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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 3802 OF 2005
Shri Ramdeobaba Kamla Nehru
Abhiyantriki Mahavidyalaya
Shikshaketar Karmachari Sanghatana,
Registered under the Trade Unions
Act, through its President Shri
Nandkishor Purohit c/o Ramdeobaba
Kamla Neharu Abhiyantriki
Mahavidyalaya, Gitti Khadan,
Katol Road, Nagpur. ... PETITIONER
Versus
1. State of Maharashtra,
through its Secretary,
Department of Higher and
Technical Education,
Mantralaya, Bombay - 32.
2. Nagpur University
through its Vice Chancellor,
Nagpur.
3. All India Council for Technical
Education through its Chairman,
Indira Gandhi Sports Complex,
T.R.P., New Delhi.
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4. Industrial Court,
Maharashtra, Nagpur Bench,
Nagpur.
5. Shri Ramdeobaba Sarwajanik
Samiti, Ramdeobaba Tekdi,
Gitti Khadan, Katol Road,
through its Principal.
6. Ramdeobaba Kamla Nehru
Engineering College, through
its Principal, Ramdeobaba
Tekdi, Gitti Khadan,
Katol Road, Nagpur. ... RESPONDENTS
Shri R.S. Parsodkar, Advocate for the petitioner.
Shri Mujumdar, AGP for respondents No. 1 & 4.
Shri P.V. Thakare, Advocate for respondent No. 2.
Shri Sundaram with Ms. Tanna, Advocates for respondent No. 3.
Shri Shreyas Zinjharde with Shri Marpakwar, Advocates for
respondents No. 5 & 6.
.....
CORAM : B.P. DHARMADHIKARI, J.
MARCH 22 & 23, 2010.
ORAL JUDGMENT :
By this writ petition, filed under Articles 226 & 227 of
Constitution of India, the petitioner – Union has questioned the order
dated 20.03.2004 delivered by Member, Industrial Court in Complaint
ULP No. 148 of 1995, dismissing the same. They have sough review
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of that order but that review was also dismissed on 02.04.2005. After
dismissal of review, present writ petition has been filed.
2. Complaint ULP was filed by present petitioner as
Complainant No. 1 with other about 147 member-employees against
Respondents No. 5 & 6 under items 1, 5, 6 & 9 of Schedule IV of
Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1972 (hereinafter referred to as MRTU & PULP
Act). The prayer was to extend to all complainants the appropriate
pay scale applicable to the post held by them from the date of their
respective appointments and to pay them the arrears accordingly. In
prayer clause declaration of unfair labour practice under items No. 2 &
3 of Schedule II of said act was also sought. The complaint was
opposed by the employer and after appreciating the evidence led by
the parties, Industrial Court found that the petitioners could not
establish their entitlement to pay scales as prescribed by State
Government. Industrial Court also relied upon one settlement at Exh.
48 between parties and noted that most of the witnesses examined
before it accepted that they were getting their salary in proper pay
scale. The Government Notification dated 27.07.1989 is found not
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applicable to the complainants by it.
3. In this back ground, I have heard Shri Parsodkar, learned
counsel for the petitioner, Shri Mujumdar, learned AGP for
respondents No. 1 & 4, Shri Thakre, learned counsel for respondent
No. 2 – Nagpur University, Shri Sundaram with Ms. Tanna, learned
counsel for respondent No. 3 – All India Council for Technical
Education (A.I.C.T.E.) and Shri Shreeyas Zinjarde with Shri
Marpakwar, learned counsel for respondents No. 5 & 6.
4. Shri Parsodkar, learned counsel has contended that the
approach of Industrial Court in the matter has been erroneous as it
has not considered the entire material produced by the complainants.
He states that the document at Exhs. 41 to 44 filed along with
complaint has been relied upon only to show entitlement of
complainants to pay scales and revision as prescribed by said
documents. In addition, Notification dated 27.07.1989 issued under
provisions of Nagpur University Act, 1974, in terms of Standard Code
was also relied upon but its statutory character has not been
considered by the Industrial Court. He argues that undue importance
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has been given to settlement at Exh. 48 between parties and said
settlement was provisional in nature and did not in any way prejudice
the legal contentions and rights of employees or the employer. He,
therefore, states that unfair labour practice under item 9 was clearly
established by proving out that pay scales prescribed by State
Government were not extended to the complainants. He further
points out that the employees were not given any appointment order
and also the orders of regularization were not served upon them. The
regularization in 1993 is from the date of entry into service and hence
the employees ought to have been given the benefit of pay scales as
prescribed by Notification dated 27.07.1989 from the date on which
they were regularized. The distinction made by Industrial Court while
holding that said Notification is not applicable to employees on
consolidated rates of pay overlooks the fact of regularization. He
points out that till date, there is nothing like pay scales prescribed by
All India Council for Technical Education (A.I.C.T.E.) in force and
hence the mention thereof in Exh. 48 or in its order by Industrial
Court is erroneous. The same cannot non suit the complainants. He
has relied upon judgments in the case of Samnuggur Jute Factory Col
Ltd. (N.M.) vs. Its Workmen, reported at 1982 LIC 1354, State of
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Haryana vs. Rattan Singh, reported at 1997 LIC 845, J.D. Jain vs.
Management, State Bank of India, reported at AIR 1982 SC 673 and
C.S. Vasava vs. A.M. Ustad & Ors., reported at 1993 III LLJ 431, to
substantiate his contention that technical rules of law of evidence are
not applicable in welfare jurisdiction and learned Member of
Industrial Court ought to have looked into Notification dated
27.07.1989. He, therefore, prays for allowing the complaint as filed.
5. The learned counsel for respondents No. 5 & 6 states that
complaint as filed was based upon documents at Exhs. 41 to 44 and
complainants in their cross examination have accepted that those
documents are not relevant for determining their service conditions.
He states that College of Respondents No. 5 & 6 was/ is unaided and
hence the Government Notification dated 27.07.1989 is not attracted.
In the absence of any statutory instrument prescribing the pay scales,
the view taken by Industrial Court needs to be maintained and writ
petition deserves to be dismissed. He states that settlement at Exh. 48
was reached between parties and it was only with a view to put an
end to pending labour disputes. Only the dispute in relation to bonus
was kept alive and left for determination in Court while all other
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disputes including dispute in relation to pay scale was amicably settled
between the parties. He invites attention to said settlement dated
18.01.1996 for that purpose. He has also pointed out that the
employees have worked on different posts between their date of entry
till 1993. In 1993, the employees were regularized on various posts
depending upon the post on which he was found working and the
regularization has been made retrospectively i.e. from the date on
which complainant/ employee started working on that post. He states
that these dates are different for different complainants and hence the
relief of pay scale cannot be given to them at this stage as demanded
as it will add to confusion and create complications. He further states
that necessary facts to prove unfair labour practice under item 6 are
not established and hence exercise of regularization undertaken by the
employer cannot be faulted with and interfered with by this Court for
the first time. According to him, there was no challenge to that
exercise even before Industrial Court.
6. The learned counsel points out that various judgments on
which reliance has been placed by the petitioner deal with only
departmental enquiries and are not applicable in present matter.
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Government Notification dated 27.07.1989 was not the basis of ULP
Complaint as filed and none of the witnesses for complainants
deposed about it. The said document was for the first time shown to
witness for management Shri Jain during his cross examination and
the witness stated that they had not received it. In this situation, he
has invited attention to the fact that learned Member of Industrial
Court has held said notification not relevant as it excludes employees
receiving consolidated salary, from its application. He argued that
had that notification been properly pleaded and pressed into service
before Industrial Court, respondents No. 5 & 6 would have cross
examined the witness of complainants in the light of that document
and could have also brought on record necessary evidence to show
that the said notification is not applicable.
7. He has invited attention to prayers in ULP Complaint to
urge that though in body of complaint, there is no material, certain
irrelevant or unnecessary declarations are sought for. According to
him, the challenge in present writ petition is circumscribed by the
relief sought before Industrial Court and, therefore, argues that the
alleged subsequent revision of pay scale or extension of benefit of 5th
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Pay revision is not the subject matter for adjudication before this
Court.
8. Ms. Tanna, learned counsel states that Respondent No.3 –
A.I.C.T.E. was not the party before Industrial Court and it has been
joined as party respondent for the first time in this writ petition. Shri
Thakre, learned counsel for respondent No. 2 – Nagpur University also
makes the same grievance. The learned AGP for respondent – State of
Maharashtra points out that State of Maharashtra was also not the
party before Industrial Court.
9. The perusal of complaint as filed by the petitioner along
with its members show that by first prayer therein, the declaration of
indulging in unfair labour practice under various items was sought.
Item No. 1 of Scheduled IV of MRTU Act deals with termination,
dismissal, discharge of employee and it is apparent that no case under
that item is even pleaded before Industrial Court. Item 5 of Schedule
IV contemplates two sets of employees and different treatment to
them regardless of merit. Again necessary facts in this respect are not
pleaded and there is no evidence on record to substantiate unfair
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labour practice. Schedule II of MRTU & PULP Act deals with unfair
labour practices by employer against Union and item 2 thereof deals
with employer dominating or interfering with or supporting any
union. Item 3 deals with employer establishing the sponsored unions.
Again the necessary pleadings and evidence in this respect have not
come on record. It is settled law that casual or loose drafting of such
Complaint by itself is not fatal. This Court has to, therefore, consider
whether any unfair labour practice under items 6 & 9 of Schedule IV
of that Act is made out or not. The positive direction sought against
the employer is to direct it to fix the wages of complainants 2 to 148
in appropriate pay scale applicable to the post held by them from the
date of their respective appointment and to pay them the arrears, if
any, after such retrospective fixation. The complaint with these reliefs
is filed sometime in the month of February 1995. The reply of
employer therein is filed on 09.06.1995.
10. The memo of complaint as filed admittedly does not refer
to the Government Resolution dated 27.07.1989. To show the
entitlement of complainants to pay scales and wage revision, reliance
has been placed in complaint only on four documents i.e. Exhs. 41 to
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44. The employer had disputed that entitlement. These documents
are considered by learned Member of Industrial Court in para 8 of its
judgment. The Industrial Court has found that said documents have
got no connection with establishment of Respondents No. 5 & 6 or
with service conditions of complainants. It has, therefore, refused to
rely upon those documents. These findings of learned Member of
Industrial Court are not in dispute before me.
11. The learned Member of Industrial Court has further found
that there was an agreement at Exh. 48 between parties and A.I.C.T.E.
pay scales have been implemented from 01.08.1995 insofar as the
complainants are concerned. In this back ground, it has made
reference to admissions given by some of the complainants wherein
they accepted that at the relevant time, they were drawing their salary
in correct pay scales. Because of this document at Exh. 48 and this
admission, it has found that the complainants were fixed at
appropriate pay scale and there was no unfair labour practice. This
application of mind can be gathered from para 9 of its judgment –
impugned order.
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12. The perusal of Exh. 48 shows that it is a memorandum of
settlement and its contents are not in dispute between the parties. As
per its clause (1), the demand for bonus was not acceptable to the
employer and parties were, therefore, given liberty to point out &
prove it in pending court matters. Clause (3) speaks of demand for
pay scale and it states that various pay scales were discussed between
the parties and ultimately, A.I.C.T.E. pay scales were accepted for
implementation by both the parties from 01.08.1995 only. Clause (4)
thereof speaks of necessity of maintaining peace and harmony in
College premises and employees, therefore, agreed to abstain from
commencing any strike or from staging demonstration or any kind of
agitation for their demands included in the Charter of Demands
submitted to employer. The said restriction was in force for a period
of three years from the date of signing of Exh. 48. Clause (5) thereof
stipulated that parties to agreement were at liberty to raise their
claims and demands or to defend the same by approaching the Court
of Law and the settlement between the parties was arrived at with
clear understanding that it was without prejudice to their legal rights.
Thus, the entire arrangement in this settlement show that it was
arrived at only provisionally to restore peace in the establishment and
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it did not bar adjudication by Competent Courts of various demands
included in charter of demand. It is apparent that the demand for pay
scale was one such demand and hence its adjudication before
Competent Court is not prohibited by Exh. 48. The learned Member
of Industrial Court has not appreciated this liberty & therefore, has
given undue importance to this document.
13.
The ULP Complaint No. 148 of 1995 filed by the petitioners
was already pending when Exh. 48 was signed between the parties.
The events, therefore, clearly show that consideration of any challenge
in that ULP Complaint is not eclipsed by Exh. 48. The learned
Member of Industrial Court, therefore, could not have refused to
decide the issue before him because of said document at Exh. 48.
14. The learned Member of Industrial Court has relied upon
admission given in cross examination which read “at present I am
getting correct pay-scale”. This evidence in which the admission is
given has been recorded between 1999 to 2002. Thus, because of this
admission, the grievance in complaint could not have been treated as
satisfied in any way by the learned Member of Industrial Court. It has
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not held that at the time when the complaint was filed, the witness
accepted that he was receiving his salary in correct pay-scale. It has
not recorded any such finding independently also. The dispute before
it warranted a finding that grievance about pay scale as made was
unsustainable because the employee was right from day one drawing
his salary in correct pay scale & its absence itself shows a jurisdictional
error.
15. The question arises, what is that correct pay scale. Exh. 48
speaks of A.I.C.T.E. pay scale but then it is apparent that the same
were adopted only on ad-hoc basis and without prejudice to rights and
contentions of parties about it. At this stage, before me, it is not in
dispute that though A.I.C.T.E. prescribed various pay scales, those pay
scales never came into force. Thus, nothing like A.I.C.T.E. pay scale
was in force at any point of time. As that was not the pay scale, then
an investigation into appropriate pay scale as per the service
conditions of employees in the light of various laws was essential. This
facet of the issue has not been gone into by the learned Member of
Industrial Court at all.
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16. The perusal of ULP Complaint as filed particularly its para
1 shows the grievance made and that grievance is non fixation of pay
scale of complainants 2 to 148 in accordance with rules and for not
giving pay scales under 4th Pay Commission which was applicable to
non teaching staff. The further paras give the details of said grievance
with dates of appointments and relevant pay scales. It is to be noted
that the pay scales applicable to the employees of Respondents No. 5
& 6 are determined not by Respondents No. 5 & 6 but by State of
Maharashtra. This position is not in dispute and witness Ajit Kumar
Jain examined by the management before the Industrial Court has in
his affidavit of examination-in-chief stated that service conditions of
non teaching employees working in College are governed by
provisions of Maharashtra Non Agricultural Universities and Affiliated
Colleges Standard Code (Conditions of Service of Non Teaching
Employees) Rules, 1984, (hereinafter referred to as Standard Code).
He has stated that the College is affiliated to Nagpur University and it
is also in receipt of statutory approval granted by A.I.C.T.E. on
20.09.1993. He has, therefore, deposed that the College and
management were bound by conditions of approval as prescribed by
A.I.C.T.E.. In para 3, he has stated that as per provisions of Rule 16 of
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Standard Code, the College is required to pay non teaching employees
“Time Scales” of pay including Special Pay as prescribed by the
Government and as may be revised by Government from time to time.
However, then he added that till date, the Government has not issued
any document including Government Resolution / circular/
communication/ order etc. prescribing any such time pay scales of pay
for non teaching staff working in “non aided Engineering Colleges”
affiliated to Nagpur University. He has further stated that
Government Resolutions dated 21.04.1990 (Exh. 41), 02.09.1989
(Exh. 42), 01.08.1989 (Exh. 43), 27.07.1989, 29.01.1990 and
15.01.1988 are not applicable to “non aided Engineering Colleges”
affiliated to Nagpur University. In cross examination, his attention
was invited to Government Resolution dated 04.07.1999 at Exh. 120
which has been issued in furtherance of Standard Code and extended
the benefits of 5th Wage Revision. The witness has stated that as his
College did not receive that Government Resolution, he was unable to
say anything about its contents or about its applicability.
17. In para 8 of his cross examination, he accepted that
Standard Code is applicable to Non-teaching staff and pay scales
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prescribed therein are applicable to employees from the date of their
appointment. He also accepted that complainants were initially
appointed on consolidated salary. He has also accepted that pay
scales are not prescribed by A.I.C.T.E.
18. The perusal of Notification dated 27.07.1989 about which
this witness has deposed in his examination-in-chief, shows that it has
been issued in exercise of powers conferred by Section 77-A of Nagpur
University Act to which Respondent No. 6 – College is affiliated. The
Notification is issued by Government of Maharashtra providing for
revised pay scales of non teaching employees of Non-Agricultural
Universities in Maharashtra State and all those in Affiliated Colleges
and Recognized institutions. The said notification is not applicable
only in cases of Colleges/ institutions maintained and managed by
State Government and Local authorities. It is not the case of
Respondents No. 5 & 6 that their college is maintained and managed
by State Government or any local authority. The effort is to show that
said Government Resolution is not applicable because their institution
or college is non aided Engineering College. The perusal of preamble
of Standard Code itself shows that it is for the employees of University
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and Affiliated Colleges and Recognized Institutions. Its clause 16
deals with scales of pay and it stipulates that employees are entitled to
receive their salary in the prescribed pay scale unless otherwise
directed. They are entitled to receive pay in the prescribed time scale
of pay by the Government as per clause 16(2) from the
commencement up to cessation of service in the University or College
under the same management in the Cadre. It is, therefore, apparent
that the time scale prescribed under Standard Code are applicable to
all non teaching employees unless it is shown that there is some
direction to the contrary. There is no direction to the contrary being
pressed into service of Respondents No. 5 & 6. They only bank upon
the fact that they are not receiving any grant in aid. The receipt of
grant in aid or its non receipt is not a criterion prescribed by Standard
Code for its applicability. Thus, witness for management and present
Respondents No. 5 & 6, therefore, have accepted that the Notification
dated 27.07.1989 issued by State Government in exercise of these
powers under Standard Code is applicable to it. The effort by them to
show that because it is unaided college, the same is not applicable, is
without any merit and cannot be countenanced. Provisions of S.
43(1)(l) of the Nagpur University Act, 1974 & S. 81(1)(f)
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Maharashtra Universities Act, 1994 providing for the terms and
conditions of affiliation & recognition are itself very clear and leave
no manner of doubt about applicability of said Clause 16(1) & (2) of
the Standard Code to complainants. Employer is statutorily obliged to
extend pay scales prescribed by the Government. Here an irrelevant
reason is being pressed in to service to avoid its implementation. This
failure to implement definitely attracts item 9 of Sch. IV of MRTU &
PULP Act.
19. The learned counsel for Respondents No. 5 & 6 has urged
that the complaint as filed nowhere specifically refers to this
notification dated 27.07.1989 and none of the complainants have
spoken about it during their evidence. As such, the management
could not cross examine any of the witnesses examined by
complainants in relation to this notification. However, this argument
is without any substance. Briefly I have already mentioned above
contents of para 1 of the complaint. The witness for management has
himself accepted the applicability of Standard Code and its relevance
in the matter and has tried to seek exclusion from it by contending
that College was not receiving any grant in aid. This material on
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record clearly shows that the argument of learned counsel for
respondents No. 5 & 6 is clearly by way of after thought. However, by
way of abundant precaution, I have called upon the learned counsel to
point out any other specific objection to said notification or then the
possible prejudice which has been occasioned to it and Respondents
No. 5 & 6 are not in a position to demonstrate it or also show any
other ground for seeking exemption from applicability of said
notification. Similarly, they are not in a position to point out any
prejudice whatsoever caused to them because of non reference thereto
by the complainants in their evidence. Respondents No. 5 & 6 are
having a College which is affiliated to Nagpur University and is
recognized by AICTE. They are aware of all relevant legislations and
its requirements or obligations undertaken thereunder. Even if the
complainants do not lead any evidence about the notification dated
27.07.1989 and relied upon it, respondents No. 5 & 6 cannot make
any grievance in the matter. If they have any other material with
them to show why that notification is not applicable, the burden was
upon them. They have attempted to discharge it by pointing out only
the circumstance of non receipt of grant. It is, therefore, clear that
Respondents No. 5 & 6 were also aware of relevance of Notification
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dated 27.07.1989 and hence in its chief, the witness for those
respondents has tried to point out why said notification is not
applicable in their case.
23/03/2010.
20. Respondent nos. 5 and 6 applied for affiliation and
therefore, were aware of all their statutory obligations and
requirement to extend the pay-scales to the employees as per Standard
Code. The burden was upon them to point out why the pay scales
prescribed by the State Government in accordance with the Standard
Code were not applicable and they have also attempted to discharge
it by giving irrelevant reason. Having failed therein, the stand in
defence that the said Government notification was not referred to by
any of the witnesses for complainant is clearly by way of an after
thought.
21. The 4 precedents mentioned above show that in
proceedings before the Tribunal under Industrial Disputes Act or then
in domestic enquiry or under Workmens’ Compensation Act, the
technical rules of evidence are not attracted. There can be no two
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opinions about said law but then these rulings are not relevant for
consideration of controversy before me.
22. The employer has attempted to show that pay scales were
extended to all employees after regularizing them and this fact is
accepted not only in Exh.48, but also in their evidence by the
employees. The provisions of Item 9 of Schedule IV of the M.R.T.U. &
P.U.L.P. Act require the implementation of proper service conditions
and petitioners / complainants are therefore entitled to pay scale
meant for them as per the government notification dated 27.7.1989 as
as per Standard Code because that is their service condition and grant
of any other pay scale to them cannot be the answer to their demand
and to unfair labour practice under Item 9 of Schedule IV. It is not
disputed that a challenge to wage revision granted by the Industrial
Court on 25.08.2007 vide its order in complaint ULP No. 720/2002
has been rejected by this Court on 31.07.2008 in Writ Petition No.
5560/2007. There the employee was given pay sale as per
government notification dated 04.02.1999. Said notification is for
period from 01.01.1996 onwards, while the notification (herein)
dated 27.07.1989 is for a period of 10 years prior to it. In view of
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this position, the admission by complainants that they are receiving
correct pay scales which has been recorded in their evidence after the
year 1999 is not decisive in any way. Those admissions do not mean
that the complainants had no grievance in relation to the pay scales
extended to them after regularization i.e after 1993.
23. The facts on record show that the establishment of
respondent nos. 5 and 6 was given necessary approval by the AICTE
in the year 1993. The complainants have also accepted that their
services have been regularized from different dates and those dates
are of the year 1989, 1990 etc., depending upon the date of their
entry into service. Different dates are given to different employees for
regularization. Thus the employer has after receipt of the approval,
regularized the services retrospectively and also vide Exh.48 extended
some pay scales understood as AICTE pay scales from 01.08.1995. In
this situation, burden to show that the employees were continued as
temporary for years together with a view to deprive them of their
status and benefits of permanency, was upon the petitioners /
complainants. The evidence on record does not disclose the mode
and manner in which each complainant entered the service or then
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about the availability of clear vacancy prior to 1993. There is no
challenge to the date of regularization given by employer. The
relevance of AICTE approval on 20/9/1993 qua said unfair labour
practice or impact thereof on item 6 of Sch. IV is not addressed to
either before the Industrial Court or before this Court. In this
situation, I find that the complainants/ petitioners have filed to
establish any unfair labour practice falling under Item 6 of Schedule
IV of the MRTU Act.
24. As already stated above, the entitlement of complainants
before the Industrial Court to pay scale was realized by the employer
and hence agreement at Exh.48 was reached between the parties on
18.01.1996. Pay scales as per the said agreement were made
applicable from 01.08.1995 and that has been done without prejudice
to the rights of both the parties. Thus the employer left the
complainants free to obtain appropriate relief in accordance with the
law in their pending ULP Complaint No. 148/1995. It appears that
when the parties negotiated settlement which culminated into
Exh.48, the issue of pay scales prescribed by the government and
clause 16 of the Standard Code was not discussed at all. Had it been
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so discussed, the petitioners would have definitely made a grudge
about it in its ULP complaint. The employer as also the employees
provisionally accepted AICTE pay scales as solution of their problem.
The employer has before the Industrial Court attempted to show that
the government notification dated 27.07.1989 is not applicable to its
establishment because it is un-aided college. This distinction has not
been proved to be relevant on record and statute does not permit any
such classification for the purpose of applicability of that government
notification. It is no doubt true that government notification stipulates
that it is not applicable to employees on consolidated rates of pay.
However, those consolidated rates of pay were applicable to
complainants till 1993 and admittedly were not applicable on
18.01.1996 when the agreement at Exh.48 was reached between the
parties. In fact it is a case of the employer that after receipt of
approval in the year 1993, services of employees were regularized.
25. At this stage, counsel for petitioner as also respondent 5 &6
attempted to point out to this Court that some of the complainants
were appointed directly as regular employees. It is obvious that
thereafter or after retrospective regularization the pay scales became
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applicable and hence the distinctive feature that they were employees
on consolidated rates of pay vanished & was therefore not available
before the Industrial Court. The government notification dated
27.07.1989 therefore, could & ought to have been extended to the
complainants / members of petitioner union by respondents no.5 and
6. In this situation, it is apparent that by not extending the pay scales
as per notification dated 27.07.1989, respondents no.5 and 6 have
violated service conditions of complainants & indulged in unfair
labour practice falling under Item 9 of Schedule IV of the MRTU &
PULP Act.
26. The discussion above shows that AICTE has granted
approval to the college of respondents no.5 and 6 in 1993. Petitioners
have failed to establish any unfair labour practice falling under item
no.6 of Schedule IV. The grievance made by them in relation to pay
scales was pending before the employer which ultimately resulted into
an agreement at Exh.48 on 18.01.1996. The pay scales known as
AICTE pay scales were then extended to all the employees by
respondent nos. 5 and 6 w.e.f. 01.08.1995. Even after gathering that
AICTE pay scales are not applicable and are not determinative, the
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employer has not taken any corrective measures in the matter though
at that time ULP complaint no.148/1995 was already pending. In
this situation, complainants before the Industrial “Court are held
entitled to arrears on account of wage revision/ pay scales if any from
the date of grant of approval by AICTE i.e. 20.09.1993. The relief of
grant of arrears from day one cannot be granted as no unfair labour
practice under item 6 is established by complainants/petitioner.
27. Writ Petition is thus partly allowed. It is declared that by
not extending pay scale to its employees [complainants before the
Industrial Court] as per the government notification dated
27.07.1989, respondent nos. 5 and 6 have indulged in unfair labour
practice falling under item no.9 of schedule IV. They are accordingly
directed to withdraw that unfair labour practice by extending the
relief of said pay scales to the complainants by fixing them in
appropriate pay scale as per post held by them from the date of their
regularization with arrears thereof payable only from the date of grant
of approval by AICTE i.e. from 20.09.1993. The arrears shall be paid
by respondent nos. 5 and 6 to the complainants in accordance with
the law within a period of 6 months from today.
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28. Rule accordingly. However, in the circumstances of the
case there shall be no order as to costs.
JUDGE
*******
*Rgd/GS.
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