Dismissed

Dewoo Krishna Gawde and Ors. v. M/S.Shree Ram Mills Ltd.andORS.

Bombay HC5 Apr 2006WP/1232/1998

Case brief

AI extract

What is this about?

This writ petition challenged an Industrial Court order dismissing part of a complaint regarding permanent absorption of badli workers. The High Court held that individual employees lack standing to file absorption claims under the MRTU & PULP Act, which must be pursued by the recognised union.

What did the court decide?

Writ petition dismissed with no order as to costs; petitioners directed to approach the recognised union for the absorption claim.

Dewoo Krishna Gawde and Ors. Vs M/S.Shree Ram… — Labour and Industrial Disputes | Bombay HC (2006)

¶1

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

 ORDINARY ORIGINAL CIVIL JURISDICTION

¶4

 WRIT PETITION NO. 1232 OF 1998

¶5

 Dewoo Krishna Gawde

¶6

 & Ors. ... Petitioners.

¶7

vs.

¶8

 Shri Ram Mills

¶9

 & Ors. ... Respondents.

¶10

 Ms. Apoorva Kaiwar i/by Gayatri Singh

¶11

 for Petitioners.

¶12

 Mr. C.U. Singh i/by Little & Co.

¶13

 for Respondents.

¶14

 CORAM : S.U.KAMDAR, J.

¶15

 DATE : 5th April, 2006.

¶16

 ORAL JUDGMENT :

¶17

 . The present petition challenges the order
 and judgment passed by the Industrial Court in
 Complaint (ULP) No. 282 of 1997. Some of the
 material facts, briefly stated, are as under :-

¶18

 2. The respondent no. 1 is a textile mill and

¶19

 had at one point of time around 4000 employees. The
 petitioner workers are employed by the respondent
 company for last many years and according to the

¶20

¶21

 petitioners they were given work upto 30.7.1996 and
 with effect from 1.8.1996 no work is given to them.
 It is the case of the petitioners that the contract
 of employment between the petitioners and the
 respondents is still subsisting and valid.

¶22

 3. Sometime in or about 1987 the company was
 referred to the Board for Industrial and Financial
 Reconstruction (BIFR) under the provisions of the
 Sick Industrial Companies (Special Provisions) Act,
 1985 (hereinafter referred to as SICA). On
 31.10.1991 under section 18 of the said Act the
 revival scheme was sanctioned. Under the said
 scheme it was provided that the company will operate
 1,22,576 spindles, 14,449 looms and process about
 80,000 meters of cloth per day. It was also
 provided that the company will carry out

¶23

 modernisation of the plant and machinery. It is the
 case of the petitioners that no modernisation was
 carried out but in place of doing so various
 departments of the respondent company were slowly
 and slowly closed down and thus the respondent
 company indulged in illegal closure of certain
 departments and consequently stoppage of the work
 for the various employees. Various employees
 thereafter filed complaints through the unrecognised
 union in the Industrial Court under the provisions
 of the Maharashtra Recognition of Trade Unions and
 Prevention of Unfair Labour Practices Act

¶24

¶25

 (hereinafter referred to as the MRTU & PULP Act).
 It is the case of the petitioners that during the
 pendency of the said complaint which was represented
 by Shriram Mill Kamgar Sanghatana around 2200
 workers were forced to resign. Ultimately an order
 came to be passed by the BIFR recommending winding
 up of the company . The Company preferred an appeal
 before the appellate authority under SICA and after
 hearing the said appeal a fresh revival scheme was
 sanctioned on 11.10.1994 by AAIFR. Under the said
 scheme the capacity and functioning of the mill was
 reduced and the company was required to operate only
 40,000 spindles and process 50,000 meters of grey
 cloth. Consequently about 1400 workers only were to
 be retained and the balance workers were to be
 retrenched from the service. Under the said
 redevelopment scheme it was also provided that the
 land belonging to the respondent will be sold and
 the money available from sale of surplus land and
 FSI will be used in modernising of the remaining
 departments of the said mill. It is the case of the
 petitioners that though the excess land was sold no
 scheme was implemented. Instead all the 1400
 permanent workers who were required to be kept in
 employment by AAIFR were forced to resign and the
 entire mill has been closed down without obtaining
 permission from the State Government and without
 complying with the provisions of law. According to
 the petitioners, the said mill is closed down since

¶26

¶27

 May, 1996. Sometime on or about 7.11.1996, the

¶28

 respondent once again approached the AAIFR and got
 the scheme modified. The said scheme envisaged
 further reduction of the work-force and sale of
 additional land of about 28000 sq. mtrs. Under the
 new scheme the company was obliged only to employ
 189 workers and the balance were retrenched.
 However, it is the case of the petitioners that even
 prior to the amended scheme, the company has been
 entirely closed down. It is the case of the
 petitioners that about 1200 workers accepted the
 voluntary retirement scheme but the petitioners
 continued to work upto 31.7.1996 in the ring
 department as substitute employees in place of
 permanent employees. On 1.8.1996, when they
 reported for work they were told that there is no
 work and that they must continue reporting for work
 and would be provided work as and when available.
 In the meantime, the respondent company started
 recruiting contract workers and, therefore, the
 petitioners registered a complaint before the Labour
 Commissioner regarding the illegal employment of
 contract workers. By letter dated 13.11.1996, the
 Labour Commissioner directed the respondent company
 to provide work to the petitioners in preference to
 the contract workers. In fact contractors M/s.
 Gurubachan Enterprises has been fined under the
 Contract Labour Act also. However, in view of the
 persistent refusal of the respondent to give work to

¶29

¶30

 the petitioners, the petitioners filed a complaint
 of unfair labour practice under item 9 of Schedule
 IV of the MRTU & PULP Act in the Industrial Court.
 They filed two separate complaint being Complaint
 (ULP) No. 282 of 1997 and Complaint (ULP) No. 282
 of 1997. The said complaints were in respect of two
 different groups of workers. It is the case of the
 petitioners that though they were employees of the
 respondent company and they had completed 240 days
 of continuous service in number of years in respect
 of their past service, they were not provided with
 work and their work was given to the contract
 workers. It is their case that they have achieved a
 permanent status by virtue of working for 240 days
 continuously in many of the previous years. It is
 thus contended that the petitioners have achieved
 the permanent status. It is the petitioners case in

¶31

 para 9 of the petition that their services are
 governed by the Standing Orders certified under the
 Bombay Industrial Relations Act, 1946 (hereinafter

¶32

 referred to as the BIR Act) and
 agreements/settlements entered into by the

¶33

 respondent company with the representative union.
 It is the further case of the petitioners that on

¶34

 30.5.1995 the respondent company had entered into an
 agreement with RMMS and under clause 9 of the said
 agreement dated 30.5.1995 it was provided that the
 respondent will not employ any contract workers for
 the normal functioning of the company. Thus, by the

¶35

¶36

 complaint, the petitioners sought two-fold relief
 (i) that they should be regularised and absorbed in
 a regular employment and should be given permanency
 and (ii) that the respondent should be restrained
 from engaging contract workers. Both the said
 complaints were heard together and after leading of
 evidence and hearing of the parties, the impugned
 order has been passed. The petitioner has led the
 evidence of three witnesses. It is this order of
 the Industrial Court which is a common order passed
 in respect of both the complaints being the order
 dated 27.2.1998 against which the present writ
 petition has been filed.

¶37

 4. The complaint of the petitioners were for
 various reliefs but in essence the relief sought is
 two-fold (i) in prayer (d) that the respondent
 should be directed to assign work to the
 complainants on the posts which fell vacant and
 further to declare them permanent employees on those
 posts and (ii) that the petitioners should be
 restrained from employing contract labour in the
 premises of the respondent no. 1 mil. By the
 impugned order and judgment the Industrial Court has
 granted part relief i.e. a declaration has been
 given that the petitioner workers should approach to
 the RMMS Union for taking up the case of abolition
 of the permanent posts and their claim for
 permanency in place of the permanent employees. It

¶38

¶39

 is because RMMS is only the representative union
 which can raise the said dispute. In so far as the
 prayer that the respondent cannot engage contract
 employees is concerned, it has been granted by
 holding that if the contract employees are engaged
 then equal opportunity should also be given to the
 petitioners on the said vacant posts. RMMS being
 the recognised union is also directed to take up the
 issues of badli workers i.e. the case of the
 petitioners herein and ultimately finding is given
 that the unfair labour practice under item 9 of
 Schedule IV of the MRTU & PULP Act has been partly
 proved.

¶40

 5. The learned counsel appearing for the
 petitioners has contended before me that in so far
 as rejection of their claim of being granted
 permanency because they have completed 240 days
 continuous service in the respondent mill is
 concerned, the direction given to take up the issue
 with the RMMS union is challenged by the petitioners
 herein. In so far as the grant of relief i.e. the
 respondent should not engage the contractors workers
 and the petitioners should be given an equal
 opportunity, that part of the order is not
 challenged. The learned counsel for the petitioners
 in support of the aforesaid reliefs sought in the
 present petition has contended that they have
 admittedly completed 240 days of continuous work in

¶41

¶42

 the mill establishment and they were allowed to work
 in the mill premises right upto 31.7.1996 when for
 the first time the respondent company stopped the
 petitioners from work and employed contract workers
 in place of badli workers. It has been further
 contended that by virtue of the aforesaid, the
 respondent company has committed unfair labour
 practice under item 9 of Schedule IV of the MRTU &
 PULP Act and, therefore, the trial Court ought to
 have granted all the reliefs and ought not to have
 relegated the petitioners to approach the RMMS being
 the recognised union for part of the reliefs. In
 support of the aforesaid contention it has been
 contended that it is settled law that violation of
 legal provisions would amount to unfair labour
 practice under item 9 of Schedule IV of the MRTU &
 PULP Act and in support thereof a judgment has been
 relied upon in the case of S.G. Chemicals and Dyes
 Trading Employees Union vs. SG Chemicals and Dyes
 Trading Ltd., and anr., reported in (1986) 2 SCC 624
 being para 23. It has been contended that the
 contention of the respondent that the badli passes
 of the petitioner workers were cancelled and that
 the posts were abolished and that, therefore, they
 were not liable to provide work is unsustainable
 because the passes of the petitioners are not
 cancelled and for abolition the mill has to follow
 the procedure for reducing posts as provided in BIR
 Act.

¶43

¶44

 6. It is further contended that at any rate
 once the badli worker complete 240 days of
 continuous service, he ought to be made permanent
 irrespective of whether there are posts available or
 not. In support of the aforesaid contention, the
 judgment of this Court has been relied upon in the
 case of National Textile Corporation (NM) Ltd.,
 Mumbai vs. Shivaji Gopal Gorule & Anr., reported in
 2001 (2) Mh. L.J. 120. It has been further
 contended that there is no requirement under clause
 4C of the Standing Orders that 240 days must be in
 respect of employment on one particular post. It
 has been further contended that the mills are still
 undertaking certain activities and, therefore, the
 petitioners must be provided with the work. The
 learned counsel has thereafter contended that though
 it is true that the petitioners are badli workers,
 but according to the learned counsel the said badli
 workers have also been conferred with certain
 rights. It has been contended that the badli
 workers who have completed 240 days of continuous
 work cannot be terminated without following due
 process of law and in support of the aforesaid
 judgement reliance has been made on the judgment of
 this Court in the case of Raymonds Woollen Mills
 Ltd., vs. C.S. Sonawane & Ors. reported in 1993
 II CLR 112 and on the judgment of Gujarat High Court
 in the case of Deputy Executive Engineer v. Jiviben

¶45

¶46

 V. Pandya, reported in 2000 II CLR 881. It has

¶47

 been contended thus that not granting of the work to
 the badli workers and to terminate their services
 without following due process of law is illegal.
 Reliance is also placed on the judgment of the Apex
 Court in the case of the the Premier Automobiles
 Employees’ Union and ors. Vs. Premier Automobile
 Ltd., & Ors., - reported in 1987 I CLR 302. It is
 thus contended that the petitioners having completed
 240 days they should have been absorbed and given a
 permanent status in the respondent employment.

¶48

 7. On the other hand, the learned counsel
 appearing for the respondents has contended that the
 order passed by the lower authority is legal and
 valid. It has been contended by the learned counsel
 for the respondent that admittedly item 9 of
 Schedule IV pertains to only failure to implement
 any settlement, agreement, award. It has been
 further contended that there is no dispute that in
 so far as the service conditions of the petitioners
 are concerned, the same are governed by the standing
 orders for operatives. It has been contended that
 under clause 3 of the said standing orders, the
 operatives are classified as permanent,
 probationary, badlies, temporary and apprentices.
 The badli worker is one who is employed on the post
 of permanent operative or probationer who is
 temporarily absent. It has been further contended

¶49

¶50

 that the right of the badli workers are thus

¶51

 governed by the said standing orders. It has been

¶52

 further contended that by notification issued on

¶53

 16.10.1981 the said model standing orders for
 operatives in respect of textile industries are
 amended and clause 4C has been provided for. It has
 been contended that under clause 4C a badli or
 temporary operative who has put in 240 days

¶54

 uninterrupted service in the aggregate in any other
 undertaking during a period of 12 preceding calendar

¶55

 months, is required to be made permanent in that
 undertaking by an order in writing signed by the
 manager or any person authorised in that behalf by
 the manager irrespective of whether or not his name
 is on the muster roll of the undertaking throughout
 the period of the said twelve calendar months. It

¶56

 has been contended that the present complaint which

¶57

 has been filed does not proceed on the footing of
 any violation of clause 4C as amended by the Model
 Standing orders. The complaint proceeds on the
 footing that merely on completion of 240 days in an
 earlier 12 calendar months the petitioner employees
 have acquired a status of permanent employee. It
 has been contended that there is no pleadings in the
 present complaints indicating that they have claimed
 any breach of clause 4C of the standing orders. The
 learned counsel for the respondents has drawn my
 attention to the pleadings in the complaint which
 inter alia indicates that in fact the petitioners

¶58

 12
 are claiming to be absorbed as permanent workers.

¶59

 It has been brought to my notice that a person who
 seeks to be absorbed as a permanent worker who is in
 fact a badli or a casual or temporary workers then
 he has to apply under item 6 of Schedule IV of the
 MRTU & PULP Act. It has been further drawn to my
 attention that for the purpose of making an
 application under item 6 of Schedule IV the
 complaint must be only by a recognised union under
 Section 21 of the MRTU & PULP Act. Sub-section (2)
 of Section 21 which inter alia provides that
 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. It has been thus
 contended that a complaint under item 2 and 6 of
 Schedule IV has to be prosecuted by the union and
 the cause can be taken up only by the union and not
 by the individual employees. It is thus submitted
 that, therefore, the Industrial Court has rightly
 directed the cause to be taken up by the RMMS which
 is the recognised union in the present case. It has
 been contended that the pleadings in the complaint
 are based on a claim of the petitioners of an

¶60

¶61

 absorption by virtue of completion of 240 days and
 not on the basis of violation of clause 4C of the
 Standing Orders. It has been submitted that the
 pleadings are an important factor and in the absence
 of pleadings about violation of clause 4C of the
 amended standing orders, the petitioners are not
 entitled to raise any such claim fork the first time
 before this Court. It has been submitted that
 neither in the pleadings nor in the evidence nor in
 the arguments before the Industrial Court the

¶62

 contention has been raised that there has been a
 breach or violation of clause 4C of the amended
 standing orders. In support of the aforesaid
 contention, the learned counsel for the respondents
 has relied upon the judgment of the Apex Court in
 the case of Shankar Chakravarti vs. Britania
 Biscuit Company, reported in (1979) 3 SCC 371
 particularly paras 32 and 33 thereof wherein it has
 been held that the allegation which is not pleaded,
 even if there is evidence in support of it, cannot
 be examined because the other side had no notice of
 it and if entertained it would be tantamount to
 granting an unfair advantage to the first mentioned
 party. It has been further held that this principle
 applies equally to industrial adjudication. It has
 been further pleaded that in any event in the
 present case there is a scheme modified by the AAIFR
 on 7.11.1996 and it overrides the provisions of the
 model standing orders in view of clause 29 of the

¶63

 14
 said model standing orders. The said clause 29

¶64

 reads as follows :-

¶65

 "29. Nothing contained in these Standing
 Orders shall operate in derogation of any
 law for the time being in force or to the
 prejudice of any right under an agreement or
 contract of service, custom, usage or award
 applicable to the undertaking."

¶66

 It has been further contended that the provisions of
 the SICA overrides the provisions of the model
 standing orders and, therefore, the respondents
 cannot be held liable for breach of any such model
 standing orders.

¶67

 8. I have considered the contentions of both

¶68

 the parties. Firstly, the complaint is admittedly
 filed only under item 9 of Schedule IV of the MRTU &
 PULP Act. The said item 9 of Schedule IV reads as
 under :-

¶69

 "9. Failure to implement award, settlement
 or agreement."

¶70

 It has been however contended before me that when
 the question arises of a breach of settlement and
 the standing orders amounts to a settlement between

¶71

¶72

 the parties then in that event the complaint is
 maintainable under item 9 because it would cover the
 violation of clause 4C of the standing orders which
 is a part of the settlement. The aforesaid
 submission, in my opinion requires to be rejected
 for more than one reason. Firstly it is clear from
 the pleadings in the complaint that there is no case
 whatsoever made out of any breach or violation of
 clause 4C which has been introduced by a
 notification dated 16.10.1981. Secondly, the

¶73

 pleadings before the Court are on the basis that by
 virtue of completion of 240 days the petitioners
 workers are entitled for absorption in a regular
 employment. The pleadings as they sand before the
 trial Court squarely fall under item 6 of Schedule
 IV of the MRTU & PULP Act. The said item 6 of
 Schedule IV of the said Act reads as under :-

¶74

 "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."

¶75

 If that is so then in my opinion, the trial Court
 was right and justified by virtue of the provisions
 contained under Section 21 of the MRTU & PULP Act,
 that it is only the recognised union which is
 entitled to take up the said cause. Admittedly, in

¶76

¶77

 the present case the recognised union has not filed
 the complaint nor taken up the said cause. Once it
 is so, then, in my opinion, the trial Court was
 right and justified in directing that the recognised
 union should be approached and they should take up
 the cause of breach of item 6 of Schedule IV of the
 MRTU & PULP Act. Thirdly, the contention is for the
 first time advanced by the petitioner that in fact
 the clause 4C provides for absorption if they have
 completed 240 days even in the case of badli workers
 and once it is so then not absorbing them amounts to
 breach of standing orders. I do not find any such
 complaint pleaded before the Industrial Court nor I
 find from the reading of the workers evidence that
 any such case is made out. In fact before the trial
 Court the matter proceeded on the footing that the
 petitioners are already permanent employees and
 therefore, they should be absorbed in a permanent
 employment and a direction was sought. The
 petitioners are not the permanent employees because
 even if clause 4C is read it is clear that the
 petitioners are entitled to be permanent employees
 but for becoming permanent employees the manager has
 to issue orders in that behalf. Admittedly no such
 orders have been issued. The petitioners have not
 made a complaint before the trial Court that by
 virtue of non-issuance of such orders under clause
 4C, there is breach of clause 4C of the Standing
 Orders. The petitioners have contended that the

¶78

¶79

 petitioners are regular employees and they should be
 absorbed even though admittedly they are not the
 badli workers and admittedly there is no absorption
 by issuing orders as contemplated under clause 4 C
 of the amended Standing Orders by the said
 notification. In that view of the matter, it is not
 possible to accept the contention of the petitioners
 that the trial Court was wrong and not justified in
 dismissing the complaint in part in so far as their
 relief of getting absorption on the basis of their
 permanent service by virtue of completion of 240
 days in earlier 12 calendar months is concerned.

¶80

 9. The learned counsel for the petitioners
 thereafter contended that even if clause 4C of the
 Standing Orders is not pleaded still the petitioners
 will be entitled to be treated as permanent
 employees on completion of 240 days of uninterrupted
 service in preceding 12 calendar months. In my
 opinion, even if it is so, still the case will fall
 under item 6 of Schedule IV of the MRTU & PULP Act
 and it is only the recognised union who can take up
 such contention. I am of the opinion that no case
 is made out by the petitioners for interference with
 the impugned order passed by the trial Court.
 Except the relief of absorption the other reliefs
 are already granted namely, the petitioners should
 be given work by the respondent in an equal
 opportunity as that of the contract workers and they

¶81

¶82

 should not be denied work. In so far as the

¶83

 absorption is concerned, the Industrial Court has

¶84

 given direction to the recognised union to take up
 the said cause as it falls under item 6 of Schedule

¶85

 IV of the MRTU & PULP Act. In that light of the
 matter, I find no merit in the present petition and
 accordingly the same is dismissed. However, there
 shall be no order as to costs.

Dewoo Krishna Gawde and Ors. v. M/S.Shree Ram Mills Ltd.andORS.

Case brief

What is this about?

What did the court decide?

Dewoo Krishna Gawde and Ors. v. M/S.Shree Ram Mills Ltd.andORS.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

smt roopa bahirwni and Ors. Vs smt hema g. anand and secretary anju co-op soc and Ors.

Pratap M. Sanghvi Vs State of Maharashtra and Anr.

Air India Staff Colony Association and Anr. Vs Kamal Madanpotra and Ors.

Bank of Baroda Vs Dalmia Traders and Ors.

neeraj goyal and Anr. Vs varshraj exports Pvt. Ltd. and 7 Ors.

Kantilal C.Kothari and Ors. Vs State of Maharashtra and Anr.