Gujarat High Court
Devendrakumar C Solanki vs State Of Gujarat & 2 on 16 July, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11919/2000 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11919 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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DEVENDRAKUMAR C SOLANKI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/07/2015
CAV JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the petitioner, serving as a part time Page 1 of 15 C/SCA/11919/2000 CAV JUDGMENT sweeper in the office of the respondent No.3, has prayed for the following reliefs:
"(A) This Hon'ble Court be pleased to issue writ or Mandamus or a writ in the nature of Mandamus or any other appropriate writ, direction or order directing the Respondents Authorities to regularise the services of the petitioner on the post of Class-IV Peon, for his having rendered more than 17 years of service as a part time sweeper.
(B) Pending hearing and final disposal of this application, this Honourable Court may be pleased to restrain the Respondent Authorities from disturbing the petitioner of his duty as part time sweeper and to continue the petitioner on the said post.
(C ) Be pleased to pass such other and further orders as this Hon'ble Court may deem fit.
(D) Costs of this application be kindly awarded."
2. The petitioner was appointed as a part time sweeper vide order dated 1.8.1983 in the office of the Industries Commissioner, Bhavnagar and since then has been discharging his duties. In the year 1984, the Government of Gujarat passed a resolution that such part time sweepers who had rendered 10 years of service may be regularized as peons if they possessed the minimum eligibility criteria for that post. Pursuant to the representations filed by the petitioner, the respondent No.2 accorded sanction to the respondent No.3 to absorb the petitioner on any vacant post. On the basis of the 1984 circular, one lady, who had been working as a part time sweeper with the office of the District Industries Office, Ahmedabad, came to be transferred to Bhavnagar and was regularized. This happened on 16th November, 1990.
Page 2 of 15 C/SCA/11919/2000 CAV JUDGMENT3. It is the case of the petitioner that at the time when he filed the petition in the year 2000, one post of peon had fallen vacant but he was not being absorbed.
4. On 19th April, 2001, the following order was passed;
"Rule. By way of ad-interim relief, it is directed that while filling in the next vacancy in the post of Peon under respondent No.3, the respondents shall take into account the Government Resolution dated 11.12.1984 at Annexure "H" to the petition and also the roster applicable. Until then, the respondents shall continue the petitioner as a part-timer as of now."
5. On 16th June, 2015, the following order was passed;
"1. On 13th February, 2013, the following order was passed:
"1. Heard Mr. G.M. Joshi, learned advocate for the petitioner and Mr. Rindani, learned AGP for the respondent authorities.
2. The petitioner who is working since 1987 as peon claims benefits which are otherwise given to regularly appointed employees. Reliance is also placed on the order dated 16.11.1990 passed in case of one similarly situated employee. Though this Court may be slow in giving direction to the respondent authorities to regularise the services of an employee, considering the fact that the petitioner is working since 1987 and in the same office, a similarly situated employee was already regularised by the authorities, before adjudicating the claim of the petitioner, it is directed to respondents no.1 and 2 to have a look at the issue and considering the requirement in the office in which the petitioner is working and availability of posts there, appropriate decision be taken and be placed on record of this petition.
3. Mr. Rindani, learned AGP, prays for time. At this request, list the matter on 15.03.2013, within first 15 matters on the final hearing board of that day.Page 3 of 15 C/SCA/11919/2000 CAV JUDGMENT
Direct service is permitted."
2. I inquired with Ms. Pathak, the learned AGP regarding the action taken by the respondent Nos.1 and 2 as directed by this Court. Ms. Pathak has no instructions in the matter. The order dated 13th February, 2013 is very clear. The respondent Nos. 1 and 2 were directed to look into the issue and consider the requirement in the office in which the petitioner is working and the availability of the posts therein and an appropriate decision had to be taken and placed before this Court. Almost more than two years have lapsed, but till date, it appears that the respondent Nos. 1 and 2 have not done anything in the matter.
3. A responsible officer from the office of the Industries Commissioner, Gandhinagar shall personally remain present tomorrow with necessary records and apprise the Court regarding the compliance of the order passed by this Court dated 13th February, 2013.
4. Let the matter appear on 17th June, 2015.
5. A copy of this order be provided to Ms. Pathak, the learned AGP for its onward communication."
6. On behalf of the respondent No.2, an affidavit-in-reply has been filed, inter alia, making following averments;
"3. I say and submit that this Hon'ble Court had vide order dated 13.02.2013 directed the respondent nos.1 and 2 to look into the issue and considering the requirement in the office in which the petitioner is working and availability of post of peon. The Hon'ble Court further directed that appropriate decision to be taken and place on record of this petition.
4. I say and submit that pursuant to the order dated 13.02.2013 passed by this Hon'ble Court, the office of the respondent no.2 Commissioner after taking into consideration various Government Resolutions, had Page 4 of 15 C/SCA/11919/2000 CAV JUDGMENT taken a decision on 08.03.2013 not to grant benefit and appointment on the post of peon as the same is contrary to the prevailing policy of the State Government. I say and submit that thereafter, immediately vide communication dated 08.03.2013, an intimation was forwarded to the General Manager, District Industry Center, Bhavnagar informing about the decision taken. A copy of the communication dated 08.03.2013 anenxed herewith and marked as "Annexure R I"
5. I say and submit that the deponent tenders an unconditional apology that despite of the order passed by the Hon'ble Court to decide the issue and place the decision on record, the deponent due to inadvertent error, could not place the same to the notice of the Hon'ble Court. The deponent states that the deponent has no intention to disobey any directions of the Hon'ble Court. The deponent therefore seeks unconditional apology from the Hon'ble Court and the Hon'ble Court may be kind and gracious enough to pardon the deponent and department for the same.
6. I say and submit that as per the Government Resolution dated 10.11.2006, the appointments of the ad-hoc employees were stopped with immediate effect. A copy of the Government Resolution dated 10.11.2006 is annexed herewith and marked as Annexure R II". It is stated that as per the said resolution, the power of appointing such ad-hoc employees was also withdrawn.
7. I say and submit that subsequently, the General Administrative Department had issued a Government Resolution dated 30.11.2006 whereby the posts for class- IV employees were to be filled by way of outsourcing. A copy of the Government Resolution dated 30.11.2006 is annexed herewith and marked as Annexure R III"
8. I say and submit that thereafter, the Finance department has issued a Government Resolution dated 01.05.2007 wherein guidelines are issued by the Finance Department to all the Government departments with respect to regularization of ad-hoc appointments. As per the said Government Resolution, in following circumstances, an employee can be regularized in service. The said Government Resolution provides that:
Page 5 of 15 C/SCA/11919/2000 CAV JUDGMENT1. On 10.02.2006, if an ad-hoc employee completes 10 years of service and has worked at least 6 hours;
2. The appointment of the said employee must be as per the prevailing Recruitment Rules.
3. Such ad-hoc employee must possess the relevant qualifications as per the provisions of the Recruitment Rules.
4. Such appointments are to be made as against sanctioned posts.
5. Therefore, in the aforesaid circumstances only, the services of an ad-hoc employee can be regularized.
9. I say and submit that so far as the petitioner is concerned, he was working as a part-time sweeper with the respondent authorities and his appointment was not as against any sanctioned post or as per any Recruitment Rules. I say and submit that merely because the petitioner has worked for more than 17 years, the petitioner cannot be granted any benefit of regularization of service. Moreover, this Hon'ble Court had by way of an ad-interim relief vide order dated 19.04.2001, directed the respondents to take into account the Government Resolution dated 11.12.1984 while filling next vacancy in the post of peon under respondent no.3. I say and submit that the services of the petitioner are continued from 19.04.2001 as per the interim order passed by this Hon'ble Court wherein the Hon'ble Court had directed that the services of the petitioner shall be continued as a part time till then. Hence, the services of the petitioner were continued on account of the interim order passed by this Hon'ble Court."
7. An additional affidavit-in-reply has been filed by the Joint Commissioner, inter alia, stating as under;
"3. It is submitted that I am filing the present affidavit in reply only with a view to oppose the admission of the present petition and grant of any interim relief in favour of the petitioner and I may kindly be permitted to file a detailed affidavit as and when necessary. At present I am Page 6 of 15 C/SCA/11919/2000 CAV JUDGMENT not dealing with the petitioner parawise and my non- dealing with the petition parawise may not be construed as admission on my part.
4. I state that this affidavit is filed in addition to the earlier affidavit filed on 26.02.2001. I state that the Hon'ble Court was pleased to pass following order on 19.04.2001:
Order dated 19.04.2001:-
"Rule. By way of ad-interim relief, it is directed that while filling in the next vacancy in the post of peon under respondent No.3, the respondents shall take into account the Government Resolution dated 11.12.1984 at Annexure "H" to the petition and also the roster applicable. Until then, the respondents shall continue the petitioner as a part-timer as of now."
5. I state that the resolution dated 11.12.1984 itself prescribes that it will apply to only to the employee of hospitals, municipalities and corporations. This was never meant for other departments. Even otherwise this will apply only to the persons working in hospitals, municipalities and corporations. This resolution was mainly to regularize the services of only sweepers who were working as full time sweepers. This was never meant to regularize the sweepers working for 2 or 3 hours and in any other department than hospitals, municipalities and corporations.
6. I state that petitioner has relied upon the order passed in the case of Kashiben Lathiya. I state that nothing come out that this order was passed by General Manager by exercising which power and under what circumstances. Even otherwise when Kashiben's order was passed on 16.11.1990 at that time the policy of reduction in expenditure was not in force and when the petitioner completed 10 years service, the policy of reduction in expenditure of Finance Department dated 28.12.1992 was in force. Copies of the Resolution are annexed herewith and marked as Annexure-R I Colly to this reply.
7. I state that the petitioner has been also relied upon the case of B.C. Wadhwana V/s. Director General of Page 7 of 15 C/SCA/11919/2000 CAV JUDGMENT Police. I state that the order passed in SCA No.1209 of 1994 dated 23.07.1998 was challenged by the State of Gujarat by filing LPA No.1491 of 1998 which came to be allowed holding that in our opinion the Ld. Single Judge has erred in issuing direction to absorb the petitioner as full time sweeper in regular Class IV cadre without ascertaining whether regular post of sweeper in Class IV service did exist; whether the vacancy was available and whether the petitioner was qualified to be appointed on such post.
8. Even otherwise as stated hereinabove the resolution sought to be applied by the petitioner is not applicable in case of petitioner and the same is applied only in case of hospitals, municipalities and corporations.
9. In view of the aforesaid facts and circumstances, the present petition is required to be dismissed."
8. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to the relief as prayed for in this writ application.
9. It is not in dispute that the petitioner is working with the respondent No.3 as a part time sweeper. It is also not in dispute that he is working since 1.8.1983 without any break but his employment is being termed as on temporary basis and monthly basis. Although, this Court passed an order way back in 2001 that while filling in the next vacancy in the post of peon under the respondent No.3, the respondents shall take into account the Government Resolution dated 11.12.1984 and also the roster applicable, yet the same was very conveniently ignored. The explanation offered is quite unpalatable that the Government Resolution dated 11.12.1984 of the GAD would be applicable only in the departments like Hospital, Nagar Palika, Page 8 of 15 C/SCA/11919/2000 CAV JUDGMENT Municipal Corporation etc. The case in hand is one of unfair labour practice. The argument that the petitioner works for two to three hours a day also is nothing but an attempt to mislead the Court. This argument is a very common argument canvassed in all matters like the case in hand.
10. I may quote with profit a recent pronouncement of the Supreme Court in the case of Umrala Gram Panchayat vs. Secretary, Municipal Employees Union, (2015) 0 Supreme (SC) 254. The issue before the Supreme Court was one of engaging the workmen for long periods on daily wages on work of permanent nature and not making them permanent in spite of availability of the sanctioned posts. The Supreme Court, while deprecating the action of terminating it as unfair labour practice observed thus:-
6. It has been contended by Mr. Mahendra Anand, the learned senior counsel on behalf of the appellant that the workmen were not appointed on a permanent basis as the rules and regulations as prescribed under the provisions of the Act have not been followed. He has further contended that the High Court has erred in upholding the Award passed by the Labour Court as the same is illegal and there is non application of mind by the courts below. The Labour Court has wrongly held that there are 13 permanent posts available for the category in which the concerned employees are working as the other three employees who are made permanent employees have been made so only because there were clear vacant posts available in the approved strength in the capacity in which these three employees were made permanent and thus, there is no question of any discrimination or unfair labour practice on the part of the appellant-Panchayat in not making the concerned workmen as permanent employees of the appellant.Page 9 of 15 C/SCA/11919/2000 CAV JUDGMENT
7. It has been further contended by the learned senior counsel that the concerned workmen were engaged in the services, as and when required by the appellant-Panchayat and it is not obligatory on the part of the appellant-Panchayat to provide work to the workmen on a day-to-day basis and the appellant-Panchayat has no control over them as there is no employer-employee relationship between them. It has been further contended by him that the appellant-Panchayat has no right to make them permanent employees. For making their services permanent in the appellant-Panchayat, an application has to be made before the District Panchayat, Bhavnagar and a demand has to be raised before it and the recruitment of the employees of the appellant- Panchayat is done by the Gujarat Panchayat Service Selection Board and directions will be issued on its behalf. However, there are no such directions issued in relation to the concerned workmen.
8. On the other hand, it has been contended by Mr. S.C. Patel, the learned counsel appearing on behalf of the respondent-Union that the concerned workmen have been working for many years, such as 18 years, 16 years, 8 years continuously and some of them have been working for more than 5 years in the appellant- Panchayat. They are not paid the monetary benefits and allowances etc. as are being paid to other permanent safai kamdars who are working in the appellant-Panchayat. He has further contended that the concerned workmen are doing the same work as is being done by the permanent safai kamdars and they have been working for similar number of hours, i.e. eight hours per day like the permanent employees of the appellant-
Panchayat. In spite of it, they are being monetarily exploited by the appellant- Panchayat by not being paid regular salary and other monetary benefits for which they are legally entitled to but are being paid much lesser wage, i.e. Rs.390/- per month. Therefore, the learned counsel has contended that Page 10 of 15 C/SCA/11919/2000 CAV JUDGMENT the appellant is practicing unfair labour practice as defined under Section 2(ra) of the Industrial Disputes Act, 1947 (in short "the ID Act") as enumerated at Entry No.10 in the Fifth Schedule to the ID Act. Therefore, the action of the appellant-Panchayat is illegal and the workmen should be allowed to get permanency in the said posts.
9. With reference to the abovementioned rival legal contentions urged on behalf of the parties, we have to examine the impugned judgements and orders of the High Court as well as the Award passed by the Labour Court, to find out whether any substantial question of law would arise in these appeals to exercise the appellate jurisdiction of this Court?
10. On a perusal of the same, we have come to the conclusion that the High Court has rightly dismissed the case of the appellant as the Labour Court has dealt with the same in detail in its reasoning portion of the Award in support of its findings of fact while answering the points of dispute and the same cannot be said to be either erroneous or error in law. In support of the above said conclusions arrived at by us, we record our reasons hereunder:
It is an admitted fact that the work which was being done by the concerned workmen was the same as that of the permanent workmen of the appellant- Panchayat. They have also been working for similar number of hours, however, the discrepancy in the payment of wages/salary between the permanent and the non-permanent workmen is alarming and the same has to be construed as being an unfair labour practice as defined under Section 2(ra) of the ID Act r/w Entry No.10 of the Fifth Schedule to the ID Act, which is prohibited under Section 25(T) of the ID Act. Further, there is no documentary evidence produced on record before the Labour Court which shows that the present workmen are working less or for lesser number of hours than the permanent employees of the appellant- Panchayat. Thus, on the face of it, the Page 11 of 15 C/SCA/11919/2000 CAV JUDGMENT work being done by the concerned workmen has been permanent in nature and the Labour Court as well as the High Court have come to the right conclusion on the points of dispute and have rightly rejected the contention of the appellant-Panchayat as the same amounts to unfair labour practice by the appellant- Panchayat which is prohibited under Section 25(T) of the ID Act and it also amounts to statutory offence on the part of the appellant under Section 25(U) of the ID Act for which it is liable to be prosecuted.
11. Further, the Labour Court has rightly held that there is no restriction for the recruitment of the workmen in the Panchayat's set-up as there is evidence to show that by making a proposal, the District Panchayat has increased the work force in the establishment of the appellant-Panchayat and therefore, the contention urged by the learned senior counsel appearing for the appellant-Panchayat that there are only limited number of permanent vacancies for the workmen in the Panchayat of the appellant is not tenable in law.
12. Further, we have also taken note of the fact that the financial position of the Panchayat is not so unsound as no activity of the Panchayat has been discontinued, as all the other workers of the appellant-Panchayat are being paid their wages regularly. Thus, there would be no difficulty for the appellant- Panchayat to bear the extra cost for the payment of the wages/salary and other monetary benefits to the concerned workmen if they are made permanent.
13. Further, Section 25(T) of the ID Act clearly states that unfair labour practice should not be encouraged and the same should be discontinued. In the present case, the principle "equal work, equal pay" has been violated by the appellant-Panchayat as they have been treating the concerned workmen unfairly and therefore, the demand raised by the respondent-
Page 12 of 15 C/SCA/11919/2000 CAV JUDGMENTUnion needs to be accepted. The High Court has thus, rightly not interfered with the Award of the Labour Court as the same is legal and supported with cogent and valid reasons.
14. Therefore, the learned single Judge as well as the Division Bench of the High Court have exercised the power under Articles 226 and 227 of the Constitution of India and have rightly held that the Labour Court has jurisdiction to decide the industrial dispute that has been referred to it by the Dy. Commissioner of Labour, Ahmedabad. Reliance has been placed upon the decision of this Court in the case of Maharashtra State Road Transport Corporation and Anr. v. Casteribe Rajya P. Karmchari Sanghatana1, wherein it has been held thus:
"32.The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer."
Further, reliance has been placed upon the decision of this Court in the case of Durgapur Casual Workers Union v. Food Corporation of India, wherein it has been held thus:
"19. Almost similar issue relating to unfair trade practice by employer and the effect of decision of Umadevi (3) in the grant of relief was considered by this Court in Ajaypal Singh v. Haryana Warehousing Corporation in Civil Appeal No. 6327 of 2014 decided on 9th July, 2014. In the said case, this Court observed Page 13 of 15 C/SCA/11919/2000 CAV JUDGMENT and held as follows:
20. The provisions of Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees....""
15. Thus, in the light of the above referred cases of this Court, it is amply clear that the judgments and orders of the High Court and the Award passed by the Labour Court are reasonable and the same have been arrived at in a just and fair manner.
16. The reliance placed by the learned senior counsel for the appellant upon the decision of this Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors.3, does not apply to the fact situation of the present case and the same cannot be accepted by us in the light of the cogent reasons arrived at by the courts below.
17. In view of the reasons stated supra and in the light of the facts and circumstances of the present case, we hold that the services of the concerned workmen are permanent in nature, since they have worked for more than 240 days in a calendar year from the date of their initial appointment, which is clear from the evidence on record. Therefore, not making their services permanent by the appellant- Panchayat is erroneous and also amounts to error in law. Hence, the same cannot be allowed to sustain in Page 14 of 15 C/SCA/11919/2000 CAV JUDGMENT law.
18. For the reasons stated supra, we dismiss the appeals and direct the appellants to treat the services of the concerned workmen as permanent employees, after five years of their initial appointment as daily wage workmen till they attain the age of superannuation for the purpose of granting terminal benefits to them.
19. The appellant is further directed to pay the regular pay-scale as per the revised pay scale fixed to the post of permanent safai kamdars for a total period of 15 years to the concerned workmen and the legal representatives of the deceased workmen. The same shall be implemented within six weeks from the date of receipt of copy of this judgment and compliance report of the same shall be submitted for the perusal of this Court. No Costs."
11. For the reasons stated supra, this petition is allowed to the extent that the respondents are directed to treat the services of the petitioner as a permanent employee and pay him the regular pay scale as per the revised pay scale fixed to the post of permanent sweepers. The same shall be implemented within six weeks from the date of receipt of the writ of this order and the compliance report of the same shall be submitted for the perusal of this court. Rule is made absolute to the aforesaid extent. No costs.
(J.B.PARDIWALA, J.) Vahid Page 15 of 15