Shri Shivdhari Kalu Singh Ajinkya Welfare Society vs. Ruby Mills Ltd.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

APPEAL NO.404 OF 2008

in

WRIT PETITION NO.546 OF 2007

Shri Shivdhari Kalu Singh.. Appellant

Vs.

Ruby... Mills Ltd Respondents

Mr.N.M.Ganguly for Appellant Mr.M.M.Verma i.b Mr.Rajesh Ghenani for Respondents

CORAM : SMT.RANJANA DESAI AND K.K.TATED, JJ

DATE ON WHICH JUDGMENT IS RESERVED: 17th November, 2008

DATE ON WHICH JUDGMENT IS PRONOUNCED : 25th November, 2008

JUDGMENT ( Per K.K.Tated, J )

1. The present appeal is preferred by the original petitioner against the judgment dated 2nd April, 2007 in Writ Petition No.546 of 2007 by a Single Judge arising from judgment dated 31st October, 2006 passed by the President, Industrial Court, Maharashtra Mumbai in Appeal (IC) No.94 of 2004 arising out of judgment dated 26th February 2003 passed by the Judge, 11th Labour Court, Mumbai in Application (BIR) (REIN) No.81 of 1999.

2. It is the case of the appellant that he joined the services of the respondents as a watchman in Watch and Ward department with effect from 12th December, 1999. It is the case of the appellant that he worked throughout the month and in addition for more than 20 days in the month commencing from December, 1998. The appellant further submitted that he earned wages for 29 days in June, 1999 and then for 28 days in the month of February 1999. It is the case of the appellant that in the month of March 1999 and April 1999 he worked and earned wages for 31 and 30 days respectively. The appellant further submitted that he was working in the regular vacancy and not as a substitute in place of another employee though he was described as a substitute in the record of the respondents.

3. The appellant states that on 1st May, 1999 after the appellant completed his duty at about 7.25 a.m. or thereabout, Mr.Nayan Singh, Head of the Security Department in the undertaking of the respondents informed the appellant that the appellant has been given a break for 2 to 3 days and thereafter he should report back to duty on 3rd May 1999. Thereafter, the appellant tried to

2

join the duty on several occasions but,the respondent did not allow him to join the services. It is the case of the appellant that on 12th May 1999 when the appellant met Shri Vyas, Shri Vyas handed over a xerox copy of discharge order dated 3rd May, 1999 to the appellant. The appellant submitted that there were 28 posts of watchmen in the respondent-mill. The appellant states that the Watch and Ward department however, is covered by the standing orders applicable to the operatives in Cotton Textile Industries in the local area of Bombay. It is the case of the appellant that though he was described as a substitute watchman, he had continuously worked for 140 days in a vacant post and not as a substitute or badli worker in place of any other permanent watchman. It is the case of the appellant that a vacancy existed on the date on which the appellant's services were discontinued. The appellant further submitted that in terms of the standing orders he was entitled to be on probation for three months and thereafter permanent in services of the respondents in terms of the said standing orders applicable to the operatives in Cotton Textile Industry in local area of Bombay. The appellant submitted that in the present circumstances he preferred a letter dated 30th June 1999 as required under the provisions of section 424 of the Bombay Industrial Disputes Act, 1946 read with rule 53 of the Bombay Industrial Relation Rules, 1947. Thereafter, the appellant filed an application under section 78 and 79 read with section 42 (4) of the Bombay Industrial Relations Act, 1946 before the Labour Court, Bombay in the matter of illegal termination of service praying for a direction to the respondents to reinstate him with continuity in service with full back wages. The said application (BIR) (REN) NO.81 of 1999 was decided by the Judge, Labour Court, Mumbai on 25th February 2004 and he held that the appellant failed to prove that he was entitled to any relief as prayed vide Exhibit U-1.

4. Being aggrieved by the said judgment dated 25th February, 2003 passed by the Judge, 11th Court Labour Court Mumbai in Application (BIR) (REN) No.81 of 1999 the appellant preferred Appeal (IC) No.94 of 2004 in Industrial Court of Maharashtra at Mumbai. The said Appeal came to be dismissed by oral judgment dated 31st October 2006 by the President, Industrial Court,

4

Maharashtra Mumbai relying on the Apex Court Judgment in Prakash Cotton Mills Pvt Ltd vs Rastriya Mill Mazdoor Sangh 1987 (1) LLJ page 9. The first appellate court in para 7 of the said judgment dated 31st October 2006 stated as under:

" The Honourable Apex Court in the judgment in Prakash Cotton Mills Pvt. Ltd vs The Rashtriya Mill Mazdoor Sangh (1987) LLJ 97) has observed in para 14 of the judgment:

" It is not in dispute that badli workmen get work only in the absence temporary or otherwise of regular employee and that they do not have any guaranteed right of employment. Their names are not borne on the muster roolls of the establishment concerned. Indeed a badli workman has no right to claim employment in place of any absentee employee. In any particular case if there be some jobs to be performed and the employee concerned is absent the company may take in a badli workman for the purpose badli workmen are really casual employees without any right to be employed. "

5. Being aggrieved by the said oral judgment dated 31st October 2006 passed by the President, Industrial Court, Maharashtra Mumbai the appellant preferred Writ Petition No. 546 of 2006 in this Hon'ble Court on several grounds including that the Industrial Court misread the ratio of the decision of the Hon'ble Supreme Court of India in the case of Prakash Cotton Mills Ltd vs Rastriya Mills Mazdoor Sangh Ltd (1987) (i) LLJ page 197.

6. After hearing both the sides the Single Judge by judgment dated 2nd April 2007 held that the appellant was appointed as a substitute watchman. Merely because on the persons appointed as badli or substitute workmen worked continuously for 150 days they could not claim permanency as they did not have any legal right as they were appointed as substitute workers when permanent workers were not available. The learned Single Judge further held that the appellant failed to adduce evidence in support of his claim. Considering these facts the Single Judge dismissed the Writ Petition No.546 of 2007 by judgment dated 2nd April 2007.

7. Being aggrieved by the judgment dated 2nd April 2007 passed by the Single Judge in Writ Petition No.546 of 2007 the appellant has preferred the present appeal. The appellant contended that the learned Single Judge failed to appreciate that the appointment of the appellant

6

though characterised as a badli watchman, was not in place of any permanent watchman but, in a clear vacancy of watchman in the undertaking of the respondents. The advocate appearing on behalf of the appellant further contended that the learned Single Judge failed to appreciate that mere charactersation by the respondents that the appointment was as badli watchman did not make the appellant a badli workman as he was not appointed in place of any permanent watchman but, against a clear vacancy of watchman. The advocate appearing on behalf of the appellant further submitted that the appellant having worked for more than 140 day in any event for more than 3 months was entitled to be made permanent in the service of the respondents. It is the contention of the appellant that the learned Single Judge as well as the two lower Courts failed to appreciate that in view of the provisions of the Bombay Industrial Relations Act, 1946 if the appellant proves that he worked for more than 140 days in a vacant post then he is entitled to get permanent employment with the respondents. For this purpose, the advocate appearing on behalf of the appellant relied on the Apex Court judgment in the matter of Western India Match Co Ltd vs Workmen reported in AIR 1973 Supreme Court P-2650. He pointed out that the Apex Court held that according to the standing orders a workman shall not be kept on probation for more than two months. If the workman worked during these two months to the satisfaction of the company he becomes permanent. Learned counsel appearing on behalf of the appellant relied on para 11 of the apex Court judgment which reads thus :

" It is then said that the Standing order can be modified in a suitable case by the Labour Court. In this connection reliance is place on the Management of Bangalore Woolen Cotton and Silk Mills Co Ltd vs The Workmen (1968) 1 SCR 581 = (AIR 1968 SC 585). It is true that the Labour Court may determine terms and conditions of employment which may be inconsistent with the Standing Order. But in the present case the reference did not give jurisdiction to the Labour Court to determine terms and conditions of employment of Prem Singh. The reference directed the Labour Court to decide whether the discharge of Prem Singh from service was legal or justiable."

8. It is specifically stated in the aforesaid judgment that considering the facts in that case the Court held that the standing orders can be modified in a suitable case by the Labour Court.

9. The advocate appearing on behalf of the respondents submitted that the appellant was employed with Ruby Mills Ltd as a badli/substitute worker for temporary period and he was employed on a trial basis in order to assess his performance and suitability over the post for which he was employed on a trial basis. It is the case of the respondents that he was provided with a badli card. It is further pointed out by the advocate appearing on behalf of the respondents that during the tenure of his service as a badli/substituted worker, his services were not found satisfactory. It is the case of the respondents that the appellant is covered under the provisions of the Bombay Industrial Relations Act, 1946 and standing orders in relation to the employees employed in the employer-Mill are settled by the Industrial Court under section 36 of the Bombay Industrial Relations Act, 1946 and as such the certified standing orders are applicable to the employer-Mill. It is further submitted that under the standing orders the employer has the power to employ badli/substituted workmen depending on the existence of work. Accordingly, the respondents had engaged the appellant as a substituted/badli worker. It is the case of the respondent that the appellant had worked hardly for 120 days and actually as such he was not a permanent employee within the meaning of permanent and operative certified standing orders. It is the case of the respondents that therefore the appellant has no status of an employee to invoke the provisions of the Bombay Industrial Relations Act, 1946. It is the case of the respondents that badli/substituted workers are employed in order to overcome a temporary vacancy arising out of temporary absence of a permanent operative or a probationer or in existence. It is the case of the respondents that badli workers are never engaged on regular basis as and when permanent employees are either absent or on leave badli workers are employed. Therefore, badlis have no status as workmen/employee under the law. In view of these facts it is the contention of the respondents that the appellant cannot ask for any relief in the present matter. In support of their contentions the advocate appearing on behalf of the respondents relied on the Apex court judgment in the matter of Prakash Cotton Mills Pvt Ltd vs Rashtriya Mill Mazdoor Sangh reported in AIR 1986

SUPREME COURT PAGE 1514. It is held in that case by the Apex Court that badli workers gets work in the absence of temporary or otherwise of regular employees and they do not have any guaranteed right of employment. Their names are not borne on the muster roll of the establishment concerned. It is further held by the Apex Court that badli workers are really casual employees who have no right to be employed. The advocate appearing on behalf of the respondents specifically relied on para 15 of the judgment which reads thus :

15. The next question that remains to be considered is whether the Industrial Court is justified in directing payment of compensation to some of the badli workmen. It is not in dispute that badli workmen get work only in the absence, temporary or otherwise, of regular employees and that they do not have any guaranteed right of employment. Their names are not borne on the muster rolls of the establishment concerned. Indeed, a badli workman has no right to claim employment in place of any absentee employee. In any particular case if there be some jobs to be performed and the employee concerned is absent the Company may take in a badli workman for the purpose. Badli workmen are really casual employees without any right to be employed. It has been rightly submitted by the learned counsel for the appellant that the badli employees could not be said to have been deprived of any work to which they had no right and consequently they are not entitled to any compensation for the closure. Indeed the Industrial Court has itself observed that to allow the claim of badli workmen would be tantamount to penalising the appellant. Inspite of the said observation the Industrial Court directed payment of compensation to the badli workmen in place of certain categories of regular employees. We fail to understand how the Industrial Court can direct payment of compensation to the badli workmen when admittedly such badli workmen as noticed already have no right to be employed. It may be that the company may not have to pay closure compensation to the three categories of employees as mentioned by the Industrial Court but that does not mean that the company has to pay compensation to the badli workemen in place of these categories of employees. In this connection, we may refer to section 25C of the Industrial Disputes Act, 1947 which excludes a badli workman or a casual workman from the benefit of compensation in the case of lay-off. "

16. It is crystal clear from the above mentioned facts and circumstances and the judgments of the Supreme Court in the matter of Prakash Cotton Mills Pvt.Ltd vs Rashtriya Mill Mazdoor Sangh AIR 1986 S.C.1514 that the appellant was employed with the respondents as a badli workman in the absence of temporary or otherwise a regular employees. The appellant in his letter dated 30th June 1999 addressed to the Manager which is at Exhibit A on page 26 in the above mentioned appeal specifically stated that:

17. " I say that I was appointed on 12.12.1998 and I have been working as a substitute employee in Watch and Ward Department. "

18. The appellant further stated in the said application that "I am a badli worker and many permanent vacant posts are existing in my department."

19. This itself shows that the appellant himself admitted that he was appointed by the respondents as a badli workmen. In any case, badli workmen get work only in the absence of temporary or otherwise, of a regular employeesand they do not have any guaranteed right of employment. Considering these facts and considering the concurrent finding of the two lower Courts and the learned Single Judge of this hon'ble Court there is no substance in the present appeal.

Appeal stands dismissed with no order as to costs.

{ Smt Ranjana Desai, J }

{ K.K.Tated, J }