Gujarat High Court
Saurashtra Shramik Sangh & vs Amreli Nagarpalika & on 24 January, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/8658/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8658 of 2013
[On note for speaking to minutes of order dated 07/09/2016 in
C/SCA/8658/2013 ]
With
SPECIAL CIVIL APPLICATION NO. 9811 of 2013
With
SPECIAL CIVIL APPLICATION NO. 12040 of 2012
With
SPECIAL CIVIL APPLICATION NO. 12046 of 2012
With
SPECIAL CIVIL APPLICATION NO. 12047 of 2012
With
SPECIAL CIVIL APPLICATION NO. 12428 of 2012
With
SPECIAL CIVIL APPLICATION NO. 15089 of 2012
With
SPECIAL CIVIL APPLICATION NO. 8705 of 2013
With
SPECIAL CIVIL APPLICATION NO. 18229 of 2013
With
SPECIAL CIVIL APPLICATION NO. 12081 of 2013
SAURASHTRA SHRAMIK SANGH & 1....Petitioner(s)
Versus
AMRELI NAGARPALIKA & 1....Respondent(s)
Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1 - 2
MR DEEPAK P SANCHELA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 24/01/2017
ORAL ORDER
Learned advocate for the petitioners has taken out Note in form of Speaking to Minutes dated 11.1.2017, which Page 1 HC-NIC Page 1 of 47 Created On Thu Jan 26 01:59:09 IST 2017 1 of 47 C/SCA/8658/2013 ORDER is circulated by registry under its Note dated 18.1.2017.
2. In the said Note for Speaking to Minutes, the petitioners have stated, inter alia, that:-
"The above group of petitions were disposed off by common judgement dated 07/09/2016 (Coram: Honourable Mr. Justice K.M.Thaker).
One SCA/12081/2013 was tagged with the said group of petitions, but due to inadvertence the discussion of SCA/12081/2013 is skipped. So requesting the matter be taken up and appropriate relief may be passed in SCA/12081/2013."
3. The Note is taken out in connection with common judgment dated 7.9.2016 in respect of those petitions, numbers of which are mentioned in the cause title of the judgment.
4. It has emerged from the submissions by learned advocate for the petitioners and respondent that Special Civil Application No.12081 of 2013 was also heard with other matters which are referred to in the cause title and in respect of said Special Civil Application No.12081 of 2013, similar order and directions as in respect of Special Civil Application Nos.8658 of 2013, 12047 of 2012, 12040 of 2012 and 12046 of 2012 and 8705 of 2013 were passed, however, inadvertently, reference of said matter is missed-out from the text of the judgment.
4.1 Mr. Sanchela, learned advocate for the petitioners, also confirmed the said fact.
5. Therefore, with consent of learned advocates, following directions are passed:-
Page 2 HC-NIC Page 2 of 47 Created On Thu Jan 26 01:59:09 IST 2017 2 of 47 C/SCA/8658/2013 ORDER 5.1 In the statement which is part of paragraph No.7, following details will be included 12081/13 07/04 Clerk 24/8/88 06/03/13 The said details shall be added at the end of the statement which is part of paragraph No.7.
5.2 Office is also directed to add reference of "Special Civil Application No.12081 of 2013" in first sub paragraph of paragraph No.9.8, alongwith reference of Special Civil Application No. 8705 of 2013, Special Civil Application No.8658 of 2013, Special Civil Application No.12047 of 2012, Special Civil Application No.12046 of 2012 and Special Civil Application No.12040 of 2012.
5.3 Likewise, in second sub paragraph of paragraph No.14 also alongwith reference of Special Civil Application Nos. 8705 of 2013, 8658 of 2013, 12047 of 2012, 12046 of 2012 and 12040 of 2012, reference of "Special Civil Application No.12081 of 2013" shall be added.
With aforesaid directions, Note for Speaking to Minutes stands disposed of.
(K.M.THAKER, J.) kdc Page 3 HC-NIC Page 3 of 47 Created On Thu Jan 26 01:59:09 IST 2017 3 of 47 C/SCA/8658/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 8658 of 2013 With SPECIAL CIVIL APPLICATION NO. 9811 of 2013 With SPECIAL CIVIL APPLICATION NO. 12040 of 2012 With SPECIAL CIVIL APPLICATION NO. 12046 of 2012 With SPECIAL CIVIL APPLICATION NO. 12047 of 2012 With SPECIAL CIVIL APPLICATION NO. 12428 of 2012 With SPECIAL CIVIL APPLICATION NO. 15089 of 2012 With SPECIAL CIVIL APPLICATION NO. 8705 of 2013 With SPECIAL CIVIL APPLICATION NO. 18229 of 2013 With SPECIAL CIVIL APPLICATION NO. 12081 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ?
SAURASHTRA SHRAMIK SANGH & 1....Petitioner(s) Versus Page 1 HC-NIC Page 4 of 47 Created On Thu Jan 26 01:59:09 IST 2017 4 of 47 C/SCA/8658/2013 JUDGMENT AMRELI NAGARPALIKA & 1....Respondent(s) Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1 - 2 MR DEEPAK P SANCHELA, ADVOCATE for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2 CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 07/09/2016 ORAL JUDGMENT In captioned petitions, the petitioners are the union and original claimants, whereas the respondent in captioned petitions is Amreli Nagarpalika. Though different claimants are concerned in the petitions, the subject of the demand / dispute raised by concerned claimants is common and similar in all cases viz.
regularization in service and benefit of salary and other perquisites at par with regular and permanent employees. Besides the fact that the subject matter of the demand/dispute in all cases is similar, learned advocate for the petitioners has sought to support and justify the demand on behalf of concerned claimants, on similar and identical grounds. On the other hand, learned advocate for the respondent Nagarpalika has Page 2 HC-NIC Page 5 of 47 Created On Thu Jan 26 01:59:09 IST 2017
5 of 47 C/SCA/8658/2013 JUDGMENT opposed the petitions and the demands by the claimants and supported the award passed by the learned Tribunal on similar and common grounds. Therefore, the captioned petitions are decided by this common judgment.
1.1 The petitioners i.e. concerned claimants and the union have challenged the awards passed by the learned Tribunal whereby the learned Tribunal rejected the demand and claim of the claimants/union to the effect that their service should be regularized and they should be conferred status of permanent workmen and should be paid salary and other perquisites at par with regular and permanent workmen. The claimants / union are aggrieved by said decision of the learned Tribunal and by the decision in the reference cases.
2. So far as factual background is concerned, it has emerged that the concerned workmen raised Page 3 HC-NIC Page 6 of 47 Created On Thu Jan 26 01:59:09 IST 2017 6 of 47 C/SCA/8658/2013 JUDGMENT industrial dispute with allegation that they have been working with the Nagarpalika since about 10 years and they are performing duties and functions which are of permanent nature. They also alleged that the nature of duties and functions performed by them are similar and identical to the duties and functions performed by other (regular and permanent) employees in the same cadre and that despite similarity of nature of duties and functions performed by them and despite long continuous and regular tenure of service with the Nagarpalika, they are deprived of similar salary and other benefits and thereby they are discriminated. The appropriate government referred the dispute raised by the claimants by separate orders of reference in respect of each claimant. Although appropriate government passed separate orders of reference, the sum and substance of the terms of reference remained almost similar, inasmuch as the dispute referred for adjudication was in following terms.
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"Whether the claimant should be made permanent w.e.f. the date on which he joined the service with the Nagarpalika with the benefit of permanent workmen and whether arrears should be paid or not." The said orders of reference / dispute were registered by the learned Tribunal at Bhavnagar.
2.1 During the proceedings before learned Industrial Tribunal, the claimants/union filed their respective statement of claim. The statement of claim filed by the claimants/union in each reference was separate but similar and the statements of claim reflected above mentioned allegations and contentions. With the said allegations and submissions, the claimants/union demanded that the concerned claimants should be conferred status of permanent workman in the same cadre since they have been working for about 10 years and the benefit of regular salary and other perquisites as paid to other regular and Page 5 HC-NIC Page 8 of 47 Created On Thu Jan 26 01:59:09 IST 2017 8 of 47 C/SCA/8658/2013 JUDGMENT permanent workmen should be granted to the claimants from the date the claimants joined the service.
2.2 The opponent Nagarpalika opposed the reference cases by filing its written statements/replies. In its written statements, the Nagarpalika claimed and contended that, (a) the appointment of the claimants, right from initial stage, has been irregular and illegal;
(b) the claimant/s was/were appointed without approval/sanction from the competent authority and without following procedure prescribed by rules; (c) the appointments were made without advertising the post and without inviting applications and without verifying the qualifications and other relevant aspects of the concerned claimants and the appointments were made without issuing appointment letters by the competent authority; (d) at the time when the claimants were engaged, there was no vacancy and Page 6 HC-NIC Page 9 of 47 Created On Thu Jan 26 01:59:09 IST 2017 9 of 47 C/SCA/8658/2013 JUDGMENT so far as the claimants allegedly working as bore operator/pump men is concerned, there is no post on the sanctioned set up; (e) there were and there are regular employees who are in excess over the sanctioned posts on permanent set up and that therefore, there was no scope and presently also there is no scope of engaging any additional person on the regular set up of the municipality;
(f) the percentage of administrative expenses (i.e. expenses towards employees salary etc.) is very high as compared to the sanctioned and permissible percentage of total expenditure of the Nagarpalika; (g) in absence of any vacancy on sanctioned establishment and/or in absence of any posts on sanctioned set up, the demand for regularization in service and status of permanent workmen could not have been accepted and is rightly rejected by the learned Tribunal. 2.3 On said grounds, learned counsel for the Nagarpalika opposed the reference cases. It Page 7 HC-NIC Page 10 of 47 Created On Thu Jan 26 01:59:09 IST 2017 10 of 47 C/SCA/8658/2013 JUDGMENT appears that the Nagarpalika also placed on record the notification under which the set up of the Nagarpalika was sanctioned by the government. In light of the said notification, the Nagarpalika tried to establish before the learned Tribunal that neither there is any post nor vacancy on the permanent posts on sanctioned set up where the service of the claimants can be regularized. With regard to the claimants who asserted that they are appointed as and they have been working as clerks, Nagarpalika raised additional contention viz. that after abolition of octroi, entire set up of clerk engaged in the octroi department had to be absorbed / accommodated by the Nagarpalika on its regular set up and that therefore, even otherwise, there is overload in respect of pots of clerk and neither there was any scope nor there is any scope to regularize the service of the clerks. With such contention, the Nagarpalika opposed the reference cases.
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2.4 The claimants / union led evidence,
documentary and oral, and the Nagarpalika also examined its witness. Both sides filed affidavits in lieu of chief examination and also filed relevant documents to support their respective cases. After the stage of evidence was concluded, the learned Labour Court heard the submissions by learned counsel for the claimants/union and the Nagarpalika. Thereafter, upon considering material available on record and rival submissions, learned Tribunal reached to the conclusion that the demand by the claimants is unjustified and cannot be granted. Consequently, the learned Labour Court passed the awards in respective reference cases and rejected the reference/demands by the claimants.
3. Mr. Joshi, learned counsel for the claimants, submitted that the workmen has been working with the Nagarpalika since more than 10 years. The Page 9 HC-NIC Page 12 of 47 Created On Thu Jan 26 01:59:09 IST 2017 12 of 47 C/SCA/8658/2013 JUDGMENT claimants are working continuously and regularly and in each year, the claimants have worked for more than 240 days. He also claimed that nature of duties and functions performed by the claimants are similar to the duties and functions performed by other workmen who are considered regular/permanent workmen in the same cadre/category where the claimants are working. The territory, the working/service area, the population of the city, the roads and buildings, etc. have increased manifold since the time the set up of the Nagarpalika was sanctioned/ finalized by the State Government and despite such increase in the working/service area of the Nagarpalika, there is no corresponding increase in the sanctioned set up of the municipality. Any steps either to increase the sanctioned set up and/or to increase the income/source of income are not taken by the Nagarpalika and the position of status-quo as regards the set up, number of employees, income, etc. has continued since many Page 10 HC-NIC Page 13 of 47 Created On Thu Jan 26 01:59:09 IST 2017 13 of 47 C/SCA/8658/2013 JUDGMENT years and that therefore, the Nagarpalika is not justified in contending that in absence of posts and/or vacancy on sanctioned set up, the demand by the claimants cannot be considered and granted. According to learned counsel for the claimants, the very fact that the claimants are continuously engaged by the Nagarpalika for more than 10 years establishes the need and requirement of the claimants and their service. Despite such fact, the claimants are continued in service on daily wage basis and the benefits available to regular and permanent employees are not extended to the claimants and despite such facts, the status of permanent workmen is not conferred to the claimants and they are not treated as regular employees of the Nagarpalika. According to learned counsel for the claimants, the practice of the Nagarpalika amounts to unfair labour practice. He submitted that if unfair labour practice is established, then, the learned Tribunal can grant appropriate relief Page 11 HC-NIC Page 14 of 47 Created On Thu Jan 26 01:59:09 IST 2017 14 of 47 C/SCA/8658/2013 JUDGMENT irrespective of the constraints in the area of regularization of service of the employees. He also submitted, while relying on the evidence by the claimants, that Nagar Palika has resorted to selective compliance inasmuch as in certain cases awards passed by the learned Labour Court or Industrial Tribunal have been accepted and complied without challenging the said awards whereas in other cases the Nagar Palika challenges the awards. He also submitted that the Nagar Palika has regularized services of the several workmen after claimants raised dispute and in respect of the persons who were employed after the appointments of the claimants. So as to support his submissions, learned advocate for the petitioner placed relied on the decisions dated 11.2.2015 by Division Bench in LPA No. 1345 of 2014 to 1354 of 2014, dated 8.10.2014 in SCA No. 9141 of 2013 as well as decision dated 8.10.2014 in SCA No. 17117 of 2013 and decision dated 8.10.2014 in SCA No. 9144 of 2013. He also relied Page 12 HC-NIC Page 15 of 47 Created On Thu Jan 26 01:59:09 IST 2017 15 of 47 C/SCA/8658/2013 JUDGMENT on the decision in case of Harinandan Prasad vs. Management of FCI AIR 2014 SC 1848 and Bhartiya Seve Samaj Trust vs. Yogeshbhai Ambalal Patel 2012 (9) SCC 310.
4. Per contra, Mr. Sanchela, learned counsel for the Nagarpalika, submitted that the Nagarpalika being a statutory body is bound by its regulations and it cannot deviate or commit breach of regularizations. He submitted that under the Act and under rules procedure for selection and recruitment of the employees is prescribed and that therefore the Nagar Palika cannot appoint / recruit any employee on its permanent set up without prescribed procedure. Learned advocate for the Nagar Palika submitted that claimants have been engaged without following prescribed procedure and that therefore their appointments cannot be regularized. According to learned advocate for the Nagar Palika if the services of the claimants are Page 13 HC-NIC Page 16 of 47 Created On Thu Jan 26 01:59:09 IST 2017 16 of 47 C/SCA/8658/2013 JUDGMENT regularized and if the Nagar Palika is directed to confer status of permanent workmen to the claimants then it would amount to regularization of back-door entry which is not permissible in law. Mr. Sanchela, learned advocate for the Nagar Palika reiterated and emphasized the irregularities and defects in the appointments of the claimants and he also reiterated and emphasized the fact that there is neither post nor vacancy on the sanctioned set up of the Nagar Palika. He submitted that there is neither basis nor justification in the demand and there is no error in the award/s challenged in captioned petition. Mr. Sanchela, learned advocate for the Nagar Palika relied on the decision dated 15.7.2016 in SCA No. 16274 of 2003. He also relied on the decision in case of Secretary of Government School Education Department, Chennai vs. Thiru R.Govindaswamy 2014 (4) SCC 769 and the decision by full bench in case of Amreli Nagar Palika, Secretary State of Karnataka vs. Umadevi.
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5. In reply Mr. Joshi, learned advocate for the claimants submitted that so far as the decision by full bench in case of Amreli Nagar Palika is concerned learned Single Judge and Hon'ble Division Bench have, after considering cited decision by Full Bench, approved and confirmed the orders passed by the learned Labour Court or learned Industrial Tribunal granting the claim for regularization in service. He also submitted that when case for unfair labour practice is established the labour Court or Industrial Tribunal would have jurisdiction and authority to grant appropriate relief to cure and set right unfair labour practice.
6. I have considered rival submissions by learned advocates for the claimants / union and the Nagar Palika. I have also considered the material on record and impugned awards.
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7. From the submissions by learned advocates for the petitioner and Nagar Palika it has emerged that the claimants in the cases on hand have been allegedly working in the category / cadre of Clerk, Bore Operator, Pump Man, Peon and Labourer. The dates when the claimants joined service in the Nagar Palika are different but all workmen claimed that they have been working with the Nagar Palika since 10 years or more than 10 years. The relevant details in present cases can be summarized thus:-
SCA No. Reference Designation Date of Date of No. joining award 8656/13 59/01 Clerk 06/01/90 22/10/12 9811/13 56/10 Labourer 01/01/82 14/12/11 12047/12 94/10 Clerk 06/05/98 14/6/12 12040/12 72/11 Clerk 07/09/98 15/6/12 Ramarks:- Out of two claimants viz. S.N. Dhandhal and Mr. B.P. Dave the reference case as well as petition are restricted only to one claimant i.e. Mr. Dhandhal 12046/12 93/10 Clerk 05/01/98 13/6/12 15089/12 28/02 Cleaner 01/05/94 03/09/12 12428/12 52/10 Peon 21/12/83 09/04/02 Note. The reference was made in respect of 7 claimants. In respect of one of the claimants leraned tribunal granted relief as prayed for. The petition is restricted to one claimant Mr. Bhatt. Other claimants whose case are rejected have not approached to this Court.
8705/13 006/00 Clerk 01/09/97 27.12.2004 18229/13 31/07 Cleaner 10/02/94 03/06/13 Page 16 HC-NIC Page 19 of 47 Created On Thu Jan 26 01:59:09 IST 2017 19 of 47 C/SCA/8658/2013 JUDGMENT
8. From the facts and circumstances of the case and from the rival submissions by learned advocates for the contesting parties it has emerged that there is no dispute between the parties so far as dates of joining the service with Nagar Palika is concerned. Therefore, it is not in dispute that almost all claimants have been working with the Nagar Palika for almost 10 years. The designation claimed by the workmen i.e. the post / category in which the claimants are working is also not in dispute.
The nature of duties and functions performed by the claimants also are not in dispute between the parties.
It is also not in dispute that the claimants have been working with the Nagar Palika and that the claimants have worked for 240 days or more days during their tenure with the Nagar Palika. 8.1 In respect of all cases the learned Tribunal, Page 17 HC-NIC Page 20 of 47 Created On Thu Jan 26 01:59:09 IST 2017 20 of 47 C/SCA/8658/2013 JUDGMENT after examining evidence on record, reached to the conclusion that the demand is not justified and does not deserve to be granted. Consequently learned labour Court has rejected the demand and dismissed reference.
8.2 In light of the facts of the case and in light of submissions by learned advocate for the contesting parties and more particularly in light of the decision on which the learned advocate for the claimants relied, it appears that the cases on hand are required to be divided in 2 groups viz. first group wherein claimants are engaged on the post of clerk or engaged for work of clerical nature and second group wherein the claimants are engaged on posts / for work other than that of clerk e.g. Peon, Cleaner, Labourer etc. for sake of convenience the cases wherein the concerned claimants are engaged as Clerk or are performing duty of clerical nature can be considered first.
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9. In the cases where the claimants are engaged on post of Clerk or are performing duties and functions of clerical nature, it is pertinent to mention that learned advocate for the claimants relied on certain decisions by this Court, wherein the cases of persons engaged on post of Clerk or performing duties of clerical nature have been considered. The award by the learned Tribunal in Reference (IT) No.171 of 2001 was considered by the Court in SCA No.9141/2013. In the said decision, the claimant was working on the post of Clerk and on examination of the record of the said reference case, this Court found that the learned Tribunal had recorded finding of fact in the said case that the work, which the respondent has been doing, is of permanent nature and he has been working on the said post since long time and that on regular set up, there is a post of Clerk which is sanctioned and vacant. In the said case, the Court also found that the learned Tribunal had reached to Page 19 HC-NIC Page 22 of 47 Created On Thu Jan 26 01:59:09 IST 2017 22 of 47 C/SCA/8658/2013 JUDGMENT the conclusion that the municipality resorted to unfair labour practice. In the said case the learned Tribunal having reached to such conclusion directed the Nagarpalika to regularize the service of the claimant. In the order dated 8.10.2004 in SCA No.9141/2013, this Court, after examining the facts of the case and after dealing with similar contentions and objections raised by the Nagarpalika, observed that:
"6.1 The respondent workman had joined the service as Clerk with the petitioner Municipality on 06.07.1989 and since then, he is working with the petitioner Municipality regularly and continuously. The Tribunal has recorded finding of fact that, the work which the respondent workman has been doing, is of permanent nature, and he has been working on the said post since long and even then he is paid his wages on daily wage basis. The petitioner Municipality has not given effect of permanency to the respondent, inspite of the fact that, on the regular set up there is a post of Clerk, which is sanctioned and vacant. With these findings of fact, the Tribunal has, in substance arrived at the conclusion that the Municipality has resorted to unfair labour practice. It is under these circumstances the Tribunal has directed that the respondent workman is entitled to wages as is payable to other regularly appointed workmen and for that purpose appropriate directions are issued. This Court finds that, the Tribunal has not committed any error while granting this relief to the workman. The impugned award therefore does not call for any interference by this Court. 6.2 It also needs to be recorded that, the Tribunal has treated the period from filing of Reference to date of award as notional and no arrears is to be paid for the said period.
6.3 So far the contentions raised on behalf of the petitioner Municipality to the effect that, at the Page 20 HC-NIC Page 23 of 47 Created On Thu Jan 26 01:59:09 IST 2017 23 of 47 C/SCA/8658/2013 JUDGMENT time of initial appointment of the workman no procedure was followed etc. are concerned, the same would not take the case of the Municipality any further in view of the settled position of law that, no Authority can be permitted to agitate that, it is he, who had to follow certain procedure, which it had not followed, and therefore the workman is not entitled to any relief. Reference in this regard can be made to the observations of Honble the Supreme Court of India in the case of Bhartiya Seva Samaj Trust versus Yogeshbhai Ambalal Patel reported in (2012) 9 SCC 310.
6.4 So far the authorities cited by learned advocate for the Municipality are concerned, there cannot be any dispute with regard to the proposition of law enunciated therein, however, on the face of the findings of fact recorded by the Tribunal as noted above, the same shall not take the case of the Municipality any further. This Court finds that, on conjoint reading of the findings of fact recorded by the Tribunal as noted above, and the observations of Honourable the Supreme Court of India in the case of Hari Nandan Prasad vs. Employer I/R to Management of FCI reported in AIR 2014 SC 1848, more particularly para:34 thereof, no interference is called for in the award passed by the Tribunal. This Court further finds that, any interference by this Court in the impugned award, in the facts of this case, would ultimately result in restoration of a situation of unfair labour practice, as defined under Section 2(ra) of the Industrial Disputes Act, 1947, read with the Fifth Schedule, Part-I, more particularly Entry Nos.9 and 10 thereof. This petition is therefore required to be dismissed."
9.1 In this context, it is relevant to note that in similar set of facts and circumstances in respect of the same Nagarpalika and in respect of same post and despite almost similar evidence available on record, the learned Tribunal, in present cases (where the concerned workmen claim that they are engaged as Clerk), reached to Page 21 HC-NIC Page 24 of 47 Created On Thu Jan 26 01:59:09 IST 2017 24 of 47 C/SCA/8658/2013 JUDGMENT different conclusion.
9.2 On this count, before proceeding further, it is necessary to mention that in view of the fact that learned counsel for the claimants relied on the decision in Special Civil Application No.9141 of 2013, the Court considered it appropriate to call for the papers of the said petition. Upon examination of the record of the said petition, more particularly the award dated 1.9.2012 in Reference No.71 of 2001, it is noticed that not only the evidence in the said case and present case is almost similar, but the learned Tribunal who passed the award in reference No.71 of 2001 and the learned Tribunal who passed the awards impugned in present cases is the same learned Tribunal. Meaning thereby, in respect of same Nagarpalika and on the basis of almost similar set of evidence and in respect of same post i.e. post of clerk and after having considered similar defence of the Nagarpalika, same learned Tribunal Page 22 HC-NIC Page 25 of 47 Created On Thu Jan 26 01:59:09 IST 2017 25 of 47 C/SCA/8658/2013 JUDGMENT passed different directions and recorded different conclusions. From the discussion in the award in present cases, it is not possible to decern any tangible reason or evidence from the award in light of which the learned Tribunal recorded different findings. Therefore, it appears that the awards passed by the learned Tribunal in above mentioned reference cases / petitions deserve reconsideration. Any reason or justification for arriving at different conclusion i.e. different than the conclusion reached by the learned Tribunal in the cited decision [i.e. the award dated 1.9.2012 in Reference (IT) No.71 of 2001] does not come out. There could just reasons for taking different view, but that should clearly come out from the award.
9.3 The learned Tribunal has recorded diagonally opposite conclusion inasmuch as in respect of the award dated 1.9.2001 in Reference (IT) No.71 of Page 23 HC-NIC Page 26 of 47 Created On Thu Jan 26 01:59:09 IST 2017 26 of 47 C/SCA/8658/2013 JUDGMENT 2001, the learned Tribunal decided the case in favour of the claimant and the learned Tribunal also granted the claim / demand for regularization.
9.4 However, any discussion and any reason for different and opposite conclusion is not recorded in the awards impugned in present group of petitions.
9.5 Therefore, the awards with such diagonally opposite observations and conclusions which are contrary to conclusion in the awards in similar cases deserve to be remanded to the learned Tribunal for re-consideration so that the learned Tribunal may re-consider the awards impugned in the captioned petitions having regard to previous / other decisions e.g. the award in Reference (IT) No.71 of 2001 and Special Civil Application No.9141 of 2013.
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9.6 In this context, it is relevant to mention that the persons concerned in the Special Civil Application No.8705 of 2013, Special Civil Application No.8658 of 2013, Special Civil Application No.12047 of 2012, Special Civil Application No.12046 of 2012 and Special Civil Application No.12040 of 2012 are also working as Clerk as the claimant in Reference No.71 of 2001 and the claimants in present cases also placed similar evidence before the Court and any additional or different evidence was not led by the Nagarpalika at the time of hearing of Reference (IT) No.71 of 2001.
9.7 Despite the set of evidence being similar in present cases and decided cases and despite the fact that almost similar contentions were raised and almost similar pleadings were filed, the learned Tribunal at Bhavnagar has recorded opposite and conflicting findings in the awards impugned in present petitions as against the Page 25 HC-NIC Page 28 of 47 Created On Thu Jan 26 01:59:09 IST 2017 28 of 47 C/SCA/8658/2013 JUDGMENT award in Reference (IT) No.71 of 2001. 9.8 Under the circumstances, it is in the interest of justice and fitness of things that the learned Tribunal would consider the awards impugned in present cases afresh in light of the decision by the Court in SCA No.9141/2013 in respect of the award dated 1.9.2012 passed in Reference (IT) No.71 of 2001.
Therefore, so far as the said petitions, i.e. Special Civil Application No.8705 of 2013, Special Civil Application No.8658 of 2013, Special Civil Application No.12047 of 2012, Special Civil Application No.12046 of 2012 and Special Civil Application No.12040 of 2012 (wherein the concerned claimants are working as Clerk) are concerned, the said cases are remanded to the learned Tribunal for re-examining the material on record in light of the decision in Reference (IT) No.71 of 2001 and the order dated 8.10.2014 by this Court in SCA No.9141/2013.
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9.9 It is pertinent to note that the said
decision dated 8.10.2014 in SCA No.9141/2013 was carried in appeal by Nagarpalika and the appeal came to be rejected by Hon'ble Division Bench vide decision dated 11.2.2015 in LPA No.1345/2014 and other cases. For the aforesaid purpose, the awards dated 22.10.2012, 14.6.2012, 15.6.2012, 13.6.2012 and 27.12.2004 in Reference No. 59 of 2001, 94 of 2010, 72 of 2011, 93 of 2010 and 6 of 2000 are hereby set aside and the said reference cases are remanded to the learned Tribunal for re-consideration in light of the award dated 1.9.2012 in Reference (IT) No.71 of 2001 and in light of the decision dated 8.10.2014 in SCA No.9141/2013 read with the decision dated 11.2.2015 in LPA No.1345/2014 and other cases. 9.10 The learned Tribunal shall decide the said cases afresh by taking into account the above mentioned award and the decisions by this Court, Page 27 HC-NIC Page 30 of 47 Created On Thu Jan 26 01:59:09 IST 2017 30 of 47 C/SCA/8658/2013 JUDGMENT as expeditiously as possible and preferably within three months. It is further clarified that the cases will be considered afresh by the learned Tribunal. The learned Tribunal will consider the case afresh in light of the evidence placed on record by both sides and the learned Tribunal will take fresh decision in accordance with the law without being influenced by the impugned awards and in light of the decision dated 8.10.2014 in SCA No.9141/2013.
10. Now, so far as SCA No.9811/2013 is concerned, the claimant alleged that he is engaged and working as Labourer in Construction Department since 1.1.1982. The said claimant has specifically stated in his statement of claim that in response to the notice inviting applications, he had submitted his application. The claimant also specifically alleged in the statement of claim that he was called for interview and after conducting his interview, the Page 28 HC-NIC Page 31 of 47 Created On Thu Jan 26 01:59:09 IST 2017 31 of 47 C/SCA/8658/2013 JUDGMENT officer had selected and appointed him. The said claimant has, in his affidavit in lieu of chief examination, also reiterated the said assertion. He also alleged in his statement of claim and evidence and in deposition that the persons engaged subsequently have been regularized in service.
Of course, in its written statement, the opponent Nagarpalika denied the allegation that the claimant had submitted application and he was called for interview and after he succeeded in the interview, he was selected.
Besides this, in paragraphs No.13 and 14 of the award, the learned Tribunal has recorded that the assertions made by the claimant in his deposition are not challenged or controverted and learned Tribunal also recorded that any contrary evidence is also not placed on record by the Nagarpalika.
In paragraph No. 16 of the award in Reference (IT) No. 56 of 2010 learned Labour Court has Page 29 HC-NIC Page 32 of 47 Created On Thu Jan 26 01:59:09 IST 2017 32 of 47 C/SCA/8658/2013 JUDGMENT observed that the Nagar Palika failed to place on record rules for selection and recruitment and that therefore in absence of such rules the contention that claimant's appointment was made irregularly cannot be accepted.
In paragraph No.17 of the award, the learned Tribunal has observed and recorded that the claimant specifically mentioned the names of the persons who were engaged after he was appointed, i.e. persons who were juniors to him and yet their services are regularized.
Learned Labour Court has also taken note of the fact that the claimant's failed to mention names of any person who though junior to him has been regularized. Learned Labour Court also took note of the evidence of the witness of the Nagar Palika that any person junior to the claimant has not been regularized on post of labourer. After considering evidence learned Labour Court rejected the allegation of the claimant that person junior to him has been regularized in Page 30 HC-NIC Page 33 of 47 Created On Thu Jan 26 01:59:09 IST 2017 33 of 47 C/SCA/8658/2013 JUDGMENT service by Nagar Palika.
The learned Tribunal has recorded findings of fact and has not accepted the allegation of the claimant.
This Court cannot interfere with the finding of fact recorded by the learned Tribunal. Under the circumstances, the allegation that the persons junior to the claimant have been regularized in service, cannot be accepted since the claimant failed to prove said allegation.
Further, the learned Tribunal appears to have proceeded to examine the case in light of the explanation and defence of the Nagarpalika that there is no post or post of Labourer or vacancy on such post in the sanctioned set up. The learned Tribunal has examined the case in light of the Full Bench decision in the case of Amreli Municipality, the decision of the Hon'ble Apex Court in the case of State of Karnataka and the decision in the case of Dholka Municipality as well as the decision in the case of State of Page 31 HC-NIC Page 34 of 47 Created On Thu Jan 26 01:59:09 IST 2017 34 of 47 C/SCA/8658/2013 JUDGMENT Karnataka vs. M.L. Kansari.
The learned Tribunal has also taken into account the details of the sanctioned set up submitted which were placed on record by the Nagarpalika. The learned Tribunal has found that in the set up which came to be sanctioned in December 2009, there is no post and/or vacancy on the post of Labourer in sanctioned set up.
11. At this stage, it is relevant to note that Mr. Joshi, learned advocate for the claimants submitted that even in the decision in the case of Umadevi (supra), Hon'ble Apex Court has observed that in cases where the employer has regularized services of other workmen, more particularly juniors to the claimant then the Court can consider such facts of the case and grant appropriate relief including relief of regularization in service. Mr.Joshi, learned advocate particularly relied on the observations by Hon'ble Apex Court in paragraph No.53 of the Page 32 HC-NIC Page 35 of 47 Created On Thu Jan 26 01:59:09 IST 2017 35 of 47 C/SCA/8658/2013 JUDGMENT decision, which reads thus:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 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 courts or of tribunals. The question of regularization of the services of such employees 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 regularize 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 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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
11.1 He also relied on the decision in the case of Hari Nandan Prasad and Anr. v. Employer I/R to Management of FCI and Anr. [AIR 2014 SC 1848]. In the said decision, Hon'ble Apex Court has observed, inter alia, that:
"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 because a worker has continued as daily wage worker/ad hoc/temporary worker for number of years. Further, if Page 33 HC-NIC Page 36 of 47 Created On Thu Jan 26 01:59:09 IST 2017 36 of 47 C/SCA/8658/2013 JUDGMENT 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."
11.2 It is relevant to note that even in the said decision Hon'ble Apex Court has observed that the direction for regularization of service can be passed provided vacancy of permanent / sanctioned set up is available / exists.
12. In the said decision in case of Hari Nandan Prasan & Anr. v. Employer I/R to Management of FCI & Anr. [AIR 2014 SC 1848], Hon'ble Apex Court observed that "if there are no posts available, direction for regularization would be impermissible".
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12.1 Learned counsel for the claimants relied on the below quoted observations by Hon'ble Apex Court in case of Secretary, State of Karnataka & Ors. v. Umadevi & Ors. [AIR 2006 SC 1808], wherein Hon'ble Apex Court observed, inter alia, that:-
"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R. N. Nanjundappa (supra), and B. N. Nagrajan (supra), and referred to in paragraph 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 courts or of tribunals. The question of regularization of the services of such employees 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 regularize 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 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 regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
12.2 When the said observations are taken into account, it comes out that even while recording Page 35 HC-NIC Page 38 of 47 Created On Thu Jan 26 01:59:09 IST 2017 38 of 47 C/SCA/8658/2013 JUDGMENT the said observations, Hon'ble Apex Court emphasized the requirement of duly sanctioned vacant post and duly qualified persons. Third aspect which Hon'ble Apex Court emphasized while recording the said observations is that the claimants must not have got benefit of protection of orders of the Courts or Tribunal directing the employer to continue the persons in service. 12.3 Thus, when the observations by Hon'ble Apex Court in above cited cases are taken into account and when the observations in the decision by Full Bench in case of Amreli Municipality are considered, it emerges that one common thread which passes through in all observations is woven by two aspects namely, the claimants must be duly qualified i.e. he must possess prescribed qualification and there mus be vacancy on permanent posts of sanctioned set up. Unless the concerned person possesses the prescribed qualification for the post in question and unless Page 36 HC-NIC Page 39 of 47 Created On Thu Jan 26 01:59:09 IST 2017 39 of 47 C/SCA/8658/2013 JUDGMENT the sanctioned set up of the organization comprise the post in question and unless there is vacancy on such permanent post on sanctioned set up, the Court would refrain from passing direction for regularization of the claimant and even High Court in exercise of its prerogative jurisdiction would refrain from such direction. 12.4 It is in light of the said settled legal position that the case of other claimants and the decision by learned Tribunal are required to be considered.
13. So far as the case of the claimant in other cases i.e. Special Civil Application No.9811 of 2013 (where the concerned claimant works as labourer in construction department) and Special Civil Application No.15089 of 2012 (where the concerned claimant works as cleaner in fire department) and Special Civil Application No.12428 of 2013 (where the concerned claimant Page 37 HC-NIC Page 40 of 47 Created On Thu Jan 26 01:59:09 IST 2017 40 of 47 C/SCA/8658/2013 JUDGMENT works as peon) and Special Civil Application No.18229 of 2013 (wherein the concerned claimant is working as cleaner) are concerned, it has emerged from the award that after taking into account the sanctioned set up, the learned Tribunal has recorded finding of fact that on sanctioned set up either the said post is not approved / sanctioned or any vacancy in respect of the said post does not exist and when the said findings are taken into account, then, it emerges that in light of the above quoted observations by Hon'ble Apex Court in cases of Hari Nandan Prasan & Anr. (supra), Umadevi (supra) and M.L.Kansari (supra), the final decision of the learned Labour Court as regards the claimants who are engaged as and working as labourer and peon i.e. Special Civil Application No.9811 of 2013 and Special Civil Application No.12428 of 2012 cannot be faulted. Therefore, so far as award challenged in Special Civil Application No. 9811 of 2013 i.e. award dated 14.12.2011 in Reference Case No. 56 Page 38 HC-NIC Page 41 of 47 Created On Thu Jan 26 01:59:09 IST 2017 41 of 47 C/SCA/8658/2013 JUDGMENT of 2010 and the award challenged in Special Civil Application No. 12428 of 2012 i.e. award dated 9.4.2012 in Reference Case No. 52 of 2012 with reference to Mr. R.L. Bhatt are not disturbed and the said awards are confirmed. The said two petitions i.e. Special Civil Application No. 9811 of 2013 and Special Civil Application No. 12428 of 2012 are not accepted.
So far as awards challenged in Special Civil Application No. 15089 of 2012 and Special Civil Application No.18229 of 2013 i.e. awards in Reference Case No. 28 of 2002 and Reference Case No. 31 of 2007, it is noticed from the documents (placed on record of the petition by the respondent Nagarpalika alongwith its affidavit) that the post of cleaner is sanctioned post and that therefore, the case of the Nagarpalika that the post does not exist is neither correct nor justified. However, from the submissions placed on record by the respondent, it appears that against the sanctioned 6 posts of helper/cleaner, Page 39 HC-NIC Page 42 of 47 Created On Thu Jan 26 01:59:09 IST 2017 42 of 47 C/SCA/8658/2013 JUDGMENT nagarpalika has engaged 7 persons and out of said 7 persons, 3 persons are engaged on daily wage basis. Therefore, it appears that out of sanctioned 6 posts, only 4 posts of helper/cleaner are filled up by regular/permanent employee whereas other posts are filled up by daily wagers.
13.1 Therefore, the decision by learned Tribunal in case of the claimants who are working as cleaner i.e. the claimant in reference No.31/2007 (Special Civil Application No.18229 of 2013) and in case of claimant in reference No.28 of 2002 (Special Civil Application No.15089 of 2012) deserve to be set aside.
In respect of the said two claimants who are working as cleaner, learned Tribunal has committed error in holding that there is no permanent / sanctioned posts or vacancy on sanctioned establishment in respect of the cleaner and that therefore, the claim of the said Page 40 HC-NIC Page 43 of 47 Created On Thu Jan 26 01:59:09 IST 2017 43 of 47 C/SCA/8658/2013 JUDGMENT claimants cannot be granted.
The material available on record of the petition has brought out that post of cleaner is permanent post on sanctioned set up and two posts are such where vacancies are filled up by daily wagers.
In respect of said posts/vacancies, the case of the claimants, subject to their seniority and qualifications, deserve to be considered by the learned Tribunal. Therefore, the awards in reference Nos.31 of 2007 and 28 of 2002 are set aside and the said cases (Special Civil Application No.18229 of 2013 and Special Civil Application No.15089 of 2012) are remanded to the learned Labour Court and the respondent Nagarpalika is directed to consider the cases of the said two claimants in light of above discussed facts and to pass appropriate orders in accordance with law and keeping in focus principle of seniority and compliance of requirement as regards prescribed qualification Page 41 HC-NIC Page 44 of 47 Created On Thu Jan 26 01:59:09 IST 2017 44 of 47 C/SCA/8658/2013 JUDGMENT etc. may be passed. Consequently the said two petitions i.e. Special Civil Application No. 15089 of 2012 and Special Civil Application No.18229 of 2013 are partly allowed and Reference Case Nos. 31 of 2007 and 28 of 2002 are, with aforesaid clarifications and directions, remanded to the learned Labour Court.
14. So far as cases of other claimants i.e. those who are working as labourer and peon are concerned, the findings by the learned Labour Court that the posts on which the said claimants are performing duties, either do not exist on the sanctioned set up or presently there is no vacancy in respect of the said post on sanctioned set up. Therefore, the final decision by the learned Labour Court in the said cases cannot be faulted. Consequently, the said decision are confirmed and the Special Civil Application No.9811 of 2013 and Special Civil Application No.12428 of 2013 are not accepted.
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However, it is clarified that as and when vacancy arises in respect of the post held by the said claimants, i.e. labourer (Reference No.56 of 2010 - Special Civil Application No.9811 of 2013) and peon (Reference No.52 of 2010 - Special Civil Application No.12428 of 2012) then, subject to seniority and subject to fulfillment of the criterion related to the qualification and other eligibility criteria, cases of the said claimants may be considered for regularization.
In the result Special Civil Application Nos. 8705 of 2013, 8658 of 2013, 12047 of 2012, 12046 of 2012 and 12040 of 2012 which pertain to Reference Case Nos. 59 of 2001, 94 of 2010, 72 of 2011, 93 of 2010 and 6 of 2000 are partly allowed and the said cases are remanded to the learned Tribunal for reconsideration. Likewise, Special Civil Application No.15089 of 2012 and Special Civil Application No.18229 of 2013 are partly set aside and said cases are remanded.
So far as Special Civil Application Nos.9811 Page 43 HC-NIC Page 46 of 47 Created On Thu Jan 26 01:59:09 IST 2017 46 of 47 C/SCA/8658/2013 JUDGMENT of 2013 (which is related to Reference Case No. 56 of 2010) and Special Civil Application No. 12428 of 2012 (which is related to Reference Case No. 52 of 2010) are concerned, the awards challenged in said petitions are not disturbed and the said awards are confirmed. However, subject to the clarification recorded hereinabove in present order with regard to said two petitions.
Sd/-
(K.M.THAKER, J.) kdc/Suresh*/Bharat Page 44 HC-NIC Page 47 of 47 Created On Thu Jan 26 01:59:09 IST 2017 47 of 47