Research › Search › Judgment

Bombay High Court · body

2011 DIGILAW 264 (BOM)

Prabhakar Ganapat Patil v. Kohinoor Mills

2011-03-04

S.C.DHARMADHIKARI

body2011
JUDGMENT : 1. This petition under Article 226 of the Constitution of India challenges the judgement and order dated 31.10.2002 in Complaint (ULP) no.1040 of 2001 rendered by the Member, Industrial Court, Mumbai. 2. The petitioners are the original complainants whereas M/s.Kohinoor Mills, which is a unit of the National Textiles Corporation Limited (Maharashtra North) is the respondent no.1. 3. The petitioners contended in the complaint that the respondent no.1 before me has engaged in and is engaging in unfair labour practices under Items 5, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short the “MRTU & PULP Act”). 4. It is alleged that they are indulging into such practices from 3.12.2001 and everyday thereafter. 5. Each of the petitioners claims to have been employed by the respondent no.1 and it is stated that the respondent no.1 is governed by the Bombay Industrial Relations Act, 1946. It is alleged in the complaint that the complainants/petitioners are “Operatives” as per the settled Standing Orders and are governed by the settled Standing Order 20-A in respect of their retirement. At the relevant time, each one of them was working as Asstt. Foreman. It is stated that they are permanently carrying out maintenance of machines. They were originally employed as Coolies in Electrical Department and have been promoted to the posts of Wiremen, Chargemen and, lastly, to the post of Assistant Foreman with effect from 1.3.1998. 6. Date of joining and the basic wages are set out and it is alleged that the respondent no.1 issued them Retirement Memo on 3.12.2001. It is stated that their date of birth as per the service record has been incorrectly recorded. As far as this part of the judgement and order of the learned Member, Industrial Court, is concerned, there is no challenge thereto because the complaints are partly allowed by the Industrial Court. The 1st respondent has been directed by the Industrial Court to continue the present petitioners in employment till 31.12.2002. There is no cross petition. 7. I need not, therefore, go into the allegations insofar as this controversy is concerned. 8. The other plea raised was that the petitioners are working as “Operatives”. Their services are governed by the settled Standing Orders. There is no cross petition. 7. I need not, therefore, go into the allegations insofar as this controversy is concerned. 8. The other plea raised was that the petitioners are working as “Operatives”. Their services are governed by the settled Standing Orders. However, the respondent no.1 had issued them Retirement Memo by relying on the Model Standing Orders meant for employees other than Operatives. It is stated that all the petitioners are doing the work of overseeing the machines i.e. looking after the machines and manually carrying out their maintenance. In these circumstances, they being Operatives, they are governed by the settled Standing Order 20-A in respect of their retirement. They being efficient, they are entitled to be retained in service till 63 years of their age. By not giving them extension despite their efficiency, the 1st respondent has committed a breach of Standing Order 20-A and, therefore, this act is an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. It is submitted that even otherwise and without prejudice to the Model Standing Order 26-A it speaks of compulsory retirement and not normal retirement and, therefore, this clause is illegal and, therefore, for this reason, the retirement scheme under this clause is inapplicable. 9. It is alleged that there is no retirement age fixed in case of the petitioners and rightly so they as they can continue till they are fit, physically and mentally. Finally, it was alleged that the 1st respondent has committed unfair labour practice under item 5 of Schedule IV as similarly situated other Operatives have been retained in service till 63 years of their age and only the petitioners were chosen for retirement. Therefore, there is favoritism and partiality to one set of employees. The instance of one Rajat Ghatak has been set out in the complaint. 10. It is also alleged that by forcibly retiring the petitioners, the 1st respondent has committed an unfair labour practice under item 10 of Schedule IV of the MRTU & PULP Act. 11. It is alleged that there was a request made to withdraw the Retirement Memo, but on the respondent no.1’s refusal to do so despite repeated request in that behalf, the petitioners have approached the Industrial Court. 12. Paragraph 9 of the complaint sets out the prayers and reliefs sought. 11. It is alleged that there was a request made to withdraw the Retirement Memo, but on the respondent no.1’s refusal to do so despite repeated request in that behalf, the petitioners have approached the Industrial Court. 12. Paragraph 9 of the complaint sets out the prayers and reliefs sought. The reliefs claimed, inter alia, are that the 1st respondent has committed unfair labour practice as above and they be directed to withdraw the same. That the Retirement Memo be withdrawn and the petitioners should be retained in services till they complete 63 years of age, if they continue to be efficient. Therefore, full back wages with continuity of service be granted. 13. This complaint was filed on 12.12.2001. On being served with the complaint, the 1st respondent filed Written Statement in which apart from reference to the Nationalisation Act, it was denied that Standing Order 20-A would apply. The petitioners are governed by Technical and Supervisory Staff Standing Orders. As Assistant Foremen, they are entitled for all the benefits and Casual Leave, medical reimbursement and privilege leave. They are also entitled to leave encashment as per the Technical and Supervisory Staff Standing Orders. Now they cannot be heard to state that these Standing Orders are not applicable, but those applicable to Operatives should govern the retirement age of the petitioners. For all these reasons, it was pointed out that the complaint is devoid of any substance and it should be dismissed. There is no unfair labour practice as alleged or at all. Each and every allegation in the complaint is dealt with in detail in the Written Statement which came to be filed in the Industrial Court on 21.12.2001. 14. On the basis of the pleadings, issues came to be framed. Issues framed by the Industrial Court read thus:- “1) Whether complainant proves that the respondents have committed an unfair labour practices under items 5, 9 & 10 of Sch.IV of the MRTU & PULP Act, 1971? 2) Whether respondents proves that the complainants are belonging to technical and supervisory staff whether they are governed by the standing order of technical and supervisory staff? 3) Whether complainants are entitle for the relief claim? 4) What order and reliefs?” 15. An application for recasting and re-framing the issues was made by the petitioners on 16.10.2002. 2) Whether respondents proves that the complainants are belonging to technical and supervisory staff whether they are governed by the standing order of technical and supervisory staff? 3) Whether complainants are entitle for the relief claim? 4) What order and reliefs?” 15. An application for recasting and re-framing the issues was made by the petitioners on 16.10.2002. Request was made to review the order framing issues passed on 27.3.2002 and issues in consonance with the draft be framed was the request made by the petitioners. 16. At this stage, it is not necessary to refer to the grievance of the petitioners that the request as made should have been granted. This aspect can be dealt with while dealing with the submissions of the petitioners’ counsel. 17. Suffice it to note that the evidence was recorded by the Industrial Court on the basis of the afore-framed issues and after the oral and written arguments were considered, the subject decision has been rendered. It is this judgement dismissing the complaint which is impugned in this Writ Petition. 18. When this petition was placed before me for hearing and final disposal, Ms Doshi appearing on behalf of the 1st respondent vehemently contended that the controversy in the present Petition is concluded by a judgement of a Division Bench of this Court in the case of Vinayak Eknath Dadape v. The National Textile Corporation (S.M.) Ltd. & Ors. (Appeal (L) No.136 of 2000 In Writ Petition Nos.1248 of 1999 and 1006 of 1999) decided by a Division Bench of this Court consisting of B.H. Marlapalle & Smt.V.K.Tahilramani, JJ. on 8.2.2010. It was urged that this judgement affirmed the view taken by the learned single Judge of this Court, H.L.Gokhale, J. (as His Lordship then was) in the aforementioned Writ Petitions which judgement has since been reported in 2000 II CLR 20. On the other hand, Mr.Deshpande appearing for the petitioners submitted that this judgement will not cover the controversy because there are certain distinguishing features. He, therefore, submits that this petition be considered as not being covered by the Division Bench judgement, but independently. 19. It is on these basis that I have heard the counsel in detail. 20. Mr.Deshpande appearing on behalf of the petitioners, firstly, urged that the petitioners joined as coolies. As far as the petitioner in the case before the Division Bench is concerned, he was a direct employee. 19. It is on these basis that I have heard the counsel in detail. 20. Mr.Deshpande appearing on behalf of the petitioners, firstly, urged that the petitioners joined as coolies. As far as the petitioner in the case before the Division Bench is concerned, he was a direct employee. He was the head of the Department. He was getting all the benefits of technical and supervisory staff. In any event, Mr.Deshpande submits that the benefits do not decide the status of an employee. The petitioners are Operatives. In this behalf, Mr.Deshpande has invited my attention to the Standing Orders and has contended that the brief history of the Standing Orders has not been noted in the Division Bench, so also the single Judge’s judgements. He submits that vide Notification no.22/48-11 dated 18.9.1948, the State Government notified the Model Standing Orders for Operatives under the Bombay Industrial Relations Act, 1946. Standing Order no.25-A regarding compulsory retirement was introduced by the Government Notification no.BIR 1658-1 dated 10.2.1960 in the Model Standing Orders for Operatives. The Standing Order notifies that the date of compulsory retirement of an Operative shall be the date on which he attains the age of 60 years or such other age as may be agreed upon between the employer and the employee by an agreement, settlement or award which may be binding on the employer and the employee under any law for the time being in force. He invited my attention to the Notification notifying Model Standing Orders for Clerks under the Bombay Industrial Relations Act, 1946. However, by subsequent Nitrification bearing no.22/48 dated 21.4.1954, the Model Standing Orders for Clerks were made applicable to the employees other than Operatives. Standing Order no.26-A regarding compulsory retirement was introduced in the Model Standing Orders for employees other than Operatives. He then invited my attention to the fact that as per section 35(1) of the B.I.R. Act, 1946, Mill Owners’ Association submitted for approval of the Commissioner of Labour draft Standing Orders for Operatives and Clerks. They were finally settled by the Industrial Court under section 36(3) of the B.I.R. Act, 1946 and they came into force on and from 1.2.1951 and 1.4.1952, respectively, in respect of Operatives and Clerks. They were finally settled by the Industrial Court under section 36(3) of the B.I.R. Act, 1946 and they came into force on and from 1.2.1951 and 1.4.1952, respectively, in respect of Operatives and Clerks. In his submission, according to section 47 of the B.I.R. Act, these settled Standing Orders should determine the relations between the employer and his employees in regard to all industrial matters specified in Schedule I and as per section 35(5) of the B.I.R. Act, 1946, the Model Standing Orders cease to have any effect, the moment settled Standing Orders come into operation. 21. Mr.Deshpande then submitted that the distinction between a compulsory retirement and ordinary retirement on attaining the age of superannuation has been overlooked and that these aspects, including the above material have not been considered by the single Judge and the Division Bench, respectively. They have not considered the definition of the word “Operative”. Mr.Deshpande submits that the said word has been clearly understood by the parties and that means an employee employed to do manual work. Therefore, the Model Standing Orders for Operatives should not have been applied. Mr.Deshpande submits that the petitioners are three employees. They joined as Coolies. Therefore, merely because they have been at the relevant time working as Assistant Foremen will not make any difference because their working is overseeing the machines. They were maintaining the machines manually. Overseers are, therefore, operatives. In these circumstances, each of the petitioners is covered by the Settled Standing Order 20-A. Assuming that they are working in supervisory position and their duties are of greater skill, still they are Operatives. In such circumstances and when the draft of the issues was not taken into account and the issues were not re-cast that the Industrial Court misdirected itself in law and erroneously dismissed the complaint. Mr.Deshpande submits that the judgement and order is, therefore, vitiated by error apparent on the face of the record. In these circumstances, the petition deserves to be allowed. He has invited my attention to another fact, viz., that there is no classification in the Standing Order regarding technical and supervisory staff. There is no separate Standing Order. Inviting my attention to section 35 of the B.I.R. Act, 1946, he submits that any agreement cannot be relied upon and, therefore, the petitioners would be covered by the definition of the term “Operatives”. There is no separate Standing Order. Inviting my attention to section 35 of the B.I.R. Act, 1946, he submits that any agreement cannot be relied upon and, therefore, the petitioners would be covered by the definition of the term “Operatives”. Mr.Deshpande submitted that a learned single Judge of this Court in Raymond UCO Denim P. Ltd. v. P. Warade & Ors. reported in 2010 III CLR 1059 has taken the view that classification must be done in the Standing Order itself and not otherwise. In his submission, therefore, the view taken in this judgement would squarely apply. 22. In support of his submissions, Mr.Deshpande relied upon the following judgements:- (i) Guest Keen Williams Ltd. v. Asst. Labour Commissioner, Govt. of West Bengal & Ors. (1987 I CLR 62). (ii) The Bombay Dyeing & Mfg. Co. Ltd. v. R.B. Bidoo & Ors. (1989 II CLR 248). 23. On the other hand, Ms Doshi submits that the controversy stands concluded by the judgement of the Division Bench affirming the view of the learned single Judge in Vinayak Eknath Dadape’s case. She submits that the Division Bench judgement cannot be brushed aside as it has a binding effect. A binding precedent does not lose such character merely because some aspects of the controversy involving an analysis of the law or a particular argument now canvassed has not been dealt with by the Division Bench. The law and rule of precedents does not permit a single Judge to disregard and disrespect the judgement of a Division Bench by such process. 24. In any event, she submits that the pleadings in the complaint must be seen together with the reliefs claimed. If these are seen, then clearly the petitioners are not governed by the said Standing Order for Operatives but by Model Standing Order no.26-A. The petitioners are part of the technical and supervisory staff. Their case would, therefore, be clearly covered by the Standing Orders which are applicable to the technical and supervisory staff. She submits that in such circumstances, any reliance on the Standing Orders other than the Model Standing Orders meant for technical and supervisory staff is misplaced. Standing Order 26-A of the Model Standing Orders would be the governing Standing Order in this case. She submits that in such circumstances, any reliance on the Standing Orders other than the Model Standing Orders meant for technical and supervisory staff is misplaced. Standing Order 26-A of the Model Standing Orders would be the governing Standing Order in this case. She submits that a plain reading thereof would show the date of compulsory retirement of an employee other than the Operatives would be the date on which he attains the age of 60 years or such other date as may be agreed upon. She submits that there is no agreement, settlement or award which is pleaded. Under such circumstances, each of the petitioners has been rightly retired from service on their attaining 60 years of age. All other arguments of the petitioners must, therefore, fail because there is no foundation therefor in the pleadings. 25. Assuming without admitting that any such arguments as are canvassed by Mr.Deshpande are capable of being advanced before this Court, yet, she submits that these arguments are self-destructive and self-defeating. There is absolutely no basis for the assumption that qualifications would be the determining criterion or will be of relevance in this case. 26. The petitioners in their complaint have urged that they are being retired on their attaining 60 years of age, but they being Operatives are governed by the Settled Standing Order 20-A in respect of their retirement and yet, at the same, also alleging that Standing Order 26-A would not apply because it speaks about compulsory retirement. This means they are urging to the contrary. Further, one of the submissions before the Industrial Court was that the petitioners are being retired even before completion of 60 years of age and that is how the relief is granted. Ms Doshi invites my attention to the findings of the Industrial Court and submits that the complainants-petitioners cannot be treated as Operatives and, therefore, the Settled Standing Orders for Operatives cannot be made applicable to them is based on the factual aspects and requires no interference. She submits that this Court in its limited jurisdiction cannot re-appreciate and re-assess the materials on record. She submits that in such circumstances, the controversy is covered by the Division Bench judgement referred to above and the Petition must fail. 27. She submits that this Court in its limited jurisdiction cannot re-appreciate and re-assess the materials on record. She submits that in such circumstances, the controversy is covered by the Division Bench judgement referred to above and the Petition must fail. 27. In support of her submissions, she has relied upon the judgement of the learned Single Judge Mr.Justice H.L.Gokhale (as His Lordship then was) and the Division Bench judgement referred to above, so also the recent judgement of Her Ladyship Mrs.Justice Nishita Mhatre in (Appellate Side) Writ Petition No.5187 of 1996 (Mr.Dudhanath Bihari Yadav v. M/s.New City Textile Mills & Anr.) decided on 29.10.2010 which follows the Division Bench judgement. 28. For properly appreciating the rival contentions, it must be noticed that the pay scales and service conditions for Technical and Supervisory Staff are prescribed under Part IV, Chapter I of the Award which is applicable to the categories of persons/employees specified therein and as set out in the agreement reached between Rashtriya Mill Mazdoor Sangh and the Mill Owners’ Association as modified. Therefore, such of the persons who are mentioned therein are treated as technical and supervisory staff. As far as Operatives are concerned, there are Standing Orders which are covered and clause 20-A states that an Operative shall retire from service on attaining the age of 60 years, but a male Operative shall be retained in service, if he continues to be efficient, upto the age of 63 years, provided that when retrenchment becomes necessary a person who has completed the age of 60 may be retired in preference to younger men. 29. The Model Standing Order for Technical and Supervisory Staff is clause 26A which prescribes the age of 60 years as the date of compulsory retirement of an employee or such other age as may be agreed upon between the employer and the employee by an agreement, settlement or award which may be binding on the employer and the employee under any law for the time being in force. 30. The controversy before the learned single Judge, Mr. Justice H.L.Gokhale (as His Lordship then was) in National Textile Corpn. & Ors. v. S.M. Tambe & Ors., as far as Writ Petition No.1481 of 1997, which is the relevant petition is concerned, was that the petitioner therein joined as a Badli Doffer boy. He became permanent in Spinning Department on 1.11.1963. The controversy before the learned single Judge, Mr. Justice H.L.Gokhale (as His Lordship then was) in National Textile Corpn. & Ors. v. S.M. Tambe & Ors., as far as Writ Petition No.1481 of 1997, which is the relevant petition is concerned, was that the petitioner therein joined as a Badli Doffer boy. He became permanent in Spinning Department on 1.11.1963. On 1.2.1972 he became a doffer jobber. On 17.2.1979 he became an Assistant Foreman, then a Foreman on 1.1.1988 and a Departmental Assistant on 1.1.1990. He was given a retirement memo on 27.11.1996 informing him that he will retire on 31.12.1996 on completing 60 years of age. He replied stating that he was eligible to work until completing 63 years of age. That reply was not accepted and, therefore, he filed a complaint alleging unfair labour practice and after considering the documentary and oral evidence, the complaint came to be rejected by an order dated 5.7.1997. He questioned the dismissal of the complaint by filing a Writ Petition. 31. His counsel urged that the definition of an “Operative” in the Standing Orders applicable to the Operatives, includes all work-people. National Textile Corporation contended that Standing Order 26A would be the applicable Standing Order and Standing Order 20A, as far as Operatives are concerned, cannot be invoked by the said employee. In dealing with this contention, it was held that an overall view has to be taken and one cannot ignore the fact that when the petitioner therein was working as an Assistant Foreman and, thereafter, in the promoted category for a very long time and got the salary and other benefits of the category of Technical and Supervisory Staff, he cannot turn around and allege that he is an Operative for other purposes and he should be allowed to work until completion of 63 years. Relying upon the earlier judgement of this Court and also the view taken in another matter by the Industrial Court, the learned single Judge held that the petitioner cannot be regarded merely as an Operative. In these circumstances, the Petition was dismissed. 32. In another Writ Petition, being Writ Petition No.1248 of 1999, which was also dealt with by the same Judge in the same judgement along with Writ Petition No.1006 of 1999, one Vinayak Eknath Dadpe was the petitioner. In these circumstances, the Petition was dismissed. 32. In another Writ Petition, being Writ Petition No.1248 of 1999, which was also dealt with by the same Judge in the same judgement along with Writ Petition No.1006 of 1999, one Vinayak Eknath Dadpe was the petitioner. He was also sought to be retired in the same manner and he invoked clause 20A of the Settled Standing Orders. In dealing with the contention as to how the said employee cannot be said to be an Operative, this is what is held by the learned single Judge in paragraphs 55 and 56 of the judgement:- “55. Mr. Deshpande relied upon a judgment of Calcutta High Court reported in 1986 Lab IC 1668 in the case of Guest Keen Williams Ltd. v. Asstt. Labour Commissioner, Govt. of West Bengal, to contend that the Standing Orders are determinative. There is no quarrel with the proposition. The question in the present matter is which Standing Order is to apply. Then he relied upon a judgment of this Court in 1990-I-LLJ-98 (Bom-DB) in the case of Bombay Dyeing and Manufacturing Co. Ltd. v. R.A. Bidoo, holding that the designation is not relevant. The question before the Court was in the context of a reinstatement application as to whether the employee concerned could be excluded from the definition of "employee" on the assertion of the management that he was engaged in Technical or Supervisory capacity and was drawing salary exceeding Rs. 1,000/-per month. In para 26 of its judgment, the Court held "in any case in the absence of basic material relating to the nature of work performed by the respondent, it has not been possible for us to differ with the concurrent findings given by the two Courts below that the respondent, in the instant case, is not a person employed in a technical capacity. In the present case, we are concerned with the question as to which set of Standing Orders will apply. Admittedly the employee is receiving all the benefits under the Standing Order applicable to technical and supervisory staff including salary and D.A., privilege leave and medical benefits The management has also produced documents showing that this employee was signing for the head of department on leave applications of others. In the circumstances, the controversy and facts of the present case are different from the Bombay Dyeing Case. In the circumstances, the controversy and facts of the present case are different from the Bombay Dyeing Case. The employee cannot pick and choose favourite part of the Standing Orders of the operative. Mr. Deshpande lastly relied upon the judgment reported in (1955-I-LLJ-371) (Bom-DB) in the case of K. N. Joglekar v. Barsi Light Railway Co. Ltd., to contend that a term ought to be construed according to the language used by legislature. This was to canvass that the employee herein was an "overseer" and, therefore, an operative. In our case, we have ample material on record right from the appointment of the employee concerned, his pay scales and the work that he had done and on that footing in the present case, there is no alternative but to hold that the employee concerned will be governed by the Standing Orders for employees other than those for the operatives. 56. All these factors will have to be considered in their totality. The pay and the various benefits received by the employee concerned are far superior to those of operatives. His appointment letter designated him as senior assistant. In view of all these circumstances, it could not be said that the employee concerned was an operative so as to avail of the benefit of extended service under the Standing Orders which govern the Service Conditions of the operatives when he was otherwise receiving the pay scales and all other service conditions of the technical and supervisory category. He has functioned as such in a supervisory category by signing various documents. In the circumstances, in my view, the learned Member of the Industrial Court has erred in coming to the conclusion that clause 20A would be available to employee Mr. Dadpe. The employee concerned would be governed under Standing Order 26A and the management was right in retiring him on completing the age of 60 years. In the circumstances, Writ Petition No. 1248 of 1999 filed by the Management succeeds. Rule issued therein is made absolute though with no order as to costs. Writ Petition No. 1006 of 1999 filed by the workman fails. The rule issued therein will stand discharged, without any order as to costs.” 33. An appeal was filed by Vinayak Eknath Dadpe being Appeal (Lodging) No.136 of 2000 against the common judgement in Writ Petition 1248 of 1999 and Writ Petition No.1006 of 1999. Writ Petition No. 1006 of 1999 filed by the workman fails. The rule issued therein will stand discharged, without any order as to costs.” 33. An appeal was filed by Vinayak Eknath Dadpe being Appeal (Lodging) No.136 of 2000 against the common judgement in Writ Petition 1248 of 1999 and Writ Petition No.1006 of 1999. That appeal was dealt with by the Division Bench of Mr.Justice B.H. Marlapalle & Mrs.Justice V.K.Tahilramani, JJ. and by judgement and order dated 8.2.2010 it was held:- “3. The main contention of Mr. Deshpande, the learned counsel appearing for the appellant, is that the appellant was and continued to be in the category of an operatives and, therefore, Clause 26A of the Model Standing Orders applicable to the technical and supervisory staff or other than operative was not applicable to the appellant. Mr. Deshpande has referred to Clause 20A of the Certified Standing Orders applicable to the operatives and submitted that on completion of 60 years the appellant was required to be retained in service if he continued to be efficient upto the age of 63 years. The complaint was filed by the appellant solely on the ground that he is required to be given benefit of Clause 20A of the Certified Standing Orders applicable to the operatives and that the appellant was appointed and continued to be an operative though he occupied the post of Senior Technical Assistant. Mrs. Doshi, the learned counsel appearing for the employer, on the other hand, has supported the view taken by the learned Single Judge and submitted that prior to the issuance of the letter intimating the date of retirement, the appellant had never contended that he was an operative and the post of Senior Technical Assistant was not included in the Technical and Supervisory staff. It is only for the first time, to derive the benefit of being retained in service till the age of 63 years, the appellant claimed that he was an operative and continued to be so, so as to entitle him to remain in service till the age of 63 years. As per Mrs. It is only for the first time, to derive the benefit of being retained in service till the age of 63 years, the appellant claimed that he was an operative and continued to be so, so as to entitle him to remain in service till the age of 63 years. As per Mrs. Doshi, the learned Member of the Industrial Court fell in gross errors in holding that the employer was guilty of unfair labour practices within the meaning of Items 5, 9, and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971 and the learned Single Judge rightly set aside the said order. 5. We have considered the record afresh. The Written Statement filed by the employer under the signature of its General Manager clearly stated that the complainant was a direct appointee as Senior Technical Assistant in supervisory staff and he was never employed in any lower category than the Senior Assistant. His appointment was in the payscale of Rs.905-50-1305 plus allowances, as admissible to the Technical and Supervisory staff. He never raised a contention that he was an operative, despite the fact that the complainant had made a representation about his stagnation in the post of Senior Technical Assistant. At the relevant time, his basic salary was Rs.1305/-and he was covered under the Model Standing Orders applicable to the Technical and Supervisory staff and he was not covered under the Certified Standing Orders applicable to the operatives. It was further pointed out that having employed in a supervisory category, he was getting some higher benefits which were not applicable to the operative class. He was entitled for 30 days of privilege leave for every 11 months working and subsequently for 33 days for 12 months working. In addition to the 15 days of casual leave, he was also entitled for 15 days of sick leave with full wages and medical reimbursement as per NTC Rules of Rs.2000/-per year. The same benefits were not available to the operative class and they were entitled for privilege leave of one day for every 12 days upto 243 days, between 244 to 250 days, one day leave for seven days and upto 256 days of working, one day P.L. for six days of working and so on and so forth. The same benefits were not available to the operative class and they were entitled for privilege leave of one day for every 12 days upto 243 days, between 244 to 250 days, one day leave for seven days and upto 256 days of working, one day P.L. for six days of working and so on and so forth. Similarly there was no medical reimbursement as well as sick leave for the operative class, whereas they enjoyed the benefits of 6 days of casual leave. By referring to the documents brought on record like the leave record, salary statement, attendance punching card, leave encashment application, it was pointed out that the appellant was always treated as a member of the Technical and Supervisory staff. Leave Applications of other employees were also placed on record so as to point out that it was the appellant who was, in fact, recommending the leave. When the appellant stepped in the witness box before the Industrial Court, there was no evidence to disbelieve the reasons stated by the employer to oppose the complaint and, in fact, the record spoke for itself. The representative of the employer, who stepped in the witness box, in his oral evidence pointed out that the department, in which the appellant was working was headed by an officer from the managerial staff and the appellant was next in command. In the technical category, the hierarchy was Super Senior Assistant, Senior Assistant, Junior Assistant, Department Assistant (Graduate), Foreman, Assistant Foreman and Data Collector. Whereas in the operative category the employees holding the post of Jobber, Helper, Winder, Machine Man, Mazdoor, Watch and Ward Staff etc. were covered. 6. Mr. Deshpande the learned counsel invited our attention to the Certified Standing Orders as well as the Model Standing Orders. It is not in dispute that for the Textile Industries in Mumbai, there are Certified Standing Orders for the operatives and clerical staff and for the technical and supervisory staff, the Mills follow the Model Standing Orders framed by the Government of Maharashtra in the year 1948 under t he BIR Act. It was submitted by Mr. Deshpande that the definition of operative included within its sweep the post of Senior Technical Assistant as well because he ought to fall in the category of “overseers”. It was submitted by Mr. Deshpande that the definition of operative included within its sweep the post of Senior Technical Assistant as well because he ought to fall in the category of “overseers”. Under the Standing Orders applicable for operatives, the term “operative” means all work people, male or female, employed in the mill or in the mill premises, whose names and ticket numbers are included in the departmental musters, and includes, Overseers, Jobbers, Muccadams, Watch & Ward Staff, Motor Vehicle Staff and Cartmen. Mr. Deshpande, therefore, reiterated that the appellant was and continued to be in the category of operatives as he was an overseer and, therefore, he was entitled for the benefits of Clause 20A of the Certificate Standing Orders applicable for operatives. 7. We have gone through the Certified as well as Model Standing Orders and the contentions of the appellant that he ought to be treated as an operative are fallacious and farfetched. The evidence brought on record by the employer showed that he held the post of Senior Technical Assistant right from the day of his appointment, he enjoyed the service conditions as applicable to the said post, namely, pay-scale, D.A., H.R.A., City Compensation Allowance, Conveyance Allowance, Acting Allowance and Medical Allowance etc. The operative category of the employees are paid D.A. at a rate different than it is available to the technical and supervisory staff. Similarly, the payment of additional D.A. is also on different scales. The operative category does not have the pay-scales as are available to the Senior Technical Assistant. The operatives are also not entitled for the benefit of City Compensatory Allowance. The term “overseer” cannot, having regard to the evidence placed before the Industrial Court, encompass within its fold, the post of Senior Technical Assistant. It is clear that he was offered the post of Senior Technical Assistant having regard to his technical qualifications and the experience and till he was issued the letter dated 15/12/1993 informing him that he would retire on attaining the age of 60 years, the appellant, at no point of time, had contended that he was not a member of the Technical and Supervisory staff but indeed he was an operative. When the complainant approached the Industrial Court, the onus was mainly on him to prove that he was an operative and he was not a member of the Technical and Supervisory staff. When the complainant approached the Industrial Court, the onus was mainly on him to prove that he was an operative and he was not a member of the Technical and Supervisory staff. On the contrary, the employer, by adducing the evidence, documentary and oral, proved that the operative category was different than the Technical and Supervisor category, the benefits, monetary as well as other perks were different for both these categories, the nature of duty was different and, in fact, the operatives were working under the Technical and Supervisory staff. The department, in which the appellant worked, had about 70 staff and he was No. 2 in the said department i.e. below the In-charge of the department who was from the managerial category. The reasons which were implicit in the view taken by the learned Single Judge have been made explicit by us by discussing the evidence as was placed before the Industrial Court. Shri Deshpande also invited our attention to the pursis dated 10/11/1998 filed on behalf of the respondent – company before the Industrial Court and submitted that the respondent itself had given up the challenge to the status of the complainant as an operative. These submissions are factually erroneous. The pursis stated that the company did not wish to press for issue No.1 framed as, “whether the complainant proves that he is an employee as contemplated under the provisions of the BIR Act”. While stating so, the company further stated that the Hon’ble Court may be pleased to delete the above issue and confine to the following issue, namely, “Whether the complainant is operative as per the Standing Orders applicable to him.” This pursis goes to show that the company gave up the challenge that the complainant was not an employee as defined under the BIR Act but reiterated to decide as to whether the complainant is an operative as per the Standing Orders applicable to him. It means that the challenge to the maintainability of the complaint was given up but the company had not given up the issue as to whether the complainant would be an operative.” 34. Mr.Deshpande appearing for the petitioners relied upon the decision of the Hon’ble Supreme Court in Govt. of Karnataka v. Gowramma ( AIR 2008 SC 863 ) and contended that all observations so also findings in a judgement of a co-ordinate or larger Bench have no binding effect. Mr.Deshpande appearing for the petitioners relied upon the decision of the Hon’ble Supreme Court in Govt. of Karnataka v. Gowramma ( AIR 2008 SC 863 ) and contended that all observations so also findings in a judgement of a co-ordinate or larger Bench have no binding effect. He submits that the Division Bench was dealing with the case of Dadape who was a direct employee. He was the Head of the Department and virtually getting all benefits of technical and supervisory staff. Hence, this judgment is distinguishable. Further, he contends that benefits do not decide the status of an employee. 35. Mr.Deshpande has invited my attention to the complaint of unfair labour practice and submitted that a perusal of the complaint would show that the petitioners have specifically contended that they were manual workers and, therefore, they are Operatives and governed by the Settled Standing Order 20A in respect of their retirement. Each one of them joined as Cooli or Apprentice and was promoted and, ultimately, reached the post of Asstt. Foreman. However, the nature of their duties was same. They were manual workers. In such circumstances, the Division Bench judgement is distinguishable. 36. It is not possible to accept this contention for more than one reason. In the Written Statement that was filed by the respondent no.1 in the complaint, it was specifically contended that the petitioners were working as Asstt. Foremen and, therefore, Standing Order no.20-A for Operatives is not attracted. The petitioners are governed by Technical and Supervisory Staff Standing Orders. As Asstt. Foremen, they have been entitled for all the benefits of causal leave, medical reimbursement, privilege leave, and leave encashment as per the Technical and Supervisory Staff Standing Orders. Now, they cannot be heard to claim that the Standing Orders for Operatives are applicable to them. Therefore, the petitioners’ case was specifically denied. The allegation of unfair labour practice was also specifically denied. It was urged that the petitioners have been rightly retired on attaining the age of 60 years of age as Model Standing Orders for Technical and Supervisory Staff and particularly Standing Order 26-A would be applicable to them. 37. Issues were also framed and an application was moved for recasting the issues. Merely because the application was not heard or no orders have been passed is no ground to interfere with the order under challenge. 37. Issues were also framed and an application was moved for recasting the issues. Merely because the application was not heard or no orders have been passed is no ground to interfere with the order under challenge. By the issues that were ultimately framed and considered, I do not see how the petitioners were prevented from proving their case as set out in their complaint. May be, the issues were worded in a particular manner. The issues framed, if perused as a whole, would indicate that the petitioners had sufficient opportunity to prove their case as set out in the complaint. 38. As far as the oral evidence is concerned, the petitioners deposed that they come under the category of Operatives. They are doing the work of maintenance of machines. They have pointed out that they have reached the post of Asst. Foreman. They have also pointed out that one Rajat Ghatak had been given extension upto 63 years and, therefore, they be allowed to continue till they attain that age. However, in cross-examination what they have stated is that prior to their promotion as Asstt. Foremen, they were all working as Operatives. They have stated that after their promotion as Asstt. Foremen, they have been issued cards which are to be punched. They have admitted that they are getting 15 days’ leave and prior to this, they were getting six days’ leave. On a question as to whether E.S.I. contribution was deducted from the technical and supervisory staff, the answer was that the petitioners are not aware about it. Same is the case with the suggestion given with regard to the medical allowance. Another suggestion about whether their names have been mentioned in the register of supervisory staff of the Mill, the petitioners stated that they were not aware. The suggestion with regard to Rajat Ghatak though specifically denied, there is admission that the 1st respondent has not continued any Asstt. Foreman or Foreman in their employment after attaining the age of 60 years. Therefore, the suggestion given that the petitioners are not Operatives but Technical and Supervisory Staff has been denied. 39. As far as the respondent no.1 is concerned, their Administrative Officer entered the witness-box and stated that the petitioners are working as Asstt. Foremen and are in the Supervisory and Technical cadre and their names are in the muster of supervisors and technical staff. 39. As far as the respondent no.1 is concerned, their Administrative Officer entered the witness-box and stated that the petitioners are working as Asstt. Foremen and are in the Supervisory and Technical cadre and their names are in the muster of supervisors and technical staff. They used to retire at the age of 60 years. To a suggestion in the cross-examination as to whether the same benefits awarded to the workers are awarded to the technical staff, the witness stated that it is not correct that such benefits are admissible to both. It is also denied that there are only two categories in the Mill i.e. Operatives and Clerical. As far as the hierarchy is concerned, specific questions and suggestions were put to him which have been denied. The suggestion that the petitioners were working as Operatives and, therefore, entitled to extension upto the 63 years of age has also been denied. It is on such material that the Industrial Court heard the complaint. As far as the benefit given to the petitioners-complainants of continuing in service upto 60 years of age is concerned, there cannot be any quarrel and the same is not even questioned. However, as far as the case set out in the complaint that the petitioners are Operatives is concerned, the Industrial Court in the judgement has held that it cannot be disputed that the petitioners are working as Asstt. Foremen and they come under technical and supervisory staff. The petitioners have enjoyed all benefits of technical and supervisory staff and it has also been proved that no technical or supervisory staff was continued by the respondent no.1 after attaining the age of 60 years. Thus, the Mill used to retire persons of the category of the petitioners on their attaining 60 years of age is a finding rendered on the basis of oral and documentary evidence. The evidence on record clearly shows that the petitioners have enjoyed all the benefits of supervisory and technical staff. In such circumstances, the finding of fact that Model Standing Order 26-A would be applicable is based on the evidence on record. 40. It is, in these circumstances, that I am of view that the Division Bench judgement of this Court would bind the petitioners in this case. In such circumstances, the finding of fact that Model Standing Order 26-A would be applicable is based on the evidence on record. 40. It is, in these circumstances, that I am of view that the Division Bench judgement of this Court would bind the petitioners in this case. While it is true that the rule of precedents as enunciated in the Supreme Court decision is that the judgements are not required to be interpreted but only statutes are required to be interpreted and hence a single observation or a single finding would make a difference. However, the finding in this case in the single Judge’s judgement cannot be discarded. The learned single Judge was considering identical controversy. The judgement was rendered on same set of facts. That the petition before this Court by the management was allowed by holding that Model Standing Order 26A would be applicable and the petitioners were not working as Operatives. The learned single Judge in the afore-quoted paragraphs concluded that once the benefits available to technical and supervisory staff have been extended and that is the factual basis, then, the parties cannot turn around and claim their retirement in terms of the Settled Standing Order 20-A by claiming that they are Operatives. That finding is confirmed by the learned Judges constituting the Division Bench. It is equally well-settled that binding judgements cannot be ignored and brushed aside merely because another argument on the same set of facts and situation is possible. If there is any precedent required for this principle, suffice it to refer to the judgement of the Hon’ble Supreme Court in Director of Settlements, Andhra Pradesh v. M.R. Apparao & Anr. ( AIR 2002 SC 1598 ). In this judgement, the Supreme Court while following its earlier ruling in Ballabhdas Mathuradas Lakhani v. Municipal Committee, Malkapur ( AIR 1970 SC 1002 ) held that a binding judgement cannot be ignored because the Court feels that relevant provisions were not noticed or certain aspects were not considered. 41. In the aforementioned facts and circumstances and finding that the controversy in the present petition is covered by the aforementioned decisions, it will not be possible to agree with Mr.Deshpande that the petitioners can be held to be Overseers and, therefore, Operatives. 41. In the aforementioned facts and circumstances and finding that the controversy in the present petition is covered by the aforementioned decisions, it will not be possible to agree with Mr.Deshpande that the petitioners can be held to be Overseers and, therefore, Operatives. Assuming that they are working in supervisory category, still they are Operatives because the same set of duties have been carried out by them is the plea raised. However, that is not proved as is clear from the record. Merely asserting that the petitioners are Operatives would not, therefore, be of any assistance. Similarly the argument that there is no classification in the Standing Orders regarding technical and supervisory staff and no separate Standing Order exist for them is nothing but another shade of the same issue. In that context, Mr.Deshpande has relied upon the judgement of the learned single Judge of this Court in Raymond UCO Denim P. Ltd. v. P. Warade & Ors. (2010 III CLR 1059). 42. In that case, the controversy was that the respondent nos.1 to 53 before this Court entered the services as trainees under training contract. Forty five out of them completed the training on 8.12.2005 and eight of them were given extension. The trainees, after completion of training, were appointed on probation and accordingly, the respondent nos.1 to 53 before the Court were so appointed for a period of probation of six months. They completed their period of probation satisfactorily and were given confirmation letters. Thereafter, a complaint was filed by the 53 persons alleging that they are entitled to confirmation after completion of probation. They relied on Model Standing Orders and contended that after completion of a period of six months, the employer did not pay them wages and other benefits applicable to regular and permanent employees, but continued to pay them at a lesser rate. Therefore, they sought a declaration in their complaints as set out in paragraphs 2 and 3 of the judgement of the learned single Judge. The employer-petitioner before this Court opposed the complaint by alleging that the respondents were given wages equal to permanent and regular employees as per the practice prevailing in the establishment. Therefore, they sought a declaration in their complaints as set out in paragraphs 2 and 3 of the judgement of the learned single Judge. The employer-petitioner before this Court opposed the complaint by alleging that the respondents were given wages equal to permanent and regular employees as per the practice prevailing in the establishment. They also pointed out that the wages and other conditions of service applicable to permanent and regular employees other than the complainants are governed by certain agreements and it was denied that there was any violation of any of the provisions of the Model Standing Order. It is in such circumstances that the complaint came to be allowed on the basis of oral and documentary evidence. Before this Court, several arguments were advanced and one of the pleas was that some of the judgements of this Court would not bind and govern the controversy in the subject Writ Petition. That is how the distinguishing observations relied upon by Mr.Deshpande have been made. These observations have been made in the back-drop of the facts before the learned single Judge. The position emerging from the facts of the present petition is not identical. Therefore, the finding that the Model Standing Orders occupy the field temporarily till the certified standing orders applicable to concerned or individual industry are settled cannot be accepted in this case. In that case, the learned single Judge held that the Model Standing Orders cannot be invoked so as to indefinitely continue the respondents-complainants in the capacity in which they were continuing. In such circumstances, while upholding the finding of the Industrial Court and dismissing the petition, the learned single Judge made the observations relied upon. The judgement is clearly distinguishable on facts. 43. As far as the other decision which is relied upon by Mr.Deshpande is concerned, therein the Division Bench of the Calcutta High Court was considering the grievance of the company that pursuant to an agreement between the company and the junior management staff, the members of the junior management staff have been included in the category of officers and not workmen within the meaning of the Industrial Disputes Act, 1947. They got the service benefit in that category and, therefore, the argument was raised that these persons cannot be said to be workmen. The single Judge did not decide the contention and kept the same open. They got the service benefit in that category and, therefore, the argument was raised that these persons cannot be said to be workmen. The single Judge did not decide the contention and kept the same open. The Industrial Tribunal, however, disposed of the reference proceeding on the basis of the agreement entered into between the parties. It is in such circumstances that the junior management staff association of the company started proceedings before the Conciliation Officer and the company therein complained that the conciliation proceeding was no longer maintainable and the staff cannot be workmen within the meaning of the Industrial Disputes Act, 1947. There was a Writ Petition filed challenging the jurisdiction of the Conciliation Officer. The Conciliation Officer was not restrained from proceeding with the proceedings and that is how the order of the learned single Judge was impugned before the Division Bench. Once again, it is in this peculiar factual position that the Court rendered the finding that the distinction will not be conclusive and despite the same, the officers could still urge that they are “workmen” within the meaning of the Industrial Disputes Act, 1947. Once again, these observations are of no assistance to Mr.Deshpande. 44. Lastly, the judgement of the Division Bench of this Court in The Bombay Dyeing & Mfg. Co. Ltd. v. R.A. Bidoo & Ors. (1989 II CLR 248) is relied upon by Mr.Deshpande. The contention therein was that definition of “employee” apart, that the burden of proof if urged by the employer that a person is not an employee, was clearly on the company. The tests were adverted to in that context and this judgement interpreted section 3(13) of the Bombay Industrial Relations Act, 1946. Both these judgements have been referred to and distinguished by the learned single Judge of this Court in Dadape’s and Tambe’s case. 45. In the aforesaid facts and circumstances, I am of the view that the judgements relied upon by Ms Doshi are binding on me. Once they are held to be binding, then the present controversy is concluded by the same. 46. In the result, this Writ Petition fails and the Rule is discharged, but without any order as to costs.