Gujarat High Court
Gujarat vs Indian on 22 January, 2010
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
Gujarat High Court Case Information System
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LPA/1785/2009 5/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1785 of 2009
In
SPECIAL
CIVIL APPLICATION No. 290 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
======================================
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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GUJARAT
MAZDOOR PANCHAYAT
Versus
INDIAN
AIRLINES LIMITED
======================================
Appearance :
Mr
Mukul Sinha for the Appellant
Mr Mihir Joshi, Senior Advocate
assisted by Mr Vimal Patel for the respondent
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: /01/2010
CA.V.
JUDGMENT
(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present Letters Patent Appeal has been filed by the Gujarat Mazdoor Panchayat being aggrieved by the decision of the Single Judge of this Court in Special Civil Application No.298 of 2003 whereby the learned Single Judge of this Court has set aside the judgment and award dated 26th August 2002 passed by the Central Industrial Tribunal, Ahmedabad in Reference (ITC) No.65 of 1998 and Reference (IC) No.125 of 1999 and subsequent order dated 5th March 2003 in Misc. Civil Application No.2 of 2002 in Reference No.65 of 1998 and 125 of 1999 have been quashed and set aside. While making the aforesaid order, the learned Single Judge has observed that the Tribunal, while passing the orders in question, has not appreciated the economic constraints pressed into service by the petitioner before it in ordering the regularisation of the appellant-workmen.
The learned Single Judge has observed that the company being a government company, it was under obligation to carry out the instructions and directives issued by the Government of India from time to time. The Government of India had accepted the recommendations of Kelkar Committee, which had observed that there was dire need to accept stringent economic measures that included freezing of new recruitments at various stages if possible. In that view of the matter, the learned Single Judge did not countenance the claim of the workmen as ordered by the Tribunal.
The learned Single Judge has further held that regularization cannot be made the mode of appointment at all. The appointments made in violation of the recruitment rules cannot be termed as mere irregularity capable of being cured. Such irregularity was not liable to be cured by ordering regularisation. In this regard, reliance has been placed by the learned Single Judge on the decision of the Honourable Supreme Court in the case of National Fertilizers Ltd vs. Somvir (2006) 5 SCC 493. The learned Single Judge has also taken note of the law laid down by the Apex Court in the case of Union of India Vs. Narendra Nath Choudhury reported in (2003) 12 SCC 49 and has observed that the Tribunal was not justified in issuing directions for reviewing its policy of manner of recruitment.
In the instant case though it was a company, but it was a company owned by the Government of India and therefore it was bound by the directions issued by the Union Government. The learned Single Judge further relied on the law laid down by the Apex Court in the matter of Indian Drugs & Pharmaceutical Ltd Vs. Workmen reported in (2007) 1 SCC 408 and held that the temporary employee is a general category which has its sub-categories e.g. casual employees, daily rated employees, ad hoc employees, and it is well settled that temporary employees have no rights to the post. The Courts cannot direct their continuation if they were not regularly employed. Creation of posts and vacancies is in realm of executives. The Supreme Court cannot arrogate itself the powers of executives.
The learned Single Judge has further observed that there was a total lack of evidence regarding the mode and way of appointments of the workman concerned and in that view of the matter, the way workmen were recruited was not clearly established before the Tribunal. The learned Single Judge has also observed that the plea of unfair practice also lacks from support of proper evidence before the Tribunal. It has also observed that in view of the law laid down by the Honourable Supreme Court in the case of Secretary State of Karnataka and another Vs. Umadevi(3) and others reported in AIR 2006 SC 1806 = 2006(4) SCC 1 there was no way that the regularization could be ordered.
Assailing the findings of the learned Single Judge, the learned counsel for the appellant submitted that the law laid down by Umadevi (3) (supra) cannot be made applicable in relation to industrial and labour courts and in this regard he has placed reliance upon a case decided by the Hon ble Supreme Court in the case of Maharashtra State Road Transport Corporation v. Casteribe Rajya Paivahan Karmachari Sanghatana, (2009) 8 SCC 556. In the said decision the Honourable Supreme Court has observed as under in paragraphs 34 to 36:
"34. It is true that the case of Dharwad District PWD Literate Daily Wage Employees Assn. arising out of industrial adjudication has been considered in Umadevi (3) and that decision has been held to be not laying down the correct law but a careful and complete reading of decision in Umadevi1 leaves no manner of doubt that what this Court was concerned in Umadevi (3) was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed.
35. Umadevi (3) is an authoritative pronouncement for the proposition that Supreme Court (Article 32) and High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme.
36. Umadevi(3) does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP Act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exists.
Umadevi cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established."
emphasis supplied Thus, according to the learned counsel, the judgment of the learned Single Judge being actuated by the law laid down by the Apex Court in the case of Umadevi (3) (supra) cannot be sustained and deserves to be interfered with.
The second limb of argument of the learned counsel for the appellant is that unfair labour practice was writ large and in the face of the evidence of unfair labour practice being practiced by the employer produced before the learned Single Judge, regularization should have been ordered by the learned Single Judge and he has placed reliance on a case decided in the matter of Chief Conservator of Forest v. Jagannath Maruti Kondhare, (1996) 2 SCC 293. In the said decision, the Honourable Supreme Court observed in paragraph 22 as under:-
"22. We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment-pollution-care work of Ahmednagar, whose need is on increase because of increase in pollution. Permanancy is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. We, therefore, answer the second question also against the appellants. "
Thirdly, learned counsel for the appellant argued that there were no rules of recruitment prevailing because, the principal Act under which aircraft carrier was established has been repealed and all regulations having the force of subordinate legislation stand repealed along with that and therefore this plea was not available to the petitioner before the learned Single Judge to contend that rules being there, there cannot be any appointment which can be made.
Per contra, learned counsel appearing for the respondent submitted that as far as law laid down by Umadevi (supra) is concerned, it would be over simplification of the matter wherein it is stated that it is not applicable to the industrial courts and has placed reliance upon the decision of the Honourable Supreme Court in the case of U.P. Power Corporation Limited v. Bijli Mazdoor Sangh, (2007) 5 SCC 755. In the said decision, the Honourable Supreme Court has observed in paragraphs 6 and 7 as under:-
"6. It is true as contended by learned counsel for the respondent that the question as regards the effect of the Industrial Adjudicators' powers was not directly in issue in Uma Devi's case (supra). But the foundational logic in Uma Devi's case (supra) is based on Article 14 of the Constitution of India, 1950 (in short the 'Constitution'). Though the Industrial Adjudicator can vary the terms of the contract of the employment, it cannot do something which is violative of Article 14. If the case is one which is covered by the concept of regularization, same cannot be viewed differently.
7. The plea of learned counsel for the respondent that at the time the High Court decided the matter, decision in Uma Devi's case (supra) was not rendered is really of no consequence. There cannot be a case for regularization without there being employee-employer relationship. As noted above the concept of regularization is clearly linked with Art. 14 of the Constitution. However, if in a case the fact situation is covered by what is stated in para 45 of the Uma Devi's case (supra), the Industrial Adjudicator can modify the relief, but that does not dilute the observations made by this Court in Uma Devi's case (supra) about the regularization."
It was further submitted that this was one of the primary considerations in the case of Umadevi (supra) that regularization can only be ordered if the post exists and in the case relied upon by the learned counsel for the appellant i.e. Maharashtra State Road Transport Corporation v. Casteribe Rajya Paivahan Karmachari Sanghatana, (supra) the Court has observed that the case of Umadevi (supra) does not override the powers of the industrial and labour courts in passing appropriate orders under Section 30 of the Maharastra Recognition of Trade Unions Act and under the provisions of the Prevention of Unfair Labour Practices Act, 1971, which gives the power to the industrial and labour courts to act affirmatively and no such affirmative action is available in the scheme of the Industrial Disputes Act, 1947. The Court has also observed in that aforesaid case that there cannot be any quarrel with the proposition that the Courts cannot direct creation of posts and observed as under:-
41. Thus, there is no doubt that creation of posts is not within the domain of judicial functions which obviously pertains to the executive. It is also true that the status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the creation of posts cannot be arrogated by the Courts."
In view of the aforesaid, learned counsel for the respondent submitted that on the establishment of the petitioner before the learned Single Judge no case was canvassed on behalf of the workmen that on the establishment there exists any post and if there exists no post, there was no question of regularization.
Learned counsel for the respondent has further stressed that the second limb of argument of the learned counsel for the appellant that there was unfair labour practice cannot be made out because, there was no sufficient evidence that was available. It was the case of the workmen that they get a chance when they are offered work. There is no sanctioned post available for them and their services are only called for as and when the necessity of work accrues at the airport of Ahmedabad because on this airport some times wok more than what is required is to be undertaken because some flights which cannot land at other airports are directed to Ahmedabad airport and therefore question of unfair labour practice is not germane in the circumstances of the case. As regards rules, learned counsel was of the opinion that though the rules are repealed, the respondent is following the earlier rules because, there has to be some element of law which requires to be followed, but in that case, it is not the case of the appellant that as and when they were made to work their recruitment was in terms of those rules or other workers have not been recruited without there being any procedure being followed. That being the position, that argument also has no effect.
We have considered the rival submissions of the learned counsel and have given our thoughtful consideration. The fact which stands out boldly is that regularization can only be ordered it there are posts. There is no foundation or evidence available on the record to show that there were posts where regularization could have been ordered. The principles which have been laid down in Umadevi s case (supra) are not the principles which could be said to be not to be given due weightage in deciding the controversy, but we see that the regularization is being sought without there being any posts and thus the very fact that there were no posts available on the establishment, the order of regularization appears to us not a justifiable order. In that view of the matter, the findings of the learned Single Judge are not required to be interfered with. The case relied upon by the learned counsel for the appellant in the matter of Maharashtra State Road Transport Corporation v. Casteribe Rajya Parivahan Karmachari Sanghatana, (supra) in terms, if applied to the facts of this case, would show that the law laid down by the Supreme Court in this case in paragraph 41 quoted hereinabove that the posts cannot be ordered to be created and if there were no posts available, the award deserves to be set aside and the same has rightly been set aside.
The evidence with regard to unfair labour practice as has been held by the learned Single Judge that there is no sufficient evidence available on the record to establish the same and if there is no sufficient evidence on the record merely because for some time they have worked cannot be said that it tantamount to unfair labour practice and a reference in this regard can be made to the judgment of the Hon ble Supreme Court in the matter of Indian Drugs and Pharmaceutical Limited v. Workmen, 2007 1 SCC 408 wherein the Honourable Supreme Court has held as under
in paragraphs 13 and 18:-
"13. It may be mentioned that a daily rated or casual worker is only a temporary employee, and it is well settled that a temporary employee has no right to the post vide State of Uttar Pradesh & Anr. V/s. Kaushal Kishore Shukla, 1991 1 SCC 691. The term 'temporary employee' is a general category which has under it several sub-categories e.g. casual employee, daily rated employee, ad hoc employee, etc.
18. In State of M.P. and others V/s. Yogesh Chandra Dubey and Others, 2006 8 SCC 67, this Court held that a post must be created and/or sanctioned before filling it up. If an employee is not appointed against a sanctioned post he is not entitled to any scale of pay. In our opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case also."
In this regard, a reference may be made to the observations of the Honourable Supreme Court in the case of Gangadhar Pillai v. Siemens , 2007 1 SCC 533 wherein the Court was considering the question of an employee who was denied the benefit of 22 years of service on the ground of unfair labour practice and the challenge was not countenanced by the Honourable Apex Court. The case was decided in relation to the Maharastra Recognition of Trade Unions Act. The observations of the Supreme Court in paragraphs 22, 23, 24 and 36 of the said decision are relevant for the purpose, which read as under:-
"22. The Act was enacted not only for recognition of trade unions but also prevention of unfair labour practices. What is an 'unfair labour practice' has been defined in Sec. 26 of the Act to mean all the practices listed in Schedules II, III and IV. Section 27 of the Act prohibits engagement of an employee by any employer or union in any unfair labour practice. Section 28 provides for procedure for dealing with complaints relating thereto. Schedule IV of the Act enumerates general unfair labour practices on the part of the employers. Clause 6 of Schedule IV of the Act reads as under:
"6.
To employ employee as "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."
23. The question as to whether an employee had intermittently been engaged as casual or temporary for a number of years is essentially a question of fact. The issue as to whether unfair labour practices had been resorted to by the employer or not must be judged from the entirety of the circumstances brought on records by the parties.
24. Only because an employee has been engaged as a casual or temporary employee or that he had been employed for a number of years, the same by itself may not lead to the conclusion that such appointment had been made with the object of depriving him of the status and privilege of a permanent employee. Unlike other statutes, the employer does not have any statutory liability to give permanent status to an employee on completion of a period specified therein. What is, therefore, necessary to be considered for drawing an inference in terms of the said provisions would be to consider the entire facts and circumstances of the case.
36. Unlike the Act, there is no provision for prevention of unfair labour practices under the Industrial Disputes Act. The view of the High Court as upheld by this Court, merely negatived a contention that such appointment came within the purview of Section 2(oo)(bb) of the Industrial Disputes Act. This Court noticed various decisions rendered by it as regards payment of back wages and instead and place of reinstatement in service, compensation was directed to be paid.
In view of the aforesaid argument about unfair labour practice would not be available to the appellant as no sufficient evidence was available on record to sustain the same and also that the same is not an area covered by the Industrial Disputes Act. This has been so observed by the learned Single Judge.
The third argument of applicability of rules is only of academic value in view of the fact that there were no posts on the establishment of the company and thus no regularisation was possible.
In the result, all the three arguments raised have no force hence, rejected. In that view of the matter, the appeal fails. The judgment of the learned Single Judge is affirmed. There will be no order as to costs.
In view of the dismissal of the appeal, no order is required to be passed on Civil Application No.10393 of 2009 and the same is disposed of accordingly.
(Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd Top