Date of Order:
July 25, 2023
Bench:
Justice Abhay S. Oka
Justice Sanjay Karol
Parties:
Bharatiya Kamgar Karmachari Mahasangh …Appellant(s)
Versus
M/s. Jet Airways Ltd.
…Respondent(s)
SUBJECT
- The current appeal stems from the High Court of Bombay’s decision in Writ Petition No. 2657 of 2017, in which it upheld the Central Government Industrial Tribunal’s (hereinafter referred to as ‘CGIT’) award of 30.03.2017, which rejected the Appellant-Union’s demand for reinstatement with full back wages.
- The Bombay Act grants permanent employment to workers who have worked 240 days in an establishment, ensuring that any contract or settlement abridges this right cannot be binding. The appeal hence allowed the Appellant-Union to receive benefits under the Bombay Model Standing Order, but the award was quashed and set aside.
IMPORTANT PROVISIONS
- Section 25H of Industrial Disputes Act 1947
- The Bombay Act
OVERVIEW
- The Appellant represents 169 temporary workmen on a fixed-term contract with the respondent company. They argue they were treated as temporary despite completing 240 days in service under Bombay Model Standing Order. The Trade Union raised demands, leading to a settlement on 02.05.2002.
- The CGIT found that airlines aimed to appoint workmen for a fixed term, but their employment ended when their appointment period expired. The Tribunal ruled that airlines had no option but to not renew the fixed-term contracts due to a change in government policy.
- Relying upon Section 25-H of the Industrial Disputes Act, 1947 it was held by the HC that there is no retrenchment since the nonrenewal of fixed term contract did not amount it to be so as provided under Section 2(oo)(bb) of the said Act. Thus, there was no question of re-employment of the concerned workmen.
ISSUES RAISED
- Which of the following is the Appropriate Authority authorised to make the Standing Order(s) under the Industrial Employment (Standing Orders) Act, 1946 (hence referred to as ‘The Act’)?
- Is a private agreement/settlement between the parties sufficient to overrule the Standing Order?
ARGUMENTS ADVANCED BY THE APPELLANT
The Appellant contends that the
workmen were treated as temporary despite completing 240 days
in service in terms of the Model Standing Order provided under the
Bombay Industrial Employment (Standing Orders) Rules, 1959
(hereinafter referred to as “Bombay Model Standing Order”) and
despite the nature of the work being permanent and regular
ARGUMENTS ADVANCED BY THE RESPONDENT
- The Respondent Company claims that the workers are not entitled to permanency as per the settlement dated 02.05.2002 entered between the Union and Company.
JUDGEMENT ANALYSIS
- The Act applies to industrial establishments with 100 or more workers, requiring appropriate government for control. It defines ‘industrial establishment’ under Section 2(b) and empowers the appropriate government to make rules for its purposes under Section 15.
- The appropriate government for the Respondent Company is the State Government, as it is not under Central Government control. Bombay Model Standing Order applies to both parties.
- The Court has observed that certified standing orders have statutory force, implying a contract between employer and workman, and cannot override the statutory contract embodied in these orders.
- The Court in U.P. SEB v. Hari Shankar Jain explains that The Act was designed to define workmen’s employment terms, give them a collective voice, and subject them to quasi-judicial scrutiny. It recognizes and forms their rights, focusing on the schedule-enumerated conditions of service in industrial establishments.
- The Bombay Act grants permanent employment to workers who have worked 240 days in an establishment. Any contract or settlement that abridges this right cannot be binding. The Act ensures that any waiver of employee rights does not override Standing Orders.
- The appeal was allowed, holding the Appellant-Union entitled to benefits under the Bombay Model Standing Order. The award and judgment were quashed and set aside.
