Gujarat High Court
State Of Gujarat vs Saurast Majur Mahajan Sangh on 6 April, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/6028/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6028 of 2017
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STATE OF GUJARAT
Versus
SAURAST MAJUR MAHAJAN SANGH
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Appearance:
MR UTKARSH SHARMA AGP for the PETITIONER(s) No. 1
MR AK CLERK(235) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 06/04/2018
ORAL ORDER
1. The present petition under Article 226 of the Constitution of India is filed by the petitioner - State for challenging the legality and validity of the impugned award dated 04.08.2016 whereby by allowing the reference partially the benefits have been extended with effect from the date of the employment.
2. The premise on which the present petition is brought is that the respondent Saurashtra Majoor Mahajan Sangh by espousing the case of members by raising an industrial dispute, a claim statement was submitted at Exhibit2. The brief contents of the said claim statement is that some 48 workers who are working with the petitioner - State were discharging permanent work of maintaining building, road Page 1 of 20 C/SCA/6028/2017 ORDER repairing, repairing of Officers Bungalow, Guest house, Circuit house as well as other buildings of District as well as Village authorities under the head and Supervision of Rajkot District, In the said claim statement it has been narrated that though they are discharging the services since number of years and are also discharging the work of permanent nature and though they have completed 240 days in each year, have been deprived of the benefit of permanent employees and the status, as a result of this, those employees have also filed reference bearing Reference (IT) No. 162 of 1979 for making them permanent. It has also been pointed out that other sets of employees of this very division have also filed Reference (IT) No.1877 of 1988 in which, by virtue of award dated 17.10.1988 the award came to be passed making them permanent for work charge establishment and feeling aggrieved by and dissatisfied with the said award passed in Reference (IT) No. 1887 of 1988, this Court has modified to some extent the said award and rest of the award is confirmed and despite the aforesaid fact, these present sets of workers/employees have been deprived of such kind of similar benefits of permanency and consequential benefits.
2.1. To meet with the said stand taken in the claim statement, para wise reply was given by the petitioner - State before the Court below at Exhibit7 inter alia projecting that one of these employees have worked on permanent setup and the work in question is depending Page 2 of 20 C/SCA/6028/2017 ORDER upon the availability of the grant and as such in absence of any specific rules pertaining to that, the benefit which is sought in claim statement cannot be granted as a matter of course. It has also been pointed out these workers represented by the respondent - Union have worked on causal basis and therefore, even if the benefit if to be passed on about the recommendations of the Dolatbhai Parmar Committee then also, there are conditions stipulated therein so unless and until such stipulations are observed, it is not open for even the petitioner to consider the request of the respondent. It has also been pointed out that even the reliance which has been placed to the said order of Reference (IT) No. 877 of 1984 as well as Special Civil Application No. 1887 of 1988 the benefit of litigation is not possible to be extended as per the Rules to the present respondents. It has also been pointed that since the concerned workmen represented by the respondent Union are not employed as per the relevant recruitment rules, their appointment cannot be said to be valid and therefore, there is no question of giving the benefit of the Resolution dated 17.10.1988 ipsofacto.
2.2. After completion of such pleadings, both the parties to the proceedings have been granted an opportunity of leading the evidence oral as well as documentary and in that connection, the respective sides have produced enough material and based upon such, the learned Presiding Officer, has taken up the adjudication of this Page 3 of 20 C/SCA/6028/2017 ORDER Reference (IT) No. 78 of 1999 and by way of award dated 04.08.2016, the learned Presiding Officer, Industrial Tribunal was pleased to partly allow the reference and it is this reference which is made the subject matter of the present petition under Article 226 of the Constitution of India.
2.2. The effect of reference is that the employees who have been named in the reference are ordered to be treated as permanent employees with effect from the date of entry in their employment and the petitioner - State is directed to pay the difference and consequential benefits by fixing their salary and the incidental benefits only may be paid from the date of the award and the period from their entry in the employment till the award, is to be treated as notional and such benefits in terms of payment will have to be from the date of the award as stated hereinafter.
"(1) The said reference of the second party is partially allowed and it is held that in view of the provisions of the Industrial Dispute Act, the Industrial Tribunal has jurisdiction and authority to adjudicate the above mentioned industrial dispute.
Moreover, while conducting the above dispute, my predecessor tribunal passed Part - 1 award vide Exh - 18 and as names of Mr. Samir Rasiklal Parekh, Yogesh Suryakant Patel, Ravjibhai Muljibhai, Mahesh Gunvantrai Pandya, Prakash Jagannath Acharya, Mehul Balvantrai Dave, Trigun Vinodrai Joshi, Priti Rasiklal Shah, Prakash Maganlal Makwana, Parag Kishorchanda Raval, Jayesh D. Takodara, Kanakrai Jadurai Maheta, Vijay Vrajlal Palan, Rajesh Rasiklal Chavda, Kamlesh H. Sheth, Bharat Amrutlal Dhameliya and K. R. Varan have been deleted from the above case, no order needs to be passed Page 4 of 20 C/SCA/6028/2017 ORDER in that respect.
Moreover, the first party organisation is ordered that as mentioned in the schedule of the above mentioned industrial dispute, Sona Panchabhai, Maganlal Mohanlal Jagani, Rupa Ramabhai, Ramesh Trambaklal Pandya, Indrasinh Shivubhai Rana, Baya Bhanabhai, Dinesh Kanjibhai Sindhav, Manoj Pravinchandra Jani, Dilavar Kashamkhan Pathan, Madhusudan Ramjibhai Chauhan, Jusab Jamal Shaikh, Kamraj Tirumal, Meghji Devshi Parmar, Jagdish Vinodrai Dhakecha, Indravijaysinh Ratansinh Jadeja, Ashok Ukabhai Sareliya, Dhirajdan Jilubha, Mohan Devshi Chavda, Selvaraj Sundarraj Naydu and Rajesh Pravinchandra Shah are their permanent employees from the time they entered into service considering the date. Moreover, pay scale of the concerned employees shall be fixed within 30 days of publication of this award considering the pay scale as per the duty performed equivalent to permanent employees from the date these employees are performing duty and the minimum pay scale for equivalent designation in the first party organisation shall be taken into consideration and this pay scale shall be considered the notional pay of these employees that means if any increments are mentioned in the pay scale or the first party organisation has made any changes and increased the pay scale, the notional pay shall be considered accordingly and it is ordered to pay gradepay, dearness allowance, other allowances and benefits as per the respective pay scale. Moreover, as pay of these employees is considered as notional pay, it is held that the concerned employees shall not be liable to receive any kind of benefit due to financial difference of interim period.
Moreover, during the pendancy of this reference, Mr. Kirit Gajanan Pandya, Mr. Laxmanbhai Vijaysinh Jadeja and Mr. Bharat Kantilal Pandya have died and as per the above observation, it is held that they are permanent employees from the time they entered into service and it is ordered that their pay scale shall be fixed as per the above observation and their increments and other benefits shall be calculated accordingly and their pay scale on the date of death shall be considered as notional pay and the difference amount of death benefits as per fixation of pay scale shall be paid to their legal nominee.
Moreover, during the pendancy of the said reference, Pushpaben Vinodrai retired on 31/12/2012, and as per the above observation, it is held that she is permanent employee from the time she entered into service and it is ordered that her pay scale shall be fixed as per the above Page 5 of 20 C/SCA/6028/2017 ORDER observation and her increments and other benefits shall be calculated accordingly and her pay scale on the date of retirement shall be considered as notional pay and the difference amount of retirement benefits as per fixation of pay scale shall be paid to her.
Moreover, as none of the parties have submitted any details regarding Manguben Nathabhai connected in the above dispute, no oder needs to be passed in her respect at present.
(2) The above mentioned award shall be implemented within 30 days from the date of publication.
(3) No order as to cost."
3. This petition was presented before this Court in which on 07.04.2017, after hearing learned AGP Mr. Utkarsh Sharma, the Court was pleased to admit the petition and granted interim relief in terms of para 8(C) and the same is continued from time to time till the matter is taken up for hearing by the Court.
4. Learned AGP Mr. Utkarsh Sharma has represented the petitioner - State and learned advocate Mr. A.K. Clerk appearing for respondent no. 1 has appeared on behalf of the respondent - Union and the matter is heard on 06.04.2018 with the request and consent of learned advocates.
5. Learned AGP Mr. Sharma has vehemently contended that a clear error of jurisdiction is reflecting in an award passed by the learned Presiding Officer, in view of the fact that initial employment is Page 6 of 20 C/SCA/6028/2017 ORDER not lawful and it was merely contingent. It has also been contended that their tenure was depending upon the exigencies of the work and as and when the work was made available to them, the respective workmen had discharged their services and therefore, by treating them permanent is a material error in passing the award in question. It has also been contended that the learned Presiding Officer while examining the industrial dispute has also not thoroughly examined the material on record which was pressed at length which is very much reflecting in para 4 of the award. As a result of this, since the conclusion arrived at by the learned Presiding Officer, is based upon practically nonexamination of the record, the award is to be treated as perverse.
5.1. It has also been contended by learned AGP Mr. Sharma that the similarity which has been sought by the respondent Union and prayed for extension of the benefits as has been given to other employees is of no avail to the present respondent mainly in view of the fact that the circumstances were not similar and therefore, once there is an additional change of circumstance as a straight jacket formula, the benefits cannot be extended and here is a case in which without application of mind, the learned Presiding Officer has granted the benefits.
5.2. Additionally, learned AGP Mr. Sharma has further contended Page 7 of 20 C/SCA/6028/2017 ORDER that even assuming without admitting that in similar issue benefits have been extended but then also the said benefits have been extended after a lapse of some period of time and not from the date of initia employment. Here is a case, in which if the date of employment is to be construed then that would practically legalize the initial entry of the respondent which is undisputedly not backed by compliance of recruitment rules and therefore, in such a situation, the order in question is nothing but clear error of jurisdiction. 5.3. Learned AGP Mr. Sharma has further contended that the benefits which are to be extended as has been ordered, even if to be extended, then the same should be from the lapse of at least period of five years from the date of their employment because the Government Resolution dated 17.10.1988 is also considering the case after a lapse of five years tenure in the job and therefore, in no circumstance, the award in question is sustainable in the eye of law.
5.4. Learned AGP Mr. Sharma has further contended that the reasons which are assigned are also not possible to be digested and has also drawn an attention to one of the paragraphs of the award dated 28.03.2008 reflecting on page 91 of the petition compilation in which also in case of Reference (IT) No. 374 of 1992 the benefits have been extended of permanency after a lapse of five years and as such, Page 8 of 20 C/SCA/6028/2017 ORDER it is not open for the respondent to stick to the order which is impugned in the petition. Learned AGP Mr. Sharma has pointed out that the benefits of Resolution dated 17.10.1988 is to be extended only if the employee concerned has worked continuously for a period which is mentioned in the Resolution and it has been stated that the present sets are such to extend benefit as they have not continuously worked and therefore, to extend the benefits in such a casual manner, the learned Presiding Officer, Industrial Tribunal has exercised the jurisdiction erroneously and the said irregularity in exercising the jurisdiction which is touching to the root of the controversy, deserves to be corrected. Hence, the petition may be allowed in terms of the prayer which has been made.
5.5. Learned AGP Mr. Sharma has further contended that pursuant to the previous proceedings, once they have availed the benefits, it is not open for the respondent to regenerate the dispute or raise any dispute with regard to claiming permanency. It has also been contended that pursuant to the Resolution dated 17.10.1988 they have very much accepted the status as work charge employees, and has not claimed regularization and as such, since they are not recruited as per the recruitment rules, cannot be treated at par with the other employees. The element of bias which has been tried to be projected by the respondent has no legs to stand in view of the fact that had there been any bias even the similar benefits could not have Page 9 of 20 C/SCA/6028/2017 ORDER been passed on earlier to the respondent since this being the situation in absence of any mala fide, the learned Presiding Officer, Industrial Tribunal ought not to have passed the impugned award. No other submissions have been made.
6. To meet with the stand taken by the petitioner - State, learned advocate Mr. A.K. Clerk appearing for the respondent Union has contended that a reasoned order is passed in exercise of jurisdiction vested in it and therefore, the award in question passed by the learned Presiding Officer, Industrial Tribunal cannot be said to be perverse or erroneous or without jurisdiction. In fact this being the petition under Articles 226 and 227 of the Constitution of India, the decision making process will have to be examined. A bare look at the award and the conclusion arrived at would make it clear that there is an application of mind by the learned Presiding Officer of Industrial Tribunal and each of the contentions have been dealt with and the material which was produced on record by the petitioner - State appears to have been considered while coming to the ultimate conclusion. Learned advocate Mr. Clerk has submitted that there are series of decisions which have taken place in which the benefits have been extended to the person concerned and along with the affidavitinreply, which has been filed, a specific attention is also drawn to some of the decisions which are attached to the compilation.
Page 10 of 20 C/SCA/6028/2017 ORDER 6.1. Learned advocate Mr. Clerk has further contended that there is no jurisdictional error committed by the learned Presiding Officer, nor any perversity is reflecting in the award and therefore, unless and until such eventualities are happening and reflecting in the petition at behest of the petitioner - State, it does not deserves to be entertained. The particulars which have been given by the advocate that industrial tribunal has granted benefit to 24 persons out of total 48 persons whose names are mentioned in the schedule and out of these 24 persons, even three have expired and one has reached the age of superannuation and out of remaining 24 persons, names of 17 persons are already deleted and six persons have got the benefit as stated in the internal pages 11 and 12 of the award and one person is denied the benefit as no information is furnished with respect the said person and therefore, considering this overall situation, a quite in a balanced way jurisdiction is exercised by the learned Presiding Officer, and it cannot be allowed to be a subject matter of invocation of extra ordinary jurisdiction. Learned advocate Mr. Clerk has further contended that the concerned workmen should be made permanent with effect from the original date of joining and should also be given the benefits of payscale, DA, PF, Leave, bonus and all other benefits and that has rightly been given by the learned Presiding Officer, and therefore also no interference is called for. It has also been pointed out that these concerned workmen are working on a daily rated wages Page 11 of 20 C/SCA/6028/2017 ORDER right from the year 198081 and some of them even worked prior thereto and therefore, this is nothing but a clear exploitative pattern being adopted.
6.2. It has also been pointed out that identically situated workmen of the very same department i.e. R & B department, City Division, District Division have been made permanent pursuant to the award passed by the Industrial Tribunal and that has been upheld by this Court as well as by the Apex Court and the particulars about such reference being Reference (IT) No. 91 of 1995 with respect to 189 workmen who have been directed to be made permanent with effect from 01.01.1996 and the said award with respect to Reference (IT) No. 91 of 1995 was the subject matter of Special Civil Application No. 3483 of 1999 and thereafter Misc. Civil Application No. 9 of 2003 which came to be disposed of by the learned Single Judge vide order dated 16.09.2003 and the Division Bench of this Court has affirmed the said order by dismissing the Letters Patent Appeal No. 1199 of 2003 and the State authority carried the said matter of Division Bench of this Court in the form of Special Leave Petition (C ) No. 2627 of 2005 and vide order dated 14.03.2005, even the Apex Court has also confirmed the original order and these 189 workmen have been extended such benefit and therefore, learned advocate Mr. Clerk has further submitted that as per the award in question if the benefit has been extended to other sets of employees of very same department, to Page 12 of 20 C/SCA/6028/2017 ORDER deprive benefit as such to the present set of employees would be nothing but clear example of violation of equality principle enshrined under constitution.
6.3. Yet another example is given in case of Reference (ITR) no. 374 of 1995 in which also the learned Industrial Tribunal has directed 196 employees/workmen be made permanent after completion of tenure of five years service and extended all the benefits as if they were permanent workmen even that award has also been challenged before the learned Single Judge of this Court, which also came to be confirmed, against which Letters Patent Appeal No. 605 of 1999 is also filed, which also came to be dismissed and Special Leave Petition (Civil) against the said decision being Special Leave Petition (Civil) No. 5058 of 2004 came to be disposed of on the ground of delay vide order dated 12.07.2014 and as such when large number of persons are being given such kind of benefit, there was hardly any justifiable reason for the petitioner - State to deny such benefit to present set of employees.
6.4. Learned advocate Mr. Clerk has further drawn an attention of yet another example of Reference (ITR) No. 127 of 2008 which has also met with the same fate and on the contrary, petition being Special Civil Application No. 9862 of 2013 has been dismissed by the Court with costs of Rs.25,000/ by judgment and order dated 22.10.2013 Page 13 of 20 C/SCA/6028/2017 ORDER and this being the position, learned advocate Mr. Clerk has submitted that there is no hindrance in making these employees permanent and extend the benefit. Several examples have been given and narrated in the affidavitinreply and supported by the relevant decisions and considering this situation, learned advocate Mr. Clerk has submitted that undisputedly the respondent workmen who represented are entitled to have the benefit.
6.5. While making such submission ultimately on instructions, learned advocate Mr. Clerk has submitted that no doubt here is a case in which the benefit has been given right from the date of the joining originally and practically in every case, the Court has granted after a lapse of period of five years completion of service so the benefit of Government Resolution may be made available after a lapse of five years tenure from joining instead from the date of initial entry in employment and therefore, has ultimately left it to the discretion of the Court that in whichever form the Court is inclined to extend the benefit even after a lapse of period of five years from date of entry in employment the respondent will have no objection and thereafter no other submissions have been made.
7. Having heard the learned advocates for the respective parties and having gone through the materials on record, following are the circumstances which are not possible to be ignored by this Court Page 14 of 20 C/SCA/6028/2017 ORDER before arriving at an ultimate conclusion in the present matter. 7.1. It is evident from the record that almost in identical situation that from the same department the benefits have been granted and conferred after a lapse of five years period and not from the date of initial entry in the employment. First order which is reflecting on page 58 of the petition compilation in which Reference (IT) No. 91 of 1995 came to be decided by the learned Presiding Officer, Labour Court, Rajkot in which though the workman have been inducted prior in point of time still the benefit of permanency has been accorded to them with effect from 01.01.1996 and that is also relying upon the Government Resolution dated 17.10.1988 and similar Reference is also taken note of by the learned Presiding Officer, in case of Reference (IT) No. 162 of 1978 dated 15.01.1982. A petition which has also been taken note of is Special Civil Application No. 3976 of 1987 wherein the letter which was written by learned advocate at Exhibit 24 is also considered and this award which has been passed by extending the benefit after a lapse of five years period is also confirmed in the litigation right upto Apex Court and after the same having become final by virtue of specific order dated 28.03.2008, the order is passed in specific terms which is produced at page 72 and 73 of the petition compilation.
Page 15 of 20 C/SCA/6028/2017 ORDER 7.2. Yet another similar situation has erupted in Reference (ITR) 374 of 1992 in which by award dated 04.07.1997 after a lapse of five years tenure in the service, permanency benefits have been extended to the concerned workmen and the second instance is also confirmed by this Court in which also there was a tough contest about such proceedings and in turn after attending finality at the Apex Court by way of specific order dated 28.03.2008 implementation in that context has taken place. Yet another award is also produced on record of the petition in which also exactly on similar situation, the benefits have been extended of permanency after a lapse of five years in the service and as such there is no distinguishable feature which is available on record which can permit this Court to deviate from what has been granted and confirmed right upto the Apex Court.
7.3. Considering the aforesaid situation and in view of the fact that here also while granting the benefit, the learned Presiding Officer, has considered the length of service and has also considered the testimony which was brought to the notice on record and considering the similarity in respect of the grant of regularization particularly when such course is adopted by the learned Presiding Officer, while exercising due discretion vested in law, this Court is of the opinion that there is no possibility of any deviation from grant of such benefit except one modification that instead of initial entry in the employment after a lapse of five years period they be given the benefit of the award Page 16 of 20 C/SCA/6028/2017 ORDER which is under challenge.
7.4. The learned Judge has also mentioned the reasons as to why such conclusion is derived from the record and it appears that there is no perversity reflecting in the award nor any material irregularity except that one benefit is extended from the initial date of the entry in the employment. It has been noticed from the record that there are other employees almost similarly situated have been extended the benefit and looking to the present one, from the completion of five years period and therefore, the plea that the original entry of the respective workmen of the present case is not in accordance with the recruitment rules is not possible to be digested or accepted. Even otherwise it is settled position of law that the employer cannot take such kind of plea after employing and after taking work from the workmen in this manner and continuing them for a pretty long period and at the fag end raising different plea that they were not recruited as per the rules. Since this plea is not available as has been held by the Apex Court way back in the year 2012, the Court is not impressed by such submission of learned AGP Mr. Sharma and is of the view that such plea is not amenable to the petitioner more particularly, when this very same department was facing such eventualities in which right upto Apex Court, the state authority has lost. In this view of the peculiarity of the circumstance on record, the Court is of the Page 17 of 20 C/SCA/6028/2017 ORDER opinion that there is no case made out by the petitioner except the modification which is pleaded as per the concurrence. Hence, upon broad consensus, the Court is constrained to pass the present order.
8. This view has been adopted by this Court in view of the fact that in similar situation, such extension of benefit after a lapse of five years is agitated, examined and later on confirmed right upto Apex Court and further here in the present case on hand there appears to be concurrence in view of this peculiar set of circumstance that the award may be modified to this extent that exfacie there is a specific consent and on an instructions received by learned advocate Mr. Clerk in this respect and has categorically stated before the Court that if this benefit if granted after a lapse of five years period and the salary and other emoluments be awarded from the date of the award, there shall be no objection by the concerned workmen. In that eventualities without dwelling much into the matter in the aforesaid peculiar set of circumstance, this Court is of the opinion that the impugned award deserves to be confirmed subject to the following modifications upon concurrence. Hence, this petition is disposed of in the following manner.
9. In the operative part of the award under challenge dated 04.08.2016 in subpara (2) of para 1 has categorically stated that this award is not applicable to the persons named in this paragraph. Page 18 of 20 C/SCA/6028/2017 ORDER Hence, the present order will not apply to these persons who are named in the said paragraph.
9.1. In respect to subpara (3) of para 1 of the operative para, the persons who are named have been extended the benefit of making them permanent from the date of their entry in the employment, the same is modified in the aforesaid situation to the extent that they may be treated as permanent after a lapse of five years from the date of their entry in the employment and rest of the award is kept as it is and further modification is done to the effect that from the date of publication of the award, the consequential salary is to be fixed and emoluments to be paid. The said benefits are ordered to be awarded from the date of the award i.e. from 04.08.2016 and rest of the portion of the award to be kept as it is. One additional modification which is sought and granted concurred by both the sides that eight employees reflecting on list at page 148 and 149 have been working as clerks and they shall be treated as permanent after the completion of five years period from their date of entry in the services and accordingly, the consequential benefits shall be paid to those eight employees. 9.1. With these clarification and modification, the award dated 04.08.2016 is confirmed. Accordingly, petition stands disposed off. However, it is made clear that benefits pursuant to the order be made Page 19 of 20 C/SCA/6028/2017 ORDER available to concerned employees within a period of eight (8) weeks from receipt of writ of this Court.
(A.J. SHASTRI, J) /phalguni/ Page 20 of 20