BAJAJ AUTO LIMITEDversusRAJENDRA KUMAR JAGANNATH KATHAR & ORS.

                    [2013] 6 S.C.R. 301


                  BAJAJ AUTO LIMITED                        A
                            v.
    RAJENDRA KUMAR JAGANNATH KATHAR & ORS.
         (Civil Appeal Nos. 2159-2160 of 2012)
                     APRIL 04, 2013
                                                            B
    [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

     Maharashtra Recognition of Trade Union and Prevention
of Unfair Labour Practices Act, 1971 - ss. 28 and 30(1)(b) and
Schedule IV item 6 - Unfair Labour Practice - A/legation by C
workman - Courts below held that the Company indulged in
unfair labour practices - Held: Courts below rightly held that
the Company indulged in unfair labour practice - In the facts
of the present case, amount of reasonable compensation
granted by the Industrial Court is modified - However, since o
the workmen have already withdrawn the compensation
amount, no steps to be taken by the management to recover
the differential amount from the workmen.

       The respondents-workmen were employed with the
  appellant-Company. The workmen initiated action against E
  the Company u/s. 28 of Maharashtra Recognition of Trade
  Union and Prevention of Unfair Labour Practices Act,
  1971, before Industrial Court, seeking declaration that
  there was unfair labour practice under items 5, 6 and 9
  of Schedule IV of the Act. They alleged that though they F
  were engaged from the year 1990 to 1997, 1998 and 1999,
  yet every year their services used to be terminated after
  expiry of 7 months. 17 more workmen file separate
  complaint in the year 2003 for providing work to them as
  they were kept outside the factory premises without G
  work. The employees, in addition to their evidence also
  relied on the evidence produced in another complaint
· filed by the workmen of the appellant-Company (the case
  reached upto Supr~me Court Bajaj Auto Ltd. v. Bhojane
                             301                            H
     302    SUPREME COURT REPORTS              [2013] 6 S.C.R.


A   Gopinath D. and Ors. wherein the supreme Court had held
    that the ~ppellant had indulged in unfair labour practice).

       Industrial Court held that standard of evidence
  produced in the proceedings decided earlier in Bhojane
  case and in the present proceedings were similar and
8
  from the evidence it is proved that despite the
  continuation of theworkmen for years, they were not
  given status of permanency, and thus appellant-
  Company indulged in unfair labour practice under item 6
  of Schedule IV of the Act, and directed payment to the
C workmen following the Bhojane case. As regards 17
  workmen who had filed complaint in 2003, the Court
  directed to adjust the compensation amount in the salary
  paid to them.

D        Management preferred writ petition against the order
    of Industrial Court. Single Judge of High Court confirmed
    the order of Industrial Court. In Writ Appeal, Division
    Bench also upheld the orders of courts below. Hence the
    preser1t appeals.
E
        Disposing of the appeals, the Court

       HELD: 1. Unfair labour practice, in its very essence,
  is contrary to just and fair dealing by both the employer
  and the employee. Peace in industrial atmosphere
F requites the parties to behave and conduct in a just and
  fair manner. The grievance of the aggrieved workmen has
  to be adjudicated under the necessary enactments on the
  bedrock of fairness and just needs. It is to be borne in
  mind that the primary obligation and duty of an industrial
G forum is to see that peace is sustained between the
  management and the employees in an industry. An unfair
  action by the employer against an individual worker has
  its effect and impact. It could disturb peace and harmony
  in an industrial sphere and similarly, when a workman
H behaves contrary to the code of conduct and accepted
    BAJAJ AUTO LIMITED v. RAJENDRA KUMAR                  303
          JAGANNATH KATHAR & ORS.
norms, unhealthy tribulation comes into existence. That          A
is why the enactments provide a mechanism for arriving
at a settlement to see that the growth and progress o.f
industry is not scuttled by taking recourse to such
methods which will eventually affect the national growth.
This being the position behind the philosophy which has          s
to be kept in mind by the employer and the employee, all
efforts are to be made to avoid any kind of unfair labour
practice. [Para 18] [318-C-G)
     2. The stray observation by the Industrial Court
regarding the factum of rotational practice was not              C
correct more so when such a finding was earlier
recorded and travelled to this Court for being tested and
was accepted. The ultimate conclusion in this regard by
the Industrial Court is correct but the said observation,
was absolutely unwarranted. Hence, the complainants              D
have proved that the company had engaged itself in
unfair labour practice as far as Item No. 6 of Schedule IV
of the 1971 Act is concerned. [Para 17] [317-C-E]
     ~- Non-adducing of evidence by each workman                 E
would not make the order illegal on that score. The
evidence in the earlier case was adopted and accepted
by all parties and has to be read as evidence in the
present case and, hence, it cannot be brushed aside.
Even if the plea that evidence in the earlier case should        F
not have been taken into consideration, is pressed to its
ultimate conclusion, it might, in certain. cases, be an
Jrregularity but cannot create a dent in the justifiability of
the conclusion more so when the controversy related to
the same period, but the only difference was that though         G
some of the workmen approached the Industrial Court
earlier, yet they chose not to proceed with the case and
some approached at a later stage and only proceeded
after the judgment was delivered by this Court. [Para 12]
[314-D-G]
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    304    SUPREME COURT REPORTS              [2013] 6 S.C.R.


A      4. In the earlier case, Supreme Court had held that
  the High Court should not have directed reinstatement of
  the workmen with 50% back wages, but the situation
  warranted for grant of payment of reasonable amount of
  compensation in terms of Section 30(1)(b) of the 1971 Act.
B In the earlier case, Supreme Court. on the basis of s.
  30(1 )(b) of the 1971 Act granted reasonable compensation
  by evolving a rational formula. What would be reasonable
  compensation would depend on the facts and
  circumstances of the case and no strait-jacket formula
c can b~ evolved or laid down. [Paras 18 and 20] [318-H;
  319-A; 321-D-E]

       5. In the instant case, the complainants were silent
  spectators when the earlier group of cases was tried and
  the m~tter travelled to this Court. There were certain cases
D which were filed at a later stage. The Division Bench also
  considered that the filing of the complaints range from
  1997-2003. Regard being had to the totality of
  circu,mstances,       the     amount      of    reasonable
  compensation which has been granted by the Industrial
E Court needs to be modified. [Para 21] [321-E-G]

       6. The appellant-management is directed to pay lump
  sum amount calculated at 65 days' salary, inclusive of all
  allowances for the number of year each complainant has
F actually worked irrespective of the days a complainant
  may have put in, in a year. The calculation would be made
  on tl)e basis of work during a calendar year and that the
  calendar year in which a complainant may not have
  worked at all would be kept out of consideration while
G calculating the amount. In calculating the salary that
  would be taken into account would be Rs.8,000/- p.m.
  subject to condition that if on the date of termination, the
  salary of any particular complainant was more, than the
  calculation would be made on the actual last drawn
  salary. The calculation in the above manner would be
H
     BAJAJ AUTO LIMITED v. RAJENDRA KUMAR               305
           JAGANNATH KATHAR & ORS.
made for the period up to the date of terminations in 1997.    A
For the period after termination till date of this judgment,
the basis of calculation would be lump sum two years of
service on the basis aforesaid, viz. 65 days for each year
i.e. 130 days. [Para 21) [321-G-H; 322-A-C]
       7. Despite the modification, keeping in view the fact   B
· that the respondent-workmen had already withdrawn the
  amount in pursuance of the order dated 06-02-2012 when
  leave was granted, no steps shall be taken by the
  appellant-company to recover the differential sum from
  the respondents. [Para 21) [322-C-D]                         C
     Bajaj Auto Ltd. vs. Bhojane Gopinath D. and Ors. (2004)
 9 SCC 488:2003 (6) Suppl. SCR 958; Bajaj Auto Ltd. vs. R.
 P. Sawant and Ors.(2004) 9 SCC 486 - referred to.
                     Case Law Reference:                       D
     2003 (6) Suppl. SCR 958.     referred to     Para 4
     (2004)_ 9 sec 486            referred to     Para 7
     CIVIL APPELLATE JURISDICTl.ON : Civil Appeal No.
 2159-2160 of 2012.                                            E-:
     From the Judgment and Order dated 15.11.2011 and
 20.12.2011 of the High Court of Judicature of Bombay, Bench
 at Aurangabad in Letter Patent Appeal No. 247 of 2011 and
 Review Application No. 248 of 2011, respectively.
                                                               F
                              WITH
 C.A. Nos. 2821, 2822, 2823, 2824, 2825, 2826, 2827. 2828,
 2829,2830,2831,2832,2833,2834,2835,2836,2837,2838,
 2839, 2840, ' 2841, 2842, 2843, 2844, 2845, 2846, 2847,
 2848,2849,2850,2851,2852,2853,2854,2855,2856,2857,            G
 2858,2859,2860,2861,2862,2863,2864,2865,2866,2867,
 2868,2869,2870,2871,2872,2873,2874,2875,2876,2877,
 2878,2879, 2880, 2881, 2882, 2883, 2884, 2885, 2886,2887,
 2888,2889,2890,2891,2892,2893,2894, 2895,2896,2897,
 2898 & 2899 of 2013.                                          H
    306      SUPREME COURT REPORTS                 [2013] 6 S.C.R.


A        J.P. Cama Gopal Singh, Manish Kumar, S.J. Gama, Amol
    N. Suryawanshi (for Uday B. Dube) Atul B; Dakh (for Dr.
    Kailash Chand) for the Apearinig parties.
          The Judgment of the Court was delivered by
B        DIPAK MISRA, J. 1. Leave granted in all the Special
    Leave Petitions and they are taken up along with Civil Appeal
    Nos. 2!159 and 2160 of 2012. Regard being had to the
    commonality of the issue involved, all the appeals were heard
    together and are disposed of by a common judgment.
C        2. The facts which are essential to be stated for
    adjudi(:ation of the present batch of appeals are that the
    appellant-company is engaged in manufacturing of two-
    wheelers and three-wheelers and it has factories at Akurdi
    (Pune District) and Waluj (Aurangabad District). The
D   respondents, who were engaged as Welders, Fitters, Turners,
    Mechanics, Grinders, Helpers, etc., initiated an action against
    the ap,pellant-company under Section 28 of the Maharashtra
    Recognition of Trade Union and Prevention of Unfair Labour
    Practices Act, 1971 (for short "the 1971 Act") before the
E   Industrial Court, Aurangabad, seeking a declaration that there
    has been unfair labour practices under items 5, 6 and 9 of
    Schedule IV of the 1971 Act on the foundation that though they
    were engaged in the year 1990, yet in every year,.they were
    offered employment for seven months each year and after the
    expiry of the said period, their services used to be terminated
F   and the said practice continued till they filed the complaints in
    1997, 1998 and 1999. Seventeen of them also filed a separate
    complaint in the year 2003 for providing work to them as they
    were kept outside the factory premises without work. It was
    alleged that because of this unfair labour practice, none of them
G   could complete 240 days in employment in any corresponding
    year to make them eligible to earn the status and privilege of
    permanent employees. It was contended before the Industrial
    Court that in the year 1996, the employer, in order to improve
    work culture, used multi-skill and multi-operational system and
H   thereby the employees termed as multi-skill operators were
    BAJAJ AUTO LIMITED v. RAJENDRA KUMAR                     307
  JAGANNATH KATHAR & ORS. [DIPAK MISRA, J.]
required to undertake various jobs, but the employer, by taking     A
recourse to unfair labour practice, saw to it that their services
were terminated immediately after the expiry of seven months.
In this backdrop, they were deprived of the status under clause
4-C of the Model Standing Orders as appended to Schedule
I-A of the Industrial Employment (Standing Orders) Act, 1945        B
(for short "the 1945 Act").

     3. The aforesaid stand and stance of the workmen was
opposed by the employer contending, inter alia, that the
establishment was governed by the Certified Standing Orders
dated 10.3.1986 and the said Certified Standing orders did not      C
have a provision like clause 4-C of the Model Standing Orders.
It was asserted that the company has employed 4250
permanent employees which is sufficient to meet the
requirement of normal production but whenever there was a
temporary rise during some period in a year, with the consent       D
of the union, it used to engage employees for the duration which
was restricted to few months. The allegation of unfair labour
practice under items 5, 6 and 9 of Schedule IV of the 1971 Act
was seriously controverted. It was categorically put forth that
there was no intention whatsoever to deprive the workmen of         E
their status but the appellant-company, in order to meet its
target, had to engage the employees as and when required
and, hence, the bald allegation of unfair labour practice was not
only totally unwarranted but also uncalled for.
                                                                    F
    4. To substantiate their respective stands, the employer
and the employees adduced evidence and also relied on the
evidence produced in complaint ULP No. 192 of 1997. Be it
noted, apart from the evidence recorded in complaint ULP No.
192 of 1997, one Mr. Dilip Suryavanshi was examined on
behalf of the employer. The Industrial Court took note of the       G
stand of the complainants with regard to the assertion that the
employer deliberately adopted rotational system throughout the
year as a consequence of which the temporary employees
were rotated and not allowed to complete the requisite number
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    308      SUPREME COURT REPORTS                   [2013] 6 S.C.R.


A   of days to have permanency of employment and referred to the
    evidence in complaint ULP No. 192 of 1997 and came to hold
    that the standard of evidence produced in the proceeding
    decided earlier and produced in the proceeding before him
    were more or less similar and from the said evidence, it was
B   clear that the employees had been continued for years but were
    not grimted the status or privilege of permanency at the relevant
    time. He referred to the earlier judgment of this Court in Bajaj
    Auto l..td. v. Bhojane Gopinath D. and others and adverted to
    the doctrine of res judicata and principle of res integra and,
C   eventually, came to hold that the appellant-company had
    indulged itself in unfair labour practice under item No. 6 of
    Schedule IV of the 1971 Act. Following the decision in Bhojane
    Gopinath (supra), he directed the appellant-company to pay
    lump sum amount calculated at 85 days salary inclusive of all
    allowances for the number of years each complainant had
D   actually worked irrespective of the days a complainant may have
    put in a year and the calculation would be made on the basis
    of work during a calendar year and that the calendar year in
    whic~ a complainant may not have worked at all would be kept
    out of consideration while calculating the amount. It was stated
E   that in calculating the salary it shall be at the rate of Rs.8000/-
    p.m. subject to the condition that if on the date of termination,
    the salary of any particular complainant was more, then the
    calculation would be made on the basis of actual last drawn
    salary and the calculation in the above manner would be made
F   for the period upto the date of termination in 1997 and for the
    period after termination till date of the judgment, the basis of
    calculation would be lump sum three years of service on the
    aforelsaid basis, viz., 85 days for each year, i.e., 255 days. As
    far as 17 complainants in complaint ULP No. 79 of 2003 were
G   concerned, the Industrial Court directed that the compensation
    amount would be adjusted in the salary paid to them.

      5. Being aggrieved by the aforesaid order of the Industrial
  Court, the management preferred a batch of writ petitions.
H Before the writ court, it was contended that the Industrial Court
       BAJAJ AUTO LIMITED v. RAJENDRA KUMAR                  309
     JAGANNATH KATHAR & ORS. [DIPAK MISRA, J.)
has totally erred by coming to hold that the employer had            A
indulged in unfair labour practice; that the workmen in their
individual capacity could not have been allowed to prosecute
the complaint after the recognized union came into existence
in the year 1999; that the rise in production was not
synonymous with the availability of work; that the increased         B
production was achieved with the help of permanent employees
of the company and whenever situation arose for meeting the
target, the employees were engaged for few months on the
basis of a settlement entered between the employer and the
Union; that once the Industrial Court had expressed the opinion      c
that the factum of rotational system had not been established
by cogent evidence, a finding could not have been returned
pertaining to unfair labour practice under item 6 of Schedule
IV of the 1971 Act; that the reliance on the decision in Bhojane
Gopinath D. (supra) was neither correct nor advisable as the         D
said decision was restricted to its factual matrix; that there was
no material on record to show that the employer had any
intention to deprive the employees the benefits of permanency;
that no independent evidence was adduced on behalf of the
workmen but a conclusion had been arrived at by the Industrial       E
Court on the base and foundation of the evidence recorded in
complaint ULP No. 192 of 1997 which was absolutely
impermissible; and that the Industrial Court failed to appreciate
the evidence of Mr. Suryavanshi in proper perspective and had
gone absolutely transient on the concept of res judicata and res     F
integra which were untenable.

    6. On behalf of the respondent-employees, reliance was
placed on the previous pronouncement of this Court, the
evidence brought on record and the defensibility of the analysis
made by the Industrial Court.                                        G

    7. The learned Single Judge referred to the decision in
Bajaj Auto Ltd. v. R. P. Sawant and others' and the
pronouncement in Bhojane Gopinath's case and opined that as
1.    (2004) 9 sec 486.                                              H
    310       SUPREME COURT REPORTS                   [20i:3J6 S.C.R.

A this Court had considered the same controversy, the lis
  required to be appreciated in the backdrop of the analysis
  made therein. The writ Court referred to paragraph 8 of the
  judgment delivered by the Industrial Court wherein a specific
  reference had been made to the fact that the parties had
B consented to rely upon the evidence produced in ULP
  complaint No. 192 of 1997 which came to be considered by
  this Court. The learned Sing1e Judge scrutinised the reasoning
  ascribed by the Industrial Court and noticed that there was
  ample proof that the evidence in the earlier case had been
c adopted and the only additional evidence that had been brought
  on record was the evidence of one Mr. Suryavanshi. The Writ
  Court observed that the evidence adduced by Mr. Suryavanshi
  essentially pertained to the changed circumstances from July,
  2000 onwards and, therefore, the same was inconsequential
0 for the period prior to July 2000. It took note of the fact that the
  year of filing of the ULP complaints before the Industrial Court
  and decided by Judgment dated 21.8.2004 ranged from 1997
  to 2003 but the thrust of the grievance was completion of 7
  years of service from 1990 to 1997 and hence, the deposition
E of Mr. Suryavanshi really did not make any difference. In this
  backdrop, the learned Single Judge expressed the view that
  the earlier evidence being adopted by the parties by consensus
  deserved to be read as evidence in fresh cases and, therefore,
  the Industrial Court was absolutely justified to look into that
  eviofence and in resting its finding on the same. Thereafter,
F commenting on the finding of the Industrial Court relating to the
  absence of rotational practice, the Writ Court observed as
  follows:-

            "Absence of rotation recorded by it cannot save the
G         situation for the petitioner as all temporaries need to be
          treated as one class. In earlier round, the Industrial Court
          had directed the petitioner to prepare list of all temporaries
          whether continuing in service or out of it & to provide work
          to them as per seniority. This was as per the mandate of
H         the standing orders. Petitioner did not produce any such
    BAJAJ AUTO LIMITED v. RAJENDRA KUMAR                       311
  JAGANNATH KATHAR & ORS. [DIPAK MISRA, J.)

    list. In view of earlier findings & directions, it was not         A
    necessary for workers/complaints to again disclose names
    of any juniors who got work prior to them. The burden was
    upon petitioner to prove that as per their seniority turn of
    employees/complains never came prior to the date on
    which they actually got the work. Petitioner Company               B
    conveniently destroyed those documents & did not
    examine any witness having competence to depose for
    period from 1990 to 1997.

     Industrial Court therefore rightly accepted earlier finding of    C
     unfair labour practice under Item 6 of Sch. IV and
     proceeded to grant relief of compensation to complainants
     before ii. There is no jurisdictional error or perversity on it
     part."

Being of the aforesaid view, the order passed by the Industrial        D
Court was concurred with and resultantly, the writ petitions were
dismissed.

     8. In intra-Court appeal, the Division Bench adverted to the
factual score and addressed to the rivalised submissions of the        E
parties and opined that the engagement of large number of
temporary employees by the company during the relevant
period was certainly a pertinent circumstance for deciding the
issue of unfair labour practice under Item 6 of Schedule IV of
the 1971 Act. It took note of the fact that there was circumstance
                                                                       F
to show that the company had admitted that the rotational
system was in vogue during the said period. The plea of
fluctuation of demand to meet the target was not accepted by
the Division Bench. Further, analyzing the evidence of Mr. More,
Operational Manager and Mr. Tripathi, Vice-President of the            G
company and Mr. Malshe, General Manager, it came to hold
thus:-

     "The aforesaid evidence and circumstances are sufficient
     to infer that there was sufficient work with the company,
     the production was increasing, there was the demand to            H
    312      SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A         lhEl vehicles of the company in the market and due to these
          circumstances, the temporary employees were appointed
          during all !hos~ years. On the basis of this evidence final
          decision was given by the Court in the previous
          proceedings that unfair labour practice under item No. 6
B         is proved against the company. The present complainants,
          respondents were working during the same period and
          they were also appointed in similar manner. In view of
          these circumstances, no other inference is possible. The
          evidence and circumstances also show that the
c         documentary evidence of concerned Departments was not
          produced by the company by giving excuse that such
          rE1cord (of manpower recruitment analysis, etc.) of pre -
          1997 was destroyed. It is surprising that when in the year
          1997 itself thousands of the complaints were filed in the
          Industrial Court, the company destroyed this record. In the
D
          p.leadings no such defence was taken by the company. In
          v,iew of these circumstances also, adverse inference
          needs to be drawn against the company."

       Be it noted, the Bench also opined that the evidence of
E Mr. Suryavanshi did not make any difference. Being of this view,
  it dealined to interfere with the order of the learned Single
  Judge and that of the Industrial Court.

         9. We have heard Mr. J.P. Cama, learned senior counsel
F   for the appellants-management, Mr. Atul 8. Dakh, learned
    counsel for the respondents, and Mr. Uday 8. Dube, learned
    counsel for the interveners.

        10. Learned senior counsel appearing for the appellant has
  submitted that when the Industrial Court has recorded a
G categorical finding that the rotational pattern was not adopted
  by tfle management inasmuch as no other workman was
  employed in place of the complainant, the concept of unfair
  labour practice would not be attracted. It is urged by him there
  was no intention of the management to deprive the workers of
H their permanency and when such a finding had been returned
     BAJAJ AUTO LIMITED v. RAJENDRA KUMAR                        313
   JAGANNATH KATHAR & ORS. [DIPAK MISRA, J.)
 by the Industrial Court, the ultimate conclusion by the said Court      A
 and the High Court that there was unfair labour practice is
 unsustainable. It is put forth by him that the Industrial Court
 erroneously relied on the evidence adduced in the earlier case
 and further flawed in its analysis by holding that similar evidence
 could not be viewed differently when he himself was of the view         B
 that no unfair labour practice was adopted by the management.
 It is canvassed by Mr. Gama that in the absence of any mala
 fide object to deprive the workmen the benefit of permanency,
 it is ex facie unjustified on the part of the Industrial Court and
 the High Court to record a conclusion that the company was              C
 involved in unfair labour practice. It is his further submission that
 the High Court, while exercising the writ jurisdiction, could not
 have evaluated the evidence and drawn inferences to justify the
 order passed by the Industrial Court which is replete with
·inconsistent findings and based on faulty understanding of the
                                                                         0
 principles of res judicata and res integra.

       11. Mr. Dakh and Mr. Dube, in oppugnation, have
submitted that when the evidence adduced in the earlier case
was treated to be the evidence in the present batch of cases,
it iS inapposite on the part of the management to contend that           E
the same could not have been looked into. It is urged by them
that the Industrial Court has rightly observed that on similar
evidence, a different conclusion was not possible and correctly
adhered to the decision in Bhojane Gopinath (supra) and the
view expressed by it and concurrence of the said finding of the          F
Industrial Court by the High .Gour! cannot be found fault with.

     12. First, we shall advert to the issue whether the evidence
adduced in ULP No. 192 of 1997 could have been taken into
consideration. What should have been done in the ordinary                G
course of things need not be dwelled upon. Mr. Gama, learned
senior counsel, would contend that every individual workman
was obliged under law to adduce evidence to establish his
claim. The said submission, on a first blush, looks quite
attractive, and rightly so, but on dwelling into the proceedings
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    314      SUPREME COURT REPORTS                    [2013] 6 S.C.R.


A    before the Industrial Court, the focused argument on that score
    dwells into insignificance. We are compelled to say so
     inasmuch as the Industrial Court, in paragraph 8 of its decision,
     has recorded that the parties relied on the evidence produced
     in the earlier case. Before the learned Single Judge, a
B    contention was advanced as stated earlier that none of the
    workmen entered witness box before the Industrial Court to lead
    any evi(lence and the said submission was controverted by the
    workmen that the parties with open eyes chose to adopt earlier
    evidence. The learned Single Judge, upon perusal of the
C   judgment passed by the Industrial Court, has recorded its
    concurrence by stating that the verdict of the Industrial Court
    expressly made reference to the fact that the parties chose to
     rely upon the evidence produced in ULP Complaint No. 192 of
    1997 and the said finding is neither shown to be erroneous nor
    perverse. It appears that the same aspect has gone unassailed
0
    before the Division Bench. On a perusal of both the decisions,
    we are of the considered opinion that the evidence in the earlier
    case was adopted and accepted by all parties and has to be
    read a,s evidence in this case and, hence, it cannot be brushed
    aside. Even if the contention of Mr. Cama, learned senior
E   counsel, is pressed to its ultimate conclusion, it might, in certain
    cases, be an irregularity but cannot create a dent in the
    justifiability of the conclusion more so when the controversy
    related to the same period, but the only difference was that
    though some of the workmen approached the Industrial Court
F   earlier, yet they chose not to proceed with the case and some
    approached at a later stage and only proceeded after the
    judgment was delivered by this Court in Bhojane Gopinath
    (supra). Be that as it may, the said aspect cannot be magnified
    to such an extent that non-adducing of evidence by each
G   workman would make the order illegal on that score. Thus, the
    submission, assiduously canvassed by Mr. Gama, does not
    deserve acceptance and, accordingly, we repel the same.

          13. The next plank of submission relates to the finding
H recorded by the Industrial Court relating to the absence of
    BAJAJ AUTO LIMITED v. RAJENDRA KUMAR                       315
  JAGANNATH KATHAR & ORS. [DIPAK MISRA, J.]

sufficient evidence to come to a conclusion that rotational            A
practice had been adopted by the company. As is evincible,
the Industrial Court has observed that even from the seniority
list produced in complaint ULP No. 192 of 1997, it could not
be pointed out that a particular workman was disengaged on
earlier date and the workman who was disengaged five months            B
to eighteen months prior was engaged in his place for the same
work to have the rotation. We have already noted how the
learned single Judge and the Division Bench have commented
on the said aspect. In the earlier round of litigation, it relied on
the same period while dealing with the rotational employment           c
and other findings and recorded its view as under: -

     "Learned counsel appearing on behalf of the appellant
     Company made a vain attempt to challenge the finding
     recorded by the Industrial Court to the effect that the
     workmen succeeded in providing that the appellant                 D
     Company had employed unfair labour practice in its
     establishment in relation to the matters enumerated in Item
     6 of Schedule IV of the 1971 Act. We have been taken
     through the award of the Industrial Court in extensor from
     which it appears that the court recorded the said finding         E
     after threadbare discussion of evidence adduced on
     behalf of the parties and there being no infirmity therein,
     the High Court was quite justified in not interfering with the
     same, accordingly, it is not possible for this Court to disturb
     the same in view of the fact that the finding is a pure finding   F
     of fact and no interference therewith is called for."

      14. After so stating, this Court addressed to the
submission about the view expressed by the High Court in
affirming the finding of the Industrial Court that the appellant-      G
company had indulged in unfair labour practice as enumerated
in Item No. 9 of the Schedule IV of the 1971 Act and, eventually,
came fo hold that it cannot be said that the company, in any
manner, employed unfair labour practice under Item 9 and,
therefore, the High Court was not correct in affirming the finding
                                                                       H
    316      SUPREME COURT REPORTS                  (2013] 6 S.C.R.


A of the lndwstrial Court in that regard.

        15. Thus, it appears that the adoption of unfair labour
  practice in the establishment in relation to matters enumerated
  in Item Nq. 6 of Schedule IV was accepted. In this context, we
B may usefl,llly refer to Item No. 6 of Schedule IV of the 1971 Act
  which reads as follows: -

          "6. to employ employees as "'badlis", casuals or
          temporaries and to continue them as such for years, with
          the qbject of depriving them of the status and privileges
C         of permanent employees."

         16. The conclusion arrived at by the Industrial Court on the .
    basis of the inferences drawn from the material on record which
    have been given the stamp of approval by the High Court was
0   acceptea by this Court and it needs no special emphasis that
    the said acceptation was on the foundation of the evidence
    which was considered by the Industrial Court. The question that
    emerges for consideration is whether a different conclusion
    should be recorded relating to the same period on the basis
E   of the same evidence. As is perceptible, though the Industrial
    Court in its decision held that on the basis of the earlier
    evidence it could not be established that a particular workman
    was disengaged on e1:irlier date and a workman who was
    engaged earlier was brought in and, hence, there was rotation
    of employees, yet at a later stage, the said court has
F   categorically held that the employees had continued for years
    but were not granted the status and privilege of permanency
    at the relevant point of time. The learned single Judge, while
    scrutinizing the said finding, has opined that the Industrial Court
    had riglltly accepted the earlier finding of unfair labour practice
G   and proceeded to grant relief and such a view, as quoted
    hereinabove, would show that it was based on the material
    already on record and further reflect the conduct of the
    company in not producing the list of all temporary workmen
    continuing in service or out of it and in taking the plea that it
H   had destroyed the records. The Division Bench has expressed
J




         BAJAJ AUTO LIMITED v. RAJENDRA KUMAR                     317
       JAGANNATH KATHAR & ORS. [DIPAK MISRA, J.]
    ·the view that in respect of the complainants working during the A
     period who were appointed in similar manner, the inference has
     been correctly drawn by the Industrial Court. The High Court,
     as is evident, felt that the evidence of Mr. Suryavanshi pertained
     to the future period and should not be made use of for the earlier
     ~riod.                                                             8

            17. On a scrutiny of the evidence brought on record, we
      find that the analysis made by the Industrial Court as well as by
      the High Court is absolutely defensible and cannot be flawed,
      for the said witness has really deposed with regard to the
      changed circumstances. This being the position, in our              C
      considered opinion, the stray observation by the Industrial Court
    . regarding the factum of rotational practice was not correct more
      so when such a finding was earlier recorded and travelled to
      this Court for being tested and was accepted. We may hasten
      to clarify that the ultimate conclusion in this regard by the       D
      Industrial Court is correct but the said observation, we are
      constrained to say, was absolutely unwarranted. Hence, the
      irresistible and inescapable conclusion is that the complainants
      have proved that the company had engaged itself in unfair
      labour practice as far as Item No. 6 of Schedule IV of the 1971     E·
      Act is concerned. We may hasten to add that the submission
      of Mr. Cama, learned senior counsel is that there was no mala
      fide intentior;( and the said mala fide intention is sine qua non
      to arrive at a conclusion that there was unfair labour practice.
      He has also laid emphasis on the words used "with the object"       F
      which find place in Item No. 6 of Schedule IV. We need not
      labour hard on the said score as on earlier occasion, such a
      finding was returned on the basis of the material on record and
      this Court had accepted the said conclusion to be impeccable.
      Ergo, the assail on the said score has to be repelled and we        G
      so do.

          18. It is evincible from the judgments of the Industrial Court
     as well as the High Court that similar benefit has been extended
     that has been given in the case of Bhojane Gopinath (supra). H
    318      SUPREME COURT REPORTS                   [2013] 6 S.C.R.


A    It has been done on the basis of the conclusion arrived at
     relating to unfair labour practice and the consequent benefit
    given by this Court. Unfair labour practices have been dealt with
     in Chapter VI of the 1971 Act. Section 26 stipulates that unfair
     labour practices, unless the context requires otherwise, would
B   mean any of the practices listed in Schedule II, Ill and IV of the
     1971 Act. Section 27 mandates that no employer or union and
    no employee shall engage in any unfair labour practice. Section
    28 provides the procedure for dealing with the complaints
    relatin1;1 to unfair labour practices and Section 29 stipulates who
c   are the parties and on whom the order of the court shall be
    binding. Unfair labour practice, in its very essence, is contrary
    to just and fair dealing by both the employer and the employee.
    Peace in industrial atmosphere requires the parties to behave
    and conduct in a just and fair manner. The grievance of the
    aggrieved workmen has to be adjudicated under the necessary
0
    enactments on the bedrock of fairness and just needs. It is to
    be borne in mind that the primary obligation and duty of an
    industrial forum is to see that peace is sustained between the
    mancigement and the employees in an industry. An unfair action
E   by the employer against an individual worker has its effect and
    impact. It could disturb peace and harmony in an industrial
    sphere and similarly, when a workman behaves contrary to the
    code of conduct and accepted norms, unhealthy tribulation
    comes into existence. That is why the enactments provide a
    mechanism for arriving at a settlement to see that the growth
F   and progress of industry is not scuttled by taking recourse to
    such methods which will eventually affect the national growth.
    This being the position behind the philosophy which has to be
    kept in mind by the employer and the employee, all efforts are
    to be made to avoid any kind of unfair labour practice. As the
G   finding has been returned that there has been violation of item
    No. 6 of Schedule IV of the 1971 Act, the question that arises
    as a fall-out is whether the Industrial Court has extended the
    apposite benefit or does it require any modification. In Bhojane
    Gopinath (supra), this Court had held that the High Court should
H   not have directed reinstatement of the workmen with 50% back
    BAJAJ AUTO LIMITED v. RAJENDRA KUMAR                       319
  JAGANNATH KATHAR & ORS. [DIPAK MISRA, J.]
wages, but the situation warranted for grant of payment of A
reasonable amount of compensation in terms of Section
30(1)(b) of the 1971 Act. While so holding, this Court referred
to the submission of the learned counsel for the parties in Civil
Appeal No. 5003 of 2002 wherein the appellant-company and
the workmen had settled the controversy and the entire B
compensation had been paid to the workmen as was paid to
the other workmen in terms of the order dated 11.9.2003
passed in Civil Appeal No. 5002 of 2002 and a prayer was
made to dispose of the appeal in terms of the directions
enumerated in the said order. Be it noted, in the case of R.P. c
Sawant (supra), while dealing with Civil Appeal No. 5002 of
2002, this Court recorded as follows: -

    "5. The matter has been settled between the parties. It is
    agreed that the order of reinstatement in favour of the
    workmen be set aside and instead the appellant                     D
    management would pay to each of the workmen a lump
    sum amount calculated at 65 days' salary, inclusive of all
    allowances, for the number of years each workman has
    actually worked irrespective of the days a workman may
    have put in in a year. It is further agreed that the calculation   E
    would be made on the basis of work during a calendar year
    and that the calendar year in which a workman may not
    have worked at all would be kept out of consideration while
    calculating the amount. While calculating the salary for each
    workman the minimum salary that would be taken into                F
    account would be Rs.8000 per month subject to the
    condition that if on the date of termination the salary of any
    particular workman is more, then the calculation would be
    on the actual last-drawn salary. The calculation in the above
    manner would be made for the period up to the date of              G
    termination in the year 1997-98. For the period after
    termination till date, the basis of calculation would be lump
    sum three years of service on the basis aforesaid, namely,
    65 days for each year i.e. salary for 195 days. The
    payment so calculated and made would be in full and final          H
    320      SUPREME COURT REPORTS                   [2013] 6 S.C.R.


A         payment of all claims of the workmen and the workmen will
          have no further claim from the Company. The appeal is
          disposed of in the above terms agreed by learned counsel
          for the parties. The impugned judgment would not be
          treated as a precedent either on fact or on law."
B
         19. In Bhojane Gopinath (supra), after referring to the said
    order, this Court took note of the fact that in Civil Appeal No.
    5003 of 2002, out of 1197 respondents, 1006 had
    compromised the matter in terms of the order in Civil Appeal
    No. 5002 of 2002. As far as the remaining workmen were
c   concerned, a view was expressed that it would be just and
    expedient that they are paid a reasonable amount of
    compensation under Section 30 of the 1971 Act. Therefore, the
    Court proceeded to direct as follows: -

D         ''Each of the remaining workmen shall be paid a lump sum
          amount calculated at 85 days' salary, inclusive of all
          allowances, for the number of years each workman had
          actually worked irrespective of the days a workman may
          llave put in in a year. The calculation would be made on
E         the basis of work during a calendar year and that the
          !:alendar year in which a workman may not have worked
          at all would be kept out of consideration while calculating
          the amount. In calculating the salary for each workman, the
          minimum salary that would be taken into account would be
F         Rs.8000 per month subject to the condition that if on the
          date of termination, the salary of any particular workman
          was more, then the calculation would be made on the
          actual last-drawn salary. The calculation in the abovesaid
          manner would be made for the period up to the date of
          termination i.e. on 9-1-2001. For the period after
G
          termination till date, the basis of calculation would be lump
          sum two years of service on the basis aforesaid, namely,
          85 days for each calendar year i.e. salary for 170 days."

        20. Section 30 of the 1971 Act deals with the powers of
H   industrial and labour courts. Section 30(1 )(b) reads as follows:-
    BAJAJ AUTO LIMITED v. RAJENDRA KUMAR                       321
  JAGANNATH KATHAR & ORS. [DIPAK MISRA, J.]
     "(1) Where a Court decides that any person named in the A
     complaint has engaged in, or is engaging in, any unfair
     labour practice, it may in its order -

      (b)   direct all such persons to cease and desist from
            such unfair labour practice, and take such B
            affirmative action (including payment of reasonable
            compensation to the employee or employees
            affected by the unfair labour practice, or
            reinstatement of the· employee or employees with
            or without back wages, or the payment of
            reasonable compensation), as may in the opinion C
            of the Court be necessary to effectuate the policy
            of the Act;"

     On the basis of the aforesaid provision, reasonable
compensation was granted by evolving a rational formula. We            D
may hasten to add that what would be reasonable
compensation would depend on the facts and circumstances
of the case and no strait-jacket formula can be evolved or laid
down.
                                                                       E
      21. In the case at hand, as is noticeable from the judgment
of the Industrial Court, the complainants were silent spectators
when the earlier group of cases was tried and the matter
travelled to this Court. It is also observed that there were certain
cases which were filed at a later stage. The Division Bench also
considered that the filing of the complaints range from 1997-          F
2003. Regard being had to the totality of circumstances, we are
inclined to modify the amount of reasonable compensation
which has been granted by the Industrial Court. The modified
order would read as under: -
                                                               G
     The appellant is directed to pay lump sum amount
calculated at 65 days' salary, inclusive of all allowances for
the number of year each complainant has actually worked
irrespective of the days a complainant may have put in in a
year. The calculation would be made on the basis of work H
    322      SUPREME COURT REPORTS                 (2013] 6 S.C.R.


A during a calendar year and that the calendar year in which a
  complainant may not have worked at all would be kept out of
  consi(ieration while calculating the amount. In calculating the
  salary that would be taken into account would be Rs. 8, 0001-
  p.m. subject to condition that if on the date of termination, the
B salary of any particular complainant was more, than the
  calculation would be made on the actual last drawn salary.
  The calculation in the above manner would be made for the
  period up to the date of terminations in 1997. For the period
  after termination till date of this judgment, the basis of
C calcvlation would be lump sum two years of service on the
  basis aforesaid, viz. 65 days for each year i.e. 130 days.

         Although we have modified the order, yet keeping in view
    the fact that the respondent-workmen had already withdrawn the
    amount in pursuance of the order dated 06-02-2012 when leave
D   was granted, no steps shall be taken by the appellant-company
    to r¢cover the differential sum from the respondents.

         22. With the aforesaid modifications in the order passed
    by the Industrial Court that has been affirmed by the learned
E   single Judge and concurred with by the Division Bench of the
    High Court, the appeals and Interlocutory Application Nos. 10-
    11 of 2013 for intervention and vacation of the order of stay are
    disposed of. In the peculiar facts and circumstances of the case,
    there shall be no order as to costs.
F
    K.K.T.                                   Appeals disposed of.