2001 Supreme(SC) 103

2001(1) Supreme 239
Supreme Court of India
(From Gujarat High Court)
A.P. Misra & D.P. Mohapatra, JJ.
Gujarat Agricultural University —Petitioner
versus
Rathod Labhu Bechar & Ors. —Respondents
Civil Appeal No. 691 of 2001
(Arising out of SLP (C) No. 1490 of 1999)
With
Civil Appeal No. 692 of 2001
(Arising out of SLP (C) No. 2528 of 1999)
Civil Appeal No. 693 of 2001
(Arising out of SLP (C) No. 2529 of 1999)
And
Civil Appeal No. 694 of 2001
(Arising out of SLP (C) No. 1386 of 2001 CC No. 2360)
Decided on 18-1-2001
Counsel for the Parties :
For the Appearing Parties : Kirit N. Raval, Additional Solicitor General, Dr. Rajeev Dhawan, Sr. Advocate, D.G. Chauhan, Rajiv Kapur, Sanjay Kapur, Mrs. Devyaniben T. Shah, Ms. Parul Patel, S.C. Patel, Ms. Hemantika Wahi, Ms. Sumita Hazarika, Advocates.

Important Point
The scheme submitted by Gujarat Agricultural University to absorb its daily rate labourers as regular employees and approved by State Government is approved subject to the modifications which the Apex Court has recorded in this judgment.

Headnote:Industrial Disputes Act, 1947 Section 10(1)(c) Reference of Industrial Dispute by Gujarat State Government between Gujarat Agricultural University and its daily rated labourers—Whether they be made permanent at par with permanent employees and be paid arrears—Industrial Tribunal directing the University to regularise their services—In writ—Single Judge partly allowed directing the University to make payment to them at the minimum of pay scale—The Letters Patent Appeals were dismissed confirming direction of Single Judge to University to submit a scheme for consideration of Tribunal—Appeals by special leave to Apex Court—Scheme submitted in the meanwhile—Whether the scheme sub-serves the workers aspirations and satisfy the judicial scrutiny, on the facts and circumstances of the case? (Yes, but subject to modifications)—Order accordingly—Case law discussed.

       Held : What emerges is, all the respondent workmen are eligible for absorption on the facts of this case subject to any eligible qualification under the rule if any. Though no recruitment rules were filed in the proceedings either before the Tribunal or in the High Court but while proposing the scheme a copy of the recruitment rules for various cadres have been placed before us on behalf of the appellant University. This gives in column No. 1 the serial No., in column No. 2 the name of the post, in column No. 3 the pay scale, in column No. 4 the age limit and in column No. 5 the qualification. Serial No. 10 deals with Peon and Class IV servants, serial No. 13 deals with Operator-cum-Mechanic, serial No. 14 deals with Chowkidar, serial No. 25 deals with Plumber and serial No. 33 deals with Carpenter. This shows that recruitment rules did have these posts in its ambit about which we are concerned, yet no posts were created. This proposed creation of post is churned out only after this long battle by the workmen as against the appellant. It was not expected from the institutions like the present appellant, especially when it is fully funded by the State Government that this process of absorption should have taken such a long time and to have yielded to it only after this long battle. This legal position is well known not only to the appellant but the State who is funding it, then why to do it only after courts’ intervention. It is true, creation of post does involve financial implication. Hence financial health of a particular institution plays important role to which courts also keep in mind. The Court does exercise its restrain where facts are such where extent of creation of post creates financial disability. But at this juncture we would like to express our note of caution, that this does not give largess to an institution to engage larger number of daily wage workers for long number of years without absorbing them or creating posts which constitutes an unfair labour practice. If finances are short engagement of such daily wage workers could only be for a short limited period and if continuous work is required it could only do so by creating permanent post. If finances are not available, take such work which is within financial mean. Why take advantage out of it at the cost of workers. (Para 17)

       One of the questions which is also up for our consideration is, apart from the fact who are to be regularised, what would be payable to these daily wage workers who have completed more than 10 years of continuous service. Submission for the respondents is, that such daily wage workers should be paid the same minimum scale of pay as admissible to the regularised incumbent based on the principle of ‘equal pay for equal work’. (Para 18)

       University s submission is, heavy financial constrain would result in case all employees are to be regularised or minimum pay scale is to be given to unabsorbed employees which would be beyond the capacity of the appellant. The affidavit of G.A. Shah, Deputy Secretary to the Government, Agricultural Department, on behalf of the State, avers that the financial burden which would surface and to be fastened on the State Government will be very heavy which would be more than 15 crores towards the arrears only as per the award if it is implemented. The averment is, there are 5100 daily rated labourers including seasonal labourers which in addition will place heavy recurring financial burden on the State Government. However, we do respect and give due consideration for any unbearable financial strains but we are not impressed by this, specially on the facts of this case, when work is being taken from them for a long number of years without giving them the due benefit for their regularisation. As we have said, which we are keeping in mind that financial constraint is also to be kept in mind when any scheme is framed at a particular time. (Para 21)

       Held further in the light of the aforesaid decisions we now proceed to examine the proposed scheme. Under Clause 1 it is proposed that all daily wage workers, whether skilled, semi-skilled or unskilled who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31st December, 1999 is to be regularised and be put in the time scale of pay applicable to the corresponding lowest grade in the university. However, the said regularisation is subject to some conditions. Under Clause 1(a) such employee is eligible only if he possess the prescribed qualifications for the post at the time of their appointment. The strong objection has been raised to this eligibility clause. (Para 25)

       We feel that daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause 1(a) need modification to this effect. (Para 26)

       Thus in view of their long experience on the fact of this case and for the concerned posts the prescribed qualification, if any, should not come in the way of their regularisation. Clause 1(b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post. (Para 28)

       The submission on behalf of the respondent is that those who are not regularised and are continuously working for 10 or more years with minimum of 240 days in each calendar year, they should be paid minimum pay scale as admissible to an incumbent regularised on similar post doing similar work instead of minimum wages as prescribed by the Government. The dispute thus is, whether such workers to be paid minimum daily wage as Government prescribes as per the scheme or pay them the minimum pay scale admissible to such regularised worker without increment and other benefit. (Para 30)

       We hold they should be paid minimum wages as prescribed by the Government from time to time as proposed under the scheme. We approve both clauses 2 and 3 on the facts and circumstances of this case. In fact, in seeking minimum pay scale to such daily rated workers as admissible to a regular employee is based on the principle of equal pay for equal work . (Para 30)

       Held also : In the present case after absorption of employees under Clause 1, we have already directed, the State Government what they have to do in coordination with the appellant University to assess and find additional regular posts required by the university. In doing so, they shall keep in mind the continuous work which the workers are doing for long number of years and after fixing the number it should further create such additional posts as necessary and absorb them. This exercise to be undertaken, as aforesaid, within six months. So for this reason we would not like to disturb the proposed scheme except to the extent we have observed above. We are sure no slackness would be exercised both by the appellant and the State in completing this exercise within the said period. Apart from what we have observed, we do not find any infirmity in the scheme. (Para 33)

       Held finally : Accordingly we approve the aforesaid scheme framed by the University and as approved by the State Government, subject to the modifications which we have recorded above. In terms of the said modified scheme, the judgment of the High Court stands modified. As respondents/workmen have suffered for a long duration of time it is appropriate that aforesaid scheme is implemented expeditiously at an early date. The first phase of absorption to be completed within three months. The appeals are accordingly disposed of in the aforesaid terms. Costs on the parties. (Para 34)