1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5187 OF 1996 Mr.Dudhanath Bihari Yadav ... Petitioner v/s 1. M/s.New City Textile Mills 2. Mr.T.N.Mantri, Member, Industrial Court, Bombay. ... Respondents Mr.S.N.Deshpande for the petitioner. Mrs. Meena H. Doshi for respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 29TH OCTOBER, 2010 ORAL JUDGMENT: 1. The petitioner was an employee of the 1st respondent mill. He joined service as a Sweeper on 27.3.1992. Thereafter he was promoted from time to time till he reached the post of a Foreman on 1.1.1993. On 20.11.1994 the petitioner was informed that he would be retired under the Model Standing Orders 26(A) applicable to the technical and supervisory staff. Being aggrieved by the letter issued to him, the petitioner filed Complaint (ULP) No.1241 of 1994 2 and also sought interim relief. That application was rejected. The petitioner preferred Writ Petition No.230 of 1995. Although the writ petition was rejected, the respondent No.1 was directed to pay all the legal dues of the petitioner and the petitioner was permitted to accept the same without prejudice to his rights and contentions in the complaint. An L.P.A. was preferred by the petitioner being Appeal No.532 of 1995. That appeal was also dismissed on 17.7.1995 with a direction to the Industrial Court to expedite the complaint. 2. Evidence was recorded by the Industrial Court. Respondent No.1 had examined its Administrative Manager. By the impugned order dated 19.7.1996, the Industrial Court dismissed the complaint. On the basis of the evidence on record, the Industrial Court held that the petitioner was not employed as an Operative but a foreman, and, therefore, the Model Standing Orders applicable to the technical and supervisory staff govern his services. The Industrial Court further held that the petitioner being a Foreman was certainly employed in a technical category though he may not have been a supervisor. He had received the benefits payable to staff of this category under various settlements. These benefits were not payable to the Operatives, observed the Industrial Court. Consequently, it was held that Model Standing Order 20(A), and not 26(A), was applicable. 3 3. Mr.Deshpande appearing for the petitioner urged that the Standing Orders which were applicable to the petitioner were those which govern the services of the employees who were not employed in the technical or supervisory cadre. He submitted that the Certified Standing Orders for Operatives would be applicable to the post of a Foreman which the petitioner was holding. The learned advocate pointed out that the evidence on record indicated that the petitioner looked after machines in the Blow Room Carding Department and, therefore, was an Overseer. In the alternative, he submitted that even if the contention of the respondent that the petitioner was a member of the technical and supervisory staff is to be accepted, he must be considered as an Overseer as that is the work that a supervisor is expected to perform. He submits that the petitioner being an Overseer, the Standing Orders applicable to the employees other than technical and supervisory staff, would govern his service conditions. By relying on the judgments in the case of Bombay Dyeing & Manufacturing Co. Ltd. v/s R.A.Bidoo & ors., reported in 1989 II C.L.R. 248 and the judgment in the case of Guest Keen Williams Ltd. v/s Asstt. Labour Commissioner, Govt. of West Bengal & ors., reported in 1987 I C.L.R. 62, Mr.Deshpande submits that, even though the benefits of certain settlements for Operatives have been 4 extended to him, the petitioner cannot be deprived of his right of being retired at the age of 63. He submits that, considering these judgments it cannot be said that the petitioner was doing technical or supervisory work. 4. Mrs. Doshi appearing for respondent No.1 submitted that the petitioner has not described the work that he performed, in his complaint. According to her, therefore, there are no pleadings to substantiate the case of the petitioner that he was working as an Operative and not as a technical or supervisory staff. She further submitted that the petitioner was well aware that he was classified as a Foreman which post falls within the category of technical staff. No dispute regarding the petitioner’s classification had been raised at any point of time. She therefore submitted that it must be accepted that the petitioner is governed by the Standing Orders applicable to the technical and supervisory staff. She also drew my attention to the fact that there was no evidence on record to substantiate the case of the petitioner. Having accepted the benefits of the settlements applicable to technical and supervisory staff, the petitioner cannot be permitted to contend, now that he is being retired, that he was an Operative and not governed by the Standing Orders applicable to the technical and supervisory staff. 5 5. The short issue in this petition is whether a Foreman can be considered to be an Operative and a non-technical or non-supervisory member of the staff. The Standing Orders applicable to technical and supervisory staff are different from those which govern Operatives. 6. In his evidence the petitioner has asserted that he was not performing any supervisory work. He has however conceded that he was employed as a Foreman. He has also stated that the work performed by him was of repairing machines which he was performing even before he became a Foreman. In his cross-examination he has stated that he did not remember as to whether he was being paid benefits available to the technical/supervisory cadre. 7. The Model Standing Orders for employees other than Operatives in Cotton Textile Mills are applicable to all employees of the undertaking who do any work other than manual work. The term “Operatives” is defined in the Certified Standing Orders for Operatives in Cotton Textile Mills, as follows:- “2(a), “Operatives” means all work-people, male or female, employed in the mill or in the mill premises, whose names and ticket numbers are included in the departmental musters, and includes, over-seers, Jobbers, Muccadams, Watch & Ward Staff, Motor Vehicle Staff and Cartmen.” 6 8. The Standing Orders applicable to the technical and supervisory staff have also been framed under the Bombay Industrial Relations Act. A classification of the employees in the Bombay Cotton Textile Mills was declared by the Industrial Court in Reference (IC) No.91 of 1954 and Misc. Application (IC) No.6 of 1961 in terms of the agreement arrived at between Rashtriya Mill Mazdoor Sangh, the representative union of the employees of the Cotton Textile Industry and the Mill Owners’ Association. Under the classification agreed, technical and supervisory staff including the Assistant Engineers are to be classified in the categories of (i) Assistant Masters, (b) Departmental Assistants, (c) Departmental Assistants who are Technical and Engineering Graduates, (d) Foremen and Assistant Foremen and (e) Apprentices. No new category or new grade or scale not envisaged by the agreement can be created by the management. Therefore, under the agreement and in view of the awards, Foremen are to be treated as technical and supervisory staff. The submission of Mr.Deshpande that the petitioner is performing manual work of an Overseer and is entitled to the benefits of the Standing Orders applicable to Operatives is without merit. A Foreman is specifically included in the category of technical and supervisory staff. Therefore, merely the job profile of the petitioner includes supervision of machines, he would not 7 necessarily be an Overseer who is an “Operative”. 9. The Division Bench in the case of Vinayak Eknath Dadape v/s The National Textile Corporation (S.M.) Ltd. & ors., in Appeal (L) No.136 of 2000, has considered the same issue as is raised in the present petition. The Division Bench has held, after considering the evidence on record and the provisions of the Certified Standing Orders as well as the Model Standing Orders, that the submissions made by Mr.Deshpande in that case which are similar to the submissions made by him in the present petition were fallacious and farfetched. The Division Bench has held as follows:- 7. We have gone through the Certified as well as Model Standing Orders and the contentions of the appellant that he ought to be treated as an operative are fallacious and farfetched. The evidence brought on record by the employer showed that he held the post of Senior Technical Assistant right from the day of his appointment, he enjoyed the service conditions as applicable to the said post, namely, pay-scale, D.A., H.R.A., City Compensation Allowance, Conveyance Allowance, Acting Allowance and Medical Allowance etc. The operative category of the employees are paid D.A. at a rate different than it is available to the technical and supervisory staff. Similarly, the payment of additional D.A. is also on different scales. The operative category does not have the pay-scales as are available to the Senior Technical Assistant. The operatives are also not entitled for the benefit of City Compensatory Allowance. The term “overseer” cannot, having regard to the evidence placed before the Industrial Court, encompass within its fold, the post of Senior Technical Assistant. It is clear that he was offered the post of Senior Technical Assistant having regard to his technical qualifications and the experience and 8 till he was issued the letter dated 15/12/1993 informing him that he would retire on attaining the age of 60 years, the appellant, at no point of time, had contended that he was not a member of the Technical and Supervisory staff but indeed he was an operative. When the complainant approached the Industrial Court, the onus was mainly on him to prove that he was an operative and he was not a member of the Technical and Supervisory staff. On the contrary, the employer, by adducing the evidence, documentary and oral, proved that the operative category was different than the Technical and Supervisor category, the benefits, monetary as well as other perks were different for both these categories, the nature of duty was different and, in fact, the operatives were working under the Technical and Supervisory staff.” 10. The Division Bench has confirmed the judgment of a learned Single Judge of this Court in the case of National Textile Corporation (North Maharashtra) v/s S.M.Tambe, reported in 2000 (2) C.L.R. 20. In my view, the judgment of the Division Bench applies squarely to the facts in the present case. Mr.Deshpande has been unable to point out any difference in the facts and circumstances in the present case and the matter before the appeal Court. 11. The other judgments cited by Mr. Deshpande are not relevant or applicable to the facts in the present case. 12. In these circumstances, in my view, the judgment of the Industrial Court must be upheld. 13. Accordingly, the writ petition stands dismissed. Rule discharged. No order as to costs.