Gujarat High Court
Anand Agricultural University vs Mangliben Wd/O Surjibhai Kalabhai ... on 31 March, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/1629/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1629 of 2010
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
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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ANAND AGRICULTURAL UNIVERSITY
Versus
MANGLIBEN WD/O SURJIBHAI KALABHAI DAMOR, LEGAL HEIRS OF
DECE & 14 other(s)
================================================================
Appearance:
MR DG CHAUHAN(218) for the Petitioner(s) No. 1
DECEASED LITIGANT(100) for the Respondent(s) No. 13,15
MR P C CHAUDHARI(5770) for the Respondent(s) No.
1,10,12,2,3,4.1,4.2,4.3,4.4,5,7,8,9.1,9.2
MR PC CHAUDHARI(5423) for the Respondent(s) No. 15.1,15.2,15.3
RULE SERVED(64) for the Respondent(s) No.
1,10,11,12,14,2,4.1,4.2,4.3,4.4,5,6,7,8,9,9.2,9.3
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 31/03/2021
ORAL JUDGMENT
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C/SCA/1629/2010 JUDGMENT
1. The present petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner - Anand Agricultural University challenging the impugned award dated 17.07.2009 passed by the Labour Court, Dahod in Reference (LCD) (Demand) No.1 of 2008 (Old Reference (LCG) (Demand) No.8 of 1996), whereby the Labour Court has allowed the reference filed by the workmen and directed the employer to treate the concerned workman as permanent from 1990 and to pay Dearness Allowance, House Rent Allowance, Medial Allowance, benefit of leave encashment etc and also granted Rs.5,000/- to each as cost.
2. For the sake of brevity and convenience, the parties are referred to as the "employer" and the "workmen".
3. The main grounds for challenging the impugned award are that the workmen were engaged as daily Page 2 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT rated unskilled field labourers as and when the work was available and were being paid minimum wages as fixed by the State Government from time to time under the provisions of the Minimum Wages Act. It is contended by the employer that the workmen are not possessing the requisite qualifications for the post in question and are not engaged / appointed on the sanctioned vacant posts and their appointments are irregular and were made without following due selection process as prescribed under the Recruitment Rules and hence, they are not entitled for regularization and pay scale at par with the regular permanent employees.
3.1 It is further contended by the petitioner that the Labour Court, under complete misconception about its jurisdiction, without any iota of evidence on record, on wholly illegal and erroneous approach and without jurisdiction passed the impugned award dated 17.7.2009 and directed the employer to treat the workmen as permanent employees from 1990 Page 3 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT with all consequential benefits. It is also contended by the employer that the Apex Court in the case of Secretary, State of Karnataka Vs. Umadevi (3) and others, (2006) 4 SCC 1 held that the daily wagers have no right for absorption, regularization or permanency in service de hors the constitutional scheme of public employment and de hors the Recruitment Rules. It is contended by the employer that the University is an educational institute fully aided by the State Government and is engaged in the educational activities and imparting the education of agriculture and allied science and humanities in the State of Gujarat. It is further contended by the employer that the University is having various agricultural research stations at different places in the State of Gujarat and for the purpose of discharging its duties and functions and to achieve the object under the Act, the University engages daily rated labourers for various agricultural activities. It is also contended by the employer that the State Government accorded Page 4 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT 100% grant to the University and all the expenses including the expenses for the purpose of payment of salaries and wages of the employees of the University are being paid from the amount of grant received from the State Government. It is further contended by the employer that it being a grant-in- aid institute, is required to obtain prior sanction of the State Government for the purpose of recruitment / appointment of the employees of the University. It is also contended by the employer that the University has to follow the procedure of selection by the Competent Selection Committee on the sanctioned vacant posts and it is having its own Recruitment Rules which provides designation, qualification, method of recruitment and other terms and conditions of the employment.
3.2 It is contended by the employer that the appointment of the workmen were not on sanctioned vacant post and they were engaged on daily basis and they are not entitled for Page 5 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT regularization and pay scale at par with the regular permanent employees. It is contended by the employer that out of 15 labourers, 4 labourers had expired during the pendency of adjudication and services of 3 labourers have been regularized under the Regularization Scheme whereas two workmen have left the work. It is also contended by the employer that in the reference, the University has already filed its written statement and has taken all these defences. However, the same has not been properly appreciated by the Labour Court. It is further contended by the employer that the workmen have examined only one witness namely Manubhai Varsinghbhai Damor, who in his deposition has admitted that they were getting work as and when work is available and not regular and he was not in employment from 1977 to 1983. It is further contended by the employer that the University has also produced documentary evidence showing the working days of the concerned employees. It is also contended by the employer Page 6 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT that without appreciating the evidence on record, the Labour Court has directed it to regularize the services of four deceased employees and further directed to regularize the services of three employees who have already been regularized in service under Regularization Scheme and two other labourers who have left the work long back. It is contended by the employer that this fact suggests that the impugned award is patently illegal, erroneous, perverse and bad in law. It is also contended by the employer that the Labour Court has not properly considered the oral evidence of Bachubhai Ramsinhbhai Parmar.
3.3 It is also one of the ground that merely because the daily rated employees have put in certain number of years of service, that facts cannot entitled them to the status of permanent employees automatically and Labour Court has no jurisdiction to grant benefits of permanency with all consequential benefits unless the appointment of the concerned Page 7 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT employees were made regular in accordance with the Recruitment Rules and in terms of the constitutional scheme. It is contended by the employer that there must be sanctioned vacant posts and the workmen should have appointed after completion of due process of law. It is also contended by the employer that the Labour Court has travelled beyond the terms of reference. Regarding the claim of the workmen based on Government Resolution dated 17.10.1988, it is contended by the employer that it is not applicable to the employees of the University. On all these grounds, it is prayed by the University to quash and set aside the impugned award passed by the Labour Court.
4. Initially, notice for final disposal was issued and, thereafter, by virtue of the order dated 27.07.2010 by way of interim relief, the impugned award has been stayed with the clarification that the pending this petitions, the service conditions of the Page 8 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT respondents shall not be changed without due process of law. During the pendency of this petition, the other respondents have also expired and necessary amendment has been carried out in the cause title.
5. Heard Mr.D. G. Chauhan, learned advocate for the petitioner - employer and Mr.P. C. Chaudhari, learned advocate for the respondents - workmen at length through video conferencing.
6. Mr.D. G. Chauhan, learned advocate for the petitioner has submitted that the award has been passed in favour of the certain deceased persons for regularization of their services. He has submitted that under the provisions of the Industrial Disputes Act, 1947 (hereinafter be referred to as the "ID Act") especially Section 25-F, no jurisdiction lies with the Labour Court for regularization of services of the daily wagers. He has submitted that the workmen (1) Surjibhai Kalabhai Damor expired on 9.6.2000, Page 9 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT (2) Bharatbhai Kasnabhai Buriya expired on 1.5.2003, (3) Sukhiyabhai Limjibhai Sangada expired on11.8.1996, (4) Shankarbhai Suniyabhai Vankada expired on 3.3.1997 and yet award has been passed in favour of them by the Labour Court. While referring to Annexure - A at page No.14 of the petition, he has submitted that the workmen Mansukhbhai Surjibhai Damor and Baldevsingh Badesinh Mahida have left the services at their own, whereas, Nannubhai Sukhiyabhai Sangada, Babubhai Hurjibhai Damor, Lalubhai Puniyabhai Damor, Chuniyabhai Manabhai Buirya, Nathubhai Dhaniyabhai Bhabhor and Manubhai Varsinghbhai Damor are working. He has submitted that the service of Kalubhai Lunjiyabhai Buriya, Jeetrabhai Manabhai Pargi and Rameshbhai Bakurbhai Sangada have been regularized w.e.f. 01.01.2001. 6.1 While referring to the terms of reference at page No.17 of the compilation, he has submitted that there was no reference for regularization of the Page 10 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT workmen in the service. According to him, the reference was made for 9 items enumerated in the annexure thereof. While referring to the statement of claim as well as written statement filed by the employer, he has submitted that the defence raised by the employer that it is not an industry within the meaning of Section 25 of the ID Act, has not been properly considered by the Labour Court. He has submitted that the workmen were working on the daily basis and they have never appointed through the recruitment rules. According to him, there was no sanctioned post and no scheme is available for regularization of the services of the workmen, who have been working as daily wagers. He has invited the attention of the Court regarding the averments made in the written statement to the effect that the report of Shri Dolatbhai Parmar Committee dated 17.10.1988 is not applicable to the institution and that fact has already been recorded by the Government vide its letter dated 30.03.1995. At the same time, he has submitted that the daily wagers Page 11 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT who have completed 10 years of services and even if they have put services of 240 days then they could be regularized w.e.f. 01.01.2001. He has submitted that however, in the present case, none has completed 240 days in a preceding years. According to him, the claim put forward by the workmen is not tenable and is misconceived. 6.2 While referring to the deposition of one Manubhai Virsingbhai Damor, who is one of the workmen, Mr.Chauhan, learned advocate has submitted that he has admitted in his cross-examination that they were engaged as and when their services were needed and they were not being engaged in the entire month. He has stated that the service of Kalubhai Lujiyabhai regularized due to the decision of the Apex Court, whereas, Bharatabhai Bhuriya, Sukhiyabhai Sangada, Shakarabhai Chuniyabhai and Surji Talla Damor etc. have died.
6.3 While referring to the impugned award, Mr.Chauhan, Page 12 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT learned advocate has vehemently submitted that it was bounded duty of the workmen to prove their case, but they have failed and, therefore, the observation of the Labour Court in granting the regularization is devoid of merits. 6.4 Mr.Chauhan, learned advocate has submitted that employer is statutory body and it has its own recruitment rules. According to him, the workmen were not recruited by following due procedure and, therefore, the workmen are not entitled for any sort of relief. He has submitted that there is no evidence produced by the workmen regarding their appointments on regular post by following recruitment rules and, therefore, their case is of no evidence. He has submitted that the award has already been passed in favour of the dead persons which is nullity. He has prayed to allow the present petition while setting aside the impugned award.
7. Per contra, Mr.P. C. Chaudhari, learned advocate for Page 13 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT the respondents has vehemently submitted that the Labour Court has properly appreciated the evidence and has not committed any serious error of facts and law. He has submitted that several opportunities have been afforded to the present petitioner - employer to lead evidence, but none has appeared on their behalf and, therefore, their statement in the written statement cannot be said to be proved in absence of such evidence. He has referred to the observations made by the Labour Court that the workmen have already come into witness box and supported their evidence, whereas, the employer has not taken care to do so. He has submitted that as per the oral evidence produced by the workmen, they were working since 1972 onwards. While referring to the observations made by the Labour Court, he has submitted that the Labour Court has properly appreciated the facts that the workmen are working in the institution since many years in continuity of service and without any break and, therefore, the impugned award cannot Page 14 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT be said to be erroneous one. He has submitted that it is bounded duty of the employer to prove its case, however, no documentary evidence has been produced by the employer. He has submitted that in reality, this is a case wherein no evidence has been produced on record by the institution and, therefore, they cannot take any advantage of its own default. He has submitted that so far as reliance placed on the decision of the Apex Court in the case of Umadevi (supra) by the learned advocate for the petitioner is concerned, the same is not applicable to the facts of the present case. He has submitted that in the case of Umrala Gram Panchayat (supra), wherein the decision of Umadevi (supra) has been considered wherein it is observed that reference for regularization is maintainable. He has submitted that jurisdiction is vested to the Labour Court to make necessary order which include regularization of services of the workmen.
7.1 Mr. Chaudhari, learned advocate has invited the Page 15 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT
attention of the Court regarding 5th Schedule to the ID Act, item No.10 which provides about what is unfair labour practice, and has submitted that the employer has adopted unfair labour practice and, therefore, the impugned award passed by the Labour Court cannot be said to be illegal or perverse one. He has submitted that as per Annexure - A annexed to the petition, there is apparent on the part of the employer that they have regularized four persons. He has submitted that in the case of termination of individual persons, he has to step into witness box, but in the case of demand for regularization of other persons also, then, in such cases, it is enough to examine anyone workman and there is no need of deposition being offered by all the claimant therein. He has also referred to the deposition of Manubhai Varsinghbhai Damor and has stated that he has specifically narrated in his evidence that all the workers were working as watchmen.
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C/SCA/1629/2010 JUDGMENT 7.2 While referring to the evidence of the officer of the employer, Mr.Chaudhari, learned advocate has submitted that his deposition has also been considered by the Labour Court and after perusing its evidence, the Labour Court has passed the impugned award. He has, however, submitted that this deposition has not been completed as witness of the employer did not remain present therein and the right to file their evidence has been closed by the Labour Court. According to him, this deposition even if accepted as it is, the case of the workmen are strengthened.
7.3 Mr.Chaudhari, learned advocate for the respondents has relied upon the following decisions. (1) Director, Fisheries Terminal Department Vs. Bhikubhai Meghajibhai Chavda, (2010) 1 SCC 47; (2) Hari Nandan Prasad and another Vs. Employer I/R. To Management of Food Corporation of India and another, (2014) 7 SCC 190;
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C/SCA/1629/2010 JUDGMENT (3) Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries Limited, (2014) 11 SCC 85;
(4) Durgapur Casual Workers Union and others Vs. Food Corporation of India and others, (2015) 5 SCC 786; (5) Umrala Gram Panchayat Vs. Secretary, Municipal Employees Union and others, (2015) 12 SCC 775; 7.4 Mr.Chaudhari, learned advocate has submitted that the present petition may be dismissed and the impugned award of the Labour Court may be confirmed.
8. In rejoinder, Mr.Chauhan, learned advocate for the petitioner has submitted that there is no pleadings or evidence produced by the workmen regarding the fact of unfair labour practice and, therefore, that point cannot be taken into consideration by this Court. He has submitted that no such reference, has been made in the deposition. He has submitted that the completion of 240 days services do not confirm any right to the workman to be regularized Page 18 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT when he was daily wager. He has submitted that no burden lies upon the management of the institution to prove the case of the workmen. He has submitted that it is the duty of the workmen to prove their case. He has submitted that para-53 of the decision of the Apex Court in the case of Umadevi (supra) will not be applicable to facts of the present case. While referring to the decision of the Division Bench of this Court in the case of State of Gujarat and others Vs. Rabari Bhojabhai Danabhai in Letters Patent Appeal No.2173 of 2017 in Special Civil Application No.618 of 2016 dated 01.12.2007, he has submitted that the same is still pending before the higher forum and, therefore, the observation of the Division Bench of this Court cannot be taken into consideration.
8.1 Mr.Chauhan, learned advocate for the petitioner has relied upon the following decisions:-
(1) Gujarat Agricultural University Vs. Rathod Labhu Page 19 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT Bechar and others, (2001) 3 SCC 574;
(2) Amreli Municipality Vs. Gujarat Pradesh Municipal Employees Union, 2004 (3) GLR 1841;
(3) Secretary, State of Karnataka and others Vs. Umadevi (3) and others, (2006) 4 SCC 1;
(4) National Fertilizers Ltd and others Vs. Somvir Singh, (2006) 5 SCC 593;
(5) Chandra Shekhar Azad Krishi Evam Prodyogiki Vishwavidyalaya, (2008) 2 SCC 552;
(6) Official Liquidator Vs. Dayanand and others, (2008) 10 SCC 1;
(7) Pinki Chatterjee and others Vs. Union of India and others, (2009) 5 SCC 193;
(8) State of Rajasthan and others Vs. Daya Lal and others, (2011) 2 SCC 429;
(9) Secretary to Government, School Education Department, Chennai Vs. R. Govindaswamy and others, (2014) 4 SCC 769;
(10) Nand Kumar Vs. State of Bihar and others, (2014) 5 SCC 300;
(11) Renu and others Vs. District and Sessions Judge, TIS Page 20 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT Hazari Courts, Delhi and another, (2014) 14 SCC 50;
9. In the case of Umadevi (supra), while referring to the various decisions, the Apex Court has observed in para-43 that if it is a contractual appointment, the appointment comes to an end at the end of the contract, whereas if it is an engagement or appointment on the daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. Further, it is also observed that it is not open to the court to prevent regular recruitment Page 21 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. It is also observed that the High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. It is observed that merely because an employee had continued under cover of an order of the court, he would not be entitled to any right to be absorbed or made permanent in the service."
9.1 In the case of Umadevi (supra), the Apex Court has observed in para-45 as under:-
"45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or Page 22 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length
-- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has Page 23 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
9.2 In the case of Umadevi (supra), the Apex Court has observed in para-48 as under:-
"48.........There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed......."
10. In the aforesaid decision, the Apex Court has referred to the decision in the case of Renu and others Vs. District and Sessions Judge, TIS Hazari Courts, Delhi and another (supra).
11. In the case of Secretary to Government, School Page 24 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT Education Department, Chennai (supra), while relying upon the decision of Umadevi, the Apex Court has observed in para-8 as under:-
"8. This Court in State of Rajasthan v. Daya Lal, (2011) 2 SCC 429 has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under: (SCC p. 435, para 12) "(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be 'litigious employment.' Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to Page 25 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."
(emphasis supplied)
12. In the case of National Fertilizers Limited (supra), the Apex Court has observed in para-18 as under:-
"18. Regularisation, furthermore, is not a Page 26 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT mode of appointment. If appointment is made without following the rules, the same being a nullity the question of confirmation of an employee upon the expiry of the purported period of probation would not arise. The Constitution Bench in Umadevi (3), (2006) 4 SCC 44 made a detailed survey of the case- laws operating in the field."
13. The other decisions relied upon by Mr.Chauhan, learned advocate for the petitioner are on the same line and, therefore, they are being not discussed in detailed. However, the decision of the full bench of this Court in the case of Amreli Municipality(supra) needs to be referred to since after discussing the number of decisions, the Court has issued guidelines in 12.1.13 to 12.1.16 which read as under:-
"12.1.13 Even if it is held that the Labour, Court/Industrial Tribunal has wide jurisdiction to alter service conditions, it can exercise such powers subject to the recruitment rules, availability of sanctioned posts and subject to the grant and limits of budgetary provisions. When there is no permanent post, no direction can be given to the authorities to absorb daily wage employees by creating new posts. It is the common phenomenon in the case of Nagarpalikas/ Municipalities/Government Corporations where such appointments are made on political considerations. The parties in power may recruit their own persons as daily-rated employees, and thereafter, by Page 27 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT seeking orders from the Court, they want to absorb such employees on permanent establishment. Time and again, such practice is deprecated in so many words in the judgments referred by us. The Panchayats, Municipalities, Municipal Corporations or Government Corporations as well as Government establishments are facing severe financial crisis only because of such staff which may be required for the time-being, but to make them permanent would definitely adversely affect the financial substratum of respective organisations and the Courts should not be party to such illegal and irregular appointments by allowing them to be continued at the cost of public exchequer. We are conscious of the fact that by not approving the appointments of such daily wagers, it will be very difficult for them to survive and the question of their livelihood would arise. Keeping this aspect in mind, we do feel that in appropriate cases, their interests are required to be protected. We accordingly give following guidelines :
(1) If casual workers or daily-rated workers are not required by the local bodies and whose services are likely to be terminated, they should be relieved on the principle of "last come, first go". In the event of filling up the posts in future, those who are eligible and qualified from and amongst the relieved workmen shall be preferred by waiving the age-limit.
(2) If the workmen who have continued for years as temporary employees, in the event of their termination, the authorities will see that no unqualified person is appointed in their place.
(3) The question of regularisation can also be considered by the authorities before terminating services provided the workers are eligible on the sanctioned posts. (4) If the posts are not sanctioned, the authorities may take such steps which are Page 28 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT necessary in accordance with the provisions of law/rules/ circulars within the budgetary provisions.
12.1.14 Thus, in view of the above, even if it is held that keeping daily-rated/casual employees for a long duration amounts to unfair labour practice, that fact by itself, will not make them permanent and/or regularise service. While deciding such preferences for regularisation or permanency, the Labour Court/Industrial Tribunal, at the most, can pass order directing the authorities to consider their claim in the light of factors/observations stated above instead of straight-away passing the orders of regularisation or granting permanency.
12.1.15 In view of the above discussion, we answer the question referred to us as under :
(i) The Labour Court/Industrial Tribunal has no jurisdiction to issue direction or pass an award regularising services of employees of a Municipality or local authority without there being any 'sanctioned set-up' and no person can be regularised if such a person had entered service without following selection process under the title of daily-rated employee.
(ii) In view of our answer to the above question, the judgment rendered by Division Bench in the case of Kalol Municipality v.
Shantaben, reported in 1993 (2) GLR 997 is now no longer a good law in view of subsequent decisions rendered by the Apex Court and more particularly the decision in the case of N. S. Giri v. Corporation of State of Mangalore, AIR 1999 SC 1958. The subsequent decision rendered by the Division Bench of this Court in the case of Halvad Nagarpalika and Ors. v. Jani Dipakbhai Chandravadanbhai and Ors., reported in 2003 (4) GLR 3229 : 2003 (2) GHCJ 397 is held to Page 29 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT be a good law. All the matters shall be placed before the concerned Courts taking up such matters for passing appropriate orders. 12.1.16 Before parting, we may like to observe that the unfortunate workmen who have continued for years as temporary employees and have succeeded before the Labour Court/Industrial Tribunal, in view of our decision, in the event of their termination, the authorities may see to it that no unqualified person is appointed in their place and their claim for regularisation be considered provided they are eligible on the sanctioned posts. If the posts are not sanctioned, the authorities may take such steps which are necessary in accordance with the provisions of law/rules/circulars within the budgetary provisions. So as to see that no irregularities are committed in the matter of appointment by Panchayats, Municipalities and Corporations, in our opinion, it would be advisable if the State Government issues an appropriate circular giving details with regard to the aforestated guidelines to all the local authorities. Order accordingly."
14. In the case of Durgapur Casual Workers Union (supra), the Apex Court, after considering the decision of Umadevi as well as other decisions, has observed in paras- 11, 12, 13, 14, 15, 16 and 17 as under:-
11. The Industrial Disputes Act, 1947 is a beneficial legislation enacted with an object for the investigation and settlement of Page 30 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT industrial disputes and for a certain other benefits. Section 2(j) of the Act defines industry as follows:
"2(j) "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen."
The Industrial dispute is defined under Section 2(k) as follows:-
"2(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non- employment or the terms of employment or with the conditions of labour, of any person."
Section 2(ka) of the said Act defines "industrial establishment or undertaking" and reads as follow:
"2. (ka) "industrial establishment or undertaking" means an establishment or undertaking in which any industry is carried on:
Provided that where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries, then,--
(a) if any unit of such establishment or undertaking carrying on any activity, being an industry, is severable from the other unit or units of such establishment or undertaking, such unit shall be deemed to be a separate Page 31 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT industrial establishment or undertaking;
(b) if the predominant activity or each of the predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment or undertaking or unit thereof is not severable from and is, for the purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the entire establishment or undertaking or, as the case may be, unit thereof shall be deemed to be an industrial establishment or undertaking;"
"Unfair labour practice", as defined under Section 2(ra) means any of the practices specified in the Fifth Schedule.
12. The industrial establishment or undertaking as defined in the Act not only includes the State Public Undertakings, the Subsidiary Companies set up by the Principal Undertaking and Autonomous bodies owned or control by the State Government or Central Government but also the private industries and undertakings. The Industrial Disputes Act is applicable to all the industries as defined under the Act, whether Government undertaking or private industry. If any unfair labour practice is committed by any industrial establishment, whether Government undertaking or private undertaking, pursuant to reference made by the appropriate Government the Labour Court/Tribunal will decide the question of unfair labour practice.
13. In the matter of appointment in the services of the 'State', including a public establishment or undertaking, Articles 14 and 16 of the Constitution of India are attracted. However, Articles 14 and 16 of the Constitution of India are not attracted in the matter of appointment in a private Page 32 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT establishment or undertaking.
14. An undertaking of the Government, which comes within the meaning of industry or its establishment, cannot justify its illegal action including unfair labour practice nor can ask for different treatment on the ground that public undertaking is guided by Articles 14 and 16 of the Constitution of India and the private industries are not guided by Articles 14 and 16 of the Constitution of India.
15. In the light of above discussion, in the present case the issues that are to be determined are as follows:
15.1 (I) Whether an issue relating to the validity of initial appointment can be raised in absence of any specific pleading or reference. 15.2 (ii) The Tribunal having held, as affirmed by the High Court that the respondent corporation had committed unfair trade practice against the workmen depriving them of status and privileges of permanent workmen; whether the workmen were entitled for relief of absorption?
16. Before deciding the issues, it is necessary to notice the relevant decisions of this Court regarding regularization of service/absorption in the Government Service or its undertakings in the light of Articles 14 and 16 of the Constitution of India.
15. In the case of Hari Nandan Prasad (supra), the Apex Court has considered the various decisions which includes Umadevi's case, Jagbir Singh's case, Page 33 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT Lalit Kumar's case, Maharashtra Road Transport Corporation's case and U. P. Power Corporation Limited's case etc. and observed in para-39 that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularisation only because a worker has continued as daily-wage worker/ ad hoc/ temporary worker for number of years. It is also observed that if there are no posts available, such a direction for regularisation would be impermissible. It is also observed that such a direction would not be given when the worker concerned does not meet the eligibility requirement of the post in question as per the recruitment rules. It is further observed that 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 Page 34 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT workers itself would amount to invidious discrimination qua them in such cases and would be violative of Article 14 of the Constitution. 15.1 In the case of Hari Nandan Prasad (supra), the Apex Court has observed in para-40 as under:-
"40. The aforesaid examples are only illustrative. It would depend on the facts of each case as to whether the order of regularisation is necessitated to advance justice or it has to be denied if giving of such a direction infringes upon the employer's rights."
16. In the case of Bhuvnesh Kumar Dwivedi (supra), the Apex Court has observed in paras-19, 23 and 24 as under:-
19. In Heinz India (P) Ltd. v. Union of India, (2012) 5 SCC 443], this Court, on the issue of the power of the High Court for judicial review under Article 226, held as under:
"60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject-matter of several judicial pronouncements within and outside the country. When one talks of 'judicial review' Page 35 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT one is instantly reminded of the classic and oft quoted passage from Council of Civil Service Unions (CCSU) v. Minister for the Civil Service [1984] 3 All ER 935, where Lord Diplock summed up the permissible grounds of judicial review thus: (AC pp. 410 D, F-H and 411 A-B) '....Judicial Review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'....
By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisable.
By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer or else there would be something badly wrong with our judicial system.....
I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is Page 36 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
23. No plea was made by the respondent in its written statement filed before the Labour Court with regard to the provision of Section 2(oo)(bb) of the I.D. Act. Nonetheless, this legal ground without any factual foundation was pressed into operation before the Labour Court by the learned counsel for the respondent. The same has been addressed by the Labour Court by rejecting the said contention by assigning its own reasons. Before we record our finding on this contention, it is pertinent to mention the provision of Section 2(oo)(bb) of the I.D. Act, which reads thus:
"2 (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(bb) termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under the stipulation in that behalf contained therein; or"
24. It is argued by the learned counsel for the appellant that there is no provision in pari materia to this provision in the U.P. I.D. Act. Therefore, even if the service of the appellant is terminated on expiry of the contract period of service, it would fall within the definition of retrenchment under the U.P. I.D. Act for non compliance of the mandatory requirement under Section 6-N of the U.P. I.D. Act. The order of termination against the appellant is rendered void ab initio in law, therefore, the Page 37 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT appellant is entitled to be reinstated with back wages and consequential benefits. In support of this contention, the learned counsel has aptly relied upon the decision of this Court in U.P. State Sugar Corporation Ltd. v. Om Prakash Upadhyay,(2002) 10 SCC 89 with regard to the applicability of the provision of Section 2(oo)(bb) of the I.D. Act which was amended provision after the U.P. I.D. Act, the relevant paragraphs of which read as under:
"3. On the application of the State Act or the Central Act to the case on hand, the High Court followed the Division Bench ruling in Jai Kishun v. U.P. Coop. Bank Ltd., 1989 UPLBEC 144 (All) and made it plain that the provision of Section 2(oo)(bb) of the Central Industrial Dispuutes Act would not apply in respect of proceedings arising under the U.P. Industrial Disputes Act. The High Court also noticed the contrary view in this regard in the case of Pushpa Agarwal v. Regional Inspectress of Girls Schools, Meerut but held that in Jai Kishun case the relevant provisions had been duly considered which are not taken note of in Pushpa Agarwal case and on that basis, it followed the decision in Jai Kishun case. It is this judgment that is brought in appeal before us in these proceedings.
* * *
5. The law is settled that under the Central Act every case of retrenchment would not include a case of contractual termination which came to be introduced under the Central Act by amending Act 49 of 1984 which purports to exclude from the ambit of definition "retrenchment" inter alia: (i) termination of service of a workman as a result of the non- renewal of contract of employment between the employer and the workman concerned on its expiry, or (ii) termination of the contract of employment in terms of a stipulation contained in the contract of employment in that behalf. Such a case is not available under the U.P. Industrial Disputes Act. If the U.P. Page 38 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT Industrial Disputes Act covers the present case then termination of the services of the respondent would certainly result in retrenchment while it is not so under the Central Industrial Disputes Act in view of the exceptional clauses referred to above. While the former situation results in retrenchment, the latter situation does not amount to retrenchment if the same case would arise under the State Industrial Disputes Act. Thus operation of the two enactments would bring to the forefront the obvious repugnancy between them. In such a case as to how the question is to be resolved needs to be considered in the present case.
6. Inasmuch as the enactments, both by the State and the Centre, are under the Concurrent List, we are urged to look to Article 254(2) of the Constitution of India. If we view from that angle, the U.P. Industrial Disputes Act also covers the same field as the Central Industrial Disputes Act. However, Section 2(oo) (bb) is obviously a special provision enacted under in order to understand the meaning of "retrenchment" and that is the law made by Parliament subsequent to State enactment and naturally falls within the proviso to Article 254(2). If that is so, the Central Industrial Disputes Act. Therefore, we would have taken that view but for the special provisions in the Central Act which we will advert to hereinafter.
7. Section 1(2) of the Central Act provides that the Act 'extends to the whole of India' and this sub-section was substituted for the original sub- section (2) by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (36 of 1956) with effect from 29-8- 1956. Under that Act, Section 31 (which came into force from 7-10- 1956) has been introduced which reads as follows:
'31.Act not to override State laws.- (1) If, immediately before the commencement of this Act, there is in force in any State any Page 39 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT Provincial Act or State Act relating to the settlement or adjudication of disputes, the operation of such an Act in that State in relation to matters covered by that Act shall not be affected by the Industrial Disputes Act, 1947 as amended by this Act.....'.
Sub- section (1) of the said section makes it clear that the operation of the State Act will not be affected by the Central Act"
17. In the case of Umrala Gram Panchayat (supra), the Apex Court has observed in paras-13, 14 and 15 as under:-
13. Further, Section 25-T of the ID Act clearly states that unfair labour practice should not be encouraged and the same should be discontinued. In the present case, the principle "equal work, equal pay" has been violated by the appellant Panchayat as they have been treating the concerned workmen unfairly and therefore, the demand raised by the respondent-Union needs to be accepted.
The High Court has thus, rightly not interfered with the Award of the Labour Court as the same is legal and supported with cogent and valid reasons.
14. Therefore, the learned single Judge as well as the Division Bench of the High Court have exercised the power under Articles 226 and 227 of the Constitution of India and have rightly held that the Labour Court has jurisdiction to decide the industrial dispute that has been referred to it by the Dy. Commissioner of Labour, Ahmedabad. Reliance has been placed upon the decision of this Court in the case of Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556, wherein it has Page 40 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT been held thus: (SCC p. 573, para 32) "32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing 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 employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer."
15. Further, reliance has been placed upon the decision of this Court in the case of Durgapur Casual Workers Union v. Food Corporation of India, (2015) 5 SCC 786 wherein it has been held thus: (SCC p. 798, para-21) "21. Almost similar issue relating to unfair trade practice by employer and the effect of decision of State of Karnataka v. Umadevi, (2006) 4 SCC 1 in the grant of relief was considered by this Court in Ajaypal Singh v. Haryana Warehousing Corporation, (2015) 6 SCC 321 decided on 9-7-2014. In the said case, this Court observed and held as follows:
(Ajaypal Singh case, (2015) 6 SCC 321, SCC p. 329, paras 17-18)
17. .....The provisions of Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi (3) case, (2006) 4 SCC
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18..... We have noticed that Industrial Disputers Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees."
18. Having considered the submissions made on behalf of both the sides as well as materials placed on record and the law laid down by the Apex Court in the aforesaid decisions, it transpires that the State Government has referred various demand of the workmen for adjudication to the concerned Labour Court. The said demand has been referred to in the annexures with the order dated 20.11.1996 which includes addition of pay, Dearness Allowance, Medical Allowance, House Rent Allowance, Travelling Allowace, Overtime Allowance, Cycle Allowance, Education Allowance for children of the workmen, various types of leaves which are available to the Government servant on the basis of the resolutions of the Government. Thus, there is no question of exceeding jurisdiction by the Page 42 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT concerned Labour Court as the various questions have been referred to by the State Government itself for adjudication.
19. On perusal of the statement of demand put forward by the workmen, it clearly appears that they have submitted that they have being paid daily wages, whereas, the other workmen who were working with them have been paid regular pay scale and they have also been granted pensionary benefits. It is stated by the workmen therein that in view of the resolution dated 17.10.1988, they are entitled to get all the benefits available to the regular employee and this benefit has not been extended to them. It is contended therein that the work is still available and junior to them have been extended benefits of permanency and persons who have been employed, after the workmen have been made permanent, whereas, the claim of them has not been acceded to by the employer.Page 43 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022
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20. The written statement filed on behalf of the employer is regarding the issue that it does not fall within the meaning of industry as enumerated in Section 2(j) of the ID Act. The employer also raised its defence that the institution is being run by the grant issued by the Government. It also stated that there is recruitment rules of the institution and the workmen were not appointed by due process of recruitment. It has also raised the contention that the State Government has not followed the provisions of the law and without referring the matter to the Conciliation Officer has erred in referring the reference to the Labour Court which is not within the jurisdiction of the State Government.
While denying entitlement of the workmen to get regularization, it has submitted that the workmen are daily wagers and they were being called as and when the work is available and the expenditures of their remuneration being debited to the contingency Page 44 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT fund. It has also stated that the post in question is not permanent in nature and the present workmen have not been selected by the Selection Committee. It is also stated that the Government Resolution dated 17.10.1988 based on Shri Dolatbhai Parmar Committee is not liable to be extended to the University as per the Government Resolution dated 30.03.1995. It is also stated that the daily wagers who have completed 10 years and worked for 240 days in every year are being given fixed pay as per the government order w.e.f. 01.01.2001. According to it, the present - workmen have not completed this criteria and, therefore, they are not entitled to any sort of relief whatsoever.
21. On behalf of the workmen, Manubhai Damor has been examined, whereas, one Bachubhai Ramsinhbhai Parmar has been examined on behalf of the present petitioner. The witness Bachubhai Parmar has not remained present for cross- examination, though the sufficient opportunity was Page 45 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT granted to the University. Therefore, as observed by the Labour Court, his examination-in-chief has been treated as no evidence on record on behalf of the University. Thus, for proving their claim, the workmen have examined one of them, whereas, no oral evidence has been produced on behalf of the University to substantiate its pleadings in the written statement. Thus, the pleadings of the University is not proved by the leading evidence. Against this, the workman has substantiated their pleadings by examination of one of them. During his cross-examination, the stand taken by the workmen that other daily wagers have been made permanent is not controverted. It also reveals from the evidence that the averments made in the chief- examination that the other workmen who were working with them have been made permanent is not controverted. The names of such workmen have been narrated in his chief-examination making statement that Babubhai Chuniyabhai Damor, Virsing Somji Bhabhor and Titabhai Siskabhai Page 46 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT Sangada have been made permanent and they are doing the same work which the claimants are doing. He has stated that his service is also regularized and he has not been paid anything more than the minimum wages. From his cross-examination, it appears that during the day, he has to work as a watchman. He has, of course, admitted that there is no regular payment as they were working as and when the work is available. He has denied the suggestion of the University that he has not worked in preceding years. He has admitted that Kalubhai Lujiyabhai Bhuriya has been made permanent due to the decision of the Apex Court. He has admitted that Bharata Bhuriya, Suhiyabhai Sangada, Shakarabhai Chuniyabhai and Surji Tala Damor etc. have died. He has admitted hat he has joined the service in the year 1971. But he has denied the suggestion of the University that he did not work 1971 till 1983.
22. Against the aforesaid oral evidence of the Page 47 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT workman, it is found that the University has examined one Lasubhai Ramsinh Parmar wherein, in his chief-examination, he has admitted that due to the decision of the Supreme Court, out of the petitioner's workmen, three workmen have been made permanent. But, it appears that his averment is that the present workmen have not completed 240 days in 10 years and they are not made permanent, has not been supported. Rather, it appears that when cross-examination of this witness was posted, he did not remain present and, therefore, the Labour Court has passed the order below Exhibit 39 to the effect that if the witness of the University did not remain present for his cross- examination, then, the same will not be considered and the matter will be proceeded ex-parte. It also appears from the award that though many adjournments were granted to the University to produce the witness for cross-examination, however, the University has failed to got him present before the Labour Court and, therefore, the Page 48 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT Labour Court has passed an order deleting the averment made in the chief-examination of the witness of the University. Thus, this is a case wherein there is oral evidence on behalf of the claimant - workmen which substantiates their claims. It also appears that there is no oral evidence produced by the University before the Labour Court to substantiate its stand which is taken in the written statement and, therefore, the version put up in the written statement cannot be considered and the Labour Court has not committed any error of facts in discarding the averments made in the written statement as well as in the chief examination of the witness of the present petitioner i.e. employer.
23. It also appears from the record that the workmen have filed an application for direction to the University to place on record, the original muster roll as well as pay register, which came to be granted. But no such documentary evidence has Page 49 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT been produced by the University. In that view of the matter, non-production of the documents by the University, adverse interference needs to be drawn.
24. It is pertinent to note that the other workmen, who were working with the petitioner, have been granted permanency. This fact has not been denied by the University. When the University has not led any evidence, though sufficient opportunities have been granted to them, now, the University cannot take a stand that the Labour Court has not considered the written statement. It is well settled principles of law that every party has to prove his pleadings by leading the evidence which may include oral as well as documentary evidence. Mere filing of the pleadings cannot be considered as proof of the averments made in the pleadings. Since, in this case, there is failure on the part of the University to lead their evidence to substantiate their averments made in the written statement, the view expressed by the Labour Court accepting the Page 50 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT version of the claimant - workman which has been supported by the oral evidence, no fault can be found in the reasoning given by the Labour Court.
25. It is pertinent to note that when similarly situated workmen have been grated permanency by the University, non-granting of the same to the present workmen is nothing but an unfair labour practice.
26. It is pertinent to note that some workmen have died during the pendency of the reference, the retirement benefits thereof can be extended to the heirs of the deceased workman. It appears from the award that the Labour Court has considered every aspects of the case in its true perspective and has not committed any serious error of facts and law in granting the prayer to the workmen. Since, the present petition is under Articles 226 and 227 of the Constitution of India, merely because the order has been challenged under Article 226 of the Page 51 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022 C/SCA/1629/2010 JUDGMENT Constitution of India is not a sufficient reason to interfere with the finding of facts of the Labour Court. At this juncture, it is pertinent to note that really this petition is under Article 227 of the Constitution of India as the award passed by the Labour Court has been challenged. It is well settled principle of law that under Article 227 of the Constitution, the exercise by the High Court is very much circumscribed. It is also settled that unless and until, it is shown that the order / award passed by the Labour Court is erroneous on facts and law, the High Court cannot interfere such findings of fact merely on the ground that the second view is possible. Now, admittedly, in this case, the finding of facts recorded by the Labour Court is based upon the oral evidence of the workmen as well as on the grounds of non-productions of documentary evidence by employer. This Court is of the considered view that the Labour Court has not committed any serious error of facts muchless of law in passing the impugned award.
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27. In view of the aforesaid discussions, the present petition deserves to be dismissed and accordingly, it is dismissed. The impugned award dated 17.07.2009 passed by the Labour Court, Dahod in Reference (LCD) (Demand) No.1 of 2008 (Old Reference (LCG) (Demand) No.8 of 1996) is hereby confirmed. Rule is discharged. Interim relief if any granted earlier stands vacated forthwith. No order as to costs.
Sd/-
(DR. A. P. THAKER, J) V.R. PANCHAL Page 53 of 53 Downloaded on : Thu Jan 13 13:57:42 IST 2022