MAHARASHTRA LOK KAMGAR SANGHATANA Vs. BALLARPUR INDUSTRIES LIMITED

JUDGEMENT

(1.) By this writ petition filed under Articles 226 and 227 of Constitution of India, the petitioner Union has challenged the order of Industrial Court dated 03.05.2006 in ULP Complaint No. 77 of 2000 (Old No. 964 of 2000) dismissing its complaint filed under items 5, 9 and 10 of Schedule IV of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as ULP Act), on the ground that the grievance was under item 6 of Schedule IV and being an unrecognized union, the petitioner was not competent to maintain ULP Complaint in relation to that item. The matter was heard by me in earlier roster in December 2008 and at that time because of contention of Respondent No. 1 employer that it has got its own Standing Orders i.e. Certified Standing Orders, by reasoned order passed on 15.12.2008, the question about existence and applicability of such standing orders was remitted to Respondent No. 2 Industrial Court at Chandrapur. The Industrial Court has passed an order on 24.08.2009 returning a finding that no such Standing Orders are available and applicable. That finding has been questioned by Respondent No. 1 by filing Civil Application No. 420 of 2010. It is also necessary to note that petitioner had earlier filed a ULP Complaint registered as 1286 of 1987 before the Industrial Court at Nagpur under items 5, 6 and 9 of Schedule IV and on its prayer to withdraw it, the Member Industrial Court on 05.09.2000 permitted its withdrawal with liberty to file fresh ULP Complaint in relation to items 5 and 9 and not in respect of item 6.

(2.) In this background, I have heard Shri Upadhyay, learned counsel for the petitioner Union, Shri Deshpande, Senior Advocate with Shri Moharir, Advocate for respondent No.1 employer and Shri Jaiswal, learned AGP for respondent No. 2 Industrial Court.

(3.) After mentioning the brief history , Shri Upadhyay, learned counsel has urged that the learned Member of Industrial Court has erred in treating the complaint as one under item 6 of Schedule IV though the petitioner had never raised any grievance under that item and they specifically pointed out that the members belonging to it were being continued on daily wages from 1972 or 1982 till the date of filing of complaint. He points out that the details of service of individuals furnished along with complaint were not in dispute at all and hence completion of 240 days of continuous service has been established and admitted. Present complaint registered as ULP No. 77 of 2000 was specifically filed after withdrawal of earlier complaint and in the light of specific liberty then granted. The recourse to provisions of Order 23, Rule 1 of Civil Procedure Code or then finding that it is still a complaint under item 6 of Schedule IV is unsustainable and unwarranted. The application of mind by the learned Member of Industrial Court in this respect is perverse. He invites attention to grievance that employees on daily wages recruited later on were given permanency prior to these members of Complainant Union and hence item 5 of Schedule IV was also correctly invoked. For same work its members were being paid substantially less wages than permanent workers. His contention is item 5 has got no bearing on item 6 in any way and that grievance needed to be looked into independently. Attention is invited to item 9 to urge that failure to comply with the provisions of Standing Orders is specifically covered under that item and as Clause 4C of Model Standing Orders framed under Industrial Employment (Standing Orders) Act, 1986, (hereinafter referred to as Central Act) were not complied with and have been observed in breach, the learned Member of Industrial Court ought to have held that said unfair labour practice is established. He has invited attention to issues as framed by the Industrial Court to urge that because of its erroneous finding that the grievance filed under item 6 of Schedule IV and not under items 5 & 9 thereof, the complaint filed by an unrecognized union is held to be not maintainable. He has also invited attention to discussion in this respect as contained in that order to urge that the partial treatment given to juniors by Respondent No. 1 has been overlooked. He further argues that the unfair labour practice under item 9 is continuing even today. He relies upon the subsequent order of Industrial Court dated 24.08.2009 to show how Certified Standing Orders are found to be not in existence and not regulating the present dispute. His contention is in any case provisions of Clause 4C of Model Standing Orders are applicable because of mandatory requirement of provisions of Section 2A of Central Act, 1947, to the employment of members of petitioner Union with Respondent No. 1.