WP/4676/1998 a/w. CP/58/1998 １ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4676 OF 1998 Sugar Cane Specialist, Satara & Anr. ... Petitioners V/s. Gajanan Dhondiba Yadav & Ors. ... Respondents ALONG WITH CONTEMPT PETITION NO.58 OF 1998 Gajanan Dhondiba Yadav & Ors. ... Petitioners V/s. Sugar Cane Specialist, Satara & Anr. ... Respondents Smt. Neeta Karnik for the Petitioners in WP/4676/1998 and for the Respondents in CP/58/1998. Smt. Jyoti S. Pawar for Respondent Nos.1 to 6 in WP/4676/1998 and for the Petitioners in CP/58/1998. CORAM :SMT. NISHITA MHATRE, J. RESERVED ON :5 TH OCTOBER, 2010. PRONOUNCED ON:25 TH OCTOBER, 2010. JUDGMENT: 1. The grievance of the petitioners in this Writ Petition is against the order dated 17th June, 1998 passed by the Industrial Court, Kolhapur in Complaints (ULP) Nos.277 to 281 of 1997 and 283 of 1997. By this order, the Industrial Court has upheld the contention of the respondents that the WP/4676/1998 a/w. CP/58/1998 ２ petitioners had committed unfair labour practices under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, (for short “the MRTU & PULP Act”), by withdrawing certain monetary benefits which had been extended to the respondents. The petitioners were directed to pay the revised pay scales from 1st January, 1986 in accordance with the G.R. dated 17th October, 1994 along with the arrears from July, 1997. 2. The facts involved in the present Writ Petition are narrated as follows : . The petitioner No.1 has been established as a Research Centre for conducting research on sugarcane. The activities of petitioner No.1 are controlled and governed by the Mahatma Phule Krishi Vidyapeeth, Rahuri, which is a University established under the provisions of the Maharashtra Agricultural Universities (Krishi Vidyapeeth) Act, 1983, (for short “the Act”). The respondent Nos.1 to 6 were working with the petitioners in their Laboratories. There is a dispute as to whether they were working as “Laboratory Boys”, as contended by the petitioners, or “Laboratory Attendants, WP/4676/1998 a/w. CP/58/1998 ３ as claimed by respondent Nos.1 to 6 (hereinafter called “the respondents”). 3. A Resolution was passed on 17th October, 1994 by the State Government refusing the pay scales applicable for Library Attendants and Laboratory Attendants, to the Laboratory Boys. On 17th May, 1995, a representation was made by the Laboratory Servants, Laboratory Boys, Laboratory Keepers and Laboratory Assistants including the respondents to extend the benefits of the revised pay scales to them. This benefit was made available to those working as Laboratory Keeper, Laboratory Boy and Laboratory Assistant by a circular issued on 17th May, 1995 by the University. It contained a stipulation to the effect that the revision in the pay scales was made on ad-hoc basis and subject to the approval of the State Government. The employees were required to tender an undertaking to the effect that if the Government did not sanction the revision in the pay scale, the petitioners would be entitled to recover the excess payment made to the respondents-employees on an ad-hoc basis. WP/4676/1998 a/w. CP/58/1998 ４ 4. On 7th October, 1995, the petitioners issued a letter to the State Government for considering the claim of the employees working as Laboratory Servants, Laboratory Boys, Laboratory Keepers and Laboratory Assistants for revision in their wages. This representation was required to be made in view of the provisions of Section 54 of the aforesaid Act, which stipulates that no revision in pay scales and allowances can be made without the prior approval of the State Government. On 24th July, 1997, a letter was issued by the petitioners to the respondents and other employees similarly situated informing them that the salary for the month of July, 1997 onwards would be paid at the old rate and not on the revised rates. The difference of salary from October, 1995 to June, 1997 was also to be deducted from their current salaries. This letter was necessitated because the State Government had rejected the representations made by the petitioners for extending the wage revision to the Laboratory Boys. 5. The respondents filed Complaints (ULP) Nos.277 to 281 of 1997 and 283 of 1997 under Item 9 of Schedule IV of the MRTU & PULP Act. They contended that revocation of the wage WP/4676/1998 a/w. CP/58/1998 ５ revision, which had already been granted by the circular issued on 17th May, 1995 unilaterally, was bad in law. This amounted to a failure to implement an agreement between the parties and thereby the petitioners had committed an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. 6. On the other hand, the petitioners contended in their written statement that they were bound by the diktat of the Mahatma Phule Krishi Vidyapeeth. They pleaded that although they were conscious of the fact that any decision taken by them which had financial implications were subject to prior approval from the State Government, they had extended the benefit to the Laboratory Boys. 7. The Industrial Court by its impugned order dated 17th June, 1998 has held that the petitioners have committed an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. It has taken the view that Laboratory Boys and Laboratory Attendants were to be treated at par and that the same wage scales were applicable to both. It was further held by the Industrial Court that due to the Resolution of WP/4676/1998 a/w. CP/58/1998 ６ the State Government of 17th October, 1994 and the circular issued by the University of 17th May, 1995, it was clear that the complainants, who were working as Laboratory Boys, were also entitled to claim revised pay scales of Rs.950/- to Rs. 1,400/- per month from 1st January, 1986 instead of Rs.750/- per month. The Industrial Court observed that the work of a Laboratory Boy and Laboratory Attendant was the same and that they had been treated equally by the circular of 17th May, 1995. The Industrial Court, therefore, allowed the complaints. It did not accept the contention of the petitioners that the complaints were bad for non joinder of the State Government and the University as parties to the complaints. 8. Mrs. Karnik appearing for the petitioners submitted that the Industrial Court has erred in allowing the complaints which were filed under Item 9 of Schedule IV of the MRTU & PULP Act. She submitted that the Industrial Court has considered the type of work performed by the Laboratory Boys and Laboratory Attendants and considered that since they were employed for the same kind of work, they must be treated equally and be paid the same wages as are payable to the WP/4676/1998 a/w. CP/58/1998 ７ Laboratory Attendants. According to Mrs. Karnik, this inference of the Industrial Court could have been drawn under Item 5 of Schedule IV of the MRTU & PULP Act. However, in a complaint filed under Item 9 of Schedule IV of the MRTU & PULP Act, the Industrial Court was not expected to ascertain whether the petitioners were indulged in favoritism or partiality to one set of workmen. She then submitted that the petitioners function under the control of the Mahatma Phule Krishi Vidyapeeth, Rahuri under Section 54 of the Act. No revision of pay and allowances could be granted by the petitioners or indeed by the University without prior approval of the State Government. The learned Advocate submitted that the G.R. dated 17th October, 1994 provided the pay scales to be paid to the Library Attendants or Laboratory Attendants in the Agricultural Universities. She pointed out that the G.R. did not make a mention of the Laboratory Boys. However, the University had issued a circular on 17th December, 1994 refusing the pay scales of both the Laboratory Boys as well as the Laboratory Attendants by treating them on an equivalent post. The pay scales were revised on an ad-hoc basis in the light of the G.R. issued by the State Government on 17th October, 1994. According to the learned Advocate, WP/4676/1998 a/w. CP/58/1998 ８ these ad-hoc payments had to be stopped as the State Government refused to sanction the revised pay scales. It was, therefore, necessary to recover the ad-hoc increase granted to the Laboratory boys as they were paid without any sanction from the State Government. Mrs. Karnik submitted that the petitioners have not committed any error or illegality in withdrawing the concession granted to the respondents of a higher pay scale which was payable to the Laboratory Attendants without the sanction of the State Government. 9. On the other hand, Mrs. Pawar, the learned Advocate appearing for the respondents, drew my attention to the appointment orders issued to the respondents. She pointed out that these appointment orders were issued not only in respect of the respondents herein but also for the Laboratory Attendants. According to her, this fact by itself indicated that the two posts were to be treated at par. The learned Advocate pointed out that once a pay scale is granted, whether rightly or wrongly, it cannot be withdrawn if the pay scale has been granted erroneously but due to no fault of the employees. She relied on the judgment of the Supreme WP/4676/1998 a/w. CP/58/1998 ９ Court in the case of Shyam Babu Verma & Ors. vs. Union of India & Ors., reported in (1994) 2 SCC 521 . She then submitted that the evidence on record indicated that the Laboratory Boys and the Laboratory Attendants were performing the same work and therefore there could be no differentiation in the wages paid to them. She submitted that on the principle of equal pay for equal work it is but natural that the respondents should be paid the salary which was being paid to the Laboratory Attendants since the work that the employees of both categories perform was the same. She then submitted that a complaint under Item 9 of Schedule IV of the MRTU & PULP Act can always be maintainable to ascertain whether there is a failure to implement an earlier settlement Award. She pointed out that by withdrawing the circular, the petitioners had failed to implement one of the service conditions available to the Laboratory Boys and therefore had committed an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. She then urged that all Laboratory Boys were being paid the same wages as the Laboratory Attendants in all Centers except at the Padegaon Farm where the respondents were employed. According to her, this discrimination practiced by the petitioners is illegal and in WP/4676/1998 a/w. CP/58/1998 １０ breach of the principle of equal pay for equal work. She relied on the judgment of the Supreme Court in the case of Union of India vs. Dineshan K.K., reported in (2008) 1 SCC 586, to submit that the doctrine of equal pay for equal work has assumed the status of a fundamental right and any breach of such right is an unfair labour practice. 10. Undisputedly, the petitioners worked under the control of Mahatma Phule Krishi Vidyapeeth, Rahuri which is established under the Act. A financial control of the State Government is reiterated. No new posts can be created, nor can any revision of pay scales, allowances, post retirement benefits to the employees, both, in the teaching and non teaching categories, nor can special pay or extra remuneration or any benefits having financial implications be authorized by the University without the prior approval of the State Government. The State Government in its discretion has issued the G.R. on 17th October, 1994. The petitioners have issued the circular of 17th December, 1994, admittedly, without the prior sanction of the State Government. The G.R. mentions a revision in pay scales only for Laboratory Attendants and Library Attendants of the Agricultural WP/4676/1998 a/w. CP/58/1998 １１ Universities. There is no mention at all about Laboratory Boys. Undoubtedly, the categories of employees working with the Agricultural Universities and the Organizations controlled by them include the post of a Laboratory Boy, distinct from the post of Laboratory Attendant. Despite the G.R. making the revision applicable only to the Laboratory Attendants, the University on its own extended the benefit of the G.R. to the Laboratory Boys. Therefore, this extension was illegal in its inception. The University had, without the prior approval of the State Government, extended the revision of pay scales to the Laboratory Boys in contravention of Section 54 of the Act. 11. The evidence on record led by the respondents indicates that the respondent No.1 had stated that he was working as a Laboratory Boy/Laboratory Attendant in the University at Rahuri namely Mahatma Phule Krishi Vidyapeeth, Rahuri. The respondent No.1 has described the nature of work performed by him as Laboratory Boy/Laboratory Attendant. The respondent No.1 has further stated that when the pay scale was revised pursuant to the G.R. of 17th October, 1994, the respondents were required to execute a guarantee in favour of the WP/4676/1998 a/w. CP/58/1998 １２ University, Rahuri. He has further stated that while the revised pay scale was being paid to all other employees, i.e. the Laboratory Boys / Laboratory Attendants, only those at Padegaon Farm were refused the revised pay scales and in fact certain amounts were sought to be recovered from them. This witness has conceded in his cross-examination that his post has been described as Laboratory Boy in his service book. He has further stated that under a G.R., the posts of Laboratory Boy and Laboratory Attendant were treated as equal posts. However, that G.R. was not produced in Court. 12. This evidence has been led by the respondents although the complaint has been filed only under Item 9 of Schedule IV of the MRTU & PULP Act. There is no prayer in the complaint that it be declared that an unfair labour practice has been committed under Item 5 of Schedule IV of the MRTU & PULP Act. Therefore the entire evidence with respect to the fact that persons in other Agricultural Universities or in Centers other than Padegaon Farm were being paid the revised pay scales under the aforesaid circular is of no consequence. Moreover except the bare words of the complainants, there is no other material on record to establish that other WP/4676/1998 a/w. CP/58/1998 １３ Laboratory Boys had, in fact, been paid revised wages under the circular. 13. Reliance has been placed by Mrs. Pawar, the learned Advocate for respondent Nos.1 to 6, on the judgment dated 13th July, 2006 of a learned Single Judge of this Court in Writ Petition No.3758 of 2006 in the case of The Registrar, Mahatma Phune Krishi Vidyapeeth, Rahuri & Ors. vs. Ashok Dattoba Chavan & Anr. In this case an employee was initially appointed as a Mazdoor on compassionate basis in the Mahatma Phule Krishi Vidyapeeth. He was later appointed to the post of Laboratory Attendant on the same pay scale. After the G.R. of 17th October, 1994 revising pay scales for Laboratory Attendants, the employee claimed the same wages for that post. The learned Single Judge held that since the employee was continued on the post of Laboratory Attendant and in fact was working as such till the date of the order, there was no reason why the benefit of the G.R. dated 17th October, 1994 should not be granted to him. This judgment, in my view, has no application to the facts in the present case. The dispute here is whether there can be parity between Laboratory Boys and Laboratory Attendants. The petitioners do not contend WP/4676/1998 a/w. CP/58/1998 １４ that Laboratory Attendants are not entitled to the revised pay scales as per the G.R. of 17th October, 1994. 14. Mrs. Pawar has relied on the appointment order issued to respondent No.4. This appointment order revealed that the respondents were appointed as Laboratory Attendants/ Laboratory Boys on a pay scale of Rs.200-3-230-5-255- PB-5-280. 15. The petitioners have not made any distinction in the appointment orders issued to the respondents by informing them whether they were appointed as Laboratory Attendants or Laboratory Boys. It appears from the appointment order that the post was inter changeable. There is evidence on record to indicate that the Laboratory Attendants and the Laboratory Boys performed the same kind of work. However the service book which is produced indicates that the respondent No.1 was appointed as a Laboratory Boy. Therefore the respondents were informed that they were not appointed as Laboratory Attendants but as Laboratory Boys by mentioning the nomenclature in the service book. Admittedly, the G.R. applies only to the Laboratory WP/4676/1998 a/w. CP/58/1998 １５ Attendants and not to the Laboratory Boys. In these circumstances, in my opinion, the Industrial Court has incorrectly held that the respondents are entitled to the wages payable under the circular issued by the University. As I have already mentioned, the University had no independent right to issue such a circular involving financial implications without the sanction of the State Government. In these circumstances, in my opinion, the petitioners are justified in taking exception to the judgment and order of the Industrial Court. 16. Mrs. Pawar has attempted to submit by relying on the judgment in the case of Union of India vs. Dineshan K.K., reported in (2008) 1 SCC 586 , that the principle of equal pay for equal work must apply to the present case. She submitted that there is evidence on record to indicate that the nature of work performed by both the Laboratory Attendants and the Laboratory Boys is the same and therefore they ought to have been paid the same pay scales. In my opinion, this submission cannot be accepted while dealing with a complaint under the MRTU & PULP Act. It is now well settled that an unfair labour practice under the MRTU & PULP Act must be established to the WP/4676/1998 a/w. CP/58/1998 １６ hilt. There can be no adjudication of a dispute under the MRTU & PULP Act to decide whether an action adopted by either the employer or the workman is justifiable. The Labour Court or the Industrial Court has to merely ascertain whether the action of the employer is legal. The Labour Court cannot adjudicate whether there is equivalence between the work performed by Laboratory Boy and Laboratory Attendant in a complaint filed under Item 9 of Schedule IV of the MRTU & PULP Act. 17. The only issue which remains now is whether the amount which was paid to the respondents should be recovered from them. Reliance has been placed by Mrs. Pawar on the judgment of the Supreme Court in the case of Shyam Babu Verma & Ors. vs. Union of India & Ors., reported in (1994) 2 SCC 521 . The Supreme Court in this judgment has held that employees had received salary in a higher pay scale due to no fault of theirs from 1973. The Apex Court held that it would be just and proper not to recover any excess amount which was already paid to them as it was paid due to no fault of the employees. 18. In my opinion, this judgment applies to the facts in the present case as well. The employees, i.e. the respondents WP/4676/1998 a/w. CP/58/1998 １７ herein, had been paid the revised pay scales under the circular without there being a demand from them. In fact the respondents had been paid these wages unilaterally by the petitioners. Therefore there shall be no recovery of the amount already paid to them from October, 1995 to June, 1997. 19. The Writ Petition is allowed accordingly. 20. Rule made absolute in the aforesaid terms. 21. No order as to costs. 22. In view of the above, the Contempt Petition No.58 of 1998 pending in this Writ Petition does not survive and the same is dismissed as infructuous.