhav reported in 2008 III CLR 151 and the Single Judge of this Court in the case of Chief Conservator of Forests .vs. Ashikque reported in 2012(3) Mh.L.J. 478 submits that it is not permissible for the Courts to create posts. He submits that the direction of the learned Single Judge in effect amounts to creation of posts and as such the direction would be beyond the jurisdiction of the learned Single Judge.16. On facts, the learned Senior counsel submits that there are no specific averments regarding the nature of work, how the workmen have completed 240 days and that the vacancies are permanent. He submits that in the absence of such a factual matrix being on record, the directions issued by the learned Single Judge would be without jurisdiction. He, therefore, submits that the appeal deserves to be allowed and the judgment and order passed by the learned Industrial Court needs to be restored.17. Shri Upadhyay, the learned counsel appearing on behalf of the respondent no.1 submits that the complainant had specifically pleaded the ingredients, so as to bring the case within the ambit of Item Nos. 5 and 9 of Schedule IV of the MRTU & PULP Act. He submits that not only this but the entire details with regard to the name of the workers, their date of appointment, the wages earned by them, their P.F. Number etc. have been specifically given by the witnesses who were examined on behalf of the complainant. It is further submitted by him that even the names of the juniors who were given permanency overlooking the claim of the complainant are also given. He submits that though it was a specific case of the complainant that the strength of the permanent workers had come down from 10,000 to 2500, the witness examined on behalf of the appellant-employer gave a vague answer. He submits that though the entire material could have been placed before the learned Industrial Court on behalf of the employer, for the reasons best known, the same was withheld. It is submitted that the tenor of the answers given in the cross-examination by the witness of the employer would reveal that the witness was evading to give answers, so that the factual position does not come on record. The learned counsel submits that since the ingredients to prove the case under Item Nos. 5 and 9 were not only pleaded but since an evidence in that regard was also given, no error could be found in the judgment of the learned Single Judge.18. The learned counsel further submits that insofar as the Standing Orders certified under the C.P. & Berar Act are concerned, the evidence of the employer before the learned Industrial court would itself reveal that even according to the employer they were governed by the Model Standing Orders. He submits that the issue which is raised regarding applicability of the Standing Orders certified under the C.P. & Berar Act is by way of an after thought. In any case, it is submitted that in view of the concurrent findings on the said issue, no interference is warranted in the appellate jurisdiction.19. The learned counsel submits that if the workers are working for a long time, it is to be presumed that there are vacancies. He relies on the judgment of the Apex Court in the case of Gujarat Agricultural University vs. Rathod Labhu Beehar reported in AIR 2001 Supreme Court 706.20. No doubt that Shri Deshpande is right in contending that under Item Clause 6 of Schedule IV of the MRTU & PULP Act, the same is specifically reserved for a recognised union and It is only a recognised Union which can file a complaint under the said Act. We will, therefore, have to consider as to whether the complainant has proved the case under Item Nos.5 and 9 of Schedule IV of the said Act.21. It will be appropriate to refer to Items 5 and 9 of the Schedule IV of the MRTU & PULP Act:-"5. To show favouritism or partiality to one set of workers, regardless of merits.9. Failure to implement award, settlement or agreement."It could thus be seen that Item No.5 deals with showing favouritism and partiality to one set of workers, regardless of merits. Item No.9 deals with failure to implement award, settlement or agreement. To appreciate rival contention, it will be appropriate to refer to the pleadings in the complaint. It will be relevant to refer to para 3 (VIII) of the complaint which reads thus:-3.(VIII) The complainants submit that the workmen mentioned in EXHIBIT "B" ought to have been paid the wages of the permanent workmen employed by the respondents. However, the Respondents have created a discrimination and favouritism between the two sets of the workmen in payment of the wages and provide the facilities regardless of merits. The Respondents as such have saved a huge amount taking the advantages of the present status of workmen. The complainants state that 3000 workmen are made permanent whereas the workmen concerned with this complaint are deprived the permanency. The respondents have shown the partiality and favouritism to a set of workers while granted them the benefits of permanency in the employment of the Respondents, whereas the workmen concerned with this Complaint or engaged through out the year since the date of their joining in category of Mazdoor and designated as a daily paid employees for not made permanent. The Complainants therefore say that the Respondents are engaged in Unfair Labour Practices under item No.5 of Schedule IV of M.R.T.U. & P.U.L.P. Act, 1971."It could thus be seen that the complainant has specifically averred regarding the workmen mentioned in Exh.B not being paid the wages of the permanent workmen. It has been specifically averred that the employer had created a discrimination and favouritism between the two sets of the workmen in payment of the wages and providing the facilities, regardless of merits. It has been further stated that 3000 workmen are made permanent, whereas the workmen concerned with this complaint are deprived of permanency. It could thus be seen that the specific pleadings regarding partiality and favouritism which is a requirement under Item No.5 has been specifically made. A perusal of the Annexure B to the complaint would reveal that the entire details of 224 workmen are given, i.e. name, joining date, designation, token number, monthly wages, P.F. Number etc. The perusal of Exh.B would reveal that some of the workers have been working as back as from 1974. Except evasive denial, there is nothing in the written statement. The only reliance that is sought to be placed is on the provisions of Section 21 of the MRTU & PULP Act contending that what the complainant-Union could not get under Item 6 of Schedule IV, the Union cannot get the same relief under Item 5 of Schedule IV.22. In the evidence led on behalf of the complainant, the witness Chandu Samba has specifically averred that he along with other workmen, worked for 240 days in the year 1999, but the Company never accorded the permanency and has also not given the amenities and facilities which are given to the permanent workmen. He has specifically given the details of salaries paid as well as other amenities given to the permanent employees. It will be relevant to refer to following part of his evidence:-"As such I as well as other workmen looses in the wages per month approximately Rs.5000/- comparative to a permanent workmen employed in the company. I and other workmen work continuously and regularly and the nature of work being performed by me and other workmen are of the permanent nature. In order to deprive the differential wages, variable dearness allowances, benefits and other facilities mentioned by me hereinabove the respondent company refused to grant permanency to me and other workmen."23. Similar evidence has been given by another employee Purushottam Baliram Bhandarkar. He has specifically deposed as under:-"I say that the company had made the permanent to the junior workmen and deprived the permanency of senior workmen. The company have not followed the seniority list in making the workmen permanent. I further say that company have also been making the workmen permanent to the workmen employed by contractor and ignore the workmen who have been working for 20 to 25 years as daily paid employees. The respondent company have made the junior as permanent and deprived the senior workmen the right of permanency. I are the some of the workmen made permanent being junior are.Sr.No.Name of junior workmenTicket No.1.D. Kamtakar73722.Ravi Tajane72593.Dilip Sharma72064.Gurudas Kunte73685.Parag Kaffe72766.Indrajitsingh Pal76617.Rakesh Nelson7272 I further say that but ignoring the seniority list of the daily paid workmen, the respondent company have shown the partiality and favouritism and made the permanent the workmen who were employed by the contractor and their names are:-Sr.No.Name of junior workmenTicket No.1.Bhagwan27772.Sudam Jaiswal27783.Nagmani Mishra27794.Shaikh27805.Pradip Pawar27816.Mujammil Hussain27827.Raju Vyavahare27838.Nagraj P. Shastry27849.Deepak Kondagurle278510.Ashok278611.Ramesh278712.P.M. Jaykar278813.Namod278914.Manoj Dixit279015.Sudhir Damdam279116.Tariq Khan279217.Kamlesh Gedam7757 I say that the union have brought this discrimination point to the management of the respondent company but the management have not considered the complaint of the union. Subsequently the respondent company have continued to employ fresh recruits and make them permanent and ignore the workmen who are concerned with this complaint in according the permanency."24. It could thus be seen that the said witness has specifically deposed that the Company has made the workmen permanent who were junior to him. He has further deposed that various workmen who were employed by the Contractor, have also been made permanent and the claim of the workmen on whose behalf the complaint was filed, was ignored. It could thus be clearly seen that the complainant has specifically pleaded and also substantiated by leading evidence that the appellant was showing favouritism or partiality to one set of workers regardless of merits. As against this, it will be appropriate to refer to the cross-examination of Shri Lav Sharma, Deputy General Manager-HR who was examined on behalf of the appellant-employer:-"5. It is true to say that difference of wages of permanent employees and daily wages workers is of Rs.5000/-. I say that it could be of Rs.2000/- approximately per month. Not true to any that workers employed from 1974 as per Exh.34 are working continuously without breaks. I have not filed any document showing details of break given. I say that these workers though not given break out they are daily rated, daily paid employees. Normally, all daily paid workers have given assignment on receiving requisition from various department of company. Not true to say that all these daily paid workers are sent to work on the basis of permanent work being available for permanent employee. Not true that these employees are not made permanent for the reason that they will have to be paid wages of permanent employees."25. It could thus be seen that though this witness has initially admitted the difference of wages between permanent employees and daily wages workers to be of Rs.5000/-, he has improved by stating that it could be of Rs.2000/- approximately. The evidence would also show that he has not filed any document showing details of breaks given. He has further admitted that though these workers are not given break, they are daily paid employees. It could thus be seen that though this witness could have placed relevant material on record to substantiate the claim of the employer, nothing was placed on record. In that view of the matter, we do not find that the learned Single Judge has committed any error, in coming to the conclusion that the appellant-employer has shown favouritism to set of workers and has given a partial treatment to them, regardless of merit.26. Now we will deal with the issue as to whether the complainant had made out a case under Item 9. Item 9 deals with failure to implement award, settlement or agreement. To decide the issue, it will have to be decided as to whether the relationship between the appellant and the workmen of the appellant are governed by which Standing Orders.27. The perusal of the judgment of the learned Industrial Court would reveal that even according to the appellants they were governed by the Model Standing Orders inasmuch as it could be seen that reliance was placed on Clause 32 of the Model Standing Orders, which reliance was found to be well merited by the learned Industrial Court. However, it appears that for the first time, the appellant by way of an after thought contended before the learned Single Judge that the employer was having its own Standing Orders i.e. Certified Standing Orders. The learned Single Judge remitted the matter to the learned Industrial Court to consider the issue as to whether the appellant was having its own Certified Standing Orders or as to whether the appellant was governed by the Model Standing Orders. The learned Industrial Court, on remand held that no such Certified Standing Orders are available or applicable. The same finding of fact has been affirmed by the learned Single Judge. The learned Single Judge from paras 13 to 23 has elaborately considered this issue. The learned Single has firstly held that there is no perversity in finding of fact as recorded by the learned Industrial Court that no such Certified Standing Orders existed. The learned Single Judge has elaborately discussed the evidence that was led on behalf of the parties, before the learned Industrial Court, while upholding the finding that no such Certified Standing Orders exist. The scope of interference in concurrent findings of fact is limited. Unless the finding is found to be perverse or impossible, it will not be permissible for this Court to interfere with the same. We notice no perversity to entertain.28. The learned Single Judge has also relied on the judgment of the Larger Bench of this Court in the case of Gangadhar Balgopal Nair vs. Voltas Ltd. & Anr, reported in 2007 (1) Bombay C.R. 1. It will be relevant to refer to the following observations of the Larger Bench in the said judgment:-"We must, therefore, conclude that Clause 4-C was introduced in the Model Standing Orders on 28.9.1977 and was made applicable to industrial establishments immediately except where the industrial establishment had certified Standing Orders prior to 15.1.1959 i.e. the coming into force of the Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957."It could thus be clearly seen that the Larger Bench has in unequivocal terms has held that Clause 4-C which was in the Model Standing Orders on 28.9.1977 and was made applicable to industrial establishments immediately except where the industrial establishment had certified Standing Orders prior to 15.1.1959 i.e. prior to coming into force of the Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957. As such no error could be noticed with the finding of the learned Single Judge that since there were no preexisting certified Standing Orders in respect of the appellant, Clause 4-C of the Model Standing Orders was applicable to industrial establishment with effect from 28.9.1977. We find that the view taken by the learned Single Judge is in consonance with the law laid down by the larger Bench of this Court.29. It is next contended by of Shri Deshpande that Clause 4-C applies only to a badli or temporary workman. It is submitted that the workmen concerned are neither badli nor temporary but daily wage earners. He further submits that the workmen would not be entitled to benefit of Clause 4-C of the Model Standing Orders. To consider the submission of Shri Deshpande, we will have to refer to Clause 3 (1) and 4-C of the Model Standing Orders:-"3. (1) Workmen shall be classified as -(a) permanent workmen;(b) probationers;(c) badlis or substitutes;(d) temporary workmen;(e) casual workmen; and(f) apprentices.4-C. A badli or temporary workman who has put in 190 days uninterrupted service in the aggregate in any establishment of seasonal nature or 240 days "uninterrupted service" in the aggregate in any other 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 the said twelve calendar months.Explanation:- For purposes of this clause any period of interrupted service, caused by cessation of work which is not due to any fault of the workman concerned, shall not be counted for the purpose of computing 190 days or 240 days, or, as the case may be, for making a badli or temporary workman permanent."As held by the larger Bench of this Court in the case of Gangadhar (supra) , a badli or temporary workman who has put in 190 days uninterrupted service in the aggregate in any establishment of seasonal nature or 240 days uninterrupted service in the aggregate in any other 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 the said twelve calendar months. It could thus be seen that the mandate of Clause 4-C is to grant permanency to Badli or temporary workman who has put in 190 days uninterrupted service in the aggregate in any establishment of seasonal nature or 240 days in case of other establishment. We find that the argument that the petitioners are not Badli or temporary workmen and as such they are not entitled to benefit of Clause 4-C will have to be rejected.30. Similarly the argument that no details regarding the availability of the work, the nature of work done by the workmen being not given, will also have to be rejected. As is already discussed hereinabove in para 3(IX) of the complaint, the complainant has specifically averred that the workmen have rendered the services and completed 240 working days in each year. It will also be relevant to refer to para 3(IX) of the complaint:-"(IX) The Complainants state that workmen have been paid lower wages for the work they carry out and pay higher wages to the permanent workmen although the said permanent workmen perform the same work as done by the Complainant workmen. Although the workmen are required to work permanently on their designations regularly, the Respondents deprived them the wages which is being paid to the permanent workmen on same designations in the Respondents employment. By virtue of the services being rendered by the workmen for many years and completion of 240 working days in each year, the workmen are entitled all the benefits and wages payable to the permanent workmen under the agreements entered between the Union and the Respondents from time to time. The workmen are entitled the basic wages variable dearness allowances and other benefits such as yearly increments, bonus, leave travel allowances, causal leave and sick leaves etc. The complainants crave leave of the Honble Court to refer and produce the wage-slip of the permanent workmen when produced."31. It could thus be clearly seen that the complainant has specifically averred that the workmen since the date of their employment have been working regularly and continuously. The departments in which the workmen were working are also given. Except the vague denial, there is nothing in the written statement. The written statement only says that no comparison can be made with the permanent workmen. The perusal of the evidence of Shri Chandu Samba and Shri Purushottam Baliram Bhandarkar who have been examined on behalf of the complainant, would reveal that the entire details regarding the date from which each of the workers mentioned in Exh.B is working, are given. It is also specifically stated in the evidence that these witnesses along with the other workers have worked for 240 days in the year 1999. It has also been specifically stated that these witnesses along with other workmen are employed to work on permanent nature of work in the department but for the same work, permanent workmen are paid more than the temporary workmen and difference of wages are around Rs.5000/- per month.32. As against this, it could be seen that the answers given in the evidence of the witness examined on behalf of the employer are evasive in nature. Though specific suggestions are put to the said witness that the production capacity has increased substantially, the only answer given is that he cannot say. Whereas to a specific query put to him that in the year 1980 the strength of workers was 10,000, his answer is that without checking the record, he cannot tell. To a specific query to him that the strength of permanent employees in the P.F. Plant in 1980 was 500 and now it is reduced to 300, the answer is he cannot say. Similar are the evasive answers to the specific questions put to him with regard to the PULP MILL, Boiler Department, Paper Machine Department, Chemical Department, Chemical Preparation Department, Engineering Department etc. To the specific suggestions that the strength of permanent staff in all these departments had been substantially reduced, his only answer is he cannot say. It could thus be seen that the evidence of the complainant that for last several years they have put in uninterrupted service in the aggregate for 240 days, has gone unchallenged. We, therefore, find that the learned Single Judge has rightly held that the complainant has proved its case under Item 9 also, inasmuch as the appellant had failed to implement Clause 4-C of the Model Standing Orders.33. Insofar as the contention of Shri Deshpande that the unrecognised Union did not have locus to file a complaint is concerned, the said issue is no more res integra. It will be relevant to refer to paras 36 and 42 of the judgment of the Division Bench of this Court in the case of Warden and Co. (I) Ltd. .vs. Akhil Maharashtra Kamgar Union, Thane reported in 2001 II CLR 359:-"36. Since the case before us is different in that it concerns the right on an unrecognized Union in an industry to which the I.D. Act applies to file or prosecute a complaint under the MRTU & PULP Act, we have ourselves perused the statutory scheme and we find ourselves in agreement with the submission that the law laid down in Raymond case was not in respect of a matter arising in an industry where the I.D. Act applies, but a matter relating to an industry governed by the Bombay Industrial Relations Act.42. We, therefore, hold that it is not the exclusive right of a recognised Union to institute and prosecute a complaint under the MRTU & PULP Act in respect of an industry governed by the I.D. Act in relation to unfair labour practices other than those specified in items 2 and 6 of Schedule IV of the MRTU & PULP Act. We, therefore, uphold the judgment of the learned single Judge in this regard."In view of the law laid down by the Division Bench, the objection in that regard, in our view, is without substance.34. That leaves us with the last issue raised by Shri Deshpande that the Courts cannot direct creation of posts. As already discussed hereinabove, the evidence of the witnesses examined on behalf of the complainant, that for last several years, the workmen who were the members of the complainant-union had completed an uninterrupted service in the aggregate for 240 days, has gone unchallenged. Some of these workmen have been working uninterruptedly from 1974 onwards. In this respect it will be relevant to refer to the following observations of the Apex Court in the case of Workmen of Bhurkunda Colliery of Central Coalfields Ltd. And Anr .vs. Mgmt of Bhurkunda Colliery of Central Coalfields Ltd. & Anr reported in 2006 I CLR 635:-"19. Where a temporary or ad hoc appointment is continued for long, the Court presumes that there is regular need for his services on a regular post and accordingly considers regularization."35. We may also refer to the observations of the Honble Apex Court in the case of U.P. State Electricity Board .vs. Pooran Chandra Pandey and Ors. reported in 2008 II CLR 147:-"19. In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years service and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face."36. It will be relevant to refer to the following observations in the case of Mineral Exploration Corporation Employees Union .vs. Mineral Exploration Corporation Ltd. & Anr. Reported in 2006 III CLR 956:-"22. The respondent-management itself effected transfer of employees from one project to another and granted them benefit e.g. T.A., D.A. Etc. The term contingent employee is totally unknown to Industrial Law. To deny the benefits available to regular employees, certain employees are termed as contingent workers. Once an employee completes 240 days, he is deemed to be a permanent employee. The term contingent employee is not included in Standing Orders. Usual practice of the Corporation has been to keep contingent workmen for long duration of time and offering regular appointment periodically which abruptly had stopped due to unfair attitude of the Management. Reduction in work leading to poor physical and financial performance has been a result of incompetent and poor management which cannot be allowed to play with the future of thousands of employees and their families."(Emphasis supplied)37. It could thus be clearly seen that having extracted the work for a period of 240 days in the aggregate and that too for last several years, now the employer cannot be permitted to say that the said workers are not badli or temporary workmen but daily wagers. As could be seen from the evidence led on behalf of the complainant, the work is of permanent nature. Cogent evidence is also led in support of the said fact. In that view of the matter, we find that the complainant has succeeded in establishing that the appellant has indulged in unfair labour practice under Item No.9 of Schedule IV of the MRTU & PULP Act.38. Insofar as the reliance placed by Shri Deshpande on the judgment of the Honble Apex Court in the case of MSRTC & Anr (supra) is concerned, their Lordships of the Apex Court have held that a complaint in respect of Item No.6 of Schedule IV by an unrecognised Union was not maintainable. As already discussed hereinabove, though earlier a complaint was filed by the complainant under Item Nos. 4,5,6, the same was withdrawn with liberty to file a complaint under Item Nos. 5 and 9. As already discussed hereinabove, we find that the complainants have succeeded in establishing that the appellant had indulged into unfair labour practice under Item Nos. 5 and 9 of Schedule IV of the MRTU & PULP Act.39. No doubt that Shri Deshpande , the learned Senior Counsel is justified in relying on the aforesaid judgment of the Apex Court in the case of MSRTC & Anr (supra) in support of the proposition that the Courts cannot grant permanency where no post exists. However, as could be seen from the evidence which is led on behalf of the complainant that the workmen have been rendering services uninterruptedly for 240 days in the aggregate in a calendar year for last several years and some of them from 1974. The tenor of the cross-examination of the witness examined on behalf of the appellant would reveal that the appellants have not brought any record with respect to the non-availability of the posts etc. To the specific questions put by the complainant with respect to each department that the number of permanent workers working in each department in the year 1980 has substantially reduced in the year 2006, the only answer given by the witness of the appellant is that either he does not know or he cannot answer without verifying the record. It could thus be seen that the appellant has attempted to withhold the pertinent and relevant information. We are of the considered view that the appellant could not be permitted to extract the services of the workmen for years together and deny them the benefit of permanency.

Decision:
0[ds]34. That leaves us with the last issue raised by Shri Deshpande that the Courts cannot direct creation of posts. As already discussed hereinabove, the evidence of the witnesses examined on behalf of the complainant, that for last several years, the workmen who were the members of thehad completed an uninterrupted service in the aggregate for 240 days, has gone unchallenged. Some of these workmen have been working uninterruptedly from 1974 onwards. In this respect it will be relevant to refer to the following observations of the Apex Court in the case of Workmen of Bhurkunda Colliery of Central Coalfields Ltd. And Anr .vs. Mgmt of Bhurkunda Colliery of Central Coalfields Ltd.Anr reported in 2006 I CLRWhere a temporary or ad hoc appointment is continued for long, the Court presumes that there is regular need for his services on a regular post and accordingly considers regularization."35. We may also refer to the observations of the Honble Apex Court in the case of U.P. State Electricity Board .vs. Pooran Chandra Pandey and Ors. reported in 2008 II CLRIn the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years service and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face."36. It will be relevant to refer to the following observations in the case of Mineral Exploration Corporation Employees Union .vs. Mineral Exploration Corporation Ltd.Anr. Reported in 2006 III CLRnt itself effected transfer of employees from one project to another and granted them benefit e.g. T.A., D.A. Etc. The term contingent employee is totally unknown to Industrial Law. To deny the benefits available to regular employees, certain employees are termed as contingent workers. Once an employee completes 240 days, he is deemed to be a permanent employee. The term contingent employee is not included in Standing Orders. Usual practice of the Corporation has been to keep contingent workmen for long duration of time and offering regular appointment periodically which abruptly had stopped due to unfair attitude of the Management. Reduction in work leading to poor physical and financial performance has been a result of incompetent and poor management which cannot be allowed to play with the future of thousands of employees and their families."(Emphasis supplied)37. It could thus be clearly seen that having extracted the work for a period of 240 days in the aggregate and that too for last several years, now the employer cannot be permitted to say that the said workers are not badli or temporary workmen but daily wagers. As could be seen from the evidence led on behalf of the complainant, the work is of permanent nature. Cogent evidence is also led in support of the said fact. In that view of the matter, we find that the complainant has succeeded in establishing that the appellant has indulged in unfair labour practice under Item No.9 of Schedule IV of the MRTUPULP Act.38. Insofar as the reliance placed by Shri Deshpande on the judgment of the Honble Apex Court in the case of MSRTCAnr (supra) is concerned, their Lordships of the Apex Court have held that a complaint in respect of Item No.6 of Schedule IV by an unrecognised Union was not maintainable. As already discussed hereinabove, though earlier a complaint was filed by the complainant under Item Nos. 4,5,6, the same was withdrawn with liberty to file a complaint under Item Nos. 5 and 9. As already discussed hereinabove, we find that the complainants have succeeded in establishing that the appellant had indulged into unfair labour practice under Item Nos. 5 and 9 of Schedule IV of the MRTUPULP Act.39. No doubt that Shri Deshpande , the learned Senior Counsel is justified in relying on the aforesaid judgment of the Apex Court in the case of MSRTCAnr (supra) in support of the proposition that the Courts cannot grant permanency where no post exists. However, as could be seen from the evidence which is led on behalf of the complainant that the workmen have been rendering services uninterruptedly for 240 days in the aggregate in a calendar year for last several years and some of them from 1974. The tenor of theof the witness examined on behalf of the appellant would reveal that the appellants have not brought any record with respect to theof the posts etc. To the specific questions put by the complainant with respect to each department that the number of permanent workers working in each department in the year 1980 has substantially reduced in the year 2006, the only answer given by the witness of the appellant is that either he does not know or he cannot answer without verifying the record. It could thus be seen that the appellant has attempted to withhold the pertinent and relevant information. We are of the considered view that the appellant could not be permitted to extract the services of the workmen for years together and deny them the benefit of permanency.