Judgment:
Nishita Mhatre, J.
1. Mr. R.G. Ketkar appears for the petitioners in all the four writ petitions, while Mr. K.S. Bapat appears for the respondent in Writ Petition No. 3429 of 1995. None appears for the respondents in other three writ petitions, namely, Writ Petition No. 2247 of 1995, Writ Petition No. 3430 of 1995 and Writ Petition No. 3431 of 1995 though duly served. Since the question involved in these writ petitions is identical, these writ petitions can be disposed of by common judgment.
2. These four petitions impugn the common order passed by the Industrial Court in complaints filed by the employees of the petitioner corporation under Items 5, 6, 9 and 10 of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 'MRTU & PULP Act').
3. The respondent workmen in all the four petitions were employed in the Printing Press run by petitioner No. 1 Pune Municipal Corporation, in various posts like Junior Binder, Baller, Pressman, Mono-caster Attendant, etc. They were employed on a temporary basis. It is the case of the respondent workmen that they have been continued as the temporary workmen for years together in order to deprive them of the permanent status and benefits available to permanent employees. Aggrieved by this, the respondent workmen filed individual complaints before the Industrial Court under Items 5, 6, 9 and 10 of the MRTU & PULP Act. The main grievance of the workmen in the complaints was that despite having completed 240 days in service in their respective posts, they have not been made permanent. Common written statement was filed by the Corporation wherein it was pleaded that the Printing Press has a complement of less than 125 workmen; that appointments in Printing Press where the respondent workmen were employed were effected under the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the 'BPMC Act'); that employees working in the Printing Press were made permanent on completion of five years service in accordance with the Settlement signed with the Union in 1969. Although the muster rolls and payment registers of the respondent workmen were sought for by the respondent workmen, the petitioners failed to produce these documents before the Industrial Court. However, a copy of the settlement of September 1969 has been placed on record under which permanent was to be given to the employees only after completion of five years in service. The workmen submitted oral evidence through the workman in Writ Petition No. 3429 of 1995 who was examined on behalf of other workmen also. The Manager of the petitioner No. 1's Printing Press was examined on behalf of the petitioners. The Industrial Court by its common order dated 28th September, 1994 allowed the complaints and directed the petitioners to extend the benefits of permanency to the respondent workmen with effect from 28th September, 1987. The Industrial Court took the view that since the respondent workmen have completed 240 days in service, they were entitled to be made permanent immediately after completion of the same. The petitioners having failed to comply with this, had committed an unfair labour practice under Item 6 of Schedule IV of the MRTU & PULP Act. The Industrial Court based its findings on the judgment of this Court in Chief Officer, Sangli Municipal Council v. Shri Daramsing Hiralal Nagarkar, 1991(3) B.C.R. 114 : 1991(2) C.L.R. 4. The Industrial Court was of the view that the judgment cited on behalf of the petitioners in Punjabrao Krishi Vidyapeeth, Akola v. General Secretary, Krishi Vidyapeeth Kamgar Union & others, : 1994(3)BomCR13 has no relevance to the facts involved in the present case.
4. Mr. Ketkar, learned Advocate for the petitioners in all these petitions, submitted that the petitioners had given effect to the settlement with the union whereby the employees were to be made permanent only after completion of five years of service in Printing Press. He submitted that the respondent workmen have been continued in service without any break and were given permanency by implementing the settlement of 1969. Therefore, there could be no question of keeping the respondent workmen temporary for years together with the object of depriving them of permanent status. He, therefore, submits that Item 6 of Schedule IV of the MRTU & PULP Act was not attracted. He further submitted that the finding of the Industrial Court that immediately on completion of 240 days the respondent workmen were required to be made permanent is erroneous inasmuch as under section 51(4) of the BPMC Act, sanction of the State Government was required before new permanent posts could be created. He also submitted that the provisions of the Industrial Employment (Standing Orders), Act, 1946 cannot govern the employment and service conditions of the employees working with the petitioners and that Act was in the Central lit whereas the BPMC Act was in the State list. He further submitted that the BPMC Act being an Act of 1949 and subsequent to the Industrial Employment (Standing Orders) Act, the same will prevail and not the Industrial Employment (Standing Orders) Act. Mr. Ketkar relied on the judgment of this Court in Punjabrao Krishi Vidyapeeth, Akola v. General Secretary, Krishi Vidyapeeth Kamgar Union & others, 1994 (69) F.L.R. 181 and submitted that before the Industrial Court comes to the conclusion that there was an unfair labour practice under Item 6 of Schedule IV of the MRTU & PULP Act, it was necessary for the respondent workmen to prove that there has been a motive on the part of the petitioners to deprive the workers of the permanent status.
5. Mr. Bapat, learned Advocate for the respondent workmen, submitted that the petitioners had not in fact acted upon the settlement of 1969 and that permanency was awarded to the respondent workmen as and when thought fit by the petitioners. He submitted that the work done by the workmen was of a perenial nature and by keeping them as temporary workmen for a long period of time, the petitioners had committed unfair labour practice under Item 6 of Schedule IV of the MRTU & PULP Act. He further submitted that the Industrial Employees (Standing Orders) Act is applicable to the establishment of the petitioners as on notification has been issued under section 13-B of the said Act. He relied on the judgment in the case of U.P. State Electricity Board and another v. Hari Shanker Jain and others, A.I.R. 1979 S.C. 65. He further submitted that the burden does not lie upon the respondent workmen to establish that the object of the employer was to deprive the respondents permanent status by keeping them as temporary employees for years together. He relied on the judgment of the Chief Conservator of Forests and another v. Jagannath Maruti Kondhare, : (1996)ILLJ1223SC .
6. In each of these petitions, the petitioners have filed a purshis dated 15th July, 1992 before the Industrial Court showing the date on which each of the respondent workman have been made permanent. In all these purshis, the year mentioned is 1989. However, Mr. Ketkar, at the time of arguments before me stated that respondent in Writ Petition No. 2247 of 1995 was appointed on 1st June, 1986 and made permanent on 18th March, 1991; that the respondent in Writ Petition No. 3429 of 1995 was appointed on 1st June, 1986 and made permanent on 10th January, 1991; that the respondent in Writ Petition No. 3430 of 1995 was appointed on 1st June, 1986 made permanent on 9th February, 1991 and respondent in Writ Petition No. 3431 of 1995 was appointed on 1st June, 1983 and made permanent on 27th October, 1989. These dates do not support the contention of Mr. Ketkar that the petitioners have given effect to the settlement of 1969 immediately after completion of five years service by the respondent workmen. One of them has in fact been made permanent after six years, whereas the others have been made permanent prior to the completion of five years service. Mr. Ketkar tried to explain this by stating that it was only when the posts became available, the petitioners could appoint the respondent workmen in the posts and, therefore, there is a discrepancy in the number of years completed before permanency is granted. However, in my view, since the respondent workmen have all completed 240 days in service, they are entitled to permanency immediately on completion of 240 days of service. As the petitioners have not made them permanent, the petitioners have in fact committed an unfair labour practice under Item 6 of the Schedule IV of the MRTU & PULP Act.
7. Mr. Ketkar's argument that it is for the respondent workmen to establish that the petitioners had kept them as temporary workmen for years together with the object of depriving them of permanent status cannot be accepted in view of the judgment of the Supreme Court in Chief Conservator of Forest (supra). The Apex Court in that case has held that prevention of certain unfair labour practices being the object of the State Act, the same would be thwarted or get frustrated if the burden is placed upon the workman to establish that the employer had deprived him of permanent status by continuing him as a temporary workman. The next submission of Mr. Ketkar that the Industrial Employment (Standing Orders) Act is not applicable to the establishment of the petitioners also cannot be accepted as there is no notification under section 13-B of the said Act. In U.P. State Electricity Board, (supra), the Apex Court has held that since the Industrial Employment (Standing Orders) Act is a special law with regard to the matters enumerated in the schedule and the regulations made by the Electricity Board under the Electricity (Supply) Act, the former would prevail unless there is a notification under section 13-B of the Industrial (Standing Orders) Act. Mr. Ketkar's other argument that since the BPMC Act is subsequent to the Industrial Employment (Standing Orders) Act, it would prevail over the later Act also has been answered by the Apex Court in this judgment. The Apex Court was considering the provisions of the Industrial Employment (Standing Orders) Act pro tanto with the Electricity Supply Act, 1948 and has held that the provisions of the Standing Orders Act must prevail over the Electricity (Supply) Act with regard to matters to which the Standing Orders Act applies. Mr. Ketkar's next argument that, in view of the BPMC Act, no posts can be created without the sanction of the Government also cannot, therefore, be countenanced.
8. The Industrial Court has rightly come to the conclusion that the petitioners have committed unfair labour practice under Item 6 of Schedule IV of MRTU & PULP Act and the workmen are entitled to the benefits of permanency immediately upon completion of 240 days of service. Admittedly, the respondents have been made permanent, but much after completion of 240 days. In view of this, the respondent workmen are entitled to the benefits of permanency in accordance with the order passed by the Industrial Court.
9. Writ petitions dismissed. Rule discharged in all the writ petitions. No order as to costs.