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Judgment
Sr. No.,Writ Petn. No,"Name of
Employee",Period of Employment,"Last Date in
Employment","Date of Filing of
Complaint
1.,7085 of 2019,Sunil Zade,"09.05.1994 to 18.07.1994
22.07.1994 to 22.09.1994
08.10.1994 to 04/12/1994",04.12.1994,29.11.2011
2.,7086 of 2019,Ramesh Titare,"e 01.12.1990 to
30.11.1991",30.11.1991,04.07.2011
3.,7088 of 2019,"Vishwe-shwar
Hanwatkar","06.02.1999 to 30.03.1999
11.11.1999 to 11.1999
04.12.1999 to 24.01.2000
04.03.2000 to 07.04.2000",07.04.2000,12.08.2011
4.,7156 of 2019,Sanjay Mhatre,"e 19.10.2000 to 11.2000
21.11.2000 to 15.01.2001
18.01.2001 to 23.03.2001",23.03.2001,04.07.2011
5.,7192 of 2019,"Vinod Dhage
Manoj Thakur
Tarachand Vijay
Mohad Sachin
Kale Kishor","23.12.1994 to 03.06.1995
08.02.1996 to 27.05.1996
02.12.1989 to 11.06.1990
06.04.1987 to 13.10.1987
23.11.1997 to 31.03.1998
21.10.2000 to 31.03.2001","03.06.1995
27.05.1996
11.06.1990
13.10.1987
31.03.1998
31.03.2001",25.08.2010
6.,7538 of 2019,Nasir Kazi,"22.07.1989 to 19.09.1989
24.09.1989 to 20.11.1989
21.11.1989 to 18.12.1989
01.12.1990 to 30.05.1991",30.05.1991,04.09.2010
7.,7539 of 2019,Ravindra Umratkar,"27.03.1995 to 23.05.1995
01.06.1995 to 20.07.1995",20.07.1995,12.12.2011
8.,7540 of 2019,Anil Gotmare,16.10.2000 to 18.11.2000,18.11.2000,30.03.2010
9.,7541 of 2019,"Raj Kumar
Ghawade","29.01.1995 to 28.03.1995
08.04.1995 to 04.06.1995
17.06.1995 to 30.07.1995",30.07.1995,09.12.2011
10.,7542 of 2019,Milind Dhamande,"01.07.1994 to 13.09.1994
23.09.1994 to 15.11.1994
20.11.1994 to",27.08.1995,12.12.2011
Company submitted that the impugned judgments and orders passed by the Industrial Court were wholly unsustainable and that they deserved to be,,,,,
set aside. It was submitted that the direction given by the Industrial Court in favour of the respondents-workmen for grant of permanency and,,,,,
consequential benefits, was completely flawed because the respondents-workmen were admittedly not in employment of the petitioner-Company",,,,,
when the complaints were filed before the Industrial Court. It was submitted that the complaints were filed by the respondents-workmen after periods,,,,,
of 9 to 23 years of cessation of their employment. It was submitted that the complaints were not maintainable for the reason that direction of,,,,,
permanency could never be granted to the respondents-workmen. It was further submitted that the respondents-workmen had been employed for,,,,,
specific periods of time and their services had been terminated on completion of such periods and it was an admitted position that the respondents-,,,,,
workmen had never challenged such termination of their services. It was pointed out that the complaints could not have been entertained in the,,,,,
absence of any challenge to the termination of their services and that in any event the question of termination of their services could have been,,,,,
challenged only before the Labour Court, thereby demonstrating that the Industrial Court had no jurisdiction to entertain the complaints.",,,,,
14) It was further submitted that the complaints suffered from the bar of limitation because such complaints filed under section 28 of the Act of 1971,,,,,
for unfair labour practices under Items 5 and 9 of Schedule IV to the Act of 1971, could have been filed only within 90 days from the date of alleged",,,,,
occurrence of the unfair labour practices. It was submitted that the admitted facts in the present cases demonstrated that the complaints were,,,,,
hopelessly barred by limitation. It was further submitted that the finding of the Industrial Court on continuous and recurring cause of action under,,,,,
clause 2(g)(viii) of the Model Standing Orders, was wholly unsustainable and that the complaints clearly suffered from delay and laches.",,,,,
15) It was further submitted that the Industrial Court committed a grave error in proceeding on the basis that the aforementioned judgments of the,,,,,
Division Bench and learned Single Judge of this Court were binding, despite the specific observation of the Hon’ble Supreme Court in the order",,,,,
dated 03/07/2015, that the said judgments shall not operate as binding precedents. The learned senior counsel appearing for the petitioner-Company",,,,,
submitted that there was no live dispute between the parties in the present case and there was total absence of pleadings and evidence on the part of,,,,,
the respondents-workmen regarding any willingness on their part to work with the petitioner-Company after their periods of employment were over.,,,,,
On this basis, it was submitted that the Industrial Court erred in applying clause 2(g)(viii) of the Model Standing Orders and further in holding that the",,,,,
petitioner-Company had violated Clauses 4-B, 4-C, 4-D and 4-E of the Model Standing Orders. On this basis, it was submitted that the writ petitions",,,,,
deserved to be allowed and the complaints filed by the respondents-workmen deserved to be dismissed.,,,,,
16) Mr.S.P.Dharmadhikari, learned Senior Counsel appearing with Mr. M.V.Mohkar, learned Advocate representing the respondents-workmen in",,,,,
these writ petitions, submitted that the interpretation of the clauses of the Model Standing Orders by the Industrial Court, was fully justified and that",,,,,
the petitioner-Company had indeed indulged in unfair labour practices. It was submitted that the mandate of the aforesaid clauses of the Model,,,,,
Standing Orders was that the petitioner-Company ought to have maintained a waiting list of temporarily employed workmen like the respondents-,,,,,
workmen herein, so that the moment work of permanent nature arose in the establishment, the respondents-workmen could be offered employment. It",,,,,
was submitted that the pleadings and evidence submitted on behalf of the petitioner-Company before the Industrial Court clearly demonstrated that no,,,,,
such waiting list was maintained and that the respondents-workmen were never offered employment, while other workmen were employed from the",,,,,
market, thereby showing that the petitioner-Company had indulged in unfair labour practices under items 5 and 9 of Schedule IV of the Act of 1971.",,,,,
17) It was submitted that such an unfair labour practice occurred on each occasion that the respondents-workmen herein were deprived of work and,,,,,
others were offered employment. It was further submitted that since unemployment was foisted on the respondents-workmen involuntarily, clause",,,,,
2(g)(viii) of the Model Standing Orders squarely applied and the respondents-workmen continued to be in ‘uninterrupted service’ of the,,,,,
petitioner-Company. On this basis, it was submitted that the industrial Court was justified in holding that the complaints were neither barred by",,,,,
limitation, nor did they suffer from delay and laches.",,,,,
18) It was further submitted that the Industrial Court was justified in proceeding on the basis that the aforementioned judgments of the Division Bench,,,,,
and the learned Single Judge of this Court were binding precedents, insofar as the Industrial Court was concerned. It was submitted that although the",,,,,
Hon’ble Supreme Court had indeed directed in order dated 03/07/2015, that the said judgments shall not operate as binding precedents, such an",,,,,
observation would strictly operate only between the parties before the Hon’ble Supreme Court. It was then submitted that the Hon’ble,,,,,
Supreme Court had not discussed the merits of the matter or the issues raised on behalf of the rival parties, while making the aforesaid observation. It",,,,,
was further submitted that if nothing else, the aforementioned judgments of the Division Bench and the learned Single Judge of this Court had",,,,,
persuasive value before this Court. It was then specifically contended that the said observation of the Hon’ble Supreme Court would not apply to,,,,,
judgment and order dated 19/09/2006, passed by a learned Single Judge of this Court, pertaining to complaints filed in the year 2004, because the same",,,,,
did not reach the Hon’ble Supreme Court; there was no agreement between the parties that the same would not be treated as a binding precedent,,,,,
and there was no consequent direction by the Hon’ble Supreme Court regarding the said judgment. It is relevant that in this context, the learned",,,,,
Senior Counsel appearing for the petitioner-Company immediately brought to the notice of this Court that the aforesaid subsequent judgment of the,,,,,
learned Single Judge of this Court had referred to the Division Bench judgment and the judgment of the learned Single Judge, which had reached the",,,,,
Hon’ble Supreme Court and that therefore, by implication the said subsequent judgment of the learned Single Judge also could not operate as a",,,,,
binding precedent.,,,,,
19) It was further submitted by the learned senior counsel appearing for the respondents-workmen that in the pleadings and evidence, it was",,,,,
specifically stated on behalf of the petitioner-Company that the services of the respondents-workmen were discontinued due to unsatisfactory,,,,,
performance. It was submitted that not an iota of evidence was led on behalf of the petitioner-Company to support such an assertion. On this basis, it",,,,,
was submitted that the respondents-workmen had clearly made out a case of unfair labour practices on the part of the petitioner-Company and that,,,,,
the impugned judgments and orders did not deserve any interference. It was also submitted that since there was no doubt about the fact that the,,,,,
respondents-workmen had been able to prove unfair labour practices on the part of the petitioner-Company, such a declaration ought to be upheld by",,,,,
this Court and perhaps on the question of relief, this Court could mould the same in the facts and circumstances of each case.",,,,,
20) The learned senior counsel representing the rival parties referred to number of judgments, which shall be dealt with during the course of this",,,,,
judgment.,,,,,
21) Mr. Amit Balpande, learned Assistant Government Pleader appeared on behalf of the formal respondents No.2 in these writ petitions.",,,,,
22) Having heard the learned senior counsels representing the rival parties, this Court perused the documents on record, as also the provisions of law",,,,,
and various judgments relied upon by the rival parties. The contention raised on behalf of the petitioner-Company regarding necessity of the,,,,,
respondents-workmen being in employment for maintaining complaints before the Industrial Court, is intertwined with the question as to whether the",,,,,
respondents-workmen could be said to be in “uninterrupted service†as defined under clause 2(g)(viii) of the Model Standing Orders. It is the,,,,,
interpretation of the said clause, which would be the crucial factor in analyzing whether the Industrial Court was justified in holding in favour of the",,,,,
respondents-workmen. There is no dispute about the fact that the Model Standing Orders apply in the present cases. Before proceeding to discuss the,,,,,
rival contentions in this regard, it would be appropriate to reproduce the relevant portions of the Model Standing Orders. The said portions read as",,,,,
follows:,,,,,
“Clause (2) Words and expressions not defined in these orders shall have the meanings assigned to them under the Bombay Industrial Relations,,,,,
Act, 1946.",,,,,
(g) “Uninterrupted Service†includes service interrupted on account of any of the following reasons, namely: â€"",,,,,
(i) Sickness, as certified by a doctor of Employees’ State Insurance Scheme where such scheme is applicable, or elsewhere by a Registered",,,,,
Medical Practitioner.,,,,,
(ii) accident.,,,,,
(iii) authorised leave.,,,,,
(iv) lay-off as defined in the Industrial Disputes Act, 1947 (XIV of 1947)",,,,,
(v) strike which is not illegal,",,,,,
(vi) Lock-out,",,,,,
(vii) cessation of work which is not due to any fault of the workmen concerned.,,,,,
(viii) involuntary unemployment.,,,,,
Clauses,,,,,
4-B. Badli register.--- (1) Wherever the badli system prevails the Manager shall maintain a register of badlis shiftwise containing the following,,,,,
particulars namely:-,,,,,
(i) their names and addresses,",,,,,
(ii) the nature of work or occupation in which they were employed;,,,,,
(iii) the shifts in which they were working while in employment,",,,,,
(iv) the wages paid to them during employment, and",,,,,
(v) the dates of termination of their services.,,,,,
The names of badlis who are found to be irregular in attendance or inefficient in work; may be removed from such register after giving them sufficient,,,,,
opportunity to improve.,,,,,
(2) All temporary vacancies of permanent workmen shall be filled by appointing their badlis whose names are entered in the register maintained under,,,,,
sub-clause (1) such appointment shall be made on the basis of seniority-cum-regularity in attendance.,,,,,
(3) In filling permanent vacancies in any class of occupation in the establishment, badlis who have worked in that class of occupation shall be given",,,,,
preference wherever they are employed. Subject to clause 4-C, badlis appointed in such vacancies shall be made permanent on the basis of seniority-",,,,,
cum-regularity in attendance. Where badli system does not prevail, temporary workmen shall be given preference.",,,,,
4-C. Confirmation of badli or temporary operatives â€" A badli or temporary workman who has put in 190 days’ uninterrupted service in the,,,,,
aggregate in any establishment of seasonal nature or 240 days “uninterrupted service†in the aggregate in any other establishment, during a period",,,,,
of preceding twelve calendar months, shall be made permanent in that establishment by 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 establishment throughout the period of the",,,,,
said twelve calendar months.,,,,,
Explanation.â€" For purpose of this clause any period of interrupted service, caused by cessation of work which is not due to any fault of the",,,,,
workman concerned shall not be counted for the purpose of computing 190 days or 240 days, or, as the case may be, for making a badli or temporary",,,,,
workman permanent.,,,,,
4-D. Waiting List.â€" (1) The Manager shall maintain a waiting list of all temporary workmen whose services have been terminated on account of the,,,,,
completion of the work for which they were appointed or on account of the expiry of the period for which they were employed, containing the",,,,,
following particulars, namely:-",,,,,
(i) their names and addresses,",,,,,
(ii) the nature of work or occupation in which they were employed,",,,,,
(iii) the wages paid to them during employment, and",,,,,
(v) the dates of termination of their services.,,,,,
(2) Whenever any vacancies in the establishment are required to be filled, the persons included in the waiting list maintained under sub-clause (1) shall",,,,,
be given preference after taking into consideration the nature of work done by them while in employment or the occupation in which they were,,,,,
employed, and on the basis of the aggregate of their services in the establishment prior to the termination of their services.",,,,,
4-E. Persons in waiting list to be given priority.â€" No person whose name is not entered in the waiting list maintained under clause 4-D shall be,,,,,
appointed in the establishment badli or temporary workman, unless all person included in that list have been provided with employment in the",,,,,
establishment.â€,,,,,
23) The crucial question is, as to whether the respondents-workmen herein could be said to be in uninterrupted service because ‘involuntary",,,,,
unemployment’ was foisted upon them under clause 2(g)(viii) of the Model Standing Orders. The Industrial Court has come to a conclusion in,,,,,
favour of the respondents-workmen that since the petitioner-Company violated mandate of clauses 4-B, 4-C, 4-D and 4-E of the Model Standing",,,,,
Orders and failed to offer employment to the respondents-workmen when work of permanent nature arose in the establishment, the unemployment of",,,,,
the respondents-workmen was involuntary and therefore, the respondents-workmen were covered under the definition of “uninterrupted serviceâ€",,,,,
as per the Model Standing Orders. It is on this basis that the aspect of continuous and recurring cause of action was also held in favour of the,,,,,
respondents-workmen.,,,,,
24) But, before considering the aspect of continuous and recurring cause of action, it would be appropriate to first analyze as to whether the",,,,,
respondents-workmen were rightly held to be in ‘uninterrupted service’ of the petitioner-Company as per clause 2(g)(viii) of the Model Standing,,,,,
Orders. A finding in favour of the respondents-workmen on this question would repel the contention raised on behalf of the petitioner-Company that,,,,,
the complaints filed by the respondents-workmen were not maintainable before the Industrial Court as they were not in employment of the petitioner-,,,,,
Company. The pleadings and evidence led by the rival parties do show that the petitioner-Company failed to regularly maintain waiting list of workmen,,,,,
employed on temporary basis, although mandated under clauses 4-B, 4-C, 4-D and 4-E of the Model Standing Orders. It has come in the evidence of",,,,,
the officer of the petitioner-Company that waiting list was prepared in the year 2000, in which also the names of the respondents-workmen were not",,,,,
included. It is found in the evidence available on record that workmen, who were temporarily employed after the respondents-workmen herein, were",,,,,
later granted permanency in service, while the respondents-workmen herein were not even considered. Therefore, there appears to be violation of",,,,,
clauses 4-B, 4-C, 4-D and 4-E of the Model Standing Orders by the petitioner-Company, to that extent. But, the question is whether this should ipso",,,,,
facto lead to an order in favour of the respondents-workmen.,,,,,
25) A crucial aspect of the matter has neither been adverted to nor considered by the Industrial Court in the impugned judgments and orders with,,,,,
regard to the nature of pleadings and evidence expected from the respondents-workmen to successfully claim that unemployment was involuntarily,,,,,
foisted upon them. The chart showing details of the periods of employment of the respondents-workmen would show that they were employed for,,,,,
specific periods and upon completion of such periods, their employment with the petitioner-Company ceased. There is nothing on record in the",,,,,
pleadings and the evidence on behalf of the respondents-workmen that they showed their willingness to work with the petitioner-Company at any point,,,,,
of time after their last dates of employment with the petitioner-Company. In the complaints filed on behalf of the respondents-workmen, there is no",,,,,
whisper about such willingness and/or about any steps taken by the respondents-workmen to approach the petitioner-Company for work. In fact, it is",,,,,
only in the cross-examination of the respondents-workmen before the Industrial Court that they have made bald statements that they had approached,,,,,
the petitioner-Company for work. Interestingly, respondent No.1in Writ Petition No. 7085 of 2019 has stated in cross-examination that he last",,,,,
approached the petitioner-Company for work in the year 1999, while the complaint was filed years later, in the year 2011. The said assertion is also",,,,,
not supported by any evidence.,,,,,
26) This is the nature of evidence on behalf of the respondents-workmen with regards to the aspect of willingness on their part to work with the,,,,,
petitioner-Company. It was necessary for the respondents-workmen to have pleaded and led cogent evidence to show that while they were,,,,,
continuously willing to work with the petitioner-Company, they were not offered work while others were granted employment by the petitioner-",,,,,
Company. If such pleading and evidence was on record it could certainly be concluded that unemployment was involuntarily foisted upon the,,,,,
respondents-workmen, thereby showing that they deserved to be treated as being in ‘uninterrupted service’ under clause 2(g)(viii) of the Model",,,,,
Standing Orders. In absence of any such pleading and evidence on record, the Industrial Court certainly erred in holding in favour of the respondents-",,,,,
workmen.,,,,,
27) It becomes evident that the respondents-workmen seemed to have voluntarily chosen unemployment with the petitioner-Company, while choosing",,,,,
to work with other employers. In such a situation, it cannot be said that the respondents-workmen had been able to prove that they were in",,,,,
‘uninterrupted service’ with the petitioner-Company. The fact that the respondents-workmen chose to raise their grievance against the,,,,,
petitioner-Company for the first time after 9 to 23 years of their last dates of employment with the petitioner-Company, shows that they cannot be",,,,,
covered under clause 2(g)(iii) of the Model Standing Orders. The cessation of employment of the respondents-workmen on the last dates of their,,,,,
employment with the petitioner-Company, as demonstrated in the chart above, clearly shows that they could not be held to be in ‘uninterrupted",,,,,
service’ of the petitioner-Company for maintaining complaints before the Industrial Court.,,,,,
28) In this context, the learned senior counsel appearing for the petitioner-Company is justified in relying upon judgment of the Hon’ble Supreme",,,,,
Court in the case of Oshiar Prasad v. Sudamdih Coal Washery, reported in (2015) 4 SCC 71. In the said judgment, the Hon’ble Supreme Court",,,,,
held that absorption and regularization in service can be claimed or granted only when the contract of employment subsists and it is in force inter se,,,,,
between the employee and the employer. It has been categorically held that once the employment comes to an end either by efflux of time or as per,,,,,
terms of the contract of employment or by its termination by the employer, then the relationship of employee and employer comes to an end and no",,,,,
longer subsists, except for the limited purpose of examining the legality and correctness of its termination.",,,,,
29) It was sought to be argued on behalf of the respondents-workmen that the aforesaid judgment of the Hon’ble Supreme Court would not apply,,,,,
to the facts of the present case because in the said case, the Hon’ble Supreme Court was considering an industrial dispute under section 10 of the",,,,,
Industrial Disputes Act, 1947, which necessarily referred to the concept of ‘continuous service’ under section 25-B of the Act of 1947, as",,,,,
distinguished from clause 2(g)(viii) of the Model Standing Orders with which this Court is concerned in the present cases. But, the said distinction",,,,,
sought to be made on behalf of the respondents-workmen is unacceptable because this Court finds that the respondents-workmen cannot be said to be,,,,,
in a situation of unemployment being involuntarily foisted upon them under clause 2(g)(viii) of the Model Standing Orders. Once such a finding is,,,,,
rendered, it cannot be held that the respondents-workmen continued in ‘uninterrupted service’ despite the fact that their last dates of",,,,,
employment were between 9 and 23 years before they chose to approach the Industrial Court in the years 2010-2011. The ratio laid down by the,,,,,
Hon’ble Supreme Court in the aforesaid judgment applies to the present cases also and the Industrial Court could not have entertained the prayer,,,,,
for permanency and regularization made on behalf of the respondents-workmen when they had ceased to be in employment of the petitioner-Company,,,,,
between 9 and 23 years before filing the complaints.,,,,,
30) In this context, judgment of a learned Single of this Court in the case of Kinetic Engineering Ltd., Ahmednagar v. Barku, reported in 2019-III-LLJ-",,,,,
660 (Bom) is also relevant. By referring to clause 2(g)(viii) of the Model Standing Orders, this Court in the said judgment rejected the contention",,,,,
raised on behalf of the workmen that few months of employment in a particular year and then another few spells of such employment after three,,,,,
years would have to be clubbed together to hold that the workmen had been working for five continuous years in the establishment. This Court held,,,,,
that if such interpretation was given to the concept of uninterrupted service, it would lead to disastrous consequences.",,,,,
31) It is also relevant that the contention raised on behalf of the respondents-workmen that they had completed more than 240 days of work in a,,,,,
calendar year if the artificial breaks in their employment were ignored, cannot be accepted. It is of significance that such a contention is sought to be",,,,,
raised on behalf of the respondents-workmen while claiming permanency, by filing complaints 9 to 23 years after their last dates of employment.",,,,,
Having failed to show any willingness to work with the petitioner-Company for all these years, it cannot lie in the mouth of the respondents-workmen",,,,,
that their intermittent service with the petitioner-Company in temporary capacity all these years ago deserves to be clubbed together to hold that they,,,,,
had completed 240 days in a calendar year, thereby justifying their claim for permanency in service. Such a contention can certainly not be accepted.",,,,,
32) In the case of Mohd. Ali v. State of H. P., reported in (2018) 15 SCC 641, the Hon’ble Supreme Court considered a case where workmen",,,,,
had worked for different number of days in calendar years with the employer. After taking into consideration the undisputed data on record and the,,,,,
concept of ‘continuous service’ as it then existed, the Hon’ble Supreme Court found that the workmen had not completed 240 days in a",,,,,
calendar year in the immediate preceding year of their dismissal and, therefore, the reliefs claimed by them could not be granted. Although, it is",,,,,
vehemently submitted on behalf of the respondents-workmen herein that the said case pertained to the provisions of the Act of 1947 and in the present,,,,,
case this Court is concerned with the concept of ‘uninterrupted service’ under clause 2(g)(viii) of the Model Standing Orders, this Court is not",,,,,
impressed with the distinction sought to be made. Even if clauses 4-B, 4-C, 4-D and 4-E of the Model Standing Orders are taken into consideration, it",,,,,
cannot be said by any stretch of interpretation that in the complaints filed by the respondents-workmen herein after 9 to 23 years of their last dates of,,,,,
employment with the petitioner-Company, they could successfully claim that they had completed 240 days of continuous and uninterrupted service on",,,,,
the basis that they were covered under clause 2(g)(viii) of the Model Standing Orders. Therefore, it becomes clear that the Industrial Court committed",,,,,
an error in holding in favour of the respondents-workmen in this context.,,,,,
33) On the aspect of continuous and recurring cause of action, this Court finds that the Industrial Court erred in holding that not only were the",,,,,
complaints filed by the respondents-workmen within limitation, but they did not suffer from delay and laches. There is no dispute about the fact that",,,,,
complaints could be filed under section 28 of the Act of 1971, within 90 days of occurrence of the unfair labour practices complained of. In the",,,,,
present case, the respondents-workmen have claimed that their complaints were within limitation because the cause of action occurred every time the",,,,,
petitioner-Company ignored their right and employed other workmen. This interpretation is flawed, for the reason that unfair labour practices claimed",,,,,
by the respondents-workmen under Items 5 and 9 of Schedule IV of the Act of 1971, would occur provided the respondents-workmen first cross the",,,,,
threshold of proving that they were in uninterrupted service of the petitioner-Company. The pleadings and evidence on record show that the,,,,,
respondents-workmen were all along aware from the last dates of employment with the petitioner-Company that certain other workmen were being,,,,,
offered employment. The respondents-workmen could have shown willingness of employment with the petitioner-Company and immediately,,,,,
represented before the Company about the alleged bias and favourtism being shown in favour of workmen junior to them or fresh workmen from the,,,,,
market, to claim unfair labour practice under Item 5 to Schedule IV of the Act of 1971. Such grievance regarding unfair labour practice under Item 9",,,,,
to Schedule IV of the Act of 1971, could also have been immediately raised by the respondents-workmen.",,,,,
34) But, they chose not to raise such a grievance and leisurely walked into the Industrial Court after a gap of 9 to 23 years of their last dates of",,,,,
employment and occurrence of cause of action, by filing complaints in the years 2010-2011. In such a situation, the Industrial Court could not have",,,,,
held that the complaints were filed within the limitation period of 90 days of the occurrence of the unfair labour practice. Such complaints were clearly,,,,,
hit by delay and laches. The fact that the respondents-workmen chose not to represent before the petitioner-Company regarding their claim and,,,,,
further chose to file the complaints after such a long period of time, clearly indicates lack of willingness to agitate their claim, thereby indicating that",,,,,
there was no live grievance or dispute sought to be agitated by them when they eventually filed their complaints before the Industrial Court.,,,,,
35) In the case of Prabhakar v. Joint Director of Sericulture Department, reported in (2015) 15 SCC 1, the Hon’ble Supreme Court has dealt with",,,,,
this aspect of what could be said to be a live dispute and what would be the effect of delay, laches and acquiescence in the context of a grievance of",,,,,
a workman against his employer. After referring to the maxim ‘delay defeats equities’, the Hon’ble Supreme Court has held that if the",,,,,
workman fails to raise a dispute even when there is no period of limitation specified and chooses to raise such a dispute belatedly, the Court would",,,,,
have to examine as to whether the grievance/dispute sought to be raised remained alive or it was to be treated as dead. It was held that if the,,,,,
grievance/dispute is found not to be alive, the Court can refuse to entertain such a grievance/dispute. The Hon’ble Supreme Court held in",,,,,
paragraph 41 as follows:,,,,,
“41. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the court, if the action is not",,,,,
brought within that prescribed period the aggrieved party loses remedy and cannot enforce his legal right after the period of limitation is over.,,,,,
Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided",,,,,
under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the",,,,,
presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity are based",,,,,
on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is non-existent.â€,,,,,
36) In the present case, there is a specific period of limitation of 90 days provided under section 28 of the Act of 1971, under which the respondents-",,,,,
workmen sought to raise their grievance and they miserably failed to demonstrate how their complaints could be said to be either within limitation or,,,,,
that they did not suffer from delay and laches. The Industrial Court failed to appreciate this aspect of the matter, while entertaining the complaints",,,,,
filed by the respondents-workmen. Once a conclusion is reached that the theory of continuous and recurring cause of action raised on behalf of the,,,,,
respondents-workmen cannot be accepted, it becomes clear that the respondents-workmen could be treated as workmen/employees only for the",,,,,
purpose of challenging the termination of their services.,,,,,
37) In the present case, as the chart shows, the last dates of employment of the respondents-workmen with the petitioner-Company were about 9 to",,,,,
23 years before they filed the complaints before the Industrial Court. The cessation of their employment or the termination of their services could have,,,,,
been challenged only before the Labour Court. The respondents-workmen chose not to take any steps for long period of time with regard to their,,,,,
cessation of employment with the petitioner-Company upon completion of specific periods for which they were appointed. Therefore, in the years",,,,,
2010-2011, the challenge to termination of their services raised by the respondents-workmen was also hopelessly barred by limitation. Even otherwise,",,,,,
such a grievance could not have been raised in the complaints before the Industrial Court. Therefore, there is substance in the contention raised on",,,,,
behalf of the petitioner-Company that the Industrial Court did not have jurisdiction to entertain the complaints filed on behalf of the respondents-,,,,,
workmen. A perusal of the pleadings in the complaints would show that the respondents-workmen, in a convoluted manner, by claiming right of",,,,,
permanency and regularization, were in effect challenging termination of their service, which was impermissible. The theory of continuous and",,,,,
recurring cause of action based on clause 2(g)(viii) of the Model Standing Orders is found to be unacceptable by this Court and therefore, it is found",,,,,
that the Industrial Court erred in entertaining the complaints of the respondents-workmen in these cases.,,,,,
38) The learned senior counsel appearing for the respondents-workmen has placed much emphasis on the aforementioned judgments of the Division,,,,,
Bench and the learned Single Judge of this Court in cases of workmen, who had filed complaints in the years 2001 and 2004. It is contended that",,,,,
although the Hon’ble Supreme Court held in its order dated 03/07/2015 that the said judgments shall not be treated as binding precedents, they",,,,,
indeed were binding on the Industrial Court and that in any case, the said judgments did have persuasive value before this Court. On a pointed query",,,,,
put to the learned senior counsel regarding the effect of the observation in last paragraph of the order of the Hon’ble Supreme Court dated,,,,,
03/07/2015, it was conceded that the questions of law had been kept open and that it was specifically directed that the judgments of the Division",,,,,
Bench and the learned Single Judge of this Court shall not operate as binding precedents. Thus, it is evident that this Court can proceed on the facts",,,,,
pertaining to the cases as projected by the rival parties in these writ petitions. The findings rendered by the Division Bench and the learned Single,,,,,
Judge of this Court, cannot be binding precedents as per the order dated 03/07/2015 passed by the Hon’ble Supreme Court. Therefore, the",,,,,
Industrial Court completely erred in copiously referring to and relying upon the findings in the aforesaid judgments to hold in favour of the respondents-,,,,,
workmen herein.,,,,,
39) Even otherwise, this Court is of the opinion that the aforementioned judgments of the Division Bench and the learned Single Judge of this Court",,,,,
were in the facts of those cases and that the facts in these writ petitions are distinguishable. A perusal of the aforementioned judgments of the,,,,,
Division Bench and the learned Single Judge of this Court would show that complaints were filed by the workmen therein in the years 2001 and 2004.,,,,,
A perusal of the facts mentioned in detail in the judgment of the learned Single Judge of this Court in writ petitions arising from complaints filed in the,,,,,
year 2004, would show that when the complaints were filed, the workmen were in employment of the petitioner-Company, after a gap from the earlier",,,,,
period of employment. In fact, the workmen therein, concerning judgment and order dated 19/09/2006 passed by the learned single Judge of this Court",,,,,
in the case of Mahindra and Mahindra Limited v. Shri Manoj and another, reported in 2007(1) ALL MR 800, would show that the workmen had been",,,,,
all along pursuing their claim by filing complaints in the year 2003 itself. It was when the said workmen were again taken into employment in the year,,,,,
2004 that they withdrew their earlier complaints and pursued the complaints filed in the year 2004, wherein they had specifically claimed the relief of",,,,,
permanency and regularization.,,,,,
40) Thus, the workmen therein had shown their willingness to work with the petitioner-Company and they had indeed been taken into employment in",,,,,
the year 2004 again with the petitioner-Company, when they actually filed their complaints claiming permanency and regularization. It was in the",,,,,
context of such facts that the learned Single Judge and the Division Bench of this Court, in the earlier sets of litigation, held that when the workmen",,,,,
therein were willing to work with the petitioner-Company, but they were taken into employment after workers junior to them had been offered",,,,,
employment and granted permanency, there was a case of unfair labour practice against the petitioner-Company. It was in the context of such",,,,,
peculiar facts that in the said judgments, the Division Bench as well as the learned Single Judge of this Court held that relief granted by the learned",,,,,
Industrial Court could not be interfered with.,,,,,
41) The facts in the present case are clearly distinguishable, because the respondents-workmen herein chose to approach the Industrial Court after 9",,,,,
to 23 years of their last dates of employment with the petitioner-Company. They were not in employment when they filed the complaints seeking,,,,,
permanency and regularization, thereby showing that even if the judgments of the Division Bench and the learned Single Judge of this Court are",,,,,
treated to be of persuasive value, they would not apply to the facts of the present cases. The respondents-workmen herein have miserably failed to",,,,,
prove on the basis of pleadings and evidence that they would fall within the definition of ‘uninterrupted service’ under section 2(g)(viii) of the,,,,,
Model Standing Orders. The Industrial Court completely failed to appreciate this aspect of the matter while relying upon the aforementioned,,,,,
judgments of the Division Bench and the learned Single Judge of this Court and allowing the complaints of the respondents-workmen.,,,,,
42) The learned senior counsels for the rival parties have placed on record written notes of arguments in support of their respective stands. It has,,,,,
been highlighted in the note filed on behalf of the petitioner-Company that in one of the complaints, the case of a trainee was involved. It was",,,,,
emphasized that a perusal of the Model Standing Orders, particularly clause 2(F) would show that such a person is only a learner who may or may not",,,,,
be paid allowance during the period of his training. Reliance was placed on the judgment of the Hon’ble Supreme Court in the case of U.P. State,,,,,
Electricity Board v. Shiv Mohan Singh, reported in (2004) 8 SCC 402, to contend that an apprentice or trainee cannot be equated with an employee",,,,,
because there is no relationship of master and servant or employer and employee. It was laid down that there was no obligation on the part of the,,,,,
employer to provide employment to such an apprentice/trainee. The said position of law appears to be clearly in favour of the petitioner-Company.,,,,,
But, in any case, in view of findings rendered by this Court against the respondents-workmen with regard to the very applicability of the concept of",,,,,
uninterrupted service under clause 2(g)(viii) of the Model Standing Orders, it would not be necessary to deliberate any further on the said issue.",,,,,
43) The learned senior counsel appearing for the petitioner-Company had referred to the judgments rendered by the learned Single Judge and Division,,,,,
Bench of this Court pertaining to the workmen of the petitioner-Company who had filed complaints in the years 2000 and 2004, which ultimately",,,,,
culminated in settlements between the parties. The said judgments have been referred to above and therefore, they do not need be separately dealt",,,,,
with.,,,,,
44) The learned senior counsel appearing for the respondents-workmen did place on record compilation of judgments along with written notes of,,,,,
arguments, but specific emphasis was placed only on few judgments. It was submitted that the judgment of the Hon’ble Supreme Court in the",,,,,
case of S. Shanmugavel Nadar v. State of Tamilnadu, reported in (2002) 8 SCC 361, laid down that doctrine of merger did not apply when a special",,,,,
leave petition was dismissed on technical grounds. It was contended that if the ratio of the said judgment was appreciated, the order dated 03/07/2015",,,,,
passed by the Hon’ble Supreme Court, referred to above, would not lead to a merger of the judgments of the Division Bench and the learned",,,,,
Single Judge of this Court. The said contention is misplaced for the reason that the order dated 03/07/2015 passed by the Hon’ble Supreme Court,",,,,,
referred to above, clearly is in the context of the said judgments of the Division Bench and the learned Single Judge of this Court and it has been",,,,,
emphatically stated that all questions of law have been kept open, further directing that the said judgments of the Division Bench and the learned",,,,,
Single Judge of this Court shall not operate as binding precedents.,,,,,
45) Emphasis was also placed on judgment of learned Single Judge of this Court dated 19/09/2006 in the case of Mahindra and Mahindra v. Manoj,,,,,
and another (supra). But, the same has been dealt with herein above and it has been already held that even if the same is found to be of persuasive",,,,,
value, the facts in that case are clearly distinguishable from those in the case of the respondents-workmen herein. The learned senior counsel for the",,,,,
respondents-workmen also relied upon judgment of the Hon’ble Supreme Court in the case of State of U. P. v. Arvind Kumar Srivastav, reported",,,,,
in (2015) 1 SCC 347, to contend that the authorities were under an obligation to extend benefit to all similarly situated persons when judgments in rem",,,,,
granted relief to similarly situated employees. The said contention cannot be accepted for the reason that the judgments rendered by the Division,,,,,
Bench and the learned Single Judge of this Court were in specific cases wherein the workmen had approached the Industrial Court way back in the,,,,,
years 2001 and 2004. The facts of the present cases are clearly distinguishable as found above and therefore, it cannot be said that similar relief ought",,,,,
to be granted to the respondents-workmen herein.,,,,,
46) In view of the above, this Court finds that the Industrial Court committed errors in accepting the contentions raised on behalf of the respondents-",,,,,
workmen. As a consequence, the complaints filed by the respondents-workmen were not only erroneously entertained, but substantial relief was",,,,,
granted to them even though the respondents-workmen chose to file complaints in the years 2010-2011 for perceived grievances that occurred way,,,,,
back in point of time. The entire approach of the Industrial Court was fraught with errors, leading to the impugned judgments and orders granting the",,,,,
reliefs of permanency, regularization and all consequential monetary benefits to the respondents-workmen, who did not deserve the same in facts and",,,,,
law.,,,,,
47) Consequently, the writ petitions are allowed. The impugned judgments and orders passed by the Industrial Court are quashed and set aside and the",,,,,
complaints filed by the respondents-workmen are dismissed. Rule is made absolute in the above terms. No order as to costs.,,,,,