Gujarat High Court
Orient Cerwool Ltd. vs Surendranagar Jilla Shramjivi Sangh on 7 July, 2000
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Learned advocate Mr. D.M. Thakkar has appeared for the petitioner. Learned advocate Ms. Shah has appeared for the respondent Sangh.
2. The doctrine of absolute freedom of contract has, thus, to yield to the higher claims for social justice. The right to dismiss an employee is also controlled subject to well recognized limits in order to guarantee security of tenure to industrial employees.
3. It is too late in the day now to stress the absolute freedom of an employer to impose any condition which he likes on labour. It is always open to industrial adjudication to consider the conditions of employment of labour and to vary them if it is found necessary, unless the employer can justify an extraordinary condition. It is important to remember that just as the employer's right to exercise his option in terms of the contract has to be recognized so is the employees' right expect security of tenure to be taken into account.
4. The concept of social justice is not narrow, or one sided or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal of socio economic quality and its aim is to assist the removal of socio economic disparities and inequalities; nevertheless in dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions but adopts a realistic and pragmatic approach. It, therefore, endeavour to remove the competing claims of employers and employees by finding a solution which is just and fair to both parties with the Object of establishing harmony between capital and labour, and good relationship.
5. In this petition, the petitioner has challenged the judgment and award passed by the labour court, Surendranagar dated 2nd July, 1994 in Reference No. 7 of 1990 whereby 20 workmen were ordered to be made permanent with effect from 1st April, 1990.
6. This Court, while admitting this petition on 26th July, 1995, has refused interim relief. However, in view of the request made by the learned advocate for the petitioner, reasons for refusing the interim relief were not recorded by this court.
7. In this petition, challenge made by the petitioner to the award passed by the labour court, Surendranagar in Reference No. 7 of 1990 dated 2nd July, 1994 is required to be examined by this court. The other aspects are not required to be examined by this court.
8. The learned advocate Mr. Thakkar appearing for the petitioner has pointed out that the labour court has erred in passing the impugned award; the impugned award is contrary to the record and settled principles of law and that the labour court has no power or authority to grant the reliefs which has been granted by the impugned award; the findings given by the labour court are perverse and baseless and the same are not based upon any legal evidence and, therefore, the award impugned herein is required to be set aside since there is error apparent on the face of record.
9. On the other hand, learned advocate Ms. Shah appearing for the respondent Sangh has submitted that the labour court has applied the mind and has passed the impugned award after considered the facts and circumstances of the case and the evidence on record. According to her, the impugned award is just and proper and require no interference of this court in exercise of the powers under Article 226 and/or 227 of the Constitution of India. She has relied upon paragraph 10 page 32 (internal page 4 of the award). According to her, details of each workmen has been given in the said paragraph and as per the said paragraph, persons junior to the concerned workmen have been made permanent and, therefore, the labour court has granted permanency benefit to the concerned workmen with effect from 1st April, 1990 and, therefore, the labour court has committed no error either in law or in facts while passing the impugned award. She has relied upon 22 GLR page 700, in case of F.M. Kolia versus G.S. Barot and has submitted that the effect of the award has rightly been given from the date of the reference and the labour court is having power and jurisdiction to decide and adjudicate the industrial dispute. She has also placed reliance upon the decision of this court in case of Kalol Municipality and another versus Shantaben Kalidas and Others reported in 1993 (2) GLR 997 and has submitted that in view of the principles laid down by this court in aforesaid decision, this petition is required to be dismissed with costs.
10. I have considered the submissions made by the learned advocates for the respective parties. I have also perused the order passed by the labour court. I have also considered the industrial dispute raised by the union as to whether the workmen working in the company who have completed 240 days from the date of their joining should be made permanent or not and whether they should be paid the amount of difference or not if they have been paid less amount of salary after completion of 240 days' work?
11. Before the labour court, statement of claim has been filed by the union and the written statement has been filed by the company and thereafter, the union has asked for production of certain documents from the petitioner company vide application Exh. 8. The documents sought to be produced by the union from the petitioner company are six years' registers, pay register, date of joining of each of the workmen, seniority list and holidays in the year and the list of workmen who have been made permanent during the last three years. In response to the said demand of the union vide Exh. 8, the petitioner company had produced certain documents vide list Exh. 9 Exh. 9/1 and 9/2 are the seniority list of temporary and permanent workmen for the year 1985 to 1989. Thereafter, the respondent has produced list vide Exh. 10 pointing out working days prior to the reference and subsequent to the reference and the workmen those who are made permanent excepting the member of the Union. List of contractor's workers and the wage slip has also been produced and according to the union, in all, 20 workmen are entitled to the benefits of permanency as per Exh. 11. Exh. 21 is the list of temporary workmen who have been made permanent by the petitioner company. Exh. 22 is the list of temporary workmen. On behalf of the union, one Deepaksinh Gambhirsinh Rana has deposed before the labour court at Exh. 12. Thereafter, another witness Bahadursinh Rana has been examined on behalf of the union before the labour court vide Exh. 24. On behalf of the petitioner company, its company secretary Kalyankumar Bhupeshchandra Chaudhary has been examined vide Exh. 20. According to the said witness, in all 79 workmen have been made permanent. According to him, in the year 1985, there were 60 permanent workmen. Thereafter, the respondent union had submitted arguments and petitioner has submitted written arguments vide Exh. 30 and, thereafter, the labour court has examined the issue on the basis of the evidence brought before it. Thereafter, the labour court has examined the issue and has considered the working days of the respective workmen in comparision to the employees junior to the concerned workmen. After such consideration and comparision, the labour court has granted benefit to 20 workmen with a direction to make them permanent with effect from 1st April, 1990.
12. According to my view, the labour court has considered the documents on record in detail and has given proper thought while passing the impugned order. I am therefore of the opinion that the findings of the labour court are based on the facts which are brought on record and are, thus, findings of facts. As per the principles laid down by the division bench of this court in case of Kalol Municipality (supra), the labour court has power to grant such relief if the industrial dispute to that effect has been raised by the union before it.
13. Therefore, in view of the principles laid down by this court in case of Kalol Municipality (supra), the labour court has power to adjudicate the dispute if it is referred to it for adjudication by the appropriate Government under section 10(1) of the ID Act and the labour court can vary the contract or can change the contract and for that, the labour court is not bound by any rules or regulations or service conditions of the company or corporation, as the case may be. The labour court is also having power even to create the service condition for the workmen. Said question has been examined by the Andhra Pradesh High Court in case of Indian Bank Association versus Workmen, reported in 1998 (1) LLJ page 233. On page 233 of the report, it has been held as under:
"Another ground of challenge of the impugned award was that the respondents were, in the guise of a reference, claiming modification of the terms of the agreements. This was rejected as misconceived. The Court said it was well known as a part of the jurisprudence applicable to industrial law that Industrial Tribunals are vested with the jurisdiction of also modifying the contract of service and in the process may entitle the workmen to better rights and facilities. "
14. From the affidavit filed by one K. K. Chaudhary, Company Secretary of the petitioner Company, learned advocate Mr. Thakkar has pointed out that six workmen out of 20 have been made permanent. Names of those six workmen are as under:
Sr. No. Name of Workmen Date of regularization
1. Govind Keshav 1.6.94.
2. Jaymal Parmar 1.4.93
3. Bhagwanbhai "
4. Purshottam Lakhtaria 1.6.94
5. Narayan Govind. "
6. Chaturbhai Valand. "
15. Learned advocate Mr. Thakkar has submitted that the rest of the workmen concerned have not reported for duty though they were intimated by the petitioner company. He has, therefore, submitted that thus, the company is ready and willing to call all these workmen but they are not reporting for duty. On the other hand, learned advocate Ms. Shah appearing for the respondent workmen has disputed this subsequent development which has been put on record by way of affidavit made by the Company Secretary of the petitioner company. She has submitted that excepting those six workmen whose services have been made permanent, services of rest of the workmen have been terminated for which individual references are pending before the labour court and number of such referemce has been given by the respondent Union in the statement which has been produced on record alongwith the rejoinder. I have considered the averments made by the deponent in the affidavit filed on behalf of the petitioner company and I have also considered the rejoinder filed by the respondent union and have also considered that the separate individual references filed by the workmen individually are pending before the labour court. I am, therefore, of the view that this court should not express any opinion on merits as regards this subsequent development and the disputes which are pending before the labour court in respect of such subsequent development. Same shall be decided by the labour court in accordance with law without being influenced by the observations made in this judgment. I am of the view that if, ultimately, if the individual references filed by the workmen before the labour court are allowed, then, in such circumstances, the petitioner company is duty bound to extent the very same and similar benefit as per the award passed by the labour court in Reference No. 7 of 1990 dated 2nd July, 1994.
16. I have also kept in view the law in respect of regularization of services of the casual daily rated or ad hoc employees, considered in detail by the apex court in case of Chief Conservator of Forests and Another versus Jagannath Maruti Konthare reported in AIR 1996 SC 2898. Relevant observations made in paragraph 22 and 23 on page 2902 are as under:
"22. We have given our due thought to aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record, we are satisfied that 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees in as much as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Patwari Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment pollution care work of Ahmednagar, whose need is on increase because of increase in pollution. Permanency is thus writ large on the face of both the types of work. If even in such projects persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. We, therefore, answer the second question also against the appellant.
23. The final point which needs our determination is regarding the reliefs granted by the Industrial Court which is to make the workmen in both the matters, permanent with all benefits of a permanent worker which would include payment of wages etc. at the rate meant for a permanent worker. "
17. In paragraph 28 and 29 of the said judgment on page 2903, it has been held as under :
"28. In so far as the financial strain on State exchequer is concerned, which submission is sought to be buttressed by Shri Dholakia by stating that in the Forests Department itself, the casual employees are about 1.4 lacs and if all of them were to be regularized and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighborhood of Rs.300 crores a very high figure in deed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument relating to financial burden is one of despair or in terrorem. We have neither been impressed by the first nor frightened by the second in as much as we do not intend that the view to be taken by us in these applies should apply, proprio vigore to all casual labourers of the Forests Department or any other Department of the Government.
29. We wish to say further that if Shri Bhandare's submission is taken to its logical end, the justification for paying even minimum wages could wither away, leaving any employer, not to speak of model employer like the State, to exploit unemployed persons. To be fair to Shri Bhandare, it may however be stated that the learned counsel did not extend his submission this far but we find it difficult to limit the submission of Shri Bhandare to payment of, say fair wages, as distinguished from minimum wages. We have said so because if pay scale has been provided for permanent workmen that has been done by the State Government keeping in view its legal obligations and must be one which had been recommended by the State Pay Commission and accepted by the Government. We cannot deny this relief of permanency to the respondents workmen only because in that case they would be required to be paid wages meant for permanent workers. This right flows automatically from the relief of regularisation to which no objection can reasonably be taken, as already pointed out. We would, however, observe that the relief made available to the respondents is not one which would be available ipso facto to all the casual employees either of the Forests Department or any other Department of the State. Claim of casual employees for permanency or for higher pay shall have to be decided on the merits of their own cases. "
18. I have also taken into consideration the law laid down by the Division Bench of the Bombay High Court in case of ANZ Grindlays Bank Ltd. versus ANZ Grindlays Bank Employees' Union reported in 1998 (80) FLR 175. In the said decision, such similar question has been considered by the Division Bench of the Bombay High Court. I have also considered the decision of the Alahabad High Court in case of Bhupendra Shankar versus State of Uttar Pradesh and another reported in 1998 Lab IC 1022 and that of Vajid Ali versus Superintending Engineer and others reported in 1997 (77) FLR 805. I have also considered the decision of the Karnataka High Court in case of Management of Tungbhadra Steel Products Ltd. versus AB Patil and another reported in 2000 (84) FLR 565.
19. The question was also considered by this court in case of GSRTC versus Workman reported in 2000 LLR 182.
20. In view of these facts, as per the affidavit filed by the deponent on behalf of the petitioner company, permanency benefits have been given to six workmen with effect from 1.4.93 and 1.6.94. I am, however, of the opinion that it is not correct implementation of the award passed by the labour court in so far as the said six workmen are concerned. I am, therefore, directing the petitioner company to implement the award passed by the labour court in its letter and spirit in respect of the said six workmen whose services have been regularized and who have been given permanency benefit by the petitioner company as per the affidavit filed by the company secretary of the petitioner company. I am , therefore, directing the petitioner company to pay to each of the workmen difference of salary with effect from 1st April, 1990 till the date they are made permanent within two months from the date of receipt of certified copy of this order.
21. Therefore, in view of the aforesaid facts and clear position of law, in the facts and circumstances of the case, it cannot be said that the labour court has committed any jurisdictional error while granting reliefs in favour of the concerned workman. There is no error which is apparent on the face of the record. The findings of the labour court are based on the evidence adduced and produced before it and are findings of facts. Therefore, while exercising the powers under Article 226 and/or 227 of the Constitution of India, this court cannot reappreciate such findings of fact and cannot act as a Court of Appeal. Further, the learned advocate appearing for the petitioner has not been able to point out any jurisdictional error and/or infirmity in the order impugned before this court. This Court, therefore, cannot interfere with such findings of fact and cannot disturb the same and therefore, this petition is required to be dismissed. No other contentions has been raised by the either side.
22. In view of the aforesaid discussion, this petition is dismissed. Rule is discharged. There shall be no order as to costs.