Gujarat High Court
Savarkundla Municipality vs Hareshbhai Naranbhai Gondaliya on 8 November, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/1438/2022 ORDER DATED: 08/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1438 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 19336 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1438 of 2022
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SAVARKUNDLA MUNICIPALITY
Versus
HARESHBHAI NARANBHAI GONDALIYA
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Appearance:
MR. DEEPAK SANCHELA WITH DINESHKUMAR D GAUTAM(9549) for the
Appellant(s) No. 1
for the Respondent(s) No. 2
MR. GAUTAM JOSHI, SR. ADV. WITH VYOM H SHAH(9387) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 08/11/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr. Deepak Sanchela with learned advocate Mr. Dineshkumar Gautam for the appellant Municipality and learned senior advocate Mr. Gautam Joshi with learned advocate Mr. Vyom Shah for the respondent-original petitioner workman.
2. The appellant Municipality has preferred this Letters Patent Appeal seeking to call in question common judgment and order dated 25.3.2022 of learned single Judge in so far as it related to decision in Special Civil Application No. 19336 of 2017. Learned single Judge by the impugned order confirmed judgment and award of the Industrial Tribunal dated 8.5.2017.
Page 1 of 9 Downloaded on : Fri Nov 10 20:55:07 IST 2023 NEUTRAL CITATION C/LPA/1438/2022 ORDER DATED: 08/11/2023 undefined 2.1 Partially allowing the Reference (IT) No. 4 of 2004 of the
workman, who prayed before the Industrial Tribunal the relief of regularistion, it was directed to regularise the second party workman with effect from 1.4.2001 It was provided that the workman would not be entitled to get any amount of arrears till the date of award and the interregnum period was directed to be treated notionally. The first party employer was directed to pay all the benefits from 10.3.2004.
3. Before the Industrial Tribunal, the case of the workman in his statement of claim (Exh. 7), was that he had been working since 1.4.2001 as a peon under the Municipality, that the Municipality deprived the workman of the benefit of permanency although the work performed by the workman was of permanent nature and and he was kept as daily rated workman for long years by paying meager wages. The relief was, therefore, sought for from the Industrial Tribunal for regularisation and grant all benefits which were being paid to the regular employees.
3.1 While the workman gave his evidence to assert and reiterate his case in the statement of claim, one Harendrakumar Dhirajlal Joshi was examined (Exh. 22) on behalf of the first party employer. He was also cross examined. .
3.2 From the evidences led by both the sides, the Industrial Tribunal noted that the second party workman was in service since more than a decade under the Municipality and that he had completed 240 days in each year. It was recorded that the work which was discharged by him was of permanent nature. It was admitted by the witness of the first party employer that the workman had been discharging his duties on the same post since several years. It was recorded by the Industrial Tribunal that the work performed by the workman was of perennial nature. He was not Page 2 of 9 Downloaded on : Fri Nov 10 20:55:07 IST 2023 NEUTRAL CITATION C/LPA/1438/2022 ORDER DATED: 08/11/2023 undefined extended the benefit of permanency.
3.3 Considering the factual aspects not in dispute that the workman was in service since 2001 and that he was kept for all these times as rojamdar depriving him the permanency benefits, the Tribunal held that the employer had indulged into unfair labour practice in denying regularisation to the workman. It was observed by the Industrial Tribunal junior to the respondent-workman had been extended the benefits of regularisation. As regards the aspect of availability of posts, the Industrial Tribunal recorded that in the set-up, the post was available.
4. Learned advocate for the respondent supported judgment and award of Industrial Tribunal and order of learned single Judge which confirmed the award of the Industrial Tribunal. Learned advocate for the respondent workman relied on the decision of the Supreme Court in Oil and Natural Gas Corporation vs. Krishan Gopal and Others (2020 SCC OnLine SC 150) to submit that the case of the workman is covered with the four corners of the decision of the Supreme Court in the said decision.
5. The judgment and award of the Industrial Tribunal and finding recorded including the finding that the unfair labour practice was committed by the employer in not regularisiing the services of the workman and also that there was vacancy available in the sanctioned set-up, were revisited with by learned single Judge to confirm the same. The factual aspect about long service of the workman and continuing him on daily rate manner etc. could not be disputed by the first party employer.
5.1 Confronted with the finding of fact recorded by the Industrial Tribunal and conformed by learned single Judge that the post of junior Page 3 of 9 Downloaded on : Fri Nov 10 20:55:07 IST 2023 NEUTRAL CITATION C/LPA/1438/2022 ORDER DATED: 08/11/2023 undefined clerk was available in the sanctioned set up, learned advocate for the appellant was entirely at his receiving end.
5.2 Section 25T of the Industrial Disputes Act 1947 contains prohibition against the employers resorting to unfair labour practice. It says that, "no employer or workman or trade union, whether registered under the Trade Unions Act 1926 or not, shall commit any unfair labour practice." The expression unfair labour practice is defined in 2(ra) of the Industrial Disputes Act to mean any of the practices specified in the Fifth Schedule. When the Fifth Schedule of the Industrial Disputes Act is seen, it enlists one of the unfair labour practices in item No.10 to be thus, "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"
5.3 Thus, conspicuous aspects which are undisputed emerges from the record. Firstly, that workman was rojamdar continued in service of the Municipality since 1991. Secondly, he put in long services for more than two decades. All throughout, he was kept as rojamdar and paid meager wages. Learned advocate for the respondent could submit that this circumstances invariably suggest that the employer indulge into unfair labour practice in giving treatment to the workman by keeping him for long years on a meager pay denying the benefit of regularization.
5.4 When the employer avoids to fill up the permanent posts even when posts are available and continues to employ workers on temporary or daily wage basis taking the same work from them, which is done by the regular workers and pays meager wages, it is a case of unfair labour practice. It is an exploitative conduct where the employer keeps his employees poorly paid unbearably long. Unfair labour practice is Page 4 of 9 Downloaded on : Fri Nov 10 20:55:07 IST 2023 NEUTRAL CITATION C/LPA/1438/2022 ORDER DATED: 08/11/2023 undefined exploitation of workmen. This situation entitles the workman to be absorbed as permanent employee casting obligation in law on the employer. In view of facts and the factual findings recorded hereinabove such situation is obtained in the present case.
6. In Hari Nandan Prasad and Another vs. Employer I/R to Management of Food Corporation of India and Another [(2014) 7 SCC 190], the Supreme Court emphasised the fine balancing of the rights of the employer employee in the matter of regularisation of the employees and granting temporary employees the benefit of permanency. Referring to some of its own the decisions, the Supreme Court observed that it was dependent on the facts of each case as to whether the order of regularisation is necessitated to advance justice to the daily rated workman or such benefit is to be denied where giving of such direction would infringe upon the employer's rights.
6.1.1 The decisions in Maharashtra SRTC vs. Casteribe Rajya P. Karmchari Sanghatana [(2009) 8 SCC 556] and U.P.Power Corporation Ltd. vs. Bijli Mazdoor Sangh and Others [(2007) 5 SCC 755] were considered by the court in Hari Nandan Prasad (supra). Upon harmonised reading of these two decisions, it was stated that even where the posts are available, in absence of any unfair labour practice, the Labour Court cannot give direction for regularisation only on the ground of long service rendered by daily rated workman.
6.1.2 In Hari Nandan Prasad (supra), the Supreme Court, however, clarified that wherever the Labour Court or Tribunal have statutory power to grant relief to the workman it would include power to grant the relief of accruing status of permanency to the contractual employee or daily rated employee. It was in terms stated that where the employer is found to have indulged into any unfair labour practice, as defined in Industrial Page 5 of 9 Downloaded on : Fri Nov 10 20:55:07 IST 2023 NEUTRAL CITATION C/LPA/1438/2022 ORDER DATED: 08/11/2023 undefined Disputes Act, the relief of regularisation could be extended.
6.1.3 The Supreme Court in Hari Nandan Prasad (supra) observed that in such set of facts, if regulariastion is not granted, it would even offend and violate the equality clause under Article 14 of the Constitution, "However, whenever it is found that similarly situated workmen are regularised by the employer itself under some scheme or otherwise and the workmen in question who have approached the Industrial/Labour Court are on a par with them, direction of regularisation in such cases may be legally justified, otherwise, non-regularisation of the left-over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Article 14 of the Constitution. Thus, the Industrial adjudicator would be achieved the equality by upholding Article 14 of the Constitution, rather than violating this constitutional provision." (para 39) 6.2 The Supreme Court pertinently observed in Regional Manager, State Bank of India vs. Raja Ram [(2004) 8 SCC 164] as under, "In other words, before an action can be termed as an unfair labour practice it would be necessary for the Labour Court to come to a conclusion that the badlis, casuals and temporary workmen had been continued for years as badlis, casuals or temporary workmen, with the object of depriving them of the status and privileges of permanent workmen. To this has been added the judicial gloss that artificial breaks in the service of such workmen would not allow the employer to avoid a charge of unfair labour practice. However, it is the continuity of service of workmen over a period of years which is frowned upon. (para 9) 6.2.1 The Apex Court proceeded to state, "Besides, it needs to be emphasised that for the practice to amount to unfair labour practice it must be found that the workman had been retained on a casual or temporary basis with the object of depriving the workman of the status and privileges of a permanent workman. There is no such finding in this case. Therefore, Item 10 in List I of the Fifth Schedule to the Act cannot be said to apply at all to the respondent's Page 6 of 9 Downloaded on : Fri Nov 10 20:55:07 IST 2023 NEUTRAL CITATION C/LPA/1438/2022 ORDER DATED: 08/11/2023 undefined case and the Labour Court erred in coming to the conclusion that the respondent was, in the circumstances, likely to acquire the status of a permanent employee." (para 9) 6.3 The decision in Raja Ram (supra), was followed in Regional Manager, State Bank of India vs. Rakesh Kumar Tewari (2006) 1 SCC 530.
6.4 In Oil and Natural Gas Corporation (supra), the Supreme Court extensively referred to the law on the issue and after eloboratly discussing the law, the following propositions were laid down, "(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution;
(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;
(emphasis supplied)
(iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service;
(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and
(v) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen."
Page 7 of 9 Downloaded on : Fri Nov 10 20:55:07 IST 2023 NEUTRAL CITATION C/LPA/1438/2022 ORDER DATED: 08/11/2023 undefined (emphasis supplied) (para 34) 6.5 The test laid down in Raja Ram (supra) and Rakesh Kumar
Tewari (supra) are satisfied in the facts of the present case. It could be emphatically said that the case of the workmen falls within the corners of observations and directions of the Supreme Court in Oil and Natural Gas Corporation (supra), to be classified for grant of relief of regularisation, as the vice of unfair labour practice on part of the employer is established.
6.6 In similar set of facts, yet another decision of the Co-ordinate Bench of this Court in Jamjodhpur Nagarpalika versus Sunil Punjabhai Dhakecha in R/Letters Patent Appeal No. 200 Of 2023 in R/Special Civil Application No. 18202 Of 2017 decided on 25.07.2023 deserves to be noticed. The following paragraph was observed and held,
7. ....., it is evident from the perusal of the material on record, as also the findings given by the Labour Court and the learned Single Judge that the appellant Nagarpalika had indulged in unfair labour practice by continuing the respondent workman on temporary basis, though posts in the permanent set up were available. The act of appellant Nagarpalika in continuing the respondent workman on temporary basis on lower wages despite discharge of the same duties as that of a permanent employee in the permanent establishment is nothing but amounts to unfair labour practice. It is evident that the appellant Nagarpalika had continued the respondent workman for years together with the object of depriving him of the benefits payable to a permanent workman, though he was discharging the same duty as that of a permanent employee. No explanation could be offered by the appellant Nagarpalika either before the Labour Court or before the learned Single Judge or in this appeal as to why the respondent workman was continued on temporary basis on the post of Pipeline Repairer when the vacant post of Pipeline Repairer in the permanent establishment was available. No such record of permanent set up of appellant Nagarpalika was placed before the Page 8 of 9 Downloaded on : Fri Nov 10 20:55:07 IST 2023 NEUTRAL CITATION C/LPA/1438/2022 ORDER DATED: 08/11/2023 undefined Labour Court and the findings recorded by the Labour Court that the witness or the appellant Nagarpalika admitted that there was a permanent set up but the detail thereof was not made available, could not be assailed by the learned counsel for the appellant Nagarpalika.
6.7 It is to be noted that in the present case, specific finding is recorded by the Industrial Tribunal and reiterated by learned single Judge that the treatment meted out to the workmen was unfair labour practice, even though the respondent-workman was working since long and there was vacancy available in the set-up. The ratio of decisions of the Supreme court in Hari Nandan Pradad (supra), Raja Ram (supra), which the Supreme Court finally laying down the parameters in Oil and Natural Gas Corporation (supra), are applicable to the facts obtaining in the present case.
7. For all the aforesaid reasons and discussion, no ground is made out to interfere with the judgment and order of learned Single Judge. The Letters Patent Appeal stands meritless and is hereby dismissed.
The Civil Application also stands disposed of in view of dismissal of the main Appeal.
(N.V.ANJARIA, J) (CHEEKATI MANAVENDRANATH ROY, J) C.M. JOSHI Page 9 of 9 Downloaded on : Fri Nov 10 20:55:07 IST 2023