Gujarat High Court
Jetpur Navagadh Municipality vs Saurashtra Employees Union on 6 July, 2021
Equivalent citations: AIRONLINE 2021 GUJ 1221
Author: Nirzar S. Desai
Bench: R.M.Chhaya, Nirzar S. Desai
C/LPA/482/2021 ORDER DATED: 06/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 482 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 8263 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 482 of 2021
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JETPUR NAVAGADH MUNICIPALITY
Versus
SAURASHTRA EMPLOYEES UNION
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Appearance:
MR BHAVESH P TRIVEDI(2731) for the Appellant(s) No. 1
MR RR TRIVEDI(941) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 06/07/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)
1. By way of this Letters Patent Appeal, the appellant - original petitioner has challenged the order dated 16.02.2021 passed by the learned Single Judge, whereby, the petition preferred by the present appellant was rejected and the award passed by the Industrial Tribunal, Rajkot dated 05.03.2016 in Reference (IT) No. 116 of 1995 was confirmed.
2. The Industrial Tribunal, Rajkot vide award dated 05.03.2016 partly allowed the Reference preferred by the workmen and granted the benefits of regularization from the date of their entry into the service and directed pay fixation of the Page 1 of 8 Downloaded on : Wed Jul 07 23:50:00 IST 2021 C/LPA/482/2021 ORDER DATED: 06/07/2021 workmen in the lowest pay scale, by giving increment notionally and directed that their pay should be re-fixed accordingly. The Industrial Tribunal clarified that the workmen shall not be entitled for any difference of pay on account of re-fixation of the pay scale since increments were directed to be paid notionally.
3. In respect of one workman - deceased Mansukhbhai Fakirbhai Vaghela, the Industrial Tribunal directed to regularize his services from the date of his entry in the service and further directed to pay him death-cum-retiral benefits as per his entitlement by re-fixing the pay scale as treated herein-above to be paid to his nominee. Same way, in respect of one another workman - Megjibhai Govindbhai Solanki, the Industrial Tribunal held that he may be treated as a permanent employee from the date of his entry in the service till his superannuation and accordingly, his pay scale also may be re-fixed in the same manner as stated herein-above. The Industrial Tribunal, Rajkot vide the aforesaid award did not pass any order in respect of two workmen, viz. Kadviben Gigabhai Parmar and Devjibhai Danabhai Vaghela, who were no more in service, whereas, in respect of one workman - Taraben Keshavbhai Sagathiya, the Industrial Tribunal did not pass any order, as her reference before the Industrial Tribunal, Rajkot was already pending.
4. Being aggrieved by and feeling dissatisfied with the aforesaid award dated 05.03.2016 passed by the Industrial Tribunal, Rajkot in Reference (IT) No. 116 of 1995 came to be Page 2 of 8 Downloaded on : Wed Jul 07 23:50:00 IST 2021 C/LPA/482/2021 ORDER DATED: 06/07/2021 challenged before the learned Single Judge by way of Special Civil Application No. 8263 of 2016 by the present appellant and since the petition was rejected by the learned Single Judge vide order dated 16.02.2021, the said order is challenged by way of the present Letters Patent Appeal.
5. Brief facts giving rise to the present appeal are stated as under:
5.1. The respondent no.1 herein raised an industrial dispute in respect of 11 sweepers working as daily-wagers for regularizing their services by treating them as permanent employees with all consequential benefits. The aforesaid Reference was registered as Reference (IT) No. 116 of 1995.
The respondent - Union had filed a statement of claim and submitted that the posts on which the workmen were working were the permanent posts in the establishment and alleged that the petitioner must treat the workmen equally at par with other workmen performing the same duty by following the principles of 'equal pay for equal work'.
5.2. The appellant herein filed defense statement before the Industrial Tribunal and submitted that the workmen were not appointed by following due procedure, at the time of their initial appointment, and there are no vacancies at present as per the set-up of the Nagarpalika. In the written statement, the Nagarpalika also took a contention that, in view of excessive financial burden on the Page 3 of 8 Downloaded on : Wed Jul 07 23:50:00 IST 2021 C/LPA/482/2021 ORDER DATED: 06/07/2021 Nagarpalika, if the workmen are regularized by giving them the benefits of permanency, in that case, it will increase the financial burden on the Nagarpalika and accordingly, prayed for dismissal of the Reference.
5.3. The Industrial Tribunal, after leading the evidence, ultimately, came to the conclusion that the respondent no.1 herein - union is entitled to the benefits as prayed for by them and partly allowed the Reference in the terms which is stated in the foregoing paragraph.
6. The aforesaid award was the subject matter of challenge before the learned Single Judge by way of Special Civil Application No. 8263 of 2016. The learned Single Judge while rejecting the petition took into consideration the fact that in respect of the same petitioner - Nagarpalika, the Industrial Tribunal had issued similar directions and passed similar award in respect of 13 other workmen. The said directions were issued in Reference (IT) No. 108 of 1995, wherein, vide award dated 24.02.2014 similar directions were issued. The said award was challenged by the Nagarpalika before the learned Single Judge of this Court by filing Special Civil Application No. 7629 of 2014 and the said petition was dismissed by the learned Single Judge. The said order dismissing Special Civil Application No. 7629 of 2014 was not carried further in appeal, but was rather implemented, and therefore, taking note of the aforesaid facts coupled with the fact that the petitioner - Nagarpalika has failed to establish that the conclusions and findings recorded by the Industrial Page 4 of 8 Downloaded on : Wed Jul 07 23:50:00 IST 2021 C/LPA/482/2021 ORDER DATED: 06/07/2021 Tribunal are perverse, the learned Single Judge dismissed the Special Civil Application, and hence, the same is challenged by way of the present Letters Patent Appeal.
7. Heard learned advocate Mr. Bhavesh P. Trivedi appearing for the appellant - Nagarpalika. Learned advocate Mr. Trivedi submitted that the learned Single Judge has erred by not appreciating the fact that the Industrial Tribunal has no power to direct regularization or permanency service irrespective of the length of the service of the employees. He has further contended that since the recruitment of workmen was contrary to the prescribed procedure, they are not entitled for regularization. According to Mr. Trivedi, such order of regularization by granting them benefits of permanency will further increase the financial burden on the Nagarpalika, and therefore, the impugned award passed by the Industrial Tribunal as well as the order passed by the learned Single Judge confirming the award of the Industrial Tribunal deserve to be quashed and set aside.
8. Except this, no other or further point was argued by learned advocate Mr. Trivedi.
9. However, when learned advocate Mr. Trivedi made aforesaid submission, he was confronted with a question that as to whether the workmen as on today are working or not and whether they are actually working or sitting idle. Learned advocate Mr. Trivedi fairly submitted that all workmen are working and they have been performing their duties as Page 5 of 8 Downloaded on : Wed Jul 07 23:50:00 IST 2021 C/LPA/482/2021 ORDER DATED: 06/07/2021 sweepers, as there is sufficient work, which can be entrusted to them. Learned advocate Mr. Trivedi also could not point out that factually how the case of the present workmen are different from the case of other set of workmen, in respect of whom, similar directions were issued by the Industrial Tribunal, Rajkot in Reference (IT) No. 108 of 1995, against which, the Special Civil Application No. 7629 of 2014 was preferred and which came to be dismissed, and ultimately, the directions issued by the Industrial Tribunal, Rajkot were implemented. Learned advocate Mr. Trivedi could not point out that the facts of both the cases are different or that the nature of work or any other factor which can distinguish the case of the present set of workmen from the one, in respect of whom the directions have already been implemented.
10. We have considered the submissions of learned advocate Mr. Trivedi in light of the fact that when there are two set of employees identically situated. In respect of one set of employee, the Nagarpalika unsuccessfully challenged the award passed by the Industrial Tribunal, Rajkot, and ultimately, implemented the directions of the Industrial Tribunal, Rajkot, we do not find any reason to deprive the other set of employees, who are identically situated, of such benefits. Furthermore, we have also noted the fact that it is not the case of the appellant that in case, if the award under challenge, which is confirmed by the learned Single Judge, is allowed to stand, in that case, the Nagarpalika will be compelled to pay idle wages to the workmen. On the contrary, as stated in the foregoing paragraphs when Mr. Page 6 of 8 Downloaded on : Wed Jul 07 23:50:00 IST 2021 C/LPA/482/2021 ORDER DATED: 06/07/2021 Trivedi was confronted with a question, he submitted that the workmen are performing their duties as sweepers and there is sufficient work which can be entrusted to them. Therefore, considering the fact that they are in service since years together, by now there is sufficiency of work and also considering the fact that identically situated workmen from the same Nagarpalika have already been granted the benefits of permanency, we do not find any reason to interfere with the view taken by the learned Single Judge, whereby, he has confirmed the award dated 05.03.2016 passed by the Industrial Tribunal in Reference (IT) No. 116 of 1995.
11. Not only that, we have also taken into consideration the fact that when the government itself has started ' Clean India movement', popularly known as 'Swachh Bharat Abhiyan' and the workmen who are performing their duties as sweepers are the most important and indispensable part of the said movement. Without sweepers, the object of clean India cannot be achieved, which is also a factor which we took into consideration while confirming the view taken by the learned Single Judge.
12. Further, the Labour Court has appreciated the evidence adduced before it correctly. Such findings of fact arrived at by the Labour Court are confirmed by learned Single Judge. Considering such concurrent findings of fact, it does not call for any interference.
13. In view of the above, we are in complete agreement Page 7 of 8 Downloaded on : Wed Jul 07 23:50:00 IST 2021 C/LPA/482/2021 ORDER DATED: 06/07/2021 with the view taken by the learned Single Judge and we do not find any reason to interfere with the order dated 16.02.2021 passed by the learned Single Judge in Special Civil Application No. 8263 of 2016 and hence, the present Letters Patent Appeal deserves to be dismissed and the same is dismissed accordingly. No order as to costs. Civil Application, also stands dismissed, in view of the dismissal of the main Letters Patent Appeal.
(R.M.CHHAYA, J) (NIRZAR S. DESAI,J) Pradhyuman Page 8 of 8 Downloaded on : Wed Jul 07 23:50:00 IST 2021