Gujarat High Court
Botad Nagarpalika Through Chief ... vs Govindbhai Nanubhai Gohil on 1 November, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/1315/2023 JUDGMENT DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1315 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 10280 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 1315 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BOTAD NAGARPALIKA THROUGH CHIEF OFFICER
Versus
GOVINDBHAI NANUBHAI GOHIL
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Appearance:
HARSHESH R KAKKAD(7813) for the Appellant(s) No. 1
MR DG SHUKLA(1998) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 01/11/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr. Harshesh Kakkad for the appellant and Page 1 of 11 Downloaded on : Wed Nov 08 20:31:09 IST 2023 NEUTRAL CITATION C/LPA/1315/2023 JUDGMENT DATED: 01/11/2023 undefined learned advocate Mr. D. G. Shukla for the respondent.
2. The appellant Municipality has preferred this Letters Patent Appeal seeking to call in question common judgment and order dated 13.9.2022 of learned single Judge in so far as it related to decision in Special Civil Application No. 10280 of 2011.
2.1 The petition came to be allowed by finally directing thus, "15. In view of the aforesaid, the Court is inclined to quash and set aside the orders of the Industrial Tribunal in each of the petitions and pass following order:-
I. In SCA No.10280 of 2011, the petitioner is directed to be given permanency on the post of peon available in the sanctioned set up and be paid wages at par with the post of peon in the establishment from the date on which the sanctioned post of peon had fallen vacant or from the date on which the daily wager /Class-IV employee, junior to the petitioner is given permanent appointment."
3. The respondent workman filed Reference (IT) No. 75 of 1998 seeking regularisation. He was working as daily wager on the post of peon. Also prayed before the Industrial Tribunal was the grant of service benefits. The Reference came to be dismissed by the Industrial Tribunal, Bhavnagar, as per judgment and award dated 31.3.2011. The writ petition was filed by the workman challenging the said decision of Reference.
3.1 The judgment and order of Industrial Tribunal, when considered, showed that two aspects weighed with it in rejecting the Reference. The first was, as recorded in para 19, that the post of peon was not available on the set-up of Municipality on which the respondent could be accommodated. The second aspect was that according to the Municipality, an interim order was passed by the Tribunal, because of which the workman continued in service after Municipality terminated Page 2 of 11 Downloaded on : Wed Nov 08 20:31:09 IST 2023 NEUTRAL CITATION C/LPA/1315/2023 JUDGMENT DATED: 01/11/2023 undefined his service in the year 1996.
3.2 This factual finding was seriously disputed by learned advocate for the workman. He submitted that no stay order was passed, but the workman was in service of the Municipality and had been retained by the Municipality.
3.3 In order to appreciate the said factum, learned advocate for the workman referred to the affidavit-in-reply. In para 5 thereof, it is inter alia stated that complaint No. 24 of 1997 under section 33-A of the Industrial Disputes Act, 1947, was filed by the workman, as he apprehending termination of his services, by contending that since reference was raised seeking permanency benefits, the Municipality was likely to affect change in service conditions of the workman to defend his cause. The said complaint was withdrawn by the respondent workman, as by order dated 1.1.2004, Labour Court permitted withdrawal of the complaint. Therefore, it was submitted that it was factually incorrect finding on part of the Industrial Tribunal that the workman continued under the umbrella of order of the Court/Tribunal 3.4 When the aforesaid aspect stated on oath in affidavit that there was no stay order and the complaint was withdrawn and that even thereafter, the workman continued in service of the Municipality since 2004, was put to learned advocate for Municipality, he was entirely at his receiving end.
Therefore, finding of the Industrial Tribunal is not factually correct when it is recorded that the workman was in service due to the interim order of the Court/Tribunal.
3.5 Thus, it could not be disputed that from the year 2004 onwards though there was no interim order of any Court or Tribunal, the workman continued in service of the first party employer -Municipality.
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4. Having thus found that the finding recorded in the above regard by the Tribunal in para 11 of the order was wrong, if the facts are further examined, the workman deposed before the Tribunal to give his evidence (Exh. 14) stating inter alia that he had been working as peon under the first party employer since 15.4.1995 and that in the year 1996, his services were dispensed with for a period of one year. It is to be reiterated that the workman remained in service without any stay order in his favour from 2004.
4.1 The Tribunal had before it the statement showing the details of set- up of the Municipality (Exh. 22). The Tribunal has recorded finding that the post of peon was not available. Seen from the material available, this finding of the Tribunal was also factually incorrect. It could be demonstrated from the record, in particular from the statement showing the set-up the Municipality, as it stood on 31.1.2021, which is aproduced alongwith the additional affidavit (page 53), it was indicated that in the different categories of peon such as office peon, tax peon, construction peon, fire peon, 7 posts in all were available.
4.2 It was, thus, suggested that there was availability of posts in the set-up to accommodate the workman. Learned single Judge recorded this factual position emerging from record, in para 4.5 of the order. The details on record show, as mentioned by learned single Judge also, that for the categories of office peon, tax peon and fire peon, one and one vacant posts were available, whereas for balmandir peon and sanitary peon, one post of the peon for each were available. In total six posts were available.
4.3 Exh.22 before the Industrial Tribunal was referred to by learned Single Judge to arrive at a finding of fact that total 59 posts are vacant Page 4 of 11 Downloaded on : Wed Nov 08 20:31:09 IST 2023 NEUTRAL CITATION C/LPA/1315/2023 JUDGMENT DATED: 01/11/2023 undefined and available and out of 7 posts were of peon. The following paragraph was observed and held, "10. The Industrial Tribunal had perused Exh.22, which are the details of the establishment /set up showing the number of vacancies of peon or other posts. There have been changes since then. Today, the present day set up is placed on record, which is not disputed and it is at page No.53 of the petition. This document shows present status of total 59 posts which are vacant in the establishment and atleast 7 posts of peon are vacant. Over and above, it is an uncontroverted fact that the petitioner is made to work on various posts and various departments within the respondent-Municipality since long."
5. Section 25T of the Industrial Disputes Act 1947 contains prohibition against the employers resorting to unfair labour practice. It says that, "no employer or workman or trade union, whether registered under the Trade Unions Act 1926 or not, shall commit any unfair labour practice." The expression unfair labour practice is defined in 2(ra) of the Industrial Disputes Act to mean any of the practices specified in the Fifth Schedule. When the Fifth Schedule of the Industrial Disputes Act is seen, it enlists one of the unfair labour practices in item No.10 to be thus, "To employ workmen 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 workmen"
5.1 Thus, conspicuous aspects which are undisputed emerges from the record. Firstly, that workman was rojamdar continued in service of the Municipality since 2004. The finding of the Labour Court that he continued as per the interim order of the Court/Tribunal was factually not correct. Secondly, he put in long services for more than two decades. All throughout, he was kept as rojamdar and paid meager wages. Learned Page 5 of 11 Downloaded on : Wed Nov 08 20:31:09 IST 2023 NEUTRAL CITATION C/LPA/1315/2023 JUDGMENT DATED: 01/11/2023 undefined advocate for the respondent could submit that this circumstances invariably suggest that the employer indulged into unfair labour practice in giving treatment to the workman by keeping him for long years on a meager pay denying the benefit of regularization.
5.2 When the employer avoids to fill up the permanent posts even when posts are available and continues to employ workers on temporary or daily wage basis taking the same work from them, which is done by the regular workers and pays meager wages, it is a case of unfair labour practice. It is an exploitative conduct where the employer keeps his employees poorly paid unbearably long. Unfair labour practice is exploitation of workmen. This situation entitles the workman to be absorbed as permanent employee casting obligation in law on the employer. In view of facts and the factual findings recorded in para 5.1 hereinabove, such situation is obtained in the present case.
5.3 In Hari Nandan Prasad and Another vs. Employer I/R to Management of Food Corporation of India and Another [(2014) 7 SCC 190], the Supreme Court emphasised the fine balancing of the rights of the employer employee in the matter of regularisation of the employees and granting temporary employees the benefit of permanency. Referring to some of its own the decisions, the Supreme Court observed that it was dependent on the facts of each case as to whether the order of regularisation is necessitated to advance justice to the daily rated workman or such benefit is to be denied where giving of such direction would infringe upon the employer's rights.
5.3.1 The decisions in Maharashtra SRTC vs. Casteribe Rajya P. Karmchari Sanghatana [(2009) 8 SCC 556] and U.P.Power Corporation Ltd. vs. Bijli Mazdoor Sangh and Others [(2007) 5 SCC Page 6 of 11 Downloaded on : Wed Nov 08 20:31:09 IST 2023 NEUTRAL CITATION C/LPA/1315/2023 JUDGMENT DATED: 01/11/2023 undefined 755] were considered by the court in Hari Nandan Prasad (supra). Upon harmonised reading of these two decisions, it was stated that even where the posts are available, in absence of any unfair labour practice, the Labour Court cannot give direction for regularisation only on the ground of long service rendered by daily rated workman.
5.3.2 In Hari Nandan Prasad (supra), the Supreme Court, however, clarified that wherever the Labour Court or Tribunal have statutory power to grant relief to the workman it would include power to grant the relief of accruing status of permanency to the contractual employee or daily rated employee. It was in terms stated that where the employer is found to have indulged into any unfair labour practice, as defined in Industrial Disputes Act, the relief of regularisation could be extended.
5.3.3 The Supreme Court in Hari Nandan Prasad (supra) observed that in such set of facts, if regulariastion is not granted, it would even offend and violate the equality clause under Article 14 of the Constitution, "However, whenever it is found that similarly situated workmen are regularised by the employer itself under some scheme or otherwise and the workmen in question who have approached the Industrial/Labour Court are on a par with them, direction of regularisation in such cases may be legally justified, otherwise, non-regularisation of the left-over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Article 14 of the Constitution. Thus, the Industrial adjudicator would be achieved the equality by upholding Article 14 of the Constitution, rather than violating this constitutional provision." (para 39) 5.4 The Supreme Court pertinently observed in Regional Manager, State Bank of India vs. Raja Ram [(2004) 8 SCC 164] as under, "In other words, before an action can be termed as an unfair labour practice it would be necessary for the Labour Court to come to a Page 7 of 11 Downloaded on : Wed Nov 08 20:31:09 IST 2023 NEUTRAL CITATION C/LPA/1315/2023 JUDGMENT DATED: 01/11/2023 undefined conclusion that the badlis, casuals and temporary workmen had been continued for years as badlis, casuals or temporary workmen, with the object of depriving them of the status and privileges of permanent workmen. To this has been added the judicial gloss that artificial breaks in the service of such workmen would not allow the employer to avoid a charge of unfair labour practice. However, it is the continuity of service of workmen over a period of years which is frowned upon. (para 9) 5.4.1 The Apex Court proceeded to state, "Besides, it needs to be emphasised that for the practice to amount to unfair labour practice it must be found that the workman had been retained on a casual or temporary basis with the object of depriving the workman of the status and privileges of a permanent workman. There is no such finding in this case. Therefore, Item 10 in List I of the Fifth Schedule to the Act cannot be said to apply at all to the respondent's case and the Labour Court erred in coming to the conclusion that the respondent was, in the circumstances, likely to acquire the status of a permanent employee." (para 9) 5.4.2 The decision in Raja Ram (supra), was followed in Regional Manager, State Bank of India vs. Rakesh Kumar Tewari (2006) 1 SCC 530.
5.5 In Oil and Natural Gas Corporation (supra), the Supreme Court extensively referred to the law on the issue and after eloboratly discussing the law, the following propositions were laid down, "(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution;
(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even Page 8 of 11 Downloaded on : Wed Nov 08 20:31:09 IST 2023 NEUTRAL CITATION C/LPA/1315/2023 JUDGMENT DATED: 01/11/2023 undefined though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;
(emphasis supplied)
(iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service;
(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and
(v) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen."
(emphasis supplied) (para 34) 5.6 The test laid down in Raja Ram (supra) and Rakesh Kumar Tewari (supra) are satisfied in the facts of the present case. It could be emphatically said that the case of the workmen falls within the corners of observations and directions of the Supreme Court in Oil and Natural Gas Corporation (supra), to be classified for grant of relief of regularisation, as the vice of unfair labour practice on part of the employer is established.
5.7 In similar set of facts, yet another decision of the Co-ordinate Bench of this Court in Jamjodhpur Nagarpalika versus Sunil Punjabhai Dhakecha in R/Letters Patent Appeal No. 200 Of 2023 in R/Special Civil Application No. 18202 Of 2017 decided on 25.07.2023 deserves to be noticed. The following paragraph was observed and held,
7. ....., it is evident from the perusal of the material on Page 9 of 11 Downloaded on : Wed Nov 08 20:31:09 IST 2023 NEUTRAL CITATION C/LPA/1315/2023 JUDGMENT DATED: 01/11/2023 undefined record, as also the findings given by the Labour Court and the learned Single Judge that the appellant Nagarpalika had indulged in unfair labour practice by continuing the respondent workman on temporary basis, though posts in the permanent set up were available. The act of appellant Nagarpalika in continuing the respondent workman on temporary basis on lower wages despite discharge of the same duties as that of a permanent employee in the permanent establishment is nothing but amounts to unfair labour practice. It is evident that the appellant Nagarpalika had continued the respondent workman for years together with the object of depriving him of the benefits payable to a permanent workman, though he was discharging the same duty as that of a permanent employee. No explanation could be offered by the appellant Nagarpalika either before the Labour Court or before the learned Single Judge or in this appeal as to why the respondent workman was continued on temporary basis on the post of Pipeline Repairer when the vacant post of Pipeline Repairer in the permanent establishment was available. No such record of permanent set up of appellant Nagarpalika was placed before the Labour Court and the findings recorded by the Labour Court that the witness or the appellant Nagarpalika admitted that there was a permanent set up but the detail thereof was not made available, could not be assailed by the learned counsel for the appellant Nagarpalika.
5.8 The evidence regarding the set up at Exh.22 shows that the posts in the set up were available and vacant. It is to be noted that in the present case, specific finding is recorded by the Industrial Tribunal and reiterated by learned single Judge that the treatment meted out to the workmen was unfair labour practice. The ratio of decisions of the Supreme court in Hari Nandan Pradad (supra), Raja Ram (supra), which the Supreme Court finally laying down the parameters in Oil and Natural Gas Corporation (supra), are applicable to the facts obtaining in the present case.
6. For all the aforesaid reasons and discussion, no ground is made out Page 10 of 11 Downloaded on : Wed Nov 08 20:31:09 IST 2023 NEUTRAL CITATION C/LPA/1315/2023 JUDGMENT DATED: 01/11/2023 undefined to interfere with the judgment and order of learned Single Judge.
7. The appeal stands meritless and is hereby dismissed.
The Civil Application also stands disposed of in view of dismissal of the main Appeal.
(N.V.ANJARIA, J) (NISHA M. THAKORE,J) C.M. JOSHI Page 11 of 11 Downloaded on : Wed Nov 08 20:31:09 IST 2023