Gujarat High Court
Dy. Executive Engineer vs Surendranagar District on 8 October, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/25338/2006 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 25338 of 2006
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DY. EXECUTIVE ENGINEER PANCHYAT SUB-DIVISION CHOTILA ....Petitioner Versus SURENDRANAGAR DISTRICT -
MAZDOOR SANGH & Ors ....Respondents ============================================================== Appearance:
MS SEJAL K MANDAVIA, ADVOCATE for the Petitioner MR GM JOSHI, ADVOCATE for the Respondents ============================================================== CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 08/10/2014 CAV ORDER
1. Challenge in this petition is made by the employer, to the award passed by the Labour Court, Surendranagar, in Reference (Demand) No.12 of 1995 dated 06.06.2006. The Labour Court had ordered that, the respondent workman shall be treated to be in the regular employment, on completion of his ten years of service i.e. with effect from 01.10.1997, on the post of Work Charge Clerk, on which he had worked for years and shall be paid his wages as is paid to other confirmed employees working in the said cadre. The Labour Court had further ordered that, the period from 01.10.1997 to the date of award shall be notional. It is recorded that, during the Page 1 of 7 C/SCA/25338/2006 CAV ORDER pendency of this petition, the concerned workman has died on 17.10.2011, while in service, and his legal heirs have come on record, as respondents No.2 & 3.
2. Heard Ms. Sejal K. Mandavia, learned advocate for the petitioner employer, Mr. G.M.Joshi, learned advocate for the contesting respondent Union, and the legal heirs of the concerned Workman.
3.1 Ms.Mandavia, learned advocate for the petitioner Employer has submitted that, the Labour Court has committed error by giving direction as contained in the impugned award, since the respondent workman was not appointed after following due process of recruitment. It is further submitted that only because the concerned workman has worked for very long period, that itself is no ground to treat the said workman to be in regular employment on permanent post and he would not be entitled to get wages which other regularly appointed workmen might be getting. It is submitted that, the regularisation of service as ordered by the Labour Court would be in conflict with the settled position of law, more particularly in the case of State of Karnataka versus Uma Devi reported in AIR 2006 SC 1806. It is submitted that, the impugned award be quashed and set aside.
3.2 Learned advocate for the petitioner Employer has relied on the following decisions of Hon'ble the Supreme Court of India in support of his submissions.
(i) AIR 2006 SC 1806 - State of Karnataka versus Uma Devi
(ii) (2007) 1 SCC 408 - Indian Drugs and Page 2 of 7 C/SCA/25338/2006 CAV ORDER Pharmaceuticals Ltd. Vs. Workmen
(iii) (2007) 2 SCC 491 - Punjab Water Supply & Sewerage Board Hoshiarpur
4. On the other hand, Mr. G.M.Joshi, learned advocate for the contesting respondent Union and the legal heirs of the concerned workman has submitted that, the workman was initially appointed prior to year 1980, and was terminated in the year 1980. The same was challenged before the Labour Court, and the same was set aside by ordering reinstatement with back wages in part, which is not the subject matter of this petition. It is further submitted that, the respondent was reinstated in the year 1991. It is submitted that, thereafter the demand was raised in the year 1995 in which the stand was taken by the employer that the concerned workman was not entitled to relief as claimed by him, which is rejected by the Court below. It is also stated that, the Labour Court has considered the benefit on completion of ten years of service counted from the year 1987 i.e. with effect from 01.10.1997. It is submitted that, even otherwise the workman has suffered substantial loss by this and this Court may not interfere in whatever is granted by the Labour Court. It is further submitted that, the persons junior to the concerned workman are already getting the benefits which is granted by the Labour Court in this case, from earlier date. It is submitted that, the action of the employer of not regularising the service of the respondent workman was only with a view to deprive him of wages and other benefits which the other employees are getting, which, in terms, is unfair labour practice. It is submitted that, the petitioner employer was thus resorting to unfair labour practice, and after considering the totality and Page 3 of 7 C/SCA/25338/2006 CAV ORDER evaluating the material on record, the Labour Court has recorded finding of fact in that regard and has granted consequential relief to the workman and therefore this Court may not interfere. In support of this contention, reliance is placed on the decision of Hon'ble 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. It is further submitted that, so far the argument of the petitioner that the procedure was not followed at the time of initial appointment of the workman, is an aspect for which the respondent can not be blamed, nor can be deprived of relief, if otherwise he is entitled to. In support of this contention, reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Bhartiya Seva Samaj Trust vs. Yogeshbhai Ambalal Patel reported in (2012) 9 SCC
310. It is submitted that, this petition be dismissed.
5. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under.
5.1 The concerned workman had initially joined the service as Work Charge Clerk with the petitioner employer prior to the year 1980, since for the first time, his service was discontinued in the year 1980. The same was the subject matter of Reference No.1938 of 1987. The Labour Court had then interfered in the said termination and ordered reinstatement which has attained finality. In the present case, the Labour Court has treated the year 1987 as the date of joining and to that extent, equities are already balanced, by discounting the period against the workman. The Labour Court has found that, Page 4 of 7 C/SCA/25338/2006 CAV ORDER atleast counting from the year 1987, the workman was entitled to benefits as per the policy of the Government. Labour Court has only granted that on completion of ten years of service, counting from the year 1987, i.e. with effect from 01.10.1997, the concerned workman shall be treated to be in the regular pay-scale. This Court finds that, the Labour Court has not committed any error, since even otherwise the same is on the line of the policy of the Government as contained in the Government Resolution dated 17.10.1988. Independent of that also, the Labour Court has recorded cogent reasons, inter alia holding that, continuing the workman for years and decades as a daily wager, more particularly when the similarly situated persons are already granted similar benefits, creates a situation which is defined as 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 No.10 thereof. Further, if the earlier round of litigation as recorded above is taken into consideration, it further tilts the balance against the petitioner employer. This Court finds that, the Labour Court has not committed any error while granting relief to the workman. The impugned award therefore does not call for any interference by this Court.
5.2 It also needs to be recorded that, the Labour Court has treated the period from 01.10.1997 till 06.06.2006 i.e. the date of award, to be notional, and no arrears is to be paid for the said period.
5.3 So far the contentions raised on behalf of the petitioner employer to the effect that, at the time of initial appointment of the workman no procedure was followed etc. are concerned, Page 5 of 7 C/SCA/25338/2006 CAV ORDER the same would not take the case of the employer 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 Hon'ble the Supreme Court of India in the case of Bhartiya Seva Samaj Trust versus Yogeshbhai Ambalal Patel reported in (2012) 9 SCC 310.
5.4 So far the authorities cited by learned advocate for the employer 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 Labour Court as noted above, the same shall not take the case of the employer any further. This Court finds that, on conjoint reading of the findings of fact recorded by the Labour Court 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 Labour Court. 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 No.10 thereof. This petition is therefore required to be dismissed.
6. For the reasons recorded above, this petition is dismissed. Interim relief granted in favour of the petitioner employer is vacated. The employer is directed to give effect to Page 6 of 7 C/SCA/25338/2006 CAV ORDER the impugned award, within a period of two months from today. The arrears flowing from this award shall be paid to the legal heirs in accordance with law. With this direction, notice is discharged. No order as to costs.
(PARESH UPADHYAY, J.)
7. After this order is pronounced, learned advocate for the petitioner employer has requested that this order be stayed for some time to enable the employer to approach the higher forum. Since two months' time is already granted by this Court to give effect to the impugned award of the Labour Court, no further indulgence needs to be shown to the petitioner. This request therefore is rejected.
(PARESH UPADHYAY, J.) M O Bhati/12 Page 7 of 7