Gujarat High Court
Vice Chancellor, Gujarat Ayurvedic ... vs Secretary on 8 March, 2018
Author: K.M. Thaker
Bench: K.M.Thaker
C/SCA/17950/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17950 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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VICE CHANCELLOR, GUJARAT AYURVEDIC UNIVERSITY
Versus
SECRETARY
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Appearance:
MR MB RANA for the PETITIONER(s) No. 1
MR TEJAS D SHUKLA for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 08/03/2018
ORAL JUDGMENT
1. Heard Mr.Upadyay, learned advocate for Mr.Rana, learned advocate for the petitioner - Gujarat Ayurvedic University and Mr.Shukla, learned advocate for respondent - Mazoor Mahajan Sangh.
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2. In this petition, the petitioner - Gujarat Ayurvedic University (hereinafter referred to as 'the university') has challenged award dated 26.7.2016 passed by the learned Industrial Tribunal, Jamnagar in Reference (IT) No.442 of 2012 (old Reference No.154 of 2012) whereby the learned Tribunal directed the university to regularise the service of the claimant, i.e. present respondent and to confer status of permanent workman and place him in regular pay scale from the date and in the manner specified in the award. Feeling aggrieved by the said award, the university has taken out this petition.
3. So far as factual backdrop is concerned, it has emerged from the record that the claimant, i.e. present respondent raised industrial dispute with demand that the university should consider him regular employee and should confer the status of permanent workman and grant all benefits available to permanent employee.
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4. The appropriate government referred the demand / dispute on the ground that the university employed him from January 1987 on the post of Peon and that from 18.3.1987 he served regularly with the university and that in each year he worked for 240 days and though he served with the university continuously and regularly from 1987 to 2012, the university did not consider him as regular and permanent employee but continued to treat him as daily wager and deprived him of all consequential benefits available / payable to a permanent employee. With the said allegation, the claimant demanded regularisation in service, status of permanent employee and all consequential benefits.
5. The university denied the allegations and opposed the demand of the claimant. In its written statement / reply, the university claimed that the claimant worked with the university intermittently for casual work and that he was engaged on daily wage basis for different work 3 C/SCA/17950/2016 JUDGMENT during different period and he did not work continuously on the same post and/or for the same job / work. In furtherance of the said submission, the university claimed that the claimant was actually engaged for some period on ad hoc and daily wage basis for the work of Chowkidar under an office order issued in January 1987. The university also claimed that thereafter the claimant worked for different nature of work and performed different duty. The university also claimed that the claimant worked intermittently as Chowkidar from April 1989 to May 1990. The university also submitted that from November 1990 to August 1991, the claimant had worked as Ward Attendant. To state in nutshell, the university submitted that since the claimant was never employed by the university on regular basis and after following regular procedure, his demand for regularisation in service on the post of Peon is unjustified.
6. Upon completion of the pleadings by both 4 C/SCA/17950/2016 JUDGMENT sides, the learned Tribunal received evidence from the claimant and the opponent university. When the parties concluded evidence, the learned Tribunal heard rival submissions and on the basis of material available on record, the learned Tribunal passed impugned award. The learned Tribunal has directed the university to regularise the claimant's service and to confer status of permanent workman in category of Peon and to also grant pay scale attached to the post of Peon from the date when the claimant completed 3 years of service after 18.3.1987 and to consider the interregnum, i.e. the period until the date of award as notional. The university is aggrieved by the said decision.
7. Mr.Upadyay, learned advocate for the respondent submitted that the learned Tribunal failed to appreciate that the claimant was not engaged in regular post and after following regular procedure and that he was engaged for casual and different types of work during 5 C/SCA/17950/2016 JUDGMENT different period and that he was engaged on daily wage basis. Since the claimant was never employed in same category and for same work continuously, the directions by the learned Tribunal are unjustified and the award deserves to be set aside.
8. Learned advocate for the claimant, i.e. present respondent would submit that the claimant served with the university from 1987 and the action of the university viz. not considering him permanent employee and not regularising his service despite long tenure of service, is illegal and in violation of the provisions under the Industrial Disputes Act, 1947. he submitted that in light of the facts of the case, the order and directions passed by the learned Tribunal are just and proper and may not be disturbed.
9. I have considered rival submissions and impugned award as well as other material available on record.
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10. So far as the submission by the university to the effect that the claimant was engaged intermittently and that he was engaged on different posts or for different work, is concerned, at the first blush, the said submission appears and sounds attractive.
11. In view of the fact that neither the university nor the claimant has placed, on record of this petition, copies of the appointment orders issued by the university from time to time and also with a view to ascertaining as to whether the said appointment orders were placed on record before the learned Tribunal or not, this Court, vide order dated 27.2.2018, called for the Record & Proceedings of Reference (IT) No.442 of 2012. On perusal of the Record & Proceedings of Reference (IT) No.442 of 2012, it has emerged that the appointment orders issued by the university are available on record of Reference (IT) No.442 of 2012 from pages 99 to 129 and some other appointments are found 7 C/SCA/17950/2016 JUDGMENT scattered in Record & Proceedings of Reference (IT) No.442 of 2012.
12. On perusal of the copies of the orders (which are available at pages 99 to 129) it emerges that the said orders develop continuous chain of several appointment orders issued from time to time.
13. The documents which the university placed on record, to justify the said submission, would, at first glance, support the said submission and the contention of the university. On first glance at the office orders (issued by the university from time to time), it would appear that the claimant was engaged for varied works and that he was engaged on different post at different times. Differently put, the office order gives an impression that there was no continuity or consistency in the nature of duty, for which the claimant was engaged by the university and the different type of duties which he performed over a period of time.
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14. However, on close scrutiny of the orders issued by the university from time to time, it emerges that the university had resorted to unfair practice of issuing different appointment orders which reflected names of different posts. It also comes out from even plain reading of the orders that the university had continuously and consistently issued appointment orders to the claimant and he was engaged continuously and without break. The orders issued by the university, when considered conjointly and together, develop and make out a continuous chain of appointment orders right from 1987 onwards until the claimant raised the dispute i.e. 2001. The said orders also establish the fact that there is no hiatus or break in continuous engagement of the claimant from 1987 onwards.
15. Further, the claimant asserted in his deposition said during entire tenure he was engaged to work as and to perform the duty of peon though every time different nomenclature was 9 C/SCA/17950/2016 JUDGMENT used in the appointment order.
16. Since the university employed the method of issuing appointment orders for posts or with different nomenclature, it would, at first blush, appear that the claimant was engaged by the university for different nature of work and there was no consistency or continuity in the nature of work / duty which he performed / for which he was engaged. However, the evidence on record has brought out and the learned Tribunal has not committed any error in appreciating actual fact which emerged from the evidence, viz. (a) the claimant was engaged continuously from 1987; and
(b) the claimant was engaged for similar work throughout entire tenure and it was merely paper arrangement, only with a view to giving an impression that the claimant performed different work, that appointment orders with different or changed nomenclature for different posts / different duties were issued.
17. This aspect emerges clearly from the summary 10 C/SCA/17950/2016 JUDGMENT of the appointment orders issued by the university from time to time.
18. It also emerges from analysis of evidence and conclusion by the learned Labour Court.
19. The said conclusion cannot be faulted.
20. The said conclusion also leads to further fact that the petitioner university indulged in unfair labour practice.
21. In this context, it would be appropriate to take into account the observations by Division Bench in case of Surat Mahila Nagrik Sahakari Bank Ltd. vs. Mamtaben Mahendrabhai Joshi [2001 (2) GLH 447], wherein the Court observed, inter alia, that:
"27. Considering the various case law and considering the facts of the case, especially when we have gone through the evidence, which was led by the parties, we are of the opinion that the respondent employee was given tenure appointment orders from time to time for a long period, which extended beyond 240 days. It is no doubt true that the respondent has not specifically pleaded that the power exercised by the Management was nothing but a colourable exercise of power. However, the facts of the case as well as the evidence on the record clearly establish that such temporary orders were given from time to time and, therafter, the services of the respondent were terminated even though the work in question was still in existence. There is nothing on record to show 11 C/SCA/17950/2016 JUDGMENT that such work was not in existence at the relevant time when her services were terminated. In fact, at the time of argument, Mr.Patel himself has stated that if her work were found to have been satisfactory, she would have been given permanent appointment. Therefore, it is not possible to believe that since the work, for which she was appointed, was not in existence, her services were not continued further. In so far as the unsatisfactory work is concerned, there is absolutely no reliable material for coming to the conclusion that her work was not satisfactory. Few orders on which reliance was placed by Mr.Patel do not inspire confidence to reach the conclusion that really, the work of the concerned employee was not satisfactory. In our opinion, it is not open for the Management to take the benefit of the nature of appointment order, i.e. tenure order, with a view to depriving the employee the benefit available under the Industrial Law. This is not a case, wherein only for a fixed type of work, like a Project, etc., an appointment is given and on completion of such work or project, the services of such employee is not required any further. On the contrary, the respondentemployee could have been continued in service even as per the say of Mr.Patel, if her services were found to be satisfactory. That shows that the work in question is still available and other similarly situated employees, who were appointed with the respondent, have been continued in service by the Management. In fact, to continue a person for a very long time under temporary orders may amount to Unfair Labour Practice within the meaning of the Fifth Schedule of the Industrial Disputes Act, 1947. Clause 10 of the Fifth Schedule lays down that employment of workmen as "badlis", casuals or temporaries and continuing them as such for years, with the object of depriving them of the status and privileges of permanent workmen, may amount to Unfair Labour Practices. The Industrial Court, Surat, in appeal, has considered in paragraph 14 of its order, various appointment orders, which are 16 in number. The appellate court has observed that with a break of one or two days, fresh orders were used to be given to the respondent. The Court has also considered the evidence of the Management, wherein the Bank Manager has said that she cannot state whether any other employees have been continued in service after the termination of service of the respondent. The Industrial Court has not believed the evidence of this Bank Manager on the ground that it is difficult to believe that she is not aware about the aforesaid facts even after serving since 20 years. The Industrial Court has also found in the said paragraph that one Ashaben Pachhigar, who was also given temporary appointment from 8.1.1991 to 7.2.1991, was the sisterin law of the Manager of the Bank and the said Ashaben was made permanent. Mention is made by the Industrial Court in paragraph 14 of the judgment about similar types of appointments given to others. Considering the aforesaid benefit given to other similarly situated employees as well as considering the fact that the work in question was of a permanent nature, and the employees similarly appointed with the present respondent and even subsequently appointed, have also been made permanent, 12 C/SCA/17950/2016 JUDGMENT the Industrial Court has found that the action of the Management was deliberate and intentional not to give status of permanency to the present respondent with an object of depriving her the benefit of law. Under these circumstances, the appellate court has given a finding of fact that the action of Management is not bona fide and by keeping prejudice, she has not been given appointment in order to provide employment to others and that the work in question has continued even after the termination of service of the respondent. Considering the totality of the evidence, therefore, the Industrial Court has given detailed reasons starting from paragraph 14 onwards. It is no doubt true that the applicant, in her application or even in her approach letter before filing the application to the Court or in her evidence, has not clearly stated that the action in question is by way of colourable exercise of power. Still, the appellate court has considered the benefit given by the Bank to others and has also come to the conclusion that this is a case of victimisation, as observed in the concluding part of paragraph 14 of the order. Therefore, it is not possible for us to believe that the learned single Judge has given the said finding even though there is absolutely no evidence on the record, because, ultimately, the reasoning of the Industrial Court also is on the same line. Therefore, once it is found by the fact finding court, i.e. the Industrial Court, that the order in question is not bona fide and that it is passed by way of victimisation and the said reasoning is based on appreciation of evidence and when attention of the parties is focused on this question, it cannot be said that the said finding of fact is based on no evidence or that the point is wrongly decided even though it was not in issue before the Court. In that case, even if there is no specific issue and if the evidence is already available on the record, such finding cannot be said to be vitiated. While exercising extraordinary powers under Article 226 of the Constitution of India, therefore, it is not possible for this Court to set aside the aforesaid finding of fact, and it cannot be said that the same is without any foundation worth the name. Though it is, no doubt, true that in case of a fixed term appointment, in view of Section 2(oo)(bb), the provisions of Section 25F may not have any application, the Court, exercising powers under the Industrial Disputes Act, can very well go into the questions whether the powers are exercised bona fide, whether it is by way of victimisation or whether it is passed solely with the object of depriving the employee the benefit available under the Industrial Disputes Act. It cannot be said that even if the order is passed by way of victimisation or in an arbitrary manner, or even if it is an unfair labour practice, then also simply because the appointment is for a fixed term, provisions of Section 25F are not to be looked into at all. In our view, therefore, the said provision cannot be brushed aside if it is brought to the notice of the Court that the order in question was passed by way of victimisation or has not been passed with a bona fide intention. When the appellate court has specifically come to the conclusion, on appreciation of the evidence, it 13 C/SCA/17950/2016 JUDGMENT would hardly make any difference whether the concerned employee has pleaded that case in her application or not.
As stated earlier, certain facts are not in dispute that various appointment orders of temporary nature were issued from time to time to the respondent and similar orders were issued to other employees and, thereafter, even persons junior to the respondent were made permanent, coupled with the fact that there is no material except some few lines written in some of the temporary orders that the employee may increase her speed of work, and from the same, ipso facto, it cannot be said that her work was not satisfactory during the temporary period and, therefore, the action of not continuing her in service was not a bona fide and genuine action. Therefore, in our view, it is not open for the appellant to take benefit of tenure appointment unless such action is found to be reasonable, bona fide and genuine. The material on the record do not satisfy our conscience that the noncontinuance of the respondent in service was bona fide. In view of the positive finding given by the appellate court, we are not in a position to accept the say of Mr.Patel, and as stated earlier, said provision of Section 2(oo)(bb) cannot be made applicable in all cases, where, based on evidence, it is found that the action of the employer is by way of victimisation or, in any case, is not bona fide.
28. It is required to be noted that the proceedings remained pending in various courts for a long time and the initial proceedings are of 1992. The Management, therefore, will be subjected to back wages for a long time. However, considering the facts and circumstances of the case, especially the fact that the Management has not followed the provisions prescribed under Section 25F of the I.D. Act before terminating the services of the concerned employee, which can be considered as a fault of a technical nature, as well as considering the totality of the circumstances of the case, we are of the opinion that it would be in the interest of justice to confine the back wages to 50% only.
29. In view of the aforesaid facts and circumstances of the case as well as considering the evidence of both the sides, especially considering the reasoning given by the Industrial Court, we do not think that we can disturb the said finding of fact in this Letters Patent Appeal and accordingly, we confirm the order of reinstatement passed by the Labour Court, but we reduce the back wages from 100% to 50%. The appeal is, therefore, allowed only to the limited extent of back wages. The appellant Management may comply with this order, i.e. direction of reinstatement and payment of 50% back wages, within a period of one month from today. It is clarified that if any interim payment is made by the appellant to the respondent, such payment should be deducted while calculating 50% of back wages which are required to be paid by the Management to the respondent. Appeal is allowed to the aforesaid extent with no order as to costs.14
C/SCA/17950/2016 JUDGMENT In view of the above order, no order need be passed in Civil Application No.6614 of 2000.
Mr.Chauhan, learned counsel for the appellant, requested to grant some time for approaching the Apex Court, but since we have already granted one month's time for complying with the direction of reinstatement and payment of 50% back wages, it is not necessary to grant any more time. The said prayer, therefore, cannot be accepted".
22. At this stage, it is relevant to take into account the provisions under the Industrial Disputes Act, 1947, more particularly Entry No.10 of Schedule referred. The said Entry No.10 of 5th Schedule of the Industrial Disputes Act, 1947 reads thus:
"10. To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
23. When the said entry is examined in light of above discussed facts, it emerges clearly that the action of the university amounts to unfair labour practice.
24. It also becomes clear that so as to avoid liability to pay to the claimant all benefits payable to regular and permanent employee of the university, the university adopted the practice 15 C/SCA/17950/2016 JUDGMENT of issuing different appointment orders for specified period and with different nomenclature to the respondent, however, the petitioner university, thereby, continuously and regularly engaged the claimant from 1987 onwards. So as to escape the responsibility which may accrue in favour of the claimant upon being engaged continuously for similar type of work, the university adopted practice of issuing appointment order, wherein the university mentioned different posts / different nature of work which would give an impression that the claimant was engaged for different jobs at different point of time. It is shown that the respondent was engaged as Chowkidar, some appointment orders describe the petitioner's appointment as Ward Attendant in the hospital, whereas some appointment orders describe the petitioner's work as Peon. In his evidence, the claimant specifically mentioned that he was always engaged as Peon and he was required to perform duties and functions of Peon. 16
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25. On the other hand, except mentioning aforesaid facts about the claimant's appointment (in para 13 of the written statement) and placing on record aforesaid orders, the university failed to place any evidence on record to establish that the respondent was actually engaged for different duties / functions and that he actually performed different duties and functions during his tenure.
26. Thus, the university failed to establish that the respondent was not continuously engaged from 1987 onwards and that whenever he was engaged it was for different duties / functions and he never performed similar duty or function continuously for long time during his entire tenure and/or that continuous chain of appointment for same work is not established by the workman. The learned Tribunal has not committed any error in rejecting the said submission by the university.
27. The other contention by the university, viz. that the claimant was engaged irregularly and 17 C/SCA/17950/2016 JUDGMENT without following procedure prescribed by the Rules, is also not sustainable and deserves to be rejected.
28. Actually, the said contention is to be recorded only for the purpose of rejection inasmuch as even according to the case of the university, at the time when when the university started engaging the claimant and for long time thereafter it had not framed Recruitment Rules and Rules for the purpose of recruitment came to be framed only in 2011, whereas the university started engaging the claimant from 1987 onwards. Meaning thereby from 1987 to 2011 during which period, the claimant was engaged continuously and regularly, there were no rules which prescribed the procedure for recruitment. Under the circumstances, in light of undisputed fact that Recruitment Rules were not framed and were not in operation, the question of complying any Rules and following any procedure for engaging a Peon (any employee) did not even arise until 2011 and 18 C/SCA/17950/2016 JUDGMENT that, therefore, submission that the claimant was engaged in violation of the procedure prescribed under the Rules, is misconceived - it is rather lame and feeble attempt by the petitioner - and it cannot be sustained and the claimant's engagement cannot be considered irregular or contrary to the Rules.
29. In light of this background, it becomes clear that the direction by the learned Tribunal to regularise the service of the claimant and to confer status of permanent workman is neither erroneous nor contrary to evidence on record nor arbitrary and in any case the said direction cannot be considered perverse. It is pertinent that it is the university which preferred and chose to mention different posts / designations in the appointment orders, however, actually the claimant, throughout his tenure worked as and performed and duty as Peon and that, therefore, it is for the university to decide the post on which the claimant should be regularised i.e. 19 C/SCA/17950/2016 JUDGMENT either as Peon or as Ward Attendant or as Chowkidar. This Court specifically asked the university about this aspect.
30. In response to the said query by the Court, learned advocate for the university submitted that instead of regularising service of the claimant to the post of Ward Attendant or Watchman (Chowkidar), regularisation on the post of Peon would suit the university better.
31. In light of foregoing discussion and for the reasons mentioned mentioned above, more particularly in light of the fact that the appointment orders issued by the university from time to time develop continuous chain of appointment from 1987 onwards and also in view of the fact that during entire period from 1987 to 2011, any rules prescribing procedure for recruitment were not in force and that, therefore the contention that the claimant's appointment order irregular, is unsustainable and also in view of the fact that the university has engaged 20 C/SCA/17950/2016 JUDGMENT the claimant continuously from 1987 onwards until he raised the dispute and even during the period when the proceedings were pending before the learned Tribunal, the university continued to engage him, the final conclusion by the learned Tribunal that the claimant is entitled for regularisation in service and he is also eligible for permanency, cannot be faulted.
32. The learned Tribunal has, in its discretion, granted 3 years leeway to the university. The said decision is accepted by the claimant and the claimant has not opposed the said direction.
33. With such direction, the learned Tribunal has endeavoured to balance the equity. The learned Tribunal has also balanced equity by differing actual payment of benefit of salary, etc. until the date of award inasmuch as the Tribunal has granted actual benefits only from the date of award. Therefore, the said direction also cannot be said to be unjust or arbitrary.
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34. The learned Tribunal has taken all relevant aspects into account before deciding appropriate relief.
35. Under the circumstances, there is no justification to interfere with or disturb the final conclusion and directions issued by the learned Tribunal.
36. The university has failed to make out any case against the award and against the directions issued by the learned Tribunal.
In the light of foregoing discussion and for the reasons mentioned above, the petition fails and deserves to be rejected and is accordingly rejected. Rule is discharged. Adinterim relief, if any, stands vacated forthwith.
Sd/ (K.M. THAKER, J.) Bharat 22