Gujarat High Court
Mahuva Municipality vs Maheshbhai Jinabhai Sarvayya on 6 March, 2018
Author: Biren Vaishnav
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1036/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1036 of 2016
In SPECIAL CIVIL APPLICATION NO. 963 of 2016
With
R/LETTERS PATENT APPEAL NO. 1037 of 2016
In
SPECIAL CIVIL APPLICATION NO. 964 of 2016
With
R/LETTERS PATENT APPEAL NO. 1038 of 2016
In
SPECIAL CIVIL APPLICATION NO. 965 of 2016
With
R/LETTERS PATENT APPEAL NO. 1039 of 2016
In
SPECIAL CIVIL APPLICATION NO. 966 of 2016
With
R/LETTERS PATENT APPEAL NO. 1040 of 2016
In
SPECIAL CIVIL APPLICATION NO. 967 of 2016
With
R/LETTERS PATENT APPEAL NO. 1041 of 2016
In
SPECIAL CIVIL APPLICATION NO. 968 of 2016
With
R/LETTERS PATENT APPEAL NO. 1042 of 2016
In
SPECIAL CIVIL APPLICATION NO. 969 of 2016
With
R/LETTERS PATENT APPEAL NO. 1043 of 2016
In
SPECIAL CIVIL APPLICATION NO. 970 of 2016
With
R/LETTERS PATENT APPEAL NO. 1044 of 2016
In
SPECIAL CIVIL APPLICATION NO. 971 of 2016
With
R/LETTERS PATENT APPEAL NO. 1045 of 2016
In
SPECIAL CIVIL APPLICATION NO. 972 of 2016
With
R/LETTERS PATENT APPEAL NO. 1046 of 2016
Page 1 of 29
C/LPA/1036/2016 JUDGMENT
In
SPECIAL CIVIL APPLICATION NO. 973 of 2016
With
R/LETTERS PATENT APPEAL NO. 1047 of 2016
In
SPECIAL CIVIL APPLICATION NO. 974 of 2016
With
R/LETTERS PATENT APPEAL NO. 1048 of 2016
In
SPECIAL CIVIL APPLICATION NO. 975 of 2016
With
R/LETTERS PATENT APPEAL NO. 1049 of 2016
In
SPECIAL CIVIL APPLICATION NO. 976 of 2016
With
R/LETTERS PATENT APPEAL NO. 1050 of 2016
In
SPECIAL CIVIL APPLICATION NO. 977 of 2016
With
R/LETTERS PATENT APPEAL NO. 1051 of 2016
In
SPECIAL CIVIL APPLICATION NO. 978 of 2016
With
R/LETTERS PATENT APPEAL NO. 1052 of 2016
In
SPECIAL CIVIL APPLICATION NO. 984 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
Page 2 of 29
C/LPA/1036/2016 JUDGMENT
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MAHUVA MUNICIPALITY
Versus
MAHESHBHAI JINABHAI SARVAYYA
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Appearance:
MRS. SANGEETA PAHWA, ADVOCATE FOR THAKKAR AND PAHWA
ADVOCATES for the PETITIONER(s) No. 1
MR. ROHAN YAGNIK, ASSISTANT GOVERNMENT PLEADER for the
RESPONDENT(s) No. 5
MR D C SEJPAL for the RESPONDENT(s) No. 1
MR DAXAY D PATEL for the RESPONDENT(s) No. 3,4
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 06/03/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. All these appeals arise out of individual orders passed by the learned Single Judge wherein the Mahuva Municipality had challenged separate awards dated 04.07.2015 passed by the Industrial Tribunal at Bhavnagar.
1.1 Daily-Wager Clerks of the Mahuva Municipality and some working as daily wager Class-IV employees had raised an industrial dispute before the Industrial Court claiming regularization in service. The Industrial Tribunal, partly allowed the reference directing the Municipality to regularize the services of such individual claimants as Clerks/Class-IV employees from the date there was a vacancy on the setup of the Municipality. The Tribunal further directed that they should be paid the regular pay-scale of such post and the Page 3 of 29 C/LPA/1036/2016 JUDGMENT period from which they are so regularized till the date of the award be treated as notional. The Municipality challenged these awards before the learned Single Judge, who dismissed the petitions and thereby confirmed these awards. Hence these Appeals.
2 The facts in brief are as under:
2.1 For the sake of brevity, facts as unfold in Letters Patent Appeal No. 1036 of 2016 are discussed.
2.2 All these daily wagers have been working with the Municipality since 1997 / 1998. A Statement of Claim was filed at Exh.7 by the Clerks stating that they have been engaged as Clerks with the Municipality since 1997/1998.
That they were recruited after following due procedure, however they are being paid minimum wages and not pay on regular scale, though they are discharging duties of a permanent nature of a permanent post. Such action of treating them as daily-wagers and paying them daily wage for the work of permanent nature amounts to unfair labour practice. According to the claimants, such workmen are carrying out similar work carried out by their counterparts who are appointed on a permanent basis, they are not paid regular scale of pay, dearness allowance etc. The claim of these daily-wagers was that, though there was a sanctioned setup of the Municipality they were not being regularized and were under the constant threat of being retrenched. It was their case that persons junior to them had been regularized and therefore the Municipality ought to regularize their services.
Page 4 of 29C/LPA/1036/2016 JUDGMENT 2.3 The Municipality had filed its reply to the Statement
of Claim at Exh.12. According to the Municipality, these workers/Clerks/Class-IV employees were engaged as and when work was available and therefore they had no right to claim regularization. They were not appointed by following a regular process of recruitment and therefore could not claim regularization. There was no permanent sanctioned setup and even 27 daily-wagers appointed earlier in point of time were waiting to claim the benefit of regularization which was granted by Industrial Courts, earlier in point of time and was pending adjudicaton in the higher forum. There was also shortfall in resources of the Municipality. Even the financial strength of the Municipality was not robust. Documentary evidence was produced on record by the claimants at Exh.9 whereas the Municipality produced evidence at Exh.13. Oral evidence on behalf of the claimants was produced at Exh.14 to Exh.16 whereas the Municipality examined their witness at Exh.24. Exh.20 was the affidavit of the Chief Officer who was cross examined by the workman.
2.4 The Industrial Tribunal framed Issues after discussion of evidence. The issue as to whether the claimants should be appointed as Clerks on the regular establishment of the Municipality was answered in the affirmative. As far as financial benefits were concerned, the Tribunal answered the same in part affirmative holding that notional benefits be given.
2.5 The Industrial Tribunal on assessment of evidence produced before it and more particularly of the Chief Officer Page 5 of 29 C/LPA/1036/2016 JUDGMENT of the Municipality at Exh. 20 came to the conclusion that as there was a sanctioned setup and there were several posts which were equivalent to the cadre of Clerks available where these workmen could be absorbed as per the list at Exh.24, the Municipality could not deny their claim for regularization. Based on the examination and cross-examination of the Chief Officer at Exh.29, the Industrial Tribunal opined that it was an admitted position that there were sanctioned posts on the establishment of the Municipality and therefore, the claimants deserved to be regularized.
2.6 On analyzing the evidence of the Chief Officer of the Municipality and looking to his cross-examination, the Industrial Tribunal came to the conclusion that no posts were filled in after retirement on the establishment of the Municipality. Based on the production of the setup of the Municipality produced by the claimant of the Municipality at Exh. 13, showing the setup as on 31.10.2007, which was not denied by the Municipality and a signed copy of such establishment which was produced at Exh.25 and which showed that 29 posts of Clerks were vacant where no appointments were made, the Industrial Tribunal ordered regularisation. Moreover, on the basis of the purported admission of the Chief Officer, the Industrial Tribunal observed that no appointments were made post 1995 and there was therefore no reason to believe that a sanctioned setup of the Municipality did not exist. Holding that the claimants were working continuously for several years, the Industrial Tribunal directed that they were entitled to the benefit of regularization.
Page 6 of 29C/LPA/1036/2016 JUDGMENT 2.7 As far as financial benefits were concerned, the
Industrial Tribunal held that looking to the evidence on record, the claimants were deprived of regularization and regular pay-scale and that since the nature of work that was carried out was that of a permanent nature, the deprivation of benefits by the Municipality amounted to "unfair labour practice". Considering various authorities of the Hon'ble Supreme Court, the Tribunal came to the conclusion that the appellants are entitled to the benefits of regularization and regular pay.
3. Assailing the oral order passed by the learned Single Judge, by which the learned Single Judge confirmed the award and in turn the directions given by the Industrial Tribunal, Bhavnagar, Mrs. Sangeeta Pahwa, learned counsel for the appellants has made the following submissions:
(i) According to the learned counsel for the appellants, the order of the learned Single Judge, by which the impugned award therein was confirmed ought not to have been passed. According to the learned counsel for the appellant, it was not open for the Industrial Tribunal to issue directions granting the benefit of regularization to the claimants. According to the learned counsel, the Municipality is a statutory body, which has a sanctioned setup and it was not open for the Industrial Tribunal to regularize the services of the respondent workman, de-hors the sanctioned setup of the Municipality. In other words, Mrs. Pahwa disputed the observation made by the learned Single Judge in paragraph 4.1 of the impugned judgment, which reads Page 7 of 29 C/LPA/1036/2016 JUDGMENT as under:
"4.1 It is not in dispute that the workmen are in employment of the petitioner Municipality for about two decades. The posts on which the respondents are working are sanctioned posts and are also vacant. For giving effect to the impugned award, no post is to be created or that the said appointment would be out of the sanctioned set up."
(ii) Mrs. Pahwa, learned counsel for the appellant submitted that the finding of the Industrial Tribunal based on the deposition at Exh. 20 of the Chief Officer that there were 29 vacant sanctioned posts of clerks is contrary to the actual facts. She submitted that on the contrary, the total vacant posts of clerks in the Nagarpalika are only five. Inviting our attention to the copy of the setup for the year 2015-2016, it was contended by the learned counsel for the appellant that a total of five posts in the cadre of clerks are vacant. As against this, according to the appellants' counsel, the appellants who are otherwise senior to the respondent workman are already awaiting their chance for such regularization, and their petitions claiming such relief are pending before this Court. In other words, according to the learned counsel for the appellants, it was not open for the Industrial Tribunal to rely on the setup of the year 2007 and arrive at a finding of fact that 29 posts of clerk are vacant on the setup of the Municipality.
(iii) The appellants' counsel further submitted that the majority of the clerks were not even qualified for being regularized in service. According to her, the recruitment rules provide that the minimum qualification for such posts is that the incumbent should be at least Standard Page 8 of 29 C/LPA/1036/2016 JUDGMENT 12th pass; however, the workmen were not even 10th pass and out of the 26 workmen who were sought to be regularized by the impugned award, 22 were directed to be regularized on the posts of clerk and 04 on the posts of class-IV. According to Mrs. Pahwa, none of the respondents workmen are eligible to be regularized as not qualified to hold the posts in question.
(iv) Mrs. Pahwa, learned counsel for the appellant invited our attention to the rejoinder filed in the Letters Patent Appeal contending that it was not open for the Industrial Tribunal to hold that apart from the posts of clerk, promotional posts equivalent to that of the clerks were vacant and available, and therefore, the respondent workmen could be regularized in service. In the submission of the learned counsel for the appellant, such promotional posts carry higher pay-scale than the pay-scale of the clerk. The posts of Shopkeeper, Tax Superintendent, Auditor, Store keeper, Senior Clerk, Head Clerk and Treasurer are promotional posts carrying the higher pay-scale and required specialized qualifications. In view of this specific factual situation, not only was it not open for the Industrial Court to direct that the workmen concerned be regularized and paid the pay-scale equivalent to the scale of such regular employees, nor was it open for the Tribunal to give a blanked direction that such workmen be regularized on such posts. In turn, she contended that the confirmation of the award by the learned Single Judge was also not warranted.
(v) Mrs. Pahwa, learned counsel for the appellant further submitted that the finding of the learned Page 9 of 29 C/LPA/1036/2016 JUDGMENT Industrial Tribunal that continuance of such employees for number of years without extending the benefits of regularization and regular pay-scale amounted to unfair labour practice as defined under the provisions of the Industrial Disputes Act was erroneous. In her submission, it was not open for the Tribunal to rely upon the judgments stated in the body of the award and come to a conclusion that the Municipality was responsible for such unfair labour practice.
(vi) Mrs. Pahwa, learned counsel for the appellants relied on the judgment of the Hon'ble Supreme Court in the Case of Harinandan Prasad vs. Employer. reported in 2014(7) SCC 190. Drawing our attention specifically to paragraph 34 of the judgment, Mrs. Pahwa contended that it is not open for the Industrial Tribunal to give a direction for regularization only because a worker is continued as a daily wager for number of years. If there are no posts available, and if the concerned worker does not meet the eligibility requirement of the post in question, as per recruitment rules, it is not open for the Labour Court in such circumstances to give a direction for regularization.
(vii) Mrs. Pahwa, learned counsel for the appellant also relied on the judgment of the Hon'ble Supreme Court in the case of Mahatma Phule Agricultural University vs. Nasik Zilla Sheth Kamgar Union reported in 2001 (7) SCC 346. Drawing support from the judgment, Mrs. Pahwa, learned counsel for the appellant contended that there cannot be a sweeping order for regularization of workmen in absence of the sanctioned posts. According to Mrs. Pahwa, even when the Page 10 of 29 C/LPA/1036/2016 JUDGMENT reference specifically was in the context of "unfair labour practice", it was not open for the Tribunal and in turn the learned Single Judge to confirm the award of the Industrial Tribunal and give directions to not only regularize the respondent workmen in service as regular clerks / class-IV employees and give such directions when, contrary to the position otherwise there were no sanctioned posts available on the setup of the municipality. In the case of Ahmednagar Zilla Shetmajoor Union vs. Dinkar Rao Kalyanrao Jagdale, our attention was specifically drawn to paragraph 3 of the judgment to contend that for absorption as regular employees, existence of posts is mandatory. Mere continuance for a long period would not confer a permanent status unless there exists a post.
4. Mr. D.C. Sejpal, learned advocate has appeared on behalf of the respondent-workmen, who was successful not only before the Industrial Tribunal but also before the learned Single Judge. Shri Sejpal, in his submission has pointed out as under:
(i) Shri Sejpal, invited our attention to the observations of the Industrial Tribunal while discussing the evidence at Exh.20 of the Chief Officer. According to Shri Sejpal, it was evident from reading the reproduction of the evidence discussed by the Industrial Tribunal that the Chief Officer while being examined had categorically stated that there were posts vacant in the cadre of Senior Clerk, Head-Clerk, Tax Superintendent and all those were posts equivalent to that of Clerk. That, since Page 11 of 29 C/LPA/1036/2016 JUDGMENT the year 2005, no promotions were given on these posts.
In Mr. Sejpal's submission, the Tribunal committed no error in coming to the conclusion and it was entirely a correct finding on behalf of the Tribunal that there was a setup of vacant posts. In spite of such a setup, the workmen were not made permanent. The Industrial Tribunal in context of this oral evidence with the document at Exh.24 produced by the workman found that there were large number of vacancies as a result of retirement of employees and the Municipality had not taken any steps to fill in such vacancies, and therefore, in absence of any other evidence produced on behalf of the Municipality to show that they had made appointments on such vacant posts, it is proved that the posts have not been filled in.
(ii) According to Shri Sejpal, the setup up to 31.10.2007 was produced at Exh.13 and the same was not contested by the Municipality and it was evident from such a document, of which a xerox copy signed by the Chief Officer was produced at Exh.25, which showed that there were 29 vacant posts of Clerks. After 1995, no steps had been taken by the Municipality to make the employees permanent.
(iii) The Industrial Tribunal in Shri Sejpal's submission committed no error in holding that the workman had continued to serve continuously for a long period of time and admittedly there were sanctioned vacant post, which fact was even not disputed based on the evidence of the witnesses, and therefore, the Tribunal and the learned Single Judge did not commit any error in granting the relief of regularization.
Page 12 of 29C/LPA/1036/2016 JUDGMENT
(iv) According to Mr. Sejpal, based on the totality of the evidence so appreciated before the Industrial Tribunal, evident it was that the action of the Municipality in continuing the claimants on a fixed pay, on a daily wage basis without giving the benefit of permanency when such posts were available, tantamounted to unfair labour practice. The Industrial Tribunal, therefore, while on the discussion of the judgments of the Hon'ble Supreme Court and in view of the fact that the employees had been working as daily wagers on a fixed pay for the past 17 years, no error was committed in granting the benefit of regularization. Even, as far as the issue with regard to granting them the pay-scale as is available to the regular appointed class, the Tribunal, in Mr. Sejpal's submission did not commit any error in view of the fact that there was a sanctioned setup in which there were vacant posts. These posts had not been filled in on the retirement of the incumbents therein, and therefore, keeping these facts in mind, the Industrial Tribunal weighed the options and with a view to prevent saddling the Municipality with financial burden only granted notional benefits from the date they to become permanent in accordance with the directions so issued.
(v) In support of his submission, Shri Sejpal relied on the oral orders passed by a co-ordinate bench of this Court in Letters Patent Appeal Nos. 552 of 2016, 361 of 2016, 662 of 2016 and 1095 of 2016. According to Shri Sejpal, in the appeals which were dismissed the appellant was the same Municipality. Drawing support from these oral orders, learned advocate Shri Sejpal submitted that once the appellant Municipality has failed Page 13 of 29 C/LPA/1036/2016 JUDGMENT in its pursuit to challenge the orders of the Industrial Tribunal which conferred regularization on the respondents of such appeals, akin to the facts on hand, this Court should adopt the similar method and not entertain the appeals filed by the appellant - Mahuva Municipality. According to Mr. Sejpal, what is evident on reading Annexure 'C', a statement showing the posts in the setup of the Mahuva Municipality, is that there are 152 sanctioned posts which are vacant. In the submission of Mr. Sejpal, therefore, substantial number of vacant posts are available so as to comply with the directions of the Labour Court.
(vi) Mr. Sejpal also relied on a judgment of the Hon'ble Supreme Court in the case of Umrala Gram Panchayat vs. Secretary, Municipal Employees Union & Ors., reported in (2015) 12 SCC 775. Drawing our attention to paragraph 10 of the aforesaid judgment, Shri Sejpal contended that when it is an admitted fact that the work that is being carried out by the claimants is the same as that of the permanent workman, discrepancy in the payment of wage between permanent and non permanent workman has to be considered as an unfair labour practice. In support of his submissions, therefore, Shri Sejpal contended that the judgment in the case of Umrala Gram Panchayat (Supra), squarely applied to the facts of the present case.
5. Having considered the submissions of the learned advocates for the respective parties, the issue before this Court is as to whether the learned Single Judge committed any error in confirming the award of the Industrial Tribunal.
Page 14 of 29C/LPA/1036/2016 JUDGMENT In order to appreciate this, we need to consider the matters in issue before the Industrial Tribunal. Essentially, on the basis the statement of claim and the written statement filed by the workman and the contesting employer and evidence adduced before it, the Industrial Tribunal was faced to decide two issues:
(A) Whether the contesting claimants/ clerks/Class-IV employees were entitled to regularization on the vacant posts of the Municipality?
(B) Whether the concerned workmen were entitled to the pay and the pay-scale that was available to the permanent clerks, in view of the fact that they were discharging duties of a nature akin to those being performed by such permanent employees?
6. As far as issue 'A' is concerned, that is, whether the Industrial Tribunal was correct and was within its jurisdiction to direct regularization of services of the claimants, working as Clerks and/or those working in the Class-IV post, the following facts need to be noted:
(a) What is evident on reading the award of the Industrial Tribunal is that the Tribunal's finding that there were sanctioned posts vacant in the Municipality is primarily based on an extract of the testimony of the Chief Officer produced at Exh.20. A close reading of the relevant paragraph of the Industrial Tribunal, which records the finding that based on this testimony together with the Exh. 24 list, would suggest that what was before the Tribunal was a setup as it existed on 31.10.2007. The Tribunal, on the basis of the evidence on record came to the conclusion that there are 29 posts Page 15 of 29 C/LPA/1036/2016 JUDGMENT vacant, such as those of Tax Auditor, Shop Inspector, Senior Clerk, Tax Superintendent etc.
(b) On reading the rejoinder filed to the appeal memo what becomes clear is that the post of Clerk carries a pay-scale of Rs.3,050-4,590/-, whereas, the other posts in question carry a pay-scale of Rs.5,500-8,000/-. The Tribunal, therefore, appears to have committed an error in coming to a finding that the posts of Auditor, Treasurer, Shop Inspector etc., are posts equivalent to that of a Clerk. That being the position, in calculating the sanctioned setup available for the purposes of giving the benefit of regularization to the respondents, promotional posts as aforesaid could not have been taken to be a part of the sanctioned setup of clerks.
(c) Even what has come on record is that, except for the post of Clerks, for the posts of Tax Clerk, Senior Clerk, Tax Superintendent and Auditor etc., higher qualifications are necessary, and therefore, since the claimants herein do not fulfill the requisite qualifications of recruitment to such posts even otherwise they would not be entitled to claim regularization on such posts, for which in addition to them being promotional posts they do not possess the requisite qualification.
7. To the submission of Mrs. Pahwa, that there are only five sanctioned posts of Clerks in the setup of the Municipality, the counter of Mr.Sejpal in drawing our attention to the setup produced at page 43 of the paper book of the petition to contend that there are 152 sanctioned posts, appears to be misconceived. Figure of 152 is of the number of sanctioned Page 16 of 29 C/LPA/1036/2016 JUDGMENT posts which consists of separate cadre posts and not only that of clerks. There is, therefore, force in the submission of Mrs. Pahwa that for the present the number of sanctioned posts of Clerks are only five. Admittedly, as is evident from reading the judgment of the Tribunal, the sanctioned setup, based on which the directions have been given in the year 2015, was a sanctioned setup as on 31.10.2007. Obviously therefore, the position as on 2007 could not have been taken into consideration by the Industrial Tribunal in passing the direction granting regularization in service, in absence of any evidence on record to show the current sanctioned setup. Keeping this factual aspect in view in addition to the fact that there are awards of regularization on the posts of Clerks of 24 employees who are senior in point of time and which are pending adjudication in the higher forum than the present respondents, it is apparent that the directions of the Industrial Tribunal imparting benefit of regularization to the respondents suffer from an error.
8. Referring to the judgment in the case of Harinandan Prasad (supra), the Hon'ble Supreme Court has considered the aspect as to whether it is open for a Tribunal or a Labour Court to give directions with regard to regularization of service. The Supreme Court has held that the status of permanency cannot be granted by the Court when no posts exists. The Court further observed in paragraph 34 of the judgment as under:
"34 On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only Page 17 of 29 C/LPA/1036/2016 JUDGMENT because a worker has continued as daily wage worker /adhoc/ temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc., may amount to backdoor entry into the service which is an anathema to Art.14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non-regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Art.14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Art.14, rather than violating this constitutional provision."
8.1 Considering the aforesaid position of law and applying the same to the facts of the present case, what is evident is that not only there is no sanctioned setup available with the Mahuva Municipality in order to enable the Municipality to absorb the respondents, but even otherwise the respondents do not meet the eligibility requirement of the post in question. Thus, the Industrial adjudicator could not have given any direction for regularization only because the claimants have been working for number of years. Even in the case of Mahatma Phule Agricultural University (supra), it was a case where the workers raised an industrial dispute claiming pay-scale on the basis of permanency and other consequential Page 18 of 29 C/LPA/1036/2016 JUDGMENT benefits. In this context, the Hon'ble Supreme Court in paragraphs 12 and 13 of the said judgment observed that the High Court clearly fell in error in granting the benefit of regularization and the wages and benefits akin to permanent workmen, which are reproduced here under:
"12 Mrs. Jaising, in support of Civil Appeals Nos. (arising out of SLP(C) Nos. 418-421/1999 and SLP(C) Nos. 9023-9032/1998) submitted that the workmen were entitled to be made permanent. She however fairly conceded that there were no sanctioned posts available to absorb all the workmen. In view of the law laid down by this Court status of permanency cannot be granted when there are no posts. She however submitted that this Court should direct the Universities and the State Governments to frame a scheme by which, over a course of time, posts are created and the workmen employed on permanent basis. It was however fairly pointed out to Court that many of these workmen have died and that the Universities have be now retrenched most of these workmen. In this view of the matter no useful purpose would be served in undergoing any such exercise.
13 To be seen that, in the impugned judgment, the High Court notes that, as per the law laid down by this Court, status of permanency could not be granted. In spite of this, the High Court indirectly does what it could not do directly. The High Court, without granting the status of permanency, grants wages and other benefits applicable to permanent employees on the specious reasoning that inaction on the part of the Government in not creating posts amounted to unfair labour practice under Item 6 of Schedule IV of MRTU and PULP Act. In so doing the High Court erroneously ignores the fact that approximately 2,000 workmen had not even made a claim for permanency before it. Their claim for permanency had been rejected by the Award dated 20.02.1985. These workmen were only seeking quantification of amounts as quantification of the amounts. Yet by this sweeping Order of the High Court grants, even to these workmen, the wages Page 19 of 29 C/LPA/1036/2016 JUDGMENT and benefits payable to other permanent workmen."
8.2 What the Supreme Court did was confirmed the direction only to the extent of payment of pay-scale and benefits akin to the scale available to permanent employees. Even in the case of Ahmednagar Zilla Shetmajoor Union(supra), the Supreme Court has reiterated, though in the context of seasonal workers that, in absence of a regular sanctioned setup, Tribunal cannot give directions of regularization.
9. Apropos the judgment relied upon by the learned advocate Shri Sejpal in the case of Mahuva Municipality (supra) in the Letters Patent Appeals, what is to be noted is that, in such appeals, workmen were of the Shikshan Samiti under the Nagarprathmik Shikshan Samiti and not directly under the Municipality. As far as the judgment in the case of Umrala Gram Panchayat (supra) is concerned, it was the case where the Supreme Court specifically came to a conclusion that continuing such workmen and denying them benefit of permanency was an unfair labour practice. We would dwell upon the finding as to whether denial of such benefit of permanency or the benefit of pay-scale akin to permanent employees is an unfair labour practice later. In absence of any specific contention in the Statement of Claim or a reference on that issue, and particularly in view of the fact that on the assessment of the facts, we find that there were no sanctioned vacant posts available with the Municipality. Merely, because the respondents continued to work and were not regularized would not ipsofacto amount to unfair labour practice or entitle such claimants the benefit of Page 20 of 29 C/LPA/1036/2016 JUDGMENT regularisation.
9.1 In other words, looking to the facts on hand and the law laid down by the Hon'ble Supreme Court in the case of Harinandan Prasad (supra), we are of the view that as far as issue 'A' is concerned, i.e. whether the benefit of regularization could have been granted by the Industrial Tribunal and in turn confirmed by the learned Single Judge, the answer to the question is in the negative in view of what has been discussed herein above. The Industrial Tribunal and in turn the learned Single Judge fell in error in issuing a direction to the appellant - Municipality to regularize the services of the respondent claimant on the twin counts of the absence of sanctioned posts and in view of the fact that such employees working on daily wage basis were not qualified in accordance with Recruitment Rules.
9.2 The Industrial Tribunal, as we notice has relied on the judgement of the Honourable Supreme Court in the case of Maharashtra SRTC versus Casteribe Rajya Parivahan Karmchari Sanghatana (2009) 8 SCC 556. However, that was in the context of holding that continuing the workmen on a daily wage basis would amount to unfair labour practice. However, we also need to consider and accept the ratio in the judgement of Mahatama Phule University (Supra) that mere inaction on the part of the State employer to create posts would not mean unfair labour practice on the part of the employer. In the facts on hand it has come on record that the Tribunal while considering and granting the benefit of regularisation was taking the set up as on 31.10.2007 and in absence of any material except the testimony of the Chief Page 21 of 29 C/LPA/1036/2016 JUDGMENT Officer at Exh.20 there was no evidence before it to conclude that the Municipality had indulged in unfair labour practice. No material was on record to show that in fact 29 posts of clerks were vacant as recorded by the Tribunal. Therefore, we do not approve the directions given by the Industrial Tribunal as far as the claim of the claimants has been allowed with respect to the respondents being given the benefit of regularisation and permanency under the Municipality. The directions of the Tribunal and findings of fact and observations made by the learned Single Judge in para 4.1 merit interference.
10. In order to appreciate the issue of granting the benefit of the pay-scale, perusal of the Statement of Claim indicates that it was the specific assertion of the workmen claimants- respondents herein, that they are carrying out the nature of work and duties equal and identical to those being carried out by the regular employees. In that event, it was their demand that they be paid "equal pay for equal work" in consonance with Articles 14 and 16 of the Constitution of India. To this Statement of Claim, the appellant - employer in its written statement, except for contending that the employees were not on the regular setup and therefore since their appointment was not in accordance with law which amounted to back-door entry, they were not entitled to regularization. There was no denial to the assertion that the respondent employees were carrying out the work and the nature of duties identical to those carried out by the regular selected employees.
10.1 It is in this context, that we need to answer whether the respondents are at least entitled to the benefit of being Page 22 of 29 C/LPA/1036/2016 JUDGMENT granted the minimum regular pay-scale along with dearness allowance as revised from time to time on account of their performing duties as discharged by the regular employees. Our conclusion to affirm the finding of the Tribunal and hold that the employees are entitled to the benefits of such minimum regular pay-scale is based on the fact that there was no denial by the Municipality that the claimants were carrying out the same nature of work and performing identical duties as was carried out by permanent workman. The discussion of merits in the body of the Award also does not show that the claim was ever refuted by the Municipality.
10.2 In our opinion, even otherwise in absence of the denial that they were carrying equal and identical nature of work the Tribunal did not commit any error in granting the benefit of equal pay for equal work. In the affidavit-in-rejoinder dated 19.11.2016 filed to the memo of the appeal, it is pointed out by the appellant that the pay-scale of the Clerk, on which majority of the respondents were working, except a few Class- IV employees is Rs.3,050 - 4,590/-. In our opinion, that the respondents are entitled to such a pay-scale at least a minimum thereof finds a support from the recent pronouncement of the Hon'ble Supreme Court in the case of State of Punjab vs. Jagjitsingh & Ors., reported in (2017) 1 SCC 148. The Hon'ble Supreme Court in the case of Jagjitsingh & Ors., (supra) was confronted with an issue as to whether temporarily engaged employees "daily wage employees", ad-hoc appointees, employees appointed on casual basis, contractual employees and the like are entitled to minimum of the regular pay-scale along with dearness allowance revised from time to time for performing their Page 23 of 29 C/LPA/1036/2016 JUDGMENT duties akin to regularly selected employees.
10.3 On the principle of "equal pay for equal work" and the ingredients governing such principle, the Court in that case extended the benefit of "minimum of the regular pay-scale"
along with dearness allowance as revised from time to time to temporary employees engaged on a daily basis as ad-hoc employees, employees engaged on casual basis as contract appointees and the like. Referring to the judgment in the case of State of Karnataka Vs. Uma Devi, reported in (2006) 4 SCC 1, the Hon'ble Supreme Court in the case of Jagjitsingh & Ors., (supra) considered the judgment in paragraph 48 thereof, wherein it reproduced paragraphs 44 and 48 of the judgment in the case of Umadevi(supra), which are reproduced herein:
"44. The concept of "equal pay for equal work'' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the Page 24 of 29 C/LPA/1036/2016 JUDGMENT procedure established by law in the matter of public employment........It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
xxx xxx xxx
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. 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 appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees Page 25 of 29 C/LPA/1036/2016 JUDGMENT employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled."
11. Considering this, the Hon'ble Supreme Court observed that in the judgment of Umadevi, the Court had made very important distinction between pay parity and regularization. It was held that the concept of equality would not be applicable to issues of absorption/regularization but the concept was held as applicable and was indeed applied to the issue of pay parity. After considering various judgments of the Hon'ble Supreme Court on this issue, the Hon'ble Supreme Court held as under:
"49 We have given our thoughtful consideration to the observations recorded by this Court, as were relied upon by the full bench (- as also, by the learned counsel representing the State of Punjab). It is not possible for us to concur with the inference drawn by the full bench, for the reasons recorded hereunder:-
49.1 We are of the considered view ,that in paragraph 44 extracted above, the Constitution Bench clearly distinguished the issues of pay parity, and regularization in service. It was held, that on the issue of pay parity, the concept of 'equality' would be applicable (as had indeed been applied by the Court, in various decisions), but the principle of 'equality'could not be invoked for absorbing temporary employees in Government service, or for making temporary employees regular/permanent. All the observations made in the above extracted paragraphs, relate to the subject of regularization/permanence, and not, to the principle of 'equal pay for equal work'. As we have already noticed above, the Constitution Bench Page 26 of 29 C/LPA/1036/2016 JUDGMENT unambiguously held, that on the issue of pay parity, the High Court ought to have directed, that the daily-wage workers be paid wages equal to the salary, at the lowest grade of their cadre. This deficiency was made good, by making such a direction.
49.2 Insofar as paragraph 48 extracted above is concerned, all that needs to be stated is, that they were merely submissions of learned counsel, and not conclusions drawn by this Court. Therefore, nothing further needs to be stated, with reference to paragraph 48.
49.3 We are therefore of the view, that the High Court seriously erred in interpreting the judgment rendered by this Court in the Secretary, State of Karnataka case28, by placing reliance on paragraphs 44 and 48 extracted above, for drawing its inferences with reference to the subject of pay parity. On the above subject/issue, this Court's conclusions were recorded in paragraph 55 (extracted in paragraph 36, hereinabove), which have already been dealt with by us in an earlier part of this judgment."
11.1 The Hon'ble Supreme Court, therefore for the reasons stated in the aforesaid judgment in the case of Jagjitsingh & Ors., (supra) was of the view that the claim of the temporary employees for minimum wages on par with regularly engaged government employees cannot be declined. Final directions were issued by the Hon'ble Supreme Court in paragraph 61 of the judgment holding that they had no hesitation that all temporary employees concerned would be entitled to draw wages minimum to the pay-scale at the lowest in the regular pay-scale extended to regular employees holding the same post.
12. In view of the above, the direction given by the Industrial Tribunal with respect to the respondents to be given the benefit of regularisation and permanency under the Page 27 of 29 C/LPA/1036/2016 JUDGMENT Municipality and so confirmed by the learned Single Judge is hereby quashed and set aside. However, in accordance with the law laid down in the case of Jagjitsingh & Ors., (supra), we are of the opinion and so hold that the respondents herein who are working as Clerks/Class-IV employees are entitled to the minimum pay-scale (along with Dearness Allowance as revised from time to time) as is available to the regular employees holding the same post. In other words, those respondents herein who are discharging their duties in the cadre of Clerks shall be entitled to draw wages at par with the minimum of the regular pay-scale of Rs.3,050-4,590/- from the date of the award i.e. 04.07.2015. Those respondents who are engaged on the posts of Class-IV shall also be extended such benefit of wages at par with minimum of the regular pay-scale revised from time to time on the same lines as being given to a regular Class-IV employees from the date of award i.e. 04.07.2015. The appellant Municipality is directed to extend the benefit of the granting wages at par with the minimum of the pay-scale revised from time to time to the respondents herein together with arrears from the date of award.
13. Taking into consideration the fact that it has come on record that the respondents are working with the Municipality for more than two decades and that the establishment containing various clerical posts and other cadres was sanctioned as early as in the year 1973 and in view of divergent activities in the field of public services and considering the administrative set up as on date it will be open for the municipality to forward a proposal to the competent authority by providing details about requirement of personnel in various departments of the municipality. As and Page 28 of 29 C/LPA/1036/2016 JUDGMENT when such set up is approved by the competent authority, claim of respondents - employees based on their experience and qualification together can be considered for their claim towards permanency in regular set up of municipality keeping in mind the seniority of other employees also. The order impugned passed by the learned Single Judge is modified accordingly. The appeals are partly allowed with the aforesaid directions.
(ANANT S. DAVE,J) (BIREN VAISHNAV,J) Bimal Page 29 of 29