Bombay Model Standing Order: Workman Who Has Worked For 240 Days In Establishment Is Entitled To Be Made Permanent: SC
|The Supreme Court in an appeal preferred by Bhartiya Kamgar Karmachari Mahasangh against Jet Airways Ltd. has observed that as per the Bombay Industrial Employment (Standing Orders) Rules, 1959 i.e., Bombay Model Standing Order, a workman who has worked for 240 days in an establishment would be entitled to be made permanent.
The two-Judge Bench of Justice Abhay S. Oka and Justice Sanjay Karol held, “… a workman who has worked for 240 days in an establishment would be entitled to be made permanent, and no contract/settlement which abridges such a right can be agreed upon, let alone be binding. The Act being the beneficial legislation provides that any agreement/contract/settlement wherein the rights of the employees are waived off would not override the Standing Orders.”
The Bench disagreed with the findings of the Tribunal and the High Court. The High Court, while upholding the order of the CGIT (Central Government Industrial Tribunal), held that the mere completion of 240 days would not entitle the members to claim permanency under the Model Standing Order given the settlement and, more specifically, Clause 18 thereof.
Senior Advocate Sanjay Singhvi and Advocate Seshatalpa Sai Bandaru represented the appellant while Advocate Ujjwal A. Rana represented the respondent.
Brief Facts -
An appeal arose out of the judgment of the Bombay High Court wherein it confirmed the award passed by the CGIT rejecting the demand of the appellant-Union for reinstatement with full back wages. The respondent company was involved in a commercial airline, flying aircraft for transporting passengers and cargo and the appellant represented around 169 workmen temporarily engaged on a fixed-term contract by the respondent in various cadres like loader-cum-cleaners, drivers, and operators. The appellant contended that the workmen were treated as temporary despite completing 240 days in service in terms of the Bombay Model Standing Order and despite the nature of the work being permanent and regular.
The Trade Union had raised a charter of demands which, after negotiations, resulted in a settlement and in the said charter of demands, Bhartiya Kamgar Sena gave up the demand for the grant of permanency, and a comprehensive settlement was signed as a package deal that conferred many benefits on the workmen who gave up the said demand. The respondent claimed that the workers were not entitled to permanency as per the settlement entered between the Union and Company. The workmen raised disputes and the matter landed up for adjudication. However, the CGIT, relying upon Section 25-H of the Industrial Disputes Act, 1947 held that there was no retrenchment since the non-renewal of fixed term contract did not amount to be so as provided under Section 2(oo)(bb) of the said Act and thus, there was no question of re-employment of the concerned workmen.
The following two issues arose before the Supreme Court:
1. Which is the Appropriate Authority empowered to issue the Standing Order(s) under the Industrial Employment (Standing Orders) Act, 1946?
2. Whether a private agreement/settlement between the parties would override the Standing Order?
While dealing with the first issue, the Court said, “Insofar as the Respondent Company is concerned, the appropriate Government is clearly not the Central, but the State Government since the Respondent is not, within the meaning of Section 2(b), under the control of the Central Government. The present case falls under the latter part of the section; thus, the appropriate Government means the State Government. The Bombay Model Standing Order would be applicable to the parties.”
With regard to the second issue, the Apex Court noted that the appellant is entitled to all the benefits as per the Bombay Model Standing Order.
Accordingly, the Court allowed the appeal and quashed the award of CGIT and the judgment of the High Court.
Cause Title- Bharatiya Kamgar Karmachari Mahasangh v. M/s. Jet Airways Ltd. (Neutral Citation: 2023 INSC 646)