Whether this case involves a substantial question v. JAYPRAKASH SHIVSHANKAR SHARMA & 8

Shri S.N. Shelat, learned Advocate General appeared with Mr. N.G. Nagarkar, learned advocate on behalf of the petitioners. Shri V.M. Dhotre, learned advocate appeared on behalf of the concerned workmen. Shri S.N. Shelat, learned Advocate General appearing on behalf of the petitioners had assailed the judgment and order passed by the Industrial Tribunal in aforesaid complaints by making the following submissions and raising the following contentions: (1) All the concerned workmen were daily-rated workmen and as and when work was available they were offered work. (2) That when the concerned workmen are not at all connected and concerned with the Reference (IT) No. 137/2001 which is pending before the Industrial Tribunal the complaints made by them under Section 33-A are not maintainable in law. (3) The subject matter of the Reference and the demands made in Reference (IT) No. 137/2001 and that of the complaints under Section 33-A were different from one another and therefore the said complaints are not maintainable in law. SCA/6802/2003 JUDGMENT (4) As all the concerned workmen are serving as daily-rated workmen they are continued to be treated as the daily-rated workmen by the petitioners and the petitioners had not effected any change affecting the service conditions of the concerned workmen pending the Reference and therefore also the complaints are not maintainable in law. (5) It is not that as per the Resolution and policy of the petitioners on completion of 5 years and 900 days automatically the concerned workmen were to be made permanent. The concerned workmen are to be made permanent subject to availability of post/s on completion of 5 years and 900 days, and in the present scenario when the permanent workmen, i.e., drivers and conductors were paid idle salaries without their being any work due to reduction of buses, financial constraints, scrapping of buses and other factors there was no question of making the concerned workmen permanent on completion of 5 years and 900 days and as such by not making them permanent no change in service condition which may be said to be prejudicial to the interests of the concerned workmen as contemplated under Section 33 of the I.D. Act has occurred and therefore when there is no breach of Section 33 of the I.D. Act the complaints under Section 33-A could not have been entertained by the Tribunal and it should have dismissed the same. SCA/6802/2003 JUDGMENT (6) All the concerned workmen were daily-rated workmen and as and when work was available and in event permanent employee was not available the daily- rated workmen were offered the work. The concerned workmen were not having any right to get work every day. Due to financial constraints, 170 buses were required to be scrapped and they were withdrawn from the road and therefore there was a change in the schedule. Under the circumstances, not offering work to the concerned workmen for which even otherwise they do not have any right it cannot be said that there is change in service condition. The Industrial Tribunal ought not to have directed the petitioners to run 612 buses on the road as per the schedule dated 15th January 2002 irrespective of availability buses and to offer the work to concerned workmen.

7. Shri S.N. Shelat, the learned Advocate General, while reiterating what was submitted as stated above, has further submitted that as such there is no breach of any policy and as and when vacancy arises the concerned workmen were to be made permanent as per their seniority on completion of 5 years and 900 days. In view of the fact that when even the permanent workmen, because of non- availability of work due to reduction of buses are paid salaries/idle wages, are made to sit idle SCA/6802/2003 JUDGMENT without work, there was no question of making the concerned workmen permanent on completion of 5 years and 900 days and therefore there is no breach of Section 33, more particularly no change of service condition of the concerned workmen as daily-rated workers, and they continued to be daily-rated workmen during the pendency of the Reference. It is further submitted that even in case a Reference under Section 10 of the I.D. Act is there to make the concerned workmen permanent as per the policy and/or resolution of the petitioners. The Court would not have granted the relief unless there are vacant posts. It is also submitted that all the concerned workmen being daily- rated workmen who do not have any right to posts in absence of any work the Tribunal ought not to have passed the order of regularization and/or making them permanent. It is, therefore, requested to allow the present Special Civil Applications.

8. Relying upon the Judgment of the Hon'ble Supreme Court in the case of Blue Star Employees' Union Vs. Ex. Off. Principal Secy. To Government & Anr., reported in JT 2000 (Suppl.1) S.C. 70, it is submitted that as held by the Supreme Court in the aforesaid decision, “Section 33-A of the Act involves consideration of two aspects of the matter, firstly, whether there has been any violation or contravention of the provisions of Section 33 of the Act and secondly, whether the act SCA/6802/2003 JUDGMENT complained of is justified or not. Therefore, violation or contravention of the provisions of Section 33 of the Act would be the justification for the authority concerned to entertain an application under Section 33-A of the Act.” It is submitted that what is contemplated under Section 33 of the Act is that during the pendency of any conciliation proceeding before a Conciliation Officer or any proceeding before the arbitrator or a Labour Court or Tribunal no employer shall in regard to any matter connected with the dispute alter to the prejudice of the workman concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings save with the expressed permission in writing of the authority before which the proceeding is pending. It is submitted that therefore one has to consider what would be the change in conditions of service. Shri Shelat has submitted that Section 9-A of the Act is with regard to notice of change and only with regard to those matters which are specified in the Fourth Schedule, if there is any change, the same can be said to be change in conditions of service applicable to any workman. It is submitted that considering the 4th Schedule not making the concerned workmen permanent is not within the 4th Schedule and therefore also there is no change and hence Section 33 is not applicable bar under Section 33 is not operative and therefore the complaints must fail. SCA/6802/2003 JUDGMENT

9. Shri Shelat, the learned Advocate General has further relied upon the Judgment of the Hon'ble Supreme Court in the case of Karnataka State Road Transport Corporation and Anr. vs. S.G. Kotturappa and Anr., reported in J.T 2005 (3) S.C. Page 20, in particular paragraphs No. 12, 18 and 23 thereof, in support of his submission that the badli worker does not enjoy a status and he does not hold a civil post. Therefore the concerned workmen who were daily-rated workmen were not having any right to get the work every day and as such they were offered the work as and when work was available. The learned Advocate General has also drawn the attention of this Court to paragraphs No. 8, 9, 13 and 17 of the decision of the Division Bench of this Court rendered in the case of A'bad Dairy Vs. Manjibhai Dhanjibhai, reported in 2000 (3) G.L.H. Page 409, to emphasize that 'Badli worker gets employment only when a regular workman is absent or on leave and he gets employment only as a substitute.' Shri Shelat has further submitted that when it is specifically held by the Industrial Tribunal that inspite of the 612 buses schedule, less number of buses are plying on the road and even the permanent drivers and conductors are being paid the idle wages it is possible that the daily-wagers workmen may not get the work also, the Tribunal was not justified in directing the petitioners to ply 612 buses as per the schedule of 15th January 2002 with effect from 15th SCA/6802/2003 JUDGMENT January 2003. To put it in other words, though buses are not available, pursuant to the direction issued by the Tribunal, the petitioners are required to run 612 buses, and such a direction is not only arbitrary but perverse which requires to be quashed and set aside. It is, therefore, requested to allow all the Special Civil Applications.

10. Per contra, Shri V.M. Dhotre, learned advocate appearing on behalf of the concerned workmen has firstly relied upon the directions issued by the Tribunal impugned in the present Special Civil Application. It is further submitted that in the year 2000-2001, the petitioners did make the workmen permanent who had completed 5 years and 900 days and therefore on completion of 5 years and 900 days as the concerned workmen are not made permanent during the pendency of the Reference No. 137/2001, there is a change of condition of service of the concerned workmen as envisaged under Section 33 of the I.D. Act and therefore the Tribunal has rightly entertained the complaints under Section 33-A of the I.D. Act by directing the petitioners to make all the workmen permanent on completion of 5 years and 900 days as per their seniority which is neither illegal nor contrary to the policy and resolution of the petitioners. It is also further submitted that the direction issued by the Tribunal to run 612 buses as SCA/6802/2003 JUDGMENT per the schedule dated 15th January 2002 is also just and proper as by reduction of the buses and effecting change in schedule the concerned workmen are not offered the work; not providing work is also change of service condition which is prejudicial to the concerned workman; Section 33 is therefore rightly attracted; and the complaints under Section 33-A are rightly allowed by the Tribunal by directing the petitioners to run 612 buses as per the schedule dated 15th January 2002 with effect from 15th January

2003. It is further submitted that if there is any justifiable reason the concerned petitioners would have approached the Industrial Tribunal and would have sought the permission but as no permission/approval is sought there is breach of Section 33 of the I.D. Act, and since all the complaints are rightly allowed by the Tribunal it is requested to dismiss all the petitions.

11. Heard the learned advocates appearing on behalf of the parties. It is not in dispute that all the concerned workmen are serving as daily-rated workmen and as and when work is available, in event a permanent employee is on leave or absent the daily- rated workman is offered work. It is not in dispute that the daily-rated workmen are by and large badli workers. They do not hold any post and they do not have any right to get the work as a matter of right SCA/6802/2003 JUDGMENT and as and when work is available they are to be provided and/or offered work. The demand, which was made in Reference (IT) No. 137 of 2001 and relied upon by the concerned workmen, is Demand No.8 which is in relation to Workshop Traffic Office Staff, Clerical Staff and other staff working in the AMTS who are newly appointed and the issue was as to whether they should be made permanent on completion of 240 days in one year or not. This Court, at present, does not propose to go into the question whether the concerned workmen were connected or concerned with the said Reference (IT) No. 137 of 2001 or not, as, for the reasons stated hereinafter, the petitions are required to be allowed on other grounds.

12. The concerned workmen had approached the Industrial Tribunal by way of Complaints under Section 33-A of the I.D. Act for violation and breach of provisions of Section 33 of the I.D. Act. Therefore, it is necessary to find out firstly as to whether in fact there is any breach of Section 33 of the I.D. Act or not and whether the complaints under Section 33-A of the I.D. Act were maintainable or not. Section 33 of the Act reads as under; “33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of SCA/6802/2003 JUDGMENT proceedings.___ (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board of any proceedings before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,___ (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],___ (a) alter, in regard to any matter not connected with the dispute, SCA/6802/2003 JUDGMENT the conditions of service applicable to that workman immediately commencement of such proceeding; before (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. (3) Notwithstanding anything contained in sub-section (2), no employer shall during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute_____ (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; (b) by discharging or punishing, whether by, dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which SCA/6802/2003 JUDGMENT the proceeding is pending.” (4) xxx 5) xxx Section 33-A of the Act reads as under; Special provision “33-A. adjudication as to whether conditions of service, etc., changed during pendency of proceedings.___ Where an employer contravenes the provisions of Section 33 during the pendency of proceedings [before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal], any employee aggrieved by such contravention, may make a complaint in writing, [in the prescribed manner,___ (a) to such conciliation officer or Board, and the conciliation officer of Board shall take such complaint into account in mediating in, and promoting the settlement of such industrial dispute; and (b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending SCA/6802/2003 JUDGMENT before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.]”

12.1. As per Section 33 of the Act, during the pendency of any proceeding either before the Conciliation Officer or before the Labour Court or Tribunal, no employer shall in regard to any matter connected with the dispute, alter to the prejudice of the workman concerned any such dispute the conditions of service applicable to them immediately before the commencement of such proceedings save with the express permission in writing of the authority before which the proceeding is pending. All the concerned workmen were serving as daily-rated workmen. It is not in dispute that they are continued in that capacity as daily-rated workmen. Therefore, when the concerned workmen were serving as daily-rated workmen immediately before the commencement of proceedings of Reference (IT) No. 137/2001 and during the pendency of such proceedings they continued in that capacity, there is no breach of Section 33 of the I.D. Act. Hence, the complaints under Section 33-A were not maintainable at all.

13. So far as the contention, on behalf of the SCA/6802/2003 JUDGMENT concerned workmen, which has been accepted by the Industrial Dispute, that as per the Resolution and policy of the petitioners all the concerned workmen were to be made permanent on completion of 5 years and 900 days automatically, but on completion of 5 years and 900 days the concerned workmen are not made permanent during the pendency of the aforesaid Reference and the same is changing the service condition of the workmen, is concerned, first of all, it is required to be noted that it is the case of the petitioners that it is not that on completion of 5 years and 900 days automatically a workman is to be made permanent. According to the petitioners, they are to be made permanent subject to availability of vacant permanent posts. In the present case, even the permanent drivers and conductors are being paid idle wages due to non-availability of work and the buses/routes, as a result of which even the concerned workmen were not in a position to get work on daily- wage basis also. Therefore, there was no question of making them permanent even on completion of 5 years and 900 days as daily-rated workmen. The contention that by not making them permanent on completion of 5 years and 900 days as daily-rated workmen during the pendency of the aforesaid Reference,can be said to be change in service conditions which led to breach of Section 33 of the I.D. Act, if accepted, it would be stretching too much more particularly in view of the factual scenario where the permanent employees namely SCA/6802/2003 JUDGMENT drivers and conductors are being paid idle wages due to non-availability of work and reduction in number of buses, which is even conceded by the Tribunal also. Under the circumstances, by not making the concerned daily-rated workmen permanent on completion of 5 years and 900 days during the pendency of the Reference it cannot be said to be change in service condition of the concerned workmen who were and are the daily-rated workmen and who are continued in that capacity nor that it has led to breach of Section 33 of the I.D.Act. In such facts and circumstances and in law therefore the complaints under Section 33-A of the I.D. Act were not maintainable. The Industrial Tribunal has materially erred in directing the petitioners to make the concerned workmen permanent on completion of 5 years and 900 days by holding that there is breach of Section 33 of the I.D. Act.

14. So far as the further direction issued by the Industrial Tribunal on the petitioners to run the 612 buses as per schedule dated 15th January 2002 is concerned, such a direction is not only arbitrary and illegal but also beyond the scope of Sections 33 and 33-A of the I.D. Act. It is an admitted position that the financial condition of the petitioners is not sound and due to this amongst other factors the petitioners had to effect reduction in number of buses plying on the road which is evident from the SCA/6802/2003 JUDGMENT fact that 131 buses were withdrawn. Therefore, by virtue of the aforesaid direction, the petitioners will be compelled to ply 612 buses though the buses are not available. It is required to be noted here that all the concerned workmen were serving as daily- rated workers and they were offered the work as and when it is available. Considering the aforesaid reasons and the precarious position of the AMTS where the AMTS is facing financial crisis and inspite of such sorry state of affairs of the AMTS and when the permanent workmen are being paid the salary/idle wages without there being any work or buses, even in absence of any right in favour of the concerned workmen to get work, such a direction could not have been issued by the Industrial Tribunal. Even in absence of any right accrued in favour of the concerned workmen who were working as daily-rated workmen and who were offered work as and when it was available and due to reduction of buses the petitioners cannot stick to the Schedule dated 15th January 2002 of running 612 buses and if the concerned workmen are not offered the work more particularly in the factual scenario where the permanent workmen, i.e., drivers and conductors are being paid idle wages, it cannot be said that there is a change in the conditions of service of the concerned workmen and it has led to breach of Section 33 of the I.D. Act. Under the circumstances, even the complaints under Section 33-A of the ID Act were SCA/6802/2003 JUDGMENT also not maintainable.

15. For the foregoing reasons, it is to be held that provisions of Section 33 of the I.D. Act are not violated and therefore the complaints under Section 33-A of the Act are not maintainable at all. The judgments and orders passed by the Industrial Tribunal, allowing the aforesaid Complaints, are required to be quashed and set aside. The common judgment and order passed by the Industrial Tribunal, Ahmedabad, dated 24.12.2002 in Complaint (IT) No. 52 of 2002 and other allied matters, the particulars of which are stated hereinabove, is hereby quashed and set aside. All the petitions succeed and are allowed. Rule is made absolute to the aforesaid extent in each of the matter. However, there will be no order as to costs. RMR. [ M.R. Shah, J. ]