Mahindra & Mahindra Ltd vs Avinash Dhaniramji Kamble

3. In light of the order that we intend to pass, it is not

necessary to set out the facts in detail. Suffice it to say that in

the complaints by the present respondents seeking declaration of

unfair labour practices on the part of the employer under Items

5, 6, 9 and 10 of Schedule IV of Maharashtra Recognition of

Trade Unions and Prevention of Unfair Labour Practices, Act,

1971 (for short MRTU & PULP Act"), the Industrial Court,

Maharashtra (Nagpur Bench) Nagpur, in its order dated March

19, 2003 held that complaints were not maintainable under

Item 6 of Schedule IV to the MRTU & PULP Act. The Industrial

Court also held that the complaints were liable to be rejected in

so far as it related to Items 5 & 10 of Schedule IV but as

regards the unfair labour practice under Item No.9 of Schedule

IV, although relief was granted by the Industrial Court to 149

temporary workmen who had completed 240 days of continuous

service, no relief was granted to the present respondents as

2 they have not completed 240 days of continuous service as

required under the Model Standing Orders. The Industrial Court,

in its order, in respect of the present respondents held as

follows:

"From the evidence adduced by the complainants in all other complaints it appears that in all 58 complainants have not at all completed 240 days working during the entire period they were in the employment of the respondent. The list of these complainants is at Ex.101. Hence, their confirmation in service as per clause 4-C of the Model Standing Orders does not arise."

4. Dealing with the writ petitions challenging the order

of the Industrial Court at the instance of the employees as well as

employer, the single Judge in his judgment dated April 29, 2005,

inter alia, did notice that there was dispute between parties

about putting of uninterrupted service of 240 days by the

employees but while dealing with this aspect of the controversy,

he held that the period during which the employer engaged

other batch or other persons in place of the employees (like the

present respondents) will have to be treated as period of

`involuntary unemployment'. The single Judge held thus:

".........The case of the present nature where employer resorts to rotation and grants employment only in batches,

3 considering the scheme of Model Standing Orders, it is apparent that the period during which employer engaged other batch or other person in place of employee like present complainants, will have to be treated as period of "involuntary unemployment". It is not the case where no work is available for an employee with employer but the case is where employer gives that work to another temporary employee"..........

5. The aforesaid judgment of the single Judge was

assailed by the employer in a group of Letters Patent Appeals.

The Division Bench heard these Letters Patent Appeals

together and disposed of them by a common judgment dated

March 3, 2008. The Division Bench, inter alia, held as follows:

"........Though the workman had not been able to establish that the employer had engaged two sets of temporaries employed alternatively, they have demonstrated that though the work was still available a temporary workman appointed for a fixed term was not re-employed or continued, but was given a break. Another temporary was appointed likewise for a fixed period and then again given a break. .................................................................................

.........In any case, it would not be open to the employer to now contend that the work was not available after having entered into agreement with the employees' representative on 12.1.2008, whereby it has undertaken to grant permanency to 105 workmen." .

6. Pertinently, the present respondents in the

complaints set up a specific case that they had completed 240

days uninterrupted service as required under the Model Standing

4 Orders. Having pleaded that, they also pleaded that they were

employed for six months in rotation with other temporaries and

upon expiry of each terms of six months they were replaced by

another set of temporaries and that this practice was followed

with a view to prevent them to complete 240 days uninterrupted

service. That these employees (present respondents) have not

actually completed 240 days of uninterrupted service is not in

dispute. As regards rotational employment to temporaries, the

Division Bench held that the concerned workmen had not

been able to establish that the employer had engaged two sets

of temporaries employed alternatively. Despite having held

that, the Division Bench concluded that although work was

available, temporary workmen appointed for a fixed term were

not re-employed or continued but were given break. It is here

that we find that findings of the Division Bench are inconsistent.

The Industrial Court recorded a categorical finding of fact in

respect of the present respondents that they had never

completed 240 days of continuous service. But the single

Judge as well as the Division Bench, however, treated the gaps

between diverse spells of employment as part of continuous

5 service on the ground that these were due to involuntary

unemployment. This approach of the High Court suffers from

legal flaw for more than one reason. For one, this was not

even the case set up by the complainants in the complaints.

Secondly, and more importantly, the termination and fresh

employment in respect of some temporaries had been several

times and none of the complainants (present respondents)

challenged their termination being illegal as and when their

services were brought to an end on expiry of the period for

which they were engaged under the contract of service.

7. Although the judgment of the Division Bench runs

into more than 50 foolscap typed pages and reflects good

amount of industry put therein but as noticed above crucial

aspects have been mixed up necessitating reconsideration of

letters patent appeals by the Division Bench of the High Court.

In view thereof, we deem it unnecessary to deal with the

diverse contentions raised by the learned senior counsel and

counsel for the parties and leave all these contentions to be

raised before the Division Bench.

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8. By way of footnote, we may observe that during

course of hearing, Mr. C.U. Singh, learned senior counsel for

the employer made a proposal for amicable settlement that

benefit of permanency to the present respondents as per

agreement dated January 12, 2008 could be given from 2005 or

so but even such fair and reasonable proposal was not

acceptable to Mr. S.D. Thakur learned counsel for the

respondents.

9. In what we have discussed above, the impugned

judgment dated March 3, 2008 is set aside. Letters Patent

Appeals are restored to the file of the High Court for fresh

hearing and disposal in accordance with law. All contentions of

the parties are kept open to be agitated before the Division

Bench of the High Court. No order as to costs. Pending

applications, if any, stand disposed of.

................................J (Tarun Chatterjee)

................................J (R.M. Lodha)

7 ................................J (Dr. B.S. Chauhan)

New Delhi, December 3, 2009

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