Dismissed

Abbubhakar Irshad Ali and Anr. v. Trafalgar House Construction and Ors.

Bombay HC18 Jul 2005WP/2893/2002

Case brief

AI extract

What is this about?

This High Court dismissal upheld a preliminary objection that individual employees and unrecognised unions cannot appear in complaints regarding unfair labour practices under Schedule IV item 6 of the ULP Act, reserving such representation for recognised unions. The writ petition was dismissed, though the respondent was directed to consider these workers for appointment when vacancies exist withou

What did the court decide?

Writ petition dismissed; direction to respondents to consider petitioner no.1 and other 135 workmen for appointment when work is available without binding inter-se seniority.

Abbubhakar Irshad Ali and Anr. Vs Trafalgar House… — Service and Employment | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO. 2893 of 2002

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 Abbubhakar Irshad Ali & Anr. .. Petitioners

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 versus

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 Trafalgar House Construction & Ors. .. Respondents

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 Mr.R.D. Bhat for the petitioner

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 Mr.J.P. Cama with P.C. Pavaskar for the respondent

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 nos.1 to 4.

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 CORAM : D.G. KARNIK,J.

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 DATED : 18th July 2005.

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ORAL JUDGEMENT:-

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 1. By this petition, petitioners challenge the
 judgement and order dated 22nd July 2002 passed by
 the Industrial Court, Mumbai dismissing the two
 complaints of the petitioners bearing complaint no.

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 47 of 1999 and 1295 of 2000.

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 2. Respondent no.1 is a public limited company

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 which has merged with the respondent no.2 company.
 Respondent nos.3 and 4 are a director and a manager
 respectively of respondent no.2.

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 3. Petitioner no.1 was a past employee of the
 respondent no.1/2 and petitioner no.2 is an
 unrecognised union which is espousing cause of
 petitioner no.1 and about 135 other workmen whose
 names are mentioned at Exhibit-A to the petition.

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 4. The respondent no.2 is engaged in the

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 business of Civil construction. The respondent nos.2

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 takes contracts for civil engineering works at
 different places all over India. The respondent no.2
 has a workforce of some permanent workmen. The

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 respondent no. 2 also engages on temporary basis
 workers at different contract sites according to its
 needs. They are engaged for temporary periods only
 till the completion of the work at contract site.
 After the work contract site is over, services of
 temporary workmen are terminated. It is however the
 case of the petitioners that the services of all

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 temporary workmen are not terminated immediately on
 termination of a site contract but some of the
 workmen who are needed at different sites are
 recalled and engaged at the other sites as and when
 the work is available.

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 5. Majority of the workmen of the respondent
 no.2 are affiliated to Engineering Mazdoor Sabha, a
 representative union of workmen recognised under
 Chapter III of the Maharashtra Recognition of Trade
 Unions and Prevention of Unfair Labour Practices Act,
 1971 (for short ’the ULP Act’). On 14th January
 1999, the petitioner no.1 along with one other filed
 a complaint bearing ULP no.47 of 1999 alleging that
 the respondent nos.1 to 4 were indulging in unfair
 labour practices under item 6 of schedule II and
 items 5, 6, 9 and 10 of schedule IV of the ULP Act.
 Feeling that it was necessary to join a trade union
 as a party complainant, the petitioner no.1 along
 with petitioner no.2 - an unrecognised trade union -
 filed another complaint bearing no.1295 of 2000
 containing almost identical allegations and alleging
 unfair labour practices. In the Writ Petition
 no.1317 of 2001 arising out of an interlocutory order
 passed in the complaint ULP no.1295 of 2000, the

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 delay in filing of the second complaint was condoned

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 and the second complaint was ordered to be heard
 along with the first complaint. Accordingly, both
 the complaints were heard together. After
 considering the oral and documentary evidence adduced
 by the parties, the Industrial Court came to the
 conclusion that the petitioner had not proved
 commission of any unfair labour practice by the
 respondents as alleged. Accordingly, by a common
 judgement and order dated 22nd July 2002, the
 Industrial Court dismissed both the complaints. That
 judgement is impugned in this petition.

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 6. The respondents have a huge godown at Antop
 Hill, Wadala, Mumbai and have branch offices at
 Calcutta, Delhi, Madras, Orissa, Mangalore, Goa, Pune
 and other places in States of Gujarat, Kashmir,
 Karnataka and Maharashtra. The respondents are
 engaged in the business of construction of dams,
 tanks, buildings, etc. and employ about 1000
 permanent workmen. According to the petitioners, the
 petitioner no.1 and other workmen mentioned in the
 Annexure A to the complaint had joined the respondent
 nos.1 and 2 several years ago and each of them has
 completed more than 240 days of continuous service.

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 Despite that, the respondents have not confirmed
 them. Some of the temporary workmen who were junior
 to the petitioner no.1 and other workmen mentioned in
 the annexure ’A’ have been confirmed. The petitioner
 no.1 is the senior most employee but due to his
 involvement in organising the workers, he has not
 been confirmed. The respondents were likely to start
 new sites at Kurla, Tilak Nagar and also at
 Andheri-Versova and Thane and though the respondents
 required further temporary workmen they have not
 confirmed the petitioner no.1 and other workmen
 mentioned in the annexure ’A’. The petitioners
 alleged that the respondents were practising
 discrimination by conforming junior workmen in
 preference over the seniors. The respondents by
 filing their written statement denied the

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 allegations. The respondents asserted that they were
 carrying on business as civil contractors and apart
 from the permanent workmen they from time to time
 were engaging temporary workmen at various sites.
 Some of the temporary workmen were directly employed
 at sites while some were employed through
 sub-contractors on a piece rate basis. The work at
 various contract sites was of a temporary nature and
 the temporary workmen were hired only till the

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 completion of a project and as soon as the work was
 completed, the temporary workmen employed at the
 contract sites were discharged. The recognised union
 from time to time had taken up the issue of
 confirmation of temporary workmen and as per the
 requirement of the company, the respondents confirmed
 the requisite number of workmen. The respondents
 specifically denied the allegation that junior
 workmen were made permanent ignoring the rights of
 the seniors.

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 7. In the evidence, Mr.Naik on behalf of the
 respondents stated that in every settlement with the
 recognised union, on and average 30 temporary workmen
 were made permanent. He denied the allegation that
 the juniors were made permanent in preference over
 the seniors.

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 8. After considering the evidence adduced, the
 Industrial Court has held that the respondents had
 not shown favouritism to one set of workmen
 regardless of their merit in the matter of
 confirmation. It also held that the respondents had
 not employed the employees as badlis, casuals or
 temporaries and continued them as such for years with

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 the object of depriving them of the status of
 permanent employees and had not committed unfair
 labour practice under item 6 of schedule IV of the
 ULP Act. It also held that the respondents had not
 failed to implement any award, settlement or
 agreement and had not committed any unfair labour
 practice under item 9 of schedule IV. It also held
 that the respondents had not indulged in any act of
 force or violence and had not committed any unfair
 labour practice under item 10 of schedule IV of the
 ULP Act. It also held that the petitioner had not
 proved that the respondents had proposed or continued
 a lockout - by not giving any work to the temporary
 workmen - and had not committed any unfair labour
 practice under item 6 of schedule II of the ULP Act.

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Submissions fo the Parties.

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 9. Learned counsel for the petitioner submits
 that evidence has not been properly appreciated and
 misread by the Industrial Court and that the findings
 recorded by the Industrial Court on all the issues
 are perverse and therefore need to be set aside in
 exercise of a writ jurisdiction. Per contra, learned
 counsel for the respondents submits that the

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 Industrial Court has taken into consideration all the
 evidence adduced by the parties and after careful
 consideration of the evidence has come to the right
 conclusions. In any event, submits the learned
 counsel, the findings recorded by the Industrial
 Court were possible findings. The findings being
 possible and not being perverse are not open for
 challenge in exercise of writ jurisdiction under
 article 226 of the Constitution of India.

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 10. Learned counsel for the petitioner took me
 through the evidence adduced by the parties. He also
 read over substantial portions of the deposition of
 the witnesses to contend that the findings recorded
 by the Industrial Court were not borne out on the
 evidence and in any event were such that no
 reasonable Tribunal would have come to those
 conclusions. After having heard the learned counsel
 for the petitioner, I am not satisfied that the
 findings recorded by the Industrial Court are based
 on no evidence or that the appreciation of evidence
 is so very much erroneous that no man would
 reasonably reach the conclusions reached by the
 Industrial Court.

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 . Preliminary Objection.

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 11. Before I deal with the evidence, it is
 necessary to consider the preliminary objection
 raised by learned counsel for the respondent/
 regarding the maintainability of the complaint
 relating to the allegation of unfair labour practice
 under item 6 of schedule IV of the ULP Act.
 Sub-section (1) of section 21 of the ULP Act reads as

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 under :

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 (1) No employee in an undertaking
 to which the provisions of the
 Central Act for the time being apply,
 shall be allowed to appear,to 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.

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 . 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.

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 Sub-section (1) of Section 21 o fthe ULC Act
 specifically lays down that no employee of an
 undertaking to which the Central Act i.e. the
 Industrial Disputes Act applies shall be allowed to
 appear or to act or allowed to be represented in any

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 proceeding relating to unfair labour practices
 specified in items 2 and 6 of Schedule IV of the ULP
 Act except through the recognised union. It is
 admitted position that in the present case, the
 petitioner no.2 is an unrecognised union and the
 petitioner no.1 is not represented by the recognised
 union. At no point of time, the recognised union
 viz. the Engineering Mazdoor Sabha sponsored the
 cause of the petitioner no.1 or any of the employees
 mentioned in the annexure ’A’ to the complaint.
 Learned counsel for the respondent submits that the
 petitioner no.2 which is an unrecognised union had no
 right to represent the petitioner no.1 or to
 represent any of the employees of the respondents.
 In the circumstances, submits the learned counsel,
 the grievance regarding unfair labour practice
 specified in item 6 of schedule IV could not have
 been gone into by the Industrial Court and the
 complaint so far as it relates to item 6 of schedule
 IV ought to have been dismissed on that ground alone.

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 12. A perusal of the preamble to the Maharashtra
 Recognition of Trade Unions and Prevention of Unfair
 Labour Practices Act, 1971 would show that the Act
 was enacted interalia with a view of providing

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 recognition of trade unions for facilitating
 collective bargaining for certain undertakings, to
 state their rights and obligations and to confer
 certain powers on unrecognised trade unions. Chapter
 I & II deal with the application of the Act,
 definitions and authorities under the Act.
 Exhaustive provisions are made in Chapter III of the
 Act for recognition of the trade unions. Chapter IV
 of the Act, which consists of four sections viz.
 sec.19 to sec.23, states obligations and rights of
 recognised trade unions and other trade unions.
 Section 19 specifies the obligations and section 20
 specifies the rights of a recognised trade union.
 Section 21 confers exclusive right on a recognised
 trade union to represent any employee in any
 proceeding relating to unfair labour practices
 specified in items2 and 6 of schedule IV of the Act.
 It begins with a negative wording and states that no
 employee in an undertaking 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 the Act except
 through the recognised trade union. Section 22
 specifies the rights of an unrecognised trade union.
 A perusal of section 21 and 22 of the Act would

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 clearly show that the right to appear, act or be
 represented in any complaint under item 2 and 6 of
 Schedule IV of the Act vests only in the recognised
 trade union. Neither an employee nor an unrecognised
 union is allowed to appear, act or represent an
 employee in a proceeding relating to alleged unfair
 labour practices under items 2 and 6 of schedule IV
 of the ULP Act. Item 2 of schedule IV relates to
 abolition of work of a regular nature done by
 employees and giving such work to contractors as a
 measure of breaking a strike. Item 6 of schedule IV
 relates to employment of badlis, casuals or
 temporaries and continuing them as such for years
 with the object of depriving them of the status and
 privileges of permanent employees. Item 2 and 6 of
 schedule IV relate to collective grievances of
 workmen or a section of workmen as opposed to any
 individual grievance of an individual workman. They
 relate not to an individual employee but collectively
 to all the employees or a section of employees. The
 legislature in its wisdom has provided that in
 respect of the collective grievances falling under
 items 2 and 6 of Schedule IV only the representative
 trade union should be able to appear, act or
 represent the employees. Section 21 not only

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 prevents an unrecognised trade union to represent the
 employees but prevents even the individual employees
 from appearing or acting in the proceedings. The
 reasons for this is that in respect of such disputes
 covered by items 2 and 6 of Schedule IV only the
 recognised union would be in a position to take an
 appropriate decision taking into consideration the
 welfare of all the workmen dispassionately and
 without looking to the individual grievances of
 workmen in relation to those matters which concern
 all or a large number of employees. In the
 circumstances, it has to be held that in respect of
 any proceedings relating to the items falling under
 item 2 and 6 of schedule IV of the ULP Act neither an
 individual employee would be entitled to appear or
 act nor an unrecognised union would be able to
 represent him. The preliminary objection is
 therefore upheld. Neither the petitioner no.1 nor
 the petitioner no.2 were entitled to appear or act in
 the complaint so far as it related to the alleged
 unfair labour practice falling under item 6 of
 schedule IV of the ULP Act.

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 13. The major grievance in the two complaints was
 that the respondents had continued to employ several

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 workmen at site as temporaries or badlis without
 confirming them. That grievance squarely falls under
 item 6 of schedule IV of the ULP Act and therefore
 the petitioners were not entitled to act or appear in
 the complaint relating to it. Recognised Union has
 not supported the petitioners and has not appered for
 them. As such, the labour court could not have
 considered the grievances which fell under item 6 of
 schedule IV and had to dismiss or reject that part of
 the complaint at the threshold.

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 . Other submissions of the parties.

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 14. Learned counsel for the petitioner submits
 that the respondents suppressed the material
 documents from the Industrial Court and thereby
 committed a fraud on it. In support of the
 submission, the learned counsel relies upon the
 following decisions:

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 i) S.P. Changalvaraya Naidu Vs. Jagannath &
 ors. reported in AIR 1994 SC 853.

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 ii) Chief Conservator of Forests & Anr. Vs.
 Jagannath Maruti Kondhare reported in 1996 I CLR 680.

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 iii) Burroughs Welcome (I) Ltd. Vs. D.H. Ghosle
 & Ors. reported in 2000 III CLR 264.

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 15. In S.P. Changalvaraya Naidu Vs. Jagannath
 (Supra), it was held that if any party withholds a
 vital document in order to gain advantage on the
 other side then he would be guilty of playing fraud
 on the court as well as on the opposite party.
 Learned counsel for the petitioner submits that as
 the petitioner had not produced the records to show
 that petitioner no.1 and other 135 employees listed
 in Annexure A to the Writ Petition were employed by
 the respondents they had played fraud on the court
 and in any event adverse inference ought to have been
 drawn against the respondents. I am unable to accept
 the submission. The respondents never disputed that
 they had employed the petitioner no.1 and other
 employees mentioned in Annexure-A to the Writ
 Petition. It was the case of the respondents that
 they were employing the petitioner no.1 and other
 workmen purely as temporaries as and when they
 required additional workmen at respective sites. It
 was the petitioners’ case that they were employed
 temporarily and not being made permanent and thereby

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 respondents were committing an unfair labour practice

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 under item 6 of schedule IV to the Act. Thus the
 fact of temporary employment of the petitioner no.1
 and other then 135 was undisputed and therefore it
 cannot be said that respondents committed any fraud
 on the court by not producing the records showing
 their employment. It is also worthwhile to note that
 whenever the petitioner no.1 and other workmen were
 employed by the respondents, the employees were given
 the identity cards as well as provident fund slips.
 Thus, the petitioner no.1 as well as other employees
 were also in possession of the necessary evidence
 regarding their employment, period of their
 employment and the place of their employment. They
 have not produced the records in their possession.
 There cannot be any abstract principle of drawing of
 an adverse inference. The adverse inference has to
 be drawn with reference to a particular fact. The

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 factum of employment the petitioner and other 135
 workmen mentioned in annexue ’A’ was not denied and
 there could therefore be no adverse inference drawn
 against respondent nos.1 and 2 for non production of
 the records relating to the employment of petitioner
 no.1 and other workmen.

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 16. In Chief Conservator of Forests & Anr. Vs.

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 Jagannath Maruti Kondhare (Supra) the Court was
 required to consider whether the employer was guilty
 of employing the workers 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 amounting to an
 unfair labour practise under item 6 of schedule IV of
 the Act. On facts of the case, the court held that
 the environment pollution control work of Ahmednagar
 whose needs were on the increase was of a permanent

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 nature. The Court further held that in view of the
 permanency which was writ large on the facts of that
 case, continuing to employ the workmen in jobs on
 casual basis for years amounted to unfair labour
 practice. The present case is distinguishable on
 facts. The site contract works taken by the
 respondents are not permanent in nature. They last
 for a few months. The contract works are performed
 by the permanent workmen. If and when additional
 hands are required at contract sites, they are
 employed by the respondents as per the requirement.
 This decision is therefore not of any assisance to
 the petitioners.

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 17. The decision of a learned Single Judge of
 this Court in Burroughs Welcome Vs. D.A. Ghosle
 (Supra) is based on facts. It does not lay down a
 principle which can be applied to the facts of the
 present case.

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 18. The contention of the petitioners is that on
 completion of the construction contract work at site,
 the petitioner no.1 and other 135 workmen should be
 employed by the respondents at a new contract site.
 The requirements of the respondents are variable.
 While certain number of employees are required
 permanently, some additional employees are required
 depending upon the number of contract with the
 respondents at a time and the nature of the
 contracts. The respondent no.2 employs about 1000
 permanent workmen and others as per the requirement.
 In the last few settlements, the respondent no.2 has

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 been absorbing about 30 workmen as permanent workmen.
 This is with the consent of the recognised union. It
 must be assumed that there must be hard bargaining at
 the time of each settlement and the recognised union
 must also be taking into consideration what would be
 the permanent work force required. If all the
 workmen are made permanent and the respondent no. 2

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 is required to pay their salaries, it may happen that
 when there is less work the respondent no.2 may not
 be able to pay salaries to anyone and the very
 livelihood of the existing permanent workmen may be
 in jeopardy. After taking into consideration the
 overall needs for the permanent staff, capacity of
 the respondent no.2 to pay the wages to the permanent
 staff that the representative union must be agreeing
 for the confirmation of only certain number of
 workmen and not all. In the circumstances, it cannot
 be said that those workmen who are not made permanent
 could through an unrecognised union file a complaint
 of unfair labour practice under item 6 of schedule
 IV.

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 19. No other decision was cited. No other point
 was argued except that a direction similar to the one
 given in the full bench decision of the Allahabad
 High Court in Lal Mohammad Vs. Indian Railway
 Construction Co.Ltd. should be given.

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 20. In Lal Mohammed Vs. Indian Railway
 Construction Co.Ltd. reported in 2004 FLY 124, while
 dismissing the Writ Petition, the full Bench directed
 that as and when vacancy was available, the employer

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 company should consider the petitioners therein for
 appointment. Learned counsel for the respondent no.
 2 submits that it has no objection for considering
 the question of appointment of the 135 workmen
 mentioned in the Annexure to the complaint as and
 when vacancies are available but there cannot be any
 assurance of a priority in appointment. Different
 workmen have different skills. Some are engaged in
 piling work, some in masonary and some in other kinds
 of specialised works. There are numerous tasks like
 a piling workman, a mason, a loader etc. who are
 engaged. Some workmen may be more skilled in some
 kinds of work only and it would be impossible to
 employ them on the basis of seniority alone in every
 case. The statement is correct and while a direction

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 can be given for considering the employment of
 petitioner no.1 and other 135 workmen mentioned in
 the Annexure-A as and when work is available there
 cannot be a direction for appointing them on a
 priority basis only on the basis of their inter se
 seniority. Hence, I pass the following order:

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 21. Writ Petition is dismissed.

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 22. However as and when work is available

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 respondents shall consider the petitioner no.1 and
 other 135 workmen mentioned in Annexure-A of the
 petition for appointment at other sites. It is
 clarified that while making the appointments the
 respondents would not bound by the inter se seniority
 amongst the said 135 workmen as the workers with
 different skills and aptitudes may be required for
 different jobs.

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 D.G. KARNIK, J

Abbubhakar Irshad Ali and Anr. v. Trafalgar House Construction and Ors.

Case brief

What is this about?

What did the court decide?

Abbubhakar Irshad Ali and Anr. v. Trafalgar House Construction and Ors.

Case brief

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