(1.) THE petitioner is a company owning a factory at Jamul for manufacturing cement.
(2.) BY a notification, dated 31 December 1960, issued by the State Government In exercise of its powers under Section 1 (3) of the Madhya Pradesh Industrial Relations Act, 1960 (hereinafter referred to as the Act), the Government applied the provisions of the Act to "undertakings in the industries" specified in the schedule to the notification, which included " (cement" The construction of the petitioner's cement factory started in 1960-61. The factory went into production in 1965. Even after 1985 construction of two kilns continued. in December 1965. a dispute arose between the petitioner and respondent 2, the Cement Labour Union, Bhilai, as regards the employment of a large number of workers by the petitioner with intermittent break of a few days; the respondent-union alleged that this practice of the petitioner employing workman with intermittent breaks of a few days in their service was an unfair labour practical adopted with a view to depriving the workman of the benefits of permanency, retrenchment compensation, etc. As the dispute was not resolved by consolidation, the state Government, acting under Section 51 of the Act, referred the dispute to the industrial tribunal for arbitration in the following words: Whether the appointment of the employees on periodical contracts by the Jamul Cement Works of the Associated Cement Company, Ltd. , Jamul, is proper ? If not, to what relief they are entitled and from which date ? On the statements filed before the tribunal on behalf of the petitioner and the respondent-union, the tribunal framed the following issues: (1) Whether the dispute before the consolidator was restricted only to 33 persons including 28 named in the annexure A to the statement of claim, as alleged by party 2? Or was it of a general nature affecting approximately 400 workmen as stated by party 1? (2) Should the scope of the reference made by the State Government be restricted to the persons who were named in the dispute before the conciliator ? (3) Do the standing orders apply to labour which was engaged in construction work ? If so, what is the effect ? (4) Is the work of construction in this case an industry to which Madhya Pradesh Industrial Relations Act applies ? (5) Is the practice of employing labour for fixed periods an unfair labour practice ? (6) Whether the appointment of the employees on periodical contracts by the Jamul Cement Works of Associated Cement Company, Ltd. , Jamul, is proper ? If not, to what relief they are entitled and from which date ? The learned president of the tribunal held that the reference nude by the Government was of a general nature, and not with reference to any particular worker; that the constructional work was not is clamed and detached from the work of the factory itself but was essential " for the purpose of bringing into existence the necessary factory building with proper installation of machinery for the purpose of producing cement," and that, therefore, the constructional work was a part of "cement industry," and, consequently, the Act applied and the reference made to the tribunal was not bad. The tribunal further held that the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961, applied to the cement Industry, as also to the constructional work therein; that the standard standing orders were also applicable to the petitioner's concern; and that in view of the definition of " temporary employee " given in Clause (vi) of standard standing order 2, the practice adopted by the petitioner of employing workmen for less than six months with breaks of three to five days was not bona fide but was one adopted " only to break the continuity of employment to escape from the standing orders. " The tribunal summed up its conclusions thus : (i) The appointment of employees on periodical contracts is not proper during the period daring which the construction is continuing. (ii) The workers are entitled to be treated as permanent for the purposes of the standard standing orders and shall have all the rights which these orders give to a permanent employee. The date from which the benefit is to be given shall have to be decided as a question of fact in each case, if and when a dispute arises. The petitioner now seeks a writ of certiorari for quashing the award of the tribunal.
(3.) SRI Nanavati, learned Counsel appearing for the petitioner, assailed the validity of the award by arguing that the Madhya Pradesh Industrial Relations Act, 1960, applied only to undertakings in the Industries notified under S 1 (3) thereof; and under Section 2 (13) of the Act an "employee " meant a person employed in a notified Industry or undertaking; the notification issued by the Government on 31 December 1960 under Section 1 (3) of the Act no doubt applied the Act Inter alia to " Cement"; this meant that the Act was made applicable to an industry manufacturing Cement; the constriction of a Cement factory was in no way a part of Cement-manufacturing industry; nor was it any operation incidental to the main industry of manufacturing Cement; and, therefore, the Act was not applicable to employees working on the constructional side, and the references of the dispute in question by the State to the tribunal was invalid. Learned counsel proceeded to say that though the reference of the dispute was made in general terms, before the tribunal there was no dispute between the parties; that the dispute was restricted to the employment of temporary workers on constructional work, and that in fact no demand was ever made on behalf of the workers employed on the production side for being given the benefits of permanent employment. It was further said that the standard standing orders were not applicable to every undertaking to which the Madhya Pradesh Industrial Employment (Standing Order) Act, 1961, applied by virtue of Section 2 thereof, and that as laid down by Section 6 of that Act the standard standing orders were applicable only to such class of undertaking to which the State Government may, by notification, apply the standard standing orders. It was pointed out that the notification No. 1905-839-XVI, dated 14 March 1963, which the Government Issued in exercise of its powers under Section 6 (1) of the Midhya Pradesh Industrial Employment (Standing Orders) Act, 1061, applied the said standing orders only to the undertakings specified in the table appended to the notification, that this table Included 'cement," that as the construction of a Cement factory was not a part of Cement Industry, therefore, the standard standing orders were not applicable to workers employed in the construction of the Cement factory, and that the tribunal was, therefore, in error in relying on the definition of " temporary employee " given in Clause (vi) of standard standing order 2. It was also submitted that even on the definition of " temporary employee" an employee who has been employed for work, which is essentially of a temporary character, is a temporary employee, that the constructional work of a Cement factory is necessarily of a temporary character, and that being so, all workers employed on the construction of a factory are temporary employees.;