Gujarat High Court
New Gujarat Mazdoor Manch vs Sardar Sarovar Narmada Nigam Ltd & 2 on 21 February, 2017
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/2271/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2271 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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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 as to the interpretation of the Constitution of
India or any order made thereunder ?
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NEW GUJARAT MAZDOOR MANCH....Petitioner(s)
Versus
SARDAR SAROVAR NARMADA NIGAM LTD & 2....Respondent(s)
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Appearance:
MR TR MISHRA, ADVOCATE for the Petitioner(s) No. 1
MR HS MUNSHAW, CAVEATOR for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 21/02/2017
ORAL JUDGMENT
1. The respective learned counsel have addressed this Page 1 of 7 HC-NIC Page 1 of 7 Created On Sun Aug 13 21:39:40 IST 2017 C/SCA/2271/2017 JUDGMENT court at admission stage at length and therefore, by consent, the petition is disposed of finally.
2. Award dated 31.12.2016 passed in Reference (LCD) No. 1 of 2015 by Labour Court, Ahmedabad, made at the instance of the petitioner, a trade union, for four workmen seeking regularization as permanent employee of the respondents herein, has been rejected. Therefore, this petition.
3. Having considered the rival contentions, it appears that a letter dated 11.3.2011 came to be issued to the petitioners praising their timely help to the respondents in restoring the essential service of operating the valve of the water pump for release of the water to a village in Saurashtra and thus met with emergency which was caused by alleged negligence of M/s. Kirloskar Brothers Limited to whom the respondent employer is said to have given the contract earlier for the said purpose. It appears that the workmen had helped the respondents to tide over the crises in the aforesaid background. By the said letter they were temporarily appointed by outsourcing for a period of one year at a monthly pay of Rs. 40,000/- from 11.3.2011 on their application to the respondents as pump operators. Finding the services of the workmen satisfactory, the said period of one year was extended upto 10.3.2013 by office order dated 16.3.2012. On 26.3.2013, another order was issued extending the contract for one year or until the assignment of the work of operation of pump to Gujarat Electricity Board whichever event occurred earlier. This contractual appointment was eventually ended with the expiry of the term of contract and the workmen were ordered to be relieved from the job.
4 What can be noticed from the facts indicated so far is that initially the work of operation of the electrical pumps Page 2 of 7 HC-NIC Page 2 of 7 Created On Sun Aug 13 21:39:40 IST 2017 C/SCA/2271/2017 JUDGMENT was given by contract to M/s. Kirloskar Brothers. Undisputedly, the workmen were employees of M/s. Kirloskar Brothers between 2004 and 2011 when they came to be appointed on contractual basis in the manner aforestated. Another significant fact is that they were sounded as back as on 26.3.2013 that their renewed contract would cease either on 10.3.2014 or on the date when the work of operation of electrical pumps is given to Gujarat Electricity Board. It is the case of the respondents that as indicated in the office order dated 26.3.2013 the work has eventually been given to Gujarat Electricity Board and since the said eventuality such work is no more available with the respondent, nor such post is available.
5. In the above backdrop of facts, the Labour Court dismissed the reference principally on the ground that the appointment of the workmen was only contractual appointment and it ended with the end of the work and duration of the contract. This finding of the Labour Court is sought to be challenged by the workmen principally on the ground that the respondents by artificially extending the contract from time to time though the work is of perennial nature, have resorted to unfair trade practice. It is argued that the respondents having not made regular appointment by proper recruitment procedure; substitution of the temporary workmen by other group of temporary workmen is impermissible and would tantamount to unfair labour practice. Reliance is placed upon the decisions in Maharashtra State Road Transport Corporation & Anr. v. Casteribe Rajya Parivahan Marmchari Sanghatana (2009) 8 SCC 556; Dr. S.C. Kaushik v. Union of India & Anr. (1980) 1 GLR 997; Director, Health & Family Welfare, Punjab, Chandigarh & ors. v. Baljinder Singh & Anr. 2006(3) L.L.N. 369 and Page 3 of 7 HC-NIC Page 3 of 7 Created On Sun Aug 13 21:39:40 IST 2017 C/SCA/2271/2017 JUDGMENT Surat Mahila Nagrik Sahakari Bank Ltd. v. Mamtaben Mahendrabhai Joshi c/o. Sharad S. Pathak 2001(3) L.L.N.
469.
6. Per contra, the learned counsel for the respondents would contend that no unfair labour practice was established before the court below and in fact, initially the workmen were employees of M/s. Kirloskar Brothers to whom the contract for operating the electrical pumps was assigned by the respondents and as indicated in the letter dated 11.3.2011 it is only on account of emergent situation created by non- cooperation of M/s. Kirloskar Brothers that the workmen came to be appointed for discharge of emergency duty for essential service only as a measure of stop-gap arrangement which lasted for about two years during which M/s. Kirloskar Brothers was substituted with Gujarat Vij Company Limited. It was argued that appointment of the workmen was not done on regular basis through recognized recruitment procedure and in absence of availability of work and the post of the pump operators now with the respondents, it is only on account of interim protection given by the Labour Court that idle wages are being paid to the workmen causing huge loss to the public exchequer. The learned counsel for the respondents relied on State of Maharashtra & ors. v. Anita & Anr. 2016 AIR 3333 and State of Karnataka & ors. v. M.L. Kesari & ors. (2010) 9 SCC 247 to contend that under the above circumstances, no regularisation or absorption is available to the workmen. The learned counsel also invited the attention of this court to the affidavit of the respondents before the Labour Court to point out the facts indicated hereinabove as regards the circumstances of the appointment of the workmen. He also drew the attention of this court to the admission of the Page 4 of 7 HC-NIC Page 4 of 7 Created On Sun Aug 13 21:39:40 IST 2017 C/SCA/2271/2017 JUDGMENT workmen that their initial job was with M/s. Kirloskar Brothers and they have been relieved after cessation of the contract which have been acknowledged by them and that presently the work of pumping is being done through electrical operators and that they are not required to discharge the duties at present i.e. on the date of the deposition and they have been continued in service by virtue of the court's order.
7. In the background of aforesaid rival contentions, this court is required to resolve the controversy. The initial appointment of the workmen with M/s. Kirloskar Brothers for the period between 2004 and 2011 is not in dispute. The fact that they were sounded in the year 2013 itself that the work they were doing would be assigned to Gujarat Electricity Board and they would be serving either until the specified date or Gujarat Electricity Board takes over the work is also not in dispute and cannot be disputed as the same is borne out from the documents. The fact that initially the contract for the same work as was being discharged by the workmen was assigned to M/s. Kirloskar Brothers is borne out from the documents on record and the fact that after a brief gap of about two years such a work is assigned to Gujarat Electricity Board is also apparent on record. Thus, it appears that for a temporary period of about two year, the work was assigned to the workmen on contractual basis to tide over emergent situation created by non-cooperation of M/s. Kirloskar Brothers. Can such an arrangement be equated with unfair labour practice is a question to be answered? It cannot be disputed that resorting to unfair labuor practice with a view to deprive the workman of his legitimate dues or legitimate condition of service, by artificial break in service is unfair labour practice. Replacement of one temporary or daily wager with another Page 5 of 7 HC-NIC Page 5 of 7 Created On Sun Aug 13 21:39:40 IST 2017 C/SCA/2271/2017 JUDGMENT temporary or daily wager would also amount to unfair labour practice and if the employer is found to be resorting to such unfair labour practice, it cannot be gainsaid that the court would and should come down heavily upon such employer to curb such practice and restore the legitimate rights of the workman.
8. As noticed above, in the facts of the present case, it was purely a stop-gap arrangement which the respondents were compelled to resort to on account of non-cooperation from M/s. Kirloskar Brothers. The question was that of release of the water for the village from Narmada canal. Because of non-cooperation from M/s. Kirloskar Brothers, it could not be released for consequent period of about three days and that brought about the emergent situation of which emergent resolution was absolutely necessary. Further the contract for the purpose rested with M/s. Kirloskar Brothers for about 7 years and it is now resting with the Gujarat Electricity Board for about 35 years which makes the intention of the respondents clear that they were always intending to carry out the work of operation of the electrical pumps through specialized bodies, experts with electrical devices. Such an arrangement, therefore, cannot be said to have been resorted with a view to deprive the workmen of their legitimate dues or service conditions. Their appointment was only contractual and no retrenchment procedure was required to be followed in view of section 2(oo)(bb) of the Act. Not only that, they were sounded that their appointment is contractual but it was in fact, contractual in the aforesaid circumstances and were also sounded well in advance that it would end on the specified date or on the date when the Gujarat Electricity Board takes over the work. Despite the aforesaid position, the workmen Page 6 of 7 HC-NIC Page 6 of 7 Created On Sun Aug 13 21:39:40 IST 2017 C/SCA/2271/2017 JUDGMENT seem to have moved the Labour Court only in the year 2015 after assigning of the contract to the Gujarat Electricity Board in the year 2013/2014. In the opinion of this court, in the aforesaid set of circumstances, the Labour Court was justified in rejecting the reference on the ground that it was contractual appointment and only a stop gap arrangement as discussed in detail hereinabove.
9. No merits are found in this petition and therefore, the same is liable to be rejected summarily. The petition fails and is rejected with no order as to costs.
10. The injunction granted by the Labour Court continuing the workmen in service shall stand extended for a further period of two weeks as requested by the learned counsel for the petitioners.
(G.R.UDHWANI, J.) (pkn) Page 7 of 7 HC-NIC Page 7 of 7 Created On Sun Aug 13 21:39:40 IST 2017