Gujarat High Court
Shihor Municipality Through Chief ... vs Gujarat Mazdoor Sangh R P Narigara on 30 April, 2019
Author: Biren Vaishnav
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1018/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1018 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 1553 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1018 of 2019
==========================================================
SHIHOR MUNICIPALITY THROUGH CHIEF OFFICER
Versus
GUJARAT MAZDOOR SANGH R P NARIGARA
==========================================================
Appearance:
MR YASH N NANAVATY(5626) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
==========================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 30/04/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV) 1 This appeal arises out of an oral order dated 21.06.2018 passed by the learned Single Judge. By the order under challenge, the learned Single Judge dismissed the petition being Special Civil Application No.1553 of 2016 filed by the Shihor Municipality confirming the awards dated 30.03.2015 passed by the Industrial Tribunal in Reference (IT) Nos. 32 of 2008. By the award under challenge, the Tribunal had directed the appellant Municipality to regularize the services of the workman with effect from 01.02.2008.
Page 1 of 9 Downloaded on : Sun Jun 30 15:45:39 IST 2019 C/LPA/1018/2019 ORDERHowever, the Tribunal did not award arrears but directed that the benefits from 01.02.2008 till the date of the award i.e. 30.03.2015 be considered notional.
2 For the purpose of this appeal, facts of Special Civil Application No. 1553 of 2016 shall be considered.
2.1 It was the case of the respondent - original workman who had approached the Industrial Tribunal, Bhavnagar that he had been working as a Keyman with the Municipality with effect from 10.04.1992. It was his assertion in the statement of claim that he had worked for 240 days continuously; that he had completed 17 years of service and in spite of this his services were not being regularized. At Ex. 13, the workman - respondent herein filed an affidavit in lieu of his oral deposition. It was his case that he had been working continuously for a period of 240 days and that there was a sanctioned set up but the Municipality was not regularizing his services.
2.2 The Municipality appeared before the Tribunal and filed a reply at Exh. 18. A standard denial was made that the Municipality did not Page 2 of 9 Downloaded on : Sun Jun 30 15:45:39 IST 2019 C/LPA/1018/2019 ORDER come within the purview of the Industrial Disputes Act, 1947 as it was not an 'industry' under the Act. That the workman had not completed 240 days continuously in a calendar year preceding his termination. That he did not befit regularization as there was no set up on the Municipality's sanctioned strength and that the Municipality was not financially sound to regularize the services of the workman.
2.3 After such reply was filed, the Municipality declared by way of Exh. 19 that it did not want to produce any further evidence. The Municipality and the workman's lawyer was heard and the Tribunal on appreciation of evidence found that the respondent workman was working for the last 11 years continuously for a period of 240 days in a calendar year without any break. The Tribunal arrived at such a conclusion on the basis of salary slips that the workman produced which showed that for every month for the past 11 years, the respondent workman had worked for 26 days in a month. A specific finding of fact therefore was arrived at that the respondent workman had completed 240 days of service continuously in the past 11 years.
2.4 No evidence to the contrary was led by the Municipality to suggest otherwise. The Page 3 of 9 Downloaded on : Sun Jun 30 15:45:39 IST 2019 C/LPA/1018/2019 ORDER Tribunal categorically observed that no evidence was produced by the Municipality except for orally arguing that there was no sanctioned set up and therefore the respondent workman was not entitled for being regularized in service. The Tribunal after extensively considering the judgements of the Apex Court in the case of Maharashtra State Road Transport Corporation and Others versus Casteribe Rajya Parivahan Karmachari Sangathan [2009 LLJ 286], Secretary, State Of Karnataka versus Umadevi and Ors [2006 SCLJ 1937] and various other judgements categorically observed that the Municipality had committed unfair labour practice and therefore directed that the respondent workman be regularized in service with effect from 01.02.2008. However for the period from 01.02.2008 till the date of the award, only notional benefits be given.
2.5 Based on this award of the Tribunal, which was under challenge before the learned Single Judge, the learned Single Judge considered the findings of fact arrived at by the Tribunal and observed that there was no error in the Tribunal's findings. The learned Single Judge after considering the arguments of the respective counsels for the parties set out the following Page 4 of 9 Downloaded on : Sun Jun 30 15:45:39 IST 2019 C/LPA/1018/2019 ORDER undisputed facts:
"11. I have considered rival submission and material available on record. I have also considered impugned awards in the said three Reference Cases.
12. At the outset it is relevant to mention that the relevant facts are not in dispute. It is not in dispute that claimant Mr. Padhiyar is employed by the Municipality since April, 1992 as Keyman and that the claimant Mr. Manubhai Vashrambhai is employed as Baildar since July, 1997 and that the claimant Mr. Nanubhai Raghubhai is serving with the Municipality since February, 1999 as Keyman.
13. From the material on record it has also emerged that the claimants successfully established before the learned Tribunal that they have been in service with the Municipality continuously since 1992, 1997 and 1999 respectively and that they have worked with Municipality regularly and continuously and in each year they have worked for more than 240 days.Page 5 of 9 Downloaded on : Sun Jun 30 15:45:39 IST 2019 C/LPA/1018/2019 ORDER
14. The petitioner has failed to show any material from record of this petition that the said facts and/or findings recorded by the learned Tribunal are incorrect or perverse.
15. It is not in dispute that by now the petitioners have rendered service for more than 20 years and at the relevant time i.e. when they raised demand they have continuously served with Municipality for almost 10 years.
16. It is also not in dispute that their service continued on account of continuous need of their service and not under protection of Court's Order.
17. It is also not in dispute that the work and duties performed by the claimants are of permanent and regular nature and the Municipality still needs their service and duties performed by the claimants and that is the reason they have been continued in service by the Municipality, for these many years, without protection of Court's order/direction. "Page 6 of 9 Downloaded on : Sun Jun 30 15:45:39 IST 2019 C/LPA/1018/2019 ORDER
2.6 Based on these undisputed finding of facts, the learned Single Judge confirmed the award passed by the Tribunal which is under challenge in this appeal.
3. The learned advocate for the appellant vehemently argued that the learned Single Judge committed an error in confirming the award of the Tribunal inasmuch as the learned Single Judge failed to appreciate that the respondent was working as daily wager who had not completed 240 days of service continuously in a calendar year preceding termination and therefore did not deserve regularization of service. It was further argued that the Municipality had no financial capacity to absorb the respondent. No other submissions were made on behalf of learned advocate for the appellant.
4 We have considered the submissions made by learned advocate for the appellant - Municipality and perused the papers of the petition. We have also gone through the award of the Tribunal as well as the impugned oral order passed by the learned Single Judge. Pursuant to such exercise, we find that the learned Single Judge has considered the decisions of the Hon'ble Supreme Court rendered in the cases of Casteribe Rajya Parivahan Karmachari Sangathan (supra), Page 7 of 9 Downloaded on : Sun Jun 30 15:45:39 IST 2019 C/LPA/1018/2019 ORDER State of Karnataka vs. M.L. Kesari [AIR 2010 the Hon'ble Supreme Court 2587], The Workmen Bhurkunda Colliery of M/s Central Coalfields Ltd. vs. The Management of Bhurkunda Colliery of M/s. Central Coal [2006 I CLR 635 : JT 2006(3) SC 48], Sudarshan Rajput vs. Uttar Pradesh State Road Transport Corporation [(2015)2 SCC 317]. The learned Single Judge based on these decisions observed that the Tribunal did not commit any error of law or fact in view of the fact that it was clearly established that the respondent workman had been working in the Municipality and the appellant had failed to show any material from the record that the findings recorded by the Tribunal are incorrect or perverse.
5 We are aware of the fact that the appellant is assailing concurrent findings of fact. In view of a clear and a categorical established finding of fact arrived at by the Tribunal that the respondent workman had completed 240 days in a calendar year continuously and that he had worked for over 11 years of service, once the learned Single Judge observed that the appellant had failed to establish that the findings recorded by the Tribunal are incorrect or perverse or that the Tribunal had committed any error or irregularity Page 8 of 9 Downloaded on : Sun Jun 30 15:45:39 IST 2019 C/LPA/1018/2019 ORDER in exercise of its jurisdiction, this court in an intra court appeal would be loath to disturb such findings arrived at by the Tribunal and so confirmed by the learned Single Judge.
6 Accordingly, we find no error so as to disturb the findings of the learned Single Judge. This appeal is therefore dismissed. Connected application for stay is also disposed of accordingly.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) P. SUBRAHMANYAM Page 9 of 9 Downloaded on : Sun Jun 30 15:45:39 IST 2019