Gujarat High Court
Savarkundla Municipality vs Rashmibhai Keshubhai Vinjhuda on 9 November, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/1399/2022 ORDER DATED: 09/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1399 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 19341 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1399 of 2022
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SAVARKUNDLA MUNICIPALITY
Versus
RASHMIBHAI KESHUBHAI VINJHUDA
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Appearance:
MR. DEEPAK SANCHELA WITH DINESHKUMAR D GAUTAM(9549) for the
Appellant(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 09/11/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr. Deepak Sanchela with learned advocate Mr. Dineshkumar Gautam for the appellant Municipality.
1.1 None appeared for the respondent No.1 workman, however, since this appeal arises from common judgment and order of learned single Judge, against which the Letters Patent Appeals were disposed of, in which learned senior advocate Mr. G. M. Joshi appeared, the facts being same and parallel, he was requested to assist the court. It was appreciable that learned senior advocate assisted the court.
2. The appellant Municipality has preferred this Letters Patent Appeal seeking to call in question common judgment and order dated 25.3.2022 of learned single Judge in so far as it related to decision in Special Civil Application No. 19341 of 2017. Learned single Judge by Page 1 of 10 Downloaded on : Fri Nov 10 20:58:44 IST 2023 NEUTRAL CITATION C/LPA/1399/2022 ORDER DATED: 09/11/2023 undefined the impugned order confirmed judgment and award of the Industrial Tribunal dated 18.3.2017.
2.1 Partially allowing the Reference (IT) No. 75 of 2005 of the workman, who prayed before the Industrial Tribunal the relief of regularistion, it was directed to regularise the second party workman with effect from 1.1.1990. The arrears of salary and other benefits were directed to be paid from the date of Reference, which was 31.5.2005. .
2.2 The Industrial Tribunal further directed that period from 1.1.1990 till 30.5.2005 shall be treated as notional, for which period the workman shall not be entitled to receive any actual benefits as the period was directed to be counted for the purpose of seniority and other retirement benefits. The workman holding the post of Fitter was directed to be regularised on the same post.
3. Before the Industrial Tribunal, the case of the workman in his statement of claim (Exh. 6), it was stated that despite demand notice dated 31.7.2004 to regularise the workman, the first party employer did not act. It was the case that the work performed by the workman was of permanent nature, that he had been working since 1.1.1990 and had completed 240 days in each year. It was the case that by keeping the workman in the status of daily rated workman and paying meager wages, the employer committed act of exploitation.
3.1 In its reply (Exh.8), the first party employer-Municipality highlighted that the workman was only temporarily engaged and his retainment was dependent upon the availability of work. That the employment of the workman was not after following the recruitment procedure. It was contended that in the regular set-up of the Page 2 of 10 Downloaded on : Fri Nov 10 20:58:44 IST 2023 NEUTRAL CITATION C/LPA/1399/2022 ORDER DATED: 09/11/2023 undefined Municipality, no post was available for the fitter. The financial condition of the Municipality was very poor and there was huge financial dues over the Municipality. For all these reasons, it was stated, the workman was not entitled to be extended the benefits of permanancy.
3.1.1 Before the Industrial Tribunal, the workman deposited (Exh. 13) to assert and reiterate his case in the statement of claim, to submit that he was working since 1.1.1990 as Fitter and that he had completed 240 days of service in each year, that there was no difference in the work performed by him and the work performed by the regular employees.
3.1.2 On behalf of the first party employer, witness-Harendrakumar Dhirajlal Joshi, employee of the Municipality gave evidence (Exh.24). He inter alia stated that several employees in the Municipality were regularised pursuant to award of the Labour Court. He stated that work performed by the workman was of permanent nature.
3.1.3 Upon appreciating the evidence, the Labour Court concluded that the workman was discharging duties which was of permanent nature and that his services was continuous. It was specifically observed by the Industrial Tribunal that the workman had been discharging his duties since long years. Even though the set-up of the Municipality was placed before the Industrial Tribunal showing that there were no sanctioned posts for the Fitters, it could be noticed by the Tribunal that three workmen working on the post of Fitter were regularised and the act of the Municipality to retain the workman with the status of daily wager only was not proper and that the Municipality remained negligent in getting the the posts sanctioned.
3.1.4 The Industrial Tribunal thereafter proceeded to highlight section Page 3 of 10 Downloaded on : Fri Nov 10 20:58:44 IST 2023 NEUTRAL CITATION C/LPA/1399/2022 ORDER DATED: 09/11/2023 undefined 2(r-a) of the Industrial Disputes Act. Having considered the section 2(r-a) read with section 25T of the Industrial Disputes Act, the Industrial Tribunal came to the conclusion by retaining the workman as rojamdar for years together and by paying the less than minimum wages, thereby depriving him all benefits of permanency, the first party employer had indulged into unfair labour practice. Upon such premise and findings recorded, the Reference before thee Industrial Tribunal culminated into judgment and award as above.
4. Learned advocate for the appellant-Municipality relied on the decision of the Supreme Court in Secretary to Govt. Commercial Taxes and Registration Department Secretariat and Anr. vs. A. Singamuthu [(2017) 4 SCC 113], to submit that long service itself will not entitle the employee to seek regularisatoin. Pressing into service yet anther decision also of the Apex Court in Government of Tamil Nadu and Anr. vs. Tamil Nadu Makkal Nala Paniyalargal and Ors. [2023 LawSuit (SC) 364], it was submitted by relying on para 54 of the said jdugment that the State cannot be compelled to create the posts and absorb the employees.
4.1 The factum of long service of the respondent-workman since 5.9.1991, its continuous nature, the status of the workman as daily wager and that the work was also of perennial kind, could hardly be disputed. What was sought to be harped by learned advocate for the Municipality was that in absence of post, the Industrial Tribunal could not have directed to regularise the workman.
5. In Letters Patent Appeal, neither the court is permitted to go beyond the factual findings nor we have found the said fact to be erroneous from any stand point, rather it borne out from the details of set-
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up that there existed vacany for the respondent-workman to be extended him the benefit of regularisation on the said post.
5.2 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"
5.3 Thus, conspicuous aspects which are undisputed emerges from the record. Firstly, that workman was rojamdar continued in service of the Municipality since 1991. Secondly, he put in long services for more than two decades. All throughout, he was kept as rojamdar and paid meager wages. Learned advocate for the respondent could submit that this circumstances invariably suggest that the employer indulge 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.
5.4 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 Page 5 of 10 Downloaded on : Fri Nov 10 20:58:44 IST 2023 NEUTRAL CITATION C/LPA/1399/2022 ORDER DATED: 09/11/2023 undefined 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 hereinabove, such situation is obtained in the present case.
6. 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.
6.1.1 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 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.
6.1.2 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 Page 6 of 10 Downloaded on : Fri Nov 10 20:58:44 IST 2023 NEUTRAL CITATION C/LPA/1399/2022 ORDER DATED: 09/11/2023 undefined to have indulged into any unfair labour practice, as defined in Industrial Disputes Act, the relief of regularisation could be extended.
6.1.3 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) 6.2 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 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) 6.2.1 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 Page 7 of 10 Downloaded on : Fri Nov 10 20:58:44 IST 2023 NEUTRAL CITATION C/LPA/1399/2022 ORDER DATED: 09/11/2023 undefined 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) 6.3 The decision in Raja Ram (supra), was followed in Regional Manager, State Bank of India vs. Rakesh Kumar Tewari (2006) 1 SCC 530.
6.4 In Oil and Natural Gas Corporation vs. Krishan Gopal and Others (2020 SCC OnLine SC 150) , 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 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 Page 8 of 10 Downloaded on : Fri Nov 10 20:58:44 IST 2023 NEUTRAL CITATION C/LPA/1399/2022 ORDER DATED: 09/11/2023 undefined 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) 6.5 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.
6.6 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 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 Page 9 of 10 Downloaded on : Fri Nov 10 20:58:44 IST 2023 NEUTRAL CITATION C/LPA/1399/2022 ORDER DATED: 09/11/2023 undefined 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.
6.7 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.
7. For all the aforesaid reasons and discussion, no ground is made out to interfere with the judgment and order of learned Single Judge. The Letters Patent 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) (CHEEKATI MANAVENDRANATH ROY, J) C.M. JOSHI Page 10 of 10 Downloaded on : Fri Nov 10 20:58:44 IST 2023