Superintending Engineer, P.W.D. ... vs Kokan Sarvajanik Bandhkam Va ...
2002 Latest Caselaw 971 Bom

JUDGMENT

R.J. Kochar, J.

1. The Superintending Engineer, P.W.D. Ratnagiri and District Sindhudurg are the petitioners aggrieved by the impugned judgment and order dated 20th January 1995 passed by the Industrial Court, Kolhapur in Complaint ULP No. 335 of 1989 filed by the respondent union under section 28 read with section 30 and Items 9 and 10 of Schedule IV of the M.R.T.U. and PULP Act, 1971.

2. According to the respondent union, it represented the workers of the public works department employed under the aforesaid petitioners, who were impleaded in the complaint as respondents. It was further averred by the union that the concerned workers were governed by the Kalelkar award in respect of their service conditions. The said Kalelkar award determines the service conditions of the workers working in the public works department at various places or districts under different projects. The said Kalelkar award has been in force from 1966. Under the said award the PWD workers or the staff were entitled to get the benefits of public holidays and second and fourth Saturdays. According to the union, by a circular dated 10th January 1974, the said benefits were purported to be withdrawn as far as the field staff in concerned. According to the said circular which was purported to be a clarification of the Kalelkar award, the field staff was not entitled to public holidays and holidays on 2nd and 4th Saturdays. It appears that the said clarification was not brought in force immediately as the field staff continued to get the said benefits under the Kalelkar award. By a subsequent letter dated 19th January 1981, the petitioners withdrew the benefit of the holidays enjoyed by the field staff under the Kalelkar award. The respondent union approached the Industrial Court with the aforesaid complaint under Item 9 of Schedule IV of the Act that the petitioner had failed to implement the Kalelkar award. The defence of the petitioners before the

Industrial Court was that by the government resolution, the said benefits were withdrawn for the field staff and, therefore, they were not entitled to get the public holidays and second and fourth Saturdays.

3. The Industrial Court by the impugned order did not accept the contention of the petitioners. The Industrial Court has rightly held that the Kalelkar award was an outcome of bi-lateral settlement and that under the said award, the demand of the employees regarding public holidays was accepted. The employees were getting the aforesaid benefits till 1981. It was clearly understood between the parties that all those who were covered by the Kalelkar award were entitled to get the benefits of the award irrespective of their work or category. For the purpose of all those Government Pleaders and those State Officers presently at the helm of affairs it has become necessary for me to trace the origin on the "Kalelkar Award" and explain very briefly its legal efficacy in the present context. The State Government was pleased to constitute a special Board of Conciliation under section 5 of the Industrial Disputes Act, 1947 for promoting the settlement of an industrial dispute which arose after the workmen employed under the Irrigation and Power Department and the Building and Communication Department submitted their charter of 13 demands. The Board was chaired by Shri Kalelkar and therefore, the Award which in fact is an outcome of negotiations and successful and effective intervention of the Board to be able to promote the settlement signed before the Board under Section 13(2) of the Act to be effective with retrospective effect from 1-10-1966. It appears that the said conciliation settlement came to be published in official government gazette under Section 17 of the Act. Under Section 18(3) of the Act such settlements arrived at in the course of conciliation proceedings are mandated to be binding on all parties to the industrial dispute. Until after 2 months from the date of termination notice given by either party to terminate the settlement as contemplated under section 19 of the Act. It is not the case that the settlement was terminated by departments or the workmen, parties to the settlement. The Kalelkar award, therefore, continues to be binding on the parties under the Act. There is a specific agreement between the parties in respect of "holidays" under caption demand No. 5 which reads as under :--

"The work charged, regular, temporary and permanent employees shall get such public holidays as are sanctioned by the Government for these categories of employees. The daily rated employees will be granted 3 paid holidays in a year i.e. on (1) 26th January (2) 15th August and (3) 2nd October, as at present. They will also be granted, subject to exigencies of work, four more optional paid holidays in a year which the employees may take on any festival according to their choice. These optional holidays will have to be applied for in advance."

It is thus clear that except the daily rated employees all the other categories of the employees are entitled to get such public holidays as are sanctioned by the Government for these categories of employees. The daily rated employees are allowed as paid 3 holidays in a year and four more optional paid holidays in a year as provided therein. The General clause of the settlement specifically clarifies who are governed by the present settlement. It reads as under:--

"In these presents the expression "employee", "worker" shall mean an employee or worker of the Buildings and Communications Department or the Irrigation and Power Department of the Government of Maharashtra, who falls under the definition of a "workman" in Section 2(s) of the Industrial Disputes Act, 1947."

There is no distinction drawn in the settlement on the line of staff in field and in the office. The "field workers" who fall in the categories specified in Clause 5 are entitled to get the benefit thereunder and they cannot be denied those benefits without following the prescribed mandate under Section 9A of the Act. The settlement does not carve out as an exception as a category of the field workers to be denied the benefits under Clause 5 of the settlement or for that matter under the whole settlement. The state departments which are parties to the settlement cannot unilaterally travel beyond the terms of the settlement in violation of the provisions of the Act. The impugned G.Rs. of the state Government are unilateral administrative fiats which cannot overtake the settlement by bypassing the mandatory provisions of the I. D. Act, 1947. Having attempted it has rightly attracted the Item 9 of unfair labour practice under Schedule IV of the M.R.T.U. and PULP Act, 1971.

4. The Industrial Court rightly held that the State Government had no power or authority to modify the award unilaterally without following the prescribed mandatory procedure under the Industrial Disputes Act, 1947. I do not find any illegality or infirmity in the impugned judgment and order of the Industrial Court. The State Government was a party to the said award, which was an outcome of bi-lateral negotiations and settlement. Under the circumstances, no party can unilaterally declare any change or modification in the said award. If at all the State Government wanted to have any modification in the said award, it had to give a notice of change under Section 9A of the I.D. Act and proceeded further in accordance with law to get the award modified by adjudication and not by issue of administrative fiat. In the present case, the State Government by the purported Government resolution, clarifying that the Kalelkar award was not applicable to the field staff has acted high handedly and illegally, to exclude from the umbrella of the award one category of the employees i.e. the field staff. None can be deprived of the benefits of the award except in accordance with law. The State Government has no power and authority to withdraw any part of the award unilaterally and without following due process of law. The issue of holidays is covered by Item 5 of Schedule IV of the Act and to effect any change therewith it is mandatory to give a notice of change under Section 9A of the Act in the absence of which every change would be deemed to be an illegal change. I, therefore, do not find any illegality or infirmity in the impugned judgment and order of the Industrial Court. Rule is discharged. Writ petition is dismissed with no orders as to costs.

Petitioners are directed to give effect to the order of the Industrial Court within eight weeks from today.