Case: Bajaj Auto Limited Vs. Rajendrakumar Jagannth Kathar & Others

Oral Judgment: (T.V. Nalawade, J.)Admit. By consent all the matters are heard for final disposal.2. By a common judgment and order dated 21.8.2004, Member of Industrial Court, Aurangabad had partly allowed the U.L.Ps. filed by respondents and the appellant company was directed to pay lump sum amount to respondents as compensation. The writ petitions were filed by appellant company to challenge this decision of Member of Industrial Court and all the petitions are dismissed by a common judgment and order dated 24.1.2011 - 31.1.2011.3. The appellant company is engaged in manufacturing two wheelers and three wheelers and it has factories at Akurdi (Pune District) and Waluj (Aurangabad District). The U.L.Ps. were filed under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter called as the "Act") for declaration that the appellant company had engaged in unfair labour practices under items 5, 6 and 9 of Schedule - IV of the Act. The respondents / complainants were appointed on temporary basis for a period of seven months at a time in a year from the year 1989 to 1997 on the posts like Turners, Fitters, Welders, Helpers, etc. After the expiry of term of seven months in a year, the company used to terminate these employees and used to appoint new temporary workmen for similar period. The new temporary workmen were also used to be terminated and again present respondents were used to be appointed on temporary posts in a next year. Due to this practice of employer, none of the respondents could complete continuous 240 days of work in a period of twelve months and could not get status and privileges of permanent workman.4. It is the case of workmen that the company had approximately 4200 permanent workmen at the relevant time and the company had appointed around 3200 temporary workmen and other staff of around 1000 at the relevant time. Each workman has given particulars in respect of the appointments given to him from the year 1989 to 1997. Some were appointed only on two occasions in the years like 1995-96, 1996-97, during the period of 2 to 3 years and many were appointed on 3 to 9 occasions during aforesaid period. It is the case of workmen that they continued to work for years together as temporary employees with the hope that the appellant company will confirm them. It is the case of workmen that the company continued to appoint them on temporary basis to deny the status of permanent employee. It is contended that each workman was appointed in the next year for the same work, and thus, work was available with the company. It is contended that after their termination, new persons were appointed in their place and it also shows that the work was available.5. It is the case of some workmen that the employer was making huge profit and the production increased during this period. It is contended that during this period, the demand of vehicles of the company had increased in the market, and as the work was available, the company could have continued them, instead of giving them such breaks. It is contended that the company intentionally avoided to do so and indulged in unfair labour practices. Some workmen were already terminated when they filed U.L.P. proceedings and some workmen filed the proceedings when they had fear that they were likely to be terminated. Some employees had also prayed for relief of confirmation on permanent posts.6. The company contested all the complaints by filing written statements. It is the case of company that about 4250 permanent employees were employed by it to meet normal requirements. It is contended that there were periodical fluctuations of temporary nature in the quantum of production of the factory due to conditions of National and International market and also due to the market competition. It is contended that due to such fluctuations the company appointed temporary workmen from time to time. It is the case of the company that such employees were paid the salaries at par with the salary of permanent employees.7. The company has denied that 3200 - 4000 temporary employees were appointed at a time in the factory. The company has also given particulars of each employee in the written statement with regard to the date of appointment and date of termination. It is the case of company that no such temporary employee put in uninterrupted service of 240 days in aggregate during the period of any consecutive twelve months. The company has denied that it was engaged in unfair labour practices under items no.5, 6 and 9 of Schedule IV of the Act. It is denied by the company that as a policy, the company used to appoint temporary employees for 6 to 7 months in a year irrespective of availability of work. The company has contended that at the time of the appointment, there was no intention to make the employees permanent, and so, there was no question of denying the status and privileges of permanent employees. It is denied that fresh employees were appointed after the termination of the complainants. It is contended that Model Standing Orders were not applicable and the company had issued certified Standing Orders. The company has denied that there was ample work available and there was steady increase in production, but only to deny the permanency benefits, the employees were terminated.8. Before the Industrial Court, parties adopted the evidence given in Complaint (ULP) No.192 of 1997. They gave more documentary and oral evidence. Complaint (ULP) No.192 of 1997 and around 1200 complaints were decided by the Industrial Court in the past and the decisions had gone against the company. The matters were taken upto the Supreme Court by the company. The Special Leave Petitions are decided by the Apex Court, and the decision is reported as (2004) 9 SCC 488 (Bajaj Auto Ltd. vs. Bhojane). The Supreme Court has held that the complainants have proved that there was unfair labour practice under item 6 of Schedule IV. At paragraph No.13, the observations in respect of these finding are as follows :-"Learned counsel appearing on behalf of the appellant company made a vain attempt to challenge the finding recorded by the Industrial Court to the effect that the workmen succeeded in proving that the appellant company had employed unfair labour practice in its establishment in relation to the matters enumerated in Item 6 of Schedule IV of the 1971 Act. We have been taken through the award of the Industrial Court in extenso from which it appears that the court recorded the said finding after threadbare discussion of evidence adduced on behalf of the parties and there being no infirmity therein, the High Court was quite justified in not interfering with the same, accordingly, it is not possible for this Court to disturb the same in view of the fact that the finding is a pure finding of fact and no interference therewith is called for."9. Item no.6 of Schedule IV of the Act runs as under :-"To employ employee as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees."10. The aforesaid decision of Supreme Court and the record shows that in the past, in 1006, similar complaints filed in respect of the same period by temporary employees, the company agreed to give lump sum amount in the form of salary of 65 days for each year (irrespective of the number of days for which such temporary workman had worked in that year). The Apex Court granted the salary of 85 days per year on merit to the employees who contested the matter. For this decision, the period to be considered was till 1997. For the period after termination till the date of judgment of the Industrial Court, the employees were given salary in lump sum in respect of 85 days per year and the salary for the maximum period of 255 days (85 x 3) was granted by Supreme Court for subsequent period.11. In the previous proceedings the Apex Court held that the evidence in Complaint (ULP) No.192 of 1997 was not sufficient to prove that the company had engaged in unfair labour practices under items no.5 and 9 of the Schedule IV of the Act. To that extent the decision of the Industrial Court and High Court was set aside by the Apex Court. At paragraph no.38 of the judgment under challenge in this proceedings the Industrial Court has held that the evidence in previous matters and present matters is similar and has drawn the inference that "the complainants were continued for years but they were not granted status and privileges of permanency at the relevant time." The Industrial Court has held that as the same inference was drawn in previously finally decided matters on the basis of the evidence given in Complaint (ULP) No.192 of 1997, no other inference is possible. The Industrial Court has held that some more evidence given in the form of one Shri Suryawanshi is not sufficient to give contrary decision. The Industrial Court has held at paragraph no.51 that on the basis of the decision given by the Apex Court in previous matters, similar compensation needs to be granted in the present matters also. By giving similar reasoning in respect of items no.5 and 9 of Schedule IV of the Act, the Industrial Court has held that unfair labour practice under these items is not proved. The workmen did not challenge the decision given in respect of items no.5 and 9 and only the company challenged the decision by filing the writ petitions. The learned Single Judge has confirmed the decision of Industrial Court and aforesaid reasoning given by Industrial Court is accepted.12. In the appeals it was argued for the company that there is no discussion of evidence in the judgment of Industrial Court and the complainants have failed to prove any unfair labour practice. It was submitted that it is necessary to prove that for unfair object mentioned in item no.6, appointments were temporarily given and there were posts of permanent nature available at the relevant time. In support of this submission one case reported as 1994 (1) CLR 913, Bombay High Court - Nagpur Bench (Punjabrao Krushi Vidyapeeth, Akola vs. Kamgar Union) was cited. The facts of this case were different and in this case it was held that the object to deprive the employees of the status and benefit of permanency was not proved by the complainants and so item no.6 of Schedule IV was not attracted. One more case reported as 2004 (3) CLR 547 S.C. (Municipal Corporation, Faridabad vs. Shriniwas) was cited for company. In this case, the Apex Court has observed that the burden was on the employee to prove that he was in continuous service of 240 days during the year and as he failed to adduce the evidence, there was no question of granting relief to him. In view of the facts of the case, the Apex Court observed that adverse inference was not possible against the employer only because the employer did not produce muster rolls in respect of the employee.13. In the case reported as 2007 II CLR 139 S.C. (Gangadhar vs. M/s Siemens Ltd.) cited for the company, the employee was appointed temporarily on different project sites in India and even in Iraq on different occasions, and this way, was engaged for number of years. The Court held that motive to deprive permanency benefits cannot be inferred in such cases. For the respondents, employees case reported as Chief Conservator of Fores & anr. vs. Jagannath Maruti (1996) 2 SCC 293 was cited on this point. This case is referred by Apex Court in Gangadhars case cited supra. In the case of Chief Conservator, on the basis of facts and circumstances, inference about such motive - object was drawn. 40 workmen were kept casuals for long years by the Forest Department. The Apex Court has observed that burden of proof cannot be placed on workmen in such cases as workmen cannot reasonably discharge such burden. In the case of Gangadhar, cited supra, one more case reported as 2005 I CLR 604 S.C. (Union vs. Ramchandar) is referred. The facts show that the employee was engaged on regular basis for the period of 89 days on each occasion. The Apex Court held that inference can be drawn that there was sufficient work available and only to see that 240 days of continuous employment is not completed, the order of discontinuation was issued. Thus, whether the inference about the "object" mentioned in item no.6 can be drawn depends on the facts and circumstances of the case.14. One case reported as 2007 II C.L.R. 514 S.C. (U.P. Power Corporation vs. Bijlee Majdoor Sangh) was cited. This case is on totally different point. The employee was not holding requisite qualification and the question of regularization of such temporarily employed workman was involved in the case. Similarly, in the other case, cited for company and reported as 2006 II C.L.R. 105 Bombay High Court (Pune Municipal Corporation & ors. vs. Dhananjay) the effect of the settlement between employer and employee was involved. In the present case, there is decision of the Apex Court in Bhojanes case cited supra, which on merits is in favour of similarly appointed temporary employees, and so, this reported case need not be discussed more.15. The Advocate for the employees has placed on record a copy of the order made by Bombay High Court (principal seat) in Writ Petition No.4831 of 1999 and dated 7.10.1999. Affidavit of one employee is also filed in Appeal No.247 of 2011 in support of the past events. The order shows that submission was made for company in the previously decided matters (Bhojanes case) that rotation system was adopted by company to provide work to number of workmen. The record and Bhojanes case, cited supra, show that between 1990 and 1997 such rotation system was adopted by company. This is a relevant circumstance for deciding unfair labour practice under item no.6 of Schedule IV of the Act.16. The submissions made before this Court show that similar complaints of around 2000 employees of the same period are still pending in the Industrial Court. In the present matters, 114 employees are involved. Bhojanes case, cited supra, show that at that time around 1200 employees had approached the Court. It can be said that during the relevant period (from 1989-97) around 3300 such temporarily appointed employees worked with the company. As per the case of company there were around 4200 permanent employees during this period. Thus, large number of temporary employees were used by the company during the relevant period and this is certainly a relevant circumstance for deciding unfair labour practice under item no.6 of Schedule IV of the Act.17. Admittedly, under Certified Standing Orders, appointment for maximum period of seven months in one year was given to such temporarily appointed workmen. After the break of 5 to 7 months appointment was again given. After termination of the first employees, the new set of employees were appointed. The periods given in the complaints and written statement are sufficient to draw such inference. To many employees appointments were given in similar way in seven years, eight years or nine years also. This is again a relevant circumstance for the decision of the present matters. This circumstance needs to be considered with other circumstance that company has admitted that rotation system was used during this period.18. The evidence of one Laxman More, Operational Manager of the company was recorded in Complaint (ULP) No.192 of 1997. His Department was looking after recruitment and termination of employees and this was done on the basis of requirements of Marketing and Production Department. His evidence shows that some such temporary employees were made permanent but that was done only upto the year 1993. Thus, after 1993 even when there were aforesaid circumstances, no such temporary employee was made permanent.19. The evidence of More further shows that the company tried to defend the case by contending that due to fluctuation of the demand in the market such temporary appointments were given. The evidence of More shows that he avoided to give the exact data yearwise about increase or decrease of productivity. His evidence shows that though in settlement of 1992 of the company with recognized union, the productivity was increased to 120% in relation to the work which each employee could do, temporary employees came to be appointed at least till the year 1999. The evidence of this witness shows that in or about year 1996, under settlement, the scheme of multi skill workers and multi operation machines was introduced by the company. In spite of this scheme, there were temporary employees till the year 1999.20. A report about total production in two units of the company, viz. Akurdi and Waluj was confronted with More in the cross-examination. More admitted that total production of 857023 units was done during 1989-90. He avoided to admit the separate increase given in respect of Waluj unit when suggestions were made to him. Following suggestions were made to him about the production of units in Waluj factory :-1990-91 - 289374;1991-92 - 309943;1992-93 - 377212;1993-94 - 501095;1994-95 - 589551;1995-96 - 673106;1996-97 - 652479;1997-98 - 646462At paragraph no.22 of the evidence of More, a letter dated 4.2.1998 of Vice President Shri Tripathi was confronted to More. In this letter Tripathi had informed that around 7640 workmen were required for 100% production. At paragraph no.24, More has admitted that temporary and permanent employees used to do the same job. At paragraph no.26, More has admitted that there was increase in production in the three years, but he has avoided to admit that the number of temporary employees appointed during this period increased due to increase in work. Paragraph no.26 of the evidence of More shows that he avoided to give evidence on the facts which were within his knowledge. The company has avoided to give aforesaid information by producing relevant record. The company has failed to explain the aforesaid admissions given by More and the conduct of More of avoiding to admit the aforesaid facts suggested to him.21. The evidence of Tripathi, Vice President of the company at paragraph 4 shows that he also avoided to admit the evidence of increase in production from the year 1990-91 onwards. His evidence was recorded in September, 2000, and his evidence shows that at the relevant time there were at least 5393 employees, which included 4161 permanent employees. Thus, more than 1000 temporary employees were continued till that year also.22. The General Manager of the company Shri Malshe has admitted at paragraph no.17 of the evidence that as per annual report of 1998-99 the sale and profit had increased every year from the year 1994-95 to 1998-99. At paragraph no.19, he has admitted the figures of production shown in annual report that the production increased from the year 1989-90 to 1996-97. This evidence and the figures are sufficient to infer that company was in need of more workmen, but the company preferred to appoint only temporary workmen during this period.23. The aforesaid evidence and circumstances are sufficient to infer that there was sufficient work with the company, the production was increasing, there was the demand to the vehicles of the company in the market and due to these circumstances, the temporary employees were appointed during all those years. On the basis of this evidence final decision was given by the Court in the previous proceedings that unfair labour practice under item no.6 is proved against the company. The present complainants, respondents were working during the same period and they were also appointed in similar manner. In view of these circumstances, no other inference is possible. The evidence and circumstances also show that the documentary evidence of concerned Departments was not produced by the company by giving excuse that such record (of manpower recruitment analysis, etc.) of pre - 1997 was destroyed. It is surprising that when in the year 1997 itself thousands of the complaints were filed in the Industrial Court, the company destroyed this record. In the pleadings no such defence was taken by the company. In view of these circumstances also, adverse inference needs to be drawn against the company.24. The evidence of Shri Suryawanshi, who was examined as additional witness for the present matters, shows that it is mainly in respect of the system of multi skill workers and multi operation machines used by the company from the year 1996. In view of the discussion already made, this Court holds that this evidence cannot make any difference.25. The aforesaid discussion shows that the decision of the Industrial Court and the learned Single Judge is based on the evidence and no interference is possible in the decision. It is true that the Industrial Court could have quoted the aforesaid evidence and circumstances for drawing the inference, but the Industrial Court has preferred only to observe that the evidence of previously decided matters and the present matters is similar in nature. Only because the aforesaid evidence is not specifically discussed, decision of Industrial Court cannot be set aside.

Decision:
0[ds]14. One case reported as 2007 II C.L.R. 514 S.C. (U.P. Power Corporation vs. Bijlee Majdoor Sangh) was cited. This case is on totally different point. The employee was not holding requisite qualification and the question of regularization of such temporarily employed workman was involved in the case. Similarly, in the other case, cited for company and reported as 2006 II C.L.R. 105 Bombay High Court (Pune Municipal Corporationors. vs. Dhananjay) the effect of the settlement between employer and employee was involved. In the present case, there is decision of the Apex Court in Bhojanes case cited supra, which on merits is in favour of similarly appointed temporary employees, and so, this reported case need not be discussedparagraph no.22 of the evidence of More, a letter dated 4.2.1998 of Vice President Shri Tripathi was confronted to More. In this letter Tripathi had informed that around 7640 workmen were required for 100% production. At paragraph no.24, More has admitted that temporary and permanent employees used to do the same job. At paragraph no.26, More has admitted that there was increase in production in the three years, but he has avoided to admit that the number of temporary employees appointed during this period increased due to increase in work. Paragraph no.26 of the evidence of More shows that he avoided to give evidence on the facts which were within his knowledge. The company has avoided to give aforesaid information by producing relevant record. The company has failed to explain the aforesaid admissions given by More and the conduct of More of avoiding to admit the aforesaid facts suggested to him.21. The evidence of Tripathi, Vice President of the company at paragraph 4 shows that he also avoided to admit the evidence of increase in production from the yearonwards. His evidence was recorded in September, 2000, and his evidence shows that at the relevant time there were at least 5393 employees, which included 4161 permanent employees. Thus, more than 1000 temporary employees were continued till that year also.22. The General Manager of the company Shri Malshe has admitted at paragraph no.17 of the evidence that as per annual report ofthe sale and profit had increased every year from the year9. At paragraph no.19, he has admitted the figures of production shown in annual report that the production increased from the year7. This evidence and the figures are sufficient to infer that company was in need of more workmen, but the company preferred to appoint only temporary workmen during this period.23. The aforesaid evidence and circumstances are sufficient to infer that there was sufficient work with the company, the production was increasing, there was the demand to the vehicles of the company in the market and due to these circumstances, the temporary employees were appointed during all those years. On the basis of this evidence final decision was given by the Court in the previous proceedings that unfair labour practice under item no.6 is proved against the company. The present complainants, respondents were working during the same period and they were also appointed in similar manner. In view of these circumstances, no other inference is possible. The evidence and circumstances also show that the documentary evidence of concerned Departments was not produced by the company by giving excuse that such record (of manpower recruitment analysis, etc.) of pre1997 was destroyed. It is surprising that when in the year 1997 itself thousands of the complaints were filed in the Industrial Court, the company destroyed this record. In the pleadings no such defence was taken by the company. In view of these circumstances also, adverse inference needs to be drawn against the company.24. The evidence of Shri Suryawanshi, who was examined as additional witness for the present matters, shows that it is mainly in respect of the system of multi skill workers and multi operation machines used by the company from the year 1996. In view of the discussion already made, this Court holds that this evidence cannot make any difference.25. The aforesaid discussion shows that the decision of the Industrial Court and the learned Single Judge is based on the evidence and no interference is possible in the decision. It is true that the Industrial Court could have quoted the aforesaid evidence and circumstances for drawing the inference, but the Industrial Court has preferred only to observe that the evidence of previously decided matters and the present matters is similar in nature. Only because the aforesaid evidence is not specifically discussed, decision of Industrial Court cannot be set aside.