Full Judgment Text
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CASE NO.:
Appeal (civil) 1046 of 2007
PETITIONER:
Maharashtra State Road Transport Corp
RESPONDENT:
Premlal
DATE OF JUDGMENT: 27/02/2007
BENCH:
S. H. Kapadia & B. Sudershan Reddy
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P.(C) No.24066 of 2003)
WITH
C.A. 1047 of 2007 arising out of S.L.P.(C)No.2533 of 2004
C.A. 1064 of 2007 arising out of S.L.P.(C)No.2551 of 2004
C.A. 1074 of 2007 arising out of S.L.P.(C)No.7219 of 2005
C.A. 1048 of 2007 arising out of S.L.P.(C)No.2548 of 2004
C.A. 1049 of 2007 arising out of S.L.P.(C)No.2656 of 2004
C.A. 1050 of 2007 arising out of S.L.P.(C)No.2652 of 2004
C.A. 1051 of 2007 arising out of S.L.P.(C)No.2547 of 2004
C.A. 1052 of 2007 arising out of S.L.P.(C)No.2552 of 2004
C.A. 1053 of 2007 arising out of S.L.P.(C)No.2650 of 2004
C.A. 1054 of 2007 arising out of S.L.P.(C)No.2542 of 2004
C.A. 1056 of 2007 arising out of S.L.P.(C)No.2539 of 2004
C.A. 1057 of 2007 arising out of S.L.P.(C)No.2658 of 2004
C.A. 1058 of 2007 arising out of S.L.P.(C)No.2648 of 2004
C.A. 1059 of 2007 arising out of S.L.P.(C)No.2544 of 2004
C.A. 1060 of 2007 arising out of S.L.P.(C)No.2543 of 2004
C.A. 1062 of 2007 arising out of S.L.P.(C)No.2536 of 2004
C.A. 1063 of 2007 arising out of S.L.P.(C)No.2565 of 2004
C.A. 1065 of 2007 arising out of S.L.P.(C)No.2653 of 2004
C.A. 1067 of 2007 arising out of S.L.P.(C)No.2546 of 2004
C.A. 1068 of 2007 arising out of S.L.P.(C)No.2654 of 2004
C.A. 1069 of 2007 arising out of S.L.P.(C)No.2646 of 2004
C.A. 1070 of 2007 arising out of S.L.P.(C)No.2541 of 2004
C.A. 1055 of 2007 arising out of S.L.P.(C)No.2647 of 2004
C.A. 1071 of 2007 arising out of S.L.P.(C)No.4390 of 2004
C.A. 1072 of 2007 arising out of S.L.P.(C)No.5632 of 2005
C.A. 1073 of 2007 arising out of S.L.P.(C)No.6093 of 2005
C.A. 1061 of 2007 arising out of S.L.P.(C)No.2538 of 2004
C.A. 1066 of 2007 arising out of S.L.P.(C)No.2645 of 2004
KAPADIA, J.
Leave granted.
A short question which arises for determination in
these civil appeals filed by the employer is : whether
Clause 49 of 1956 Settlement stood replaced by Clause
19 of 1985 Settlement and by Resolution No.8856 dated
31.8.78 passed by the appellant-Corporation.
Appellant-Corporation is a State Road Transport
Undertaking incorporated under Road Transport
Corporation Act, 1950. Apart from State Transport
Employees Service Regulations framed under Section 45
of Road Transport Corporation Act, 1950, the service
conditions of the employees are also regulated by
Industrial Settlement signed between the Corporation
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and various trade Unions representing employees.
Several demands were raised in 1956 on behalf of the
workmen. One such demand was under Item No.49 of
the Demand Notice for abolition of Daily Wage System. It
appears that large number of workmen were continued
for several years in the Corporation on ad-hoc basis.
They were paid daily-wages. Therefore, there were
unwarranted interruptions and breaks in their service
which ultimately resulted in Unions’ raising the above
demand. Under 1956 Settlement all employees working
for 180 days including weekly offs and other holidays
continuously, were to be brought on the time scale of pay
and they were to be given all the benefits available to the
time scale workers. This Settlement was arrived at on
25.4.56. Even after 1956 various settlements were
arrived at between the Corporation and its employees.
According to the appellant, Clause 49 of 1956 Settlement
was cancelled and revised in the Joint Committee
Meeting held on 15.4.1978. According to the
Corporation, the Joint Committee was empowered to do
so by virtue of Clause 9 of 1968 Settlement. According to
the appellant-Corporation, in any event the decision of
the Joint Committee dated 15.4.78 stood approved by
Resolution No.8856 of the Corporation dated 31.8.1978
under which persons in employment of daily-wages as on
31.7.78 and those who were to be employed on daily-
wages thereafter were to be appointed on temporary basis
in ephemeral vacancies in time scale of pay as from
31.7.78 or thereafter provided they completed aggregate
service of 180 days in any one financial year commencing
from 1.4.73 onwards. According to the appellant-
Corporation, in 1985 a new settlement was arrived at
under which absorption of daily rated workmen after
completion of 180 days continuous service vide Clause
19 stood included. According to the appellant-
Corporation, Clause 49 of 1956 Settlement stood
superseded by Clause 19 of 1985 Settlement. On behalf
of the workmen the argument put forward was that
Clause 49 of 1956 Settlement and Clause 19 of 1985
Settlement operated in different fields and, therefore,
there was no question of Clause 49 of 1956 being
superseded by Clause 19 of 1985 Settlement. It was also
submitted that Joint Committee was not authorized to
cancel and revise Clause 49 of 1956 Settlement. It was
submitted that Joint Committee was constituted to
implement Clause 49 of 1956 Settlement and not to
cancel or revise the said clause and, therefore, the
Corporation was not entitled to replace Clause 49 of 1956
by Clause 19 of 1985 Settlement.
The basic controversy in the present matter,
therefore, is the true scope and extent of the above two
Clauses, namely, Clause 49 of 1956 Settlement and
Clause 19 of 1985 Settlement.
Before examining the above two Clauses it may be
mentioned that in the present case we are concerned
with employees who have been appointed after 31.8.78.
This aspect is important because one of the argument
advanced on behalf of the Corporation is that Clause 49
of 1956 stood deleted on 15.4.78 pursuant to the
decision of the Joint Committee which decision was
approved by the Corporation vide Resolution No.8856
dated 31.8.78 and, therefore, in any event Clause 49 of
1956 did not operate after 15.4.78. On the other hand,
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the workmen contended that even assuming for the sake
of argument that the Joint Committee had the authority
to revise Clause 49 of 1956 Settlement even then when
the Joint Committee cancelled Clause 49 of 1956
Settlement the said clause was replaced by a new clause,
accepted by the Corporation under Resolution No.8856,
under which it was agreed that persons in employment,
casual or on daily-wages, as on the date of the said
Resolution, shall be appointed temporarily in ephemeral
vacancies in time scale of pay with effect from the date of
the Resolution or from the date of their completion of 180
days aggregate service in a financial year; they shall be
entitled to the benefits admissible to regular employees
on time scale of pay provided they satisfy the conditions
prescribed for their entitlement.
As stated above the basic controversy in the present
civil appeals is : whether Clause 49 of 1956 Settlement
stood superseded by Clause 19 of 1985 settlement and
whether in any event Clause 49 of 1956 Settlement stood
terminated vide Resolution No.8856 of the Corporation
dated 31.8.78. At this stage, it may be noted that the
controversy arose because a complaint was filed before
the Industrial Court at Nagpur Bench in Complaint
(ULPN) No.8 of 1992 by one of the employees of the
Corporation stating that he was appointed as a daily
rated workman on 11.2.88 at the rate of Rs.11.76 per
day; that he has been continuously working with the
Corporation without any break; that though he was
working as a regular employee he was paid wages which
had no parity with regular employee; that he was not
made permanent in order to deprive him all the benefits
of permanency and that he was entitled to be appointed
on time scale of pay on completion of 180 days of
continuous service in terms of Clause 49 of 1956
Settlement. In the said complaint after noting the
aforestated submissions advanced on behalf of the
Corporation, the Industrial Court held, that, as per
Clause 49 of 1956 Settlement the workman who was a
daily rated workman had put continuous service of 180
days and, therefore, in terms of Clause 49 of 1956
Settlement the complainant was entitled to be appointed
on time scale of pay and he was also entitled for all the
benefits available to the time scale worker. The
Industrial Court gave a declaration vide order dated
27.2.97 that the Corporation had engaged in unfair
labour practice under Item No.9 of Schedule IV of MRTU
and PULP Act 1971 by not brining the complainant on
time scale of pay in terms of Clause 49 of 1956
Settlement. By the said order the Corporation was
directed to fix the pay of the complainant in the time
scale not from the date of appointment but from 6.1.92
(the date on which the complaint was filed).
In order to resolve the dispute we quote hereinbelow
Clause 49 of 1956 Settlement, Resolution No.8856 of the
Corporation dated 31.8.78 and clause 19 of 1985
Settlement:
"Clause 49 of the 1956 Settlement -
49. All employees working for 180 days
including weekly off and other holidays
continuously will be brought on the time scale
of pay and will get all the benefits available to
time scale workers. Any absence on account
of authorized leave will not be treated as break
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for the above purpose and will not also count
for service.
Resolution No.8856 dated 31.8.1978 \026
Item No.17:
Absorption on time scale of employees
working on daily-wages from 1st April 1973
onwards.
Item No.18:
Working hours and wage structure of
daily rated employees.
(Items 17 and 18 were considered together).
Resolution 8856:
I. Item 17 (regarding absorption on time
scale of employees working on daily-wages
from 1st Aril 1973 onwards) and item 18
(regarding giving retrospective effect from 1st
January 1977 to the decision of the Joint
committee regarding the revision of the daily
rate of wages taken at its meeting held on 5th
August 1978) being disagreed items of the
Joint Committee, the Corporation gave a
personal hearing to Sarvashri Bhau Phatak,
Bhingardeve and Choube, General Secretaries
the Maharashtra S.T. Kamgar Sanghatana,
Maharashtra S.T. Workers’ Federation and
Maharashtra Motor Kamgar Federation,
respectively, in these matters. They explained
in regard to item No.17 that the persons
working on daily-wages are denied certain
essential and reasonable facilities provided to
the employees on time scale and it was
necessary to do justice to them.
II-A. Thereafter the Corporation
considered the two demands and decided as
under:-
(1) The present Clause No.49 in the
Settlement dated 28th May 1956 shall
stand cancelled.
(2) The persons in employment
casually or on daily-wages as on the date
of this Resolution as also those who may
this be employed thereafter shall, if they
have already completed or will complete
an aggregate service of 180 days in any
one financial year commencing from 1st
April 1973, be appointed temporarily in
ephemeral vacancies in time scale of pay
of the post in which they were appointed
with effect from the date of this
Resolution or from the date of their
completion of 180 days aggregate service
in a financial year as the case may be,
and shall also be entitled from the
relevant date to the following benefits
admissible to regular employees on time
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scale of pay provided they satisfy all the
conditions prescribed for their
entitlement:-
(i) uniforms,
(ii) washing allowances,
(iii) medical facilities,
(iv) family free pass, and
(v) periodical increments.
(3) The Corporation made it clear
that the absorption of such persons who
are granted the above benefits, in regular
vacancies will be strictly according to
their turn and will be subject to the
normal rules and orders in this respect.
(The above decision being in modification of
the settlement would need the approval of
Government).
II.B. The Corporation directed that the
pros and cons of the question of paying the
persons engaged on work-charged
establishment/nominal muster roll according
to the time scale rate of pay and extending the
other benefits (as mentioned in II.A(2)) to them
should be examined with reference to the
working conditions, existing rate of payment,
etc. and a detailed note in the matter should
be submitted to the Corporation, preferably at
its next meeting.
III. The revised rate of daily-wages as
worked out on the basis of 24 working days
should be given effect to from 1st January 1977
i.e. the date from while the Second and the
Fourth Saturdays in a month were observed as
non-working days for the employees in the
Central Office and the Regional Offices.
Clause 19 of 1985 Settlement \026
19. Absorption of day-rated working after
completed service of 180 days -
(i) The absorption of such workmen be made
as at present, i.e., subject their selection at
least once by competent selection committee
and availability of clear vacancies;
(ii) As far as possible no appointment except
in the category of driver will be made in future
without selection of a workmen by the
Committee.
(iii) All past cases of daily wagers who are
eligible for absorption will be reviewed on the
merits of each individual case and as per the
laws on the subject.
(iv) As regards surplus staff viz., Watchmen,
the information will be called for from the
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divisions and the cases after examination will
be put up to the Corporation Board for its
directives."
According to the impugned judgment Clause 49 of
1956 Settlement and Clause 19 of 1985 Settlement
operated in different fields and consequently Clause 19 of
1985 Settlement did not supersede Clause 49 of 1956
Settlement. Broadly, we agree with the decision of the
High Court. In our view, there is a difference between the
status of an employee on one hand and the benefits
accruing to the workmen on the other hand. As stated
above, in 1956 the Union presented to the Corporation
various demands. One of the demands was abolition of
the daily-wage system. Under Clause 49 of 1956 the
Corporation agreed to give to the workmen all the
benefits available to a time scale worker. On the other
hand, under Clause 19 of 1985 Settlement, subject to a
worker fulfilling the eligibility criteria, the Corporation
agreed to absorb daily rated workmen who completed
180 days of service. Therefore, the High Court was right
in holding that the above two Clauses operated in
different fields and, therefore, there was no question of
Clause 19 of 1985 Settlement superseding Clause 49 of
1956 Settlement. Under Clause 49 of 1956 Settlement,
the Corporation agreed to provide benefits to employees
working for 180 days continuously to be given all benefits
available to time scale workers.
The grievance of the workmen in the present case is
that till today the Corporation has not given to them the
benefits available to time scale workers. In the present
case, they are not seeking absorption. In the present
case, they are seeking wages payable to time scale
workers. The topic of absorption is covered by Clause 19
of 1985 Settlement. It states that in all past cases all
daily wagers who are eligible for absorption will be given
absorption subject to their selection by the competent
Select Committee and subject to existence of clear
vacancies. This aspect was not there in Clause 49 of
1956 Settlement. Therefore, the High Court was right in
holding that the two clauses operated in different fields.
We agree with this conclusion of the High Court in the
impugned judgment. In the circumstances, in the
present case we are not required to examine the
authority of the Joint Committee to cancel Clause 49 of
1956 Settlement. In the circumstances, in the present
case we are not required to examine the question as to
whether the workmen herein are entitled to be absorbed
under Clause 19 of 1985 Settlement. These two aspects
shall be a matter of separate adjudication. We do not
wish to go into these aspects. Suffice it to state that
Clause 19 of 1985 Settlement and Clause 49 of 1956
Settlement operate in different fields and, therefore, there
is no question of Clause 19 of 1985 superseding Clause
49 of 1956 Settlement.
However, as stated above, we are required also to
consider the effect of Resolution no.8856 dated 31.8.78
passed by the Corporation under which Clause 49 of
1956 Settlement stood cancelled. It is true that the Union
had agreed to the cancellation of Clause 49. However,
the Union had also placed their demand for substitution
of Clause 49 and the Corporation agreed to that
substitution vide Resolution No.8856 passed by the
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Corporation under which persons in employment
casually or on daily-wages as on the date of the
Resolution as also those who were to be employed
thereafter, were entitled to be appointed temporarily in
ephemeral vacancies in the time scale of pay on
completion of 180 days aggregate service in a financial
year. Under the said Resolution they were entitled to the
benefits admissible to regular employees on time scale of
pay subject to their satisfying the conditions prescribed
for the entitlement. As stated above, in the present case
the workmen are not seeking absorption. They are
seeking benefits admissible to regular employees on time
scale of pay. In the present case, the workmen seek
benefits admissible to those employees on time scale of
pay. In the present case, the respondent-workmen are in
service after 31.8.78. In the circumstances,
notwithstanding cancellation of Clause 49 of 1956
Settlement the workmen herein would be entitled to all
benefits admissible to regular employees working in the
Corporation on time scale of pay provided they satisfy the
eligibility criteria of having worked for aggregate service
of 180 days and subject to their satisfying all the
conditions prescribed for their entitlement in terms of the
above Resolution No.8856 read with Clause 19 of 1985
Settlement.
In the present case, as stated above, the workmen are
not seeking absorption. The workmen have reserved their
rights to seek adjudication in that regard in a separate forum.
Similarly, in the present case, we are not required to go into
the question of validity of Resolution No.8856 dated 31.8.78
since in our view Clause 49 of 1956 Settlement and Clause 19
of 1985 operated in two different fields. The question of
validity of Resolution No.8856 is a matter of separate
challenge before a different forum. We express no opinion in
that regard. In the present case, we are also not required to
quantify the liability of the Corporation. We are deciding this
matter only on interpretation of above two Clauses.
Accordingly, the civil appeals filed by the Corporation are
dismissed with no order as to costs.