Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7358 OF 2002
Gujarat Agricultural University …Appellants
Versus
All Gujarat Kamdar Karmachari Union …Respondent
With
Civil Appeal Nos. 7427-7490/2002
JUDGEMENT
R.M. Lodha, J.
This batch of 64 appeals is directed against the judgment
passed by the High Court of Gujarat on March 22, 2002
whereby the Division Bench of that Court confirmed the award
dated August 20, 1997 passed by Industrial Tribunal, Gujarat,
Ahmedabad. Since the judgment as well as the questions
1
raised herein are common, these appeals are disposed of by a
common judgment.
2. Gujarat Agricultural University, appellant,
(hereinafter referred to as, “Employer”), is an educational
institution fully aided by the Government of Gujarat. It is
engaged in the educational activities, particularly, in agriculture
and allied sciences and humanities in the State of Gujarat. It
has various agriculture Research Stations at different places in
the State of Gujarat. In discharge of its duties and functions
under the Gujarat Agriculture University Act, 1969, the
employer engages daily rated labourers for various activities
relating to agriculture research farms, fisheries, dairies,
veterinary and other allied sciences.
3. On August 22, 1980 during the pendency of the
conciliation proceedings (Conciliation Case No. IDC 480/80), a
settlement under Section 12 read with Section 2(p) of the
Industrial Disputes Act, 1947 (for short, “ID Act”) was entered
into between the representative of the employer and the
representatives of the workmen.
4. On July 27, 1983, Banaskantha General Workers Union
gave a notice to the employer under Section 19(2) of the ID Act
2
for termination of the settlement as the workmen intended to
submit their demands afresh. However, no fresh settlement
took place between the employer and the workmen.
5. With regard to the daily rated labourers working in
Dantiwada Zone, it appears that a dispute arose about
regularization of their services which was ultimately referred for
industrial adjudication at the instance of the respondent, All
Gujarat Kamdar Karmachari Union, (hereinafter referred to as,
“Union”), vide Reference (IT) No. 463/91 before the Industrial
Tribunal, Ahmedabad. The said reference is still pending
before that Tribunal.
6. Somewhere in the year 1991, the Government of Gujarat
nd th
issued notification by which 2 and 4 Saturday were declared
holidays. The employer vide its circular dated October 3, 1991
nd th
also declared 2 and 4 Saturday of every month holidays
and 11 days Diwali holidays. Accordingly, the daily rated
labourers engaged by the employer were not provided any work
during these holidays.
7. The daily rated labourers (64 in number) working in the
Dantiwada Zone felt aggrieved by the change of their service
conditions during the pendency of the Reference (IT No.
3
463/91) without following the prescribed procedure and,
accordingly, filed separate complaints under Section 33A of the
ID Act alleging the breach of Section 33. These workmen
prayed for declaration that the action of the employer in forcing
nd th
leave on 2 and 4 Saturday and 11 days during Diwali without
pay was illegal. They prayed that the employer be ordered to
pay wages in lieu of all such forced holidays/leave granted to
them.
8. The employer contested these complaints. In their reply
they raised a preliminary objection about the maintainability of
the complaints on the ground that the demands made in the
complaints have no nexus or connection with the pending
reference and, therefore, there is no breach of Section 33.
The employer set up the plea that being fully aided government
institution, it followed the rules of the State government and
nd th
declared 2 and 4 Saturday and 11 days holidays during
Diwali. The employer asserted that there is no breach of
Section 9A of the ID Act nor there is any change in the service
conditions of the concerned workmen. The employer also set
up the plea in its reply that when institution remains completely
closed, it would not be possible to call the workmen for work
4
and, therefore, the question of paying wages, for the day on
which work is not done, does not arise.
9. The parties led oral evidence and also produced
documentary evidence in support of their respective case.
10. After hearing the parties, the Industrial Tribunal passed
the award, operative part whereof, reads thus:
“It is hereby ordered that the opponents shall
pay wages to the complainants herein in lieu of
additional leaves/holidays granted to the
complainants in excess of weekly off i.e. one day’s
leave once in a week on and from May 1991 by
putting/marking their presence on those days.
That the action of the opponents in granting 11
days leave without pay in Diwali days to the
complainants, if granted, is hereby declared illegal
and opponents are hereby ordered to pay wages in
lieu of all such holidays/leave granted to the
complainants treating them as present.
It is hereby further ordered that hence forth the
opponents shall not grant leave without pay for more
than one day in a week to the complainants herein.
Benefit of this order will be given to those
complainants only who have been fulfilling the terms
and conditions of the settlement dated 22.8.1980.
Opponents shall pay to each complainant
individually an amount of Rs. 250.00 towards costs of
the complaints of the aforesaid complaints.”
11. The award of the Industrial Tribunal came to be
challenged by the employer by filing Special Civil applications
before the High Court. The Single Judge dismissed Special
Civil Applications. Dissatisfied thereby, the employer preferred
5
LPAs but without any success and hence, these appeals by
special leave.
12. Mr. P.S. Patwalia, learned Senior Counsel for the
appellant submitted :
(i) that daily wagers do not hold any post and,
therefore, there are no conditions of service for
such employees; they are engaged as and
when there is requirement of work and they are
paid wages for the work done by them and the
question of change in conditions of service of
daily rated employees does not arise.
Reliance is placed on Secretary, State of
Karnataka and Others vs. Umadevi(3) and
1
Others and Lily Kurian vs. Sr. Lawina and
2
Others .
(ii) that even if it be assumed that the settlement dated August
22, 1980 provides for conditions of service of daily rated
employees covered thereby, the settlement had come to an
end on expiry of three years and as a matter of fact, a notice
of termination of settlement dated July 23, 1983 was given
by Banaskantha General Works Union. In view of the said
notice intending to terminate the settlement dated August 22,
1980, on the expiry of its tenure, the settlement has come to
an end on October 21, 1983 and, therefore, the circular
th
dated October 3, 1991 declaring the 2nd and 4 Saturday of
every month and 11 Diwali holidays cannot be made subject
to the said settlement.
(iii) that the complaints filed by the workmen were not
maintainable under Section 33A as there was no breach of
Section 33 inasmuch as the alteration in the alleged
conditions of service was not related to nor has any
connection with industrial dispute pending adjudication
before the Industrial Tribunal.
(iv) that in any case, no wages should have been ordered to be
paid to the workmen for the days they did not work.
Reliance is placed on Union of India and Others vs.
1
(2006)4 SCC 1
2
1979 (1) S.L.R. 26
6
3
Rajendra Kumar Sharma and U.P. State Brassware Corpn.
4
Ltd. And Another vs. Uday Narain Pandey .
13. Mr. G.K. Parwar, President of the union strongly
supported the impugned judgment and relied upon the
following decisions of this court, viz. Life Insurance Corporation
5
of India vs. D.J. Bahadur and Others , Calcutta Electric Supply
Corporation Ltd. Vs. Calcutta Electric Supply Workers’ Union
6 7
and Others , Bareilly Holdings Ltd. Vs. Workmen , Jaipur Zila
Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and
8
Others and M/s Lokmat Newspapers Pvt. Ltd. Vs.
9
Shankarprasad .
14. We may immediately refer to the observations made in
paragraph 48 of the judgment of this Court in case of Umadevi
upon which reliance was placed by Mr. P.S. Patwalia, learned
Senior Counsel which read thus:
“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
3
1993 Supp (2) SCC 366
4
(2006) 1 SCC 479
5
(1981) 1 SCC 315
6
(1994) 6 SCC 548
7
(1979) 3 SCC 257
8
2002-I-LLJ SC 280
9
1999 (6) Supreme 104
7
appointments consistent with the requirements of
Articles 14 and 16 of the Constitution.”
15. In Lily Kurian this Court said :
“13. The expression “conditions of service” covers a
wide range, as explained by the Privy Council in
N . W.F. Province v. Suraj Narain [AIR 1949 PC 112] ,
which was approved by this Court in State of U.P. v.
Babu Ram [AIR 1961 SC 751]. These decisions and
also a later decision of this Court in State of M.P. v.
Shardul Singh [(1970) 1 SCC 108] have made it clear
that the expression “conditions of service” includes
everything from the stage of appointment to the stage
of termination of service and even beyond, and
relates to matters pertaining to disciplinary action.
Thus, the expression “conditions of services” as
explained in the decisions of the Privy Council and of
this Court includes the power to take disciplinary
action. The rules regarding these matters are
contained in Chapter 57 of the ordinances. The
management of a private college under Ordinance
33(2) is constituted the appointing and the disciplinary
authority in respect of imposition of punishment. In the
course of any disciplinary proceeding, a right of
appeal before the Vice-Chancellor is given to a
teacher dismissed from service under Ordinance
33(4) of the Ordinances. The High Court thus rightly
held that the right of appeal conferred by Ordinance
33(4) forms part of the “conditions of service” and,
therefore, is valid.”
16. It is true that daily wagers are not the holders of a
post but the expression ‘conditions of service’ occurring in
Section 33(1)(a) is not restricted to the holders of post. The
expression, ‘conditions of service’ is of wide range and relates
to the workmen who may be temporary, adhoc, daily rated,
permanent, semi-permanent or otherwise. What Section 33
8
provides is that, inter alia, during the pendency of any
proceeding before the Labour Court or Industrial Tribunal in
respect of an industrial dispute, the employer shall not in
regard to the matter connected with the dispute, change
conditions of service prejudicially to such workmen. We find no
merit in the contention that since daily rated employers do not
hold any post and, therefore, there are no conditions of service
for such employees.
17. Insofar as the present case is concerned, the
settlement dated August 22, 1980 provides that those workmen
who have worked for 200 days in each year continuously for
last three years prior to July 1, 1980 and those workmen who
have worked for 240 days continuously for a period of three
years after July 1980 shall be treated as permanent. It further
provides that instead of taking work for 9 hours in a day for five
days in a week, work shall be taken from them for 8 hours in a
day for six days in a week. The settlement provides for one
weekly off. The relevant portion of the settlement reads thus :
“2. On and from 1.7.1980, daily rated workmen
who are made permanent, shall be paid Rs.
6.00 per day instead of Rs.5.50 per day. This
rate of daily wages also includes dearness
allowance and one leave once a week (one
weekly off).
9
3. Those workmen who have worked in the University for 200
days in a year continuously for a period of last three years
prior to 1.7.1980, shall be treated as permanent workmen.
Thereafter, in the month of July in each year, as per the
following norms they shall be made permanent:
Those workmen who have worked for 200 days
(presence of 200 days) in each year
continuously for last three years prior to
1.7.1980 and those workmen who have worked
for 240 days in each year continuously for a
period of three years after 1.7.1980, shall be
treated as permanent and after 1.7.1980
instead of taking work from them for 6 hours
for one day and for 9 hours in a day for five
days in a week, work shall be taken from them
for 8 hours in a day for six days in a week.”
18. Surely, the aforenoticed provision in the settlement
is nothing but conditions of service of the concerned workmen.
19. The question now to be considered is whether the
settlement dated August 22, 1980 became inoperative on
expiry of its tenure for which a notice was given by
Banaskantha General Workers Union. The answer has to be
in the negative. In the case of Life Insurance Corporation of
5
India vs. D.J. Bahadur and Others , this Court held:
“34. The core question that first falls for consideration
is as to whether the Settlements of 1974 are still in
force. There are three stages or phases with different
legal effects in the life of an award or settlement.
There is a specific, period contractually or statutorily
fixed as the period of operation. Thereafter, the award
or settlement does not become non est but continues
to be binding. This is the second chapter of legal
10
efficacy but qualitatively different as we will presently
show. Then comes the last phase. If notice of
intention to terminate is given under Section 19(2) or
19(6) then the third stage opens where the award or
the settlement does survive and is in force between
the parties as a contract which has superseded the
earlier contract and subsists until a new award or
negotiated settlement takes its place. Like nature, law
abhors a vacuum and even on the notice of
termination under Section 19(2) or (6) the sequence
and consequence cannot be just void but a
continuance of the earlier terms, but with liberty to
both sides to raise disputes, negotiate settlements or
seek a reference and award. Until such a new
contract or award replaces the previous one, the
former settlement or award will regulate the relations
between the parties. Such is the understanding of
industrial law at least for 30 years as precedents of
the High Courts and of this Court bear testimony. To
hold to the contrary is to invite industrial chaos by an
interpretation of the ID Act whose primary purpose is
to obviate such a situation and to provide for industrial
peace. To distil from the provisions of Section 19 a
conclusion diametrically opposite of the objective,
intendment and effect of the section is an
interpretative stultification of the statutory ethos and
purpose. Industrial law frowns upon a lawless void
and under general law the contract of service created
by an award or settlement lives so long as a new
lawful contract is brought into being. To argue
otherwise is to frustrate the rule of law. If law is a
means to an end — order in society — can it commit
functional hara-kiri by leaving a conflict situation to
lawless void?”
20. It is an admitted position that no new settlement has
been entered between the employer and the workmen
subsequently nor any award has replaced the settlement dated
August 22, 1980. In this view of the matter, it has to be held
that the settlement dated August 22, 1980 continues to regulate
11
the conditions of service of the workmen covered thereby. The
contract of service or the conditions of service provided in the
settlement holds the field until new lawful settlement is brought
into being. As a matter of fact, the employer was well aware
of this legal position and, therefore, the daily rated labourers
governed by the settlement were continued to be given only a
day off in a week until the change was effected vide circular
dated October 3, 1991. Thus, the Industrial Tribunal as well as
the High Court cannot be said to have erred in relying upon the
settlement dated August 22, 1980.
21. In the case of Bhavnagar Municipality vs. Alibhai
10
Karimbhai and Others , this Court held that the following
conditions have to be followed in order to invoke the conditions
of Section 33:
(a) there has to be a proceeding in respect of an
Industrial Dispute pending before the Tribunal,
(b) the alteration has to be in the conditions of
service which are applicable immediately before the
commencement of the tribunal proceedings,
(c) the alteration in the conditions of service has to
be related to a matter pending before the tribunal,
(d) the workmen whose conditions of service are
altered must be related to the matter,
10
AIR 1977 SC 1229
12
(e) the alteration of conditions of service must be prejudicial to
the workmen.
22. In Blue Star Employees Union vs. Ex Off. Principal
11
Secy. to Govt. and Another , this Court held thus:
“ 5. Thus, the contravention of the provisions of
Section 33 of the Act is the foundation for exercise of
the power under Section 33 ( sic 33-A) of the Act. If
this issue is answered against the employee, nothing
further survives for consideration or action by the
Tribunal under Section 33 ( sic 33-A) of the Act. In
other words, an application under Section 33-A of the
Act without proof of contravention of Section 33 of the
Act would be incompetent. This is the view expressed
by this Court in several decisions including the
decisions in Punjab National Bank Ltd. v.
Workmen,[ AIR 1960 SC 160] , Punjab Beverages
(P) Ltd . v. Suresh Chand [ (1978) 2 SCC 144 ] ,
Syndicate Bank Ltd. v. K. Ramanath V. Bhat [ AIR
1968 SC 231] . Indeed this Court in Orissa Cement
Ltd. v. Workmen [ (1960) 2 LLJ 91 (SC)] while
dealing with the identical provisions as contained in
Sections 33 and 33-A of the Act in a complaint made
under Section 23 of the Industrial Disputes (Appellate
Tribunal) Act, 1950 examined this contention that the
finding of the Appellate Tribunal in the proceedings
instituted under Section 23 of the Appellate Tribunal
Act amounted to res judicata and it was not open to
the Tribunal to consider the validity or the propriety of
the impugned order of discharge in the reference. The
Tribunal in that case had held that on the earlier
occasion the Appellate Tribunal had found that there
was no contravention of Section 22 and that was
really decisive of the proceedings and held that the
alternative finding made in the said proceedings on
the merits was no more than obiter and cannot be
pleaded in support of the bar of res judicata. This
Court was not prepared to hold that this view is
erroneous and, therefore, the Tribunal was justified in
dealing with the merits of the dispute.”
11
(2000) 8 SCC 94
13
23. It must be held, as has been consistently said, that
the foundation for exercise of the power in the proceedings
under Section 33A is a breach of the provisions of Section 33
of the ID Act.
24. We now turn to the next question, whether the
alteration in the conditions of service has any connection or
nexus with the industrial dispute pending before the Industrial
Tribunal, Ahmedabad.
25. The industrial dispute referred for adjudication at the
instance of the union before the Industrial Tribunal, Ahmedabad is
in respect of regularization of daily rated labourers working in,
Dantiwada Zone. That all these daily rated labourers are covered by
the settlement dated August 22, 1980 does not seem to be in dispute.
The Industrial Tribunal while dealing with the question whether the
alteration in the service conditions has any connection with the
pending industrial dispute observed:
“….. It is at present not possible to say that the
workmen are directly connected with the dispute as
well as with the subject matter of the reference. But if
it is viewed with large angle, the said complaint is
connected with the pending reference because
subject matter of the reference is whether all the
workmen should be treated permanent and
accordingly be given benefits attached to the
permanent service or not? This also include working
hours and holidays etc. of the employment of the
14
workmen. If workmen are made permanent, they will
also get leave benefits and other rights etc. given to
the permanent workmen. Further, it is the contention
of the complainant that under the settlement, it was
agreed to provide work for six days, but instead,
more than one leave are given. If this is permitted to
be so done, that would straightway and simply mean
that by ignoring the seniority of the workmen and by
taking work from them in some other manner,
leave/holidays of more than one day in a week are
being given to the workmen as a result of which the
total working days of the workmen will be reduced to
such an extent that as and when time of disposing of
the reference on merits would come, though the
workmen would legally be entitled to get work for six
days in a week, their total working days would be
reduced in such an extent that that would also affect
the case of the workmen to make them permanent
and though the workmen are entitled, opponent
would submit in that event that workmen are working
for very less number of days and, therefore, they
should not be made permanent. It was agreed to give
work for six days in a week under the settlement
arrived at under Section 2(P) of the ID Act and the
same is part and parcel of the service conditions.
Thus, subject matter of the complaint is connected
with the subject matter of the reference.”
26. Mr. P.S. Patwalia, learned Senior Counsel would submit
that the Industrial Tribunal was not very sure that the complainants
were directly connected with the subject matter of the reference and
that being the position, one of the fundamental conditions of Section
33 that the alteration in the conditions of service has to be related to
a matter pending before the Tribunal is not satisfied. We are afraid
that this is not a fair reading of the finding recorded by the Industrial
Tribunal. Moreover, we have carefully examined the industrial
15
dispute referred vide Reference (IT) No. 463/91 which is pending
before the Industrial Tribunal, Ahmedabad and we find that change
in conditions of service is in regard to a matter which is not
unconnected with the pending dispute. We find ourselves in
agreement with the view of the Division Bench of the High Court in
this regard:
“ …. Therefore, it would be crucial to examine
whether any alteration in the conditions of service
was effected by the appellant and, if the answer is
positive, whether it was in regard to a matter
connected with the dispute. It is seen that the main
dispute and reference during the pendency of which
the conditions of service were allegedly changed was
for regularization to secure the benefits of
permanency in service. It was also the case of the
complainants that they had completed 240 days or
more days of work in each of the three preceding
years of their service and that on that basis they were
entitled to be made permanent. Pending the
adjudication of such dispute and demand, increase in
the number of unpaid holidays and resultant reduction
of the working days would necessarily be a matter
connected with the dispute insofar as not only the
record of number of days worked would be altered but
there would be an effective reduction in the total
wages to which the workman concerned would be
actually entitled. It needs no elaboration that the
demand and dispute for regularization in service
based on continued employment under the employer
arises to prevent sudden discontinuation and to claim
benefits at par with regular employees so as to
achieve stability and an equitable standard of living.
While struggling to achieve that goal, if forced
unemployment were thrust upon a labourer in the
name of additional holidays, it cannot be said that the
change in condition of service was in regard to a
matter which was not connected with the dispute….”
16
27. Thus, there is no flaw in the view of the Industrial
Tribunal as well as of the High Court that the settlement dated
August 22, 1980 is still in force and binding on the employer
and the action of the employer in giving leave for more than
one day in a week after May, 1991 and 11 days festival leave
amounts to changing the conditions of service of the daily rated
labourers who are covered by the settlement dated August 22,
1980 without following the prescribed procedure and, therefore,
illegal.
28. Having held so, the question still remains to be
answered is : whether the Industrial Tribunal was justified in
exercise of its judicial discretion in directing the employer to pay
wages to the complainants in excess of a weekly off by marking
their presence on those days and also to pay wages for Diwali
Holidays by marking them present.
29. One of the principles well known in the matters of
service is that if a person has worked, he must be paid and if he
has not worked, he should not be paid. This is expressed in
doctrine, ‘no work, no pay’. Another oft-repeated principle in
service jurisprudence is that if an employer has wrongly denied
an employee his due then in that case he should be given full
17
monetary benefits. But none of these principles is absolute nor
can these principles be applied as a rule of thumb. Of late, the
Courts have followed the principle that a person is not entitled
to get something only because it would be lawful to do so.
30. In U.P. State Brassware Corpn. Ltd. and Another
12
vs. Uday Narain Pandey , the question for consideration
before this Court was whether a direction to pay back wages
consequent upon a declaration that the workmen has been
retrenched in violation of Section 6-N of the U.P. Industrial
Disputes Act (equivalent to Section 25 of the ID Act) as a rule
was proper exercise of discretion. It was held:
“ 41. The Industrial Courts while adjudicating on
disputes between the management and the
workmen, therefore, must take such decisions
which would be in consonance with the
purpose the law seeks to achieve. When
justice is the buzzword in the matter of
adjudication under the Industrial Disputes Act,
it would be wholly improper on the part of the
superior courts to make them apply the cold
letter of the statutes to act mechanically.
Rendition of justice would bring within its
purview giving a person what is due to him and
not what can be given to him in law.
42. A person is not entitled to get something
only because it would be lawful to do so. If that
principle is applied, the functions of an
Industrial Court shall lose much of their
significance.
43. The changes brought about by the
subsequent decisions of this Court, probably
having regard to the changes in the policy
decisions of the Government in the wake of
prevailing market economy, globalisation,
privatisation and outsourcing, is evident.
18
44. …………………………………………………
……….
45. The Court, therefore, emphasised that
while granting relief, application of mind on the
part of the Industrial Court is imperative.
Payment of full back wages, therefore, cannot
be the natural consequence.”
31. In the matters of termination of workman in violation of
Section 25F of the ID Act, as regards the consequential
relief, in the recent judgments, this Court has consistently
taken the view that relief by way of reinstatement and back
wages is not automatic. In a recent judgment delivered by
us on July 14, 2009 in the case of Jagbir Singh vs. Haryana
State Agriculture Marketing Board & Anr. (Civil Appeal
No.4334/09 (@ out of SLP© No. 987/2009), we considered
12
U.P. State Brassware Corpn. Ltd.vs. Uday Narain Panday
and few other decisions of this Court viz., Uttaranchal
13
Forest Development Corpn. V. M.C. Josh , State of M.P. &
14
Ors. v. Lalit Kumar Verma , M.P. Administration v.
15
Tribhuwan , Sita Ram v. Moti Lal Nehru Farmers Training
16
Institute , Ghaziabad Development Authority & Anr. v.
12
(2006) 1 SCC 479
13
(2007) 9 SCC 353
14
(2007) 1 SCC 575
15
(2007) 9 SCC 748
16
(2008) 5 SCC 75
19
17
Ashok Kumar & Anr. and Mahboob Deepak v. Nagar
18
Panchayat, Gajraula and held:
“15. It would be, thus, seen that by catena of
decisions in recent time, this Court has clearly laid
down that an order of retrenchment passed in
violation of Section 25F although may be set aside
but an award of reinstatement should not, however,
be automatically passed. The award of reinstatement
with full back wages in a case where the workman
has completed 240 days of work in a year preceding
the date of termination, particularly, daily wagers has
not been found to be proper by this Court and instead
compensation has been awarded. This Court has
distinguished between a daily wager who does not
hold a post and a permanent employee. Therefore,
the view of the High Court that the Labour Court erred
in granting reinstatement and back wages in the facts
and circumstances of the present case cannot be said
to suffer from any legal flaw. However, in our view,
the High Court erred in not awarding compensation to
the appellant while upsetting the award of
reinstatement and back wages. As a matter of fact, in
all the judgments of this Court referred to and relied
upon by the High Court while upsetting the award of
reinstatement and back wages, this Court has
awarded compensation.”
32. Although the aforesaid observations have been
made in the context of the illegal retrenchment of the workmen
in violation of Section 25F of the ID Act, but, in our considered
view, in a case such as present one where no work was taken
nd th
from the daily rated employees on 2 and 4 Saturday and for
11 days’ during Diwali festival after May, 1991, the payment of
full wages for the aforesaid period should not follow as a matter
17
(2008) 4 SCC 261
18
(2008) 1 SCC 575
20
of course. It is true that these daily rated employees could not
work on those days because of the wrongful act of the
employer but at the same time it cannot be overlooked that
change in the working days was brought about by the employer
nd th
because the Government of Gujarat had declared 2 and 4
Saturday as holidays and also festival holidays for its
employees. The employer being fully aided institution had to
follow the suit and it issued circular on the same lines to bring
working days pattern on par with the government departments.
The action of the employer insofar as daily rated employees
governed by the settlement dated August 22, 1980 is
concerned was wrong as they did not follow the prescribed
procedure before bringing out the change but nevertheless the
said action cannot be said to be actuated with ulterior motive.
In these peculiar circumstances, a just balance needs to be
struck and the principle of ‘no work, no pay’ does not deserve
to be given a complete go-by. In our thoughtful consideration,
the interest of justice would be subserved if the employer is
directed to pay 50% wages to the complainants in lieu of
additional leave/holidays granted to them in excess of one day
weekly off and 11 days Diwali holidays from the month of May,
21
1991. We order accordingly.
33. The appeals stand partly allowed as indicated
above. The appellant shall calculate the due amount as afore-
directed and pay the same to the complainants within six
weeks from today failing which the unpaid amount shall carry
an interest @ 8% per annum from the date it became due until
the date of payment. The parties will bear their own costs.
34. We direct the Industrial Tribunal, Ahmedabad to
dispose of Reference (IT No. 463/91) as expeditiously as
possible and preferably within six months from the date of the
receipt of this order.
……………………J
(Tarun Chatterjee)
…….……………..J
(R. M. Lodha)
New Delhi
July 31, 2009.
22