Gujarat High Court
Director District Rural Deve. Agency & vs Kishorkumar D Tank & on 28 March, 2014
Author: K.J.Thaker
Bench: Vijay Manohar Sahai, K.J.Thaker
C/LPA/1093/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1093 of 2013
In SPECIAL CIVIL APPLICATION NO. 1834 of 2005
With
CIVIL APPLICATION NO. 9936 of 2013
In
LETTERS PATENT APPEAL NO. 1093 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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DIRECTOR DISTRICT RURAL DEVE. AGENCY & 1....Appellant(s)
Versus
KISHORKUMAR D TANK & 10....Respondent(s)
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Appearance:
MR GM AMIN, ADVOCATE for the Appellant(s) No. 1 - 2
MS SHEEJA G NAYAR, ADVOCATE for the Appellant(s) No. 1 - 2
MR C P CHANIYARA, ADVOCATE for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
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C/LPA/1093/2013 JUDGMENT
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 28/03/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. We have heard learned advocates appearing for the parties.
2. This Letters Patent Appeal has been filed by the appellants-original petitioners challenging the judgment and order dated 07.03.2013 passed by the learned Single Judge in Special Civil Application No.1834 of 2005, whereby learned Single Judge has allowed the writ petition.
3. The brief facts of this case are that the respondent Nos. 1 to 10 were appointed as part time daily wagers and were working only for 3-6 hours. They were provided pay according to the hours i.e. Rs. 600/- per month. The respondents have approached the Labour Court for regularization on their services. The appellants have contested the same by stating that the appellants are only an implementing agency of the State Government. The schem is a temporary scheme and depending upon the project, respondents were appointed as purely adhoc and part timers and they have not right to be continued on the post as they were not on the sanctioned post. It was also stated that the scheme was prepared by the State Government and implemented through different agencies like the appellants and it is not a profit making undertaking and therefore, it is not covered under the definition of industry and therefore, Labour Court was not having any jurisdiction to entertain their prayer. However, the reference was made before the Labour Court at Rajkot. The appellants stated that the Reference No.66 of 1991 was decided by the Labour Court. The Page 2 of 9 C/LPA/1093/2013 JUDGMENT Labour Court has directed to make the respondents as permanent employees who have completed five years of service and appellants were ordered to pay 50% of the amount from 1.1.1995. Being aggrieved and dissatisfied with the order passed by the Labour Court in Reference No.66 of 1991 dated 30.8.2004, the appellants filed Special Civil Application No. 1834 of 2005. The appellants stated that the learned Single Judge of this Court vide order dated 7.3.2013 partly allowed the petition. The Court has struck the payment of 50% from 1.1.1995, however, other directions were kept as they are. Hence, the present appeal.
4. The learned counsel for the appellants submitted that the learned Single Judge of this Court has failed to appreciated that the respondents were only part timers and they were not serving on the sanctioned posts and therefore, they have no right to be absorbed on a permanent posts to which they do not belong. No unjust order can be issued by the Court. He has relied on the judgment of the Hon'ble Apex Court in the case of Secretary, State of Karnataka and others v. Uma Devi reported in (2006)4 SCC 1, in which, the Hon'ble Supreme Court has held that "appointment-modes of appointment-permissible modes, abosorptions, regularization or permanent, continuance of temporary or contractual, casual, daily wage or ad hoc employees appointed, recruited, dehorse the constitutional scheme of public employment of issuance of directions by the Court-issuance of such directions amounts to creating another mode of public appointment just not permissible." Learned counsel for the appellants further submitted that the learned Single Judge has taken out paragraph No.53 from the judgment of Uma Devi reported in (2006)4 SCC 1 which is contrary to the evidence on record. Relying upon para 53 of the said decision, it is stated that service of irregularly appointed Page 3 of 9 C/LPA/1093/2013 JUDGMENT who have worked for 10 years or more in duly sanctioned post but not under cover of the orders of the Court or Tribunal and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts where temporary employees or daily wagers are being now employed. It is submitted that the Hon'ble Supreme Court of India in its judgment has granted same benefit to the employees who have worked for more than 10 years but that was on sanctioned post. In the present case on hand, it is totally ad hoc, part time and temporary post and it is not a sanctioned post. Therefore, paragraph 53 of the said judgment is not applicable to the facts of the present case. He has relied on the decision of the Hon'ble Apex Court in the case of Satyaprakash vs. State of Bihar reported in (2010)4 SCC 179. In that case, the Hon'ble Supreme Court has held that "the Bihar Education Council itself was dissolved by the Bihar Intermediate Education Council (Repeal) Act and hence there was no question of regularization of any employee in the Council. The functions of the erstwhile Intermediate Council are not being performed by the Bihar School Examination Board which is following its own recruitment rules. Under such circumstances, it was stated that directions sought for by the appellants for regularization of their services in the Council cannot be granted". It was further held that "the appellants are not entitled to get the benefit of regularization of their services since they were never appointed in any sanctioned posts."
5. The learned counsel for the appellants submitted that in all these judgments, the Supreme Court has categorically stated that ad hoc, temporary, daily wager has no right to be absorbed in public employment and no back door entry is permissible. Otherwise it amounts to creating another mode of employment. Therefore, the judgment and order passed by the learned Single Judge deserves to be quashed and set and aside. He further Page 4 of 9 C/LPA/1093/2013 JUDGMENT submitted that the scheme is provided for uplitment of the rural masses. The scheme is to be implemented by the Taluka Panchayat. Taluka Panchayat is not a party and therefore, judgment passed by the Labour Court and confirmed by the learned Single Judge requires to be quashed and set aside.
6. It is further submitted by the counsel for the appellants that the Five Judges Full Bench decision of this Court in the case of Gujarat State Road Transport Corporation v. Firoze M. Mogal and another, 2014 GLH 1 rendered in Letters Patent Appeal No. 1149 of 2002, Dated : 26.12.2013 would not be applicable to the facts of this case as the prayer in the writ petition was for issuance of writ of certiorari.
7. The contention is that the Tribunal was a party before the learned Single Judge and the learned Single Judge is deemed to have exercised the powers under Article 226 of the Constitution of India and not under Article 227 and has modified the award and therefore, in light of the observations made in the said judgment, this LPA would be maintainable.
8. It would be relevant for us to see the genesis of the litigation. The petitioners before the writ court are the appellants before us. They had challenged the award dated 30.08.2004 delivered in Reference (I.T.) No.66 of 1991, by which, the learned Industrial Tribunal, Rajkot by virtue of the aforesaid award allowed the reference of the respondent and the petitioners are directed to regularize the services of the respondent Nos. 2 to 10 upon completion of five years of service and further directed the petitioners to pay the permissible monthly benefit and arrears available to respondent Nos. 2 to 10 from 01.01.1995.
9. The Five Judges' Full Bench of this Court in the case of Gujarat State Road Transport Corporation v. Firoze M. Mogal Page 5 of 9 C/LPA/1093/2013 JUDGMENT and another, 2014 GLH 1 rendered in Letters Patent Appeal No. 1149 of 2002, Dated : 26.12.2013, has held as under :-
"(M) (x) If the Special Civil Application is described as one not only under Article 226 of the Constitution, but also under Article 227 of the Constitution of India and the Court or the Tribunal whose order is sought to be quashed, is not made a party, the application is not maintainable as one for the relief of certiorari in the absence of the concerned Tribunal or Court as party, but the same may be treated as one under Article 227 of the Constitution of India. If the Court or Tribunal is not impleaded as a party respondent in the main petition, then by merely impleading such court or tribunal for the first time in the Letters Patent Appeal will not change the nature and character of the proceedings before the learned Single Judge. By merely impleading such a Court or Tribunal for the first time in the LPA, the appeal could not be said to be maintainable, if the proceedings before the learned Single Judge remained in the nature of supervisory proceedings under Article 227 of the Constitution.
xi) If the learned Single Judge, in exercise of a purported power under Article 227 of the Constitution sets aside the order of Tribunal or Court below and at the same time, the essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself and such an order can be challenged only by way of a Special Leave Petition before the Supreme Court.
To put it very explicitly, take a case where a petition is only under Article 227 of the Constitution of India, invoking superintending powers of the High Court and not under Article 226 of the Constitution of India. After examining the matter, if the court finds substance in the petition and sets aside the order of an authority, court or a tribunal, then against such an order, an LPA would not lie on the argument that since the court has set aside the order it has decided the matter on merits having found substance in the same.
To put it in other words, once a petition is under Article 227 of the Constitution of India, and while Page 6 of 9 C/LPA/1093/2013 JUDGMENT entertaining such a petition under Article 227 of the Constitution of India, if the court allows a petition by setting aside the order impugned, then against such an order no LPA would lie.
xii)If a learned Single Judge, in exercise of a purported power under Article 227 of the Constitution modifies the order of Tribunal/Authority or Court below and thereby partly allows a petition to a certain extent, then in such circumstances, it could not be said that the Court exercised its certiorari jurisdiction and no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself.
However, if a learned Single Judge, in purported exercise of power under Article 226 of the Constitution of India, issues a writ of certiorari, although the same is not maintainable, an appeal under Clause 15 of the Letters Patent would nevertheless be maintainable against such order.
To put it in other words, take a case where a party on his own invokes supervisory jurisdiction under Article 227 of the Constitution of India, and in such a petition, the Court issues a writ of certiorari, then against such an order an LPA would be maintainable.
To put it explicitly clear, take a case where in a petition neither there is a prayer for issue of a writ of certiorari nor the Tribunal/Authority or Court whose order is impugned is impleaded as a party respondent, and despite such being the position, if the Court proceeds to issue a writ of certiorari, then against such an order an LPA would be maintainable."
10. The learned Single Judge in his operative portion in paragraph nos. 9 and 10 has observed as follows:
"9. In view of the above decision and also the clear findings of the Tribunal that the respondents have worked more than 240 days and also completed more than 5 years, I am of the view that there is no case made out by the petitioners with regard to the direction regarding regularization subject to the availability of the post.Page 7 of 9
C/LPA/1093/2013 JUDGMENT
10. However, even though the Tribunal has discussed about the financial burden, there was no justification for making payment of arrears to the extent of 50%. Giving arrears itself will cause financial burden and therefore directing to make arrears from 01.01.1995 is not justified."
11. Therefore, it cannot be said that a writ of certiorari or writ in nature under Article 226 of the Constitution of India was issued by the learned Single Judge. Just because the petitioners had chosen to implead the Tribunal as a party would not take it out to decide the purview of the parameters fixed by the Five Judges Full Bench decision.
12. We at the outset state that we have not gone into the merits of the case as even on the basis of the pleadings of the parties, it cannot be said that it was a petition under Article 226 of the Constitution of India. It was a petition essentially under Article 227 of the Constitution of India challenging the order of the Industrial Tribunal, Rajkot and the learned Single Judge did not upturn the findings of the Tribunal in the reference and what is all upturned was granting of the 50% back wages by the Tribunal. We are unable to accept the submission of the appellants that the guidelines laid in paragraph 10 to 13 of the Five Judges' Full Bench decision of this Court reported in 2014 GLH 1 would not apply to the facts of this case.
13. For the aforesaid reasons, the appeal is devoid of merits and is accordingly dismissed.
14. In view of the disposal of the present appeal civil application no.9936 of 2013 also stands disposed of.
(V.M.SAHAI, J.)
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C/LPA/1093/2013 JUDGMENT
(K.J.THAKER, J)
Ashish Tripathi
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