1 wp2260.92
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2260 OF 1992
General Manager,
Government Milk Scheme,
Udgir.
...APPELLANT
VERSUS
1.
Shivaji Basvantrao Patil,
Age: Major, Occ: Service,
2. D.P. Yengale,
Age: 36 years, Occ: Service,
3. Omprakashj Karbasappa Vishwanathe,
Age: 34 years, Occ: Service,
4. V.B. Rathod,
Age: 32 years, Occ: Service,
5. A.N. Kendre,
Age: 36 years, Occ: Service,
6. V.V. Nagrale,
Age: 35 years, Occ: Service,
7. V.G. Konable,
Age: 35 years, Occ: Service,
8. U.G. Panchal,
Age: 34 years, Occ: Service,
9. Shaikh Igbal,
Age: 36 years, Occ: Service,
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10. S.M. Kanthe,
Age: 35 years, Occ: Service,
11. L.E. Biradar,
Age: 36 years, Occ: Service,
12. S.V. Chavan,
Age: 36 years, Occ: Service,
13. A.R. Awasthi,
Age: 32 years, Occ: Service,
14. S.N. Ghanshi,
Age: 34 years, Occ: Service,
15. Shaikh M.S.
Age: 35 years, Occ: Service,
16. Khadri S.M.
Age: 32 years, Occ: Service,
17. Patil D.N.
Age: 34 years, Occ: Service,
18. Thakur R.B.
Age: 38 years, Occ: Service,
All R/o. Udgir, c/o. Govt. Milk
Scheme, Udgir, Dist.Latur. ...RESPONDENTS
WITH
WRIT PETITION NO. 2261 OF 1992
General Manager,
Government Milk Scheme,
Udgir. ...APPELLANT
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VERSUS
Damodhar Dattatraya Patwari,
Age: 34 years, Occ: Service,
C/o. C.N. Shinde,
General Secretary,
Trade Union Office, Udgir,
Dist.Latur. ...RESPONDENT
WITH
WRIT PETITION NO. 2262 OF 1992
General Manager,
Government Milk Scheme,
Udgir. ...APPELLANT
VERSUS
1. Vithal Shankarrao Shendre,
Occ: Service,
2. Dawar Shakh Lonikar,
Occ: Service,
3. P.K. Gaikwad,
Occ: Service,
4. I.M. Shaikh,
Occ : Service,
All r/o. Udgir,
C/o. Govt. Milk Scheme,
Udgir Dist.Latur. ...RESPONDENTS
WITH
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WRIT PETITION NO. 2265 OF 1992
General Manager,
Government Milk Scheme,
Udgir. ...APPELLANT
VERSUS
1. V.V. Makne,
Age: 34 years, Occ: Service,
2. M.N. Nilangekar,
Age: 34 years, Occ: Service,
3.
B.G. Shirure,,
Age: 38 years, Occ: Service,
4. B.N. Ratnaparkhi,
Age: 38 years, Occ: Service,
5. K.M. Rodge,
Age: 33 years, Occ: Service,
6. Habibkhan Pathan,
Age: 29 years, Occ: Service,
7. K.G. Jadhav,
Age: 31 years, Occ: Service,
All R/o. Udgir, c/o. Govt. Milk
Scheme, Udgir, Dist.Latur. ...RESPONDENTS
WITH
WRIT PETITION NO. 2266 OF 1992
General Manager,
Government Milk Scheme,
Udgir. ...APPELLANT
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VERSUS
1. Chandrashekhar Madhavrao Deshmukh,
Age: 36 years, Occ: Service,
2. Balaji Parbatrao Biradar,
Age: 36 years, Occ: Service,
3. Balbhim Venkatrao Mane,
Age: 38 years, Occ: Service,
4. Harikbhajan Ganpatrao Mane,
Age: 38 years, Occ: Service,
5. Pandurang Govindrao Sonkamble,
Age: 38 years, Occ: Service,
6. Vishwambhar Tukaram Waghmare,
Age: 39 years, Occ: Service,
7. Abarao Laxmanrao Mane,
Age: 38 years, Occ: Service,
8. Rajshekhar Sanmukhappa Wanka,
Age: 34 years, Occ: Service,
9. Govind Dharmaji Kamble,
Age: 33 years, Occ: Service,
10. Ku. Gushila Nagarao Gaikwad,
Age: 37 years, Occ: Service,
11. Dhondiba Sadashiv Surwanshi,
Age: 38 years, Occ: Service,
12. Sambhaji Madhavrao Kore,
Age: 38 years, Occ: Service,
13. Baburao Vishwanath Nagthane,
Age: 38 years, Occ: Service,
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14. Ramesh Mariba Gaikwad,
Age: 33 years, Occ: Service,
15. Namdeo Gangaram Benkhadke,
Age: 37 years, Occ: Service,
16. Shikh Mahmad Akbar Mahamed Sarwar,
Age: 35 years, Occ: Service,
All R/o. Udgir, c/o. Govt. Milk
Scheme, Udgir, Dist.Latur. ...RESPONDENTS
...
Mr. D.R. Kale, A.G.P. for petitioners.
Mr. S.S. Deshmukh, Advocate holding for
Mr. P.G. Rodge, Advocate for respondents.
...
CORAM: S.S. SHINDE, J.
DATE : 9TH MARCH, 2011
ORAL JUDGMENT :
The petitioners challenge the judgment
and order dated 15-04-1991 in I.D.A. No.11/1987,
dated 21-03-1991 in I.D.A. No.15/1987, dated
15-04-1991 in I.D.A. No.36/1987, dated 15-04-1991
in I.D.A. No.12/1987 and dated 15-04-1991 in
I.D.A. No.10/1987 passed by learned Judge, Labour
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Court, Latur, in Writ Petition Nos.2260/1992,
2261/1992, 2262/1992, 2265/1992 and 2266/1992
respectively.
2. Respondents herein filed Disputes before
the Judge, Labour Court at Latur, stating therein
that they were serving as Clerk with the opponent
i.e. petitioners herein. They were called upon to
perform the duties on each Saturday in spite of
the fact that, the five days week was declared by
the Government with effect from 01-07-1985. It is
their further case that, the work was extracted
from them without making any payment for the
duties which were performed by them on such
Saturdays. Therefore, wages of such Saturdays are
claimed by them with double rate as it it is over
time duty.
The petitioners herein resisted the claim
vide Writ Statement Exhibit-C4 dated 08-01-1988.
It was contended that the wages were paid to the
respondents as per Daily Rated Labour Regulation
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Act. It was further pleaded that the applicants
are not entitled to avail public holidays of
Saturday. It was also pleaded that eight paid offs
are paid to the workers in lieu of such public
holidays. In such circumstances, applicants are
not entitled to receive any compensation for
having perform the duty as alleged by them.
Therefore, it was prayed that the Disputes may be
dismissed.
3. The Labour Court framed as many as three
issues for its consideration/determination on
10-01-1989. The evidence of one of the workers is
recorded at Exhibit-U2 of one Mr. Omprakash
Vishwanathe. On behalf of the Department, it
appears that evidence of the Administrative
Officer, Mr. Shirishkumar Paralkar was recorded in
I.D.A. No.10/1987. Both the parties agreed vide
Exhibit-C.5 to consider that evidence for deciding
the matter.
The Labour Court has framed issue No.1
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i.e. Do the applicants 1 to 18 prove that they
have worked for each Saturday since 01-07-1985 as
alleged? Said issue is answered in the
affirmative. It is not in dispute that all these
employees have worked on Saturday. Even this
position is not disputed by the State Government.
The second issue whether each of the
applicant is entitled to receive wages at the
double rate for such duties. Said issue is
answered in the negative. However, third issue
i.e. whether joint application for such relief is
tenable. The Court answered said issue in the
affirmative.
4. It appears that, on considering the oral
evidence and the submissions made before the
Labour Court, Labour Court recorded finding that
each of the worker is serving as a Clerk.
Secondly, each of them had filed proceedings in
the Labour Court for claiming wages equal to pay
scale of Clerk, although each of them was engaged
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on daily rated wages. Though they are working on
daily wages, as skilled worker, each of them is
being paid the wages equal to the pay scale of the
Class-III employee in the scale of Clerk. Though
this fact is not pleaded by the parties, it
appears that the Labour Court, from the perusal of
the record, found that these employees are being
paid the wages equal to the pay scale of the
Class-III employees and the pay scale of Clerk.
The claim of the applicants was restricted for
having performed the duties of Saturdays for the
period of Five days week is applicable as declared
by the Government. The Labour Court concluded that
if really each of the applicant is being paid
wages equal to the pay scale of other permanent
workers then the duties extracted from them are
not for five days in a week but they are six days
in a week. With this finding, the Labour Court
held that the employees are entitled for wages
having performed duties on Saturdays as a
condition precedent and accordingly, the
petitioner herein was directed to make the payment
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of the said amount. It is admitted position that
the said amount has been already disbursed by the
petitioner to the respondent-employees.
5. Learned A.G.P. submitted that the Labour
Court failed to appreciate the evidence on record
that the workers employed in a factory are
entitled only for weekly off after having worked 6
days, the Government issued specific directions
that the Scheme of 5 days week is not applicable
to such employees. The Labour Court, Latur failed
to appreciate the fact that the nature of the
present application is in the nature of demand of
the workers and therefore, does not fall within
purview of the Section 33(C)(2) and expressly
covered under Section 2-K of the Industrial
Disputes Act and needs to be adjudicated by
Industrial Court only. Learned A.G.P. further
submitted that the Labour Court lost the sight
that proceeding under Section 33(C)(2) are in the
nature of execution proceeding and are dependent
on an existing rights only. The respondents have
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no right to claim wages at double rate when they
are not covered under the 5 days week scheme.
Learned A.G.P. also submitted that the
Labour Court gave finding against issue NO.2 that
the respondents are not entitled to receive wages
at the double rate for such duties on Saturdays
and yet directed for making payment as per order
which is against the findings. The learned A.G.P.
further submitted that the operative part of the
judgment of the Labour Court is ambiguous and
needs to be given judicial findings by this
Hon’ble Court. Learned A.G.P. appearing for the
appellant prayed for allowing the Writ Petitions
and for quashing and setting aside the judgment
and order passed in the Industrial Dispute
Applications, in question, by the Labour Court.
6. On the other hand, learned Counsel
appearing for the respondents submitted that since
the employees were getting pay scale like
permanent employees and therefore, they were also
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entitled to wages for their work on Saturday.
Government cannot discriminate two sets of
employees and extract work of Saturday without
paying any wages, when Government has declared
five days week. Therefore, learned Counsel for
the respondents submit that petitions may be
dismissed.
7. I have given due consideration to the
submissions of the learned Counsel appearing for
respective parties. I have also carefully perused
the impugned judgment and order and also record
and other documents placed on record. I am of the
considered opinion that at the relevant time,
Government declared five working days week. It is
admitted position that the respondents-employees
were getting wages equal to the pay scale of
Class-III employees in the pay scale of Clerk.
The petitioners cannot say that merely because
they are not absorbed permanently, therefore, more
work can be extracted from them on Saturday
without payment of wages. It is the matter of
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fact that, all the employees have worked on
Saturdays. That position is not disputed by the
petitioners. So, each of the employee has worked
one day more compared with the duty of other
workers who are Class-III employees engaged in
permanent establishment.
8. Labour Court has rightly concluded that
no discrimination can be permitted in this regard
by giving weekly holiday of one day for these
applicants and two days to other employees of
permanent establishment who are getting wages in
the same pay scale. Nothing was produced by the
petitioners to show that the payment of
remuneration for the duties performed by the
respondents-employees on Saturdays is paid to
them. No such record was made available before
the Labour Court. Therefore, in my opinion,
Labour Court, after appreciating the evidence
brought on record, has recorded finding in
consonance with the documents and evidence placed
on record. Once it is accepted that the
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respondents-employees have worked on Saturday and
there was five working days week declared by the
State Government and if, the respondents-employees
have worked on Saturday i.e. 6th day, they are
entitled for wages. I do not see any legal
impediment or any provision brought to the notice
of this Court, which prohibits payment of wages
for working on 6th day when there is a five
working days week declared by the Government.
Therefore, in my view, and viewed from any angle,
possible view has been taken by the Labour Court.
Therefore, no interference is called for.
It is relevant to mention that,
respondents filed Contempt Petition before this
Court. Since no interim relief was granted in
favour of the petitioners, in the Contempt
proceedings, the petitioners have deposited amount
and same was allowed to be withdrawn. Therefore,
in my opinion, in the facts and circumstances of
this case, view taken by the Labour Court cannot
be faulted. Hence, Writ Petitions are devoid of
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merits and same stands dismissed. Rule
discharged.
[ S.S. SHINDE, J.]
sut/Mar11/wp2260.92
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