MAHINDRA AND MAHINDRA Vs. MANOJ SUKHDEO DESHPANDE

JUDGEMENT

(1.) The respective respondent No. 1 in all these petitions filed separately 38 U.L.P. Complaints under Section 28 of Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971, (hereinafter referred to as MRTU Act) for declaration that their employer M/s. Mahindra and Mahindra has indulged in unfair labour practice falling under item 5 and item 9 of Schedule IV thereof by not making them permanent in service and by engaging the juniors and other employees in their place. These complaints have been registered as Complaint (ULPN) Nos. 416 to 438 of 2004, 440 to 451 & 454 of 2004, 22/2005 and 26/2005. The learned member of Industrial Court has disposed of all these complaints by common order on 25th November 2005 and while partly allowing the complaints, gave declaration that employer has indulged in unfair Labour practice under items 5 and 9 of Schedule IV and directed employer to give confirmation to all complainants under clause 4-C of Model Standing Orders from the date of institution of Complaints. Present petitions are filed by employer challenging said order. The matter has been admitted on 13/2/2006 and this court while granting interim relief imposed condition that employer shall not provide unskilled work to any other person or even employees under Employment Promotion Programme (EPP) and such work shall first be offered to present respondents (employees) as and when available. It appears that on 7/4/2006 this court directed that writ petitions should be listed for final hearing in 2nd week of July 2006 at the request of respondents & accordingly, the matter is before this court for final hearing.

(2.) Writ petition 6427 of 2005 is filed by employee/complainant Sudhakar Narad challenging the order dated 25/11/2005 passed by very same Industrial Court in Complaint U. L. P. No 703/2003 partly allowing the same. Industrial Court found that employer indulged in unfair Labour practice falling under item 5 and item 9 and also issued directions to cease from it. However prayer of employee Sudhakar for regularisation from date of completion of 240 days with consequential benefits has been found to be not maintainable and therefore rejected. Writ Petition 6427 of 2005 is directed against this rejection.

(3.) Brief statement of facts involved is necessary. U.L.P. complainants file under Section 28 individually by all employees are more or less identical. The complainants state that they have been the appointed for unskilled work on daily wage basis in temporary capacity either from 1998 or from 1999 and paid salary every month. They have stated that their employer is an engineering industry which manufactures tractors and the establishment is governed by Bombay industrial Relations Act, Industrial Disputes Act and Industrial Employment Standing Order Act, 1946. However it is admitted position between parties that the model Standing Orders framed under section 35 of Bombay Industrial Relations Act govern their service conditions and Industrial Employment Standing Order Act, 1946 has no application. Each complainant has given period of his service along with period of break between two appointments and has also given the number of days on which he was given artificial break. He has thereafter given certain names to point out that during break period another employee Junior to him was provided said work. There is reference to working days list prepared as on 30/ 9/2000 by employer and effort is to demonstrate from it that persons whose names appear below name of complainant were either provided work or retained and break was given to complainant. It is further stated that this is in violation of provisions of model Standing Orders 3(2) (g), 4C and 4D of model Standing Orders. It is contended that after completion of 240 days of continuous service each complainant became permanent but employer violated these requirements of model Standing Orders and continued to employ new or junior employees. It is further stated that complainants were not given permanent status, privileges and wages or pay scale of permanent employee along with consequential benefits and allowances attached to the post of permanent employee. It is contended that large number of employees were appointed on temporary basis periodically though work of permanent nature was always available and artificial breaks were given to one batch by following rotation. Grievance is again made that apprentices were engaged as helpers and regular production work was extracted from them. It is further stated that new employees were recruited for similar work by disguising them as EPP trainees. It was further stated that the complainants had earlier filed a U. L. P. complaint in 2003 but in view of subsequent development it was withdrawn with liberty to file Complaint individual capacity. All complainants except Shri Sudhakar Narad, petitioner in writ petition 6427/2005 (complainant in Complaint 703/2003) stated that they were at the time of filing of complaint engaged in temporary capacity from September 2004 till 31/12/2004. They contended that cause of action arose when they completed 240 days of service and it is recurring and continuous one. They therefore prayed for declaration that there is unfair Labour practice under item 5 and item 9 of Schedule IV of MRTU & requested for its withdrawal and for grant of consequential benefits. These complaints were opposed by employer who denied any rotation or artificial breaks. It is further stated that though employer has 528 permanent workers in its employment, it is required to engage services of temporary workers as and when there is temporary increase in demand of tractors. They pointed out that on account of increase in work, complainants were appointed by giving them Orders for fixed duration. They gave the period of Employment of each complainant and stated that in any case the complaints as filed were hopelessly time-barred. They pointed out that from 1/4/2003 they did not engage even a single temporary worker and from March 2004 they were required to engage temporary workers due to sudden increase in demand of tractors in the market. They further stated that even as temporary employees, complainants were given benefits available to permanent employees like dearness allowance, ESI facility, provident fund, Conveyance allowance, house rent allowance etc. It is further stated that after expiry of last appointment orders of respective complainant, though employer was ready to give further appointment to them, they did not contact the employer and hence next order was given to them when they reported for work. The entitlement of complainants to wages/pay scales of permanent employees along with their benefits and allowances was denied. The Employment in batches was denied and it was stated that apprentices were engaged as per directions of Apprentice Adviser. It was further stated that EPP trainees were engaged as per list forwarded by Employment change. It was also stated that earlier about 207 employees engaged on temporary basis filed complainants before Industrial Court and in those complaints seniority list as on 30/9/2000 came to be filed. The Employer further contended that there were elected representatives functioning under Section 28 of Bombay Industrial Relations Act and they represented even complainants. It was pleaded that section 21 (2) of MRTU Act therefore did not permit filing of such individual complaints and complainants were in fact seeking permanency by invoking item 6 of Schedule IV of that Act. Objection was taken that the complainants could not claim permanency by invoking item 5 and item 9 of Schedule IV. In case of Sudhakar, in written statement plea was taken that Sudhakar was not in service on the date of institution of complaint and he never challenged his termination. Therefore in any case his complaint for regularisation and grant of permanency was not tenable.