Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7358 OF 2002

Gujarat Agricultural University …Appellants

Versus

All Gujarat Kamdar Karmachari Union …Respondent

With

Civil Appeal Nos. 7427-7490/2002

JUDGEMENT

R.M. Lodha, J.

This batch of 64 appeals is directed against the judgment

passed by the High Court of Gujarat on March 22, 2002

whereby the Division Bench of that Court confirmed the award

dated August 20, 1997 passed by Industrial Tribunal, Gujarat,

Ahmedabad. Since the judgment as well as the questions

1

raised herein are common, these appeals are disposed of by a

common judgment.

2. Gujarat Agricultural University, appellant,

(hereinafter referred to as, “Employer”), is an educational

institution fully aided by the Government of Gujarat. It is

engaged in the educational activities, particularly, in agriculture

and allied sciences and humanities in the State of Gujarat. It

has various agriculture Research Stations at different places in

the State of Gujarat. In discharge of its duties and functions

under the Gujarat Agriculture University Act, 1969, the

employer engages daily rated labourers for various activities

relating to agriculture research farms, fisheries, dairies,

veterinary and other allied sciences.

3. On August 22, 1980 during the pendency of the

conciliation proceedings (Conciliation Case No. IDC 480/80), a

settlement under Section 12 read with Section 2(p) of the

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 Act

2

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.

5.With regard to the daily rated labourers working in

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

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 2

nd

and 4

th

Saturday were declared

holidays. The employer vide its circular dated October 3, 1991

also declared 2

nd

and 4

th

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.

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.

3

463/91) without following the prescribed procedure and,

accordingly, filed separate complaints under Section 33A of the

ID Act alleging the breach of Section 33. These workmen

prayed for declaration that the action of the employer in forcing

leave on 2

nd

and 4

th

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.

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 employer set up the plea that being fully aided government

institution, it followed the rules of the State government and

declared 2

nd

and 4

th

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

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

4

and, therefore, the question of paying wages, for the day on

which work is not done, does not arise.

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

the award, operative 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 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 hereby ordered to pay wages in

lieu of all such holidays/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 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.

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

before the High Court. The Single Judge dismissed Special

Civil Applications. Dissatisfied thereby, the employer preferred

5

LPAs but without any success and hence, these appeals by

special leave.

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 employees; they are engaged as and

when there is requirement 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, State of

Karnataka and Others vs. Umadevi(3) and

Others

1

and Lily Kurian vs. Sr. Lawina and

Others

2

.

(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 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 its tenure, the settlement has come to

an end on October 21, 1983 and, therefore, the circular

dated October 3, 1991 declaring the 2nd and 4

th

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

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.

(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.

1

(2006)4 SCC 1

2

1979 (1) S.L.R. 26

6

Rajendra Kumar Sharma

3

and U.P. State Brassware Corpn.

Ltd. And Another vs. Uday Narain Pandey

4

.

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 vs. D.J. Bahadur and Others

5

, Calcutta Electric Supply

Corporation Ltd. Vs. Calcutta Electric Supply Workers’ Union

and Others

6

, Bareilly Holdings Ltd. Vs. Workmen

7

, Jaipur Zila

Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and

Others

8

and M/s Lokmat Newspapers Pvt. Ltd. Vs.

Shankarprasad

9

.

14.We may immediately refer to the observations made in

paragraph 48 of the 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 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

3

1993 Supp (2) SCC 366

4

(2006) 1 SCC 479

5

(1981) 1 SCC 315

6

(1994) 6 SCC 548

7

(1979) 3 SCC 257

8

2002-I-LLJ SC 280

9

1999 (6) Supreme 104

7

appointments consistent with the requirements of

Articles 14 and 16 of the 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. 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 SCC 108] have made it clear

that the expression “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 Council and of

this Court includes the power to take disciplinary

action. The rules regarding these matters are

contained in Chapter 57 of the ordinances. The

management of a private college under Ordinance

33(2) is constituted the appointing and the disciplinary

authority 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 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, ‘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

8

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 workmen. We find no

merit in the contention that since daily rated employers do not

hold any post and, therefore, there are no conditions of service

for such 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

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

weekly off. The relevant portion of the settlement reads thus :

“2.On 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 leave once a week (one

weekly off).

9

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 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 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 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.

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. In the case of Life Insurance Corporation of

India vs. D.J. Bahadur and Others

5

, this Court held:

“34. The core question that first falls for consideration

is as to whether the Settlements of 1974 are still in

force. 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 is the second chapter of legal

10

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 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, 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 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 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 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 hara-kiri by leaving a conflict situation to

lawless void?”

20. 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 continues to regulate

11

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 position and, therefore, the daily rated labourers

governed by the settlement were continued to be given only a

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.

21.In the case of Bhavnagar Municipality vs. Alibhai

Karimbhai and Others

10

, this Court held that the following

conditions have to be followed in order to invoke the conditions

of Section 33:

(a)there has to be a proceeding in respect of an

Industrial 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,

(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,

10

AIR 1977 SC 1229

12

(e)the alteration of conditions of service must be prejudicial to

the workmen.

22. In Blue Star Employees Union vs. Ex Off. Principal

Secy. to Govt. and Another

11

, 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 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 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 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 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 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 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) 8 SCC 94

13

23. It must be held, as has been consistently said, that

the 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 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 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 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 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

14

workmen. 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 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 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 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 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.”

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 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

15

dispute referred vide Reference (IT) No. 463/91 which is 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:

“ …. Therefore, it would 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 of which

the conditions of service were allegedly changed 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. 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

there would be an effective reduction in the total

wages to which 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 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 which was not connected with the dispute….”

16

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 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,

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 pay

wages to the complainants in excess of a weekly off by marking

their presence on those 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 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

17

monetary benefits. But none of these principles is absolute nor

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. Uday Narain Pandey

12

, 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

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 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 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

significance.

43. The changes brought about by the

subsequent 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.

18

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.”

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 has consistently

taken the view that relief by way of reinstatement and back

wages is not automatic. In a recent judgment delivered by

us on July 14, 2009 in the case of Jagbir Singh vs. Haryana

State Agriculture Marketing Board & Anr. (Civil Appeal

No.4334/09 (@ out of SLP© No. 987/2009), we considered

U.P. State Brassware Corpn. Ltd.vs. Uday Narain Panday

12

and few other decisions of this Court viz., Uttaranchal

Forest Development Corpn. V. M.C. Josh

13

, State of M.P. &

Ors. v. Lalit Kumar Verma

14

, M.P. Administration v.

Tribhuwan

15

, Sita Ram v. Moti Lal Nehru Farmers Training

Institute

16

, Ghaziabad Development Authority & Anr. v.

12

(2006) 1 SCC 479

13

(2007) 9 SCC 353

14

(2007) 1 SCC 575

15

(2007) 9 SCC 748

16

(2008) 5 SCC 75

19

Ashok Kumar & Anr.

17

and Mahboob Deepak v. Nagar

Panchayat, Gajraula

18

and held:

“15.It would be, thus, seen that by catena of

decisions in 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 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 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 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.”

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

from the daily rated employees on 2

nd

and 4

th

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

17

(2008) 4 SCC 261

18

(2008) 1 SCC 575

20

of course. It is true that these daily 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 Government of Gujarat had declared 2

nd

and 4

th

Saturday as holidays and also festival holidays for its

employees. The employer being fully aided institution had to

follow the 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, 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 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/holidays granted to them in excess of one day

weekly off and 11 days Diwali holidays from the month of May,

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1991. We order accordingly.

33. The appeals stand partly allowed as indicated

above. The appellant shall calculate the due amount as afore-

directed and pay the same to the complainants within six

weeks from today failing which the unpaid amount shall carry

an interest @ 8% per annum from the date it became due until

the date of payment. The parties will bear their own costs.

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.

……………………J

(Tarun Chatterjee)

…….……………..J

(R. M. Lodha)

New Delhi

July 31, 2009.

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