Parke-Davis (India) Ltd. v. Shri Mahadev Bhiku Jadhav & Ors.

JUDGMENT: JUDGMENT: . Writ Petition No.1003 of 1996 has been filed by the Company challenging the order of the Industrial Court dated 19.12.1995. Writ Petition No.6385 of 1996 has been filed by the workmen impugning the same order insofar as it does not grant certain reliefs to them. The Industrial Court has declared that the company has committed an unfair labour practice under Items 6 and 9 of Schedule IV of the MRTU & PULP Act. The company was : 2 : directed to confirm all the workmen in service as permanent workmen w.e.f. the date they were actually provided work as permanent workmen. The Company was also directed to pay the difference in wages to the workmen which they were entitled to as permanent workmen together with all other allowances and benefits, whether monetary or otherwise, enjoyed by the permanent workmen. The company was directed to provide work to these workmen and to treat them as permanent in service.

Although Writ Petition No.6385 of 1996 has been filed 18 workmen who were the complainants before the Industrial Court, all the workmen except two i.e. the petitioner Nos.8 and 18 have settled their dispute with the company. Thus, the petitions survive only with respect to Suresh Kandu and Savita Patil, Petitioner No.8 and Petitioner No.18 respectively.

The workmen were employed in various capacities with the company since 1980. They were employed as temporary or badli workmen although they performed work which was essentially of a permanent nature. Artificial breaks in service were given to these workmen by the company. Settlements were arrived at between the company and the workmen pursuant to which some of the badli workmen were made permanent although they had not completed 240 days of continuous service with the company. A charter of demands was raised by the : 3 : Parke-Davis (India) Limited Employees Union representing the workmen on 1.4.1989 which included a demand for permanency of temporary and badli workmen concerned in the present petitions. A settlement was arrived at before the Conciliation Officer u/s 18(3) r/w 2(p) of the Industrial Disputes Act. However, this settlement did not contain any agreement in respect of the demand for permanency. On 6.5.1991, the union was assured by the company that it would actively consider the issue of

confirmation of badli workmen. Minutes of this meeting were recorded and an arrangement was arrived at which was to remain in force upto the expiry of the settlement dated 16.11.1990. Under this arrangement, the union agreed that the workmen whose names wee enlisted in annexure A to the agreement would be engaged by the company depending upon the availability of the work and as per the existing practice. On 10.2.1992, the workmen approached the company and requested it to make them permanent by implementing the assurance given earlier.

Since the demand of the workmen for permanency was not acceded by the company, the workmen filed a complaint (ULP) No.539 of 1992 under section 28 of the MRTU & PULP Act complaining that the company had indulged in unfair labour practices under Items 5, 6 and 9 of Schedule IV of the MRTU & PULP Act on 8.4.1992.

The workmen also preferred an application for : 4 : interim relief which was dismissed by the Industrial Court on 17.6.1992 after an affidavit was filed by the company. However, the company was restrained from terminating the services of the workmen without following the due process of law. Initially the complaint was filed only by 12 workmen including Suresh Kandu. Six other workmen including Savita Patil filed an application to be impleaded as Complainants as they were similarly situated. The application was allowed by the Industrial Court, though opposed by the company.

Evidence of one of the complainants was recorded on behalf of all the other complainants. In rebuttal, the company examined its project manager and assistant personnel manager. The Industrial Court by its impugned judgment has allowed the complaint partly by declaring that the company had indulged in unfair labour practices under Items 6 and 9 of Schedule IV. However, the Industrial Court held that the unfair labour practice under Item 5 of Schedule IV had not been proved by the workmen against which fiinding the workmen have preferred their writ petition.

Several submissions have been advanced by Mr.Cama appearing for the Company. The principal submissions on which he rests his case are: (i) that the complaint was filed beyond the period of limitation and was hopelessly delayed; (ii) that there is no : 5 : pleading regarding an unfair labour practice having been committed under Item 9 of Schedule IV; (iii) that the workmen, who were working admittedly as badli workmen, were not entitled to be made permanent in view of a settlement signed on 16.11.1990 which stipulated that no further demands of a financial nature would be made on the company by the union; (iv) that the minutes of the meeting of 6.5.1991 imply that the workmen were to be continued as badlis till the expiry of the settlement of 1990 i.e. upto 31.3.1993; (v) that there was no existing vacancy with the company for employing permanent workmen or to make the badli workers permanent; (vi) that the workmen had not completed 240 days in service and had not led any evidence in that behalf. (vii) that no record was produced by the workmen to show that they had completed 240 days in each year of service. The two workmen concerned in the petitions have not led any evidence by examining themselves. The Industrial Court directed the company to make the workmen permanent without there being any evidence to indicate that the company had continued the workmen as badli workmen with an object to deprive them of the status of permanency. (vii) that the workmen were not entitled to benefits from the date stipulated by the Industrial Court.

Mr.Cama has submitted that according to the complainants i.e. the workmen in the present petitions, : 6 : they were employed as badli workers since 1980. They had raised a demand for permanency through the union only in 1989 when the charter of demands was submitted. He points out that the complaint was filed in April 1992 by 12 workmen including Suresh Kandu who was impleaded as one of the complainants by an order of the Industrial Court dated 5.8.1993 on the application made by her and other workmen on 15.4.1993. He submits that assuming the complaint in respect of Kandu is within the period of limitation, Savita Patil was not impleaded initially and therefore the complaint with respect to her was delayed. The Industrial Court has held that the complaint was maintainable, though filed after 90 days from the date on which the cause of action has arisen. The Industrial Court has rightly found that the denial of permanency was a continuing cause of action. The company had deprived the workmen of their legitimate right to be made permanent and to be paid wages and other benefits like permanent employees. The Industrial Court has therefore rightly held that the cause of action being continuous, there was no question of the complaint being barred by limitation. The distinction sought to be drawn by Mr.Cama between the case of Suresh Kandu and that of Savita Patil is not of any consequence. Savita Patil was joined as party to the complaint and, therefore, the Industrial Court has rightly found that her case would relate back to the date on which the complaint was filed though she was : 7 : joined as a party pursuant to the orders of the Court in

1993. Therefore in my opinion the Industrial Court was right in concluding there was no delay on the part of the workmen, in approaching the court.

The next submission of Mr.Cama relates to the settlement arrived at between the company and the union representing the workmen. The settlement was signed in conciliation on 16.11.1990. This settlement was arrived at consequent upon a charter of demands being submitted by the union on behalf of the workmen on 1.4.1989. The settlement was made applicable to all permanent workmen including the probationers. It was agreed that such demands which were not specifically dealt with in their settlement but had been raised, would not be insisted by the union during the currency of the settlement. The settlement was to remain in force upto March 31, 1993. The benefits accruing from the settlement were to be paid to permanent workmen who gave an undertaking to the company in terms of the annexure to the settlement. The meeting between the company and the union on 6.5.1991 resulted in minutes being recorded with respect to the confirmation of temporary and badli workmen in service. The arrangement arrived at was that pending finalisation of the discussion in respect of the confirmation of the workmen whose names were in annexures A to the settlement, they would be engaged by the company depending on the availability of work as per the : 8 : existing practice. This arrangement was to remain in force till the expiry of the settlement dated 16.11.1990 i.e. upto 31.3.1993. According to Mr.Cama, the complaint filed in 1992 itself was not maintainable in view of these minutes where the union had categorically agreed not to raise any demand regarding permanency and had agreed that the workman should be engaged as per the existing practice, depending on the availability of both. He submits that the workmen are bound by this arrangement and therefore, could not have filed the complaint in 1992. This submission of the learned counsel cannot be accepted. The minutes of 6.5.1991 are not in the nature of an agreement or settlement as understood in industrial jurisprudence. These minutes are not a settlement as defined u/s 2(p) of the Industrial Disputes Act and, therefore, cannot be binding on the workmen. Apart from this, the individual workmen could not have been prevented from filing a complaint to agitate for their right of permanency which is available to them in law.

The learned counsel has drawn my attention to the evidence on record. According to him, the workmen who have been examined before the Industrial Court have admitted that no vacancy exists and, therefore, it is submitted by the learned Counsel, the Company cannot be held responsible for denying them the privileges of permanent employees. He submits that since there was no : 9 : vacancy, it was not possible for the company to absorb these workmen as permanent workmen. In the affidavit filed on behalf of the company in reply to the complaint, it is averred that 23 workmen had been made permanent, in excess of the normal requirements of the company. Badli workmen who were maintained in a permanent pool of workmen were assigned work in various departments on a regular basis and were subsequently made permanent. According to the affiant, a large number of badli workmen were employed and as and when there were temporary vacancies arising on account of absenteeism of permanent workmen, badli workmen were directed to work in those temporary vacancies. It is then averred that some of the complainants were in a pool of badli workmen and were employed off and on in temporary vacancies. The Production Manager of the company indicates that no badlis were being engaged for 7 months prior to the date when the deposition was recorded since the existing labour strength was in excess. According to Mr.Cama, the basic requirement for proving an unfair labour practice under Item 6 is that, the management should deliberately refuse to fill up existing vacancies in order to deny the badli or temporary workmen their rightful status and privileges as permanent workmen. The learned counsel has cited the judgments in the case of Gangadhar Pillai v/s. 2007 II CLR 139 and in the case of Pune M/s.Siemens, 2007 II CLR 139 2007 II CLR 139 Municipal Corporation & Ors. v/s. Dhananjay Prabhakar : 10 : 2006 II CLR 105 in support of his submission. Gokhale, 2006 II CLR 105 2006 II CLR 105

In Gangadhar Pillai’s case (supra), the workman was employed on different projects undertaken by the management. His services were terminated on the conclusion of a project. The Supreme Court has held that merely because a person is employed for a number of years intermittently as a casual or temporary employee, depending on the availability of a project, that by itself would not be a ground to infer a motive on the part of the company that it had deliberately done so with a view to deprive him of the status and privileges of permanent employees. It was observed by the Supreme Court that the period of employment was commensurate with the period of work undertaken by the company under respective contracts and it was for this reason the company could not be held to have committed an unfair labour practice u/s Items 6 & 9 of Schedule IV. In the present case, the workmen were not employed on any project of the company but were maintained in a pool of badli/temporary workmen and were directed to work on temporary and permanent vacancies. They were made to do work of a permanent nature as held by the Industrial Court and, therefore, the case of Gangadhar Pillai does not apply to the facts and circumstances of the present case.

The Division Bench of this Court has held in the : 11 : case of Pune Municipal Corporation & Ors. (supra) that unless there is a vacant post, no claim can be made for regularisation in a complaint filed under Item 6 of Schedule IV of the MRTU & PULP Act. This was a case where the Pune Municipal Corporation required the sanction of the State Government for absorption of workmen on a permanent basis. It is in these circumstances that this Court has concluded that unless there were vacant posts duly sanctioned by the State Government, the workmen could not claim permanency merely on the basis that they had completed 240 days of uninterrupted service. The Division Bench observed that despite Model Standing Order 4C, which provides that a person who completes 240 days of uninterrupted service is entitled to permanency, the union in that case had agreed that the claim of permanency would be available to the workmen only on completion of continuous service of 4-5 years. It was for these reasons that the Division Bench dismissed the complaint filed by the workmen.

The learned counsel then relied on the judgment in the case of Punjabrao Krishi Vidyapeeth, Akola v/s. General Secretary, Krishi Vidyapeeth Kamgar Union & 1994 I CLR 913 where a learned Single Judge of Ors., 1994 I CLR 913 1994 I CLR 913 this Court has observed that in order to hold an employer guilty of an unfair labour practice described in Item 6 of Schedule IV, there must be some tangible : 12 : evidence to show that it was a deliberate act. It is observed that the employer cannot be accused of committing an unfair labour practice under this Item unless the intention or design of depriving the workmen of the status and privileges of a permanent workman is apparent. The learned Counsel submits that in the present case, the company has stated all along and proved through its evidence that there were no vacancies and, therefore, the question of making these workmen permanent does not arise. This judgment of the learned Single Judge is in respect of filling up vacancies in a university. Posts were to be created at the discretion of the Government. It is in this situation that the court held that the university cannot be held to be responsible for continuing workmen as badlis or temporary or casual employees for years together when the State Government had not sanctioned the posts. The case before me is of a private employer where no sanction is required from government for creation of posts. Therefore, in my opinion, these judgments do not advance the case of the company.

Reliance is also placed by the learned counsel on the judgment of the Supreme Court in the case of Secretary, State of Karnataka & Ors. v/s. Umadevi (3)