B.N.Agrawal, J. - (1.) THESE appeals by special leave have been filed by appellant- Company against judgment rendered by Aurangabad Bench of Bombay High Court in writ applications whereby Award made by Industrial Court, Aurangabad, in the individual complaints filed by respondents-workmen has been modified.
(2.) THE short facts are that the respondent-workmen. 1197 in number, who were in employment of the appellant-Company in its factory at Bajaj Nagar, Waluj, within the District of Aurangabad, filed individual complaints before the Industrial Court at Aurangabad, under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the 1971 Act') complaining thereunder that unfair labour practices enumerated in item Nos. 5,6,9 and 10 of Scheduled IV appended to the 1971 Act were employed by the appellant-Company in the establishment in question. According to the workmen, they were appointed as welder, fitter, turner, mechanic, helper, grinder, etc., and were working since the year 1990 and used to be granted employment in each year for about a period of seven months and expiry of the said term their services used to be discontinued, which practice went on for a period of seven years till before filing of the complaints by them in the year 1997. It was stated that a rotation system was followed by the appellant-Company whereby different set of workmen came to be appointed by rotation displacing the workmen appointed earlier which was indicative of the fact that work of permanent nature was available with the appellant-Company, but the rotational system was introduced by it with a view to deprive the workmen of rights and privileges of permanent employees so that they may not be entitled to claim benefit of permanency on completion of 240 days uninterrupted service in the aggregate in any establishment during a period of preceding twelve calendar months as envisaged under rule 4C of the Model Standing Orders which was applicable to the establishment in question. The appellant-Company contested claims of the workmen by stating that conditions of employment of the workmen were governed by the Standing Orders, duly certified on 10th March, 1986 by the Certifying Officer under the provisions of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the 1946 Act') wherein there was no provision akin to rule 4C of the Model Standing Orders. According to the appellant-Company, it had employed 4250 workmen on permanent basis so as to meet the requirement of normal production. However, due to periodical fluctuations of a temporary nature in the quantum of production at the factory from time to time, dictated by the conditions at the national and international market, to which the said establishment is exposed, the work force is increased or decreased. In order to meet the fluctuations, the appellant-Company was required to employ workmen on temporary basis and. so also, as to when production decreased, it was required to terminate services of the temporary workmen. Further, as, undisputedly, none of the workmen had worked continuously for 240 days, much less during a period of preceding twelve calendar months, they were not entitled to claim any benefit on that count. In support of their respective cases, both the parties led oral and documentary evidence and the Industrial Court came to the conclusion that no unfair labour practice, as enumerated in Item Nos. 5 and 10 of Scheduled IV, could be established, but found that the workmen had succeeded in proving the unfair labour practices enumerated under item Nos. 6 and 9 of the said Schedule. After recording the aforesaid findings vide Award dated 9.11.2000 the Industrial Court directed the appellant-Company "how many permanent employees are required as per the production norms be fixed and after making the employees permanent from these temporary employees, if there is a need of any temporary workers, they can engage but after absorbing all these complainants in the employment they can engage temporary workers, as per seniority". The appellant-Company was further directed "to prepare a seniority list of all the temporary workers who are in employment and who are not in the employment and give them continuous work and after completion of 240 days of service, make them permanent in the employment".
(3.) AGGRIEVED by the aforesaid Award, five writ applications were filed before the High Court on behalf of the workmen challenging the aforesaid directions of the Industrial Court. The appellant-Company also filed a writ application challenging the directions regarding permanency and finding of the Industrial Court whereby it had come to the conclusion that the appellant-Company had employed unfair labour practice in its establishment in relation to matters enumerated in item Nos. 6 and 9 of Schedule IV. During the pendency of the writ applications, on prayer being made on behalf of the workmen, the High Court by its order dated 30th November, 2000 directed the appellant-Company to continue services of the workmen, although liberty was granted to it to terminate services of any of the workmen after observing legal requirements. but in spite of that order on 9.1.2001 the services of all the respondents-workmen were terminated. By the impugned order passed on 8.9.2001, the High Court dismissed the writ application filed on behalf of the appellant-Company, but, while upholding the finding of unfair labour practice recorded by the Industrial Court, set aside the ultimate direction given by it and found that as the termination of services of the respondents- workmen was in violation of interim order passed by the High Court on 30th November, 2000. they were entitled to restitution. In effect and substance, it was directed that the respondents-workmen shall be reinstated in service with 50% back wages from 10th January, 2001 till the date of High Court judgment. The Court further directed that the services of the respondent-workmen shall be regularised and they be made permanent from the date of filing the complaints before the Industrial Court. Challenging the aforesaid judgment, the present appeals by special leave have been filed by the appellant-Company. Shri. J.P. Cama, learned Senior Counsel, in support of the appeals submitted that the appellant-Company had not employed any unfair labour practice enumerated under item No. 6 of the Schedule inasmuch as rule 4C of the Model Standing Orders, whereby a right of permanency could be acquired by a workmen upon completion of uninterrupted service of 240 days in the aggregate in an establishment during a period of preceding twelve calendar months. was not applicable in the present case in view of the fact that there was no such rule in the Standing Orders duly certified. On the other hand, Shri K.K. Singhvi, learned Senior Counsel appearing on behalf of the respondents-workmen, submitted that under law rule 4C of the Model Standing Orders which related to matters set out in Item No. 10-C of the Schedule appended to the 1946 Act, as amended by the State Legislature, could not have been deleted while certifying the amendments in the Model Standing Orders by the competent authority and the said Order to that effect being in violation of the mandatory provisions of law is ab initio void and has got to be ignored, meaning thereby rule 4C would be applicable in the case on hand.;