1) Heard finally with consent of learned advocates for the respective parties.

2) Since all these petitions arise out of similar set of facts and same questions of law arise for consideration in all these petitions, the petitions are decided by a common judgment. The petitioners are employers of the respondent/employee in all these cases. For the purpose of convenience, facts of Writ Petition No. 1479/2020 are taken into consideration.

3) The present petition is filed challenging judgment and order dated 28.03.2019 passed by the learned Member Industrial Court No.3, Nagpur in Complaint (ULP) No.114 of 2012. By the impugned judgment and order, the learned Industrial Court has held that the petitioners have engaged in unfair labour practice under Items 5, 6 and 9 of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, by not granting benefit of permanency of service to the respondent and by not making payment of wages at par with other similar permanent employees and has directed the petitioners to accord status and privileges of permanent employee to the respondent from 01.08.2007 and pay salary to him at par with other similar permanent employees.

4) The petitioner No.2 is an institution which runs petitioner No.1-college. The respondent claims that he was appointed on the post of Laboratory Attendant in petitioner No.1-college in the year 2007 against a sanctioned vacant post. It is his case that more than 150 teaching and non- teaching employees are working in petitioner No.1-college.

5) It is the case of respondent that although he is working against a sanctioned post for years together, the appointment is shown to be made on temporary basis, despite the fact that regular work is available and on that basis benefits of permanency are not extended to him and salary is also not paid to him in the prescribed scale as is paid to other employees performing identical work. He has stated that the petitioner No.1 is an “industry” within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 and service conditions of non-teaching staff of petitioner No.1 are governed by Model Standing Orders (for brevity, “MSO”) framed under the Industrial Employment (Standing Orders) Act, 1946. Placing reliance on Clauses 4C and 4D of the MSO it is contended that status of a regular employee should be conferred upon completion of 240 days of service in a  calendar year. Reliance is also placed on the Maharashtra Non-agricultural Universities and Affiliated Colleges Standard Code (Revised Pay of Non-Teaching Employees) Rules 1989 (for brevity, “Standing Orders”). The said complaint came to be registered as Complaint ULP No.114 of 2012.

6) The present petitioners appeared in the matter and filed written statement stating that the complainant was initially appointed in service on 01.08.2007 as Laboratory Attendant. It is stated that the initial appointment of the complainant was only till 31.03.2008. It is also stated that the appointment was on consolidated salary of Rs.2,000/- per month. The petitioner stated that the appointment was not made against a clear vacant post and that the service rendered by the petitioner was not full-time service. It is further stated that as on the date of filing of complaint, the complainant was working on temporary basis on payment of consolidated salary of Rs.3410/- per month. It was stated that the complainant had appeared for walk-in interview and was appointed accordingly. It was also stated that the appointment of complainant was made for un-aided syllabus.

7) The complainant filed a re-joinder stating that there were around six thousand students taking education in the petitioner No.1-college, out of which around two thousand students were taking education against unaided courses. The complainant also stated that other employees such as security guards and cycle stand staff etc., were appointed through other external agencies/contractors on temporary basis. The complainant denied the contention that he was working on part-time basis. In order to substantiate his contention he stated that there were 3 Botany laboratories in the college and that three Laboratory Attendants were working in two laboratories for junior college degree course. He stated that there was another Laboratory for Botany for Master’s Degree course which was not having any permanent Laboratory Attendant. He stated that post of Laboratory Attendant in the 3rd Laboratory against which he was working was vacant against which full time work was available. The complainant has stated that the post-graduate course is not admitted to grant-in-aid.

8) Based on rival pleadings, the parties led their evidence in the matter. After recording the evidence and hearing respective arguments the learned Industrial Court allowed the complaint. The learned Industrial Court has recorded a finding that the college fell within the definition of “industry” with respect to non-teaching activities.

9) During the course of his evidence, the complainant proved appointment orders dated 02.07.2007, 02.06.2008,    30.04.2009,    29.06.2009,    19.06.2010, 17.06.2011 and 18.07.2012, which are at Exhibits U-18 to U-24. The extract of payment of salary from December-2008  to January-2016 came to be exhibited as Exhibit U-25 and the statement of account of the complainant with Indian Overseas Bank for period from December-2008 to March-2013 came to be Exhibited as U-26.

10) The petitioners filed affidavit of the principal of the college and produced on record photocopies of muster rolls from November-2009 to February-2018 and biometric reports for the years 2015 to 2017.

11) Based on the muster roll produced on record by the petitioners, the learned Industrial Court has recorded a finding that the complainant had continuously rendered more than 240 days of service with the petitioner No.1-college in each calendar year. The petitioner and respondent made a statement with respect to number of days for which service was rendered by the respondent pursuant to each appointment order. Even according to the petitioners, the respondent had rendered more than 240 days service in every calendar year. The learned Industrial Court has therefore held that the respondent was continuously working with the petitioners since the date of his initial appointment on 01.08.2007 and that since more than 240 days of service is rendered in a calendar year for several years, the respondent was entitled to status of a permanent employee. In view of the aforesaid, the Industrial Court has also held that salary was payable to the respondent as is payable to a permanent employee.

12) It will be pertinent to state that during the course of cross-examination, the petitioners’ witness admitted that two persons namely Pravin Atarkar and Rahul Pathade, who were employed alongwith the respondent were made permanent by the petitioners. This also is a ground on which the learned Industrial Court has held that the petitioners had engaged in unfair labour practice. The learned Industrial Court found that regular work was available for the respondent and that during the summer vacations respondent was given artificial break and reinstated in service upon commencement of next academic year. It is found that every year the respondent had rendered service for minimum nine and half months. In view of such findings the complaint came to be allowed.

13) Mr. S. S. Sanyal, learned advocate for the petitioners raises a preliminary objection with respect to jurisdiction of the learned Industrial Court by contending that since a college is not an “industry”, the learned Industrial Court did not have jurisdiction to entertain the complaint. The contention cannot be accepted. It is not well settled that a school or college also falls within the definition of “industry” with respect to non-teaching employees. It is not the case of the petitioners that the respondent was employed against any teaching post. The preliminary objection pertaining to jurisdiction is rejected.

14) As regards merits of the matter, the contention of Mr. Sanyal, is that the learned Industrial Court ought not to have granted the relief sought by the respondent since the appointment of respondent was not against any sanctioned post and further on the ground that the appointment was not made by following prescribed procedure for making regular appointments. The learned advocate contends that the burden of proving that appointment of the respondent was made against a clear vacant post and that too by following the prescribed procedure was on the respondent and that the respondent had failed to discharge the said burden.

15) Per contra, Mr. Mehadia, the learned Advocate for the respondent contends that since work is extracted from the respondent, salary and other service benefits cannot be denied to him. The learned Advocate contends that equal pay for equal work is a constitutional mandate enshrined under Article 39 of the Constitution of India, which must be followed. He further argues that the learned Industrial Court has recorded categorical finding based on admissions of the petitioner No. 1-college that the respondent/employee was working as a full time employee for more than 240 days in a calendar year all throughout. The learned Advocate also draws attention to the fact that the post-graduate courses in the college are unaided courses. He contends that apart from two laboratories for Botany subject for Junior College and Degree College, there is one laboratory for post of graduate degree course in Botany. The learned Advocate states that three Laboratory Attendants are required in one Laboratory and as such the respondent/employee who is working in Botany laboratory for post-graduate courses, is discharging  his duties against a clear vacant post. As regards, the procedure contemplated for making appointments, the learned Advocate contends that legal principle with respect to public employment cannot be made applicable to the petitioner No. 1-college, which is admittedly a private institution. With respect to status of the college as an “industry”, the learned Advocate contends that the college is certainly an “industry” with respect to non-teaching employees.

16) I have heard the rival submissions as aforesaid. I have  also  perused  respective  pleadings,  and  oral  and documentary evidence brought on record. Likewise, both sides have taken in through the findings recorded by the learned Industrial Court.

17) As regards the preliminary objection raised by Mr. Sanyal, learned Advocate with respect to the petitioners- college not being an “industry”, the same is liable to be rejected in view of the law laid down by the Hon’ble Supreme Court in the cases of A. Sundaranbai V/s. Government of Goa, Daman and Diu and ors. reported in (1988) 4 SCC 42 and Raj Kumar V/s. Director of Education and ors. reported in (2016) 6 SCC 541.

18) In the case of Rashtrasant Tukadoji Maharaj Nagpur University and another V/s. Hon’ble Member, Industrial Court Maharashtra, Nagpur Bench, Nagpur and ors. reported in (2016) 2 Mh.L.J. 454, it is held that University is not an industrial establishment. In the said case, this Court was dealing with definition of the term “Industrial Establishment” as defined under the Industrial Employment (Standing Orders) Act, 1946. The said judgment does not deal with definition of the term “industry” as defined under the Industrial Disputes Act, 1947 and the Maharashtra Industrial Relations Act, 1946. The definition of term “Industrial Establishment”, as defined under the Standing Orders Act of 1946 is different than definition of term “industry” as defined under the I.D. Act and B.I.R. Act.

19) The complaints are filed invoking provisions of MRTU and PULP Act, 1971. Section 3(7) of the MRTU and PULP Act defines the term “industry” to mean “industry” as defined under the Bombay Industrial Relations Act or as the case may be “industry” as defined under the Industrial Disputes Act. The definition of the term “industry” as defined under the Industrial Disputes Act and BIR Act are almost the same. A college will fall within the definition of “industry” in view of judgment in the case of A. Sundaranbai (supra) and Raj Kumar (supra). The preliminary objection raised by Mr. Sanyal, learned Advocate pertaining to jurisdiction of Industrial Court is, therefore, liable to be rejected.

20) The next contention raised by the learned Advocate for the petitioners is that the benefits of MSO will  not be applicable to the employees of a college affiliated with Rashtrasant Tukadoji Maharaj Nagpur University since the service conditions of non-teaching employees are governed by the provisions of the Maharashtra Non-agricultural Universities and Affiliated Colleges Standard Code (Terms and Conditions of Service of Non-teaching Employees) Rules 1984. The learned Advocate contends that the learned Industrial Court has erred in applying the provisions of MSO in order to grant benefit of regularization in service to respondent/employee. Per contra, Mr. Mehadia, learned Advocate for respondent contends that the provisions of MSO will also be applicable and that both the provisions are required to be read harmoniously.

21) In the facts of the present case, in my considered opinion, it is not necessary to go into a larger question as to whether the provisions of the MSO will be applicable or not to grant benefit of permanency to the respondent. Even if it is assumed that the provisions of MSO will be applicable, it must be said that the provisions of the Standard Code will certainly be applicable. The Standard Code prescribes service conditions  of  non-teaching  employees  of  Universities  and Affiliated Colleges. It is framed by the State Government in exercise of the rule-making powers conferred under Section 77-A of the erstwhile Universities Act of the year 1974 for each university. It will be pertinent to state that earlier there was a separate enactments under which each University in the State of Maharashtra was constituted. All these Universities Acts were almost identical. Section 77-A of the Universities Act conferred rule-making powers upon the State Government to prescribe a code regulating terms and conditions of service of non-teaching employees in Non- Agricultural Universities and Colleges affiliated to the Universities. The Standard Code is framed in exercise of the said rule-making powers. Since then, all the Universities Acts of the year 1974 came to be repealed by the Maharashtra Universities Act, 1994. However, the Standard Code framed under the erstwhile Universities Acts was saved as per Section 115(xiv) of the Maharashtra Universities Act, 1994. The Maharashtra Universities Act is also repealed by the Maharashtra Public Universities Act, 2016. However, in view of Section 146(n), the Standard Code is saved.

22) In order to avail benefit of MSO, the respondent/employee will have to establish that his appointment is made in accordance with the provisions of Standard Code. The applicability of Standard Code cannot be disputed at all. Therefore, if the respondent/employee intends to invoke the beneficial provisions of MSO in relation to his appointment with petitioner No. 1-college, he will have to establish that his appointment is made in accordance with the procedure prescribed under the Standard Code.

23) Rule 4 of the Standard Code provides that all non-teaching posts which are required to be filled in by nomination or selection shall be advertised in at least two daily newspapers, one of which, will be in Marathi. In addition, Rule 4 also prescribes that the vacancies must be notified with the concerned Employment Exchanges and the concerned District Court Social Welfare Officers. In the case at hand, the record does not indicate that the appointment of respondent/employee was made by following the said procedure. It is not even a pleaded by the respondent that the advertisement  pursuant  to  which  he  was  appointed  was published in 2 dailies, one of which was a Marathi daily and/or vacancies were published to Employment Exchange or District Social Welfare Officer. Thus, even as per pleading of respondent/complainant his appointment is not made by following procedure prescribed under the Standard Code. Since the initial appointment of the respondent/employee is not made in accordance with the procedure prescribed under the Standard Code, the respondent/employee cannot claim that his service should be regularized in view of Clause 4(c) of MSO, which provides that an employee who has worked for a period of more than 240 days in a calendar year is entitled for benefit of permanency in service.

24) The contention of Mr. Mehadia, learned Advocate that yardsticks which are applicable to the public employment may not be made applicable to employment with a private college, cannot be accepted since the relevant statutory provision i.e. the Standard Code provides the procedure to be followed by making appointments of non- teaching employees in an affiliated college. It is now well settled that in order to claim benefit of Clause 4(c) of MSO for the purpose of regularization in service, it must be proved that the initial appointment was made legally in accordance with statutory provisions.

25) As regards the contention with respect to regularization being granted to two other employees, the evidence on record is silent with respect to the procedure that was adopted while granting them appointments. In the absence of clear evidence in this regard, it will be difficult to apply principle of parity for granting relief of regularization in service to the respondent/complainant.

26) The claim for regularization in service is, therefore, not tenable. The impugned order passed by the learned Industrial Court to the extent it directs the petitioners to accord status of permanent employee to the complainant w.e.f. 01/08/2007, is liable to be set aside.

27) Apart from prayer for regularization, the respondent/employee has also made a prayer for payment of salary in the prescribed pay scale. The said relief is also granted  by  the  learned  Industrial  Court.  Mr.  Sanyal,  the learned Advocate criticized the judgment passed by the learned Industrial Court on the ground that the learned Industrial Court failed to appreciate that the respondent/employee was appointed in service as a part time employee on a temporary basis and as such, he was not entitled to the benefit of salary in the prescribed pay scale. He further contends that the appointment of the respondent/employee is also not made by following prescribed procedure and on this count also the relief of payment of salary in prescribed scale cannot be granted to him. The learned Advocate vehemently argues that the principle for equal pay for equal work cannot be made applicable in the present case both, on facts and also in law.

28) Per contra, Mr. Mehadia, learned Advocate points out to the findings recorded by the learned Industrial Court to contend that the work performed by the respondent/employee is of regular nature and that the respondent/employee is not a part time employee. The learned Advocate further contends that the petitioners who have  extracted  the  work  of  regular  employee  from  the respondent/employee cannot deny benefit of payment in the prescribed pay scale to him.

29) The issue as regards the entitlement of respondent/employee to receive the salary in the prescribed scale is no longer res integra. The legal position in this regard is settled by the Hon’ble Supreme Court in the case of State of Punjab and ors. V/s. Jagjit Singh and ors. reported in (2017) 1 SCC 148. The Hon’ble Supreme Court has dealt with almost every judgment dealing with the principle of equal pay for equal work and has held that the temporary employees are also entitled for the benefit for equal pay for equal work. However, it is held that such temporary employees will not be entitled to the benefit of increments. The Hon’ble Supreme Court has laid down that such temporary employees will be entitled to lowest grade of salary prescribed under the relevant pay scale along with such other allowances as are paid to regular employees. It is also held that the benefit of revision in pay scale will also have to be accorded to such employees. The contentions that the  temporary  employees  who  are  not  working  against regular posts came to be categorically rejected. Likewise the contention that the temporary employees were not appointed by following due procedure prescribed for appointment of regular employees and therefore, they are not entitled to salary in the prescribed pay scale, is also rejected by the Hon’ble Supreme Court. It will be pertinent to state that the judgment also takes note and deals with Constitution Bench judgment of the Hon’ble Supreme Court in the case of State of Karnataka V/s. Umadevi reported in (2006) 4 SCC 1.

30) The Hon’ble Supreme Court has held in the case of Jagjit Singh and ors. (supra) that the Constitution Bench judgment in the case of Umadevi (supra) distinguishes right of regularization and right of temporary/ad-hoc/daily wager employees to receive equal pay for equal work. It is held that although the Constitution Bench holds that services of ad-hoc employees or daily wagers cannot be regularized as a matter of course, such employees cannot be deprived of their right of equal pay for equal work, which is a facet of Article 39 of the Constitution of India. It is held that employees who are appointed as ad-hoc or temporary employees are entitled to receive salary at par with regularly appointed employees and that their claim cannot be denied on the basis of artificial distinction of they being ad-hoc or temporary employees if the nature of work performed by them is same as that performed by regular employees. It is held that to deny the guarantee of equal pay for equal amount of work will tantamount to exploitative enslavement of employees and that such tendencies must be discouraged in a welfare State. The Hon’ble Supreme Court has held that daily wagers, ad- hoc appointees, contractual employees and employees appointed on casual basis etc. are entitled to same salary as is paid to regular employees, provided that the work performed by them is the same as that performed by regular employees. In view of clear enunciation of law in Jagjit Singh and ors. (supra), there cannot be any shred of doubt that the respondent/complainant will be entitled to payment of salary at the lowest level in the prescribed pay scale for the post of Laboratory Attendant. The respondent/complainant will, however, not be entitled for increments in the scale. It is also clarified that benefit of pay revision as per recommendations of Successive Pay Commissions will also have to be granted, if the same is accepted/adopted by the State Government.

31) The same view is taken by the Hon’ble Supreme Court in the case of Secretary, Mahatma Gandhi Mission and another V/s. Bhartiya Kamgar Sena and ors., reported in (2017) 4 SCC 449 and Sabha Shanker Dube V/s. Divisional Forest Officer and ors. reported in AIR 2019 SC 220.

32) Both these judgments hold that the employees working on temporary basis are entitled to salary at the lowest grade in the prescribed pay scale along with  allowances for the post, on which, they are working and further that such employees will not be entitled for regular increments, which are only available to regular employees.

33) It must also be stated that although the appointment of respondent/complainant is not strictly in accordance with the provisions of Standard Code, the appointment is also not secured by any unfair means. Such is not even the case of the petitioners.

34) The contention of Mr. Sanyal, learned Advocate that  since  the  petitioner  No.  1-college  is  an  unaided institution, directions for making salary in the prescribed scale should not be issued, is recorded only for being rejected. The petitioner No. 1-college although is an unaided institution, is under an obligation to pay salaries to its employees in accordance with prescribed pay scales and cannot seek any exemption from the same on the ground that it is unaided institution. In this regard, it must be stated that the Hon’ble Supreme Court has in the case of Secretary, Mahatma Gandhi Mission (supra) categorically dealt with the said contention. In the said case, while accepting recommendations of the 6th Pay Commission, the Government of Maharashtra issued Government Resolution dated 12/08/2009, which provided for applicability of provisions of the 6th Pay Commission for aided private educational institutions only, thereby excluding unaided institutions. Dealing with the challenge to the said GR to the extent it excluded unaided institutions, the Hon’ble Supreme Court set aside the said GR and held that the benefits of the 6th Pay Commission were required to be extended to the unaided institutions  as  well  and  accordingly,  the  GR  dated 12/08/2009 was set aside to the extent to which it excluded employees working in unaided colleges for securing benefit of the 6th Pay Commission.

35) As regards, the facts of the present case, the learned Industrial Court has referred to admissions on the part of the petitioner No. 1-college during the course of cross- examination and has found that the respondent/employee  was not a part time employee and that all throughout, since the date of his initial appointment, he has rendered service for more than 240 days with the petitioner No. 1-college. The learned Industrial Court has referred to the documents filed on record by the petitioner No. 1 to compute the number of days during which the service is rendered by the respondent/employee with the petitioner No. 1/-college. The learned Industrial Court has rightly found that the work performed by the petitioner is regular work of a perennial nature. It appears from the record that during Summer Vacations, the services of the petitioners were discontinued and thereafter, the respondent /employee was re-appointed upon commencement of next Academic Session.

36) It must also be stated that the learned Industrial Court has referred to a categorical admission by the petitioner No.1-college during the course of cross- examination of its witness, wherein it was specifically admitted that the complainant was working as a full time employee ever since the date of his initial appointment. The contention of the petitioners that the respondent/employee is not entitled to receive salary in the pay scale on the ground that he is not a full time employee and that the work performed by him is not of a regular nature is, therefore, liable to be rejected.

37) It is informed that the recommendations of 7th Pay Commission are implemented in the petitioner No. 1- college and the benefits thereof are extended to employees who are working in grant-in-aid sections. The benefit of 7th Pay Commission cannot be denied to employment working in non-grant sections in view of judgment in the case of Secretary, Mahatma Gandhi Mission (supra).

38) In view of the aforesaid, in the considered opinion of this Court, the petitioners have indulged in unfair labour practice under item 6 and 9 of Scheduled IV of the MRTU and PULP Act, 1971. The judgment by the learned Industrial Court will have to be sustained to the extent to which the directions for payment of salary in the scale is issued, however, with a clarification that the respondent/employee will not be entitled for increments prescribed.

39) In view of the aforesaid, the following order is passed:-

ORDER

The Writ Petitions are partly allowed by modifying Clause (4) of the operative orders in the following judgments and orders passed by the learned Member, Industrial Court No. 3, Nagpur, as per Clauses (a) to (d) below:-