Supreme Court of India
GUJARAT AGRICULTURAL UNIVERSITYversusALL GUJARAT KAMDAR KARMACHARI UNION
- Citation
- 2009 INSC 994
- Decided
- 31 July 2009
- Disposal
- Case Partly allowed
- Bench
- TARUN CHATTERJEE
Holding
Section 33 of the Industrial Disputes Act applies to daily‑rated workers, the 1980 settlement remains binding, the employer’s unilateral change of holidays was illegal, but only 50 % of the wages for the extra holidays are payable.
Summary
The Gujarat Agricultural University and the All Gujarat Kamdar Karmachari Union entered into a settlement in 1980 governing the conditions of service of daily‑rated workers. After a notice to terminate the settlement, the University, following a Gujarat Government notification, declared the 2nd and 4th Saturdays and eleven Diwali days as holidays without pay. The workers filed complaints under Section 33A of the Industrial Disputes Act, 1947 alleging a breach of Section 33, which prohibits changing conditions of service during pendency of an industrial dispute. The Industrial Tribunal held the holiday policy illegal and ordered payment of wages for those days; the High Court affirmed. The Supreme Court held that Section 33 applies to daily‑rated workers, the 1980 settlement remained binding, the employer’s unilateral change was illegal, but full wages could not be awarded; instead, the employer must pay 50 % of the wages for the extra holidays. The appeal was partly allowed.
Issues considered
- The scope of Section 33(1)(a) of the Industrial Disputes Act with respect to daily‑rated workers
- Whether the 1980 settlement continued to be in force despite a notice of termination
- Whether the University’s declaration of additional holidays without pay violated Section 33
- Whether the alteration in conditions of service was connected to the pending industrial dispute, satisfying the test for a Section 33A complaint
- The appropriate quantum of relief – full back wages or a reduced amount
Legislation cited
- Industrial Disputes Act, 1947s. 12, s. 19(2), s. 2(p), s. 33, s. 33A
Subjects
Industrial DisputeSection 33Conditions of ServiceDaily Rated WorkersSettlementNo Work No PayIndustrial TribunalWage PaymentHoliday PolicyTermination of Settlement
Judgment
[2009] 11 S.C.R. 875
GUJARAT AGRICULTURAL UNIVERSITY A
V.
ALL GUJARAT KAMDAR KARMACHARI UNION
(Civil Appeal Nos. 7358 of 2002)
JULY 31, 2009
B
[TARUN CHATTERJEE AND R.M. LODHA, JJ.]
Industrial Disputes Act, 194 7 - ss. 33 and 33A -
Settlement between employer and employees - Notice for
termination of settlement - No fresh settlement - Pendency C
of industrial dispute as regards regularization of services of
daily rated workers - Employer declaring holidays subsequent
to Government Notification - Workers filing complain! u/s. 33A
alleging breach of s. 33 - Industrial Tribunal holding
declaration of holidays without pay as illegal, directing D
payment of wages in lieu of holidays -Award confirmed by
Single Judge as well as Division Bench of High Court - On
appeal, held: Section 33 is applicable a/so to daily rated
workers, it is not restricted to holders of post alone - The
change in conditions of service was connected with the E
pending dispute - Service conditions as per the settlement
was still binding on the employer - However, direction for
payment of wages in lieu of the holidays unjustified on the
principle of 'no work no pay' - But since the workers could not
work because of wrongful act of employer and that the F
employer declared the holidays as it was bound by the
Government Notification, direction for payment of 50% of the
wages.
Words and Phrases - 'Conditions of service' - In the
context of s. 33(1)(a) of Industrial Disputes Act, 1947 - G
Interpretation of.
Employer-University and the respondent-workers
Union entered into a settlement dated 22.8.1980. Workers
875 H
876 SUPREME COURT REPORTS [2009] 11 S.C.R.
A Union, thereafter gave a notice to the employer for the "'
termination of the settlement as the workmen intended to
submit their demands afresh. No fresh settlement took
place, but the workmen of a particular zone raised an
industrial dispute with regard to regularization of their
B · servicos. During pendency of the industrial adjudication,
subsequent to a Government Notification, the employer
declared 2nd and 4th Saturday every month and 11 days
Diwati holidays. Accordingly the daily rated workers were
not provided any work during the holidays.
c The daily rated labourers, aggrieved by the change
of their service conditions during pendency of the
Reference, without following prescribed procedure, filed
complaints u/s. 33A of Industrial Disputes Act, 1947
alleging breach of s. 33. Industrial Tribunal passed the
D award holding that the grant of leave without pay was
illegal. It also directed the employer to pay wages to the
workers in lieu of the additional holidays. The award was
upheld in a writ petition by Single Judge of High Court
and also by Division Bench of High Court in LPA. Hence,
E the present appeal.
Partly allowing the appeal, the Court
HELD: 1. It is true that daily wagers are not the
holders of a post but the expression 'conditions of
F service' occurring in Section 33 (1) (a) of Industrial
Disputes Act, 1947 is not restricted to the holders of post.
The expression, is of wide range and relates to the
workmen who may be temporary, adhoc, daily rated,
permanent, semi-permanent or otherwise. What Section
G 33 provides is that, inter alia, during the pendency of any
proceeding before the Labour Court or Industrial Tribunal
in respect of an industrial dispute, the employer shall not
in regard to the matter connected with the dispute,
change conditions of service prejudicially to such
H workmen. It is not correct to say that since daily rated
.
GUJARAT AGRICULTURAL UNIVERSITY v. ALL GUJARAT 877
KAMDAR KARMACHARI UNION
employees do not hold any post and, therefore, there are A
no conditions of service for such employees. [Para 16]
[886-C-F]
State of Karnataka and Ors. vs. Umadevi (3) and Ors.
(2006) 4 SCC 1 and Lily Kurian vs. Sr. Lavina and Ors. 1979 B
(1) SLR 26, referred to.
2.1. There is 110 flaw in the view of the Industrial
.. Tribunat as well as of the High Court that the settlement
dated August 22, 1980 is still in force and binding on the
employer and the action of the employer in giving leave C
for more than one day in a week after May, 1991 and 11
days festival leave amounts to changing the conditions
of service of the daily rated labourers who are covered
by the settlement dated August 22, 1980 without
following the prescribed procedure and, therefore, illegal. D
[Para 27] (893-E-G]
2.2. The provision in the settlement is nothing but
conditions of service of the concerned workmen. The
settlement did not become inoperative on expiry of its E
tenure for which a notice was given by Workers Union.
It is an admitted position that no new settlement has been
entered between the employer and the workmen
subsequently nor any award has replaced the settlement
dated August 22, 1980. In this view of the matter, it has
.., to be held that the settlement dated August 22, 1980 F
continues to regulate the conditions of service of the
workmen covered thereby. The contract of service or the
conditions of service provided in the settlement holds the
field until new lawful settlement is brought into being. As
a matter of fact, the employer was well aware of this legal G
position and, therefore, the daily rated labourers governed
.J by the settlement were continued to be given only a day
off in a week until the change was effected vide the
Government Circular dated October 3, 1991. Thus, the
Industrial Tribunal as well as the High Court cannot be H
878 SUPREME COURT REPORTS (2009] 11 S.C.R.
A said to have erred in relying upon the settlement dated
August 22, 1980. [Paras 18, 19 and 20] [887-E-G; 889-A-
C]
2.3. The industrial d:spute which is pending before
B the Industrial Tribunal, shows that change in conditions
of service is in regard to a matter which is not
unconnected with the pending dispute. [Para 26] [892-
F]
Life Insurance Corporation of India vs. D.J. Bahadur and
C Ors. (1981) 1 SCC 315; Bhavnagar Municipality vs. Alibhai
Karimbhai andOrs. AIR 1977 SC 1229; Blue Star
Employees Union vs. Ex. Off. Principal Secy. To Govt. and
Anr. (2000) 8 sec 94, relied on.
D 3. In the instant case, where no work was taken from
the daily rated employees on 2nd and 4th Saturday and
for 11 days' during Diwali festival after May, 1991, the
payment of full wages for the aforesaid period should not
follow as a matter of course. It is true that these daily
E rated employees could not work on those days because
of the wrongful act of the employer but at the same time
it cannot be overlooked that change in the working days
was brought about by the employer because the State
Government had declared 2nd and 4th Saturday as
holidays and also festival holidays for its employees. The
F employer being fully aided institution had to follow suit '
and it issued Circular on the same lines to bring working
days pattern on par with the Government departments.
The action of the employer insofar as daily rated
employees governed by the settlement dated August 22,
G 1980 is concerned, was wrong as they did not follow the
prescribed procedure before bringing out the change
but nevertheless the said action cannot be said to be
actuated with ulterior motive. In these peculiar
circumstances, a just balance needs to be struck and the
H principle of 'no work, no pay' does not deserve to be
GUJARAT AGRICULTURAL UNIVERSITY v. ALL GUJARAT 879
KAMDAR KARMACHARI UNION
given a complete go-by. The interest of justice would be A
subserved if the employer is directed to pay 50% wages
to the complainants in lieu of additional lea•:e/holidays
granted to them in excess of one day weekly off and 11
days Diwali holidays from the month of May, 1991. [Para
32] [896-E-H; 897-A-C] B
Jagbir Singh vs. Haryana State Agriculture Marketing
Board andAnr. 2009 (9) JT 396 ; Brassware Corpn. Ltd. vs.
Uday NarainPandey (2006) 1 SCC 479; Uttaranchal Forest
Development Corpn. v. M. C. Josh (2007) 9 SCC 353; State
of M.P. and Ors. v. LalitKumar Verma (2007) 1 SCC 575; c
MP. Administration v. Tribhuwan (2007) 9 SCC 748; Sita
Ram v. Moti Lal Nehru Farmers Training Institute (2008) 5
"
SCC 75; Ghaziabad Development Authority and Anr. v.
Ashok Kumar and Anr. (2008) 4 SCC 261 and Mahboob
Deepakv. Nagar Panchayat,Gajraula (2008) 1 SCC 575, D
referred to .
..i
Case Law Reference:
(2006) 4 sec 1 Referred to. Para 14
E
1979 (1) SLR 26 Referred to. Para 15
(1981) 1 sec 315 Relied on. Para 18
AIR 1977 SC 1229 Relied on. Para 21
(2000) 8 sec 94 Relied on. Para· 22 F
2009 (9) JT 396 Referred to. Para 31
(2006) 1 sec 479 Referred to. Para 31
(2001) 9 sec 353 Referred to. Para 31 G
(2007) 1 sec 575 Referred to. Para 31
(2001) g sec 148 Referred to. Para 31
(2008) 5 sec 75 Referred to. Para 31
H
880 SUPREME COURT REPORTS [2009] 11 S.C.R.
A (2008) 4 sec 2s1 Referred to. Para 31 ..
(2008) 1 sec 575 Referred to. Para 31
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
7358 of 2002.
B
From the Judgment & Order dated 22.03.2002 of the High
Court of Gujarat at Ahmedabad 'in LPA No. 11/99.
WITH
C C.A. Nos. 7427-7490 of 2002.
H
GUJARAT AGRICULTURAL UNIVERSITY v. ALL GUJARAT 881
KAMDAR KARMACHARI UNION [R.M. LODHA, J.]
·•«
research farms, fisheries, dairies, veterinary and other allied A
sciences.
3. On August 22, 1980 during the pendency of the
conciliation proceedings (Conciliation Case No. IDC 180/80),
a settlement under Section 12 read with Section 2(p of the
B
Industrial Disputes Act, 1947 (for short, "ID Act") was entered
into between the representative of the employer and the
representatives of the workmen.
4. On July 27, 1983, Banaskantha General Workers Union
gave a notice to the employer under Section 19(2) of the ID c
Act for termination of the settlement as the workmen intended
to submit their demands afresh. However, no fresh settlement
took place between the employer and the workmen. c
5. With regard to the daily rated labourers working in D
Dantiwada Zone, it appears that a dispute arose about
regularization of their services which was ultimately referred for
industrial adjudication at the instance of the respondent, All
Gujarat Kamdar Karmachari Union, (hereinafter referred to as,
"Union"), vide Reference (IT) No. 463/91 before the Industrial
E
'' Tribunal, Ahmedabad. The said reference is still pending before
that Tribunal.
6. Somewhere in the year 1991, the Government of Gujarat
issued notification by which 2nd and 4th Saturday were
declared holidays. The employer vide its circular dated October F
" 3, 1991 also declared 2nd and 4th Saturday of every month
holidays and 11 days Diwali holidays. Accordingly, the daily
rated labourers engaged by the employer were not provided
any work during these holidays.
G
7. The daily rated labourers (64 in number) working in the
Dantiwada Zone felt aggrieved by the change of their service
conditions during the pendency of the Reference (IT No. 463/
91) without following the prescribed procedure and, accordingly,
filed separate complaints under Section 33A of the ID Act
H
882 SUPREME COURT REPORTS [2009] 11 S.C.R.
A alleging the breach of Section 33. These workmen prayed for
declaration that the action of the employer in forcing leave on
2nd and 4th Saturday and 11 days during Diwali without pay
was illegal. They prayed that the employer be ordered to pay
wages in lieu of all such forced holidays/leave granted to them.
B
8. The employer contested these complaints. In their reply
they raised a preliminary objection about the maintainability of
the complaints on the ground that the demands made in the
complaints have no nexus or connection with the pending
reference and, therefore, there is no breach of Section 33. The
C employer set up the plea that being fully aided government
institution, it followed the rules of the State government and
declared 2nd and 4th Saturday and 11 days holidays during
Diwali. The employer asserted that there is no breach of
Section 9A of the ID Act nor there is any change in the service
D conditions of the concerned workmen. The employer also set
up the plea in its reply that when institution remains completely
closed, it would not be possible to call the workmen for work
•
and, therefore, the question of paying wages, for the day on
which work is not done, does not arise.
E
9. The parties led oral evidence and also produced
documentary evidence in support of their respective case.
10. After hearing the parties, the Industrial Tribunal passed
F the award, ~perative part whereof, reads thus:
"It is hereby ordered that the opponents shall pay
wages to the complainants herein in lieu of additional
leaves/holidays granted to the complainants in excess of
weekly off i.e. one day's leave once in a week on and from
G May 1991 by putting/marking their presence on those days.
That the action of the opponents in granting 11 days
leave without pay in Diwali days to the complainants, if
granted, is hereby declared illegal and opponents are
H
GUJARAT AGRICULTURAL UNIVERSITY v. ALL GUJARAT 883
KAMDAR KARMACHARI UNION [R.M. LODHA, J.]
hereby ordered to pay wages in lieu of all such holidays/ A
leave granted to the complainants treating them as
present.
It is hereby further ordered that hence forth the
opponents shall not grant leave without pay for more than
8
one day in a week to the complainants herein.
Benefit of this order will be given to those
complainants only who have been fulfilling the terms and
conditions of the settlement dated 22.8.1980.
c
Opponents shall pay to each complainant individually
an amount of Rs. 250.00 towards costs of the complaints
of the aforesaid complaints."
11. The award of the Industrial Tribunal came to be
challenged by the employer by filing Special Civil applications D
before the High Court. The Single Judge dismissed Special
Civil Applications. Dissatisfied thereby, the employer preferred
• LPAs but without any success and hence, these appeals by
special leave.
E
12. Mr. P.S. Patwalia, learned Senior Counsel for the
appellant submitted :
(i) that daily wagers do not hold any post and,
therefore, there are no conditions of service for such F
employees; they are engaged as and-when there
is requir€lment of work and they are paid wages for
the work done by them and the question of change
in conditions of service of daily rated employees
does not arise. Reliance is placed on Secretary,
1 State of Kamataka and Others vs. Umadevi(3) and G
Others1 and Lily Kurian vs. Sr. Lawina and Others2 •
1. (20060 4 sec 1.
2. 1979 (1) S.L.R. 26. H
884 SUPREME COURT REPORTS [2009) 11 S.C.R.
A (ii) that even if it be assumed that the settlement dated
August 22, 1980 provides· for conditions of service
of daily rated employees· covered thereby, the
settlement had come to an end on expiry of three
years and as a matter of fact, a notice of
B termination of settlement dated July 23, 1983 was
given by Banaskantha General Works Union. In view
of the said notice intending to terminate the
settlement dated August 22, 1980, on the expiry of
it.s tenure, the settlement has come to an end on >
c ·October 21, 1983 and, therefore, the circular dated
October 3, 1991 declaring the 2nd and 4th
Saturday of every month and 11 Diwali holidays
cannot be made subject to the said settlement.
(iii) that the complaints filed by the workmen were not
D maintainable under Section 33A as there was no
breach of Section 33 inasmuch as the alteration in
the alleged conditions of service was not related to
nor has any connection with industrial dispute
pending adjudication before the Industrial. Tribunal.
E
(iv) that in any case, no wages should have been
'
ordered to be paid to the workmen for the days they
did not work. Reliance is placed on Union of India
-
and Others vs. Rajendra Kumar Sharma3 and UP.
F State Brassware Corpn. Ltd. And Another vs. Uday
•
Narain Pandey4.
13. Mr. G. K. Parwar, President of the union strongly
supported the impugned judgment and relied upon the following
decisions of this court, viz. Life Insurance Corporation of India
G vs. D.J. Bahadur and Others 5 , Calcutta Electric Supply
Corporation Ltd. Vs. Calcutta Electric Supply Workers' Union
3. 1993 Supp (2) sec 366. "
4. (2006) 1 sec 479.
H 5. (1981) 1 sec 315.
GUJARAT AGRICULTURAL UNIVERSITY v. ALL GUJARAT 885
KAMDAR KARMACHARI UNION [R.M. LODHA, J.]
\
... and Others6 , Bareilly Holdings Ltd. Vs. Workmen 7 , Jaipur Zita A
Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma
and Others 8 and Mis Lokmat Newspapers Pvt. Ltd. Vs.
Shankarprasad9.
14. We may immediately refer to the observations made
B
in paragraph 48 ofthe judgment of this Court in case of
Umadevi upon which reliance was placed by Mr. P.S. Patwalia,
learned Senior Counsel which read thus:
"There is no fundamental right in those who have been
employed on daily wages or temporarily or on contractual c
basis, to claim that they have a right to be absorbed in
service. As has been held by this Court, they cannot be
said to be holders of a post, since, a regular appointment
could be made only by making appointments consistent
with the requirements of Articles 14 and 16 of the D
Constitution."
~
15. In Lily Kurian this Court said :
"13. The expression "conditions of service" covers a wide
. . range, as explained by the Privy Council in N. W.F . E
Province v. Suraj Narain [AIR 1949 PC 112], which was
approved by this Court in State of U.P. v. Babu Ram [AIR
1961 SC 751]. These decisions and also a later decision
of this Court in State of M.P. v. Shardul Singh ((1970) 1
sec 108] have made it Clear that the expression F
"conditions of service" includes everything from the stage
of appointment to the stage of termination of service and
even beyond, and relates to matters pertaining to
disciplinary action. Thus, the expression "conditions of
services" as explained in the decisions of the Privy G
6. (1994) 6 sec 548.
"' 7. (1979) 3 sec 257.
8. 2002-J-LLJ SC 280.
9. 1999 (6) Supreme 104. H
886 SUPREME COURT REPORTS (2009] 11 S.C.R.
A Council and of this Court includes the power to take
disciplinary action. The rules regarding ttiese matters are
contained in Chapter 51 of the ordinances. The
management of a private college under Ordinance 33(2)
is constituted the appointing and the disciplinary authority
B in respect of imposition of punishment. In the course of any
disciplinary proceeding, a right of appeal before the Vice-
Chancellor is given to ;a teacher dismissed from service
under Ordinance 33(4) of the Ordinances. The High Court
thus rightly held that the right of appeal conferred by
c Ordinance 33(4) forms part of the "conditions of service"
and, therefore, is valid."
16. It is true that daily wagers are not the holders of a post
but the expression 'conditions of service' occurring in Section
33(1)(a) is not restricted to the holders of post. The expression,
D 'conditions of service' is of wide range and relates to the
workmen who may be temporary, adhoc, daily rated,
permanent, semi-permanent or otherwise. What Section 33
provides is that, inter alia, during the pendency of any
proceeding before the Labour Court or Industrial Tribunal in
E respect of an industrial dispute, the employer shall not in regard
to the matter connected with the dispute, change conditions of
service prejudicially to such workmen. We find no merit in the
contention that since daily rated employees do not hold any post
and, therefore, there are no conditions of service for such
F employees.
17. Insofar as the present case is concerned, the
settlement dated August 22, 1980 provides that those workmen
who have worked for 200 days in each year continuously for
G last three years prior to July 1, 1980 and those workmen who
have worked for 240 days continuously for a period of three
years after July 1980 shall be treated as permanent. It further
provides that instead of taking work for 9 hours in a day for five
days in a week, work shall be taken from them for 8 hours in a
day for six days in a week. The settlement provides for one
H
GUJARAT AGRICULTURAL UNIVERSITY v. ALL GUJARAT 887 ·
KAMDAR KARMACHARI UNION [R.M. LODHA, J)
.... weekly off. The relevant portion of the settlement reads thus : A
"2. Dn and from 1.7.1980, daily rated workmen who
are made permanent, shall be paid Rs. 6.00 per
day instead of Rs.5.50 per day. This rate of daily
wages also includes dearness allowance and one
B
leave once a week (one weekly off).
3. Those workmen who have worked in the University
for 200 days in a year continuously for a period of
last three years prior to 1.7.1980, shall be treated
as permanent workmen. Thereafter, in the month of c
July in each year, as per the following norms they
shall be made permanent:
Those workmen who have worked for 200 days
(presence of 200 days) in each year continuously D
for last three years prior to 1.7.1980 and those
. workmen who have worked for 240 days in each
year continuously for a period of three years after
1.7.1980, shall be treated as permanent and after
1.7.1980 instead of taking work from them for 6
E
hours for one day and for 9 hours in a day for five
days in a week, work shall be taken from them for
8 hours in a day for six days in a week."
18. Surely, the aforenoticed provision in the settlement is
. nothing but conditions of service of the concerned workmen . F
19. The question now to be considered is whether the
settlement dated August 22, 1980 became inoperative on
expiry of its tenure for which a notice was given by Banaskantha
General Workers Union. The answer has to be in the negative. G
In the case of Life Insurance Corporation of India vs. D.J.
Bahadur and Others5 , this Court held:
"34. The core question that first falls for consideration is
as to whether the Settlements of 1974 are still in force.
H
888 SUPREME COURT REPORTS [2009] 11 S.C.R.
A There are three stages or phases with different legal
effects in the life of an award or settlement. There is a
specific, period contractually or statutorily fixed as the
period of operation. Thereafter, the award or settlement
does not become non est but continues to be binding. This
B is the second chapter of legal efficacy but qualitatively
different as we will presently show. Then comes the last
phase. If notice of intention to terminate is given under
Section 19(2) or 19(6) then the third stage opens where
the award or the settlement does survive and is in force
c between the parties as a contract which has superseded
the earlier contract and subsists until a new award or
negotiated settlement takes its place. Like nature, law
abhors a vacuum and even on the notice of termination
under Section 19(2) or (6} the sequence and consequence
cannot be just void but a continuance of the earlier terms,
D
but with liberty to both sides to raise disputes, negotiate
settlements or seek a reference and award. Until such a
new contract or award replaces the previous one, the
former settlement or award will regulate the relations
between the parties. Such is the understanding of industrial
E law at least for 30 years as precedents of the High Courts
and of this Court bear testimony. To hold to the contrary is
to invite industrial chaos by an interpretation of the ID Act
whose primary purpose is to obviate such a situation and
-
to provide for industrial peace. To distil from the provisions
F of Section 19 a conclusion diametrically opposite of the
objective, intendment and effect of the section is an
interpretative stultification of the statutory ethos and
purpose. Industrial law frowns upon a lawless void and
under general law the contract of service created by an
G award or settlement lives so long as a new lawful contract
is brought into being. To argue otherwise is to frustrate the
rule of law. If law is a means to an end - order in society
- can it commit functional 11ara-kiri by leaving a conflict
situation to lawless void?"
H
GUJARAT AGRICULTURAL UNIVERSITY v. ALL GUJARAT 889
KAMDAR KARMACHARI UNION (R.M. LODHA, J.)
20. It is an admitted position that no new settlement has A
been entered between the employer and the workmen
subsequently nor any award has replaced the settlement dated
August 22, 1980. In this view of the matter, it has to be held
that the settlement dated August 22, 1980 continues to regulate
the conditions of service of the workmen covered thereby. The s
contract of service or the conditions of service provided in the
settlement holds the field until new lawful settlement is brought
into being. As a matter of fact, the employer was well aware of
this legal position and, therefore, the daily rated labourers
governed by the settlement were continued to be given only a C
day off in a week until the change was effected vide circular
dated October 3, 1991. Thus, the Industrial Tribunal as well as
the High Court cannot be said to have erred in relying upon the
settlement dated August 22, 1980.
2f In the case of Bhavnagar Municipality vs. Alibhai D
Karimbhai and Others10 , this Court held that the following
conditions have to be followed in order to invok~ the conditions
of Section 33:
(a) there has to be a proceeding in respect of an Industrial E.
Dispute pending before the Tribunal,
(b) the alteration has to be in the conditions of service
which are applicable immediately before the
commencement of the tribunal proceedings,
F
(c) the alteration in the conditions of service has to be
related to a matter pending before the tribunal,
(d) the workmen whose conditions of service are altered
must be related to the matter, G
(e) the alteration of conditions of service must be
prejudicial to the workmen.
10. AIR 1977 SC 1229.
H
890 SUPREME COURT REPORTS [2009] 11 S.C.R.
,.-
~
A 22. In Blue Star Employees Union vs. Ex Off. Principal
Secy. to Govt. and Another11, this Court held thus:
" 5. Thus, the contravention of the provisions of Section 33
of the Act is the foundation for exercise of the power under
Section 33 (sic 33-A) of the Act. If this issue is answered
B
against the employee, nothing further survives for
consideration or action by the Tribunal under Section 33
(sic 33-A) of the Act. In other words, an application under
Section 33-A of the Act without proof of contravention of
Section 33 of the Act would be incompetent. This is the
c view expressed by this Court in several decisions including
the decisions in Punjab National Bank Ltd. v. Workmen,
[AIR 1960 SC 160], Punjab Beverages.(P) Ltd. v. Suresh
Chand [(1978) 2 SCC 144 ], Syndicate Bank Ltd. v. K.
Ramanath V. Bhat [AIR 1968 SC 231]. Indeed this Court
D in Orissa Cement Ltd. v. Workmen [(1960) 2 LLJ 91 (SC)]
while dealing with the identical provisions as contained in
Sections 33 and 33-A of the Act in a complaint made •
under Section 23 of the Industrial Disputes (Appellate
Tribunal) Act, 1950 examined this contention that the finding
E of the Appellate Tribunal in the proceedings instituted
under Section 23 of the Appellate Tribunal Act amounted
to res judicata and it was not open to the Tribunal to
consider the validity or the propriety of the impugned order
of discharge in the reference. The Tribunal in that case had
F held that on the earlier occasion the Appellate Tribunal had
found that there was no contravention of Section 22 and
that was really decisive of the proceedings and held that
the alternative finding made in the said proceedings on the
merits was no more than obiter and cannot be pleaded in
G support of the bar of res judicata. This Court was not
prepared to hold that this view is erroneous and, therefore,
the Tribunal was justified in dealing with the merits of the
dispute."
11. (2000) a sec 94.
H
GUJARAT AGRICULTURAL UNIVERSITY v. ALL GUJARAT 891
KAMDAR KARMACHARI UNION [R.M. LODHA, J.)
23. It must be held, as has been consistently said, that the A
foundation for exercise of the power in the proceedings under
Section 33A is a breach of the provisions of Section 33 of the
ID Act.
24. We now turn to the next question, whether the alteration
8
in the conditions of service has any connection or nexus with
the industrial dispute pending before the Industrial Tribunal,
Ahmedabad.
25. The industrial dispute referred for adjudication at the
instance of the union before the Industrial Tribunal, Ahmedabad C
is in respect of regularization of daily rated labourers working
in, Dantiwada Zone. That all these daily rated labourers are
covered by the settlement dated August 22, 1980 does not
seem to be in dispute. The Industrial Tribunal while dealing with
the question whether the alteration in the service conditions has D
any connection with the pending industrial dispute observed:
" ..... It is at present not possible to say that the
workmen are directly connected with the dispute as well
as with the subject matter of the reference. But if it is E
viewed with large angle, the said complaint is connected
with the pending reference because subject matter of the
reference is whether all the workmen should be treated
permanent and accordingly be given benefits attached to
the permanent service or not? This also include working
hours and holidays etc. of the employment of the workmen. F
If workmen are made permanent, they will also get leave
benefits and other rights etc. given to the permanent
workmen. Further, it is the contention of the complainant
that under the settlement, it was agreed to provide work
for six days, but instead, more than one leave are given. If G
this is permitted to be so done, that would straightway and
simply mean that by ignoring the seniority of the workmen
and by taking work from them in some other manner, leave/
holidays of more than one day in a week are being given
H
892 SUPREME COURT REPORTS [2009) 11 S.C.R.
A to the workmen as a result of which the total working days
of the workmen will be reduced to such an extent that as
and when time of disposing of the reference on merits
would come, though the workmen would legally be entitled
to get work for six days in a week, their total working days
B would be reduced in such an extent that that would also
affect the case of the workmen to make them permanent
and though the workmen are entitled, opponent would
submit in that event that workmen are working for very less
number of days and, therefore, they should not be made
c permanent. It was agreed to give work for six days in a
week under the settlement arrived at under Section 2(P)
of the ID Act and the same is part and parcel of the service
conditions. Thus, subject matter of the complaint is
connected with the subject matter of the reference."
D 26. Mr. P.S. Patwalia, learned Senior Counsel would
submit that the Industrial Tribunal was not very sure that the
complainants were directly connected with the subject matter
of the reference and that being the position, one of the
fundamental conditions of Section 33 that the alteration in the
E conditions of service has to be related to a matter pending
before the Tribunal is not satisfied. We are afraid that this is
not a fair reading of the finding recorded by the Industrial
Tribunal. Moreover, we have carefully examined the industrial
dispute referred vide Reference (IT) No. 463/91 which is
F pending before the Industrial Tribunal, Ahmedabad and we find
that change in conditions of service is in regard to a matter
which is not unconnected with the pending dispute. We find
ourselves in agreement with the view of the Division Bench of
the High Court in this regard:
G
".... Therefore, it wciuld be crucial to examine whether any
alteration in the conditions of service was effected by the
appellant and, if the answer is positive, whether it was in
regard to a matter connected with the dispute. It is seen
that the main dispute and reference during the pendency
H
GUJARAT AGRICULTURAL UNIVERSITY v. ALL GUJARAT 893
KAMDAR KARMACHARI UNION [R.M. LODHA, J.]
of which the conditions of service were allegedly changed A
was for regularization to secure the benefits of permanency
in service. It was also the case of the complainants that
they had completed 240 days or more days of work in each
of the three preceding years of their service and that on
that basis they were entitled to be made permanent. B
Pending the adjudication of such dispute and demand,
increase in the number of unpaid holidays and resultant
reduction of the working days would necessarily be a
matter connected with the dispute insofar as not only the
record of number of days worked would be altered but c
there would be an effective reduction in the total wages to
whiqh the workman concerned would be actually entitled.
It needs no elaboration that the demand and dispute for
regularization in service based on continued employment
under the employer arises to prevent sudden
0
discontinuation and to claim benefits at par with regular
employees so as to achieve stability and an equitable
standard of living. While struggling to achieve that goal, if
forced unemployment were thrust upon a labourer in the
name of additional holidays, it cannot be said that the
change in condition of service was in regard to a matter E
which was not connected with the dispute ... :
27. Thus, there is no flaw in the view of the Industrial Tribunal
as well as of the High Court that the settlement dated August
_.. 22, 1980 is still in force and binding on the employer and the F
action of the employer in giving leave for more than one day in
a week after May, 1991 and 11 days festival leave amounts to
changing the conditions of service of the daily rated labourers
who are covered by the settlement dated August 22, 1980
without following the prescribed procedure and, therefore, G
illegal.
.,; 28. Having held so, the question still remains to be
answered is : whether the Industrial Tribunal was justified in
exercise of its judicial- discretion in directing the employer to H
894 SUPREME COURT REPORTS [2009) 11 S.C.R.
A pay wages to the complainants in excess of a weekly off by
marking their presence on tho~e days and also to pay wages
for Diwali Holidays by marking them present.
29. One of the principles well known in the matters of
service is that if'a person has worked, he must be paid and if
B
he has not worked, he should not be paid. This is expressed
in doctrine, 'no work, no pay'. Another oft-repeated principle in
service jurisprudence is that if an employer has wrongly denied
an employee his due then in that case he should be given full
monetary benefits. But none of these principles is absolute nor
c can these principles be applied as a rule of thumb. Of late, the
Courts have followed the principle that a person is not entitled
to get something only because it would be lawful to do so.
30. In U.P. State Brassware Corpn. Ltd. and Another vs.
D Uday Narain Pandey12 , the question for consideration before
this Court was whether a direction to pay back wages
consequent upon a declaration that the workmen has been
retrenched in violation of Section 6-N of the U.P. Industrial
Disputes Act (equivalent to Section 25 of the ID Act) as a rule
E was proper exercise of discretion. It was held:
"41. The Industrial Courts while adjudicating on disputes
between the management and the workmen, therefore,
must take such decisions which would be in consonance
with the purpose the law seeks to achieve. When justice
F is the buzzword in the matter of adjudication under the "
Industrial Disputes Act, it would be wholly improper on the
part of the superior courts to make them apply the cold
letter of the statutes to act mechanically. Rendition of justice
would bring within its purview giving a person what is due
G to him and not what can be given to him in law.
42. A person is not entitled to get something only because .
it would be lawful to do so. If that principle is applied, the "
functions of an Industrial Court shall lose much of their
H significance.
GUJARAT AGRICULTURAL UNIVERSITY v. ALL GUJARAT 895
KAMDAR KARMACHARI UNION [R.M. LODHA, J.]
43. The changes brought about by the subsequent A
decisions of this Court, probably having regard to the
changes in the policy decisions of the Government in the
wake of prevailing market economy, globalisation,
privatisation and outsourcing, is evident.
B
44 ................................................................... .
45. The Court, therefore, emphasised that while granting
relief, application of mind on the part of the Industrial Court
is imperative. Payment of full back wages, therefore,
cannot be the natural consequence." C
31. In the matters of termination of workman in violation of
Section 25F of the ID Act, as regards the consequential relief,
in the recent judgments, this Court h.as consistently taken the
view that relief by way of reinstatement and back wages is not 0
automatic. In a recent judgment delivered by us on July 14,
2009 in the case of Jagbir Singh vs. Haryana State
Agriculture Mqrketing Board & Anr. (Civil Appeal No.4334/09
(@ out of SLP© No. 987/2009), we considered U.P. State
Brassware Corpn. Ltd. vs. Uday Narain Panday12 and few other E
decisions of this Court viz., Uttaranchal Forest Development
Corpn. V. M.C. Josh 13 , State of M.P. & Ors. v. La/it Kumar
Venna 14 , M.P. Administration v. Tribhuwan 15 , Sita Ram v. Moti
Lal Nehru Farmers Training lnstitute 16 , Ghaziabad
Development Authority & Anr. v. Ashok Kumar & Anr. 17 and
Mahboob Deepak v. Nagar Panchayat, Gajraula 16 and held: F
"15. It would be, thus, seen that by catena of decisions in
12. (2006) 1 sec 479.
13. (2007) 9 sec 353.
G
14. (2007) 1 sec 575.
15. (2007) 9 sec 748.
16. (2008_ 5 sec 75.
11. (2008) 4 sec 251:.
18. (2008)1 sec 575'. H
896 SUPREME COURT REPORTS [2009] 11 S.C.R.
A recent time, this Court has clearly laid down that an order
..
of retrenchment passed in violation of Section 25F
although may be set aside but an award of reinstatement
should not, however, be automatically passed. The award
of reinstatement with full back wages in a case where the
B workman has completed 240 days of work in a year
preceding the date of termination, particularly, daily wagers
has not been found to be proper by this Court and instead
compensation has been awarded. This Court has
distinguished between a daily wager who does not hold a
c post and a permanent employee. Therefore, the view of
the High Court that the Labour Court erred in granting
reinstatement and back wages in the facts and
circumstances of the present case cannot be said to suffer
from any legal flaw. However, in our view, the High Court
erred in not awarding compensation to the appellant while
D
upsetting the award of reinstatement and back wages. As
a matter of fact, in all the judgments of this Court referred
to and relied upon by the High Court while upsetting the
award of reinstatement and back wages, this Court has
awarded compensation."
E
32. Although the aforesaid observations have been made
in the context of the illegal retrenchment of the workmen in
violation of Section 25F of the ID Act, but, in our considered
view, in a case such as present one where no work was taken
F from the daily rated employees on 2nd and 4th Saturday and ...
for 11 days' during Diwali festival after May, 1991, the payment
of full wages for the aforesaid period should not follow as a
matter of course. It is true that these daily rated employees could
not work on those days because of the wrongful act of the
G employer but at the same time it cannot be overlooked that
charme in the working days was brought about by the employer
because the Government of Gujarat had declared 2nd and 4th '
Saturday as holidays and also festival holidays for its "'
employees. The employer being fully aided institution had to
H follow suit and it issued circular on the same lines to bring
GUJARAT AGRICULTURAL UNIVERSITY v. ALL GUJARAT 897
KAMDAR KARMACHARI UNION [R.M. LODHA, J.]
working days pattern on par with the government departments. A
The action of the employer insofar as daily rated employees
governed by the settlement dated August 22, 1980 is concerned
was wrong as they did not follow the prescribed procedure
before bringing out the change but nevertheless the said action
cannot be said to be actuated with ulterior motive. In these B
peculiar circu!11stances, a just balance needs to be struck and
the principle of 'no work, no pay' does not deserve to be given
a complete go-by. In our thoughtful consideration, the interest
• of justice would be subserved if the employer is directed to pay
50% wages to the complainants in lieu of additional leave/ c
holidays granted to them in excess cif one day weekly off and
11 days Diwali holidays from the month of May, 1991. We order
.. accordingly .
33. The appeals stand partly allowed as indicated above.
The appellant shall calculate the due amount as afore-directed D
and pay the same to the complainants· within six weeks from
today failing which the unpaid amount shall carry an interest @
8% per annurn from the date it became due until the date of
payment. The parties will bear their own costs.
E
- 34. We direct the Industrial Tribunal, Ahmedabad to
dispose of Reference (IT No. 463/91} as expeditiously as
possible and preferably within six months from the date of the
receipt of this order.
K.K.T. Appeal partly allowed.
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