Gujarat High Court
Menderda Gram Panchayat vs Hakkabhai Gandabhai Tariya on 12 July, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/657/2023 ORDER DATED: 12/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 657 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 1379 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/LETTERS PATENT APPEAL NO. 657 of 2023
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MENDERDA GRAM PANCHAYAT
Versus
HAKKABHAI GANDABHAI TARIYA
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Appearance:
MR DIPAL R RAVAIYA(6532) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MR SAMIR B GOHIL(5718) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/07/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J. C. DOSHI) This intra Court appeal under clause 15 of the Letters Patent challenges judgment and order dated 04.03.2022 delivered in Special Civil Application No.1379 of 2022 by the learned Single Judge, by which judgment and order passed by the Labour Court, Junagadh in Reference (D) Case No.3 of 2011 has been approved and confirmed.
2. Labour Court, Junagadh in reference passed award dated 09.09.2021 directing the appellant - Menderda Gam Panchayat to regularize the services of the respondent from 15.03.2011 i.e. from the date of filing reference and to grant financial benefits from 01.01.2021 and for intervening period Page 1 of 7 Downloaded on : Sat Sep 16 21:12:15 IST 2023 NEUTRAL CITATION C/LPA/657/2023 ORDER DATED: 12/07/2023 undefined from 15.03.2011 till 31.12.2020, no benefits is extended. It is also ordered by the Labour Court that services prior to 01.01.2021 shall be considered as notional.
3. Brief facts gathered from record can be stated as follows.
3.1. That respondent no.1 in capacity of Driver was working in the office of Menderda Gram Panchayat as daily wager since March, 2001. Respondent no.1 preferred Reference (D) Case No.3 of 2011 before the Labour Court, Junagadh claiming benefit of regularization of service and other benefits. Initially award was passed on 12.12.2017 which came to be challenged by Menderda Gram Panchayat by way of filing Special Civil Application No.4588 of 2018. Vide order dated 17.09.2019 passed in said Special Civil Application, case was remanded to the Labour Court for fresh disposal. Pursuant to case being remanded, in remanded proceedings, Labour Court has passed the award herein above.
4. Being aggrieved, Menderda Gram Panchayat preferred Special Civil Application No.1379 of 2022 before this Court. Learned Single Judge vide order dated 04.03.2022 taking note of judgment dated 19.09.2019 passed in Special Civil Application No.15709 of 2019 and considering judgment of this Court in Umrada Gram Panchayat v/s. Secretary, Municipal Employees Union and Ors. [ 2015 (1) GLH 712] and decision in the case of Vrajlal Bachubhai Khachariya v/s. State of Gujarat [2018 (1) GLH 56] dismissed the Special Civil Application.
5. Heard learned advocate Mr. Dipal Ravaiya for the appellant Page 2 of 7 Downloaded on : Sat Sep 16 21:12:15 IST 2023 NEUTRAL CITATION C/LPA/657/2023 ORDER DATED: 12/07/2023 undefined
- original petitioner and learned advocate Mr. Samir Gohil for the workman - original respondent no.1.
6. Learned advocate Mr. Dipal Ravaiya would submit that learned Single Judge seriously erred in confirming the award passed in reference case by the Labour Court, by which the respondent - workman's back door entry has been permitted and he has been regularized in ignorance of Notification dated 25.08.1983 issued by the State Government. Not only that even in absence of post of Driver, services of the respondent - workman has been regularized which has resulted into serious error. However, same is gone or unnoticed by the learned Single Judge. Upon such submissions, he would submit to admit the appeal and further that impugned order of the learned Single Judge confirming the award passed in reference may be quashed and set aside.
7. Learned advocate Mr. Samir Gohil would submit that no error of law or facts has been committed by the Labour Court or by the learned Single Judge. The workman had completed required time period in each year of service since last more than 20 years. Work of more than 240 days in each year has been taken from the workman and it is rightly appreciated by the Labour Court on examination of evidence. Service of the workman was continuous and uninterrupted. He would further submit that learned Single Judge rightly noted the reasons assigned by the Labour Court to dismiss the petition. He would submit that in view of judgment delivered in Special Civil Application No.15709 of 2019 delivered in similar set of facts Page 3 of 7 Downloaded on : Sat Sep 16 21:12:15 IST 2023 NEUTRAL CITATION C/LPA/657/2023 ORDER DATED: 12/07/2023 undefined and situation, issue raised before the learned Single Judge was no more res-integra. Upon such submissions, learned advocate Mr. Gohil made submission to dismiss Letters Patent Appeal.
8. Having heard learned advocate for the parties, at the outset, the reasons arrived at by the learned Single Judge favouring case of the workman may be referred and reproduced. Para 6 to 9 of the impugned judgment reads as under :-
"6. It is not in dispute that the Coordinate Bench has confirmed an identical award vide order dated 19.09.2019 passed in Special Civil Application No.15709 of 2019. Learned advocate Mr.Dipal Ravaiya appearing for the petitioner has submitted that since there is no such sanctioned post, the workman cannot be regularized. It is submitted that the Labour Court has also ignored the Notification dated 25.08.1983 issued by the Secretary, Panchayat Department, Gujarat State that the Gram Panchayat has no power or authority to regularize the service of any of the employees working in the Gram Panchayat. According to him, the Development Commissioner, Gujarat State has issued a setup list of the employees sanctioning the posts in the respective Village Panchayats on 24.04.1973, however, since there is no such sanctioned post in Mendarda Gram Panchayat, and hence, the impugned award passed by the Labour Court shall have to be quashed and set aside.
7. It is an established fact that the respondent No.1 is working with the petitioner from last 20 years. There is no dispute that he has continued to work every year for 240 days and his service was on a continuous and uninterrupted basis. This has been noted by the Labour Court on the basis of the documentary as well as oral evidence. The only plea that has been taken is of absence of any setup of Driver. It is noteworthy that the Labour Court has extensively dealt with oral as well as documentary evidences and has noted that though the work of the permanent employee has been taken from the Page 4 of 7 Downloaded on : Sat Sep 16 21:12:15 IST 2023 NEUTRAL CITATION C/LPA/657/2023 ORDER DATED: 12/07/2023 undefined respondent No.1, he has not been paid the dues by the petitioner under the pretext of absence of sanctioned post. It has rightly termed this conduct of the petitioner as "unfair labour practice" from last 20 years. The respondent admittedly has been working as a Driver and that has been proved by clinching evidence of the petitioner's side. Relying upon the decisions rendered in cases of Umrada Gram Panchayat Vs. Secretary, Municipal Employees Union and others, 2015 (1) GLH 712 and the decision of Vrajlal Bachubhai Khachariya v. State of Gujarat, 2018 (1) GLH 56, the Labour Court has chosen to partly allow the case of the respondent.
8. This Court finds that the law on the subject is duly applied to the proved facts by the Presiding Officer. The proof of 240 days of working continuously each year is an unquestionable proof, which is derived from the officially maintained documents on the part of the petitioner. The authorities, which are termed as 'State' under Article 12 of the Constitution of India surely cannot shield themselves behind the availability of the sanctioned post when it chooses to take work from the workman of the very post for such a long period. Therefore, there would be no requirement to interfere with the award of the Labour Court. There is also constant and continuous requirement of services in the setup of the petitioner Panchayat.
9. In similar set of facts, in case of another employee, who was working as a Plumber, the Coordinate Bench has confirmed the award dated 12.12.2017 passed in Reference (D) Case No.2 of 2011, vide order dated 19.09.2019 in Special Civil Application No.15709 of 2019. This Court has passed the order dated 16.02.2022 passed in Special Civil Application No.1754 of 2022, in which reliance was placed by this Court on the order dated 17.09.2019 passed in Special Civil Application No.4728 of 2018. The petitioner had raised similar contentions, which are raised in the present writ petition."
9. The record speaks that Labour Court has noticed that workman was working for 20 years. Work of Driver has been taken from him and that has been proved by cogent Page 5 of 7 Downloaded on : Sat Sep 16 21:12:15 IST 2023 NEUTRAL CITATION C/LPA/657/2023 ORDER DATED: 12/07/2023 undefined evidence. Learned Single Judge has also noted evidence produced by the workman and appreciated by the Labour Court in the background of settled law in the case of Umrada Gram Panchayat as well as Vrajlal Bachubhai Khachariya (supra).
10. The Plumber who was working with Mendera Gram Panchayat in identical set of facts had also preferred Reference (D) Case No.2 of 2011 before the Labour Court, which was culminated in award in his favour. Mendera Gram Panchayat unsuccessful sought to challenge said order by filing Special Civil Application No.15709 of 2009 and accepted the findings of the Labour Court, approved by the learned Single Judge in that Special Civil Application.
11. In present Letters Patent Appeal identical issue is involved. The workman by unquestionable evidence proved that he worked for 240 days in each year and that too for 20 years. It was unfair labour practice. Menerda Gram Panchayat falling within definition of State under Article 12 of the Constitution of India and being welfare employee cannot cover themselves on the plea that no sanctioned post is available more particularly when they have taken work of Driver from workman for more than 20 years.
12. Perusal of the award passed by the Labour Court and confirmed by the learned Single Judge in Special Civil Application, we do not find any reason to interference with the impugned order in the jurisdiction of Letters Patent Appeal. This Letters Patent Appeal is meritless and accordingly, it is dismissed.
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13. In view of dismissal of Letters Patent Appeal, Civil Application does not survive. Accordingly, Civil application stands disposed of.
(N.V.ANJARIA, J) (J. C. DOSHI,J) SATISH Page 7 of 7 Downloaded on : Sat Sep 16 21:12:15 IST 2023