V.S. Sirpurkar, J
1. Punjabrao Krishi Vidyapeeth (University for short) has challenged the order passed by the Industrial Court, Amravati, holding that the University has engaged in an unfair labour practice covered by item 6 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, and the consequential directions issued therein. In these directions, the learned Member of the Industrial Court has directed the respondent University to grant all the benefits and privileges admissible to the regular and permanent employees in so far as payment of wages, payment of dearness allowance and leave admissibility are concerned. The University is further directed to approach the Government with honest intention to persuade the Government to create permanent posts in which these employees can be absorbed. The learned Member has also further directed that they should be given the benefit of permanent employees from the date they complete five years of service and the standard date is settled from November, 1990.
2. A complaint came to be made by the Union called Krishi Vidyapeeth Kamgar Union from its General Secretary representing the case of its members who were the workmen. In its complaint, the complaint claimed that the complainant was a registered union and had a right to represent its members. It further claimed that the said Punjabrao Krishi Vidyapeeth had under its control number of institutions including an Agricultural School at Nimbo. The said school had about 175 acres of land and also owned cattle. It further claimed that in this school, there were more than 150 persons working as labourers and they were working since 1971. It is further contended that, in fact, the school had the work which could keep more than 150 labourers busy for the whole year. According to the complainant, the 18 members who were mentioned in the Schedule to the complaint were in continuous service and were working in all the three seasons, i.e. summer, winter and rainy season and they used do the work of looking after the cattle, watching the crops and also other agricultural operations. In para 6 it is claimed that whenever the said Union demanded that the workers should be made permanent, the University avoided the issue by answering that it was not within the power of the University and it was the sole discretion of the Government, it is then reiterated in para 7 that, in fact, the University was an independent institution and it could take the necessary decision. In para 8 it is contended that for years together, the labourers were continued as daily wages employees and in fact there was a need. In spite of the need the workers were being deprived of the benefit of permanency and the principle of 'equal work, equal pay' was being trampled by the institution. In para 9 (a), standard language is used and it is claimed that the applicants were deliberately deprived of the benefit of permanency and were made to work on meagre wages.
3. This application came to be opposed by the University. It denied the claim that the persons named in the Schedule were regular workers and that they were busy throughout the year. It also denied the capacity of the school to keep 150 workers busy for the whole year. It claimed that the workers were engaged as and when they were required subject to their availability of work and they were getting the wages as per the wage prescribed by the Government under the Minimum Wages Rules. It has been specifically replied by the University in para 6 that in fact, the factual position and the limitation of the management in bringing the workers on regular establishment has already been explained to the Union as well as the labour Union before the Conciliation Officer several times and that the Conciliation Officer has verified the position with reference to the records. It is further claimed that, in fact, there was neither a cause of action to the complaint nor was the complaint within limitation. It is specifically contended by the University in its written statement further that the University was a creation of the statute called 'Maharashtra Agricultural Universities (Krishi Vidyapeeth) Act, 1983' and under its provisions the University was not competent to create any posts unless the posts were sanctioned in budget estimate by the Maharashtra Council of Agricultural Education and Research, Pune which had to accommodate the expenditure of four Agricultural Universities in the State within the ceiling of the grants given by the Government. It was specifically contended that the power to create regular posts was not then at all available to the University. However, considering the minimum requirement of the additional staff on the regular establishment, the University had already submitted the necessary proposals for creation of the posts of Mazdoors / laborers to the Maharashtra Council of Agricultural Education and Research, Pune and the Government for sanction. It has been specifically stated thereafter that there were no posts as there were no vacancies in the regular cadre and there was no question of the University engaging in any kind of unfair labour practice. It is reiterated further that there was no grudge or any mala fide intention against the workers engaged on daily wages on day basis in the University and on receipt of the sanction for additional posts, the University would be in a position to accommodate some of the persons from daily wages on regular establishment subject to their seniority and suitability etc.
4. On the basis of this, evidence was led and after the evidence, the learned Member of the Industrial Court came to the conclusion that the University had engaged in an unfair labour practice within the definition of item 6 of Schedule IV. It is against this order passed by the Industrial Court that the present petition is directed.
5. Shri Patil, the learned counsel appearing for the University, has pointed out that, in fact, the order passed by the Industrial Court is totally against the provisions of law and the Industrial Court has committed a jurisdictional error in entertaining this application under the provisions of Schedule IV, Item 6 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. It is further the contention of Shri Patil, that, in fact, there was no question of University committing an unfair labour practice as the University itself had mooted out the proposal for creation of additional post with the Government and therefore, there was no question of any mala fide on the question of jurisdiction. He stated that the evidenced tendered by the complainant was short of spelling out any unfair labour practice on the part of the University and that even on merits, the whole order is patently illegal and without jurisdiction.
6. Shri Harkare, the learned counsel for the respondent, supported the order on various grounds and contended that the Industrial Court has found that the University has engaged in an unfair labour practice and this Court should not interfere with the order passed by the Industrial Court.
7. It will be worthwhile to first see the exact language of the said unfair labour practice which runs as under :
'Schedule IV, Item 6 :- To employ employee as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees.'
Plain, reading of this provision which provides the description of the unfair labour practice covered under Schedule IV would show that firstly it must be established that the employer has, in fact, employed as badlis, casuals or temporaries and has continued them as such for years together. Undoubtedly, the word 'years' would not connote year together but would connote a long period, sufficiently long so as to cast suspicion on the credibility of the employer. Secondly, such act of the employer in employing badlis, casuals or temporaries and then continuing them for years together should be with a specific object of depriving them of the status and privileges of permanent employees. One thing is, therefore, certain that merely because a particular organisation or a particular employee has employed workers as badlis, casuals or temporaries and has continued them for years together by itself would not being him into the clutches of the unfair labour practice described above. The object of the employer in employing the workers as such for years together should be to deprive them of the status and the benefits of permanency. Unless, therefore, there is a finding that the employer has deliberately kept on employing the workers with this object, the employer could not be held guilty of this unfair labour practice. Undoubtedly, the continued practice of employing the workers for years together as casuals or temporaries would tend to point out such an object being present in the mind of the employer but that by itself would fall short of bringing the action into the clutches of unfair labour practice as described, unless it is found, as a matter of fact, that the employer had a definite design to deprive the workers of their rightful wages and benefits. What then is the position of an employer who does not have the authority to employ such persons permanently owing to a provision of law Could it be said that an employer who is specifically prohibited from granting the status of permanently by creating posts is also covered under the language of Schedule IV, Entry 6
8. The answers to these questions will depend upon the true interpretation of this entry. Now, the plain language of entry No. 6 suggests that in continuing the employees as casuals or temporaries, there must be a definite object of depriving such workers of their rightful benefits. Then and then alone, this practice could be covered under the entry. How would that object be discerned is the question By mere showing that there has been a practice of continuing the employees in the manner as shown above, does the complainant discharge his burden The answer must be given in the negative. It is true that a continued practice of continuing the employee for years together as a badli employee or a temporary employee may definitely raise a finger of suspicion regarding the intention of that employee. However, in order to hold such employee guilty of such unfair labour practice as described in entry 6, something more is required. There must be 'tangible evidence' to show that this was deliberately done. The words 'with the object of' connote intention or mens rea on the part of employer, or a certain design in his mind to achieve certain results. Without that vital intention or that certain design, the employer cannot be dragged in. Unfortunately, the Industrial Court has missed this vital aspect in the matter.
9. On behalf of the complainant all that was reiterated was that some certain labourers were employed and this practice went on for years together and while the permanent employees were getting the pay at the rate of Rs. 1200/- or 1500/- a month, the daily employees were only paid at the rate of minimum wages. Now, it is also an admitted position that there are only two permanent posts in that particular school - of worker or mazdoors. Besides a single witness who merely reiterated the facts stated above, no other evidence was led by the complainant.
10. On behalf of the University came a Superintendent to depose and all that he stated was that the complainant gives employment only when the work is available and there were only two sanctioned posts of agricultural labourers. Besides a stray suggestion that the agricultural work was going continuously around the year which suggestion was promptly denied by the said witness. Nothing more was asked by way of cross-examination. Thus, such an important case suffers tremendously on account of apathy on the part of the respondent. There seems to be a chart which does not seem to have been proved by the evidence. However, a free use has been made of the Chart by the Industrial Court as also by both the counsel appearing in this Court. The Chart gives out the exact working days of the 18 persons and their seniority.
11. On this whole material, the Industrial Court has based its findings. It is really a matter of great concern that such an issue should have been decided in this casual fashion. There is absolutely no pleading nor any supporting evidence to reiterate the stand taken in the complaint. There is absolutely nothing to show that the University was continuing these employees as badlis, casuals or temporaries for years together and secondly that the University was doing this with the specific object of depriving them of their status and the privileges. The language speaks of a specific object. It does not merely indicate the result of the action of the employer. If the result of the action of the employer is of depriving employees of the status and privileges of permanent employees, that by itself does not bring the act within the ambit of entry 6. There has to be a definite object of that action, which has to be proved by evidence. Now the question is whether there was such an object on the part of the employer in this case and if so, was this object proved by cogent and tangible evidence. The Industrial Court has miserably failed to look into this issue. It is to be found that the University has specifically raised this question in its written statement and had pointed out that it was powerless to create any new employment and that in order to accommodate all the members of the complainant Union, first it had to create the permanent posts. It has also pointed out that under the Punjabrao Agricultural University (Krishi Vidyapeeth) Act, 1968, there was a specific prohibition to create any such employment unless sanctioned by the Government. My attention was drawn to the provisions of Punjabrao Agricultural University (Krishi Vidyapeeth) Act, 1968 and more particularly to section 50B which runs as under :
'50B. Without the prior approval of the State Government, or an officer authorised by it in this behalf, the University shall not -
(a) create any new posts of any officers and other employees, both in the teaching and non-teaching categories;
(b) revise the pay, allowances, post-retirement benefits and other benefits of any such officers and employees;
(c) grant any special pay, allowance or other extra remuneration of any description whatsoever, including exgratia payment or other benefits, having financial implications to any such officers or employees,
(d) divert earmarked funds for any other purpose, or
(e) incur any expenditure on any development work.'
12. A plain reading of this section shows that there is a complete embargo on the powers to University to create new posts - whether it be of a professor or a labourer, unless a specific sanction is obtained from the State Government in that behalf. Indeed, in its pleadings the University has specifically contended that considering the demands of labourers it had, in fact, written to the Government that such posts be created and had sought sanction of the Government in that behalf. Now, if the University was powerless to create the posts and thereby clothe the labourers with the status of permanency and if the University had, in fact, recommended such creation of the posts, could it be said that the University was continuing these employees as badlis, casuals or temporaries for years together with the object of depriving them of their status and privileges of permanent employees. The answer has to be in negative. The learned Member of the Industrial Court has completely missed this vital aspect of the matter. When any action is complained of under this entry, the Court will have to discern into the mind of the employer whether the action is deliberate or not. This is the vital and the key question which the Court will have to answer before it finds such employer guilty of any such unfair labour practice. Unfortunately, nothing has been done by the learned member of the Industrial Court here. This is how the learned Member of the Industrial Court deals with the question.
It does appear that the Government controls the financial status of the University. Also creation of regular employment without the approval of the Government is not possible for the authorities of the University as per the provisions of law. Nevertheless, the poor employees cannot be deprived of the benefits which the Labour legislation entitles them to claim. The labour legislation disapproves discontinuance of the daily wager on a job which is of a permanent nature. Therefore, the employees in this case shall be entitled to all the privileges of the permanent employees in their cadre.'
13. I am afraid, the treatment meted out is really shocking. The real import and the language of entry 6 in Schedule IV has been completely missed by the learned Member.
14. Shri Harkare, appearing on behalf of the respondent, drew my attention to various decisions reported in Daily Rated Casual Labour, P. &T. Department v. Union of India 1988 1 CLR 45, Bhulla Nath Yadav & Ors. v. Mayo Hall Sports Complex, Allahabad & Ors. 1980 II CLR 370, Voltas Ltd. v. M. M. Kendrekar : 1984(2)BomCR15 . The Ichalkaranji Co-op. Spinning Mills Ltd. v. Deccan Co-op. Soot Girni Kamgar Sangh & Ors. 1990 I CLR 220 and Maharashtra Small Scale Industries and Ors. v. The Industrial Court, Maharashtra, Nagpur & Ors. 1990 I CLR 711. In none of these cases the situation as occurring in the present case is available. In all those cases, the employers were in a position to create employment and yet though it was within their powers to create an employment and to grant the benefits of permanency to the employees, they have failed to do so. In all these cases, the rights of the employees who were continuously employed as daily wagers or badlis or casual labourers for years together, have been recognised in their favour inasmuch as it is said time and again that such employees would get the benefit of permanency. There cannot be any dispute with this proposition.. Indeed, the workers who are so treated to be the casual workers for years together have, undoubtedly, the right to be appointed permanently, of course, subject to the availability of the posts, funds etc. There cannot be any dispute on this proposition. However, such is not the situation here. The reported decisions in : 1984(2)BomCR15 (supra) are not under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. They are under the provisions of Article 14 of the Constitution of India or under the Industrial Disputes Act. Therefore, the said cases are totally irrelevant for the purposes of the present controversy, though the cases reported in Ichalkaranji Co-op. Spinning Mills Ltd. and Maharashtra Small Scale Industries & Ors. (supra) are on Schedule IV, Item 6. There the employers had undoubtedly a right to create the posts or to grant the benefit of permanency on the casual labourers. In both the cases there is a finding of fact arrived at whereby the object of the employer was found to be suspicious within the language of entry 6.
15. Lastly, Shri Harkare, the learned counsel for the respondent, relied on the reported decision of Chief Officer, Sangli Municipal Council v. Dharamsing Hiralal Nagarkar 1991 II CLR 4. Shri Harkare, the learned counsel for the respondent, strenuously relied on the observations made by this Court in the said decision. In para 5 it is observed :
'Mr. Jamdar further submitted that the intention of the petitioner-Council was not to deprive the respondent-workman of his status and privileges of permanent employee but he could not be made permanent in view of the fact that the petitioner-Council could only appoint a person recommended by State Selection Board. There is no substance in this argument of Mr. Jamdar for the simple reason that the State Selection Board was a source for appointing a fresh candidate and in the matter of a person already appointed, it would not be difficult for the petitioner-Council to make him permanent. For the purpose of making a workman permanent the petitioner-Council had not to consult the State Selection Board. Under the circumstances, I find it difficult to persuade myself to agree with the submission of Mr. Jamdar that the petitioner-Council did not commit unfair labour practice covered by item 6 of Schedule IV of the MRTU and PULP Act.'
Shri Harkare submits with reference to this observation that in the reported decision the Municipal Council of Sangli did not have the authority to appoint the petitioner permanently and therefore, it had discontinued the services of the petitioner which is a similarity in the reported decision and in the present case. There also the Municipal Council was bound to accept only a candidate selected by the Selection Board and yet the Municipal Council was held to have committed an unfair labour practice within the meaning of Schedule IV, item 6. The submission, though attractive, lacks the necessary logic. The observation in a particular reported decision cannot be read shorn of its background and must be read in the background of the facts of the case itself. Immediately after the aforementioned observation the Court makes the further observation as under :
'But assuming for the sake of argument that there is substance in the submission of Mr. Jamdar and that the petitioner-Council did not commit unfair labour practice covered by item 6 of the Schedule IV of the MRTU and PULP Act, it would not carry the petitioner-Council's case further because there is no defence available to the petitioner-Council for an allegation that they indulged in an act of unfair labour practice covered by item 9 of Schedule IV of the MRTU and PULP Act. As per item 9 it would be general unfair labour practice on the part of an employer to fail to implement award, settlement or agreement. The record shows that as per the provisions of an Award made in Reference (IT) No. 102 of 1955 the respondent-workman had to be made permanent. '
The observation and the language used, particularly in para 6, is really talling. Be that as it may, even the facts in Sangli Municipal Council v. Dharamsing (supra) were entirely different. This was a case where the posts were, undoubtedly, available. Since the persons selected by the Service Board were not available, the petitioner was employed and continued. It is in that context, really speaking, that the observations are made in para 5. In the present case, however, such posts are not available at all.
16. Again, in the reported decision, the available posts were to be filed in and the Municipality has failed to fill in the available posts for considerable time of 15 months. Such is not the situation in the present case. In fact, there are no posts available and there is specific bar to create any such new post. This distinction itself is sufficient to discard the contention of Shri Harkare.
17. Again, present is not a case where any workman is either discontinued or terminated as was the case in Sangli Municipal Council v. Dharamsing (supra). Here is a situation where the University has continued to employ the workmen and has also shown its bona fides by writing to the State Government for a creation of additional posts so that it is able to clothe the workmen with the status of permanent employees. Indeed, the facts in two cases are different on this aspect also.
18. The third aspect on which the reported case differs from the situation in the present case is that there was no statutory bar in the Sangli Municipal Council's case to create any new post. Under the circumstances, the reliance placed by Mr. Harkare on this reported decision must fail.
19. In view of the discussion above, it is clear that the complaint made under the provisions of section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 could not be granted as has been done by the Member. Industrial Court, Amravati. This is, however, not to bring a permanent cloud on the rights of the workers so as to deprive them permanently from any benefit which they are entitled to, under the provisions of any other enactment. The observations made in this case will have to be read strictly in terms of the facts stated in this case.
20. With the observation, the petitioner is allowed. The impugned order is set aside and the Rule is made absolute. However, without any order as to costs.