W.P.Nos.3859-3936 1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3859 OF 1997 Mahindra Sintered Products Ltd., Pune ... Petitioner v/s 1. Bharatiya Kamgar Sena 2. Mr.S.S.Hirurkar, Member Industrial Court, Mumbai ... Respondents Mr.D.J.Bhanage for the petitioner. Mr.N.P.Deshpande for respondent No.1. ALONG WITH WRIT PETITION NO. 3936 OF 1998 1. Shri RajaramVilas Shendkar 2. Shri Hanumant Sopan More ... Petitioners v/s 1. Mahindra Sintered Products Ltd. 2. Member, Industrial Court, Pune ... Respondents Mr.K.S.Bapat for the petitioners. Mr.D.J.Bhanage for respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 22ND FEBRUARY, 2011 W.P.Nos.3859-3936 2 ORAL JUDGMENT: 1. These two writ petitions have been preferred against the order passed by the Industrial Court, Pune, in Complaint (ULP) Nos.169 of 1993 and 493 of 1993. Writ Petition No. 3859 of 1997 has been filed by the Company. Two workmen who have been denied relief by the Industrial Court have filed Writ Petition No.3936 of 1998. 2. The facts giving rise to the present petition are as follows:- On 17.6.1993, two complaints were filed on behalf of the employees of the Company by the Bharatiya Kamgar Sena, hereinafter referred to as “the Union” under Items 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (in short, the MRTU & PULP Act). It was contended by the Union that the Company had engaged in unfair labour practices by employing the workers, whose names were listed in the annexure to the complaints, as casual or temporary workmen. It was pleaded that the Company had continued to employ these persons for years together as W.P.Nos.3859-3936 3 casual or temporary workmen with a view to deprive them of the status or privileges of permanent employees and thereby the Company had committed an unfair labour practices under Item 6 of Schedule IV of the MRTU & PULP Act. The other contention raised was that the employees had completed 240 days in service and, therefore, were entitled to be made permanent in view of Model Standing Order 4-C. It was contended that since there was a breach of this Standing Order, the Company had indulged in an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. 3. The Company filed its written statement in which it contended that the workers named in the lists annexed to the two complaints were casual workmen who had been employed only for exigencies of work. It was contended that these employees were appointed in order to ensure that the Company established quality systems in accordance with the international norms as per the guidelines and standards laid down for achieving the ISO 9000 Certification. For this purpose, according to the Company, the plant lay-out was required to be rearranged. Installation of new equipment, shifting of machines, replacing equipments and re- arrangement of work material and re-location of service W.P.Nos.3859-3936 4 departments were some of the things to be done. According to the Company it engaged this casual work force intermittently from 1991 up to the month of May, 1993 to achieve the ISO-9000 certification and, therefore, they were not given any employment after those standards were attained in May, 1993. The contention of the Company is that the workmen were “freelancers” and were offered jobs only when they are presented themselves at the gate whenever there was a requirement for casual workers. 4. Several documents were filed before the Industrial Court including the wage registers, weekly attendance-cum- wage register, attendance statements of some of the casual workmen in the preceding 12 months, etc. One of the workmen, whose name was listed in Annexure-A to the complaint, was examined on behalf of the Union. In his cross-examination, he has deposed that the complaint was filed on behalf of 98 workers who had become members of the Union. He has stated that he was working in the Production Department and his work involved “checking of jobs”. He has named some workmen who were doing the same work as he was, including petitioner No.1 in Writ Petition No.3936 of 1998. He has denied that he was working as a casual workman and has asserted that he was a W.P.Nos.3859-3936 5 temporary employee who had been issued an E.S.I. Number and was being paid bonus. He has deposed that he was being granted an annual increment. He has further testified that after the complaint was filed, the Company refused to give him any work and instead recruited new employees for the same work for which he was engaged. He deposed that he had worked for more than 240 days in the preceding 12 months. In his cross-examination, he has accepted that they had joined the Company in 1989. He thereafter joined another Company in 1990 and switched jobs again when he appointed with the Company in March, 1990. The witness has denied that all the manufacturing process required I.T.I. Training and experienced workers. According to him, the workers were graded in three grades depending on their experience and qualifications. He has deposed further that he and the other workmen concerned in complaint were members of the Union and that he was deposing on behalf of the Union and the other workmen concerned in the complaint. 5. The Company examined five witnesses, namely, (i) Manager, Production Planning and Control, (ii) supervisor at Plant No.2, (iii) Manager, (iv) Personnel Officer,and (v) Executive Director of the Company. The deposition of these W.P.Nos.3859-3936 6 witnesses indicates that the Company did employ the persons named in the lists annexed to the complaints. However, instead of labelling them temporary employees, they were appointed as casual workmen. The job description of these workmen has also been mentioned by these witnesses. The personnel officer who recruited the workmen has deposed that none of the workmen listed in the annexure to the complaints had worked in temporary or permanent vacancies. He has further deposed that these persons were casual workmen who were employed for the annual inventory, quarterly inventory, weekly cleaning of floors and premises, grass cutting, pre-monsoon work and watering the plants. In addition, they were engaged for achieving the standards for the I.S.O. 9000 certification. 6. The Industrial Court passed an order in these complaints on 16.12.1996. It was held that the Company had engaged in unfair labour practices under Items 6 and 9 of Schedule IV of the MRTU & PULP Act. 26 workmen were directed to be made permanent by the Industrial Court. Aggrieved by the order, the Company preferred Writ Petition No.569 of 1997 before this Court. On 11.2.1997, the writ petition was allowed and the matter was remanded to the Industrial Court to consider it afresh in the light of the W.P.Nos.3859-3936 7 judgement in the case of Punjabrao Krishi Vidyapeeth v/s General Secretary, Krishi Vidyapeeth Kamgar Union & anr., reported in 1994 II LLN 517. 7. On remand, the Industrial Court has allowed the complaints partly by its order dated 30.6.1997. It has declared that the Company had engaged in unfair labour practices under Items 6 and 9 of Schedule IV of the MRTU & PULP Act. The Company has been directed to make 23 workmen in Complaint (ULP) No.169 of 1993 and 3 workmen in Complaint (ULP) No.493 of 1993, permanent at the lowest grade i.e. as unskilled workmen, from the date of filing of the complaints. 8. Mr.Bhanage, the learned advocate appearing for the Company, submits that the pleadings in the complaints are bereft of any contention that there was an intention on the part of the Company to deprive the workmen of the status of privileges of permanency. He further points out that there is sufficient evidence on record to indicate that the workmen concerned in the complaint were employed only as casual workmen and not temporary workmen. They were employed for a period of one and half years up to May, 1993 in order to comply with the ISO-9000 certification. He submits that the W.P.Nos.3859-3936 8 workmen are not entitled to permanency as they were employed due to exigencies of work and not for any permanent work. The learned advocate submits that the workmen have not completed 240 days in service and, therefore, are not entitled to permanency under the Model Standing Order 4-C. He further submits that the Industrial Court has not appreciated the evidence on record in the light of the observations made by a learned learned Single Judge of this Court (Sirpurkar J as he then was) in the case of Punjabrao Krishi Vidyapeeth v/s General Secretary, Krishi Vidyapeeth Kamgar Union & anr., reported in 1994 II LLN 517. According to him, therefore, the order of the Industrial Court should be set aside as there is no work available with the Company for these persons who are casual workmen. The learned advocate urges that there is no unfair labour practice on the part of the Company either under Item 6 or under Item 9 of Schedule IV of the MRTU and PULP Act. 9. The learned advocate Mr. Deshpande appearing for the Bharatiya Kamgar Sena i.e. the Trade Union representing the workers in Writ Petition No.3859 of 1997 submitted that the petition has been filed to challenge the order of the Industrial Court which has been passed in accordance with law after appreciating the evidence on record. He submits that there is W.P.Nos.3859-3936 9 no need for this Court in its writ jurisdiction under Article 227 of the Constitution of India to disturb the findings recorded by the Industrial Court. According to him, the Industrial Court has, by a well reasoned order held that the intention of the Company was to deprive the workmen of their status of permanency only with a view to deny them the privileges and benefits of permanency. The learned advocate then submits that the relevant evidence which has been appreciated by the Industrial Court by applying the principles of law, need not be set aside as that would lead to miscarriage of justice. He submits that all aspects have been considered by the Industrial Court in its impugned order and, therefore, there is no need to interfere with the order. He then points out that the Industrial Court has held that the Company had not placed any material on record, including the requisition slips, in support of their contention that the workmen involved were casual and not temporary workmen. He further submits that the Industrial Court has found that these workmen were engaged over 2 to 3 years at least and, therefore, it could not be said that they worked for a short period or only intermittently. According to the learned advocate, the requisition slips which were not produced by the Company would have indicated whether the work was available every day for the workmen. The learned advocate W.P.Nos.3859-3936 10 submits that the Industrial Court has sifted the evidence very carefully and has granted relief to only those workmen who were entitled to the same and not to each workman whose name was listed in the annexures to the Complaint. 10. Mr.Bapat, the learned advocate appearing for the petitioners in Writ Petition No.3936 of 1998 submits that both the Petitioners had completed more than 240 days in service during the preceding 12 months and, therefore, they were entitled to permanency. According to him, the work carried out by the workmen was perennial in nature and, therefore, the workmen ought to have been made permanent in service under Model Standing Order 4C. As this Standing Order was not implemented it amounted to an unfair labour practice, urges the learned advocate. He then submits that the Model Standing Orders 4-D requires the Company to maintain a waiting list of workmen. Vacancies which arise in the establishment are to be filled in by calling upon those persons included in the waiting list, depending on their seniority. He points out that Standing Order 4-D stipulates that no other person except those whose names are on the waiting list can be employed in the establishment. According to him, the very fact that there was no seniority list maintained by the Company, would indicate that there was W.P.Nos.3859-3936 11 an intention on the part of the Company to prevent the workmen from getting the status of permanency. He submits that this intention was evident from the fact that the Company has not employed those persons contained on the seniority list but some outsiders which was illegal and contrary to the Model Standing Orders. He, therefore, submits that the Industrial Court could not have made any distinction between the petitioners and the other workmen who had been granted the benefits they were similarly situated. According to him, no reasons have been given by the Industrial Court for refusing to grant any relief to the Petitioners. 11. The Industrial Court has held that there was sufficient evidence on record to indicate that the workmen were employed as temporary employees and not casual workmen. It has been held that the evidence on record indicates that the workers were employed not only for the work which was undertaken for the ISO-9000 certification but also for other types of jobs including in the production unit. In my opinion, the Industrial Court has not committed any error in appreciating the evidence. Unless the Company is able to demonstrate some perversity in the findings of the Industrial Court, there is no need to interfere with those findings in the W.P.Nos.3859-3936 12 writ jurisdiction of this Court. It is well settled that, if a particular view has been taken by the Tribunal or the Industrial Court , this Court should be slow to interfere with the order only because another view was possible, while exercising its jurisdiction under Article 227 of the Constitution of India. 12. Mr. Bhanage however was unable to point out any perversity in the judgement. He was at pains to submit that the evidence has not been weighed properly by the Court. Only one casual workman was examined on behalf of the union, whereas the evidence led on behalf of the Company consisted of the depositions of five responsible officers, harped Mr.Bhanage. He submits that the Industrial Court has erred in relying on the evidence of just one witness examined on behalf of the Union. This submission of Mr. Bhanage is untenable. Merely because one witness is examined by a party before the Court and his adversary leads the evidence of five witnesses, the scales of justice do not tilt towards the party who examines more witnesses. Quantity does not outweigh the quality of evidence. There are discrepancies and contradictions in the statements of the witnesses for the Company. One witness has stated that no record was maintained by his department as to the work W.P.Nos.3859-3936 13 allotted to casual workmen on a particular day. Another witness has stated that the requisition slips were filled in by each department and it was only thereafter that the workers were allotted the work in that particular department, depending on the exigencies. Further more, one of its witness has stated that the casual workmen i.e. the workmen involved in the complaint were employed for the work of the annual inventory, weekly cleaning of floors and premises, washing glasses, pre-monsoon work and watering to the plants. Thus this work is perennial in nature. 13. In my opinion, there is sufficient evidence on record to indicate that the workmen were employed as temporary employees and not as casual workers. There is also material on record to establish the fact that these workmen were employed for over one and half years as temporary employees and, therefore, they would be entitled to relief. 14. Item 6 of Schedule IV reads as follows: “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.” The word used in the item is “years”. However, the legislature in its wisdom has chosen not to define the period. W.P.Nos.3859-3936 14 Any length of time which is more than one year would be governed by this item, provided the workmen are able to establish that they were employed as badlis, casuals or temporaries only with a view to deprive them of the status and wages of permanent employees. The intention to deprive them must be either express or implicit. In the present case, the fact that these workmen were employed not only for the ISO 9000 certification but for other work as well, would indicate that the work was available with the Company on a perennial basis. The description of the work done by these employees mentioned in the deposition of one of the witness for the Company indicates that the work is of a permanent nature. The very fact that these workmen were employed as temporary employees for more than one and half years, despite the work of a permanent nature being available, indicates that the intention of the Company was to deprive them of the status of permanency. In the case of Chief Conservator of Forests & anr. v/s Jagannath Maruti Kondhare, reported in 1996 1 C.L.R. 680, the Supreme Court has held thus - “22. We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get W.P.Nos.3859-3936 15 frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case in as much as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees in as much as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment-pollution- care work of Ahmednagar, whose need is on increase because of increase in pollution. Permanency is thus writ large on the fact of both the types of work. If, even in such projects, persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. (Emphasis supplied). We, therefore, answer the second question also against the appellants.” (Emphasis supplied) 15. Mr. Bhanage was at pains to point out that none of these employees have completed 240 days in service. However, this is not a precondition for assessing whether an W.P.Nos.3859-3936 16 unfair labour practice has been committed under Item 6 of Schedule IV of the Act. As held in the case of Burroughs Welcome (I) Ltd. v/s D.H.Ghosle & ors., reported in 2000 III C.L.R. 264, by a learned Single Judge of this Court, extraneous tests cannot be included in order to ascertain whether there is an unfair labour practice under Item 6 of Schedule IV of the Act. Rendering work for 240 days is not a pre-requisite to establish an unfair labour practice under Item 6 of Schedule IV of the Act. 16. Mr. Bhanage has tried to submit that the judgement in the case of Punjabrao Krishi Vidyapeeth (supra) has not been considered by the Industrial Court in a proper manner. He submitted that it has been held in this judgement that unless there is a deliberate act on the part of the employer with tangible evidence to show that there was an intention to deprive the employees of the permanency status, it would not amount to an unfair labour practice under Item 6 of Schedule IV of the MRTU & PULP Act. 17. I have perused the judgement of the Industrial Court. In my view, the Industrial Court has taken into account the principles of law enunciated in the judgement of the Punjabrao Krishi Vidyapeeth (supra). It has assessed the W.P.Nos.3859-3936 17 evidence in the light of these principles. On the basis of this assessment, it has concluded that the employees had worked on a temporary basis for almost two years although the work of a permanent nature was available. The Industrial Court has observed that the circumstances and the conduct of the Company indicated that the object of employing workmen as temporaries or casuals was to deprive them of their permanent status. The appointment orders which were produced on record by the Union have been considered by the Industrial Court. It has held that these appointment orders do not mention that they had been engaged only for the ISO- 9000 certification or the work similar to that. 18. In my opinion, therefore, there is no need to interfere with this finding of the Industrial Court that there was an intention to deprive them of the permanent status. 19. Further more, Mr. Bapat has submitted, with merit, that the Model Standing Order 4-D having been violated would indicate the intention of the employer to deprive the workmen of permanent status. The Model Standing Order 4- D makes it incumbent on the Company to maintain a list of employees who are engaged as temporary workmen. Such a list must contain particulars with regard to the names and W.P.Nos.3859-3936 18 addresses of the workmen, the nature of work or occupation under which they were employed, the wages paid to them during the employment period, and the dates of termination of their services. The Standing Order further provides that whenever a vacancy arises in the establishment, preference should be given to those on the waiting list on the basis of the aggregate of their services engaged prior to termination. A person whose name is not contained in the waiting list cannot be appointed unless all the persons included in the list have been provided employment. In the present case, admittedly, no such waiting list was maintained in which names of these workmen were included. Had such a list been maintained, the workmen would have been enabled to work for a longer period of time than they have. The fact that they were deprived of this opportunity to work with the Company by engaging “freelancers” indicates that the intention of the Company was to deprive them of the permanent status. 20. As regards Item 9 of Schedule IV, from a perusal of the chart which was filed before the Industrial Court indicating the number of days put in by the employees as maintained by the union and the Company, it appears that none of these employees have actually completed 240 days in service in the W.P.Nos.3859-3936 19 preceding calendar year. Therefore, the Model Standing Order 4-C would not come into play, the pre-condition of completion of 240 days in service not having been fulfilled. In my opinion, the Industrial Court has erred in declaring that there is an unfair labour practice under Item 9 of Schedule IV because the Standing Order 4-C has been violated. There is in fact a violation of Standing Order 4-D. In considering this fact the Industrial Court, though right in its assessment that there is an unfair labour practice under Item 9, is not correct when it concludes that there is a breach of Standing Order 4-C. Even in respect of the petitioners in Writ Petition No.3936 of 1998 it appears that neither of them have completed 240 days in service. Therefore, it is obvious that there is no unfair labour practice because of