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PETITIONER: MAHARASHTRA STATE COOPERATIVE COTTONGROWERS MARKETING FEDERA

       Vs.

RESPONDENT: SHRIPATI PANDURANG KHADE & ORS. ETC.

DATE OF JUDGMENT11/10/1988

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) NATRAJAN, S. (J)

CITATION:  1989 AIR  485            1988 SCR  Supl. (3) 472  1989 SCC  Supl.  (1) 226 1988 SCALE  (2)1005

ACT:     Maharashtra  Recognition of Trade Unions and  Prevention of  Unfair Labour Practices Act 1971--Section 5(d)--Duty  of Industrial  Court  to decide complaints relating  to  unfair labour practices except those Falling in item I of  Schedule IV of the Act. %     Maharashtra  Recognition of Trade Unions and  Prevention of Unfair Labour Practices Act 1971--Unfair Labour Practice- -What is--An industrial award declared employees  permanent- -Appellant treated them as seasonal or temporary  employees. Held--Amounts to unfair labour practice.

HEADNOTE:     Industrial  Court--Duty of--Must give an opportunity  to applicants to explain the delay if the complaints are barred by limitation.     The  respondents  were  earlier  the  employees  of   an organisation   called  the  Maharashtra  State   Cooperative Marketing Federation Limited (Marketing Federation). Later a new  organisation namely the Maharashtra  State  Cooperative Cotton  Growers  Marketing Federation  Ltd.,  the  appellant herein,  was  formed  and  some of  the  activities  of  the Marketing  Federation were assigned to it. By  letter  dated l0th  August,  1984, the Government directed  the  Marketing Federation  that the  Services of the seasonal staff  should be  terminated and those of the regular staff be  placed  at the  disposal  of  the new organisation.  As  the  Marketing Federation  and the appellant failed and neglected  to  give them the permanent status, the respondents made a  complaint before  the  Industrial Court complaining of  unfair  labour practices  on the part of the Marketing Federation  as  also the  appellant herein as contained in  Items 6 and 9 of  the Schedule  IV of the Act. The workers stated that  even  when there  was  an  award  in their  favour  by  the  Industrial Tribunal  declaring  them as permanent  employees,  yet  the Marketing Federation and the appellant did not give them the status of permanent employees. The Industrial Court took the view (i) that the complaints made by the respondents did not come under items nos. 6 and 9 but they came under item No. I and  as such he could not decide the complaints in  view  of                                                   PG NO 472

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                                                 PG NO 473 section  5(d)  of  the Act, (ii) that there  was  no  unfair labour  practice on the part of the Marketing Federation  or the appellant, and (iii) that the complaints were barred  by limitation. The Industrial Court dismissed the complaints of the  respondents.  Feeling aggrieved the  respondents  filed writ  petitions  before  the High Court and  the  same  were allowed. Hence these appeals by special leave. The appellant contended  that  the award of the Industrial Court  was  not binding on them. Dismissing the appeals, this Court,     HELD:  In  view of the Award, it must be held  that  the respondents  were the permanent employees of  the  Marketing Federation, and that after the constitution of the appellant and   the  transfer  ot-the  employees  of   the   Marketing Federation  to  the appellant, the appellant  was  bound  to accept  the  respondents as permanent employees and  not  to treat  them  as seasonal employees or  temporary  employees. This  act  on the part of the appellant  amounts  to  unfair labour practice. [476E-F]     There  is  no  justification  for  the  finding  of  the Industrial Court that the complaints made by the respondents do not come within the purview of Items Nos. 6 and 9 of  the Schedule  IV of the Maharashtra Recognition of Trade  Unions and  Prevention  of Unfair Labour Practices  Act,  1971.  No reason  has  been  given by the  Industrial  Court  why  the complaints  come  within Item No. I of Schedule IV  and,  as such, can be decided only by the labour Court and not by the Industrial Tribunal. The complaints made by the  respondents are   clear  and  specific  and  there  was  no  scope   for categorising them as complaints under Item No. I of Schedule IV. [476G-H;477]     It  has been assumed 1 the Industrial Tribunal that  the respondents  came to now That they were being  appointed  as seasonal   employees  on  the  respective  dates  of   their appointment  letters.  There  is, however,  no  material  on record  to show on what dates the appointment  letters  were served  on  the  respondents.  In  the  circumstances,   the Industrial  Court was not at  all Justified in holding  than the  complaints  filed  by the respondents  were  barred  by limitation. Even assuming that the complaints were barred by limitation, as held by the Industrial Court, the  Industrial Court  should  have given an opportunity to the  respondents for explaining the delay. No such opportunity has been given to  the  respondents. Accordingly, this Court is  unable  to subscribe  to  the  view of the Industrial  Court  that  the complaints   filed  by  the  respondents  were   barred   by limitation. [477B-D]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No  3719-3721 of l988.                                                   PG NO 474     From  the  Judgment and Order dated 9/10.3.1987  of  the Bombay High Court in W.P. Nos. 620, 622 and 621 of 1986.     G.  Ramaswamy,  Additional Solicitor  General  and  A.M. Khanwilkar for the Appellant.     Dr.  R.S. Kulkarni, Jitender Sharma, D.M. Nargolkar  and A.S. Bhasme for the Respondents.     The Judgment of the Court was delivered by     DUTT,  J. Special is granted. Heard learned Counsel  for the parties.     These   appeals   preferred  by   the   appellant,   the Maharashtra  State  Cooperative  Cotton  Growers   Marketing

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Federation  Ltd., are directed against the judgment  of  the Bombay  High Court whereby the High Court allowed  the  writ petitions  of the respondents and quashed the order  of  the Industrial  Court  Maharashtra (Kolhapur  Bench),  Kolhapur, dismissing the complaints filed by the respondents.     The Government of Maharashtra appointed the  Maharashtra State Cooperative Marketing Federation, hereinafter referred to as        "the Marketing Federation", the Chief Agent  in the  Cotton  Monopoly    Scheme  under  the  provision  of section 42 of tile Maharashtra Raw      Cotton  (Procurement Process  of  Marketing)  Act, 1971. The  activities      of  the Marketing   Federation  extended  to  various   agricultural produce   including  foodgrains.  In  February,   1984   the Government  carved out the operation of the levy  of  cotton from  the other activities of the Marketing  Federation  and assigned  them to another society, namely.  the  Maharashtra State Cooperative Cotton Growers Marketing Federation  Ltd., the  appellant  in  all these appeals. By  its  order  dated August  10,  1984,  the Government  directed  the  Marketing Federation to take the following actions:     "(i)  In respect of the Staff working under  the  Cotton Monopoly  Scheme  at present, the Services of  the  seasonal staff  working, if any, should be terminated with  immediate effect and in any case not later than 15th August, 1984.     (ii)  So  far as the regular staff is concerned,  it  is proposed  that  the  services of the staff  working  in  the Cotton  Department  of the Federation at Bombay and  in  the Mofussil  areas would be placed at the disposal of  the  new                                                   PG NO 475 Organisation  on  "as  is where is basis" as  on  1st  July, 1984."     In  a  subsequent  letter dated September  8,  1984  the Marketing Federation was directed to effect the transfer  of the  chief  agency  from the  Marketing  Federation  to  the appellant,  inter  alia by transferring all the  assets  and liabilities  under the scheme account and the cash and  Bank balance  at Bombay and Mofussil under the scheme account  as well as under the non-scheme account to the appellant etc.     The   respondents  claimed  that  they  were   permanent employees  of  the Marketing Federation and in view  of  the directions  contained  in the said letter dated  August  10, 1984 of the Government, the appellant should have  appointed them on a permanent basis and not as seasonal employees. The case  of  the  respondents was that they  had  been  in  the employment of the Marketing Federation since 1972 on monthly salaries  with annual increments. Even though there  was  an Award  in their favour by the Industrial Tribunal  declaring them  as permanent employees, yet the  Marketing  Federation and  the  appellant failed and neglected to  give  them  the permanent  status. Accordingly, they made complaints  before the Industrial Court complaining of unfair labour  practices on the part of the Marketing Federation as also on the  part of  the  appellant  as contained in Items Nos. 6  and  9  of Schedule  IV to the Maharashtra Recognition of Trade  Unions and Prevention of Unfair Labour Practices Act, 1971 items  6 and 9 are as follows:     "Items  6.  To employ employee as "badlis",  casuals  or temporaries and to continue them as such for years, with the object  of  depriving them of the status and  privileges  of permanent employees.     Item  9.  Failure  to  implement  award,  settlement  or agreement.     In this connection, we may refer to section 5(d) of  the said  Act  which provides that it shall be the duty  of  the Industrial  Court  to decide complaints relating  to  unfair

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labour  practices except unfair labour practices falling  in Item I of Schedule IV.     The  Industrial Court took the view that the  complaints made  by the respondents did not come under Item Nos. 6  and 9, but they came under Item No. I and, as such, it could not decide  the complaints in view of section 5(d). Further,  it was  held by the Industrial Court that there was  no  unfair                                                   PG NO 476 labour  practice on the part of the Marketing  Fedration  or the  appellant and that, in any event, the  complaints  were barred  by limitation as the same were filed beyond 90  days from the date of the knowledge of the respondents that  they were appointed by the appellant as seasonal employees.  Upon the  said  findings,  the  Industrial  Court  dismissed  the complaints of the respondents. Being  aggrieved by the order of   the  Industrial  Court,  the  respondents  filed   writ petitions before the High Court and, as stated already,  the High Court allowed the writ petitions and quashed the  order of the Industrial  Court. Hence these appeals.     It has been already noticed that under the Award of  the Industrial  Tribunal,  the  respondents  were  declared  the permanent   employees  of  the  Marketing  Federation.   The appellant has prepared a seniority list for the year 1985-86 which  shows that most of the respondents have been  in  the employment of the Marketing Federation since 1972. The  said seniority  list is Annexure ’D’ to the writ petitions  filed by  the respondents in the High Court. The annual  increment list,  also  D  prepared by the appellant,  shows  that  the respondents  have  been in the service of the  appellant  on monthly  salaries and they were given annual  increments  on November  1,  1985.  In  spite  of  the  above  facts,   the respondents  have been shown in the seniority list and  also in the annual increment list as temporary employees. In  our opinion,  there  cannot  he any doubt that  there  has  been unfair  labour  practice  on  the   part  of  the  Marketing Federation  as also on the appellant by continuing  them  as temporary employees. We are unable to accept the  contention of  the  appellant  that the Award is  not  binding  on  the appellant.  In view of the Award, it must be held  that  the respondents  were the permanent employees of  the  Marketing Federation, and that after the constitution of the appellant and   the  transfer  of  the  employees  of  the   Marketing Federation  to  the appellant, the appellant  was  bound  to accept  the  respondents as permanent employees and  not  to treat  them  as seasonal employees or  temporary  employees. This  act  on the part of the appellant  amounts  to  unfair labour practice.     We do not find any justification for the finding of  the Industrial Court that the complaints made by the respondents do  not  come within the purview of Items Nos. 6  and  9  of Schedule  IV of the Maharashtra Recognition of Trade  Unions and  Prevention  of Unfair Labour Practices  Act,  1971.  No reason  has  been  given by the  Industrial  Court  why  the complaints  come  within Item No. 1 of Schedule IV  and.  as such, can be decided only by the Labour Court and not by the Industrial Tribunal. The complaints made by the  respondents are   clear  and  specific  and  there  was  no  scope   for                                                   PG NO 477 categorising them as complaints under Item No. 1 of Schedule IV.     With   regard  to  the  question  of   limitation,   the Industrial  Tribunal seems to think that as the  appointment letters  bear  some dates in October, 1984,  the  period  of limitation will be computed from the respective dates of the appointment  letters. It has been assumed by the  Industrial

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Tribunal  that the respondents come to know that  they  were being  appointed  as seasonal employees  on  the  respective dates  of their appointment letters. There is,  however,  no material  on  record to show on what dates  the  appointment letters  were  served on the respondents.  In  other  words, there  is nothing to show when the respondents received  the appointment  letters. In the circumstances,  the  Industrial Court  was  not  at  all  justified  in  holding  that   the complaints   filed  by  the  respondents  were   barred   by limitation. Even assuming that the complaints were barred by limitation, as held by the Industrial Court, the  Industrial Court  should have given an opportunity to  the  respondents for explaining the delay. No such opportunity has been given to the respondents. Accordingly, we are unable to  subscribe to  the  view of the Industrial Court  that  the  complaints filed by the respondents were barred by limitation.     Before  parting with these appeals, we may dispose of  a short  contention of the appellant. The learned Counsel  for the appellant has placed much reliance upon a letter of  the Government dated November 9, 1984 giving some directions  to the appellant as contained in paragraphs 1 and 2 of the said letter. Paragraphs 1 and 2 are as follows:     1. All staff recruited after 1st July 1972  specifically for  the  cotton scheme with prior  approval  of  Government wherever  necessary or where the  Government  representative was   associated  with  the  selection/appointment  of   the candidates  should  be  immediately  placed  on   deputation without  payment  of  Deputation  Allowance  to  the  Cotton Growers’ Marketing Federation Their salaries and  allowances will  be payable from the scheme as part of  the  commission payable  to the Cotton Growers Federation till 1st  January, 1985.     2.  The  Cotton  Growers Federation  Ltd.  will  finally absorb  the above categories of staff after scrutiny  as  on 1st  January,1985. Those out of the above staff who are  not                                                   PG NO 478 acceptable  to  the new Federation for some  reason  or  the other,  and so have to be retrenched, will be retrenched  by the Maharashtra State Cooperative Marketing Federation  Ltd. and  the  cost  thereof would be debited  to  cotton  scheme account"     On the basis of the directions in paragraph 2  extracted above,  it is submitted on behalf of the appellant that  the appellant  is  at  liberty  not  to  absorb  or  accept  the respondents in the appellant’s concern. This contention,  in our opinion, is without any substance whatsoever. There is a specific  direction that the appellant shall finally  absorb the  staff of the Marketing Fedration after scrutiny  as  on January  1, 1985. The appellant cannot refuse to  absorb  or accept  a  permanent employee of  the  Marketing  Federation without any reason whatsoever. So far as the respondents are concerned,  we  do  not find any reason  why  the  appellant should not accept them as its permanent employees. The  High Court  has rightly directed the appellant and the  Marketing Federation  to process the cases of the respondents  on  the basis  that they have put in more than 240 days  of  service and  grant them all the benefits under the  circular  letter dated January 18, 1985.     For  the  reasons aforesaid, the judgment  of  the  High Court is affirmed and the appeals are dismissed with one set of costs quantified at Rs.5,000. H.S.K.                                    Appeals dismissed.