1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION APPEAL LODING NO. 136 OF 2000 IN WRIT PETITION NO. 1248 OF 1999 AND IN WRIT PETITION NO. 1006 OF 1999 Shri Vinayak Eknath Dadape Plot No. 13, Commander Co.Op. Housing Society, “A” Wing, 1-D, Block, Central Park, Nallasopara (East) Dist. Thane 401 209 .. Appellant (Org.Petitioner in W.P.No. 1006/99 & Org.Respdt. in W.P. No. 1248/99) Vs. 1. The National Textile Corporation (S.M.) Ltd. A company incorporated under the Companies Act, 1956, having its office at N.T.C. House, Ballard Pier, Mumbai. 2. M/s. Jupiter Textile Mills A Unit of N.T.C. (S.M.) Ltd. Carol Road, Parel, Mumbai-400 013. 3. Shri G.R. Baviskar Member, Industrial Court, Mumbai. .. Respondents Mr. S.N. Deshpande for appellant. Mrs. Meena Doshi for respondent no.1. 2 CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. February 08, 2010. ORAL JUDGMENT: (Per B.H. Marlapalle,J.) 1. This appeal is directed against the common Judgment dated 25th/26th October, 1999. Writ Petition No. 1248 of 1999 and Writ Petition No. 1006 of 1999 filed by both the parties came to be decided by the said Judgment. Writ Petition No. 1248 of 1999 was allowed and the impugned order passed by the Industrial Court came to be set aside, whereas Writ Petition No. 1006 of 1999 filed by the present appellant came to be dismissed. 2. Briefly stated, the appellant came to be appointed by an order dated 15/7/1983 in the post of Senior Assistant in Spinning Department by the Jupiter Textile Mills, which is now a part of the National Textile Corporation (South Maharashtra) Ltd. He holds the qualification of Diploma in Textile Engineering. On 15/12/1993 he was informed by the employer that he would retire from 21/1/1994 on attaining the age of 3 retirement of 60 years as per Clause 26A of the Model Standing Orders applicable to the technical and supervisory staff under the Bombay Industrial Relations Act, 1946 (the BIR Act for short). The appellant, therefore, approached the Industrial Court on or about 6/1/1994 and filed Complaint (ULP) No. 41 of 1994 under Section 28 read with Items 1, 5, 9 and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971. The employer contested the complaint by filing its Written Statement. In addition to the documentary evidence, the parties adduced oral evidence as well and the Industrial Court was pleased to dismiss the complaint on 12/7/1994, which order came to be challenged in Writ Petition No. 1220 of 1994. The said petition was decided on 21/8/1997 and was partly allowed. The impugned order passed by the Industrial Court came to be set aside and the complaint was remanded for a fresh decision. On 20/12/1998 the Industrial Court allowed the complaint and 75% back-wages were granted for the period from 7/3/1994 to 20/1/1997 and this order has been set aside by the learned Single Judge under the order impugned. 3. The main contention of Mr. Deshpande, the learned counsel appearing for the appellant, is that the appellant was and continued to be in the category of an operatives and, therefore, Clause 26A of the Model 4 Standing Orders applicable to the technical and supervisory staff or other than operative was not applicable to the appellant. Mr. Deshpande has referred to Clause 20A of the Certified Standing Orders applicable to the operatives and submitted that on completion of 60 years the appellant was required to be retained in service if he continued to be efficient upto the age of 63 years. The complaint was filed by the appellant solely on the ground that he is required to be given benefit of Clause 20A of the Certified Standing Orders applicable to the operatives and that the appellant was appointed and continued to be an operative though he occupied the post of Senior Technical Assistant. Mrs. Doshi, the learned counsel appearing for the employer, on the other hand, has supported the view taken by the learned Single Judge and submitted that prior to the issuance of the letter intimating the date of retirement, the appellant had never contended that he was an operative and the post of Senior Technical Assistant was not included in the Technical and Supervisory staff. It is only for the first time, to derive the benefit of being retained in service till the age of 63 years, the appellant claimed that he was an operative and continued to be so, so as to entitle him to remain in service till the age of 63 years. As per Mrs. Doshi, the learned Member of the Industrial Court fell in gross errors in holding that the employer was guilty of unfair labour practices within the meaning 5 of Items 5, 9, and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971 and the learned Single Judge rightly set aside the said order. 4. The learned Single Judge, on assessment of the claims and counter claims and the oral as well as documentary evidence, has held that the appellant function in a supervisory category and it was apparent from the various documents placed on record like the appointment letter, the leave benefits, pay-scales and other record. As per Mr. Deshpande these findings recorded by the learned Single Judge are erroneous and contrary to the record and he insisted that the appellant must be held to be an operative, thereby entitled to continue in service till the age of 63 years. 5. We have considered the record afresh. The Written Statement filed by the employer under the signature of its General Manager clearly stated that the complainant was a direct appointee as Senior Technical Assistant in supervisory staff and he was never employed in any lower category than the Senior Assistant. His appointment was in the pay-scale of Rs.905-50-1305 plus allowances, as admissible to the Technical and Supervisory staff. He never raised a contention that he was an operative, despite the fact that the complainant had made a representation about his 6 stagnation in the post of Senior Technical Assistant. At the relevant time, his basic salary was Rs.1305/- and he was covered under the Model Standing Orders applicable to the Technical and Supervisory staff and he was not covered under the Certified Standing Orders applicable to the operatives. It was further pointed out that having employed in a supervisory category, he was getting some higher benefits which were not applicable to the operative class. He was entitled for 30 days of privilege leave for every 11 months working and subsequently for 33 days for 12 months working. In addition to the 15 days of casual leave, he was also entitled for 15 days of sick leave with full wages and medical reimbursement as per NTC Rules of Rs.2000/- per year. The same benefits were not available to the operative class and they were entitled for privilege leave of one day for every 12 days upto 243 days, between 244 to 250 days, one day leave for seven days and upto 256 days of working, one day P.L. for six days of working and so on and so forth. Similarly there was no medical reimbursement as well as sick leave for the operative class, whereas they enjoyed the benefits of 6 days of casual leave. By referring to the documents brought on record like the leave record, salary statement, attendance punching card, leave encashment application, it was pointed out that the appellant was always treated as a member of the Technical and 7 Supervisory staff. Leave Applications of other employees were also placed on record so as to point out that it was the appellant who was, in fact, recommending the leave. When the appellant stepped in the witness box before the Industrial Court, there was no evidence to disbelieve the reasons stated by the employer to oppose the complaint and, in fact, the record spoke for itself. The representative of the employer, who stepped in the witness box, in his oral evidence pointed out that the department, in which the appellant was working was headed by an officer from the managerial staff and the appellant was next in command. In the technical category, the hierarchy was Super Senior Assistant, Senior Assistant, Junior Assistant, Department Assistant (Graduate), Foreman, Assistant Foreman and Data Collector. Whereas in the operative category the employees holding the post of Jobber, Helper, Winder, Machine Man, Mazdoor, Watch and Ward Staff etc. were covered. 6. Mr. Deshpande the learned counsel invited our attention to the Certified Standing Orders as well as the Model Standing Orders. It is not in dispute that for the Textile Industries in Mumbai, there are Certified Standing Orders for the operatives and clerical staff and for the technical and supervisory staff, the Mills follow the Model Standing Orders framed 8 by the Government of Maharashtra in the year 1948 under the BIR Act. It was submitted by Mr. Deshpande that the definition of operative included within its sweep the post of Senior Technical Assistant as well because he ought to fall in the category of “overseers”. Under the Standing Orders applicable for operatives, the term “operative” 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, Overseers, Jobbers, Muccadams, Watch & Ward Staff, Motor Vehicle Staff and Cartmen. Mr. Deshpande, therefore, reiterated that the appellant was and continued to be in the category of operatives as he was an overseer and, therefore, he was entitled for the benefits of Clause 20A of the Certificate Standing Orders applicable for operatives. 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 9 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 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 10 operatives were working under the Technical and Supervisory staff. The department, in which the appellant worked, had about 70 staff and he was No. 2 in the said department i.e. below the In-charge of the department who was from the managerial category. The reasons which were implicit in the view taken by the learned Single Judge have been made explicit by us by discussing the evidence as was placed before the Industrial Court. Shri Deshpande also invited our attention to the pursis dated 10/11/1998 filed on behalf of the respondent – company before the Industrial Court and submitted that the respondent itself had given up the challenge to the status of the complainant as an operative. These submissions are factually erroneous. The pursis stated that the company did not wish to press for issue No.1 framed as, “whether the complainant proves that he is an employee as contemplated under the provisions of the BIR Act”. While stating so, the company further stated that the Hon’ble Court may be pleased to delete the above issue and confine to the following issue, namely, “Whether the complainant is operative as per the Standing Orders applicable to him.” 11 This pursis goes to show that the company gave up the challenge that the complainant was not an employee as defined under the BIR Act but reiterated to decide as to whether the complainant is an operative as per the Standing Orders applicable to him. It means that the challenge to the maintainability of the complaint was given up but the company had not given up the issue as to whether the complainant would be an operative. 8. We are satisfied that the view taken by the learned Single Judge does not suffer from any errors, either on the fact or in law and this writ appeal must fail by confirming that the appellant was all along a member of the Technical and Supervisory staff and he could not be held to be an operative. Once this finding is confirmed, the complainant is not entitled to invoke Clause 20A of the Certified Standing Orders, as applicable to the operatives, and that he could stand retired on reaching the age of 60 years, as per Clause 26A of the Model Standing Orders applicable to the Technical and Supervisory staff. 9. Hence, this appeal fails and the same is hereby dismissed. 12 Parties to bear their own costs. 10. The amount deposited with the Registry of this Court by the employer is allowed to be withdrawn with interest, if any. (SMT. V.K. TAHILRAMANI,J.) (B. H. MARLAPALLE, J.)