Gujarat High Court
Shihor Municipality Through Chief ... vs Gujarat Mazdoor Sangh R P Narigara on 21 June, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/1553/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1553 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 1634 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 1635 of 2016
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SHIHOR MUNICIPALITY THROUGH CHIEF OFFICER
Versus
GUJARAT MAZDOOR SANGH R P NARIGARA
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Appearance:
MR. VYAS, LEARNED ADVOCATE FOR MR YASH N NANAVATY(5626) for
the PETITIONER(s) No. 1
MR YOGEN N PANDYA(5766) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 21/06/2018
ORAL ORDER
1. Heard Mr. Vyas, learned advocate for Mr. Y.N.Nanavati, learned advocate for petitioner Municipality and Mr. Pandya, learned advocate for respondent. Learned advocates for petitioner and respondent have jointly clarified and declared that similar facts and common issue of law are involved in captioned three petitions and that the learned Industrial Tribunal has passed separate but almost similar awards with almost similar directions and the said awards are Page 1 of 12 C/SCA/1553/2016 ORDER challenged in three separate petitions on similar and identical grounds. The petitioner in captioned three petitions is Shihor Municipality and the respondents, the workmen concerned in three Reference cases, have opposed the petitions on similar contentions. Therefore captioned three petitions are heard together and decided by this common order.
2. In SCA No.1553 of 2016 the petitioner Municipality has challenged award dated 30.03.2015 passed by learned Tribunal at Bhavnagar in Reference (IT) No.32/2008 and in SCA No.1634/2016 the same Municipality has challenged award dated 30.3.2015 passed by learned Tribunal at Bhavnagar in Reference (IT) No. 31/2008 whereas in SCA No.1635/2016 the same Municipality has challenged award dated 30.3.2015 passed by learned Tribunal at Bhavnagar in Reference (IT) No. 33/2008, whereby learned Tribunal directed the petitioner municipality to regularized the services of three concerned workmen on the post Page 2 of 12 C/SCA/1553/2016 ORDER of Keyman and Baildar with effect from 1.2.2008 however learned Tribunal has not awarded arrears and instead the leaned Tribunal has directed that the benefits from 1.2.2008 until the date of award (i.e. 30.3.2015) shall be considered notional.
3. Feeling aggrieved by the said Order the Municipality has taken out captioned three petitions.
4. So far as factual background is concerned, it has emerged from the record that three workmen namely Mr. Jahangir Usmanbhai Padhiyar, Mr. Manubhai Vashrambhai and Mr. Nanubhai Raghubhai raised industrial dispute with allegations that their services with opponent municipality as Keyman, Baildar and Keyman respectively since April, 1992, July, 1997 and February, 1999, should be regularized and benefits of regular and permanent workman should be granted to them. Before learned Tribunal the concerned claimants filed separate but similar statements of claim Page 3 of 12 C/SCA/1553/2016 ORDER with little modification with regard to their post/ designation and date when they joined services with municipality. Except the said dates and factual aspect, the said three claimants raised similar allegations and contentions in their statements of claim. They claimed that they have been serving with municipality since more than 10 years and they have been serving regularly and continuously and discharging their duties of permanent and perennial nature. They also claimed that while services of other claimants are regularized, they have been deprived of similar benefits and treatment and that there is no justification for not regularizing their service and for not granting benefits of regular payscale. With such allegations the said claimants demanded regularization in the service, status of permanent employee and benefits of regular and permanent workman.
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5. The municipality opposed the demand and the reference cases. Municipality opposed the references on the ground of delay and also on the ground that there is no vacancy on permanent set up and that the claimants have not been engaged after following procedure of selection. The municipality denied the allegation that the claimants have worked for 240 days in each year during their tenure of more than 10 years. The municipality also disputed the allegations that the claimants have been working as Keyman and Baildar. Municipality also claimed that there is no post of Keyman or Baildar on sanctioned setup and in absence of any post there is no vacancy and therefore question of regularizing the services of the claimants on such posts does not arise. The municipality also claimed that its financial position is very weak, there is huge debt and it has difficulty in payment of retiral dues including gratuity to the regular employees who have retired from service. With such Page 5 of 12 C/SCA/1553/2016 ORDER submissions the municipality opposed the reference cases.
6. Upon conclusion of the pleadings learned Industrial Tribunal received evidence from both sides and after the contesting parties closed their evidence, learned Tribunal heard rival submissions.
7. After considering the evidence on record, learned Tribunal reached to the conclusion that rejection of the claimants' demand is unjustified. Learned Tribunal also reached to the findings that the municipality appointed and engaged the claimants and on the ground that at the relevant time it was the municipality who chose to engage the claimants without following the procedure, now the Municipality cannot take advantage of its own wrong and cannot refuse the claimants' justified demand on the ground that they were irregularly appointed.
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8. Having reached such conclusion, learned Tribunal passed impugned awards with above mentioned directions.
9. While assailing the awards learned advocate for the petitioner reiterated the contentions which were raised by the municipality before learned Tribunal and he submitted that learned Tribunal failed to appreciate that there was no justification in the demand by the claimants. He submitted that in absence of any posts/ vacancy on sanctioned establishment, the claim should not be granted, however the learned Tribunal arbitrarily rejected even the said contention. According to learned advocate for petitioner the learned Tribunal committed error in rejecting the contention raised by municipality and that learned Tribunal also committed error in directing the municipality to regularize service of the claimants.
10. Learned advocate for the respondent submitted that the learned Tribunal considered the decision Page 7 of 12 C/SCA/1553/2016 ORDER in case of Maharashtra State Road Transport Corporation v. Casterib State Employees Union and he also relied on the decision in case of State of Karnataka v. M.L.Kesari and the decision in case of The Workmen Bhurkunda Coliary of Central Coal Field and Bhurkunda Coliary, and Sudarshan Rajput v. Uttar Pradesh State Road Transport Corporation and in light of the observations by Hon'ble Apex Court in the said decisions learned Tribunal passed the awards. He submitted that the awards passed by the leaned Tribunal are just, reasonable and proper and do not suffer from any infirmity. He would submit that learned Tribunal has taken into consideration relevant factors as well as facts of the case of the claimants and reached to the conclusion that demand of the claimants are justified. Learned advocate for the petitioner also submitted that the learned Tribunal has not granted any benefit which would impose financial burden for the payment of arrears and that therefore there is no justification to disturb the awards. Page 8 of 12 C/SCA/1553/2016 ORDER
11. I have considered rival submission and material available on record. I have also considered impugned awards in the said three Reference Cases.
12. At the outset it is relevant to mention that the relevant facts are not in dispute. It is not in dispute that claimant Mr. Padhiyar is employed by the Municipality since April, 1992 as Keyman and that the claimant Mr. Manubhai Vashrambhai is employed as Baildar since July, 1997 and that the claimant Mr. Nanubhai Raghubhai is serving with the Municipality since February, 1999 as Keyman.
13. From the material on record it has also emerged that the claimants successfully established before the learned Tribunal that they have been in service with the Municipality continuously since 1992, 1997 and 1999 respectively and that they have worked with Municipality regularly and continuously and in Page 9 of 12 C/SCA/1553/2016 ORDER each year they have worked for more than 240 days.
14. The petitioner has failed to show any material from record of this petition that the said facts and/ or findings recorded by the learned Tribunal are incorrect or perverse.
15. It is not in dispute that by now the petitioners have rendered service for more than 20 years and at the relevant time i.e. when they raised demand they have continuously served with Municipality for almost 10 years.
16. It is also not in dispute that their service continued on account of continuous need of their service and not under protection of Court's Order.
17. It is also not in dispute that the work and duties performed by the claimants are of permanent and regular nature and the Municipality still needs their service and duties performed by Page 10 of 12 C/SCA/1553/2016 ORDER the claimants and that is the reason they have been continued in service by the Municipality, for these many years, without protection of Court's order/ direction.
18. In view of the fact of present case and in light of above quoted observation by Hon'ble Apex Court in above mentioned decision, the petitioner has failed to make out any ground to interfere with and disturb the impugned awards.
19. The petitioner has also failed to establish that the findings recorded by learned Tribunal are incorrect or perverse and/ or that the learned Tribunal has committed any error or irregularity in exercising of jurisdiction.
20. Since the Court finds that the learned Tribunal has not committed any irregularity in exercise of jurisdiction and the findings recorded by learned Tribunal does not suffer from any infirmity and the same are not perverse and also having regard to the fact that despite the Page 11 of 12 C/SCA/1553/2016 ORDER fact that the claimants have been serving the Municipality since more than 20 years before the award came to be passed ,the learned Tribunal has not imposed any financial obligation by way of direction to pay arrears and instead directed the Municipality to pay salary in regular pay scale from the date of award, any ground to entertain the petitions and to disturb the awards is not made out.
21. Therefore the petition deserves to be rejected and is accordingly rejected.
22. The Municipality will take necessary steps to act in accordance with and to implement the direction passed by learned Tribunal as expeditiously as possible.
(K.M.THAKER, J) saj Page 12 of 12