WP284108040308.sxw 1/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 995 OF 2008 Model Mills, Nagpur and another.:: APPELLANT -: Versus :- Rajan Vinayak Sagdeo and 17 others. :: RESPONDENTS -------------------------------------------------------------------------------------------------------- Mr. R. B. Puranik, Advocate for the appellants. Mr. S.A. Kalbandhe, Advocate for respondent Nos. 1 to 15 & 17. --------------------------------------------------------------------------------------------------------- CORAM: B. R. GAVAI, J. DATED: 04TH MARCH, 2008. P.C. : 1. By way of the present petition, the petitioners challenge order dated 01st September, 2007 vide which the complaint filed by respondents-employees has been allowed. By way of present petition, though purportedly filed under Articles 226 and 227 of the Constitution of India, from the nature of its claim, it is clear that the petitioners have invoked jurisdiction of this Court under Article 227 of the Constitution. 2. The petitioners challenge the order passed by the learned WP284108040308.sxw 2/5 Industrial Court dated 01/9/2007 in complaint (ULP) No. 272 of 2004 by which the complaint filed by the complainants/ respondents-employees has been allowed. The complainants had filed complaint contending that they were entitled for encashment of sick leave subject to maximum of 240 days in credit of their leave account on the date of their retirement i.e. on 23/12/2003. The said complainant has been allowed by the Industrial Court, hence, the present appeal. 3. Advocate Shri Puranik for the petitioners submits that the learned Industrial Court has grossly erred in ignoring Clause-(4) of the agreement entered between the petitioners and the representatives of the employees' union. He submits that apart from that clause, clause-32 of the Standing Order also permits an agreement to have an overriding effect over the Standing Order. He, therefore, submits that the order impugned suffers from infirmity warranting interference by this Court. 4. Advocate Shri Kalbande appearing for the respondents- employees supports the impugned order. He submits that in view of the Standing Order, employees are entitled to get benefit of WP284108040308.sxw 3/5 encashment of sick leave to their credit at the time of their retirement. He further submits that the learned Industrial Court has committed no error in passing the order impugned and, therefore, the petition is liable to be dismissed. 5. Clause-4 of the agreement referred to above runs as under: “ SICK LEAVE TO CLERKS NOT COVERED BY THE ESI ACT : (4) That the Sick Leave to Clerks not covered by the E.S.I. Act. shall be continued to be allowed as per Order No. 14 of Standing Orders of Clerks, 1946.” Relying on the above Clause, learned Counsel for the petitioners submits that the sick leave is not available to the Clerks covered by E.S.I. Act. 6. The learned Industrial Court upon perusal of E.S.I. Act has found that there is nothing in the E.S.I. Act which provided for benefit on account of sick leave. It can be seen from the said agreement that it has been agreed that the sick leave would be continued to be allowed as per Order No. 14 of Standing Orders of Clerks, 1946. The rider is that it shall be not available to those Clerks who are covered by the E.S.I. Act. However, applying rule of WP284108040308.sxw 4/5 harmonious construction, said clause would have to be interpreted to mean that the sick leave would not be continued to the employees to whom benefit of sick leave is applicable under E.S.I. Act. The Industrial Court has rightly found that since the E.S.I. Act does not provide for sick leave. Therefore, reliance placed by the petitioners on the said clause is oft no use to support their contentions. 7. Learned Industrial Court has rightly held that Certified Standing Order constitute statutory term of employment between the complainant and the respondents-management and they are binding upon the petitioners. Insofar as the reliance on Clause 32 is concerned, it would be clear from its perusal that nothing contained in the Certified Standing Order. 8. It could thus clearly be seen that the provisions of Standing order would not act to the prejudice of any right under contract of service, custom or usage or agreement, etc. that would be applicable to the establishment. In the present case the petitioners have attempted to deprive the right available to their employees under clause 14(1) of the Certified Standing Order. Had WP284108040308.sxw 5/5 the agreement provided some better rights to the employees than Standing Orders, then the arguments advanced by the learned Counsel for the petitioners would have been acceptable. I do not find Clause 32 of the Standing Order would permit the petitioners to deprive the rights of the employees as available as per Clause 14 of the Standing Orders. 9. The interference by this Court in its extra ordinary jurisdiction under Article 227 would be warranted only when the finding or approach of the learned Industrial Court is found to be perverse. No such perversity could be found and hence the writ petition stands dismissed. No costs. JUDGE wwl