Gujarat High Court
Port Officer vs Secretary & on 28 March, 2017
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/756/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 756 of 2017
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PORT OFFICER....Petitioner(s)
Versus
SECRETARY & 1....Respondent(s)
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Appearance:
MS SEJAL K MANDAVIA, ADVOCATE for the Petitioner(s) No. 1
MR TR MISHRA, CAVEATOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 28/03/2017
ORAL ORDER
Judgement and award dated 29.8.2016 passed by the Industrial Tribunal, Jamnagar, in Reference (IT) No. 164 of 2012 has been challenged in this petition by the employer, Port Officer of Gujarat Maritime Board, Okha. By the impugned award the respondent workman Dipeshkumar Natvarlal Joshi has been ordered to be regularized as Electrician with effect from the date he completed 240 days of service; as such, all the consequential benefits were also ordered to be paid to the workman.
2. Having considered the rival submissions, it appears that the impugned award came to be passed on the finding that the petitioner employer had resorted to unfair labour practice by making appointment of the respondent workman for short term durations; at times as contractual workman or on the work charge employment or fixed period of 29 days, Page 1 of 3 HC-NIC Page 1 of 3 Created On Tue Aug 15 12:23:54 IST 2017 C/SCA/756/2017 ORDER though work was of perennial nature. It also appears that the principal contention of the petitioner opposing the reference was that the workman was only a contractual appointee.
3. The workman had come out with a case that his appointment was regular in nature inasmuch as as per the practice, the petitioner Gujarat Maritime Board used to requisition human resource by publication on its notice board and in pursuance thereof the workman had applied and was interviewed and eventually selected. This assertion of the workman was not contested by the petitioner. It thus appears that except saying that the appointment of the workman was on contractual basis, no other evidence whatsoever came to be propounded by the petitioner before the Industrial Tribunal.
4. The Industrial Tribunal has taken into consideration the evidence on record as also the case law cited before it and had come to the conclusion that the workman was appointed in pursuance of the notice and interview on the sanctioned set up and that his appointment was not a back door entry and that his appointment at times as a contractual employee and then as work charge employee and then as employee for fixed term though the work is of perennial and was increasing from time to time, was unfair labour practice. By resorting to such unfair labour practice, the workman was denied his legitimate rights.
5. The learned counsel for the petitioner heavily relied on State of Karnataka v. Umadevi 3, (2006) 4 SCC 1 to contend that regularization sought for by the workman was contrary to the ratio laid down in the said case. Apropos the said submission, it can be noticed from the award itself that the Tribunal took into consideration, inter alia, the case of Maharashtra State Road Transport Corporation & Anr.
Page 2 of 3HC-NIC Page 2 of 3 Created On Tue Aug 15 12:23:54 IST 2017 C/SCA/756/2017 ORDER v. Casteribe Raja Parivahan Karmchari Sanghatana (2009) 8 SCC 556 wherein the ratio laid down in Umadevi (supra) was explained and it was pointed out that the said case does not denude Industrial Tribunal and the Labour Court of their statutory powers under section 30 read with section 32 of the MRTU and PULP Act. It was pointed out that in the event of the employer resorting to unfair labour practice, the adjudicatory forums under the Industrial Law have jurisdiction to pass suitable orders and their powers in such a situation are not confined by the ratio laid down in Umadevi (supra).
6. In view of above facts and circumstances, this court is of the opinion that the Industrial Tribunal has not committed any error requiring the interference of this court under Article 227 of the Constitution of India. The petition, therefore, fails and is dismissed. Notice is discharged.
(G.R.UDHWANI, J.) (pkn) Page 3 of 3 HC-NIC Page 3 of 3 Created On Tue Aug 15 12:23:54 IST 2017