( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 307 OF 1993 Ahmednagar Zilla Parishad, Kamgar Union, through its General Secretary Shri Arjun s/o Masaji Surve, “Shramik”, Tilakroad, Ahmednagar. PETITIONER VERSUS 1. Ahmednagar Zilla Parishad, Ahmednagar, through its Chief Officer. 2. The State of Maharashtra RESPONDENTS …. Mr. V.D. Sapkal, advocate for the petitioner. Mr. S.T. Shelke, advocate for the respondent No. 1. Mr. N.H. Borade, AGP for the respondent No. 2/State. …. [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 9th June, 2010] [DATE OF JUDGEMENT PRONOUNCED : 23rd June, 2010] JUDGEMENT : 1. By this petition, the petitioner challenges a part of judgement and order dated 8th June, 1989, rendered by the Industrial Court, Ahmednagar, in complaint (ULP) No. 288/1986. ( 2 ) 2. The petitioner is a registered Union. The petitioner filed complaint (ULP) No. 288/1986 in the Industrial Court, Ahmednagar, alleging that 31 employees, who were its members, were subjected to unfair labour practices by the respondent No. 1 – employer. The petitioner alleged that the respondent No. 1 committed unfair labour practices under Items No. 5, 6, 9 and 10 of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, “the MRTU & PULP Act”). The grievance of the petitioner was that the respondent No. 1 did not give benefit of permanency to the 31 workmen though they were continuously working as casual or temporary workers for several years. They were deprived of their status as permanent employees and monetary benefits which were payable to them. The employees were required to operate hand-pumps and electric pumps installed on bore-wells in the villages and Ahmednagar city. They were required to maintain the hand-pumps and the electric pumps. The work was available all along the period, yet, the 31 workmen were being given temporary appointments. The Industrial Court allowed the complaint application and declared that the respondent No. 1 committed unfair labour practices under Item 6 of Schedule-IV of the MRTU & PULP Act. The Industrial Court directed the respondent No. 1 that all ( 3 ) the 31 employees shall be given benefit of permanency w.e.f. 19th March, 1986 i.e. the date of filing of the complaint. 3. The petitioner challenges stipulation of date as 19th March, 1986 for grant of the benefit of permanency alongwith other incidental benefits arising out of confirmation of the workmen in the service. According to the petitioner, as and when each of the workmen completed 240 days, the status of permanent employee could be granted to him. The petitioner urged that after completion of one (1) year of the service, the enlisted 31 workmen may be granted benefit of permanency, the salary, annual increments, etc. Hence, the petition. 4. Heard learned counsel for the parties. 5. Question involved in this petition is : “Whether the workmen are entitled to benefit of permanency after completion of one (1) year of the service and as such, the Industrial Court ought to have granted such relief from date of completion of one (1) year's service by each of the workmen shown under the list of 31 workmen ?” ( 4 ) 6. The Industrial Court held that the workmen were subjected to unfair labour practice under Item 6 of Schedule- IV of the MRTU & PULP Act and were, therefore, legally entitled to claim status as permanent employees alongwith benefit of salaries and other service conditions. The only reason recorded by the learned Member of the Industrial Court is that the permanency should be granted on the posts on which the workmen were working, from date of their complaint application. The learned Member observed that the scheme for installation of hand-pumps and electric pumps on bore-wells was prepared in 1978 in accordance with the Government policy. It is also observed that the respondent No. 1 – Ahmednagar Zilla Parishad was directed to make budgetary provisions for running of such schemes. The learned Member of the Industrial Court further observed : “When there were clear-cut directions issued by the Government of Maharashtra, the Zilla Parishad ought to have taken proper and immediate steps to protect interest of all the workers and to give proper service to the villagers. The Zilla Parishad has dragged this litigation unnecessarily.” Needless to say, the respondent No. 1 – Ahmednagar Zilla ( 5 ) Parishad protracted grant of legitimate claims of the 31 workmen. 7. Mr. V.D. Sapkal, learned counsel for the petitioner, would submit that though the workmen were governed by any particular provision of the Model Standing Orders, yet, the purport of the Industrial Employment (Standing Orders) Act, 1946 can be considered. He invited my attention to “Pune Municipal Corporation, Pune and others v. Ashok Sakharam Jadhav and others” 2002 (2) Bom.C.R. 47 and “Zilla Parishad, Ahmadnagar & another v. Ramesh Sadashiv Dukre & others” 2001 (Supp. 2) Bom.C.R. 480. In case of “Pune Municipal Corporation, Pune and others (supra), a Single Bench of this Court held that the Industrial Employment (Standing Orders) Act, 1946 will prevail unless there is a notification under section 13-B of the Industrial Employment Act. The Single Bench observed : “However, in my view, since the respondent workmen have all completed 240 days in service, they are entitled to permanency immediately on completion of 240 days of service.” In “Zilla Parishad, Ahmadnagar & another” (supra), another ( 6 ) Single Bench of this Court held : “The principle underlining the said Standing Orders can also be applied in the present case. The Legislature has contemplated that none who has put in 240 days uninterrupted continuous service should be continued as badli, casual or temporary. Applying this principle which enhances the cause of justice, the respondents drivers must succeed.” The view taken by both the Single Benches is that after completion of 240 days in the calender year, after joining of the service as a workman, the benefit of permanency can be granted to the workman. 8. Mr. S.T. Shelke, learned counsel appearing for the respondent No.1, submitted that there was enormous delay in filing of the complaint application and the petitioner could not have claimed benefit of any Standing Order because there is no Standing Order issued in relation to the establishment of the respondent No. 1 – Ahmednagar Zilla Parishad. It is not in dispute that there is no Standing Order applicable to the employees of the respondent No.1. Clinching question is whether even in absence of Standing Orders, under the ( 7 ) provisions of the Industrial Employment (Standing Orders) Act, 1946, the workmen are entitled to claim benefit of permanency after completion of one (1) year's service. If it is held that they are entitled to claim such benefit of permanency after completing one (1) year's continuous service, then the impugned judgement will have to be modified. 9. Mr. Shelke placed reliance on “Burroughs Welcome (I) Ltd., Mumbai v. D.H. Ghosle and others” 2001 (2) Mh. L.J. 54. A Single Bench of this Court observed that the completion of 240 days work by worker is not a sine qua non of a valid claim under Item 6 of Schedule-IV of the MRTU & PULP Act. It is observed that Item 6 has no reference at all to the requirement of 240 days' service. At the same time, the Single Bench held that in every case in which there is an allegation of violation of Item 6 of Schedule-IV of the MRTU & PULP Act, the Court must take a realistic view on appraisal of the circumstances on the record. In the present case, the grant of benefit of permanency of the workmen is never challenged by the respondent No. 1. The judgement of the Industrial Court attained finality to the extent of such part which is not challenged by either of the parties. The only part, which is challenged, is regarding fixation of date from which the ( 8 ) benefits have been granted by the Industrial Court. The petitioner alleged that the dates of granting such benefits ought to be from completion of one (1) year by the workmen instead of the date of their complaint. 10. In “Gangadhar Balgopal Nair v. Voltas Limited & another” 2007 (1) Bom. C.R. 1,a full Bench of this Court held : “Sub-section (2) was introduced by the Industrial Employment (Standing Orders) Maharashtra Amendment Act, 1974 published in the Gazette on 21.11.1974. This amendment was brought into force on 2.10.1977. Item 10C was also introduced in the Schedule after item 10-B by the same amending Act. Item 10-C reads as follows :- “10-C. Employment or re-employment of probationers or badlis or temporary or casual workmen, and their conditions of service.” In other words, by sub-section (2) of section 2-A, Model Standing Orders became applicable in respect of probationers or badlis or temporary or casual workmen even where there were certified standing orders under the proviso to sub-section (1) unless Model Standing Orders were considered less advantageous to the workmen by the Certifying Officer.” “.... Therefore, where in an industrial ( 9 ) establishment, there are no standing orders finally certified before the Amendment Act of 1957, the Model Standing Orders apply proprio vigore to such an industrial establishment.” Considering the view taken by the Full Bench, it will have to be said that the 31 workmen were entitled to claim status as permanent employees after one (1) year of the service. For, within that first year of service, they had completed 240 days of continuous work. Their continuous service for 240 days made them eligible to claim benefits of permanency. The fact situation in “Burroughs Welcome (I) Ltd., Mumbai” (supra) is altogether on different footings. The Single Bench noticed that the Industrial Court had appli4ed a wrong test in law in interpreting the entry to an unfair labour practice, though completion of 240 days by itself was not referable to unfair labour practice shown under Item 6 of Schedule-IV of the MRTU & PULP Act. As noticed above, another Single Bench in case of “Pune Municipal Corporation, Pune & others” (supra), has taken a view that on completion of 240 days in service, the workmen are entitled to permanency immediately. 11. Taking overall view of the matter, it is amply clear that the Industrial Court did not assign any reasons for ( 10 ) fixing date as the date of filing of the complaint application for the grant of benefit of permanency to the workmen. The Industrial Court ought to have granted the relief of permanency from the date of completion of one (1) year of service by each of the workmen. Hence, the petition is allowed. The impugned judgement and order of the Industrial Court is modified. Instead of 19th March, 1986, the 31 employees named in Schedule-A attached to the complaint shall be granted status as permanent employees from the date of completion of one (1) year of service by each of them, alongwith the incidental benefits including annual increments, seniority, etc. The Rule is made absolute accordingly. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp307-93