1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.3079 of 1996 1. Shri Patilbuwa Kisanrao Tapkir 2. Shri Anant Sitaram Sandbor 3. Shri Balu Kisan Vahile 4. Shri Baban Ramchandra Gaikwad 5. Shri Shyam Damodar Bothare 6. Shri Ramchandra Chandu Gaikwad 7. Shri Pralhad Bhiku Kamble 8. Shri Sunil Purushottam Deshpande 9. Khema Dagadu Shelkande 10. Shri Bharat Tathappa Chandanshive 11. Shri Dasu Bansi Jawale 12. Shri Shaukat Mohamad Mulani 13. Shri Malesh Padmanna Khashtriya 14. Shri Maruti Baburao Vahile 15. Shri Prabhakar Narayan Kale 16. Shri Laxman Tatya Pawar 17. Shri Manohar Keshaw Salunkhe 18. Shri Balu Mahadeo Alate 19. Shri Madhukar Sambhaji Kamble 20. Shri Manik Nana Sonawane 21. Shri Sambhaji Ramu Patil 22. Smt.Lata Kaluram Jithe as widow & legal heir of Shri 2 Kaluram Baburao Jithe the deceased workman 23. Santosh Kaluram Jithe through their natural guardian Smt.Lata Kaluram Jithe as minor son & legal heir of Shri Kaluram Baburao Jithe, the deceased workman. 24. Satish Kaluram Jithe through their natural guardian Smt.Lata Kaluram Jithe as minor son & legal heir of Shri Kaluram Baburao Jithe, the deceased workman. 25. Sanjay Kaluram Jithe through their natural guardian Smt.Lata Kaluram Jithe as minor son & legal heir of Shri Kaluram Baburao Jithe, the deceased workman. 26. Shri Ajit Pandurang Datir 27. Shri Maruti Yashwant Yelwande 28. Shri Balsaheb Baburao Jithe 29. Pralhad Nivrutti Vairat 30. Shri Tukaram Prabhu Jadhav 31. Shri Ramdas Gajanan Landge 32. Shri Balu Laxman Kadu 33. Shri Dattatraya Rajaram Wagh 34. Shri Laxman Namdeo Gaware 35. Shri Xavier Anthony D’Souza 36. Shri Namdeo Pundlik Pingle 37. Shri Riyaz Yusuf Khan Pathan 38. Shri Shyam Sudhakar Sawant 3 39. Shri Ashok V. Shinde 40. Shri Madhukar Hanumant Bhalekar 41. Shri Balu Bhausaheb More 42. Shri Mohan Bapu Sonawane 43. Shri Sanjay Bhanudas Bhosale 44. Shri Shaikh Rafi Noormohammad 45. Shri Ramesh Anand Shirodkar 46. Shri Ramdas Dagdu Dhore 47. Shri Dilip Nivrutti Jamdar 48. Shri Dilip Namdeo Pansare 49. Shri Damodhar Laxman Manere 50. Shri Murlidhar Shankar Dhame 51. Shri Balasaheb Ramrao Patil 52. Shri Subhash Tukaram Sonawane 53. Shri Manohar Ramchandra Keswad 54. Shri Dyneshwar Baburao Dalvi 55. Shri Pradeep Laxman Naik 56. Shri Mohan Pandurang Bharekar 57. Shri Raju Lingappa Bothre 58. Shri Raju Namdeo Balodkar 59. Shri Hambir Shankar Tanpure 60. Shri Hanumant Pandharinath Bhoir 61. Shri Ashok Keshav Bhosale 62. Shri Pralhad Rajaram Kadam 63. Shri Nitin Rangnath Kshatriya Petitioners 4 Address of Petitioners nos.1 to 63: C/o. Ashwini Printers, 310, Aher Vasti, Walhekarwadi, Chinchwad, Pune 411 033. Vs. 1. Mather & Platt (I) Ltd. Chinchwad, Pune 411 019. 2. The General Manager, Mather & Platt (I) Ltd., Chinchwad, Pune 411 019. 3. Shri S.S.Hirurkar, Member, Industrial Court, Pune, having his office at P.M.T. Building, Swar Gate, Pune 411 040. Respondents WITH WRIT PETITION NO. 3267 OF 1996 Mr.Chandrakant Balkrishna Mali C/o. Ashwini Printers, 310, Aher Vasti, Walhekarwadi, Chinchwad, Pune 411 033. Vs. 1. Mather & Platt (I) Ltd. Chinchwad, Pune 411 019. 2. The General Manager, Mather & Platt (I) Ltd., Chinchwad, Pune 411 019. 3. Shri S.S.Hirurkar, Member, Industrial Court, Pune, having his office at P.M.T. Building, Swar Gate, Pune 411 040. Respondents 5 WITH WRIT PETITION NO.3734 OF 1996 Ramrao Sopanrao Jadhav C/o.Balaji Mudranalaya, Datta Kripa Building, Dattawadi,Akurdi, Pune 411 035. Petitioner Vs. 1. Mather & Platt (I) Ltd. Chinchwad, Pune 411 019. 2. Shri S.S.Hirurkar, Member, Industrial Court, Pune, having his office at Pune. Respondents Mr.Haresh Motwani for petitioners in Writ Petition Nos. 3079 and 3267 of 1996. Mr.N.M.Ganguli for petitioner in Writ Petition No. 3734 of 1996. Mr.C.U. Singh with Mr.R.N. Salgaonkar i/b M/s. Salgaonkar & Co. for Respondent No.1 in all the petitions. CORAM: B.H.MARLAPALLE,J. July 29, 2005. ORAL JUDGMENT: 1. These writ petitions arise from the common judgment of the Industrial Court at Pune rendered on 6 13-3-1996 in a group of complaints filed by the workmen claiming the benefit of permanency and consequential reliefs. A group of ten workmen approached the Industrial Court at the first instance by filing Complaints (ULP) Nos.511 to 519 and 527 of 1990 whereas the second group of 50 workmen approached the Industrial Court in the year 1992 while the first complaints were already pending and three complaints were filed in the year 1994. As the reliefs sought were the same in all these complaints, they were heard and decided together by the impugned common judgment and the learned Member of the Industrial Court was pleased to dismiss all these complaints which were filed under Items 5, 6, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the State Act"). 2. It appears that the respondent-company was engaging these workmen as helpers to the machine operators or as helpers in the stores section and other supportive services to the manufacturing activities right from the year 1981 onwards. Some of these helpers had completed more than 240 days of 7 service in one year but the respondent-company had not considered their claim for permanency. They started agitating through the union or unions representing the permanent employees, the issue of their permanency on the basis that they were employed for doing the same job which was performed by the helpers on the company’s roll as permanent employees. Some of them were absorbed in permanent service in the years 1986 and 1988 at the discretion and choice of the respondent management. In the year 1988 the permanent workmen of the respondent-management were being represented by four different trade unions and all these unions had submitted a common charter of demands on 26-12-1988 to the management for revision in service conditions of the permanent workmen. In the said charter of demands, these unions had also added demand no.49 for granting permanency to the helpers who were termed as "casuals" by the respondent all along and, therefore, they were popularly called as casual workers. While these demands were pending for negotiations, the union by name Mather & Platt Employees Union came to be registered as a recognised union under the State Act pursuant to the order passed by the Industrial Court at Pune on 22-2-1989 and this recognised union 8 adopted the earlier charter of demands submitted on 26-12-1988 jointly by all the four different unions. The negotiations on the said charter of demands were continued resulting in a tri-partite settlement between the management and recognised union before the conciliation officer on 6-10-1989 and in the said settlement demand no.49 came to be dropped in terms of clause 56 which reads as under: "This demand is being discussed separately and hence not pressed in this Settlement." . The management accordingly continued dialogue in respect of the issues which were not covered by the tri-partite settlement dated 6-10-1989 and also in respect of the charter of demands submitted by the management. These negotiations culminated in a bi-partite settlement between the management and the recognised union signed on the same day i.e. 6-10-1989. The issues covered by this bi-lateral settlement are bonus, increasing production, canteen, transfer from one factory to another, discipline, employment of some persons as casual employees and their basic wages as well as their dearness allowance etc. As the demand of permanency of the so called 9 casual workmen was dropped, ten of them approached the Industrial Court in the first round and the remaining about 53 went to the Industrial Court in the second round. 3. The complainants had claimed before the Industrial Court that they were being continued as casuals or temporaries for years together by the management with an object of depriving them the status and privileges of permanent employees, one set of helpers who were doing the same work as the complainants, were granted the benefits of the tri-partite settlement on 6-10-1989 and the complainants were refused the said benefit and these acts of the management amounted to unfair labour practice within the meaning of items 6 and 5 of Schedule IV of the State Act respectively. It was further alleged that the Model Standing Orders as framed by the State Government under the Industrial Employment (Standing Orders) Act, 1946 were applicable to the respondent, and the benefits of permanency in terms of clause 4-C of the Model Standing Orders as applicable to the workmen doing manual or technical work were being denied to the complainants even though they had completed 240 days 10 of service each year in most of the years. Thus failure to comply with the requirements of Clause 4-C of the Model Standing Orders amounted to an act of unfair labour practice under Item 9 of Schedule IV of the State Act. Though the complainants had also alleged that there was an unfair labour practice within the meaning of item 10 of Schedule IV of the State Act, the averments set out in the complaint did not indicate any material to prima facie show that any of the complainants were subjected to acts of force or violence as and when they had approached to the respondents claiming their right of permanency and even in the evidence that was placed before the Industrial Court. It is clear that the complaint under item 10 was not pressed. The Industrial Court proceeded to examine the case of alleged unfair labour practice under Items 5, 6, and 9 of Schedule IV of the State Act. Though the complainants had invoked three different items of Schedule IV of the State Act, the benefit sought was that of permanency and consequential reliefs. The Industrial Court held that there was no material in support of the allegation of unfair labour practice under Item 5 and for the relief of permanency claimed either under Item 6 or Item 9 of Schedule IV, the individual 11 complaints were not tenable as there was a recognised union representing the workmen of the respondent management at the relevant time when the complaints were filed and it being the exclusive right of such recognised union to move a complaint of unfair labour practice seeking the benefits of permanency, the individual complaints could not be entertained. 4. Though individual complaints were filed, the averments made in all these complaints were verbatim the same. Clauses 3(b) to 3(d) of the complaint set out the averments regarding the unfair labour practice engaged in allegedly by the management under Items 5, 6 and 9 of Schedule IV of the Act respectively. The respondent-management filed its written statement and opposed the complaints on the preliminary point of maintainability as upheld by the Industrial Court and also on merits. It was contended that none of the complainants had completed 240 days of service in any year, they were not being employed in duties which were of permanent nature or were available continuously and in any case in view of the settlement signed with the recognised union the demand of permanency could not be adjudicated by the Industrial Court as the said demand was dropped 12 by the recognised union in its wisdom of collective bargaining and in the larger interests of both the parties. 5. Mr.Motwani and Mr.Ganguli, the learned counsel for the petitioners - complainants while assailing the reasoning recorded by the Industrial Court in support of the impugned decision submitted that the Industrial Court fell in manifest errors on the point of maintainability of complaints and also by refusing to examine the complaint of unfair labour practice under Item 9 of Schedule IV of the Act. They submitted that even if it was legally presumed that the complaint under Item 6 of Schedule IV filed by the individual workman was not maintainable, it was necessary for the Industrial Court to examine the evidence so as to consider the case of unfair labour practice under Item 9 of Schedule IV of the State Act and it was not permissible for the Industrial Court to decline to do so only on the ground that the relief of permanency is covered by Item 6 of the same Schedule which could be invoked only by a recognised union and, therefore, the complaint for the said benefit of permanency filed under Item 9 could not be entertained. The learned counsel also submitted that 13 the evidence which was placed on record through the officer from the Employees State Insurance Corporation at Pune could not have been discarded even though these documents were not exhibited. Item Item Item 5 of Schedule IV 5 of Schedule IV 5 of Schedule IV 6. Let us examine the correctness of the impugned judgment and order itemwise. Item 5 of Schedule IV reads as under: "To show favouritism or partiality to one set of workers, regardless of merits." . Mr.Singh, the learned counsel for the management pointed out that on 6-10-1989 two different settlements came to be signed. The first settlement was under Section 12(3) read with Section 18(3) of the Industrial Disputes Act, 1947 ("the Act" for short) and the second settlement was under Section 2(p) read with Section 18(1) of the Industrial Disputes Act read with Rule 62 of the Industrial Disputes (Bombay) Rule, 1957 ("bi-partite settlement" for short). The tri-partite settlement stated in clause 2 that it would not be applicable to 14 the casual workmen, substitute workmen, trainees, government apprentices as well as contract labour in addition to the company officers. Clause 56 of the said settlement pertaining to demand no.49 has been reproduced hereinabove and pursuant to the same the union and the management discussed the demand regarding absorption of casual / temporary workmen in permanent service and signed the bi-partite settlement. Clause 1 of the bi-partite settlement reads as under: "Application Application Application :- This settlement will cover all the workmen of the Company employed at Unit No.1 at Chinchwad and Unit No.2 at Akurdi except casual workmen, substitute workmen, trainees, government apprentices and contract labour unless otherwise specified..." Clauses 12 and 13 of the said bi-partite settlement read as under: "12. 12. 12. Basic Wages & Dearness Allowance of a Basic Wages & Dearness Allowance of a Basic Wages & Dearness Allowance of a Casual Casual Casual Workman :- Workman :- Workman :- With effect from 24.01.1989, a casual workman will be paid a daily basic wages of Rs.15/-. In addition to this, he will also be entitled to a daily dearness allowance including additional dearness allowance which is payable to a permanent daily rated workman drawing basic wages of Rs.15/- per day." 15 "13. 13. 13. Benefit of Provident Fund for Casual Benefit of Provident Fund for Casual Benefit of Provident Fund for Casual Workmen Workmen Workmen :- :- :- The Company having agreed at the instance of workmen’s representatives to extend the benefit of provident fund to its casual workmen, the said casual workmen have now been covered by the Employees Provident Fund and Miscellaneous Provisions Act, 1952, and the scheme framed thereunder, with effect from 1.8.1989." 7. It was submitted by Mr.Singh, the learned counsel for the management that when the casual workmen were being paid the benefits strictly as per the terms of either the bi-partite settlement or tri-partite settlement, there cannot be a case of unfair labour practice within the meaning of Item 5 of Schedule IV of the Act. The complainants had agitated before the Industrial Court that the nature of their duties was similar to the nature of duties performed by the helpers on the permanent rolls of the company and these helpers were being given the benefits of the tri-partite settlement whereas the complainants were denied the same. As per the complainants this was nothing short of showing favouritism or partiality to one set of workers regardless of merits more so when the complainants were also performing the duties of the helpers and on the principle of "equal pay for equal work", they were entitled for the benefits of the tri-partite 16 settlement regarding their monthly remuneration and other non-monetary benefits as well. This Court (Single Bench) had an occasion to decide the very same issue in the case of Bharatiya Kamgar Sena v. M/s. Consolidated Pneumatic Tool Co.(India) Ltd. & ors. reported in 1989 I CLR 112 1989 I CLR 112 1989 I CLR 112. After reproducing the provisions of Item 5 of Schedule IV, this Court in the said case observed as under: "At the outset I am of the opinion that this complaint does not come within the ambit of item 5 of Schedule IV of the Act of 1971. A bare look at Schedule IV of the said Act of 1971 shows that the general unfair labour practices referred to in the said Schedule are acts or the practices on the part of the employers. In the present case admittedly in the settlement with the recognised Union i.e., respondent No.3, respondent No.1 on 19-4-1985 agreed the terms and conditions of payment in respect of workmen employed in the Company prior to 1-7-1983 and after 1-7-1983. Whatever has been fixed is fixed in the settlement between the Company and the recognised Union. Under these circumstances by no stretch of imagination it can be said that this is an act of respondent No.1 Company as contemplated under Schedule IV. To this it was contended by Shri Gadkari that since the members of the petitioner Union are in the employment of respondent No.1 Company and since respondent No.1 Company fixed these discriminatory wage scales based on the criteria of the date of appointment prior to and after 1-7-1983, this fixation of wage scales is an act of the Company i.e. the employer. As I have already pointed out, since these wage scales are fixed in the settlement with the Union and become part of the settlement by no stretch of imagination these wages scales can be called as the act of 17 the Company in isolation. In view of this clear position the complaint filed by the petitioner Union under Schedule IV Item 5 of the Act of 1971 itself is not maintainable and, therefore, will have to be rejected." . In the case of Hill Son & Dinshaw Ltd. v. P.G.Pednekar & ors. reported in 2002 II CLR 457 2002 II CLR 457 2002 II CLR 457 a Division Bench of this Court, after referring to the decisions of the Supreme Court in the cases of Herbertsons Limited v. The Workmen of Herbertsons Ltd. & ors. - (1976) 4 SCC 736, Balmer Lawrie Workers Union & anr. v. Balmer Lawrie & Co.Ltd. & ors. - 1985 I CLR 103 and K.C.P.Ltd. v. Presiding Officer - AIR 1997 SC 2334 held that a settlement signed under Section 2(p) read with Section 18(1) of the I.D. Act between the recognised union and the management would be binding on all the workmen in the absence of it being shown that the settlement was ex-facie unfair, unjust or mala fide. In the case of National Engineering Industries Ltd. v. State of Rajasthan & ors. reported in (2000) 1 SCC 371 (2000) 1 SCC 371 (2000) 1 SCC 371 a three-Judge Bench held that the settlement entered between the management and a representative union before the conciliation officer pursuant to the identical charter of demands made by several unions would be binding on all the workmen of the 18 establishment including those belonging to the dissenting minority union. In the case of Johnson & Johnson Ltd. vs. G.H.Vedi [2000 (4) L.L.N. 1063 2000 (4) L.L.N. 1063 2000 (4) L.L.N. 1063] a Division Bench of this Court stated thus: "Any settlement between the employer and the employees is placed on a higher pedestal than an award passed after adjudication. The machinery under the I.D. Act envisages resolution of industrial disputes and conflicts at the grassroot level by conciliation by which settlement can be arrived at between the employer and the workmen and industrial peace can be achieved by putting industrial strife to an end. In view of S.2(p) a settlement which is based on a written agreement between the parties can be arrived at either in conciliation proceedings or even outside conciliation proceedings between the representatives of the workmen on the one hand and the management on the other. Written agreements would become settlements contemplated by S.2(p) read with S.12(3) of the Act when arrived at during conciliation proceedings or even outside conciliation proceedings. The I.D. Act is based on the principles of collective bargaining for resolving industrial disputes and for maintaining industrial peace. In all the negotiations based on collective bargaining, the individual workman necessarily recedes to the background." A study of all these decisions, therefore, leads to the conclusion that both the tri-partite and bi-partite settlements signed between the recognised union and the management on 6-10-1989 are / were binding on all the workmen of the respondent 19 management and, therefore, on the face of such a legal position it cannot be said that the management indulged in acts of unfair labour practice within the ambit of Item 5 of Schedule IV of the Act by not extending the benefits of the tri-partite settlement to the complainants on par with the helpers on its permanent rolls. I am in respectful agreement with the view taken by this Court in Bharatiya Kamgar Sena’s case (Supra). It has to be, therefore, concluded that the complainants failed to make out a case of unfair labour practice against the management within the ambit of Item 5 of Schedule IV of the Act. Item Item Item 6 of Schedule IV 6 of Schedule IV 6 of Schedule IV 8. Item 6 of Schedule IV, Section 21 and Section 28(1) of the Act are reproduced as under: "Item 6. 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." "Section "Section "Section 21. Right to appear or act in 21. Right to appear or act in 21. Right to appear or act in proceedings proceedings proceedings relating to certain unfair labour relating to certain unfair labour relating to certain unfair labour practices:- practices:- practices:- (1) No employee in an undertaking to which the provisions of the Central Act for the time being apply, shall be allowed to 20 appear or act or allowed to be represented in any proceedings relating to unfair labour practices specified in items 2 and 6 of Schedule IV of this Act except through the recognised union: Provided that, where there is no recognised union to appear, the employee may himself appear or act in any proceeding relating to any such unfair labour practices. (2) Notwithstanding anything contained in the Bombay Act, no employee in any industry to which the provisions of the Bombay Act, for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceeding relating to unfair labour practices specified in items 2 and 6 of Schedule IV of this Act except through the representative of employees entitled to appear under Section 30 of the Bombay Act." "Section Section Section 28. Procedure for dealing with 28. Procedure for dealing with 28. Procedure for dealing with complaints complaints complaints relating to unfair labour relating to unfair labour relating to unfair labour practices:- practices:- practices:- (1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either under section 5, or as the case may be, under section 7, of this Act: Provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint. 9. By referring to the law laid down in the case of Shramik Utkarsha Sabha v. Raymond