Read Time: 08 minutes

The Supreme Court has told the grounded airline, Jet Airways to reinstate its 169 workers with full back wages, by holding that a workman who was engaged for 240 days in an establishment would be entitled to be made permanent as per provisions of the Bombay Model Standing Order for workmen.

A bench of Justices Abhay S Oka and Sanjay Karol set aside and quashed the Bombay High Court's judgement of January 10, 2018 which had affirmed the March 30, 2017 award by the Central Government Industrial Tribunal rejecting the demand for their reinstatement with full back wages.

Acting on an appeal filed by Bharatiya Kamgar Karmachari Mahasangh, the bench said the provisions of the Bombay Model Standing Order for workmen could not have been waived by the debt-laden carrier through fixed-term contracts and the workers were entitled to all the benefits.

“A workman who has worked for 240 days in an establishment would be entitled to be made permanent, and no contract/settlement which abridges such a right can be agreed upon, let alone be binding,” the bench said.

The Mahasangh contended that the workmen employed in various cadres like loader-cum-cleaners, drivers and operators, were treated as temporary despite completing 240 days in service in terms of the Model Standing Order provided under the Bombay Industrial Employment (Standing Orders) Rules, 1959 and despite the nature of the work being permanent and regular. 

In the case, the top court held that the Bombay Model Standing Order, which applies to every industrial establishment wherein one hundred or more workmen are employed or were employed on any day of the preceding twelve months, would be applicable to the parties here.

The bench also pointed out on various occasions, this court has observed that the certified standing orders have a statutory force. 

"The Standing Order implies a contract between the employer and the workman. Therefore, the employer and workman cannot enter into a contract overriding the statutory contract embodied in the certified Standing Orders," the court said. 

The bench disagreed with the findings of the Tribunal and the High Court which stated the mere completion of 240 days would not entitle the members to claim permanency under the Model Standing Order given the settlement and, more specifically, Clause 18 thereof. 

The HC further observed that the Model Standing Order is not a statutory provision but, at best, a statutorily imposed condition of service that a settlement or award can alter. 

Analysing relevant Clauses of the Bombay Model Standing Order, the bench said a cumulative reading reveals that a workman who has worked for 240 days in an establishment would be entitled to be made permanent, and no contract/settlement which abridges such a right can be agreed upon, let alone be binding. 

"The Act being the beneficial legislation provides that any agreement/contract/settlement wherein the rights of the employees are waived off would not override the Standing Orders," it said.

A counsel for Jet Airways submitted that insolvency proceedings have been initiated against the Company under the Insolvency and Bankruptcy Code, 2016. 

The bench, however, said, "We refrain from commenting thereupon, for it does not agreement/contract/settlement wherein the rights of the employees are waived off would not override the Standing Orders."

Jet Airways, on its part, claimed the workers were not entitled to permanent jobs as the airline union had in 2002 signed an agreement giving up the demand for permanent jobs for other benefits.

It is to be noted that in April 2019, unable to cope with its financial liabilities, Jet Airways ceased operations. In 2020, its committee of creditors approved a resolution plan submitted by UK’s Kalrock Capital and UAE-based entrepreneur Murari Lal Jalan to revive and operate the airline. However, the consortium is yet to implement the plan.

Case Title: Bharatiya Kamgar Karmachari Mahasangh Vs. M/s. Jet Airways Ltd.