- (1.) THIS is an appeal against the judgment dated July 31, 1995 of the learned single Judge which allowed the petition filed by the respondent workman and held that the respondent workman was entitled to reinstatement as a permanent employee. The order of the Industrial Court dated October 22, 1993 dismissing the complaint, therefore, was set aside.
(2.) AT the hearing of this appeal on behalf of the appellant learned counsel contends that there is a settlement existing between the recognised union and the respondent. That settlement provides for the number of permanent workers to be engaged in a particular department. Once a settlement was existing merely because thereafter additional model Standing Orders were notified would be of no consequence. In this case more specifically Model Standing Order 4-C reads as under: a badli or temporary operative which had put in 240 days uninterrupted service in the aggregate in any other undertaking during the period of preceding twelve calendar months shall 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. "explanation - For the purpose of this clause any period of interrupted service, caused by cessation of work which is not due to any fault of the operative 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 operative permanent. " The learned counsel points out that the learned single Judge proceeded to allow the petition relying on the said Model Standing orders. Attention is invited of the Court to an earlier judgment in the case of Luddur algoo Yadav v. General Manager, India united Mills and Ors. , 1998-III-LLJ (Suppl)-166 (Bom) wherein the learned Judge relying upon the Settlement had taken a view that a workman could not be made regular contrary to the settlement. It is pointed out that it is no doubt true that there are several judgments of learned single Judges who have taken the view taken in the judgment under appeal. In the matter of Rashtriya Mill mazdoor Sangh v. S, L. Mehendale, Member, industrial Court, Bombay and Anr. 2000-III-LLJ (Suppi)-1178 (Bom) the learned single Judge relied on the judgment passed in writ Petition No. 1358 of 1997 as also the judgment of another learned single Judge in new Hind Textile Mills Unit of N. T. C. (SM)Ltd. v. Rashtriya Mill Mazdoor Sangh, 2004-I-LLJ-152 (Bom ).
(3.) ON the other hand on behalf of the respondents learned counsel points out the judgment of the Apex Court in Western India match Company Ltd. v. Workmen AIR 1973 sc 2650: 1974 (3) SCC 330: 1973-II-LLJ-403 wherein in paragraph 8 the Apex Court has observed as under at p. 406 of LLJ: "5. If a prior agreement inconsistent with the standing orders will not survive, an agreement posterior to and inconsistent with the standing order should also not, prevail. Again, as the employer cannot' enforce two sets of standing orders governing the classification of workmen, it is also not open to him to enforce simultaneously the standing orders, regulating the classification of workmen and a special agreement between him and an individual workman settling his categorisation. ";