1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 265 OF 2009 IN WRIT PETITION NO. 3123 OF 2005 ALONG WITH NOTICE OF MOTION NO. 2319 OF 2009 IN APPEAL NO. 265 OF 2009 IN WRIT PETITION NO. 3123 OF 2005 M/s. Indian Smelting & Refining Co. Ltd. ..Appellant Vs. Sarva Shramik Sangh ..Respondent Mr. J.P. Cama, Sr. Counsel, a/w Mr. Sanjay Udeshi i/by M/s. Sanjay Udeshi and Co. for appellant. Ms. Nayana Buch i/by Shailesh More for respondent. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. DATED: July 13, 2009. ORDER (PER B.H.MARLAPALLE,J.) 1. This appeal arises from the order dated 13/10/2008 passed by the learned Single Judge, thereby dismissing Writ Petition No. 3123 of 2005 filed by the present appellant- 2 company under Article 226 of the Constitution. 2. The respondent, which is a registered Trade Union under the Trade Unions Act, 1926 and also a recognized Union under the M.R.T.U. & P.U.L.P. Act, 1971, had filed Complaint (ULP) No. 834 of 2000 under Items 6, 9 and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971 (the Act for short) to espouse the cause of 21 employees enlisted in Annexure – A to the Complaint. All these employees were appointed by the petitioner – company in the category of dependents of the retired/expired workers pursuant to the terms of the settlement and award dated 19/3/1980. Despite these 21 employees had put in a number of years of service, they were not being treated as permanent employees and consequently when the company and the Union signed the settlement dated 3/2/1999, these employees were treated as temporaries and were denied the benefits of the said settlement and more particularly the grade and variable Dearness Allowance of 140% or fixed DA. The Union, therefore, made a representation on 2/6/2000 to the Company pointing out that on completion of 18 months of service as per the settlement dated 6/12/1971, these 21 employees were entitled for being made permanent and those 3 eligible for receiving the benefits of the settlement dated 3/2/1999. There was no response from the company and it neither made the said employees permanent nor called the Union for any negotiations. Hence, the Union filed the complaint of unfair labour practice alleging that the company failed and neglected to implement the service conditions as per the settlements dated 6/12/1971, 21/2/1996 and 3/2/1999 as well as the award dated 19/3/1980. The Union contended that these acts on the part of the company amounted to acts of unfair labour practice within the meaning of Items 6, 9 and 10 of Schedule IV of the Act. 3. The company filed its Written Statement and opposed the complaint. The complaint was amended as per the order dated 17/10/2002 and additional Written Statement was filed on 28/11/2002. The Union examined three witnesses, namely, Shri Dayaram Yadav, Shri Indrajit Singh and Shri Maruti Abaji Patil, whereas the Company examined Shri Satish Gopaldas Dhutia, General Manager (Personnel ). The Industrial Court was pleased to allow the complaint by its Judgment and Order dated 23/9/2005. The Industrial Court held that the Company had engaged in acts of unfair labour practice under Items 6 and 9 of 4 Schedule IV of the Act and it further declared that the employees concerned were entitled for status of permanency as well as permanency benefits in pursuance of the settlements that were entered between the parties from time to time, on completion of 18 months continuous service by each of the said 21 employees. This order came to be challenged by the Company in Writ Petition No. 3123 of 2005 and on 6/3/2006, by consent of the parties, following order came to be passed by the learned Single Judge in the said petition: “The petitioners to deposit in this court within a period of eight weeks the sum of Rs.23 lacs and further the petitioners will offer to all the employees the settlement dated 28.1.2006 which the workers may accept without prejudice to their rights and contentions in the present writ petition. If the said settlement is accepted, they will be entitled to the salary as per the said settlement. However, their right to contend that they are entitled to higher amount will not be curtailed by virtue of the said settlement which is being done by virtue of the interim order passed today. This interim order is granted on the condition 5 that there shall be an interim order of the implementation and execution of the impugned award.” When the said petition came up for final hearing, the learned Single Judge set out his detailed reasons and dismissed Writ Petition No. 3123 of 2005 by the impugned order holding that the challenge to the order passed by the Industrial Court was devoid of merits. 4. It was contended by the Company that under Clauses 26 and 27 of the settlement dated 3/2/1999, it had reserved the right to fix the separate service conditions for the temporary, casual, badli or other types of workmen and as the said 21 workmen were treated as temporaries, they were not governed by the said settlement dated 3/2/1999. It was further contended that all of them having been appointed on compassionate ground, they were a separate class by themselves and as and when they became entitled to the benefits under the Industrial Employment (Standing Orders) Act, 1946 they would be fitted in basic wage and granted 100% revised textile DA and other terms and conditions so fixed. As 6 per the company this was done with the knowledge of the complainant – Union and no such demand/dispute was raised by the Union in respect of these 21 employees when the settlement was signed on 3/2/1999. In short, it was the case of the company that the 21 employees were treated as temporary employees as on 3/2/1999 and, therefore, under Clauses 26 and 27 of the said settlement they could not be extended the benefits of the said settlement. It was also emphasized by the company that it was entitled to prescribe/provide separate service conditions in respect of the workmen named in Annexure – A to the complaint, as they were not covered by the settlement dated 3/2/1999. 5. Admittedly, the company employed more than 100 workmen and as per Rule 4-B of the Industrial Employment (Standing Orders) Rules, 1959, a temporary workman, who has put in 240 days uninterrupted service in the aggregate in any establishment during the preceding twelve calendar months, shall be made permanent in that establishment by an order in writing signed by the manager, or any person authorized in that behalf by the manager, irrespective of whether or not his name is on the muster roll of the establishment during the said twelve 7 calendar months. As per the settlement dated 6/12/1971, it was agreed between the management and the Union that on completion of 18 months of continuous service every temporary employee shall be made permanent and consequently shall be entitled for all the benefits as would be available to such permanent employees. Under the award dated 19/3/1980 there was a provision for employment of the wards of retired/expired workmen of the petitioner – Company and the said 21 employees came to be appointed accordingly. It was contended that on completion of 18 months of service these 21 employees were entitled for the benefits of the settlements dated 21/2/1996 and 3/2/1999 and the same plea has been accepted by the Industrial Court. Items 6 and 9 of Schedule IV of the Act read as under:- 6. To employ employees 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. 9. Failure to implement award, settlement or agreement.” 8 6. The evidence before the Industrial Court clearly went to show that the 21 workmen came to be employed between the year 1996 to 1998 on different dates and consequently as per the settlement of 6/12/1971 they were entitled for being made permanent on completion of 18 months service from the date of their joining. The award dated 19/3/1980 did not provide that the wards of the retired/expired employees appointed by the company shall be treated as a separate class and they shall not be entitled for any benefits of the settlement signed between the parties and that they shall be treated as temporary employees till they retired. It was, therefore, nor permissible in law for the company to contend that the 21 employees were not entitled for being made permanent only because they were appointed on compassionate ground. The alternative plea of the company was that on 3/2/1999 when the settlement was signed, they were temporaries and, therefore, they could not ask for the benefits of the said settlement. Though the company examined one of its officer to oppose the complaint, it could not prove by evidence that any of these 21 employees had not completed the continuous period of 18 months service so as to become permanent. From the date of joining of each of 9 these employees, they had completed 18 months service and despite the Union’s letter dated 2/6/2000, the company did not respond. Mr. Cama, the learned Senior Counsel for the company restricted his arguments on the following points in support of this appeal:- (a) The respondent-Union was a party to the settlement dated 3/2/1999 and it was fully agreed that 21 employees listed in Annexure – A to the complaint were not covered by the said settlement and the Union was aware that these employees were a special category for whom the management was entitled to a separate set of service conditions; (b) The settlement dated 3/2/1999 was applicable only to those employees who had signed a declaration for accepting the same and as the said 21 employees had never signed such a declaration or approached the management with an offer to sign the said declaration, they were not entitled for the benefits of the said settlement; and, 10 (c) During the pendency of Writ Petition No. 3123 of 2005, yet another settlement came to be signed on 20/1/2006 and in the said settlement all the claims made on behalf of these 21 employees were settled and they had given up their past claims. 7. On 2/6/2000 the Vice President of the respondent – Union addressed a letter to the President (Administration) of the appellant – company and clearly pointed out that the 21 employees appointed on compassionate ground between the years 1996 to 1998 were entitled for being made permanent and on attaining such status of permanency, they were entitled for the benefits of the settlement dated 3/2/1999. It was further pointed out that the management was depriving these workers of the benefits of permanency by keeping them temporaries for years together though they were appointed against permanent vacancies. It was pointed out that all these 21 employees were entitled to be made permanent on completion of 240 days and/or 18 months of continuous service from the date of their joining. The names of these 21 employees were annexed to the said letter. On 10/6/2000 the management replied the Union’s letter dated 2/6/2000 and reiterated that the settlement dated 11 3/2/1999 was not applicable to temporaries and casuals, while admitting that the 21 employees were made permanent. It was further pointed out that there was great recession and lack of sufficient orders and under these circumstances the management could not bear the heavy financial burden arising from the demand made by the Union in its letter dated 2/6/2000. In its Written Statement, filed before the Industrial Court, while opposing the complaint, the management contended that the employees named in Annexure – A to the complaint were deemed to be permanent and they were fitted in basic wage and granted 100% revised textile DA and other terms and conditions. This was known to the Union as well as the employees when the settlement dated 3/2/1999 was signed and if they were not given the benefits of the said settlement, it was not due to any act of the management but only due to the said settlement and more particularly Clause Nos. 26 and 27. The said Clauses read as under:- “26. APPLICABILITY It is specifically declared that this settlement is applicable only to daily-rated permanent workmen and not to temporary, casual, badli or other types of 12 workmen, if any, for whom the Company will be entitled to lay down separate service conditions. It will also not apply to the ex-workmen whose demands for reinstatement is pending before Courts/ Competent authorities under the law. It is further agreed that the terms of this settlement will be applicable only to those daily-rated permanent workmen who are on the rolls of the Company on the day of signing of this settlement and who sign it. 27. SIGNING BY WORKMEN It is further agreed that all the daily-rated permanent workmen who are on the rolls of the Company, will sign this settlement as token of their acceptance of the terms of this settlement and then only the settlement will be applicable to them.” In his cross-examination, the company’s witness Shri Satish Dhutia stated that the 21 employees were not made permanent and, therefore, were not entitled for the settlement dated 3/2/1999. 13 8. The learned Single Judge rightly agreed with the findings of the Industrial Court that each of the 21 employees were entitled to be made permanent on completion of 240 days and/or 18 months of continuous service and the management, on the other hand, conceded that they were made permanent but took a stand that they could not be given the benefits of the settlement dated 3/2/1999 as they were covered by a separate set of service conditions. These contentions have been rightly rejected by the Industrial Court and confirmed by the learned Single Judge. It is not the case of the management that when these 21 employees were appointed, the terms for their employment were reduced in writing stating that they would be treated as a separate class and would be covered by separate service conditions, even without accepting that such separate service conditions are applicable in law. When the settlement dated 3/2/1999 was signed between the Union and the management and in terms of Clause 27 the benefits of the said settlement were available only to those who signed the declaration, the management was required to call upon the workmen on its own by displaying the notice to sign the declaration. In fact, it has come on record that when these workmen approached the management to sign the declaration, 14 they were not informed that under Clause 26 of the settlement they were not entitled for its benefits as they were not permanent employees. This was a totally illegal stand and nothing short of unfair labour practice within the meaning of Items 6 and 9 of Schedule IV of the Act. By taking such a stand, the management contended that the 21 employees would be accepted as temporaries for years together and, therefore, they would not be entitled for the benefits of the settlement dated 3/2/1999. At the first place, the management intended to treat them as temporaries forever and on that pretext deny the benefits of the settlement dated 3/2/1999. Once the 21 employees had achieved the status of permanency either on account of the Standing Orders or by way of the settlement dated 6/12/1971, they had become permanent employees and, therefore, entitled for the benefits of the settlement dated 3/2/1999. If they were called upon to furnish the declaration as envisaged under Clause 27 of the said settlement and further if they had declined to sign such a declaration than it was permissible for the management to take a stand that it was not guilty of any unfair labour practice under Item 9 of Schedule IV of the Act. There is no evidence in this regard and despite the Union’s representation from time to time, the management was 15 adamant and persisted with its contention that 21 employees were covered by a separate set of service conditions. 9. If the Union and the 21 employees are party to the settlement dated 3/2/1999, it goes without saying that they are bound by the terms of the said settlement and it is for the management to proceed for its implementation. The said settlement does not have any bearing on the declaration made by the Industrial Court that the management was guilty of unfair labour practice under Items 6 and 9 of Schedule IV of the Act and that the 21 employees were entitled to be made permanent with effect from the date of completion of 18 months continuous service from the date of their joining. Once the said declaration was given by the Industrial Court further consequences in terms of Clause 26 of the settlement dated 3/2/1999 shall follow and they will be entitled to claim the benefits of the settlement on furnishing the declaration as per Clause 27 therein. 10. We are, therefore, satisfied that the learned Single Judge in his reasoned order has rightly confirmed the order passed by the Industrial Court and dismissed the Writ Petition No. 3123 of 2005. The reasoning set out by the learned Single Judge does 16 not call for any reconsiderations at our hands. Consequently, this appeal fails and the same is hereby dismissed. 11. Notice of Motion No. 2319 of 2009 does not survive and same shall stand disposed as such. (S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.)