TMI Blog1995 (7) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... which directed reinstatement of the petitioner in service with continuity and full back wages. 4. Being aggrieved by the said order, the first respondent challenged the order by its Appeal (IC) No. 60 of 1986 before the Industrial Court, Maharashtra, Bombay, under Section 84 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the BIR Act ). The said appeal was dismissed by the Industrial Court by its order dated 30th January, 1987. In the order dismissing the appeal, the Industrial Court specifically came to the conclusion that the contention of the first respondent that that petitioner had been employed in service only as a temporary workman in connection with the work of erection of Warp Ring Frames and Weft Frames, was untenable and rejected it. The learned Judge of the Industrial Court noticed that a copy of the appointment letter of the petitioner had not been placed on record to substantiate the defence of the first respondent that the petitioner was employed as a temporary employee. He also considered the totality of the evidence on record. After assessing all relevant circumstances, the Industrial Court recorded a clear finding and observed (vide p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had completed 240 days. It was contended that his status as a permanent employee had already been adjudicated and decided by the Industrial Court by its order dated 30th January, 1987 made in Appeal (IC) No. 60 of 1986. It was also contended in the complaint that there was an agreement between the representative union and the Mill Owner's Association, acting on behalf of the textile mills in Bombay, under which temporaries and badlies were to be made permanent after completion of 240 days of work. 7. Once again, in its written statement filed by the first respondent, the story that the petitioner had been engaged temporarily in connection with the erection of machinery in the Warp Ring Frame Section , was pleaded. It was further pleaded that the petitioner's service was terminated on 13th December, 1980 because the said work had come to an end. It was admitted in the written statement that the petitioner's Application (BIR) No. 170 of 1981 had been allowed by the Labour Court by its order dated 14th April, 1986 and that the first respondent's Appeal (IC) No. 60 of 1986 had been dismissed by the order of the Industrial Court dated 30th January, 1987. The first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act ? 6) Whether the complaint is barred by limitation ? 7) What orders ? 11. My findings on the aforesaid points are as under for the following reasons : 1) No; 2) No; 3) No; 4) No; 5) does not prove. 6) No; and 7) As per the final orders . 11. A perusal of the issues framed by the Industrial Court does not indicate that it was trying the issue as to the maintainability of the Complaint on any ground whatsoever. I am informed by Dr. Kulkarni, learned Counsel appearing for the petitioner, and there appears to be no reason not to accept his statement, for none has appeared on behalf of the first respondent, that the parties had filed written arguments in support of their respective cases before the Industrial Court, and that, in the written arguments filed by the first respondent also, there was no ground urged as to the maintainability of the complaint under the provision of the Act. Dr. Kulkarni brought to my attention a grievance of this effect made in Paragraph 5 of this writ petition. There is no return denying these facts and, therefore, there is no reason why they cannot be accepted as correct. 12. It is strange that the learned Judge of the Industrial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e three crucial aspects of the matter. 14. On the issue of model standing orders being applicable, the learned Judge holds in paragraph 30 of the impugned order as it being contrary to the provisions of Section 40-A of the BIR Act. He has also completely misunderstood the observations of this Court in the judgment of Anjani Kumar Co. Ltd. v. Manubai Kashinath Ors. (1989 II LLN 154). In fact, having referred to the said judgment and certain observations made therein, the learned Judge has held exactly contrary to what was decided therein. It is worthwhile reiterating that in Anjani Kumar's case (supra), this Court held that, because of the provision of Section 40-A of the BIR Act, Model Standing Orders made and notified by the State Government in respect of any additional matter included in Chapter I of the BIR Act or any alteration made in Schedule I on and after the date of commencement of Bombay Industrial Relations (Amendment) Act, 1977, shall, unless the said Model Standing Orders are held by the Commissioner of Labour to be less advantageous to the employees than the corresponding Certified Standing Orders applicable to them, also apply in relation to such employees. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to resolve the difficulty. In the ringing words of Denning, L.J., the duty of a Judge is : When a defect appears a Judge cannot simply fold his hands and blame the draftsmen. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the legislature. A Judge and should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases . Observation of Denning, L.J., in Seaford Court Estates Ltd. v. Asher, (1949 2 All ER 155) referred to with approval by the Supreme Court in Bangalore Water Supply v. A. Rajappa, . The Judge has to discharge the onerous duty of ascertaining the intention of the law-maker, which may be obscure due to error in draftsmanship. In the words of the Privy Council. At times the intention of the legislature is clear but the unskilfulness of the draftsman in introducing certain words in the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egate. I am satisfied that this was the exact result sought to be achieved by Model Standing Order 4-C under the BIR Act also. However, on account of error in drafting, an obvious lacuna is left in Model Standing Order 4-C under the BIR Act. This conclusion gets fortified by a look at the explanation. The explanation is identical in both cases. The explanation in the Model Standing Order under the BIR Act makes pointed reference to computing of 190 days for making a badli or temporary operative permanent. Interestingly, in the substantive provision, there is no reference at all to 190 days. The reference is only to putting in of 240 days' uninterrupted service in the aggregate in any other undertaking during the period of preceding twelve calendar months. If the substantive provision does not make reference to 190 days' uninterrupted service for making a badli or temporary employee permanent, it is obvious that the explanation cannot. This appears to be a case of a slip between the cup and the lip. Starting with the intention that both concerned Model Standing Orders should produce the same legal result, the legislative draftsman has, by an error somewhere along the line, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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