Gujarat High Court
Amreli Municipality vs Shantibhai Dhyabhai Jethva on 20 January, 2025
NEUTRAL CITATION
C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16509 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17049 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17019 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 16559 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 16542 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17064 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 16894 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 16943 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 16944 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 16978 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17110 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17126 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17343 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17475 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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AMRELI MUNICIPALITY
Versus
SHANTIBHAI DHYABHAI JETHVA & ORS.
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NEUTRAL CITATION
C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025
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Appearance:
MR DEEPAK P SANCHELA(2696) for the Petitioner(s) No. 1
MR N P PANDYA(11241) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 20/01/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Pandya waives service of Notice on behalf of respondent No.1. With the consent of both the parties, this matter was heard finally.
2. The present petitions are filed challenging the impugned awards passed by the Industrial Tribunal, Bhavnagar, whereby, the reference filed by the employees claiming regularization in the petitioner-Municipality for different posts which came to be allowed and the petitioner was directed to grant the benefit of regularization from 01.06.1999 and it was further directed that time period from the date of appointment till filing of the reference i.e. of the year 2016 shall be considered for the notional benefits and the employees were held to be entitled for all arrears from the date of filing of reference.
3. Facts needed to be discussed for the disposal of this case Page 2 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025 NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined is that the respondent-workmen alongwith 57 other Safai Kamdars (Sweeper) had filed the reference IT No.80 of 2010 before the learned Tribunal, Bhavnagar through Union, seeking regularization of their service on the post of Sweeper. The reference No.80 of 2010 came to be rejected vide order dated 11.12.2013 which remained unchallenged and the second reference came to be filed through different Union which was registered as Reference IT No.136 of 2016 before the Industrial Tribunal, Bhavnagar for the same relief of regularization on the post of Sweeper from the date of their initial appointment and also requested to pay all the arrears from the date of appointment. The aforesaid Reference was contested by petitioner-Municipality by filing written statement. Learned Industrial Tribunal, after considering the evidence placed by both the parties, has allowed the Reference filed by the respondent- employees which is subject matter of consideration before this Court.
4. Heard learned advocate Mr.Haribhai Patel for learned advocate Mr.Sanchela for the petitioner and learned advocate Mr.Pandya for the respondent. Page 3 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025
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5. Learned advocate for the petitioner submits that learned Tribunal committed error in allowing the Reference in favour of the employees without considering the fact that the petitioner-Municipality is governed under the provisions of Gujarat Municipality Act wherein, the specific provisions with regard to fixation of staff pattern and set up was given. Learned advocate for the petitioner submits that the impugned order was contrary to the direction issued by the Apex Court time and again where the practice of back door entry has been deprecated. Learned advocate for the petitioner submits that the appointment of the respondent-employees were made without following due procedure and without verifying their educational qualification. Learned advocate for the petitioner further submits that urban development and urban housing department has passed a resolution dated 01.06.2010 whereby, minimum set up came to be fixed in respect of different class of Municipality. In the present Municipality, the category B was allotted. Learned advocate for the petitioner further submits that above resolution provides that unless there is express permission from the Commissioner of Page 4 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025 NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined Municipality to fill up the post, the Municipality would not have the power to regularize the service of the present respondent.
5.1. Learned advocate for the petitioner submits that learned labour court has also ignored the fact that the respondent-employees are junior to other employees who are working since long with the petitioner- Municipality, neither they are possessing the requisite qualification, however, learned Tribunal has directed to regularize the service by keeping aside the service of the other employees who are senior than the respondent- workman. Learned advocate for the petitioner further submits that the learned Tribunal has blindly accepted the appointment date i.e. 01.06.1999 without calling for any evidence in support thereof. Learned advocate for the petitioner further submits that learned Tribunal has further observed that there is no requirement to examine whether the posts are available or not which is contrary to the directions issued by the Apex Court. Learned advocate for the petitioner further submits that the reference is barred by the Principle of resjudicata as previous reference which was filed for the similar relief Page 5 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025 NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined came to be rejected and without challenging the same, the workman has filed the second reference through different Union.
5.2. Learned advocate for the petitioner submits that learned Tribunal also committed error in allowing the reference on the ground that the petitioner-Municipality had committed unfair labour practice without framing any issue thereof, or giving separate finding for that. Learned advocate for the petitioner submits that the long service itself would not render the entitlement of the workmen for regularization when the initial appointment itself was dehors the recruitment process. Learned advocate for the petitioner submits that the direction of regularization would cause unnecessary financial burden which would ultimately burden the public exchequer. Learned Tribunal has also committed error by directing the petitioner-Municipality to grant the benefit of award from the date of filing of reference instead of from the date of award. Learned advocate for the petitioner submits that in the public employment, learned Tribunal would not have power to give the directions of regularization as the same would violate Page 6 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025 NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined the order 14 and 16 of the Constitution of India as well as violate the directions issued in the case of State of Karnataka and others Versus Uma Devi and others reported in 2006 (4) SCC 1 by submitting the same learned advocate Mr.Sanchela has requested to allow this petition by setting aside the the impugned award passed by the learned Tribunal.
5.3. Learned advocate for the petitioner has relied on the decision rendered by this Court in the case of Vrajlal Bachubhai Khachariya versus State of Gujarat tendered in LPA No.1284 of 2016 and in the case of Amreli Municipality Versus Gujarat Pradesh Municipal Karmachari Sangh reported in 2004 (2) GLH 692.
5.4. Learned advocate for the petitioner submits that without considering the settle principle of law, the directions for regularization is issued therefore, same is required to be set aside by allowing the present petition. Learned advocate for the petitioner submits that instead of granting the benefit from the date of filing of the reference, learned Tribunal has granted the same from the date of their initial appointment. Page 7 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025
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6. Per Contra learned advocate Mr.Pandya appearing for the respondent has submitted that the employees are working since 1998/1999 onwards and after serving for 25 years they have been paid minimum wages, instead of regular salary. Learned advocate Mr.Pandya submits that by taking the employment of the perineal nature and by paying meager wages, petitioner-Municipality had committed unfair labour practice and therefore, the learned tribunal has awarded the reference in favour of the respondent-workmen. Learned advocate Mr.Pandya further submits that the previous reference which was decided was not on merits, but only because of the absence of the respondent-employee and in absence of the evidence adduced. Learned advocate Mr.Pandya submits that as there was not adjudication on merits, therefore, principle of res-judicata would not apply and therefore, the impugned award deserves to be confirmed.
6.1. Learned advocate Mr.Pandya submits that sanctioned vacant post was available and after considering the sanction set up, the learned Tribunal came to the conclusion that the service of the respondent-employees Page 8 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025 NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined are required to be regularized. Learned advocate Mr.Pandya submits that as per the admission made by the witness of the petitioner-Municipality, 39 posts were vacant and therefore, the reference which was awarded in favour of the respondent-employee by granting the benefit of regularization, benefits were granted to 14 employees. Learned advocate Mr.Pandya further submits that by not filling the post through recruitment process the petitioner-Municipality has exploited the respondent-employees by paying meager wages on performing the work of the regular employees. Learned advocate Mr.Pandya submits that learned Industrial Tribunal, after assigning cogent reasons has awarded the reference in favour of the respondent-employee, therefore, no interference is required and petition deserves to the dismissed.
7. Considering the submissions made by the learned advocate for the respective parties and the reasons assigned by the learned Tribunal, it emerges from the record that dispute was referred to the Industrial Tribunal to decide that the respondent-employees are entitled to be posted on the vacant post or not. Page 9 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025
NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined Undisputably, the respondent-employees are working since decades. The chart showing the date of appointment of each employee is reproduced herein below:-
Sr. Petition Number Name of Employee Post Joining Date No 1 SCA/16509/2024 Shantilal Dhayabhai Jethva Sweeper 01/06/1999 2 SCA/17059/2024 Himmatbhai Bhikhubhai Sweeper 31/03/1998 Mandviya 3 SCA/17019/2024 Piyushbhai Rameshbhai Chauhan Sweeper 01/06/1999 4 SCA/16559/2024 Deepakbhai Babubhai Valodara Sweeper 31/03/1998 5 SCA/16542/2024 Ashokbhai Amrishbhai Parmar Sweeper 31/03/1998 6 SCA/17064/2024 Maheshbhai Babubhai Vaghela Sweeper 01/06/1999 7 SCA/16894/2024 Rasikbhai Chaganbhai Vaghela Sweeper 01/06/1999 8 SCA/16943/2024 Baluben Manjibhai Makwana Sweeper 01/06/1999 9 SCA/16944/2024 Navinbhai Bhagwanbhai Vaghela Sweeper 28/02/1998 10 SCA/16978/2024 Prafulbhai Bhanabhai Solanki Sweeper 31/03/1998 11 SCA/17110/2024 Gauriben Kamleshbhai Parmar Sweeper 31/03/1998 12 SCA/17126/2024 Hareshbhai Dhirubhai Timaniya Sweeper 01/06/1999 13 SCA/17343/2024 Munnabhai Babubhai Chauhan Sweeper 31/03/1998 14 SCA/17475/2024 Ashokbhai Babubhai Parmar Sweeper 31/03/1998 7.1. As per the sanction set up which was placed on record in the year 2021 before the learned Tribunal, 39 posts were vacant, however, no procedure was followed to fill up the same by way of regular recruitment. It is also Page 10 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025 NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined undisputed that the work which was carried out by the respondent-employees were perineal in nature and they have been paid meager wages in comparison to the wages paid to the regular employees. So far as the contention with regard to the Principle of res judicata is concerned this Court has referred to the decision rendered in the previous Reference dated 11.12.2013, wherein, the learned Tribunal has observed that despite various adjournments were granted the workman has not filed the statement of claim, oral or documentary evidence. In absence of the workman the reference was rejected. It is also not disputed that the said reference was filed through the Union namely Gujarat Safai Kamdar Mahamandal.
8. At this stage, decision rendered by the Apex Court in the case of Chairman and Managing Director versus General Secretary FACT Employees Association reported in 2019 AIR SC 1870 is required to be referred wherein, it is held that no judicial forum at the instance of any party to the lease had jurisdiction to try the issue again on its merits. It was barred for being tried again by virtue of Principle of res-judicata Page 11 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025 NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined contained in section 11 of the code which has also application to the labour/industrial proceedings.
Honorable Apex Court has relied on the decision rendered in the case of RC Tiwari versus MP State Co-operative Marketing Federation Ltd. reported in 1997 5 SCC 125 and has held that "admittedly there is a finding recorded by the Deputy Registrar upholding the misconduct of the petitioner, that constitute the res judicata. Section 11 of the CPC does not in terms apply because it is not a court but a Tribunal, constituted under the Societies Act is given special jurisdiction. So the principle laid down there under mutates squarely applies to the procedure provided under the Act. It operates as res judicata, thus we find that High Court is well justified in holding that labour court has no jurisdiction to decide the dispute, once over and the reference itself is bad in law.
9. The Apex Court in the case of Chairman and Managing Director versus General Secretary FACT Employees Association (supra) has also referred the decision rendered in Pondicherry Khadi And Village Versus P. Kulothangan And Anr. reported in 2004 1 Page 12 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025 NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined SCC 68 and has held that in our opinion "the appellant has correctly contended that industrial dispute pertain to same subject matter dealt with in earlier writ proceedings and was barred by principle of res-judicata.
10. This Court has considered the decision rendered by the Apex Court in the case of Virendra Bhandari Versus Rajasthan State Road Transport Corporation reported in 2002 (9) SCC 104 wherein, the Apex Court has held that previous reference wherein, the appellant does not appear inspite of notice has been adjudicated in that manner. Thereafter, the Government, by another order dated 20.12.1988 made a reference of a dispute on same question on which earlier reference had been made and the Apex Court has held that when there is no adjudication of the matter on merits, it cannot be said that industrial dispute does not exist. If the dispute still exists, as is opined by the Government, such matter can be referred under section 10 of the ID Act, 1947 and it was certainly permissible for the Government to have made the second reference on which, after inquiring the matter, the Tribunal adjudicated finally.
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11. Considering the above decisions, it is settled position of law that if the matter is previously heard and finally decided by the Court, then in the subsequent proceedings, principle of res-judicata operates. Here in the present case, undiputably the order was not on merits but due to absence of the workman the reference was rejected. In that event in the opinion of this Court, the principle of res-judicata would not have applicability.
12. The next question which arise for the consideration is that whether the sanction set up was available or not. The set up which was produced by the learned advocate for the petitioner for the petitioner of March, 2022 suggests that in all there were 93 posts sanctioned out of that 54 posts were filled up and 39 posts are still vacant. The decision which was relied by the learned advocate for the petitioner in the case of Amreli Municipality Versus Gujarat Pradesh Municipal Karmachari Sangh (supra) and Vrajlal Bachubhai Khachariya versus State of Gujarat (supra) wherein, this Court has observed that in absence of the sanction set up, direction to regularize the service cannot be passed.
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13. The Apex Court in the case of Vinod Kumar and others vs. Union of India has held that merely the workman were not appointed after due procedure of recruitment would not be ground for not regularizing the service as they had worked for decades and at that point of time no objections were raised. The relevant paragraphs are reproduced hereinbelow:
"5.Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants in the capacities of regular employees, performing duties indistinguishable from those in permanent posts, and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the temporary and scheme-specific nature of their initial engagement. Moreover, the appellants' promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified merits a reconsideration of their employment status.
6.The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed Page 15 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025 NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra).
7.The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case.
Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :
(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 :
1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees Page 16 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025 NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one- time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
14. This Court is of the view that having allowed workman to work for more than three decades, employer cannot take defence that appointment is dehors the recruitment rules and therefore, employees does not entitle for benefit of reinstatement.
15. In view of the above discussion, this Court did not find any infirmity in the impugned judgment and award passed by the learned Tribunal directing regularization Page 17 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025 NEUTRAL CITATION C/SCA/16509/2024 JUDGMENT DATED: 20/01/2025 undefined of the services of the respondent-employees.
16. Resultantly this petition is dismissed. Rule is discharged.
17. Name of learned advocate Mr.Pandya be shown on behalf of the respondent in SCA No's.16894 of 2024, 16943 of 2024, 17126 of 2024, 17343 of 2024, 17475 of 2024.
(M. K. THAKKER,J) NIVYA A. NAIR Page 18 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:46:06 IST 2025