Bombay High Court
Kamla Neharu Abhiyantriki vs State Of Maharashtra on 23 March, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 3802 OF 2005
Shri Ramdeobaba Kamla Nehru
Abhiyantriki Mahavidyalaya
Shikshaketar Karmachari Sanghatana,
Registered under the Trade Unions
Act, through its President Shri
Nandkishor Purohit c/o Ramdeobaba
Kamla Neharu Abhiyantriki
Mahavidyalaya, Gitti Khadan,
Katol Road, Nagpur. ... PETITIONER
Versus
1. State of Maharashtra,
through its Secretary,
Department of Higher and
Technical Education,
Mantralaya, Bombay - 32.
2. Nagpur University
through its Vice Chancellor,
Nagpur.
3. All India Council for Technical
Education through its Chairman,
Indira Gandhi Sports Complex,
T.R.P., New Delhi.
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2
4. Industrial Court,
Maharashtra, Nagpur Bench,
Nagpur.
5. Shri Ramdeobaba Sarwajanik
Samiti, Ramdeobaba Tekdi,
Gitti Khadan, Katol Road,
through its Principal.
6. Ramdeobaba Kamla Nehru
Engineering College, through
its Principal, Ramdeobaba
Tekdi, Gitti Khadan,
Katol Road, Nagpur. ... RESPONDENTS
Shri R.S. Parsodkar, Advocate for the petitioner.
Shri Mujumdar, AGP for respondents No. 1 & 4.
Shri P.V. Thakare, Advocate for respondent No. 2.
Shri Sundaram with Ms. Tanna, Advocates for respondent No. 3.
Shri Shreyas Zinjharde with Shri Marpakwar, Advocates for
respondents No. 5 & 6.
.....
CORAM : B.P. DHARMADHIKARI, J.
MARCH 22 & 23, 2010.
ORAL JUDGMENT :
By this writ petition, filed under Articles 226 & 227 of Constitution of India, the petitioner - Union has questioned the order dated 20.03.2004 delivered by Member, Industrial Court in Complaint ULP No. 148 of 1995, dismissing the same. They have sough review ::: Downloaded on - 09/06/2013 15:45:06 ::: 3 of that order but that review was also dismissed on 02.04.2005. After dismissal of review, present writ petition has been filed.
2. Complaint ULP was filed by present petitioner as Complainant No. 1 with other about 147 member-employees against Respondents No. 5 & 6 under items 1, 5, 6 & 9 of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1972 (hereinafter referred to as MRTU & PULP Act). The prayer was to extend to all complainants the appropriate pay scale applicable to the post held by them from the date of their respective appointments and to pay them the arrears accordingly. In prayer clause declaration of unfair labour practice under items No. 2 & 3 of Schedule II of said act was also sought. The complaint was opposed by the employer and after appreciating the evidence led by the parties, Industrial Court found that the petitioners could not establish their entitlement to pay scales as prescribed by State Government. Industrial Court also relied upon one settlement at Exh.
48 between parties and noted that most of the witnesses examined before it accepted that they were getting their salary in proper pay scale. The Government Notification dated 27.07.1989 is found not ::: Downloaded on - 09/06/2013 15:45:06 ::: 4 applicable to the complainants by it.
3. In this back ground, I have heard Shri Parsodkar, learned counsel for the petitioner, Shri Mujumdar, learned AGP for respondents No. 1 & 4, Shri Thakre, learned counsel for respondent No. 2 - Nagpur University, Shri Sundaram with Ms. Tanna, learned counsel for respondent No. 3 - All India Council for Technical Education (A.I.C.T.E.) and Shri Shreeyas Zinjarde with Shri Marpakwar, learned counsel for respondents No. 5 & 6.
4. Shri Parsodkar, learned counsel has contended that the approach of Industrial Court in the matter has been erroneous as it has not considered the entire material produced by the complainants.
He states that the document at Exhs. 41 to 44 filed along with complaint has been relied upon only to show entitlement of complainants to pay scales and revision as prescribed by said documents. In addition, Notification dated 27.07.1989 issued under provisions of Nagpur University Act, 1974, in terms of Standard Code was also relied upon but its statutory character has not been considered by the Industrial Court. He argues that undue importance ::: Downloaded on - 09/06/2013 15:45:06 ::: 5 has been given to settlement at Exh. 48 between parties and said settlement was provisional in nature and did not in any way prejudice the legal contentions and rights of employees or the employer. He, therefore, states that unfair labour practice under item 9 was clearly established by proving out that pay scales prescribed by State Government were not extended to the complainants. He further points out that the employees were not given any appointment order and also the orders of regularization were not served upon them. The regularization in 1993 is from the date of entry into service and hence the employees ought to have been given the benefit of pay scales as prescribed by Notification dated 27.07.1989 from the date on which they were regularized. The distinction made by Industrial Court while holding that said Notification is not applicable to employees on consolidated rates of pay overlooks the fact of regularization. He points out that till date, there is nothing like pay scales prescribed by All India Council for Technical Education (A.I.C.T.E.) in force and hence the mention thereof in Exh. 48 or in its order by Industrial Court is erroneous. The same cannot non suit the complainants. He has relied upon judgments in the case of Samnuggur Jute Factory Col Ltd. (N.M.) vs. Its Workmen, reported at 1982 LIC 1354, State of ::: Downloaded on - 09/06/2013 15:45:06 ::: 6 Haryana vs. Rattan Singh, reported at 1997 LIC 845, J.D. Jain vs. Management, State Bank of India, reported at AIR 1982 SC 673 and C.S. Vasava vs. A.M. Ustad & Ors., reported at 1993 III LLJ 431, to substantiate his contention that technical rules of law of evidence are not applicable in welfare jurisdiction and learned Member of Industrial Court ought to have looked into Notification dated 27.07.1989. He, therefore, prays for allowing the complaint as filed.
5. The learned counsel for respondents No. 5 & 6 states that complaint as filed was based upon documents at Exhs. 41 to 44 and complainants in their cross examination have accepted that those documents are not relevant for determining their service conditions.
He states that College of Respondents No. 5 & 6 was/ is unaided and hence the Government Notification dated 27.07.1989 is not attracted.
In the absence of any statutory instrument prescribing the pay scales, the view taken by Industrial Court needs to be maintained and writ petition deserves to be dismissed. He states that settlement at Exh. 48 was reached between parties and it was only with a view to put an end to pending labour disputes. Only the dispute in relation to bonus was kept alive and left for determination in Court while all other ::: Downloaded on - 09/06/2013 15:45:06 ::: 7 disputes including dispute in relation to pay scale was amicably settled between the parties. He invites attention to said settlement dated 18.01.1996 for that purpose. He has also pointed out that the employees have worked on different posts between their date of entry till 1993. In 1993, the employees were regularized on various posts depending upon the post on which he was found working and the regularization has been made retrospectively i.e. from the date on which complainant/ employee started working on that post. He states that these dates are different for different complainants and hence the relief of pay scale cannot be given to them at this stage as demanded as it will add to confusion and create complications. He further states that necessary facts to prove unfair labour practice under item 6 are not established and hence exercise of regularization undertaken by the employer cannot be faulted with and interfered with by this Court for the first time. According to him, there was no challenge to that exercise even before Industrial Court.
6. The learned counsel points out that various judgments on which reliance has been placed by the petitioner deal with only departmental enquiries and are not applicable in present matter.
::: Downloaded on - 09/06/2013 15:45:06 ::: 8Government Notification dated 27.07.1989 was not the basis of ULP Complaint as filed and none of the witnesses for complainants deposed about it. The said document was for the first time shown to witness for management Shri Jain during his cross examination and the witness stated that they had not received it. In this situation, he has invited attention to the fact that learned Member of Industrial Court has held said notification not relevant as it excludes employees receiving consolidated salary, from its application. He argued that had that notification been properly pleaded and pressed into service before Industrial Court, respondents No. 5 & 6 would have cross examined the witness of complainants in the light of that document and could have also brought on record necessary evidence to show that the said notification is not applicable.
7. He has invited attention to prayers in ULP Complaint to urge that though in body of complaint, there is no material, certain irrelevant or unnecessary declarations are sought for. According to him, the challenge in present writ petition is circumscribed by the relief sought before Industrial Court and, therefore, argues that the alleged subsequent revision of pay scale or extension of benefit of 5th ::: Downloaded on - 09/06/2013 15:45:06 ::: 9 Pay revision is not the subject matter for adjudication before this Court.
8. Ms. Tanna, learned counsel states that Respondent No.3 -
A.I.C.T.E. was not the party before Industrial Court and it has been joined as party respondent for the first time in this writ petition. Shri Thakre, learned counsel for respondent No. 2 - Nagpur University also makes the same grievance. The learned AGP for respondent - State of Maharashtra points out that State of Maharashtra was also not the party before Industrial Court.
9. The perusal of complaint as filed by the petitioner along with its members show that by first prayer therein, the declaration of indulging in unfair labour practice under various items was sought.
Item No. 1 of Scheduled IV of MRTU Act deals with termination, dismissal, discharge of employee and it is apparent that no case under that item is even pleaded before Industrial Court. Item 5 of Schedule IV contemplates two sets of employees and different treatment to them regardless of merit. Again necessary facts in this respect are not pleaded and there is no evidence on record to substantiate unfair ::: Downloaded on - 09/06/2013 15:45:06 ::: 10 labour practice. Schedule II of MRTU & PULP Act deals with unfair labour practices by employer against Union and item 2 thereof deals with employer dominating or interfering with or supporting any union. Item 3 deals with employer establishing the sponsored unions.
Again the necessary pleadings and evidence in this respect have not come on record. It is settled law that casual or loose drafting of such Complaint by itself is not fatal. This Court has to, therefore, consider whether any unfair labour practice under items 6 & 9 of Schedule IV of that Act is made out or not. The positive direction sought against the employer is to direct it to fix the wages of complainants 2 to 148 in appropriate pay scale applicable to the post held by them from the date of their respective appointment and to pay them the arrears, if any, after such retrospective fixation. The complaint with these reliefs is filed sometime in the month of February 1995. The reply of employer therein is filed on 09.06.1995.
10. The memo of complaint as filed admittedly does not refer to the Government Resolution dated 27.07.1989. To show the entitlement of complainants to pay scales and wage revision, reliance has been placed in complaint only on four documents i.e. Exhs. 41 to ::: Downloaded on - 09/06/2013 15:45:06 ::: 11
44. The employer had disputed that entitlement. These documents are considered by learned Member of Industrial Court in para 8 of its judgment. The Industrial Court has found that said documents have got no connection with establishment of Respondents No. 5 & 6 or with service conditions of complainants. It has, therefore, refused to rely upon those documents. These findings of learned Member of Industrial Court are not in dispute before me.
11. The learned Member of Industrial Court has further found that there was an agreement at Exh. 48 between parties and A.I.C.T.E. pay scales have been implemented from 01.08.1995 insofar as the complainants are concerned. In this back ground, it has made reference to admissions given by some of the complainants wherein they accepted that at the relevant time, they were drawing their salary in correct pay scales. Because of this document at Exh. 48 and this admission, it has found that the complainants were fixed at appropriate pay scale and there was no unfair labour practice. This application of mind can be gathered from para 9 of its judgment -
impugned order.
::: Downloaded on - 09/06/2013 15:45:06 ::: 1212. The perusal of Exh. 48 shows that it is a memorandum of settlement and its contents are not in dispute between the parties. As per its clause (1), the demand for bonus was not acceptable to the employer and parties were, therefore, given liberty to point out & prove it in pending court matters. Clause (3) speaks of demand for pay scale and it states that various pay scales were discussed between the parties and ultimately, A.I.C.T.E. pay scales were accepted for implementation by both the parties from 01.08.1995 only. Clause (4) thereof speaks of necessity of maintaining peace and harmony in College premises and employees, therefore, agreed to abstain from commencing any strike or from staging demonstration or any kind of agitation for their demands included in the Charter of Demands submitted to employer. The said restriction was in force for a period of three years from the date of signing of Exh. 48. Clause (5) thereof stipulated that parties to agreement were at liberty to raise their claims and demands or to defend the same by approaching the Court of Law and the settlement between the parties was arrived at with clear understanding that it was without prejudice to their legal rights.
Thus, the entire arrangement in this settlement show that it was arrived at only provisionally to restore peace in the establishment and ::: Downloaded on - 09/06/2013 15:45:06 ::: 13 it did not bar adjudication by Competent Courts of various demands included in charter of demand. It is apparent that the demand for pay scale was one such demand and hence its adjudication before Competent Court is not prohibited by Exh. 48. The learned Member of Industrial Court has not appreciated this liberty & therefore, has given undue importance to this document.
13. The ULP Complaint No. 148 of 1995 filed by the petitioners was already pending when Exh. 48 was signed between the parties.
The events, therefore, clearly show that consideration of any challenge in that ULP Complaint is not eclipsed by Exh. 48. The learned Member of Industrial Court, therefore, could not have refused to decide the issue before him because of said document at Exh. 48.
14. The learned Member of Industrial Court has relied upon admission given in cross examination which read "at present I am getting correct pay-scale". This evidence in which the admission is given has been recorded between 1999 to 2002. Thus, because of this admission, the grievance in complaint could not have been treated as satisfied in any way by the learned Member of Industrial Court. It has ::: Downloaded on - 09/06/2013 15:45:06 ::: 14 not held that at the time when the complaint was filed, the witness accepted that he was receiving his salary in correct pay-scale. It has not recorded any such finding independently also. The dispute before it warranted a finding that grievance about pay scale as made was unsustainable because the employee was right from day one drawing his salary in correct pay scale & its absence itself shows a jurisdictional error.
15. The question arises, what is that correct pay scale. Exh. 48 speaks of A.I.C.T.E. pay scale but then it is apparent that the same were adopted only on ad-hoc basis and without prejudice to rights and contentions of parties about it. At this stage, before me, it is not in dispute that though A.I.C.T.E. prescribed various pay scales, those pay scales never came into force. Thus, nothing like A.I.C.T.E. pay scale was in force at any point of time. As that was not the pay scale, then an investigation into appropriate pay scale as per the service conditions of employees in the light of various laws was essential. This facet of the issue has not been gone into by the learned Member of Industrial Court at all.
::: Downloaded on - 09/06/2013 15:45:06 ::: 1516. The perusal of ULP Complaint as filed particularly its para 1 shows the grievance made and that grievance is non fixation of pay scale of complainants 2 to 148 in accordance with rules and for not giving pay scales under 4th Pay Commission which was applicable to non teaching staff. The further paras give the details of said grievance with dates of appointments and relevant pay scales. It is to be noted that the pay scales applicable to the employees of Respondents No. 5 & 6 are determined not by Respondents No. 5 & 6 but by State of Maharashtra. This position is not in dispute and witness Ajit Kumar Jain examined by the management before the Industrial Court has in his affidavit of examination-in-chief stated that service conditions of non teaching employees working in College are governed by provisions of Maharashtra Non Agricultural Universities and Affiliated Colleges Standard Code (Conditions of Service of Non Teaching Employees) Rules, 1984, (hereinafter referred to as Standard Code).
He has stated that the College is affiliated to Nagpur University and it is also in receipt of statutory approval granted by A.I.C.T.E. on 20.09.1993. He has, therefore, deposed that the College and management were bound by conditions of approval as prescribed by A.I.C.T.E.. In para 3, he has stated that as per provisions of Rule 16 of ::: Downloaded on - 09/06/2013 15:45:06 ::: 16 Standard Code, the College is required to pay non teaching employees "Time Scales" of pay including Special Pay as prescribed by the Government and as may be revised by Government from time to time.
However, then he added that till date, the Government has not issued any document including Government Resolution / circular/ communication/ order etc. prescribing any such time pay scales of pay for non teaching staff working in "non aided Engineering Colleges"
affiliated to Nagpur University. He has further stated that Government Resolutions dated 21.04.1990 (Exh. 41), 02.09.1989 (Exh. 42), 01.08.1989 (Exh. 43), 27.07.1989, 29.01.1990 and 15.01.1988 are not applicable to "non aided Engineering Colleges"
affiliated to Nagpur University. In cross examination, his attention was invited to Government Resolution dated 04.07.1999 at Exh. 120 which has been issued in furtherance of Standard Code and extended the benefits of 5th Wage Revision. The witness has stated that as his College did not receive that Government Resolution, he was unable to say anything about its contents or about its applicability.
17. In para 8 of his cross examination, he accepted that Standard Code is applicable to Non-teaching staff and pay scales ::: Downloaded on - 09/06/2013 15:45:06 ::: 17 prescribed therein are applicable to employees from the date of their appointment. He also accepted that complainants were initially appointed on consolidated salary. He has also accepted that pay scales are not prescribed by A.I.C.T.E.
18. The perusal of Notification dated 27.07.1989 about which this witness has deposed in his examination-in-chief, shows that it has been issued in exercise of powers conferred by Section 77-A of Nagpur University Act to which Respondent No. 6 - College is affiliated. The Notification is issued by Government of Maharashtra providing for revised pay scales of non teaching employees of Non-Agricultural Universities in Maharashtra State and all those in Affiliated Colleges and Recognized institutions. The said notification is not applicable only in cases of Colleges/ institutions maintained and managed by State Government and Local authorities. It is not the case of Respondents No. 5 & 6 that their college is maintained and managed by State Government or any local authority. The effort is to show that said Government Resolution is not applicable because their institution or college is non aided Engineering College. The perusal of preamble of Standard Code itself shows that it is for the employees of University ::: Downloaded on - 09/06/2013 15:45:06 ::: 18 and Affiliated Colleges and Recognized Institutions. Its clause 16 deals with scales of pay and it stipulates that employees are entitled to receive their salary in the prescribed pay scale unless otherwise directed. They are entitled to receive pay in the prescribed time scale of pay by the Government as per clause 16(2) from the commencement up to cessation of service in the University or College under the same management in the Cadre. It is, therefore, apparent that the time scale prescribed under Standard Code are applicable to all non teaching employees unless it is shown that there is some direction to the contrary. There is no direction to the contrary being pressed into service of Respondents No. 5 & 6. They only bank upon the fact that they are not receiving any grant in aid. The receipt of grant in aid or its non receipt is not a criterion prescribed by Standard Code for its applicability. Thus, witness for management and present Respondents No. 5 & 6, therefore, have accepted that the Notification dated 27.07.1989 issued by State Government in exercise of these powers under Standard Code is applicable to it. The effort by them to show that because it is unaided college, the same is not applicable, is without any merit and cannot be countenanced. Provisions of S. 43(1)(l) of the Nagpur University Act, 1974 & S. 81(1)(f) ::: Downloaded on - 09/06/2013 15:45:06 ::: 19 Maharashtra Universities Act, 1994 providing for the terms and conditions of affiliation & recognition are itself very clear and leave no manner of doubt about applicability of said Clause 16(1) & (2) of the Standard Code to complainants. Employer is statutorily obliged to extend pay scales prescribed by the Government. Here an irrelevant reason is being pressed in to service to avoid its implementation. This failure to implement definitely attracts item 9 of Sch. IV of MRTU & PULP Act.
19. The learned counsel for Respondents No. 5 & 6 has urged that the complaint as filed nowhere specifically refers to this notification dated 27.07.1989 and none of the complainants have spoken about it during their evidence. As such, the management could not cross examine any of the witnesses examined by complainants in relation to this notification. However, this argument is without any substance. Briefly I have already mentioned above contents of para 1 of the complaint. The witness for management has himself accepted the applicability of Standard Code and its relevance in the matter and has tried to seek exclusion from it by contending that College was not receiving any grant in aid. This material on ::: Downloaded on - 09/06/2013 15:45:06 ::: 20 record clearly shows that the argument of learned counsel for respondents No. 5 & 6 is clearly by way of after thought. However, by way of abundant precaution, I have called upon the learned counsel to point out any other specific objection to said notification or then the possible prejudice which has been occasioned to it and Respondents No. 5 & 6 are not in a position to demonstrate it or also show any other ground for seeking exemption from applicability of said notification. Similarly, they are not in a position to point out any prejudice whatsoever caused to them because of non reference thereto by the complainants in their evidence. Respondents No. 5 & 6 are having a College which is affiliated to Nagpur University and is recognized by AICTE. They are aware of all relevant legislations and its requirements or obligations undertaken thereunder. Even if the complainants do not lead any evidence about the notification dated 27.07.1989 and relied upon it, respondents No. 5 & 6 cannot make any grievance in the matter. If they have any other material with them to show why that notification is not applicable, the burden was upon them. They have attempted to discharge it by pointing out only the circumstance of non receipt of grant. It is, therefore, clear that Respondents No. 5 & 6 were also aware of relevance of Notification ::: Downloaded on - 09/06/2013 15:45:06 ::: 21 dated 27.07.1989 and hence in its chief, the witness for those respondents has tried to point out why said notification is not applicable in their case.
23/03/2010.
20. Respondent nos. 5 and 6 applied for affiliation and therefore, were aware of all their statutory obligations and requirement to extend the pay-scales to the employees as per Standard Code. The burden was upon them to point out why the pay scales prescribed by the State Government in accordance with the Standard Code were not applicable and they have also attempted to discharge it by giving irrelevant reason. Having failed therein, the stand in defence that the said Government notification was not referred to by any of the witnesses for complainant is clearly by way of an after thought.
21. The 4 precedents mentioned above show that in proceedings before the Tribunal under Industrial Disputes Act or then in domestic enquiry or under Workmens' Compensation Act, the technical rules of evidence are not attracted. There can be no two ::: Downloaded on - 09/06/2013 15:45:06 ::: 22 opinions about said law but then these rulings are not relevant for consideration of controversy before me.
22. The employer has attempted to show that pay scales were extended to all employees after regularizing them and this fact is accepted not only in Exh.48, but also in their evidence by the employees. The provisions of Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act require the implementation of proper service conditions and petitioners / complainants are therefore entitled to pay scale meant for them as per the government notification dated 27.7.1989 as as per Standard Code because that is their service condition and grant of any other pay scale to them cannot be the answer to their demand and to unfair labour practice under Item 9 of Schedule IV. It is not disputed that a challenge to wage revision granted by the Industrial Court on 25.08.2007 vide its order in complaint ULP No. 720/2002 has been rejected by this Court on 31.07.2008 in Writ Petition No. 5560/2007. There the employee was given pay sale as per government notification dated 04.02.1999. Said notification is for period from 01.01.1996 onwards, while the notification (herein) dated 27.07.1989 is for a period of 10 years prior to it. In view of ::: Downloaded on - 09/06/2013 15:45:06 ::: 23 this position, the admission by complainants that they are receiving correct pay scales which has been recorded in their evidence after the year 1999 is not decisive in any way. Those admissions do not mean that the complainants had no grievance in relation to the pay scales extended to them after regularization i.e after 1993.
23. The facts on record show that the establishment of respondent nos. 5 and 6 was given necessary approval by the AICTE in the year 1993. The complainants have also accepted that their services have been regularized from different dates and those dates are of the year 1989, 1990 etc., depending upon the date of their entry into service. Different dates are given to different employees for regularization. Thus the employer has after receipt of the approval, regularized the services retrospectively and also vide Exh.48 extended some pay scales understood as AICTE pay scales from 01.08.1995. In this situation, burden to show that the employees were continued as temporary for years together with a view to deprive them of their status and benefits of permanency, was upon the petitioners / complainants. The evidence on record does not disclose the mode and manner in which each complainant entered the service or then ::: Downloaded on - 09/06/2013 15:45:06 ::: 24 about the availability of clear vacancy prior to 1993. There is no challenge to the date of regularization given by employer. The relevance of AICTE approval on 20/9/1993 qua said unfair labour practice or impact thereof on item 6 of Sch. IV is not addressed to either before the Industrial Court or before this Court. In this situation, I find that the complainants/ petitioners have filed to establish any unfair labour practice falling under Item 6 of Schedule IV of the MRTU Act.
24. As already stated above, the entitlement of complainants before the Industrial Court to pay scale was realized by the employer and hence agreement at Exh.48 was reached between the parties on 18.01.1996. Pay scales as per the said agreement were made applicable from 01.08.1995 and that has been done without prejudice to the rights of both the parties. Thus the employer left the complainants free to obtain appropriate relief in accordance with the law in their pending ULP Complaint No. 148/1995. It appears that when the parties negotiated settlement which culminated into Exh.48, the issue of pay scales prescribed by the government and clause 16 of the Standard Code was not discussed at all. Had it been ::: Downloaded on - 09/06/2013 15:45:06 ::: 25 so discussed, the petitioners would have definitely made a grudge about it in its ULP complaint. The employer as also the employees provisionally accepted AICTE pay scales as solution of their problem.
The employer has before the Industrial Court attempted to show that the government notification dated 27.07.1989 is not applicable to its establishment because it is un-aided college. This distinction has not been proved to be relevant on record and statute does not permit any such classification for the purpose of applicability of that government notification. It is no doubt true that government notification stipulates that it is not applicable to employees on consolidated rates of pay.
However, those consolidated rates of pay were applicable to complainants till 1993 and admittedly were not applicable on 18.01.1996 when the agreement at Exh.48 was reached between the parties. In fact it is a case of the employer that after receipt of approval in the year 1993, services of employees were regularized.
25. At this stage, counsel for petitioner as also respondent 5 &6 attempted to point out to this Court that some of the complainants were appointed directly as regular employees. It is obvious that thereafter or after retrospective regularization the pay scales became ::: Downloaded on - 09/06/2013 15:45:06 ::: 26 applicable and hence the distinctive feature that they were employees on consolidated rates of pay vanished & was therefore not available before the Industrial Court. The government notification dated 27.07.1989 therefore, could & ought to have been extended to the complainants / members of petitioner union by respondents no.5 and
6. In this situation, it is apparent that by not extending the pay scales as per notification dated 27.07.1989, respondents no.5 and 6 have violated service conditions of complainants & indulged in unfair labour practice falling under Item 9 of Schedule IV of the MRTU & PULP Act.
26. The discussion above shows that AICTE has granted approval to the college of respondents no.5 and 6 in 1993. Petitioners have failed to establish any unfair labour practice falling under item no.6 of Schedule IV. The grievance made by them in relation to pay scales was pending before the employer which ultimately resulted into an agreement at Exh.48 on 18.01.1996. The pay scales known as AICTE pay scales were then extended to all the employees by respondent nos. 5 and 6 w.e.f. 01.08.1995. Even after gathering that AICTE pay scales are not applicable and are not determinative, the ::: Downloaded on - 09/06/2013 15:45:06 ::: 27 employer has not taken any corrective measures in the matter though at that time ULP complaint no.148/1995 was already pending. In this situation, complainants before the Industrial "Court are held entitled to arrears on account of wage revision/ pay scales if any from the date of grant of approval by AICTE i.e. 20.09.1993. The relief of grant of arrears from day one cannot be granted as no unfair labour practice under item 6 is established by complainants/petitioner.
27. Writ Petition is thus partly allowed. It is declared that by not extending pay scale to its employees [complainants before the Industrial Court] as per the government notification dated 27.07.1989, respondent nos. 5 and 6 have indulged in unfair labour practice falling under item no.9 of schedule IV. They are accordingly directed to withdraw that unfair labour practice by extending the relief of said pay scales to the complainants by fixing them in appropriate pay scale as per post held by them from the date of their regularization with arrears thereof payable only from the date of grant of approval by AICTE i.e. from 20.09.1993. The arrears shall be paid by respondent nos. 5 and 6 to the complainants in accordance with the law within a period of 6 months from today.
::: Downloaded on - 09/06/2013 15:45:06 ::: 2828. Rule accordingly. However, in the circumstances of the case there shall be no order as to costs.
JUDGE ******* *Rgd/GS.
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