Gujarat High Court
Botad Municipality vs Industrial Tribunal - Bhavnagar & on 7 September, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/10869/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10869 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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BOTAD MUNICIPALITY....Petitioner(s)
Versus
INDUSTRIAL TRIBUNAL - BHAVNAGAR & 1....Respondent(s)
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Appearance:
MR PREMAL R JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR DG SHUKLA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 07/09/2015
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. D.G.Shukla waives service of notice of Rule for respondent No.2.
2. With the consent of the learned advocates for the Page 1 of 9 HC-NIC Page 1 of 9 Created On Fri Sep 11 01:19:47 IST 2015 C/SCA/10869/2014 JUDGMENT parties, the matter is taken up for final hearing today.
3. Heard learned advocate Mr. Premal R. Joshi for the petitioner and learned advocate Mr. D.G.Shukla for respondent No.2.
4. Learned advocate Mr. Joshi for the petitioner submitted that the petitioner, by filing present petition, has challenged the award dated 18.03.2014 passed by the learned Industrial Tribunal, Bhavnagar below Exh.50 in Reference (IT) No.48 of 2004, whereby the learned Tribunal has partly allowed the Reference and directed the petitioner Municipality to regularize the service of the workman - Usmanbhai Mohammadbhai Khalyani as Cleaner from January, 2004 and from the date of publication of the award, the petitioner Municipality is further directed to pay to the workman the salary and other consequential benefits which the other similarly situated regular employees are getting. It is further ordered that the period from January, 2004 to the date of publication of the award is to be considered as notional period. It is this award which the petitioner has challenged in this petition.
5. Learned advocate Mr. Joshi further submitted that the case of the workman was that from 01.06.1995, he was performing his duty as a Cleaner with the petitioner Municipality and his services were terminated on 30.01.1996, and therefore, he approached Page 2 of 9 HC-NIC Page 2 of 9 Created On Fri Sep 11 01:19:47 IST 2015 C/SCA/10869/2014 JUDGMENT the Labour Court. In the said proceedings, settlement was arrived at between the parties, accordingly, the workman was reinstated in service on 11.03.1998 and since then he was working as a Cleaner. Learned advocate Mr. Joshi further submitted that the workman was appointed without following due process of law and ignoring the Recruitment Rules of the Municipality. That there is no vacant post on the sanctioned set-up of the Municipality on which the workman was working. Learned advocate Mr. Joshi relied upon the decision of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi (3) and others, reported in (2006) 4 SCC 1 and submitted that when there is no vacant post in the sanctioned set-up of the Municipality, learned Tribunal ought not to have directed the petitioner Municipality to regularize the services of the workman. He further submitted that while passing the impugned award, the learned Tribunal ought to have considered the financial condition of the Municipality. Learned advocate Mr. Joshi for the petitioner, therefore, submitted that the award impugned be quashed and set aside.
6. On the other hand, learned advocate Mr. Shukla submitted that the learned Tribunal has not committed any error while partly allowing the reference and thereby supported the award passed by the learned Tribunal. Learned advocate further submitted that though the workman was doing the work of permanent nature, he has been paid minimum wages by considering Page 3 of 9 HC-NIC Page 3 of 9 Created On Fri Sep 11 01:19:47 IST 2015 C/SCA/10869/2014 JUDGMENT him to be a daily-wager and no other benefits were given to him and thereby the petitioner Municipality has violated Articles 14 and 16 of the Constitution. Learned advocate further submitted that the other similarly situated junior employees, who were doing the same work as that of the present respondent workman, were given the benefit of permanency and therefore also the learned Tribunal has not committed any error in holding the respondent - workman as permanent employee of the petitioner Municipality from January, 2004. Learned advocate Mr. Shukla, therefore, submitted that the present petition be dismissed with cost.
7. I have heard the learned advocates for the parties. Perused the impugned award and the documents available on record.
8. It appears from the record that workman was serving as Cleaner with petitioner Municipality from 01.06.1995 and his services were terminated on 30.01.1996. He, therefore, approached the Labour Court and on arriving at the settlement, he was reinstated and since 11.03.1998 he is continuously serving as cleaner with the petitioner Municipality. The learned Tribunal has specifically observed in the impugned award that nothing comes out on record from the evidence of the petitioner Municipality that the workman has worked in a piecemeal and thereby the learned Tribunal came to the conclusion that the workman has constantly and continuously worked with Page 4 of 9 HC-NIC Page 4 of 9 Created On Fri Sep 11 01:19:47 IST 2015 C/SCA/10869/2014 JUDGMENT the petitioner Municipality. Moreover, learned Tribunal has also observed that as per Government Resolution, the set-up to each Municipality was sanctioned class-wise and since the petitioner Municipality falls within B class, the sanctioned set- up of the petitioner Municipality was of two posts out of which one post is vacant and on that post the workman was working. Further, there is no difference in the work of permanent Cleaner and the workman but there is vast difference in the salary of the permanent Cleaner and the workman. It is also admitted by the petitioner that the permanent Cleaner is being paid the salary as per Fifth Pay Commission, whereas the workman is being paid the wages on daily-wage basis. Thus, when the workman is continuously working with the petitioner Municipality from 1998 onwards and when the similarly situated employees who are juniors to the petitioner are given the benefit of permanency and when the learned Tribunal has considered the period from January 2004 (the date from when the workman is granted the benefit of permanency) to the date of publication of award as notional, in view of this Court, the learned Tribunal has not committed any error while partly allowing the reference.
9. It is also well settled that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or re-appreciate the evidence and record its findings on the contentious points. It is also well settled that only if there is a serious error of law or the findings Page 5 of 9 HC-NIC Page 5 of 9 Created On Fri Sep 11 01:19:47 IST 2015 C/SCA/10869/2014 JUDGMENT recorded suffer from error apparent on record, the High Court can exercise its powers under Article 227 of the Constitution and quash the order of a lower court and/or Tribunal. The Hon'ble Supreme Court in the case of Iswarlal Mohanlal thakkar v. Paschim Gujarat Vij Company Limited & Another, reported in (2014) 6 SCC 434, held in para 15 as under:
"15. We find the judgment and award of the labour court well-reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the labour court in its Award as it is well settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or re- appreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the Award of the labour court was based on sound and cogent reasoning, which has served the ends of justice."
10. The Hon'ble Supreme Court in the recent decision rendered in the case of Jasmer Singh v. State of Haryana And Another, reported in (2015) 4 SCC 458, observed in para 18 to 20 as under:
"18. The said award is challenged by the respondent employer in Civil Writ Petition Page 6 of 9 HC-NIC Page 6 of 9 Created On Fri Sep 11 01:19:47 IST 2015 C/SCA/10869/2014 JUDGMENT No.9532 of 2001 urging untenable contentions. In the said writ petition, the High Court exercised its jurisdiction contrary to the judgment of this Court in Syed Yakoob v. K.S.Radhakrishnan and also the judgment, which was referred to in Harjinder Singh v. Punjab State Warehousing Corpn. The learned counsel for the appellant has aptly placed reliance upon another judgment of Anoop Sharma v. Public Health Division in support of her legal submissions that both the learned Single Judge and the Division Bench of the High Court have erred in exercising their supervisory power under Article 227 of the Constitution of India in setting aside the finding of fact recorded on the facts based on the pleadings and evidence on record.
19. Further in Harjinder Singh v. Punjab State Warehousing Corpn. wherein this Court opined on the exercise of power by the High Court under Article 227 of the Constitution of India as under:(SCC p.205, para 21) "21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the Page 7 of 9 HC-NIC Page 7 of 9 Created On Fri Sep 11 01:19:47 IST 2015 C/SCA/10869/2014 JUDGMENT State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J opined that:
"10...The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State."
(State of Mysore v. Workers of Gold Mines, AIR p.928, para 10)"
20. In view of the aforesaid statement of law the setting aside of the award by the learned Single Judge which is affirmed by the Division bench is vitiated in law as the same is contrary to the judgments of this Court referred to supra, upon which the learned counsel for the appellant has rightly placed reliance in support of the correctness of the finding recorded by the Labour Court on the various issues, particularly the finding of fact that the workman has worked for more than 240 days in a calender year and termination order is void ab initio in law for non- compliance with Sections 25-F clauses (a) and
(b), 25-G and 25-H of the Act, therefore, the Industrial Tribunal-cum-Labour court has rightly set aside the order of termination of services of the workman and awarded the order of reinstatement with continuity of service and full back wages."
11. In view of the aforesaid decisions, I am of the opinion that the learned Tribunal has not committed any error of jurisdiction or serious error of law Page 8 of 9 HC-NIC Page 8 of 9 Created On Fri Sep 11 01:19:47 IST 2015 C/SCA/10869/2014 JUDGMENT apparent on record or the judgment of the learned Tribunal based on no evidence and therefore in absence of such defects, this Court, while exercising the powers under Article 227 of the Constitution, would be slow in interfering with the findings recorded by the learned Tribunal on contentious issues after appreciating the evidence available on record.
12. In view of the aforesaid discussion, the decision relied upon by the learned advocate for the petitioner in the case of Umadevi and others (supra) is of no avail.
13. In view of the aforesaid discussion, I am in agreement with the reasoning given by the learned Tribunal and I do not find any reason to interfere with the award passed by the learned Tribunal. The petition is, therefore, deserves dismissal and accordingly it is dismissed. Rule is discharged.
(VIPUL M. PANCHOLI, J.) Jani Page 9 of 9 HC-NIC Page 9 of 9 Created On Fri Sep 11 01:19:47 IST 2015