- (1.) The crucial question that falls for consideration in the present case is whether the award dated 31-8-1984 of the Industrial Tribunal (hereinafter referred to as 'Patankar Award') is applicable to the seasonal employees involved in the present proceedings. To appreciate the controversy between the parties, the facts and events which preceded and succeeded the said award have also to be looked into. The State Government under Section 42 of the Maharashtra Raw Cotton (Procurement, Processing and Marketing) Act, 1971, appointed the Maharashtra Co-operative Marketing Federation (hereinafter referred to as 'Marketing Federation'), a co-operative society, as the chief agent to implement the Cotton Monopoly Procurement Scheme (the 'Cotton Scheme'). The Marketing Federation was before that date engaged in the marketing of several commodities. From that date onwards till 31-8-1984, it continued to act as the chief agent of the State Government for procurement, processing and marketing of cotton as well. For this purpose it recruited and maintained a separate section with a separate staff. The staff consisted of those who were needed throughout the year and those who were needed only during the season. The cotton trade (which expression will include procurement, processing and marketing of cotton) in Maharashtra is mostly in Vidarbha, Marathwada and Khandesh region, and commences roughly in the first week of November and extends up to April of the next year. In Western Maharashtra, there is hardly any crop of cotton and the season there commences in August and ends in November of the same year. The Cotton Scheme introduced by the Government has three aspects, (i) procurement, (ii) processing and (iii) marketing. The first two activities extend over four to six months in a year depending upon the extent of the availability of the crop. The third stage viz., marketing and also the function of maintenance of accounts are spread over throughout the year. The seasonal employees are needed only for the first two stages viz., procurement and processing which last for a limited period as stated above. The seasonal employees engaged in the said two activities consist of Weighment Clerks, Seed Clerks, Heap Clerks, Ginning Supervisors, Press Supervisors etc. who work at the collection centres and the processing centres. On an average, the seasonal employees are about twice the number of the perennial employees. It appears that an industrial dispute having arisen between the employees and the Marketing Federation, the same was referred by the State Government for adjudication to the Industrial Tribunal consisting of Shri G. K. Patankar by' the reference order of 30-5-1973. The terms of reference show that in all 16 demands of the employees were referred to the said Tribunal and one of the demands with which we are concerned was demand No. 4 relating to permanency. That demand read as follows: "Demand No. 4: Permanency:- All the workmen who have put in three months' aggregate service for 78 or more working days in aggregate in spite of any intervening breaks should be immediately confirmed in writing as permanent workmen." None of the demands referred to the. Tribunal including the aforesaid demand No. 4 suggested that they related to the seasonal employees. All the demands were in relation to the perennial employees. The statement of claim filed in the Reference by the Union on behalf of the workmen did not also refer anywhere to the seasonal employees. On the other hand, in relation to the aforesaid demand for permanency, it referred to all temporary' workmen and specifically pointed out that at that time, there were about 400 workmen who had put in more than five years' service. But still they were termed as temporary. It also observed that the work of the Marketing Federation had increased considerably' and it required a large number of permanent staff, and that the services of the temporary workmen could be terminated at any time which was inequitable. In its written statement, the Marketing Federation also proceeded on the basis that all the said demands related only to the perennial employees. While, however, referring to the aforesaid demand for permanency, the written statement observed as follows: "9. With regard to demand No. 4 'Permanency" the Federation states that it is willing to make permanent all employees who have completed 3 years of continuous service. The period mentioned in the statement of claim for all employees who have put in 3 months' continuous service for making them permanent is too small a period to judge the capacity and ability of the employee. The Federation. therefore, agrees in principle that an employee should not remain temporary for a long time and 3 months' period of service for permanency is too short for judging the capacity and ability of an employee before he is made permanent in the organisation. 10. With regard to the contents of para 13 of the statement of claim, the Federation states that for carrying out the activities of the Federation it has to employ workmen either on temporary basis or on seasonal basis depending upon the nature of work load of different activities that the Federation has to discharge at the instance of the State Government. The Federation, therefore, feels that no period should be laid down in respect of purely temporary and in seasonal employment. In the submission, therefore, of the Federation, the rule of permanency' should apply only' to employees who are recruited against the permanent post and it should not apply to the purely temporary or casual employees or seasonal employees who have to be recruited in times of emergency. We have quoted the aforesaid two paragraphs from the said written statement verbatim, for an argument has been advanced by' the respondent-Union of Workmen, that notwithstanding the fact that the demands as raised and the statement of claim filed on behalf of the workmen in the Reference did nowhere refer to the seasonal employees, the reference by the Marketing Federation to the workmen employed on seasonal basis in the written statement as above, shows that the industrial dispute referred to the Tribunal and the Tribunal's award related to the seasonal employees as well. We will deal with this argument at its proper place. Shri Patankar while giving his award on 31-8-1984 disposed of the said demand for permanency in para 19 of the award in the following cryptic language "19. The next demand is in respect of permanency. It is alleged by the Union that the workers who have put in three months of aggregate service and have put in 78 or more days as working days in spite of any breaks in service, be made permanent. The Federation opposes this demand and contends that it is willing to confirm all the employees who have put in three years of continuous service. Considering, therefore, the arguments advanced for both the sides, it appears that it would be proper to direct that those employees who have put in 240 days of continuous service be treated as permanent employees." It will be apparent from the aforesaid portion of the award, which is the only direction in the award relating to the said demand that the direction also did not refer to the seasonal employees. There is no dispute that after this award, the same system of seasonal employees continued till the present order dated 14-9-1990 of the Industrial Court with which we are concerned and from which the present proceedings have arisen. There is also no dispute that as per the Patankar Award, the temporary perennial employees were made permanent but the seasonal employees on the date of the award continued as such without demur. On the other hand, subsequently. there were four settlements entered into between the Marketing Federation and the Union of seasonal employees. The first settlement is of 12-6- 1980 and related to (i) revision of consolidated salary and annual increment in the consolidated salary' of certain categories of the seasonal employees; (ii) redesignation of some of the categories of the said employees; (iii) retention allowance to be paid to them: and (iv) absorption of the seasonal employees in the permanent vacancies in the perennial posts according to seniority and merit. It may be mentioned here that the settlements on increments in the consolidated salary specifically stated that those of the seasonal employees who had to put in more than three seasons of employment would be entitled to two increments. So also, the settlement on retention allowance stated that the seasonal employees on consolidated salary shall be disengaged at the end of the season, and during the period of non-employment, they would be entitled to 25 per cent of the monthly wages prevailing in the past cotton season and that it would not exceed half month's wages during the year. It, however, mentions that the retention allowance would be paid to the seasonal employees till they were re-employed at the commencement of the next cotton season. The next settlement is of 11-12-1981. It spoke of the vacancies of the perennial clerks, stenographers, peons and watchmen at the Head Office and Divisional and Sub-Divisional offices being filled in from the seasonal employees on seniority-cum-merit basis and the seasonal employees above 58 years of age being not eligible for such appointments. It also spoke of all vacancies in Class Ill and IV cadres of the cotton department of the Marketing Federation being filled in from among the seasonal employees again on seniority-cum-merit basis. It then spoke of the seasonal employees, excluding watchmen, who had put in eleven months or more of employment during 1979-80 season including technical breaks being regularised in the pay-scale of Rs. 130-400/-. That term of the settlement was clarified by further stating that the said seasonal employees would be regularised according to Divisional seniority' and on the basis of seniority-cum-merit. The clarification further mentions that the said appointment would not change the nature of their duties and they would not be paid retention allowance. The settlement further stated that excluding the said employees who were regularised. others would be entitled to the interim hikes of certain amounts in their consolidated salaries. The settlement also provided that the agricultural graduates from among the seasonal employees would be suitably trained and appointed as Graders. This settlement made an important provision for appointment of a committee to consider the problems of the seasonal employees. The Committee was to consist of a representative each of the cotton cultivators, the Marketing Federation, the State Government and the seasonal employees. The Committee was to submit its recommendations before February, 1982 and the State Government was to take a decision thereon within one month of the recommendations and implement the acceptable recommendations. The matters which were to be referred to the Committee were mentioned in the schedule to the settlement and they were (i) the strength of the seasonal employees required to be employed in every zone considering the nature of duties, features of cotton season etc.; (ii) whether the technical breaks were necessary in the case of some of the seasonal employees who were then employed for nine to twelve months; (iii) ways and means to ensure employment for maximum period for seasonal employees; (iv) the strength of the permanent, i.e., perennial employees; (v) pay-scales to be granted to the seasonal employees who were to be regularised and to decide the modality of annual increment to be granted to them; (vi) the need to change the then system of paying retention allowance and to suggest change in the system. There is no dispute that pursuant to this settlement, a Committee headed by one Shri Bhuibhar was appointed. Before the report of the said Committee was received, there was yet another settlement on 22-12-1982 between the Union of the seasonal employees and the Marketing Federation. One of the terms of the settlement was that the Bhuibhar Committee should submit its report to the Govrnment within one month of the date of that settlement and that the Government should take decision on the said report at the earliest. There was also a provision made for interim increase in the monthly consolidated wages of some of the categories of the seasonal employees. The said interim relief was to be adjustable while implementing the recommendations of the Committee. It is obvious from this settlement that it was necessitated because of the delay in the submission of the report by the Committee. The Bhuibhar Committee submitted its report on 1-12-1983. Some of the recommendations and the Government's reaction on the same are relevant for our purpose. They are mentioned below :- (1) Since, if the demand of the seasonal employees for employment throughout the year was accepted the financial burden would fall on the cultivators and would affect the Cotton Monopoly Procurement Scheme, it was not proper to provide 12 months' employment to the seasonal employees and burden the said scheme. The Government accepted this recommendation. (2) There should be increase in the sanctioned strength of the perennial employees viz., Clerks, Peons and Watchmen in different zones and at different Sub-zonal offices. The Government accepted it. (3) There should be an increase in the sanctioned strength of the seasonal employees. However, since this aspect required an indepth study, the matter should be entrusted to a management consultant. The Government accepted this suggestion. (4) The seasonal employees should be given pay-scale of Rs. 160-10-210-15-285-EB 20-465. The Government accepted the said pay-scale. (5) The part-time seasonal employees should be given the pay-scale of Rs. 105-5-145-10-205-15-210/-. An annual increment for three years of completed seasonal employment was also recommended. The Government accepted the recommendation. (6) The vacancies in Class III and IV cadres in all offices (including the cotton and non-cotton department) should be filled in from the seasonal employees. The Government accepted the recommendation. (7) In regions other than Western Maharashtra, the seasonal employees should be given employment for a minimum period of six months, and in Western Maharashtra, annual plans should be made to make it possible to furnish employment for a minimum period of six months to them. The Government accepted the recommendation in principle, but also suggested to the Federation that they' make necessary planning for sending seasonal employees from Western Maharashtra to Vidarbha for a minimum period of six months. Pursuant to the said report, and the Government's reactions to it, an agreement was entered into between the Marketing Federation and the Union of the seasonal employees on 18-1-1984. In the preamble, it was stated that the agreement was entered into pursuant to the recommendations of the Bhuibhar Committee as accepted by the Government and the agreement was to be effective from 1-11-1982. The agreement also stated that the Government had suggested that the agreement should ensure that for the next five years, Cotton Scheme shall not be burdened and it was pursuant to the aforesaid directive of the State Government that the Marketing Federation and the seasonal employees' Union had agreed to its terms. Incidentally it may be stated that it is the same Union which signed the said agreement which is the contesting respondent before us. The agreement then specifically stated that the Marketing Federation had agreed to implement the decision of the Government in respect of the recommendations of the Bhuibhar Committee except recommendation No. 33 which had suggested that the vacancies in Class III and IV cadre in all the offices of the Federation including the cotton and non-cotton departments should be filled in from the seasonal employees. Instead the agreement provided that it is only the vacancies in the cotton department which will be filled in from among the seasonal employees. The agreement stated that during the period of five years, the Union shall not raise any demand tending to impose additional financial burden on the Cotton Scheme. On 31-8-1984, the present appellant No. I viz., the Maharashtra State Co-operative Cotton Growers' Marketing Federation Ltd. was constituted for the first time as a society registered under the Maharashtra Co-operative Societies Act, 1960 with the express object of taking over from the Marketing Federation as the chief agent of the State Government, the Cotton Monopoly Procurement Scheme. The staff of the Marketing Federation engaged in the Cotton Scheme was to be taken over by the appellant-Federation. Accordingly, the entire staff of the Marketing Federation including the seasonal staff engaged under the Scheme was taken over by' the appellant-Federation on the same terms and conditions. As a result, the appellant-Federation on the relevant date had perennial staff of about 2200 persons and seasonal staff of about 4,500 persons. On 27-9-1988, for the first time, certain complaints were filed by the Union of the seasonal employees, Aurangabad, under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 'Act'). In the complaints, it was stated that since as per the Patankar Award, the seasonal employees who had put in 240 days of service were not made permanent, the appellant-Federation had committed an unfair labour practice within the meaning of the said Act. The Industrial Court dismissed the said complaint holding that the Patankar Award did not apply to the seasonal employees. On 28-9-1989 some seasonal employees from Amravati zone made the very same complaint under the Act before the Industrial Court, Nagpur. The same was also dismissed. Thereafter on 20-4-1990, the respondent-Union filed the present complaint under the Act before the Industrial Court, Nagpur which has given rise to the present proceedings. This complaint was heard by' another member constituting the Industrial Court. The grievance made in the complaint was that those seasonal employees who had worked for 240 days in 1982-83 and 1983-84 were not made permanent and inasmuch as the Patankar Award had directed the Marketing Federation to make permanent seasonal employees who had completed 240 days of service, there was an unfair labour practice under Items 5, 6 and 9 of Schedule IV to the Act. The relief claimed was to quash the termination of the services of the said employees at the end of the season and to make the employees permanent from the date they completed 240 days of continuous service in 1983-84 Cotton Season. The further relief claimed was that the practice of continuing the employees under reference as seasonal or casual be declared as unfair labour practice and the direction be issued to the appellants to cease to indulge in it. The incidental relief claimed was that the appellants should be directed to pay the arrears of wages and all service benefits to the concerned employees treating them as permanent from 1983-84 Cotton Season. The Industrial Court by its impugned order of 14-9-1990 (i) allowed the said complaint, (ii) declared that the appellants had engaged in and were engaging in unfair labour practices as contemplated by Items 5, 6 and 9 of Schedule IV to the Act, (iii) directed the appellants to cease and desist from indulging in the said unfair labour practices and (iv) directed them not to) terminate the services of the concerned employees w.f. 30-4-1990. (v) directed the appellants to absorb and make permanent the said employees in compliance with the provisions of the Patankar Award and the agreement dated 18-1-1984 and also by giving the benefit of the Government letter dated 18-1-1985 and to grant arrears of wages by processing their cases in the light of the directions given in the said letter which was referred to by the High Court in its decision in Shripati Pandurang Khade v. Zonal Manager, M. S. Co-op. Marketing Federation Ltd., 1987 Mah I 694: (1987 Lab IC 1437).
(2.) The appellants challenged the said order by a writ petition in the High Court. The learned single Judge dismissed the petition holding that the Patankar Award had become final and since it had given the direction to make permanent even the seasonal employees who had put in more than 240 day's of service, the writ petition had no merit. The Letters Patent Appeal filed before the Division Bench of the High Court was also dismissed on the same ground by the impugned decision dated 27-3-1992. It is against the said decision that the present appeals have come before us.
(3.) Before we advert to the respective contentions of the parties, it would be advantageous to clear some conceptions regarding the nature of the operations involved in the Cotton Scheme, the category of the staff employed and the character of the seasonal employment under it. Although some attempt was made before us on behalf of the respondent-Union to show that the operation of procuring and processing of cotton is carried on throughout the year, there is nothing on record to support the said contention. On the other hand, the record show's that out of the three operations under the Scheme, the procurement and processing of cotton lasts on an average only for six months from November to April in the principal cotton regions, viz., Vidharbha. Marathwada and West Khandesh and rarely extends beyond that period depending upon the cotton crop. In fact, if the crops is less, the said period even ends earlier. In Western 'Maharashtra. where there is scant crop of cotton, the procurement and processing season lasts only for about four months from August to November. Hence the staff needed for procurement and processing is only' for about six months on an average but never beyond 7 to 8 months in any year. It is only the operation of marketing which goes on throughout the year and for the marketing as well as for the maintenance of accounts the staff is needed throughout the year. The seasonal staff is further classified into permanent, temporary, casual and part-time. The permanent seasonal employees have scales of wages different from those of the perennial staff. So also the part-time employees have scales of pay different from those of the full-time seasonal employees. The permanent seasonal employees are paid their full wages during the season. i.e., when they are in employment, according to the scale of pay. They are also paid their annual increments in that scale. During the off-season, they are paid monthly retention allowance equivalent to 25 per cent of their monthly salary. In respect of the said employees, further a seniority list is maintained and this seniority list is scrupulously adhered to while employing them. If there is any vacancy in the perennial posts, the recruitment is first made from the seasonal employees according to the said seniority list. In addition, the following facilities are given to them (i) Specified grades and annual increments in the said grades; (ii) Bonus in accordance with the provisions of the Payment of Bonus Act at the same rate at which it is paid to the perennial employees; (iii) Leave with wages; (iv) Casual leave at the rate of one day's casual leave for every month; (v) Paid holidays or salary in lieu of holidays: (vi) Gratuity in accordance with the provisions of the Payment of Gratuity Act; (viii) Benefit of Provident Fund Scheme and Family Pension Scheme; (viii) Festival advance 'for Diwali, Ganapati festivals etc.; (ix) Travelling Allowance and Daily Allowances as are paid to perennial employees; (x) Dearness Allowance; (xi) Benefit of Group Accident Insurance Scheme; (xii) Model Standing Orders are made applicable mutatis mutandis to give security of employment; and (xiii) Family Planning incentives; (xiv) Fifteen days' salary at the end of every season towards overtime work. The temporary' and casual seasonal employees are engaged as and when needed on account of occasional increase in work and they are paid consolidated salary.;