R.M.S. Khandeparkar, J.
1. Heard the advocates for the parties. Perused the records.
2. Whether the Clause No. 49 of 1956 settlement stands replaced by Clause No. 19 of 1985 settlement and by Resolution No. 8856 of the appellant Corporation, or whether the Clause No. 49 of 1956 settlement operates in the field totally different from the one in which Clause 19 of the 1985 settlement operates, are the common questions of law which arise for consideration in all these Letters Patent Appeals and on account of difference of opinion between two Benches of this Court on the said points, the matter had been ordered to be heard finally and decided by the Full Bench and that is how, all these matters were heard by this Bench, and are being disposed of by this judgment.
3. The appellant Corporation is the State undertaking and the respondents are the employees of the said Corporation. Apart from State Transport Employees Service Regulations framed Under Section 45 of the Road Transport Corporation Act, 1950, the service conditions of the respondents/ employees are also regulated by the settlements signed between the Corporation and various Unions representing the employees of the Corporation. One such settlement was arrived at on April 25, 1956 of which Clause No. 49 which is the subject matter of the dispute in the present proceedings, formed the important Clause of the said settlement in relation to the service conditions of the employees and more particularly of daily wage earners. Even after 1956, various settlements were arrived at between the Corporation and its employees and two of the settlements were arrived at in the years 1968 and 1985 which included Clause No. 9 and No. 19 respectively which are sought to be relied upon by the appellant to contend that the same along with the Resolution No. 8856 have replaced Clause No. 49 of 1956 settlement.
4. It is the contention of the Corporation that the Clause No. 49 of 1956 Settlement was cancelled and revised in the Joint Committee Meeting held on April 15, 1978 and the Joint Committee was empowered to do so by virtue of Clause No. 9 of 1968 settlement and thereafter the Corporation in its meeting held on August 31, 1978 passed a Resolution No. 8856 by which the persons in employment of daily wages as on July 31, 1978 and those who were to be employed on daily wages thereafter, in case they were to complete aggregate service of 180 days in one financial year commencing from April 1, 1973 onwards were to be appointed temporarily in ephemeral vacancies in time scale of pay as from July 31, 1978 or thereafter and that such an arrangement was to be effective from July 31, 1978 onwards. It is their further case that in the year 1985, new settlement was reached resolving for absorption of daily rated workmen after completion of 180 days continuous service and that is why Clause No. 19 was included in the said settlement. In short, the resolution of 1978 and Clause No. 19 of 1985 settlement modified and replaced Clause 49 of 1956 settlement in relation to the service conditions of daily wage employees of the Corporation. The contented of the appellant is seriously disputed and denied by the respondents contending that if the plea of the appellant is accepted it would virtually amount to denial of right of getting time scale to the respondents which is otherwise being enjoyed by other employees who are doing identical work. It has been strenuously argued on behalf of the respondents that Clause 49 of 1956 settlement has not been modified or altered or replaced by any of the Clauses of any subsequent settlement including Clause 19 of 1985 settlement. It is also submitted on behalf of the respondent that Joint Committee was not authorized to deal with the financial matters relating to the service conditions of the respondents and, therefore, no resolution of the Joint Committee could replace Clause 49 of 1956 settlement.
5. The second ground of challenge relates to bar of limitation in the matter of complaints filed by the respondents in the Industrial Court. The contention of the petitioner is that admittedly the ephemeral time scale was granted to the respondents, but it was prior to three years preceding filing of the complaints by the respondents in the Industrial Court. The cause of action for filing the complaints had arisen much prior to three years of filing of the complaints by the respondents, and therefore, they were hopelessly barred by law of Limitation and, therefore, in the absence of any sufficient cause for condonation of delay being shown, the Industrial Court could not have entertained the said complaints. It is also sought to be contended that it was not a case of recurring cause of action and in that regard reliance is sought to be placed in the decisions in the matter of Balakrishna Savalram Pujari Wagkmare and Ors. v. Shree Dhyaneshwar Maharaj Sansthan and Ors. reported in : AIR1959SC798 , Bai Manchha wd/o Nathubhai Bhagwanji and Ors. v. Sardar Sajjadanashin Saiyad Mohamad Baker-el-Edrus reported in : AIR1963Guj168 , Textile Labour Association Ahmedabad v. Ashok Mills Ltd. Ahmedabad reported in 1977 LIC 179 : : (1978)ILLJ235Guj , Regional Manager, Maharashtra State Road Transport Corporation, Nagpur, and Anr. v. Regional Secretary, Maharashtra State Road Transport Kamgar Sanghatana, Karanja reported in 1984 LIC 1721 and Maharashtra State Road Transport Corporation, Bombay and Ors. v. Maharashtra Motor Kamgar Federation, Nagpur and Anr. reported in 1986 LIC 253. On the other hand, it is sought to be contended that the injury which is caused to the respondent on account of denial of time scale in terms of Clause 49 of 1956 settlement continues to be inflicted every month and, therefore, that is a continuing cause of action, besides contending that the deprivation of payment of money in the form of salary or wages without due authority of law would virtually amount to infringement of Art. 300-A of the Constitution of India and, therefore, the petitioners cannot be heard in contending that the complaints were barred by law of limitation.
6. Before considering the rival contentions, it would be worthwhile to take stock of the relevant Clauses of the settlements as well as the resolution referred to above. They are:-
(A) Clause 49 of 1956 Settlement reads thus:-
'All employees working for 180 days including weekly offs 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 for the above purpose and will not also count for service.' (B) Clause 80 of the said 1956 settlement reads thus:
'A Joint Committee should be constituted for enforcing the settlement and for removing grievances of workers. It should also ensure proper implementation of all terms of the agreements, settlements and decisions of the Joint Committee and also see that no party does anything prejudicial to the rights and privileges of the S.T. Corporation employees. The Implementation Committee referred to in demand No. 1(b) shall comprise of three persons nominated by the Corporation and three persons nominated by the S.T. Workers Federation.' (C) The Resolution No. 8856 which is stated to have been approved by the Corporation on August 31, 1978 reads thus: -
'(i) The present Clause No.49 in the settlement dated April 25, 1956 stand cancelled.
(ii) The persons in employment casually or daily wages as on August 31, 1978 and those who may be employed on daily wages thereafter if they have already completed or will complete an aggregate service of 180 days in one financial year commencing from April 1, 1973 who hereinafter be appointed temporarily in ephemeral vacancies in time scale of pay as from July 31, 1978 or thereafter.
(iii) This provision is not operative with retrospective effect but will have only prospective effect from July 31, 1978 on wards.'
(D) Clause 19of 1985 settlement reads thus:
'19 Absorption of Daily Rated Workmen after completed service of 180 days:
(i) The absorption of such workmen will be made as at present i.e. subject io their selection at least once by the 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 workman 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 divisions and the cases of examination will be put up to the Corporation Board for its directives.
(E) Clause 9 of 1968 settlement reads thus:
'9: Reconstitution of Joint Committee: The meeting of the Joint Committee should be held once every month provided there is agenda. The Vice Chairman of the Corporation should be the Chairman of the Joint Committee and the Secretary should -be a worker. All matters affecting the employees will fall within the scope of the working of the Joint Committee. The decision of the Joint Committee should be binding on both the parties subject to Corporation and/or Government approval where required. In case there is no decision for any reason or any issue, the same will be decided by the Corporation. The Corporation shall, however, before deciding such issues give an opportunity to the representatives of all the four recognized Unions (one each) to be heard.
This arrangement is in supersession of the earlier arrangements concerning the constitution and scope of functions of the Joint Committee.'
7. At this stage, it will be also appropriate to glance through the decisions of Division: Benches as well as those by the learned single Judges of this Court in relation to the subject matter or connected therewith.
8. In an unreported decision dated November 20, 1985 in the matter of Maharashtra Stale Road Transport Corporation v. Pandurang Ramaji Tamgadge in Writ Petition No. 436 of 1982 the learned single Judge (Shri H.D. pATEL, J.) while considering the scope of powers of the Joint Committee pursuant to Clause 9 in respect of functions and powers of such Joint Committee in 1968 settlement held that 'the functions of the Joint Committee cannot bring about alterations, modifications or changes in the settled conditions of service of an employee and no right can accrue to the petitioner-Corporation to unilaterally cancel Item No. 49, in the absence of any consensus on the point, in the meeting held for the purpose.'
9. Another learned single Judge (Shri R. S. pADHYE, J.) in another unreported decision in the matter of Maharashtra State Road Transport Corporation and others Vitthal Shrawan Sarkate in Writ Petition No. 255 of 1982 along with some other writ petitions, judgment being delivered on March 1/2, 1982 held that 'since new Joint Committee was constituted, it naturally became necessary to define the scope of the functions of this new Joint Committee and its jurisdiction and effect of its decisions. Therefore, it was firstly provided that all matters affecting the employee will fall within the scope of the working of the Joint Committee. It was then provided that the decisions of the Joint Committee would be binding on both the parties subject of course to approval of the Corporation or the Government whenever so required under the Rules. Thirdly it was provided that in cases in which no decision for any reason on any issue could be reached, it would be for the Corporation to take a decision with a proviso added by providing that while deciding such issues, the Corporation should give an opportunity to the representatives of all the four recognized unions of being heard. The end portion of the settlement is also material and it provides 'this arrangement is in supersession of the earlier arrangement concerning constitution and scope of functions of the Joint Committee.' U-5 settlement of 1961 entrusted the Joint Committee with consideration of the question of making the appointing authority as punishing authority in default cases and modification in discipline and appeal procedure, while the scope of the newly formed Joint Committee was widened by providing that all matters affecting the employees would fall within the scope of the working of the Joint Committee.
10. In the matter of Maharashtra State Road Transport Corporation v. Mohd. Fasahatullah Khan in Writ Petition No. 1240/1987, when it came before the learned single Judge (M.S. DESHPANDB, J.) on September 17, 1992, taking note of difference of opinion between the two learned single Judges in two different matters referred to above, found it appropriate that the controversy should be resolved by referring the matter to the larger Bench and, therefore, the matter was directed to be placed before the Hon'ble Chief Justice for reference to a Division Bench.
11. Consequently by an order of the Hon'ble the Chief Justice, the Writ Petition No. 1240/1987 was placed before the Division Bench comprising of Shri M.B. Ghodeswar and Shri B.H. MARLAPALLH JJ. and by its judgment dated October 21, 1997 reported in 1998 1 C.L.R. 51, it was held that by incorporating Clause 9 in settlement of 1968 all the earlier arrangements concerning the constitution and scope of functions of Joint Committee were superseded and scope of working of the Joint Committee was in pan materia with the provisions contained in 1961 settlement. However, representation of the workers of the Joint Committee was changed in view of recognition of four unions at the State level. The Division Bench took note of the following extract from the preamble of 1968 settlement:
'During the deliberations of the third meeting of the Negotiating Committee held on March 6/7/8, 1968, it was unanimously decided that in view of the inordinate delay which lengthy discussions on all the 64 demands would entail, there should be a package deal covering the four major demands, viz. (1) revision of scales of pay, (2) linking of Dearness Allowance with the Cost of Living Index, (3) increase in existing allowances and grant of new allowances, and (4) arbitration in disputes relating to Bonus calculations. It was further decided that the remaining demands be dealt with by the Joint Committee already set up and functioning.'
Considering the above quoted preamble of 1968 settlement, it was held by the Division Bench that it goes to show that it was agreed between the parties that the charter of demands was divided into two parts, namely, monetary demands and non-monetary demands and it was further decided between the parties that monetary demands will be settled separately, which were actually discussed and settled in the first two meetings of the Negotiating Committee and the non-monetary demands were to be discussed and settled by the Joint Committee. It was in this view of the agreement between the parties that Clause 9 was incorporated in the settlement reconstituting the Joint Committee while specifically setting out the subjects under its purview.
12. Meanwhile another case was disposed of in the matter of Ashok Gangadhar Tayade and Ors. v. Maharashtra State Road Transport Corporation and Anr. on August 21, 1997 reported in 1997 I LLJ 1189 by the Division Bench (Shri V.S. SIRPURKAR and B.H. MARLAPALLE, JJ.) holding that 'Clause 49 of the 1956 settlement regarding absorption in regular service of Corporation on completion of 180 days of continuous service has been reviewed and replaced by Clause 19 of the 1985 settlement, which Clause has been reproduced hereinabove. The petitioners, therefore, cannot invoke Clause 49 of 1956 settlement and their challenge to the Five Clauses of 1989 settlement, as reproduced hereinabove, based on Clause 49 of 1956 settlement is, therefore, invalid. As far as the petitioners are concerned, their absorption in temporary time scale or regular time scale is covered by Clause 19 of 1985 settlement and they cannot rely upon any earlier settlement signed between the Corporation and the Unions. 'This ruling was given after observing that the controversy regarding the modification of Clause 49 of 1956 settlement either in 1978 or by way of settlement of 1961 and 1968 is not relevant in the present context inasmuch as the petitioners have been employed by Corporation only from January 1, 1986 onwards and the settlement of 1985 covers their service conditions.'
13. The respondents herein contending that they had been employed for number of years, some of them being employed since 1988, few others being from 1978 and some from 1978 and so on, and the Corporation was seeking to deny their right to get time scale of pay even though similar facility and similar arrangement was available in relation to other employees who were doing identical work, filed complaints before the Industrial Court and after hearing both the parties, the Industrial Court by its orders directed the petitioner Corporation to withdraw unfair labour practice and to fix the pay of the respondent in the time scale as per the provisions of Clause 49 of the settlement of the 1956 with effect from the year immediately following the financial year in which the respective respondents had completed continuous 180 days of working as per the requirement of the said Clause 49, though the monetary benefit due and payable to the respondents consequent to grant of such time scale should be paid with effect from the date of complaints. Being aggrieved, the petitioners preferred writ petitions which came to be disposed of by the impugned judgment by the learned single Judge Shri F.I. REBELLO, J. in Writ Petition Nos. 2691/1996, 2104/1997, 2795/1997, 2310/1996, 2515/1996, 2797/1997, 2796/1997, 2520/1996, 2385/1997, 2487/1996, 1460/1997, 1656/1997, 1594/1997, 2486/1996, 1585/1997, 2519/1996, 25/1997 (sic), 1467/1997, 1457/1997, 2707/1996, and 2514/1996 and Shri J.N. PATEL, J. in W.P. No. 3173/1993 and Shri A.A. DESAI, J. in W.P. No. 1624/1996. The learned single Judges have held that it is clear from the reading of the preamble and Clause 9 of 1968 settlement that for the first time instead of merely referring the disputes pertaining to the implementation of settlement, the parties agreed that the demands raised in the year 1968 would be divided into two categories and that the financial demands were decided and the remaining demands were agreed to be referred to the Joint Committee. It was further held that it was in that context that the Division Bench had held that the Joint Committee had jurisdiction to decide the issue pertaining to the non-financial matters and there should be no escape from the said conclusion as in the settlement itself it was provided that matters not covered by the settlement of 1968 would be decided by the Joint Committee and that subsequent to the said settlement, there had been other settlements, a Clause like Clause 9 was absent. Considering all these things, it was held that 'in the context of that demand pertaining to pay scale is definitely a demand pertaining to financial matter and even assuming that Joint Committee could have gone into this issue, clearly this was a demand pertaining to financial matter, it could not have been decided by the Joint Committee.' It was finally held that 'it has also been contended that pursuant to the settlement of 1985, Clause 49 of settlement of 1956 ceases to apply to the employees. That argument has to be rejected on the threshold. Clause 49 of settlement of 1956 speaks about giving a time scale to the workmen on completion of 180 days. The settlement of 1985 on the other hand provides for regularisation in service of such workmen. The said two Clauses are, therefore, distinct.'
14. Being aggrieved with the decision of the learned single Judge, the appellants have preferred the present appeals. When the Appeal No. 108/1999 came up for hearing on admission before the Division Bench (Shri B.P. SINGH, C. J. and Shri A. B. PALKAR, J.) after taking note of Clause 49 of 1956 settlement as well as Clause 19 of 1985 settlement and the decision passed by the Division Bench as well as by learned single Judge, it was observed that 'prima facie' it appears to us that while the settlement of 1956 particularly, Clause 49 thereof deals with the grant of time scale to employees engaged as daily wager, the settlement of 1985 deals with absorption of such daily waged employees. These are two different subjects. Since there is a vital distinction between daily waged employee and a regular employee. The fact that they may be given benefit of the same time scale, prima facie, appears to be immaterial in the present case.' After considering the judgment of the Division Bench in Maharashtra State Road Transport Corporation and Anr. v. Durgadas Ramlal Rane 's case, it was observed that 'We, therefore, feel that the aforesaid judgment of this Court may require to be reconsidered, even though it is possible to take a view that it is per incuriam'. In this background, the present appeals are placed before this Full Bench for the final disposal thereof.
15. The first point for consideration therefore is whether Clause 19 of 1985 settlement replaces Clause 49 of 1956 settlement. Undoubtedly the Division Bench in Ashok Gangadhar Tayade's case (supra) as already observed above, has held that Clause 49 of 1956 settlement has been reviewed and replaced by Clause 19 of 1985 settlement. However, the perusal of para 12 of the judgment of the Division Bench in that regard, wherein the said finding has been arrived at, would disclose that the Division Bench has arrived at the said finding has arrived at the said conclusion solely on the basis of the contention of the Corporation that as a result of three settlements viz. 1985, 1989 and 1994, the employees of the Corporation have been fixed in the temporary time scale, regular time scale and their pay has been revised upwards each time and that, therefore, they have not been put to disadvantage financially and no other aspect was considered. While accepting the contention of the corporation as above and placing reliance upon the annexures to the petitions disclosing some benefits had been granted to the employees in the matter of revision of pay, the Division Bench concluded that Clause 49 stands replaced by Clause 19. However, while deciding this issue, one cannot overlook the basic difference between the concept which was sought to be introduced by Clause 49 of 1956 Settlement and the one which was introduced by way of Clause 19 of 1985 Settlement. The former related to grant of time scale of pay and all the benefits available to the time scale workers to those who had completed 180 days continuously including weekly offs and other holidays, while the fatter referred to the issue of absorption of daily rated workmen on completion of 180 days of continuous service. Needless to say that these are two totally different concepts relating to the mode of employment. In the absence of a specific Clause in the 1985 settlement disclosing a clear understanding on the part of the parties to settlement to replace Clause 49 of 1956 settlement by Clause 19 of 1985 settlement, there could be no justification to agree and accept the contention in that regard sought to be advanced on behalf of the appellants. Undisputably apart from mere arguments in that regard, no material either in the form of any document or other wise in support thereof had been placed on record at any point of time by the appellants. To the specific query by the Court to the learned advocate for the appellant in the course of arguments as to whether there has been any document in the records of the Corporation, pertaining to the period prior to 1978, disclosing absorption of daily rated workmen in the permanent service of the Corporation based on Clause 49 of 1956 settlement, the learned advocate candidly admitted that the Corporation does not have any such document nor any evidence in that regard was produced before the Industrial Court or before the learned single Judge. Apparently the contention about Clause 49 of 1956 settlement being related to absorption of the daily rated workmen in the permanent service of the Corporation, is purely after-thought and that neither was there (sic) the settlement nor was there (sic) understanding between the parties at any point of time in relation to Clause 49 of 1956 settlement. Clause 19 of 1985 settlement on the face of it nowhere states about the same being in place of or in super cession of the Clause 49 of 1956 settlement, nor it gives any indication of any such understanding on the part of the parties that by the said Clause 19 in 1985 settlement they had agreed for replacement of Clause 49 of 1956 settlement. Being so, the contention of the appellant that Clause 19 of 1985 settlement replaces the Clause 49 of 1956 settlement was rightly rejected by the learned single Judges and we have no hesitation in agreeing with the said view taken by the learned single Judges in the matter.
16. As regards the Resolution No. 8856 of the Corporation and the one preceded by it that of Joint Committee in relation to cancellation of Clause 49 of 1956 settlement, it is to be noted that the Division Bench in Mohammad Fasahatullah Khan's case, as already observed above, had held that the settlement of 1968 discloses that the parties had agreed for division of charter of demands into two parts, namely, monetary demands and non-monetary demands and while the monetary demands were discussed and referred in the settlement, the non-monetary demands were' left for discussion and settlement by the Joint Committee. The said view has been clearly reiterated by learned single Judge in the impugned judgment and has further explained that the preamble and the Clause 9 of the settlement clearly reveals that as there were altogether 64 demands, it was seen that it would take a longer time and as such there ought to be a package deal covering the four major demands which are relating to financial matters and remaining demands were referred to the Joint Committee which had jurisdiction to decide the issue pertaining to non-financial matters and that the issue pertaining to the demand relating to the time scale of pay being a demand pertaining to financial matters, it was not permissible for the Joint Committee to decide about the same. In fact the detail discussion on this aspect by the learned single. Judge coupled with the one by the Division Bench in Mohammad Fasahatullah Khan's case, does not warrant any further adjudication on the said issue. Suffice to say that we are in respectful agreement with the Division Bench as well as the learned single Judge in that regard. Indeed proper reading of Clause 9 and the preamble of the said settlement clearly reveals that out of 64 demands, four demands pertaining to the revision of pay scale, linking of Dearness Allowance with the cost of living index, increase in existing allowance and grant of new allowance and arbitration in disputes relating to bonus calculations were excluded from being left out for the decision by the Joint. Committee and this apparently discloses that the Joint Committee was not authorized to deal with any financial matters as such and certainly not in relation to changes in the service conditions which were stipulated under Clause 49 of 1956 settlement.
17. Much ado is made about the expression 'all matters affecting employees will fall within the scope of the working of the Joint Committee' and 'this arrangement is in supersession of the earlier arrangements concerning the constitution and scope of functions of the Joint Committee' in Clause 9 of 1968 settlement, viz., while comparing the same with Clause 80 of 1956 settlement. It is sought to be contended that while Clause 80 of 1956 settlement empowered Joint Committee to enforce settlement and to remove the grievances of the workers by ensuring proper implementation of all the terms of the settlement and the decision of the Joint Committee, Clause 9 of the 1968 settlement empowered the Joint Committee to deal with all the matters affecting the employees and the said Clause was in supersession of the earlier arrangements concerning the constitution and scope of functions of the Joint Committee. We are afraid, the petitioners are totally overlooking the differentiation made by themselves between financial and non-financial matters, while entering into settlement with the employees in 1968 and thereby leaving only non-financial matters for the decision by the Joint Committee while excluding the financial matters for discussion and decision by way of settlement. Besides, the expression 'this arrangement is in supersession of the earlier arrangements concerning the constitution and scope of functions of the Joint Committee' has to be understood in the context in which Clause 9 came to be recorded in the settlement. Clause 9 was on account of the new situation that was created as a result of recognition of the four Unions at State level and for empowering the Committee to deal with certain non-financial matters out of 64 demands. It was found necessary to revise the constitution of Joint Committee because of such recognition granted to four Unions at the State level. Consequently the Joint Committee was required to consist of the representatives of all the four Unions and, therefore, Clause 9 was recorded in the Statute and in that context it was stated that the arrangement was in supersession of the earlier arrangement. The expression 'all matters affecting the employees' related to the scope of the working of the Joint Committee in relation to the non-financial matters pertaining to 64 demands and cannot be interpreted to mean that it had empowered the Joint Committee to deal with all matters relating to the service conditions of the employees including the financial matters. The expression 'affecting the employees' would certainly relate to the matters which can affect the employees. However, it cannot be stretched to include 'the service conditions' of the employees. The matter may be affecting day-to-day functioning and problems in that regard faced by the employees but it cannot decide about all matters relating to service conditions. This is also apparent from the preamble of the said settlement as rightly observed by the learned single Judge which specifically excluded financial matters by referring the same for decision by way of settlement and leaving non- financial matters for the decision of the Joint Committee. Every expression in the settlement has to be read in the context in which it has been used and not otherwise. Being so, the contention on behalf of the appellant that Clause 9 empowered the Joint Committee to deal with the issue in relation to the service conditions agreed upon under Clause 49 of 1956 settlement is to be rejected and in that regard no fault can be found in the finding arrived at by the learned single Judge.
18. The next ground of challenge in the matter pertains to bar of limitation for entertaining the complaint at the instance of the respondents. There is no doubt that the complaints were filed almost beyond the period of three years from the date of commencement of grant of ephemeral time scale to the respondents and from the commencement of denial of benefits to them under Clause 49 of 1956 settlement. The contention of the respondent, however, is that it is a recurring cause of action which entitled them to approach the Industrial Court even beyond the period of three years from the date the petitioners started refusing the benefits under Clause 49 of 1956 settlement and, that the injury continued to be inflicted upon the respondents every month.
19. The Apex Court in Shree Dhyaneshwar Maharaj Sansthan's case (supra) has ruled that 'if the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from ' the act may continue'. Referring to this rule, it was sought to be contended on behalf of the Corporation that there was specific denial of the alleged right under Clause 49 of 1956 settlement prior to the period of three years from the date of the filing of the complaint and, therefore, there was 'ouster' of the respondents as far as the right under Clause 49 of 1956 settlement is concerned and as such resulting injury to the right was complete on the said date of ouster and what followed was only the result of the said injury and therefore, there was no recurring cause of action as such so as to justify entertainment of the complaint even after the period of three years from the date of such ouster. The contention of the appellant in this regard is to be rejected as the very decision of the Apex Court leaves no scope for any such arguments in the facts of the case in hand. The Apex Court while delivering the said decision has held that 'if, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterized as continuing wrongs that Section 23 can be invoked'.
20. The above ruling was given in the facts of the case before the Apex Court which are revealed therefrom and read thus:
'Thus considered it is difficult to hold that the trustees act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants' rights though the damage caused by the said decree subsequently continued. Can it be said that after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment? As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem. We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of Section 23 in such a case.'
21. Apparently that was a case where the trustees had obtained an order of the Court and in execution of the said order, the Guravs were evicted from the temple and thereby there was total ouster of the right claimed by Guravs and what followed thereafter was only the result of such ouster. This is not the case in the matter in hand. The respondents are entitled for the benefit of time scale of pay in terms of Clause 49 of 1956 settlement every month and denial of such right virtually amounts to infliction of injury to the respondents every month by the petitioners and, therefore, there is a recurring cause of action in favour of the respondents. The decision of the Apex Court in Shree Dhyaneshwar Maharaj Sansthan's case, (supra) therefore, rather than assisting the appellants justifies the rejection of the contention of the appellants in relation to the bar of limitation.
22. In Bai Manchha's case (supra) the plaintiffs who were the cultivators of the suit land and in possession of the same at all material times, had brought a suit in the year 1951 for a declaration that they were the occupants thereof or in the alternative for declaration that they were permanent tenants on a fixed rate of rent and that the defendant was only an inamdar entitled to recover from them the land revenue. The plaintiffs had alleged that in 1923, the defendant had demanded from the cultivators double the rate of rent under threat and coercion and had given them a choice of either signing a Kabuliat agreeing to pay enhanced rate of rent or to vacate the lands and that the plaintiffs had executed the Kabuliats and had been paying the enhanced rent year after year. The cause of action for the suit had allegedly arisen when the defendant had wrongly demanded the enhanced rate in 1923 and it continued to subsist day after day till 1951 when the defendant filed an application to the Mamlatdar for recovering the enhanced assessment for the current year. The suit was dismissed as barred by law of limitation under Article 120 of the Limitation Act. While holding that Section 23 of the Limitation Act had no application to the facts of the said case, it was observed that the injury that was caused to the plaintiff was complete moment the act of execution of the Kabuliat under a threat or compulsion was done and the demands for enhanced rate made year after year in pursuance of that act were merely the effect of that wrong and did not make it a continuing wrong. It was also held that the right to sue accrued within the meaning of Article 120 of Limitation Act when the plaintiffs right was effectively invaded for the first time in 1923 and the filing of application to the Mamlatdar in 1951 did not constitute a fresh and independent invasion of the rights of the plaintiffs as occupants or permanent tenants so as to give them a fresh right to sue. Apparently in Bai Manchha 's case the injury was complete the moment the Kabuliat was executed and what followed thereafter was merely its result and not a fresh injury. Admittedly the Kabuliat was executed in the year 1923. The demands pursuant to the said Kabuliat were made year after year. Being so, merely because demand was made according to such Kabuliat in 1951, it could not have been said that there was fresh injury caused so as to give rise for fresh cause of action. The Division Bench of Gujarat in that regard has clearly observed that 'demands which were made did not constitute a continuing injuries. The demands were the effects of the execution of the documents which the plaintiffs or their predecessors had executed in 1923 and 1942. They constituted the damage which was done to the interests of the plaintiffs or their predecessor by the series of acts which had been committed by the defendant's predecessor in 1923 and by the defendant in 1942'.
23. The Full Bench of the Gujarat High Court in Ashok Mills' case (supra) rather than lending any assistance to the appellants clearly justifies the order of the Industrial Court as well as the learned single Judge. Thereunder it has been ruled that 'so far as the contravention of the terms of an agreement, settlement or award or effective order of the wage board are concerned, there may be continuous obligations from day to day or month to month, which may not be capable of being executed by single compliance once for all. As pointed out by the Full Bench in Shri Ram Mill's case 1950 ICR 1241 (IC Bom) in the context of bonus or retrospective difference in the shape of past arrears, the occasion of change would arise once and for all while in the cases of wage awards or payments of such amenities month to month, the question of making an illegal change would arise every month, when these wages in the sense of basic wages or value of amenities would be refused by the employer. The employer can choose to withdraw that illegal change even voluntarily at any time and then there would be no grievance. It is only when the employer would persist in his illegal change that the employees would have to resort to the Labour Court for getting a decision about the illegal change and an order of its withdrawal. Therefore, in the context of such recurring obligations, the term making of an illegal change could never have same meaning of change made once for all so that what continues is only its effect in the context of such recurring obligations to pay month to month the wages or value of such amenities. The illegal change would be made afresh every month when the employer would refuse to carry out that continuous obligation. Apparently it has been held that giving effect to the settlement relating to the payment of wages or final benefits under the settlement, the same are required to be given month to month and question of illegal change once and for all in such cases does not arise and, therefore, it is a recurring cause of action for the employee in case of non-compliance of the terms of the settlement in relation to the grant of monetary facility relating to the service conditions of the employees.
24. The decision of the Division Bench of this Court in Regional Manager, Maharashtra State Road Transport Corporation, Nagpur and another is also of no help to the appellants. Therein it was specifically ruled that 'the respondent has invoked Item 9 of Schedule IV of the Act No. 1 of 1972, which entry relates to failure of implementing the settlement which according to both the parties is still in force and binding upon them. Therefore, in our opinion the unfair labour practice will continue to recur so long as the settlement remains unimplemented.' As already held above, Clause 49 of 1956 settlement is still in force and, therefore, non-compliance thereof would amount to unfair labour practice by the appellants and it will continue to recur till and until the appellants grant the benefit under said Clause 49 of 1956 settlement to the respondents.
25. Similarly the decision in M. S.R.T.C 's case by the Division Bench of this Court clearly assist the respondents. The Division Bench therein has held thus:
'In order to ascertain whether the limitation has expired, it is necessary to find out whether the activities complained of as unfair labour practices are of the recurring nature, or whether the occurrence of the unfair labour practices were over once it was engaged in and only the effect continues to flow therefrom. Where the occurrence is of recurring nature, the limitation would continue to extend as long as the occurrence continues. In other words, if the acts of partiality and favouritism continue from time to time the occurrence of unfair labour practice would be of a recurring nature, in which case the limitation will not come to an end on expiry of the ninety days from the date when the unfair labour practices were first committed. For this proposition reliance can be placed on the decision of this Court in Regional Manager, M. S. R. T. C. v. Regional Secy., Maharashtra S. T. Kamgar Sanghatana, 1984 LIC 1721.'
26. It is well settled that as long as the default in performance of obligation continues, the wrong is deemed to have continued and therefore, it is to be taken as a continuing wrong. If the duty continues from day to day, the non-performance of that duty from day to day is a continuing wrong. (Vide Smt. Maya Rani Punj v. Commissioner of Income Tax, Delhi, : [1986]157ITR330(SC) ).
27. In the case in hand as already observed above, the unfair labour practice by the appellants in continuing the denial of the benefits under Clause 49 of 1956 settlement to the respondents is of recurring nature and till and until such benefits are given, it will continue to recur and, therefore, there is no substance in the contention of the appellants that the complaints were barred by Law of Limitation.
28. We, therefore, hold that Clause 49 of 1956 settlement is neither replaced nor revoked by Clause 19 of 1985 settlement. We also hold that the Resolution No. 8856 is unenforceable and not binding upon the respondents. The Clause No. 49 of 1956 settlement operates in totally different field from Clause 19 of 1985 settlement inasmuch as that the former relates to the scale of pay whereas the latter pertains to absorption of the daily rated worker in permanent employment. The appeals and the petition, therefore, lack merits and deserve to be dismissed with the cross objections.
29. In the result, therefore, the appeals and the petition fail and are dismissed with costs; along with cross objections.