1 wp-1503-10 jpc IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1503 OF 2010 Suresh R. Kandut and another .. Petitioners Versus Pfizer Limited .. Respondent Mr. N.M. Ganguli, for the Petitioner Mr. J. P. Cama, Senior Advocate a/w Mr. Ajit Kapadia a/w Mr. G.S. Shetty i/by Chitnis & Co. for the Respondent .... CORAM: S. J. KATHAWALLA, J. DATED: 13 th September, 2010. JUDGMENT 1. Rule. 2. Mr. Cama, the learned Senior advocate appearing for the Respondent waives service. 3. Rule is made returnable forthwith and the Petition is taken up for final hearing. 4. By this Writ Petition, the Petitioners have impugned the Judgment and Order dated 7 th April, 2008 passed by the Industrial Court, Mumbai in Complaint (ULP) No.539 of 1992, dismissing the 2 wp-1503-10 complaint of the Petitioners (Complainants)in regard to unfair labour practice under Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971(the said Act). 5. The Petitioners had filed a complaint alleging violation of Items 5, 6, and 9 of Schedule IV of the said Act. In the said Complaint, they prayed for orders against the Respondent to confirm them in service as permanent workmen and for payment of wages alongwith all allowances and benefits with retrospective effect as per the scale applicable to the permanent workers. 6. Originally, there were about 20 workers who were parties to the above complaint. However, over a period of time, 18 out of 20 workers settled the matter and only two of them continued with the litigation. 7. An order dated 19 th December, 1995 came to be passed in the aforesaid complaint holding that the Respondent Company had committed violation of Items 6 and 9 of Schedule IV of the said Act. As far as Item 5 (discrimination) is concerned, the Industrial Court was of the view that no case was made out against the Respondent Company by the Petitioners. As a consequence, both the parties 3 wp-1503-10 filed cross petitions in this Court. The workers’ petition was registered as Writ Petition No. 6385 of 1996 and the petition of the Respondent Company was registered as Writ Petition No.1003 of 1996. Both these Petitions were disposed of by a common Judgment and Order of the learned Single Judge, pronounced on 18 th January, 2008. 8. By the said judgment and order dated 18 th January, 2008, the learned Single Judge held that the finding of the Industrial Court that Item 6 of Schedule IV of the said Act has been violated was correct and confirmed the same. As far as Item 9 is concerned, the learned Single Judge noted that the Full Bench of this Court in Gangadhar Us. M/s Voltas Ltd. reported in 2007(1) Mh.L.J. 754 has earlier concluded that if any standing orders of the employer Company were duly certified prior to 15.1.1959, then any Model Standing Order which came into effect subsequently would not govern that Company. The learned Single Judge further came to the conclusion that although in the present case the Standing Orders of the Respondent Company had come into existence on 29 th April, 1957, there was no material on record to demonstrate that it had in fact been certified at any time before 15.1.1959 or thereafter. It is further held that if the standing orders have been certified before 4 wp-1503-10 15.1.1959, clause 4C of the Model Standing Orders (permanency after 240 days service) would not apply to the Respondent Company. Conversely if the Respondent Company’s aforesaid standing orders had not been duly certified before/at the cutoff date, i.e. 15.1.1959 then clause 4C would apply. In the light of uncertainty on the issue pertaining to the date on which the standing orders had been certified, the learned Single Judge remitted the matter back to the Industrial Court as regards Item 9 of schedule IV of the said Act. 9. As regards violation of Item 6 of Schedule IV of the said Act, the Respondent Company field an LPA being No.8 of 2010. The same has been admitted and is pending final disposal. 10. Thereafter, the Industrial Court, by its order dated 7 th April, 2008 which is impugned herein, dismissed the complaint of the Petitioners in regard to Item 9 of Schedule IV of the said Act on the ground that there was no dispute that the Respondent Company’s standing orders had in fact been certified in the year 1957. It was held by the Industrial Court that the Company’s evidence showed that the workers were covered by the aforesaid certified standing orders. (certified in the year 1957). There was no evidence to show 5 wp-1503-10 that the certification had taken place after 15.1.1959. That in fact there was no workers evidence despite the Company’s specific evidence regarding the date of certification. It was therefore held by the Industrial Court that the amendment in the Model Standing Orders including clause 4C would not apply to the Respondent Company. The Industrial Court has also recorded that the said certified standing orders were physically produced before the Court and that the same demonstrated that they had in fact come into force on and from 29.4.1957 and consequently clause 4C of the Model Standing Order cannot be extended to the complainants (petitioners herein). Without prejudice to the above, the Industrial Court, further considered the case of the workmen that they having completed 240 days were entitled to the benefit of clause 4C of the Model Standing Orders and consequently permanency. The Industrial Court has held that according to the workers own evidence he has admitted that there was no pleading in the Affidavit of evidence regarding 240 days having been completed and in fact the worker has admitted that in any event 240 days had not been completed. The Industrial Court therefore held that breach of Item 9 of schedule IV had not been proved by the Petitioners and the Complaint was accordingly dismissed. 6 wp-1503-10 11. Mr. Ganguli, the learned Advocate appearing for the Petitioners has relied on Section 2(A) of the Industrial Employment (Standing Orders ) Act, 1957 which reads thus: “2-A. Application of model standing orders to every industrial establishment._ (1) where this Act applies to an industrial establishment, the model standing orders for every matter set out in the Schedule applicable to such establishment shall apply to such establishment from such date as the State Government may by notification in the Official Gazette appoint in this behalf: Provided that nothing in this section shall be deemed to affect any Standing Orders which are finally certified under this Act and have come into operation under this Act in respect of any industrial establishment before the date of coming into force of the Industrial Employment (Standing Orders ) (Bombay amendment )Act, 1957. (2) Notwithstanding anything contained in the proviso to sub-section (1) model standing orders made in respect of additional matters included in the Schedule after the coming into force of the Act referred to in that proviso (being additional matters relating to probationers or badlies or temporary or casual workmen) shall unless such model standing orders are in the opinion of Certifying Officer less advantageous to them than the corresponding standing orders applicable to them under the said proviso also apply in relation to such workmen in the establishments referred to in the said proviso from such date as the 7 wp-1503-10 State Government may, by notification in the Official Gazette, appoint in this behalf.” 12. Mr. Ganguli has submitted that though the certified standing orders applicable to the Respondent Company have come into effect before the date of coming into force of the Industrial Employment (Standing Orders ) (Bombay Amendment ) Act, 1957, since the model standing orders are made in respect of additional matters relating to probationers or badlies or temporary or casual workers, sub Section 2 of Section 2A of the model standing arders shall apply to the Petitioners unless found by the Certifying Officer to be less advantageous than the certified standing orders referred to in the said proviso i.e. certified before the Amendment Act, 1957. He has submitted that in the instant case, the Model Standing Orders are not certified by any officer as being less advantageous than the certified standing orders. In view thereof, Clause 4C of the Model Standing Orders would apply to the Petitioners. 13. Clause 4C of the Model Standing Orders reads thus: “4C. A Badli or temporary workman who has put in 190 days’ uninterrupted service in the aggregate in any establishment of a 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 an order in writing signed by the 8 wp-1503-10 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 calender months. Explanation. _ For the purpose of this clause any period of interrupted service, caused by cessation of work which is not due to any fault of the workmen 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.” Mr. Ganguli has submitted that the Petitioners have completed 240 days service as required and the industrial Court therefore erred in holding that Clause 4C would not apply to the Respondent Company and therefore erred in dismissing the complaint of the Petitioners in regard to Item 9 of Schedule IV of the said Act on the ground that the Petitioners have not proved that they have worked for 240 days as required in clause 4(C) of the Model Standing Orders. 14. Mr. J. P. Cama, the learned senior Advocate appearing for the Respondent Company has submitted that since it is now established that the certified standing orders of the Respondent were in fact certified in the year 1957 and prior to 15.1.1959 i.e. prior to the Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957 coming into force clause 4C of the Model 9 wp-1503-10 Standing Orders shall not be applicable to the Respondent Company. He submits that in any event, even assuming that clause 4C of the Model Standing orders is applicable to the Petitioners, the Industrial Court has considered the said issue and on the admission of the Petitioners themselves that 240 days had not been completed by them, correctly reached a finding that breach of Item 9 has not been proved by the Petitioners. 15. Mr. Cama has taken me through the order impugned herein and has pointed out/submitted the following: i. that the Court had raised the question as to whether the Union has proved that 240 days service had been completed by the workers; ii. that the Court has recorded that according to the workers own evidence he has admitted that there was no pleading in the Affidavit of evidence regarding 240 days having been completed. iii. that in fact the workers admitted that in any event 240 days had not been completed. (this express admission is found in the workers evidence at the foot of page 179); iv. that the Court has therefore held that in light of the above nothing survives for consideration; 10 wp-1503-10 v. that the Court has further held that the complainants were in fact only badlis/substitutes and not permanent workmen; vi. that the Court therefore held that breach of Item 9 had not been proved. 16. Mr. Ganguli when faced with the admission by the Petitioners themselves that they have not worked for 240 days, submitted that the evidence of the Petitioner No.1 ( also applicable to the Petitioner No.2 as recorded in paragraph 12 of the impugned Judgment) has to be read in the context of the legal provisions and the evidence thus read would clearly establish that the Petitioners have worked for 240 days. He has submitted that the factory was working for 5 days in a week and therefore the total number of days a workman works at the rate of 5 days in a week does not exceed 240 days. He submitted that having regard to the provisions of law regarding continuous service, if the days on which the factory is closed and the workman was involuntarily kept away from work is considered, the total number of days would be more than 240 days every year. Mr. Ganguly fairly conceded that the only statement made by the Petitioner no.1 in his evidence is that the Respondent No.1 worked for 5 days in a week (i.e. about 260 to 264 days in a 11 wp-1503-10 year ) and has not raised any of the contentions recorded herein above before the Industrial Court and the same are raised for the first time before this Court. 17. I have considered the submissions advanced by Mr. Ganguli as well as Mr. J. P. Cama, the learned Senior Advocate appearing for the Respondent Company. I have also perused the evidence of the parties as well as the impugned order. The petitioner No.1 has filed his evidence and has submitted himself for cross examination. Though the Petitioner No.2 has not led any evidence and has not submitted herself for cross examination the Petitioner No.1 has stated in his evidence that whatever he has stated herein is true in respect of Petitioner No.2 (i.e. Complainant Savita Patil). The Industrial Court has recorded that the Director of the Company has categorically stated in his affidavit that the standing orders were certified in the year 1957. This statement made on oath was never controverted by the Complainants. It is further recorded that the Petitioner No.1 has nowhere stated in his evidence that the standing orders were certified after15.1.1959. There is not a whisper about the date of certification. Petitioner No. 1 has also admitted in his cross examination that the Company in its affidavit dated 29.5.1992 had stated about the certification of the 12 wp-1503-10 standing orders. However, the Petitioner No.1 has not produced anything to show the date of certification of the standing orders. The Industrial Court further records that what is pertinent to note is the fact that none of the complainants, despite opportunity has chosen to dispute the specific statement of the company regarding the date of certification of the standing orders. After noting that Clause-1 of the certified standing order records that the same has come into force on 24.9.1957 the learned Member of the Industrial Court has held that he has no difficulty in accepting the contention of the Respondent Company that the standing orders were certified in the year 1957 i.e. much prior to 15.1.1959. The learned Member of the Industrial Court therefore held that the benefits of clause 4C of the Model Standing Orders cannot be extended to the petitioners/complainants. However, since the issue whether the complainants have proved that they have completed 240 days service was framed and evidence led thereon, the learned member of the Industrial Court has examined the said issue and recorded his findings in paragraph 12 of the impugned order which reads thus: “The complainant Suresh in his evidence Exh.U-20, has no where said that the two complainants have worked for 240 days in a year at any time. In cross examination, Suresh has very clearly admitted that there is no mention in his affidavit that he 13 wp-1503-10 worked for 249 days in any year. A crucial admission further given i.e. ‘It is true that I had not completed 240 days in a year’ Suresh has covered the case of other complainant also by stating that whatever he has stated in his evidence is fully true in respect of complainant Savita Patil. With these admissions nothing remains calling for further scrutiny. There is absolutely no evidence to show that the two complainants have completed 20 days’ work/service. Consequently even if the model standing orders were applicable, the complainants would not have been entitled to permanency under Clause 4C.” 18. In the above circumstances, even if this Court proceeds on the assumption that the submissions advanced on behalf of the Petitioners (Complainants) viz. that Clause 4C of the Model Standing Orders are applicable to the Respondent Company, as correctly held by the Industrial Court, Mumbai in the order impugned herein, there is absolutely no evidence to show that the Petitioners have completed 240 days service. In fact, the Petitioners have made a clear admission that they have not completed 240 days service. Consequently the Petitioners would not be entitled to permanency under clause 4C of the Model Standing Orders. The explanation /argument now sought to be given/advanced by the 14 wp-1503-10 learned Advocate for the Petitioner is only a desperate attempt made for the first time and cannot be taken cognizance of by this Court. Even otherwise, the said explanation completely lacks merit. 19. In the above circumstances, I am of the view that the impugned judgment and order is passed by the Industrial Court after considering in detail the facts of the case, the evidence led by the parties as also the applicable law The findings of the industrial Court that the standing orders were certified prior to 15.1.1959 and the Petitioners/complainants have not worked for 240 days and consequently clause 4C of the model standing orders would not apply to them are correct and needs no inference under Article 226 of the Constitution of India. 20. Under the circumstances, Rule is discharged and the Writ Petition and dismissed with no order as to costs. ( S. J. KATHAWALLA, J.)