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Shrirampur Municipal Council Vs. Shri V.K. Barde and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai Aurangabad High Court
Decided On
Case NumberWRIT PETITION NO. 3238 OF 1992 (Aurangabad) (i.e. WRIT PETITION NO. 3348 OF 1988 (Bombay)) WITH WRIT PETITION NO. 1017 OF 1995 WRIT PETITION NO. 3238 OF 1992 (Aurangabad) (i.e. WRIT PETITION NO. 3348 OF 1988 (Bombay))
Judge
AppellantShrirampur Municipal Council
RespondentShri V.K. Barde and ors.
Appellant AdvocateMr. V.S. Bedre, Adv.
Respondent AdvocateMr. S.K. Shelke; Mr. D.D. Pokharkar; Mrs. V.A. Shinde, Advs.
Cases ReferredCouncil vs. Municipal Kamgar Union
Excerpt:
[mr. justice s.n.satyanarayana, j.] this civil petition is filed under section 24 of cpc, praying that for the reasons stated therein, praying that this hon'ble court may be pleased to transfer m.c. no.39/2009 pending on the file of the court of civil judge, (sr. dn.) & jmfc, hunsur to the family court, mysore, in the interest of justice and equity.oral 1. petitioner before this court in both the matters is a local body constituted under the maharashtra municipal councils, nagar panchayats & industrial townships act, 1965 ( hereinafter referred to as 1965 act) while the trade union of its workmen are the respondents. basic challenge in the 1992 petition filed under art. 226 of the constitution of india is to award-ii dated 8/10/1987 delivered by industrial tribunal, ahmadnagar in ref.(it) 6 of 1984 with prayer to quash relief granted in relation to demand 1,2 & 4.the reference was made by state of maharashtra under s.12(5) of the industrial disputes act,1947 ie ida hereafter. demand no. 1 is about increase in sanctioned posts on establishment schedule of the petitioner. demand no. 2 is to grant permanency to all those who have put.....
Judgment:
ORAL

1. Petitioner before this Court in both the matters is a local body constituted under the Maharashtra Municipal Councils, Nagar Panchayats & Industrial Townships Act, 1965 ( hereinafter referred to as 1965 Act) while the Trade Union of its workmen are the respondents. Basic challenge in the 1992 petition filed under Art. 226 of the Constitution of India is to award-II dated 8/10/1987 delivered by Industrial Tribunal, Ahmadnagar in Ref.(IT) 6 of 1984 with prayer to quash relief granted in relation to demand 1,2 & 4.The reference was made by State of Maharashtra under S.12(5) of the Industrial Disputes Act,1947 ie IDA hereafter. Demand no. 1 is about increase in sanctioned posts on establishment schedule of the Petitioner. Demand no. 2 is to grant permanency to all those who have put in more than 180 days work with consequential benefits like pay-scales, D.A.etc & to continue to confer permanency in future on all workmen completing that period. By demand no. 4 the Union sought wages per day calculated by dividing the salaried of permanent staff by 26 ie at 1/26 by invoking the concept of equal pay for equal work.

2. In W.P. 1017/1995, the employer Municipal Council has assailed the interim order passed on 23/1/1995 under provisions of S. 30(2) of the Maharashtra Recognition Of Trade Unions & Prevention Of Unfair Labour Practices Act,1971-- stated as ULP Act hereafter. By that order, the Industrial Court at Ahmadnagar has directed to pay wages to 108 workmen in schedules A,B & C appended to Complt. ULP 391 of 1994 filed before it by following the principle of equal pay for equal work at 1/26th of the permanent workmen. Main complaint is under section 28(1) read with items 5,9 & 10 of schedule IV of the ULP Act.

3. W.P. 3238 of 1992 is filed at principal bench of this Court where it was registered as WP 3348 of 1988. On 30-11-1988, the Division Bench of this Court noted that grant of permanency by Petitioner in obedience to the orders of Labour Court did not constitute violation of any government circular or decision or direction. Respondent State government was given time to controvert this legal position which appeared to be "fairly clear" to the division bench. Bench also noted that out of 198 workmen covered by the decision of labour court, about 110 were already given permanency from 4/6/1988 on their giving up the claims for period prior to it. It appears that on 7/12/1988 the division bench admitted the petition only on prayer "(aa)" which sought direction to state government to sanction additional posts as per impugned award & to take them on establishment schedule. Rule on other prayers was rejected by saying--"Not granted, regarding other prayers". On 12/10/1992, matter came to be transferred to this bench. On 26/8/1994, petition was allowed to be amended. It was thereafter found in October or November,2003 that surviving subject matter pertained to domain of the division bench. Division Bench vide judgment dated 12/12/2003 disposed of the petition by directing petitioner to regularise remaining workmen from 1/9/1988 with all consequential benefits like permanent workmen. A direction to pay difference in minimum wage & actual payment to others not regularised for the period from 4/6/1980 till 31/8/1988 was also issued. Retired workmen or legal representatives of deceased workmen were also declared entitled to these benefits. Their claims for compassionate employment were also directed to be disposed of according to policy governing it. service rendered from 4/6/1980 was directed to be computed for all such purposes. Director of Municipal Administration & State Government were directed to dispose of proposal submitted by petitioner municipal council for creation of posts within 3 months.

4. Developments in WP 1017 of 1995 are not much different. By very first order dated 7/3/1995, this Court extended time to comply with the impugned interim directions of Industrial court "until further orders". On 30/3/1995, this Court directed State Government to keep its responsible officer not below the rank of under secretary present on 5/4/1995 in so far as liability of State is concerned. On 18/4/1995, State government is added as party in this petition after noting that it was already party respondent in connected matters. On 27/4/1995, the above order of division bench dated 30/11/1988 at Bombay is also noticed. Rough calculation of burden to be shouldered by Municipal Council is noted to be Rs. 2,59,42,320/ as disclosed by it and contention that State Government has to pay D.A. at 85% on it is also recorded. That 85% amount is stated to be about Rs.1.26 Crores for 200 workmen. State was then directed to deposit sum of Rs. 30 lac in this Court. Municipal Council was then directed to pay minimum wages to all persons involved in writ petition. Petition was then placed before the same Division Bench which had then disposed of WP 3238/1992 on 12/12/2003 on very same date. Because of its directions in said judgment, Division Bench also disposed of WP 1017/1995 by modifying the impugned directions of Industrial Court to that extent. Amount of Rs. 30 lacs in deposit was refunded to State Government with accrued interest.

5. These judgments dated 12/12/2003 & order dated 7/12/2008 of division bench admitting the writ petition 3238/1992 only on prayer "(aa)" were then questioned before the Hon. Apex Court in Civil Appeal no. 3651,3652,3653 & 3654 of 2005. Hon. Apex Court found rejection of other prayers in WP 3238/1992 on 7/12/1988 without recording any reasons in support unsustainable. Hon. Apex Court noted that question whether Industrial tribunal was justified in directing regularisation of adhoc workmen in absence of sanctioned posts against which it could have been done did arise. Question whether Industrial Court could have issued a direction to obliging Municipal Council or State Government to create posts when none existed also had arisen. Hence, the dismissal of petition in part on 7/12/1988 has not been upheld. In relation to judgment dated 12/12/2003, Hon. Apex Court found that said division bench did not consider whether a direction to pay higher emoluments arising out of sanction subsequently granted by the government or independent thereof could have been issued. Hon. Apex Court has noted the admitted inability of Municipal Council to bear additional financial burden and its heavy dependence on Government for aid to meet even the wage bill. As all these aspects are not looked into, the Hon. Apex Court has allowed Civil appeals before it on 3/2/2010 & remitted matters back for fresh hearing in accordance with law.

6. Both the matters were then placed before the division bench and on 13/9/2010, the Division bench after noting the submission of respective Counsel for parties ordered that as per chapter XVII Rule 18 clause 9 of the Bombay High Court Appellate Side Rules,1960 matters needed to be heard by the Single Judge of this Court. Accordingly, I have heard the respective Counsel. It needs to be mentioned that no arguments in relation to any of the amended prayer clauses in WP 3238/1992 are advanced by any of the parties & hence, learned AGP was also not required to place side of Government in that respect before this Court. Thus, the reliefs in terms of those prayers is given up in said writ petition.

7. Shri Bedre for petitioner Municipal Council has after briefly pointing out the facts as above, contended that the Industrial tribunal does not possess jurisdiction to order even indirectly the creation of posts which is purely an executive feat dependent on several factors. He states that demand no. 1 & 2 before the Industrial Court in reference proceedings are not relatable to any entry in third schedule of IDA and it is not classification by grades also as envisaged by item 7 therein. He invites attention to relevant provisions of the 1965 Act to urge that petitioner has no power to create posts and that power is with State Government. He also argues that back door entrants like present workmen can not be made permanent or regularised and award of Industrial Court is unsustainable. The direction to pay them at 1/26th the minimum wage payable to permanent workman is without jurisdiction as in the absence of wholesale identity, doctrine of equal pay for equal work is also not attracted. In the alternative, he urges that the benefit flowing from impugned award needs to be restricted only to those 198 workmen before the Industrial Court and same can not be extended to subsequent entrants and it can not be used as a precedent. According to him some other workmen joining subsequently have used this award to obtain similar directions from industrial court. Further, he pleads that said award does not entitle the beneficiary to any pension or retirement benefits like a permanent workman and to compassionate job. He further attempts to demonstrate that all 198 workmen involved in reference matter are yet to be absorbed against sanctioned strength for want of vacancies. He also points out that as this Court did not grant any interim relief, the petitioner municipal council had no option but to comply with impugned directions and to spend from its own funds which adversely affected its development activities. Therefore only though State Government sanctioned about 110 posts,as D.A. therefor was not to be reimbursed by the Government, Municipal Council could absorb only 20 or 21 of the 198 workmen and ultimately those posts lapsed.

8. He relies upon the judgment of Hon. Apex Court reported at (2001) 7 SCC 346--Mahatma Phule Agricultural University v. Nasik Zilla Sheth Kamgar Union to argue that when there are no sanctioned vacancies, no permanency can be granted. (2007) 13 SCC 231-- State of Punjab vs. Surinder Singh is pressed into service to submit that doctrine of equal pay for equal work has no application in these facts. He buttresses his stand by pointing out (2007) 8 SCC 279 -- AIR 2007 S.C. 3021 "S. C. Chandra v. State of Jharkhand" & (2007) 13 SCC 231-- State of Punjab vs. Surinder Singh. Constitution Bench judgment of Hon. Apex court in case of Secretary, State of Karnataka vs. Umadevi reported at AIR 2006 SC 1806 is pressed into service to contend that these daily rated workmen had no right to post or to claim regularisation or permanency. Judgment of Hon. Apex Court reported at (2009) 8 SCC 556-- Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, is also heavily relied upon to show how the existence of vacancy/sanctioned post is pre-requisite for issuing such a direction even by Industrial Court.

9. Adv. Shelke and Adv. Pokharkar for respective trade union support the award & the impugned interim order of the Industrial Court. According to them, law does not envisage any procedure for recruitment to class IV or grade IV posts in municipal establishment. The challenge therefore on the ground of alleged back-door recruitment has to fail. On 4/6/1980, registered trade union and hence, for computation of seniority & service benefits including gratuity/pension said date was correctly accepted by this Court on 12/12/2003.Demand no. 3 in Ref. 6/1984 was settled by giving permanency to 50 workmen as per award-I dated 20/7/1982. That award was never challenged by Municipal Council and has attained finality. Instant impugned award ie award-II is dated 8/10/1987 & is published in government gazette dated 7/7/1988. While granting relief under demand 2. Industrial Court directed all those who had put in 240 days continuous service prior to 4/6/1980, to be accorded permanency from the said date & on post on which he rendered that service. In relation to demand no. 4. Industrial Court directed payment of daily wage at 1/26th of monthly salary of the permanent workman doing same work from 4/6/1980 till grant of permanency. In 1988, 110 workmen gave up past arrears from 4/6/1980 to 31/8/1988 and hence, Municipal council regularised 110 workmen from 1/9/1988 against the newly sanctioned posts. 21 workmen who did not relinquish their past benefits were given permanency from 1/7/1994. By that time, 13 workmen had expired and their legal heirs have still not received any benefits due & payable to these 13. He states these orders to 21 workmen are due to directions of this Court in WP 5816/1995 & 5817/1995. WP 4044/1991 came to be filed by trade union for direction to employer & State to implement award II dated 8/10/1987. As there was no stay and WP 3238/1992 (Old 3348/1988-Bombay) rejected the challenge on merits, WP 4044/1991 came to be admitted for hearing along- with WP 3238/1992.

10. Union also filed ULP Complt. 507 of 1988 for declaration of non-implementation of award-II dated 8/10/1987 as an unfair labour practice and on 22/10/1992, Industrial Court while granting that declaration directed Municipal Council to make permanent 30 workmen mentioned in the list from 4/6/1980 and to pay their arrears within 3 months. Similar direction was given in relation to 15 dead workmen and their arrears were directed to be paid to legal heirs. WP 176/1993 filed against it by Employer is admitted but no interim relief has been given. Misc. ULP 3/1993 came to be filed by the Union for recovery of amount under S.50 of ULP Act and objection of Municipal Council to its tenability was rejected on 8/4/1994. WP 1641/1994 filed by Municipal Council is admitted & stay has been granted on 14/4/1999 to further proceedings. In Misc. ULP 6/1993, Industrial Court granted recovery certificate for Rs. 5,84,700/- under S. 50 of ULP Act in respect of 50 workmen and this Court has on 22/7/1996 in WP 5816/1995 granted stay to further proceedings. Similar recovery certificate issued on 29/9/1995 in Misc. ULP 9 of 1993 for Rs. 15,00761/- in relation to 40 workmen is stayed in WP 5817/1995 on 22/7/1996. He also points out how for different period and for different number of workmen these three Misc. ULP Applications under S. 50 of ULP Act have been filed. Total 121 workmen or their interests are claimed to be involved in these matters with claim amount of Rs. 50,21,758/-.He therefore urges that a simple direction to Employer to release these amounts is essential. Further, all these workmen are entitled to benefits of pay revision/fixation as per 4th & 5th pay commissions reports. He further argues that some of these 198 workmen who were made permanent retired upon reaching the age of superannuation & are also receiving pension. In other matters, service from 4/6/1980 should be directed to be taken into account for grant of such retirement benefits. In cases where the workmen have expired, the due benefits including consideration of claim for compassionate service should be made available to legal heirs. He also claims interest @15% on such withheld amounts. WP 1641/1994,176/1993, 5816 & 5817 of 1995 filed by the Municipal Council have been dismissed by this Court and that was not questioned further. Hence, the situation as on to-day is irreversible and this Court should refuse to interfere at this stage. He also contends that against later vacancies becoming available in due course, remaining workmen could have been accommodated but then malafidely, new persons or juniors have been preferred and legal claims of these workmen have been defeated. Therefore also this Court should not interfere.

11. On merits of the challenge, learned Counsel invite attention to provisions of S. 17,17A of IDA and contends that decision not to withhold the publication of award is the conscious decision of the State Government and having permitted award-II to become operative, State can not now back out of its consequential obligations to take necessary steps to see that it is honoured. He contends that State Government itself is party to the proceedings. He also reads out relevant paragraphs of the impugned award to show how all relevant facts and law find due consideration therein. According to him financial condition of petitioner is not bad and its expenditure on administration also does not exceed the ceiling imposed by State. Grant of permanency is as per model standing orders and after completion of 240 days. The demand 2 is correctly found covered by item 7 of third schedule of IDA. Alleged bar under S. 76 of 1965 Act is also noted and it is correctly found that as workforce does not increase, there is no creation of new posts. They also point out two judgments of Hon. Apex Court relied upon by Industrial Court to apply doctrine of equal pay for equal work. They draw support from (2009) 8 SCC 556--Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, to demonstrate how AIR 2006 SC 1806 does not deprive Industrial Court of its welfare jurisdiction & special powers as an industrial adjudicator under IDA or ULP Act. Heavy reliance is placed on (2001) 7 SCC 346--Mahatma Phule Agricultural University v. Nasik Zilla Sheth Kamgar Union & AIR 1996 SC 2898Chief Conservator of Forest vs. Jagnnath Maruti Kondhare to justify the approach of the Industrial Court. No duty is cast upon any workman to find out whether vacancies exist in sanctioned strength or number of sanctioned posts. According to learned Counsel, it is normal practice to first obtain appropriate order under relevant labour law from either the labour or the Industrial Court and then to approach State Government for sanction. Reliance is also being placed on unreported judgment of Division Bench of this Court in SCA 641/1977-- Kopargaon Municipal Council vs. Municipal Kamgar Union, Kopargaon & another decided on 4/8/1986 at Bombay. Stand of Municipal Council that many out of 110 posts sanctioned in 1994 lapsed is argued to be false. Lastly, it is prayed that impact of an adverse order disturbing the prevailing position on workmen , now at advanced stage of life and their dependents or legal heirs after so many years must also be considered.

12. Adv. Bedre, in brief reply points out that all writ petitions filed by Municipal Council arose out subsequent cases filed by Union to execute the impugned award dated 8/10/1987 only and were disposed of by same Division Bench because of its directions in judgment dated 12/12/2003 in WP 3238/1992 (present WP) which has been set aside on 3/2/2010 by the Hon. Apex Court. He therefore argues that there was no need to separately assail those orders before the Hon. Apex Court.

13. At this stage, it will be proper to first briefly consider the application of mind by the Industrial Court in award II dated 8/10/1987. Demand 1 is about increasing the number of posts on establishment schedule. Demand co-related with it by the Industrial Court is demand 2 of grant of permanency. In its statement of claim itself filed in justification of this demand it is pleaded by Union that permanent post cab be sought in municipal council only after Government approves establishment schedule and it takes time of 3 to 5 years. It is also expressed that even thereafter there is no guarantee that while filling in those posts precedence would be given to daily wagers. Paragraphs 28 to 54 of the award show consideration of demand 1 & 2. Industrial Court has found these demands interlinked in para 32. In para 28, S. 76 of 1965 Act requiring prior sanction of State Government for creation of additional posts is noticed. In para 29 item 11 of fourth schedule of IDA giving jurisdiction to it to consider increase or decrease in number of persons to be employed in any process or occupation or department or shift after S. 9A notice is noted. It also found that there is no such specific item in third schedule and hence demand to increase number of posts is not be covered by that schedule or then S.7A of IDA under which Union had given the notice. Demand 1 & 2 are then held to be connected with the service conditions and effort was to regularise the classification & grades of daily wagers working as such for years together. It is held that already there are various workmen with municipal council on various posts mentioned in schedule A being paid wages but then their services were not properly classified. By grant of permanency, their services would be classified & graded and result in no new workman or new employment. The demand is therefore found covered under item 7 of third schedule. In para 30, contention that creation of new post is managerial job & not of Industrial Court or then of bar under S. 76 of 1965 Act is mentioned and due to its previous finding, it is held to be not creation of new post. It is also held that when workmen are continuing since long and there is unfair labour practice, as Municipal Council or State were not doing their job, the Court has to step in. Paragraph 31 continues very same logic further to observe that in so doing the Industrial Court was not encroaching on authority of Municipal Council or State Government and to hold otherwise would render the very creation of machinery under IDA meaningless. Analogy applied by Hon. Apex Court in Workmen employed by Hindustan Lever Ltd. & Hindustan Lever Ltd. reported at AIR 1984 SC 1683 - 1984 (49) FLR 364 to confirm employees acting continuously in higher grade in those grades is found applicable to facts before it. Para 33 then mentions the evidence about weak financial condition and ceiling of 40% on establishment expenditure. Para 34 finds that then Municipal Council was paying entire wages to daily wagers and after grant of permanency, State would be required to pay 80% of the DA and Government would be paying more grants. In para 35 it accepted that financial condition of Municipal Council was not good. But then it found that with grant of permanency to daily wagers as it would receive grants from State, its burden would be reduced. Then it expresses its own views on mode & manner of calculation of establishment expenditure in para 36. it found that there is no ceiling on expenses the Municipal Council has to incur to render services to citizens & wages being paid to workmen employed for cleaning town & sewers, maintaining and supplying water, fire fighters, ambulance etc. are not establishment expenditure. These are part of its basic work and hence expenses therefor on salary of daily wagers were wrongly treated as part of establishment expenditure swelling it unduly. Sum spent on office staff running administration is held to only qualify for establishment expenditure. From paragraph 37 onwards it proceeds to examine evidence lead on additional posts required and para 38 shows a finding of absence of specific evidence about exact number thereof required in various departments. In para 53 it considers cases of Khamgaon & Manmad municipal council and observed that except these two, in all municipal councils, as per scheme of model standing orders, workmen completing 240 days in a year were being made permanent. In para 54 it selects date of S.7A notice ie 4/6/1980 as relevant for grant of benefit and then directs that all daily wagers who had completed 240 days from or during period of 12 months prior to 4/6/1980 should be made permanent. It also directed that all those who completed 240 days after first appointment similarly shall also be made permanent.

14. Industrial Court considers demand 4 in paragraph 55.It relied upon judgment of Hon. Apex Court in Dhirendra Chameli and another vs. State of U.P. reported at 1986(1)LLJ 134 & Surinder Singh & another vs. The Enginner in chief C.P.W.D. & Others --1986(1) LLJ 403 to find daily wagers entitled to wages being paid to permanent workers as the nature of work was same. It rejected the argument of heavy financial burden and directed the payment at 1/26th of monthly salary of a permanent workman from 4/6/1980 after adjusting the payments already made in obedience to its interim award passed on 21/9/1983.

15. The application of mind and its correctness in so far as grant of permanency vis-a-vis public employment necessitates reference to some leading precedents recently delivered. But before that the contention that there are no rules or regulations for recruiting class IV employees in municipal council or then a workman need not find out whether vacancy exists or then whether post is sanctioned or not need brief evaluation as binding precedent in this respect are required to be looked into again while considering grant of relief under demand 1& 2 by the Industrial court. In 1972 Mah.L.J. 874-- Uttam vs. Municipal Council, Darwha , Division bench of this court in relation to recruitment of teachers in municipal council held that provisions of art. 14 of the Constitution of India made it mandatory to provide an opportunity to all eligible aspirants to compete for said posts . Comparatively recent judgment of this Court in case of Priyadarshini Education vs. Ratis Bano2007 (6) Mah.L.J. 667 again reiterated same law in relation to employment of teachers/staff in private aides schools. As these schools receive grants from public exchequer, contention that as there is no express provision for public advertisement in statute, the public invitation for filling in vacancies was not necessary has been rejected. The Constitution bench judgment of Hon. Apex Court in case of Secretary, State of Karnataka vs. Umadevi AIR 2006 SC 1806 is relied upon.

16. In AIR 1966 Bom. 187- "Rambhau v. Vinkar Co-op. Society, Chanda", Full Bench of this Court has observed that any dispute raised by employees to alter or better the terms of their employment, is an industrial dispute. In order to be an industrial dispute, it is not necessary that the demand must be made or the relief claimed under a contract of employment. An industrial dispute also arises when employees seek higher scales of pay, reduction in hours of work or workload, share in the profits of the concern by way of bonus, or other changes in the terms of their employment or conditions of service, and these demands are not agreed to by the employer. The definition of "industrial dispute" in the C. P. and Berar Industrial Disputes Settlement Act is wider, but the essential feature of an "industrial dispute" is that it is not restricted to a claim under the contract or agreement of employment. It found it well settled that an Industrial Tribunal or authority adjudicating an industrial dispute referred to as an industrial arbitrator, is unlike a civil Court, not fettered by the agreement between the parties. He is required to decide the matter not according to the agreement or contract between the parties but according to what, having regard to all circumstances he considers to be just and fair. In order that the workers get a proper wage, that they are not victimised or unfairly treated and that their terms of employment generally are such as will secure industrial peace, an industrial arbitrator has the power and the authority to radically modify or alter the agreed terms of employment and to impose new obligations In a sense, he may make a new contract for the parties. Bench found that in Rohtas Industries Ltd. v. Brijnandan Pandey 1956 SCR 800 at pp. 809 and 810 : ((S) AIR 1957 SC 1 at pp. 6 and 7) Hon, Apex Court observed :

"There is undoubtedly a distinction between commercial and industrial arbitration. As has been pointed out by Ludwig Teller (Labour Disputes and Collective Bargaining) Vol. 1. page 536 : 'Industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements.'

A Court of law proceeds on the footing that no power exists in the Courts to make contracts for people and the parties must make their own contracts. The Courts reach their limit of power when they enforce contracts which the parties have made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interest of industrial peace, to project legitimate trade union activities and to prevent unfair practice or victimisation."

17. In U.P. Power Corpn. Ltd. v. Bijli Mazdoor Sangh, (2007) 5 SCC 755, at page 758, Hon. Apex Court has found :-- An Industrial Tribunal has also jurisdiction to order reinstatement of a dismissed or discharged employee, see Western India Automobile Association v. Industrial Tribunal, Bombay, AIR 1949 FC 111. In view of S. 21 (b) of the Specific Relief Act, no such relief can be granted by a Civil Court or a private arbitrator, see Dr. S. Dutt v. University of Delhi, 1959 SCR 1230 : (AIR 1958 SC 1050).

In paragraph 5 it is observed :--

"5. On the other hand learned counsel for the respondent submitted that in Umadevi (3) case1 the powers of the industrial adjudicator were not under consideration. There is a difference between a claim raised in civil suit or a writ petition and one adjudicated by the industrial adjudicator. It was submitted that the Labour Court can create terms existing in the contract to maintain industrial peace and, therefore, it can vary the terms of the contract. Therefore, it was submitted that the orders of the High Court do not warrant any interference.

6. It is true as contended by learned counsel for the respondent that the question as regards the effect of the industrial adjudicators' powers was not directly in issue in Umadevi (3) case1. But the foundational logic in Umadevi (3) case1 is based on Article 14 of the Constitution of India. Though the industrial adjudicator can vary the terms of the contract of the employment, it cannot do something which is violative of Article 14. If the case is one which is covered by the concept of regularisation, the same cannot be viewed differently.

7. The plea of learned counsel for the respondent that at the time the High Court decided the matter, decision in Umadevi (3) case1 was not rendered is really of no consequence. There cannot be a case for regularisation without there being employee- employer relationship. As noted above the concept of regularisation is clearly linked with Article 14 of the Constitution. However, if in a case the fact situation is covered by what is stated in para 45 of Umadevi (3) case1 the industrial adjudicator can modify the relief, but that does not dilute the observations made by this Court in Umadevi (3) case1 about the regularisation.

8. On facts it is submitted by learned counsel for the appellants that Respondent 2 himself admitted that he never worked as a pump operator, but was engaged as daily labourer on daily-wage basis. He also did not possess the requisite qualification. Looked at from any angle, the direction for regularisation, as given, could not have been given in view of what has been stated in Umadevi (3) case1."

18. Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana,(2009) 8 SCC 556 is the judgment cited by both sides . There also at page 574, Hon. Apex Court states :

"36. Umadevi (3)1 does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi (3)1 cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."

Little earlier it has observed that:--

"29. In the cases of irregular appointments (not illegal appointments) and their regularisation as one-time measure, however, the Constitution Bench referred to earlier decisions of this Court inState of Mysore v. S.V. Narayanappa13, R.N. Nanjundappa v. T. Thimmiah14 and B.N. Nagarajan v. State of Karnataka9 and said: [Umadevi (3) case1, SCC p.42, para 53]

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa13, R.N. Nanjundappa14 and B.N. Nagarajan9 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."

37. There cannot be any quarrel with the proposition that courts cannot direct creation of posts. In Mahatma Phule Agricultural University v. Nasik Zilla Sheth Kamgar Union2 this Court held: (SCC pp 352-53, paras 12-14)

"12. Mrs Jaising, in support of Civil Appeals Nos. 4461-70 and 4457-60 arising out of SLPs (C) Nos. 418-21 of 1999 and SLPs (C) Nos. 9023-32 of 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 the 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 the 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.

13. 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 the MRTU and PULP Act.

In so doing the High Court erroneously ignores the fact that approximately 2000 workmen had not even made a claim for permanency before it. Their claim for permanency had been rejected by the award dated 20-2-1985. 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.

14. Further, Item 6 of Schedule IV of the MRTU and 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 of 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 and 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 dated 1-4-1985 in IT No. 27 of 1984) also stand set aside."

38. In State of Maharashtra v. R.S. Bhonde this Court relied upon an earlier judgment in Mahatma Phule Agricultural University and reiterated the legal position thus: (SCC p 754, para 7)

"7. Additionally, as observed by this Court in Mahatma Phule Agricultural University v. Nasik Zilla Sheth Kamgar Union the status of permanency cannot be granted when there is no post. Again in Gram Sevak Prashikshan Kendra v. Workmen, it was held that mere continuance every year of seasonal work obviously during the period when the work was available does not constitute a permanent status unless there exists post and regularisation is done."

39. In Indian Drugs & Pharmaceuticals Ltd. v. Workmen this Court stated that courts cannot create a post where none exists. In para 37 of the Report, this Court held: (SCC p. 426)

"37. Creation and abolition of posts and regularisation are purely executive functions vide P.U. Joshi v. Accountant General. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature.

There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits."

40. In yet another case, Aravali Golf Club v. Chander Hass, this Court said: (SCC p. 688, para 15)

"15. The court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and the first appellate court to create the posts of tractor driver and regularise the services of the respondents against the said posts cannot be sustained and are hereby set aside."

41. Thus, there is no doubt that creation of posts is not within the domain of judicial functions which obviously pertains to the executive. It is also true that the status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the creation of posts cannot be arrogated by the courts.

42. However, the factual matrix of the present controversy reveals that it was an admitted position before the Industrial Court, Thane in Complaint (ULP) No. 442 of 1992 that the posts of cleaners in the Corporation were in existence. ----------- ---------."

Thus because of this finding that posts of cleaner were in existence & there was no violation of any statutory provision while providing work to members of the respondent union and MSRTC itself had power to create post or fill in vacancies, the Hon. Apex Court upheld the relief granted by the Industrial Court. It also found that MSRTC could not have taken advantage of its own lapse which itself amounted to an unfair labour practice. These distinguishing features are conspicuous by their absence in matters before me.

19. A judgment of this Court reported in the case of Punjabrao Krishi Vidyapeeth, Akola v. General Secretary, Krishi Vidyapeeth Kamgar Union and another (supra), is also important here. Therein the employer was an Agricultural University & question was, whether in the absence of any power in the employer to create / sanction post, the object of depriving Badlies or casuals or temporaries of status and privileges of permanent employees can be gathered. This Court found that unless and until availability of the power with the employer to create a new post is established, the unfair labour practice cannot be proved. The establishment was a State within the meaning of Article 12 of the Constitution of India and employment with it was public employment. In the case of Gangadhar Pillai v. M/s. Siemens Ltd. (supra), Item 6 of Schedule IV of the Act of 1971 has been looked into by Hon. Apex Court and in paragraph 24, it has been noticed that intermittent engagement as a casual or temporary for number of years is essentially a question of fact. It is further noted by the Hon. Apex Court that such long service for number of years by itself may not lead to conclusion that such appointment has been made with the object of depriving him of status and privileges of permanent employee. It is also noted by the Hon. Apex Court that unlike other statutes, employer before it did not have statutory liability to give permanent status to an employee on completion of period specified. The said judgment of the Hon. Apex Court further shows that burden to prove unfair labour practice was upon workmen and there was a finding that the breaks given were not artificial. Looking to the nature of establishment and its activity, the Hon. Apex Court found that requirement of engaging employees on temporary basis was writ large. The nature of work/activity of that employer was engineering and field service, undertaking jobs of industrial project installation, erection, commissioning of electrical / electronic equipments supplied by it or then purchased by clients on various projects and sites. Observations in paragraph 27 also show that period of employment had all along been commensurate with the period of work undertaken by employer under respective contracts. The object behind granting temporary employment was, therefore, found to be bona fide and not actuated with any intention to deprive workman from benefits of permanency. The Hon. Apex Court has also considered the earlier judgment delivered by it and reported in the case of Chief Conservator of Forests and another v. Jagannath Maruti Kondhare and others (supra), and distinguished it after noticing that the 25 workmen in that matter were kept as casuals for long years. The other judgment reported at 2005 I CLR 604 SC, in the case of Union of India and others v. Ramchander and another, is also considered in paragraph 34 to note that sufficient work was shown to be available. It has also been held in paragraph 35, that the Hon. Apex Court did not lay down any law having any universal application in the matter.

20. As already stated above here the Hon. Apex Court considers its earlier views in case of Jagnnath Maroti Kondhare & Mahtma Phule Agriculture University (both supra) relied upon by Adv. Shelke & Adv. Pokharkar before me and has distinguished the same. I find that those distinguishing features also hold good in present facts.

21. In Union of India & Ors. v. Vartak Labour Union, Civil Appeal Nos. 2129-2130 of 2004, decided on March 4, 2011, the Hon. Apex Court has followed Umadevi (3). Challenge in these appeals was to the judgments and orders dated 27th March, 2001 and 22nd January, 2003 delivered by a Division Bench of the Gauhati High Court at Guwahati in Writ Appeal No. 548 of 1996 whereby it directed appellant No. 1 viz. Union of India to regularize the services of the members of the respondent Union, employed by the Border Roads Organization (for short the "BRO"), as postulated in Office Memo No. Sectt. BRDB ID No. BRDB/04(90)/99-GE-II dated 2nd February, 2001. Upon perusal of the scheme and recording the satisfaction of the counsel appearing for the respondent-Union, the High Court had observed that the scheme had been framed on a rational basis. Accordingly, disposing of the writ appeal on the basis of the said office memo, the Division Bench directed the appellants to implement the said office memo dated 2nd February, 2001. Law as laid down & explained by Hon. Apex Court assumes importance here as it has bearing not only on aspect of grant of permanency but also on extension of principles of equal pay for equal work. Hon. Apex Court has expressed :--

"16. We are of the opinion that the respondent Union's claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: Secretary, State of Karnataka v. Umadevi (3) 5 (2006) 4 SCC 1; Official Liquidator v. Dayanand 6 (2008) 10 SCC 1; State of Karnataka v. Ganapathi Chaya Nayak 7 (2010) 3 SCC 115;Union of India v. Kartick Chandra Mondal; Satya Prakash v. State of Bihar 8 (2010) 4 SCC 179 and Rameshwar Dayal v. Indian Railway Construction Company Limited 9 (2010) 11 SCC 733.)

17. In Umadevi (3) (supra), a Constitution Bench of this Court - had observed that:- "It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled."

18. Explaining the dictum laid down in Umadevi (supra), a three judge Bench in Official Liquidator (supra) has observed that: "In State of Karnataka v. Umadevi (3), the Constitution Bench again considered the question whether the State can frame scheme for regularisation of the services of ad hoc/temporary/daily wager appointed in violation of the doctrine of equality or the one appointed with a clear stipulation that such appointment will not confer any right on the appointee to seek regularisation or absorption in the regular cadre and whether the Court can issue mandamus for regularisation or absorption of such appointee and answered the same in negative."

19. In light of the settled legal position and on a conspectus of the factual scenario noted above, the impugned directions by the High Court cannot be sustained. These are set aside accordingly.

21. Therefore, in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularization of the services of the casual workers engaged by BRO for execution of its on- going projects."

22. In W.P. 4557 / 2005 -- Municipal Council Savada, Savada, -V- Madhusudhan Narayan Patil, with W.P. 4558 & 4559 of 2005 decided on 1st February, 2011, I have held :--

"14. The judgment therefore clearly holds that Constitution Bench Judgment of Hon'ble Apex Court can not curtail powers of Labour Court or Industrial Court in relations to unfair labour practice under Items 6 and 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. However, the relief has been given by the Hon'ble Apex Court to the respondents before it after noticing that post of cleaners were in existence. The question, therefore, which falls for consideration in the present matter is, whether any such posts are shown to be in existence by the present respondents. It is admitted position before me that Industrial Court has not recorded any finding about availability of any posts with petitioner- Municipal Council.

15. The judgment of the Industrial Court briefly noted above proceeds on the basis that work essential for administration of petitioner- Municipal Council and of permanent nature is available. The learned Counsel for the respondents-complainants has also urged that availability of said work itself shows that post is also available. However, work and post are two different things. The complainants before Industrial Court were working on daily wages and they have no where pleaded any post for their absorption was available or vacant. The Judgment in the case of "Maharashtra State Road Transport Corporation and Anr V/s Casteribe Rajya P. Karmchari Sanghatana (Supra)" shows the important distinction noticed in this respect by the Hon'ble Apex Court. When employer himself has power to create or sanction post, the finding of indulgence in unfair labour practice under Item 6 can be readily reached. When Hon'ble Apex Court noted that University as employer had no power to create or sanction posts, it has found that it can have no "object" of depriving casuals or Badlis of their status as permanent workmen. This position applies with same vigour in present facts. The Municipal Council itself does not have power either to create or sanction the posts."

23. In present matters, the respondent trade union itself accepts absence of posts and inability of Municipal Council to create it. By demand 1, it sought increase in number of posts on establishment schedule & by demand 2 , relief of grant of permanency has been asked. Thus absence of permanent posts or vacancies in sanctioned strength to accommodate its members is/was never in dispute. Respondent Union was aware of the bar on powers of its employer due to S. 76 of 1965 Act and had contended that prior approval of proposals therefor by State government was a time consuming process. It is apparent that this statutory requirement of prior approval therefore could not have been dispensed with by the Industrial Court. Its consideration in from paragraph 37 onwards shows scrutiny of evidence about additional posts required and in para 38, a finding of absence of specific evidence about exact number thereof as required in various departments. Its entire application of mind therefore reveals absence of any evidence about number of sanctioned posts already available in concerned department or then about workload expected to be shouldered by permanent holders thereof. Continuation of large number of workmen on daily wages is no doubt prima facie indication of increased workload & need of additional man power. But then this principle which may hold good for private employer can not always be extended to public employment. Exercise undertaken while sanctioning a particular number of posts in any compliment earlier needs to be reviewed in the light of alleged additional load and also capacity of such public employer/State to incur expenditure therefor. Merely because daily wagers are being employed in public employment like present one, it may not warrant additional posts in all cases. Not only this, when salary is to come from public exchequer, ability to bear this extra burden either in full or in part, also assumes significance. The Government may even if satisfied with additional workload, due to other constraints, may not grant approval to creation of any post or some posts. The task essentially consists of a decision on executive side. Admittedly, State Government is releasing grants for paying DA to workmen within sanctioned strength and also for various municipal developments. What expenditure should be viewed as on establishment & when it should be treated as for development work or towards rendering service is therefore within province of State, provided it applies those accounting norms on uniform basis. Industrial Court has not recorded a finding that the said treatment in present case is contrary to such norms or discriminatory. Opinion of Industrial Court than expenditure on wages of field staff can not be accepted as establishment expenditure is therefore unsustainable. Similarly when Municipal Council is required to pay less amount as daily wage, finding that after grant of permanency, it will start receiving 85% grants towards DA and its burden gets reduced is erroneous. Municipal Council has to release more amount towards basic salary as also pay other allowances to such incumbent. It also has to shoulder 15% of the DA. The conclusion that as workmen on daily wage already working are being given permanency, there is no new recruitment or creation of new posts is equally unsustainable. Without verifying the mode & manner in which these 198 workmen got the work & their eligibility for the same, a blanket direction for grant of permanency to one & all is unconstitutional. Respondent trade union has not brought on record necessary material on record and effort before this Court is to justify the allotment of work contending that no statutory provisions regulate it. Thus constitutional scheme as noticed above is being ignored. Not only this, but stand that as per settled practice, first a direction like impugned direction is to be obtained from Industrial Court & then State Government is to be approached seeking required "prior approval" also overlooks mandate of Art. 14 and other eligible aspirants who lose an important opportunity in their life.

24. Third schedule and item 7 therein when viewed in this background shows that it necessarily envisages "classification by grades" of workmen in sanctioned strength ie those who have right to occupy a post. In Workmen Employed in Hindusthan Lever vs. Hindusthan Lever (supra), the industrial Tribunal held that whatever camouflage of the language in which the demand was couched, the attempt was to obtain promotion which cannot be claimed as a matter of right, it being a managerial function. The Tribunal in terms held that promotion is the function of the Management and the Industrial Tribunal will have no power and jurisdiction to take away the function of the Management and direct that such and such workmen should be promoted to a particular post. In this view of the matter, the Tribunal held that the dispute was not all industrial dispute within the meaning of the expression and rejected the reference as incompetent. This was assailed in appeal by special ]cave. Hon. Apex Court noted that standing orders obliged employer to classify workmen by grades & the demand of the workmen was for confirmation of employees promoted to the higher grade and acting in the higher grade for more than 3 months. The demand was for classification of the workmen officiating in the higher grades either as permanent or temporary and. they should not be continued indefinitely as temporary by making them permanent on rendering of continuous service in the higher grade for a period of three months. The Apex Court noted that demand involved both the classification of employees and classification by grade. The demand was held not for promotion which appeared to the Tribunal to be a managerial function and beyond the reach of adjudication. It is to be noted here that the workmen officiating on higher posts were already in permanent employment that too of a private employer and Art. 14 had no bearing on their demand. Industrial Court therefore could not have resorted to the analogy therein in present matter.

25. Argument that State Government has become party to award & is bound to implement it as it permitted said award-II to be published in gazette is equally misconceived. The dispute was between Municipal Council and trade union of its workmen. State Government was never party to that dispute & was not in picture before the Industrial Court. Trade Union also did not claim any relief against or relationship with State. State Government came to be joined for the first time before this Court in WP 3238/1992. Hence, S. 17A of IDA has no application here. Moreover, as per S. 18(2) thereof, the award is binding only on parties thereto viz. Municipal Council & respondent trade union.

26. Applicability of concept of equal pay for equal work to daily wagers as recently considered shows the dilution of ratio in two precedents relied upon by the Industrial Court. These two judgments are AIR 1986 S.C. 584 "Surinder Singh v. Engineer in Chief, C.P.W.D." which in turn relies on (1983) Civil Writ Petns. Nos. 4821 and 4817 of 1983 (SC) Dhirendra Chameli v. State of U.P. In AIR 2007 S.C. 3021 "S. C. Chandra v. State of Jharkhand", this law is considered and in paragraphs 15 onwards it is found:--

"15. The principle of equal pay for equal work was propounded by this Court in certain decisions in the 1980s, e.g. Dhirendra Chamoli and another v. State of U.P., (1986) 1 SCC 637;Surinder Singh v. Engineer-in-Chief, C.P.W.D., (1986) 1 SCC 639; Randhir Singh v. Union of India,(1982) 1 SCC 618 etc. This was done by applying Articles 14 and 39(d) of the Constitution. Thus, in Dhirendra Chamoli's case (supra) this Court granted to the casual, daily rated employees the same pay scale as regular employees.

17. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.

18. Thus, in State of Haryana v. Tilak Raj, (2003) 6 SCC 123, it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity, e.g., a daily rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different.

19. In State of Haryana and others v. Charanjit Singh and others, (2006) 9 SCC 321, discussing a large number of earlier decisions it was held by a three-Judge Bench of this Court that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. ---------- --------.

21 . In State of U.P. and others v. Ministerial Karamchari Sangh, AIR 1998 SC 303, the Supreme Court observed that even if persons holding the same post are performing similar work but if the mode of recruitment, qualification, promotion etc. are different it would be sufficient for fixing different pay scale. Where the mode of recruitment, qualification and promotion are totally different in the two categories of posts, there cannot be any application of the principle of equal pay for equal work."

Such blind extension to daily wagers is also not approved in State of Punjab vs. Surjit Singh (2009) 9 SCC 514-- while explaining final legal position in this respect and stating that the concept has roots in Art.39(d) r/w Art. 14 of the Constitution Of India , the 1986 view in Dhirendra Singh Chameli (supra) is not followed expressing doubt about it. Again insistence has been on wholesale or complete identity ie on various factors as mentioned above. For same reasons, reliance upon unreported judgment of Division Bench of this Court at Bombay dated 4/8/1980 in Spl. Civil Application 641 of 1977 Kopargaon municipal Council vs. Municipal Kamgar Union, Kopargaon; to support grant of 1/26th of the permanent wage to daily wagers is found misplaced.

27. This discussion on demand 4 in reference proceedings has also got bearing on interim order passed by Industrial Court directing petitioner Municipal Council to pay wages at 1/26th of the monthly salary of a permanent workman to members of respondent union in WP 1017 of 1995 by following the principle of equal pay for equal work. Said interim order passed on 23/1/1995 by the Industrial Court at Ahmadnagar in Complt. ULP 391 of 1994 is therefore unsustainable & same is quashed & set aside.

28. It is apparent that work provided to members of respondent trade union is not after conducting any competitive & open selection process. It is not against any sanctioned post or vacancy. Hence, their continuance in employment is not irregular but illegal. Even State Government can not regularize it as one time measure. The workmen can not contend that they were/are not aware of constitutional requirements or statutory provisions in this respect. Stand that they have to first obtain suitable direction from Industrial Court & then Municipal Council has to approach State Government for creation of requisite number of new posts is misconceived. These members had no right to post and hence, can not legitimately expect permanency or pension or then compassionate employment for their dependents. What ever benefits they could derive till now do not & can not cloth them with any better right either in law or equity. Arguments to show sympathy or to take lenient view & not to disturb the status-quo prevailing since long are misplaced and can not be accepted.

29. WP 1641/1994,176/1993, 5816 & 5817 of 1995 filed by the Municipal Council have been dismissed by this Court and that was not questioned further. WP 4044/1991 which came to be admitted for hearing along-with WP 3238/1992 has been disposed off on 12/12/2003 because of directions in WP 3238/1992. Parties before this Court did not seek any re-hearing in these WPs & same are not restored back for hearing. Reliance of Unions on standing order issued on 15/1/2004 about policy decision of State Government to absorb municipal employees in regular service shows a firm decision not to take such employees recruited after 11/3/1993 till 27/3/2000 on permanent pay scales. How cases of workmen prior to 11/3/1993 are treated by State Government is not demonstrated and in any case, such policy decision is of no help in present challenge.

30. As a result of this discussion, the directions issued in respect of demand 1,2 & 4 in its award-II dated 8/10/1987 delivered by Industrial Tribunal, Ahmadnagar in Ref.(IT) 6 of 1984 are unsustainable & same are quashed & set aside. Interim order passed on 23/1/1995 by the Industrial Court at Ahmadnagar in Complt. ULP 391 of 1994 is also quashed & set aside. W.P. 3238 of 1992 & W.P. 1017/1995 filed by the employer Municipal Council are allowed. Rule is made absolute accordingly in both the matters. However, there shall be no orders as to costs.

31. The operation & effect of this judgment in both the writ petitions is stayed till 31/7/2011 & this interim order of stay shall cease to operate automatically thereafter.


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