IMPORTANT POINT
High Court cannot grant status of permanency to daily wagers indirectly which was not possible to do directly when there are no posts. However, as daily wagers are required to be paid what is due to them the State Govt. cannot say that they would not pay the daily wagers what is due to them on ground of lack of financial resources.

Headnote:(i) Industrial Disputes Act-Sections 10(1)(d) r/w 12(3) and 33-C(2) -4000 daily wage labourers in Appellant University-Approximately 2000 out of 4000 raised industrial dispute for permanency and wages on the basis of permanency-Disallowed by award of 20-2-1965-However, certain relief were granted-This award was not challenged-Workmen filed application u/s 33-E (2) to have the amounts, payable as per award, computed-Not granted-Various complaints about unfair labour practices u/ss 5, 6, 9, 10 of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 were made by workmen-In the meanwhile Section 33-C(2) Application decided and Appellant was directed to pay as per his award of 20-2-65-Writ petitions against-High Court disposed relying on Supreme Court s judgment dated 18-8-98 in C.A. Nos. 5726-5727/1994-Whether High Court granted status of permanency to the workmen which could not be granted? (Yes)-Result-All orders granting permanency to employees in award dated 20.2.65 set aside.
       Held : Mrs. Jaising, in support of Civil Appeals Nos. 4461-4470/2001 and 4457-4460/2001 [arising out of SLP(C) Nos. 418-421/1999 and SLP(C) Nos. 9023-9032/1998] submitted that the workmen were entitled to be made permanent. She however fairly conceded that there were no sanctioned posts available to absorb all the workmen. In view of the law laid down by this Court status of permanency cannot be granted when there are no posts. She however submitted that this Court should direct the Universities and the State Governments to frame a scheme by which, over a course of time, posts are created and the workmen employed on permanent basis. It was however fairly pointed out to Court that many of these workmen have died and that the Universities have by now retrenched most of these workmen. In this view of the matter no useful purpose would be served in undergoing any such exercise. To be seen that, in the impugned Judgment, the High Court notes that, as per the law laid down by this Court, status of permanency could not be granted. In spite of this the High Court indirectly does what it could not do directly. The High Court, without granting the status of permanency, grants wages and other benefits applicable to permanent employees on the specious reasoning that inaction on the part of the Government in not creating posts amounted to unfair labour practice under item 6 of Schedule IV of MRTU & PULP Act. In so doing the High Court erroneously ignores the fact that approximately 2,000 workmen had not even made a claim for permanency before it. Their claim for permanency had been rejected by the Award dated 20th February, 1985. These workmen were only seeking quantification of amounts as per this Award. The challenge, before the High Court, was only to the quantification of the amounts. Yet by this sweeping Order the High Court grants, even to these workmen, the wages and benefits payable to other permanent workmen. Further, Item 6 of Schedule IV of the MRTU & PULP Act reads as follows :
       "6. To employ employees as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges or permanent employees."
       The complaint was against the Universities. The High Court notes that as there were no posts the employees could not be made permanent. Once it comes to the conclusion that for lack of posts the employees could not be made permanent how could it then go on to hold that they were continued as "badlis", casuals or temporaries with the object of depriving them of the status and privileges of permanent employees. To be noted that the complaint was not against the State Government. The complaint was against the Universities. The inaction on the part of the State Government to create posts would not mean that an unfair labour practice had been committed by the Universities. The reasoning given by the High Court to conclude that the case was squarely covered by Item 6 of Schedule IV of the MRTU & PULP Act cannot be sustained at all and the impugned Judgment has to be and is set aside. It is however clarified that the High Court was right in concluding that, as per the law laid down by this Court, status of permanency could not be granted. Thus all Orders wherein permanency has been granted (except Award dt. 1st April 1985 in (IT) No. 27 of 1984) also stand set aside. (Paras 12, 13 & 14)
       (ii) Industrial Disputes Act-Sections 10(1)(d) r/w 12(3)-Industrial Dispute under for status of permanency and wages on the basis of permanency-Disallowed by Labour Court by award dated 20-2-65-That award has never been challenged-However, award provided for paying daily wages on the basis of 1/30 of the increased basic starting wage-Whether be paid? (Yes)-Submission that this award does not provide to pay the daily wagers rejected-Net result-All Civil Appeals disposed off accordingly-Whether any action be taken on contempt applications? (No)-Order accordingly. (Paras 20 & 21)
       Held : We are unimpressed with this submission. Para 7, relied upon, was in respect of a demand for wage scale on the basis of permanent status. That demand had been turned down in para 7. Apart from the demand for wage scale on permanent there was also a separate demand to increase the rate of daily wages. While the demand for wage scale on permanent status had been refused the rates of wages have been increased as set out hereinabove. This increase is not a one time increase based on the pay at that time. It is a permanent increase which would go on varying as the basic starting wages and the dearness allowance kept on changing. This amount equal to 1/30 is based on the basic starting wage and dearness allowance whatever it may be at any given point of time. It is clear that the Universities have not made payment till date on this basis. We thus no infirmity in the Order Dt. 23rd July 1984. The Universities have to pay on the basis calculated therein. In order to leave no room for ambiguity we clarify that the amount of Rs. 4,16,97,937.98 was the amount payable as on 23rd July 1984. As the Universities have not paid the amounts now due would be much larger. This action of Universities in not payment on this basis definitely amounts to unfair labour practice in Item 9 of Schedule IV. As set out hereinabove most of the complaints were also in respect of unfair labour practice under Item 9 of Schedule IV. It must be held that to that extent there had been an unfair labour practice. The Universities are now directed to forthwith work out the wages due to the workmen as per the Award dated 20th February, 1985 and to make the payments of those amounts. As set out hereinabove, the Award was in respect of approximately 2,000 workmen. As regards the other remaining workmen (except for 127 workmen covered by the Award dated 1st April, 1985) who are not covered by the Award the principles of equal pay for equal work would apply. Neither Mr. Bobde nor Mr. Ashwini Kumar could dispute that as between daily wagers the principles of equal pay for equal work would apply. Therefore, the rest of the workers would also become entitled to payments and benefits as given under the Award dated 20th February, 1985 in (IT) No. 48 of 1981. There is no justification in the Universities in not making payments and giving those benefits to the remaining workers on the same basis. We, therefore, direct that the benefits of the Award dated 20th February, 1985 in (IT) No. 48 of 1981 be given even to the workmen who were not covered by the said Award (except the 127 workmen covered by Award dated 1st April, 1985 in (IT) No. 27 of 1984). Even in respect of these workmen Universities shall forthwith work out the amounts payable and pay the same. As we have been told that most of the workers have been retrenched we clarify that the Universities, may also have to now re-calculate and pay retrenchment compensation on the basis of the Order. It was submitted by Mr. Bobde that the Universities have no funds to make payments. He submitted that it is the State Government who would have to make payment. The State Government is also present before this Court. There can be no justification in the State Government not making available the required funds. The argument that the financial burden would be too much is best met by the under-quoted observation of this Court in Chandigarh Administration v. Rajni Vali, 2000(2) SCC 12 : 2000(1) Supreme 135:
       "The contention like the one raised by the appellants in this case that the Chandigarh Administration will find it difficult to bear the additional financial burden if the claim of Respondents 1 to 12 is accepted, raised in different cases of similar nature, has been rejected by the Supreme Court. The State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources. It is for the Administration to find out ways and means of securing funds for the purpose."
       These Universities are imparting education. For the purpose of the education it is necessary for them to maintain the agricultural fields and to carry on experiments. To maintain agricultural fields they required daily wagers. As the daily wagers were required the State Government cannot say that they would not pay the daily wagers what is due to them. All the Civil Appeals stand disposed of with the above observations. There will be no order as to costs. In view of the Judgment delivered today in Civil Appeal Nos. 8640-8659 of 1997 and connected matters we do not propose to take any action in this Contempt Petition. We, however, clarify that the Petitioner/Respondent will be at liberty to adopt appropriate proceedings if our Judgment is not complied with within a reasonable time. (Paras 16, 17, 18, 19, 20 & 21)

JUDGMENT

S.N. Variava, J.-Leave granted in SLP(C) Nos. 418-421/1999 and SLP(C) Nos. 9023-9032/1998.

2. All these Appeals are against the Judgment of the High Court dated 16th September, 1997.

3. Briefly stated the facts are as follows :

Civil Appeals Nos. 4461-4470 and C.A. Nos. 4457-4460/2001 [arising out of SLP(C) Nos. 418-421/1999 and SLP(C) Nos. 9023-9032/1998] are filed by two Unions. Civil Appeal Nos 1103-1117 of 1999 are filed by State of Maharashtra. All the other Appellants are Agricultural Universities in the State of Maharashtra. These Universities are established and function under the provisions of The Maharashtra Agricultural Universities (Krishi Vidyapeeth) Act 1983. The State Government controls these Universities and is responsible for funding them. The Universities own large tracts of land which are used for agricultural education and research activities. For their agricultural activities these Universities had engaged daily wage labourers. These workmen were not granted the same wages and not given the benefits available to permanent workmen. It is stated across the bar that there were approximately 4,000 such daily wage labourers.

4. Approximately 2000, out of the 4000 labourers, raised an industrial dispute which was referred to the Industrial Tribunal under Section 10(1)(d) read with Section 12(5) of the Industrial Disputes Act. The said reference was numbered as (IT) No. 48 of 1981. In this reference the workmen claimed permanency, pay scales on the basis of permanency, dearness allowance and enhanced rates of daily wages, house rent allowance, either a vehicular transport or transport allowance and concessional rates of agricultural produce like foods, vegetables, eggs, milk etc. On 20th February, 1985 an Award came to be passed by the Tribunal. By this Award claim for permanency and wages on the basis of permanency was disallowed. However, the followed reliefs were granted :

"18. For the reasons discussed above, I make the award, as under :-

(i) With effect from 1st February, 1985, workmen of Party No. 1 working on daily wages, for whom the present dispute is raised, should be paid by Party No. 1, as daily-wages, an amount equal to 1/30 of the amount of basic starting wages and dearness allowance, payable to a confirmed permanent workman of the same or similar grade and category as his monthly wages. For the month of February, that amount should be worked out by dividing the monthly wages (i.e. basic starting wage, in the wage-scale the dearness allowance) of a permanent workman of corresponding category by the total number of days for that month of February, in that year. Each workman, who has actually worked or who could be deemed to have worked for six days in a week should be paid the wages at the above rate, for that day, which would be the day of weekly-off for that workman.

(ii) Paid weekly-off should be given on the Sundays following the Second and Fourth Saturday in each month, if work is refused to the workman concerned by Party No. 1, on the Second or Fourth Saturday and if the workman concerned have actually worked for five days in that week.

(iii) Leave (including maternity leave, sick leave etc.) which is at present being granted to the permanent workmen, should be granted and extended by the Party No. 1 to the workmen, who have completed 240 days of actual uninterrupted work in a period of 12 months for a consecutive period of three years.

(iv) Each Watchman, working on daily wages basis, in the employment of Party No. 1, should be provided with a three cell torch, if he is assigned duty, during night-time and such watchman, to whom duty during night-time is assigned, should be provided cells for that torch at the rate of six cells for each month, during the period, during which the said watchman works during the night time.

(v) Party No. 1 should follow the instructions, in Clause 2(g) of the letter dated 24

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2001 Supreme(SC) 964

Cases Referred (1)