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Judgment
R.V. Ghuge, J—Heard.
Rule.
By consent, Rule is made returnable forthwith and the petition is taken up for final disposal.
The award dated 31.12.1984 was delivered by Shri N.V. Dharurkar, Industrial Tribunal, Pune in Reference (IDA) No. 48 of 1981 in between the Mahatma Phule Agricultural University, Rahuri and the workmen employed by it. Demand Nos. 3 and 4 pertaining to the Dearness Allowance and the rate of wages to be paid to the Daily Wagers, is relevant to this case.
The workmen, who are party to the Reference proceedings had sought equal wages for equal work, as would be reasonable and fair to those workmen working on daily wages. The demand, therefore, was that an amount equivalent to 1/30th of the total amount of basic wages and dearness allowance being paid to the confirmed workmen in the same category or similar category, should be paid to the daily wagers on the principle of "Equal Wages - Equal Work."
The said demands were answered by the Tribunal, concluding in paragraph No. 18 of the award as under:
"(i) With effect from 1st February 1985, workmen of Party No. 1, working on daily wages, for whom the present dispute is raised, should be paid by Party No. 1, as daily wages, an amount equal to 1/30 of the amount of basic starting wages and dearness allowance, payable to a confirmed permanent workman of the same of (or) similar grade and category as his monthly wages. For the month of February month, that amount should be worked out by dividing the monthly wages (i.e. basic starting wage, in the wage-scale and dearness allowance) of a permanent workman of corresponding category by the total number of days for that month of February, in that year. Each workman, who has actually worked or who could be deemed to have worked for six days in a week should be paid the wages at the above rate, for that day, which would be the day of weekly off for that workman."
It is not in dispute that the respondent/University preferred a Writ Petition before this Court, challenging the award in Reference (IDA) No. 48 of 1981, dated 31.12.1984. The petition was dismissed by judgment dated 16.9.1997. The respondent/University, therefore, challenged the same in a bunch of Civil Appeals before the Honourable Supreme Court. By its judgment and order dated 24.7.2001, all the Civil Appeals were disposed off by making specific observations and by issuing certain directions to the University.
Shri Barde, learned Advocate contends that these directions having not been complied with by the University, prompted the petitioners to prefer Application (IDA) No. 4 of 2003 before the Labour Court under Section 33C(2) of the Industrial Disputes Act, 1947 making a claim for recovery of money due from an employer. By the impugned judgment and order dated 30.12.2011, the application has been rejected on the following grounds:-
(a) Dispute about termination of the applicants (petitioners herein) is pending adjudication.
(b) The award at issue is between the management and certain workers and is not applicable to all the daily wagers.
(c) Not a single applicant appeared in Court to lead evidence in support of the claim, whatever evidence has been adduced, is through the Union representative.
Shri Barde contends that,
(a) all these issues raised are unsustainable and vexatious since the petitioners/claimants were before the Labour Court,
(b) each of them has filed an affidavit in lieu of oral evidence,
(c) one of the claimants Gangadhar Shankar Dale (petitioner No. 1) was cross-examined by the University,
(d) no request was made by the University to cross-examine each of the claimants,
(e) the judgment of the Apex Court leaves no room for doubt that the award applies to all daily wage employees and
(f) directions issued by the Honourable Supreme Court to the University are not followed in letters and spirit.
Shri Bade Patil has strenuously opposed the petition. He submits that every claimant, who has filed an affidavit in lieu of oral evidence has to be cross-examined by the respondent unless a purshis is filed to indicate that the management would cross-examine only one claimant on behalf of all the employees. He submits that there is no such finding recorded by the Labour Court. He has, therefore, prayed for a remand of the proceedings so as to enable the University to cross-examine each of the claimants.
Shri Patil further submits that the claimants are those daily wagers, who have been terminated earlier and subsequently have been redeployed. The award would not cover them. The award has been implemented by the University by virtue of which, benefits to all the daily wager employees have been paid. The dispute of the petitioners against their termination, prior to their redeployment is a matter sub-judice before the competent Court. He, therefore, submits that this petition deserves to be dismissed with costs.
Shri Barde has indicated through a document, titled "Deposition of Witness" below Exhibit U-19, bearing Case No. Application (IDA) No. 4 of 2003. It is submitted that the said document is a copy of the certified copy of the cross-examination of petitioner No. 1 - original claimant. On the basis of the said document, Shri Barde points out from the impugned judgment, at paragraph No. 13, wherein the Labour Court has concluded that not a single claimant has remained present before the Court to lead evidence and the evidence is adduced by a Union Representative. He submits that this observation is a clear indication that the impugned judgment is delivered without even considering the oral and documentary evidence on record.
In the light of Exhibit U-19, it appears that the petitioner No. 1/claimant has been cross-examined on his examination-in-chief through an affidavit. If one of the claimants is cross-examined by the learned Advocate for the University on 19.11.2007, the erroneous conclusion drawn by the Labour Court in paragraph No. 13 leads to an inescapable conclusion that the Labour Court has not considered the oral evidence adduced before it. On this count alone, the impugned judgment deserves to be set aside.
The other facet of this case is highlighted through the submissions of the respondents that all the claimants were not cross-examined and the University desires to cross-examine each of the witness. I do not find any such request having been made before the Labour Court going by the impugned judgment. This request could have been made by the University before the Labour Court. Having not so done and since I find that the Labour Court has not considered the oral evidence, this is a fit case for remand, so as to enable the University to cross-examine all the claimants and thus enable the Labour Court to consider the oral and documentary evidence placed before it.
Since there are twelve claimants (Deoram Shankar Shende having passed away, through L. Rs.), ends of justice would be met by imposing costs of Rs. 5,000/- (Rs. Five Thousand only/-) to be paid by the respondent/University to each of the claimants before the Labour Court. It is made clear that the matter is being remanded to enable the University to cross examine all such claimants barring those who have passed away. In respect of the deceased claimants, their L. Rs. may adopt the evidence of the co-claimants or may choose to adduce evidence in their capacity as L. Rs. It needs to be noted that all the claimants have filed an identical affidavit in lieu of oral evidence. The only difference is in the amount claimed by them.
I, however, desire to settle the issue of the applicability of the award and the controversy as regards the pending cases of terminated daily wagers.
It is evident from paragraph No. 18(1) of the award that the same is the conclusion of the Tribunal in relation to Demand Nos. 3 and 4. The entire reading of the award would indicate that it is not restricted only to the extent of those employees, who may have raised an Industrial Dispute before the competent Labour authority.
This issue has been settled by the Apex Court in the judgment dated 24.7.2001. The Apex Court has noted that the award is made applicable to those workmen working on daily wages with the University. The Apex Court has cleared all doubts about the applicability of the award in its observations, reproduced herein below:-
"The Universities are now directed to forthwith work out the wages due to the workmen as per the Award dated 20th February, 1985 and to make the payments of those amounts.
As set out hereinabove, the Award was in respect of approximately 2,000 workmen. As regards the other remaining workmen (except for 127 workmen covered by the Award dated 1st April, 1985) who are not covered by the Award the principles of equal pay for equal work would apply. Neither Mr. Bobde nor Mr. Ashwini Kumar could dispute that as between daily wagers the principles of equal pay for equal work would apply. Therefore, the rest of the workers would also become entitled to payments and benefits as given under the Award dated 20th February, 1985 in (IT) No. 48 of 1981. There is no justification in the Universities in not making payments and giving those benefits to the remaining workers on the same basis. We, therefore, direct that the benefits of the Award dated 20th February, 1985 in (IT) No. 48 of 1981 be given even to the workmen who were not covered by the said Award (except the: 127 workmen covered by Award dt. 1st April 1985 in (IT) No. 27 of 1984). Even in respect of these workmen Universities shall forthwith work out the amounts payable and pay the same.
As we have been told that most of the workers have been retrenched we clarify that the Universities, may also have to now re-calculate and pay retrenchment compensation on the basis of the Order.
It was submitted by Mr. Bobde that the Universities have no funds to make payments. He submitted that it is the State Government who would have to make payment. The State Government is also present before this Court. There can be no justification in the State Government not making available the required funds. The argument that the financial burden would be too much is best met by the under-quoted observation of this Court in The Chandigarh Administration and Others Vs. Mrs. Rajni Vali and Others, AIR 2000 SC 634 : (2000) 1 JT 159 : (2000) 1 SCALE 101 : (2000) 2 SCC 42 : (2000) SCC(L&S) 247 : (2000) 1 SCR 158 : (2000) AIRSCW 153 : (2000) 1 Supreme 135 :
"The contention like the one raised by the appellants in this case that the Chandigarh Administration will find it difficult to bear the additional financial burden if the claim of Respondents 1 to 12 is accepted, raised in different cases of similar nature, has been rejected by the Supreme Court. The State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources. It is for the Administration to find out ways and means of Securing funds for the purpose."
These Universities are imparting education, For the purpose of the education it is necessary for them to maintain the agricultural fields and to carry on experiments. To maintain agricultural fields they required daily wagers. As the daily wagers were required the State Government cannot say that they would not pay the daily wagers what is due to them.
All the Civil Appeals stand disposed of with the above observations. There will be no order as to costs."
In the light of the above, the said award is held applicable to all daily wage employees, who are said to be in thousands and would also apply to such daily wage employees, who are not covered by the award, in the light of the observations of the Apex Court as set out "...The Universities are now directed to forthwith work out the wages due to the workmen as per the Award dated 20th February, 1985 and to make the payments of those amounts."
As such, I conclude that the award would be applicable to the claimants/petitioners in the light of the observations of the Apex Court as recorded herein above
In so far as the issue of pending cases against termination filed by the daily wagers is concerned, the University has re-deployed those terminated daily wagers, whose cases are pending before the competent Court. As such, they are working as temporary employees on daily wages. Even if they work for a single day, the principle/conclusion set out by the Apex Court as reproduced above, would apply to them and they would be entitled for wages @ 1/30th of the basic wages and dearness allowance payable to regular employees even for that single day worked.
In the light of the above, the impugned judgment and order dated 30.12.2011, delivered by the Labour Court in Application (IDA) No. 4 of 2013 is quashed and set aside. The matter is remitted to the Labour Court for enabling the University to cross-examine those claimants before the Court. The issue of applicability of the award to the claimants has been decided in this judgment and, therefore, is not open to the Labour Court for adjudication.
After the University concludes the cross-examination of the claimants, barring Gangadhar Shankar Dale and those who are deceased, it shall be at liberty to adduce additional evidence, if desired, and the Labour Court shall decide the claim of the claimants on its own merits. It is expected that Application (IDA) No. 4 of 2013, which was instituted in 2003 shall be decided expeditiously and preferably on/or before the 19.12.2015.
At this juncture, both the learned Advocates fairly state that they would appear before the Labour Court on 13.7.2015 so as to avoid wastage of time in issuance of fresh notices to the parties. Request is accepted and the litigating sides shall appear before the Labour Court on 13.7.2015.
Costs, as directed above, shall be deposited before the Labour Court on or before 1.8.2015, failing which the respondent University shall forfeit its right to cross-examine the claimants.
In the result, Writ Petition is partly allowed. Rule is, accordingly, made partly absolute.