Deputy Executive Engineer vs Pravinkumar Nanalal Modi on 17 July, 2018

[Cites 15, Cited by 0]

Gujarat High Court

Deputy Executive Engineer vs Pravinkumar Nanalal Modi on 17 July, 2018

Bench: K.M.Thaker

        C/SCA/15382/2016                                 ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


          R/SPECIAL CIVIL APPLICATION NO. 15382 of 2016

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                      DEPUTY EXECUTIVE ENGINEER
                                Versus
                      PRAVINKUMAR NANALAL MODI
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Appearance:
MR DEEPAK G ALORIA(6580) for the PETITIONER(s) No. 1,2
MR PH PATHAK(665) for the RESPONDENT(s) No. 1,2
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 CORAM: HONOURABLE MR.JUSTICE K.M.THAKER


                           Date : 17/07/2018
                             ORAL ORDER

1. Heard Mr. Aloria, learned advocate for petitioner and Ms. Rina Kamani, learned advocate for Mr. Pathak, learned advocate for the respondent.

2. In present petition, the petitioner board has challenged the award dated 30.9.2015 passed by learned Labour Court at Mehsana in Reference (LCMD) No. 2 of 2008 (old no.7/1997) whereby the learned Labour Court directed present petitioner to regularise service of workman Mr. P.N.Modi 1 C/SCA/15382/2016 ORDER with effect from 1.5.1999 in the category of/ on the post of Helper and to also regularise service of workman Mr. B.K.Patel with effect from 1.11.1990 in the category of/ on the post of Electrician and to grant consequential benefits of regular and permanent workman with effect from 1.1.2012 with further clarification that the period from 1.5.1999 to 1.12.2012 shall be considered notional.

3. So far as factual backdrop is concerned it has emerged from the record and rival submissions that 2 workmen of present petitioner board raised industrial dispute that their service should be regularised and they should be treated as regular and permanent employee and consequential benefit should be granted.

3.1 The appropriate government referred the said demand for adjudication to learned Labour Court. 3.2 The workmen filed statement of claim before 2 C/SCA/15382/2016 ORDER learned Labour Court with the allegation that one of the 2 workmen i.e. Mr. P.N.Modi claimed that considering the fact that he has been working regularly and continuously with the board as Helper since April, 1989 his service should be regularised in the category of/ on the post of Helper. The 2nd workman i.e. Mr. B.K.Patel demanded that his service should be regularised and he should be treated regular and permanent workman in the category of/ on the post of Electrician as he has been working in the said category since November, 1990. The claimants alleged that though they rendered regular and continuous service for such long period they are not treated as permanent employee. The claimants alleged that they have been serving with the opponent board as Helper and Electrician since 1989 and 1990 respectively and that they have rendered service regularly and continuously and during entire period they have worked for more than 240 days in each year and despite vacancy their services have not been regularized. They 3 C/SCA/15382/2016 ORDER also alleged that duties and functions which they perform are of permanent and perennial nature and though service of other similarly placed workmen have been regularized, they are victimized and similar benefits are not granted.

3.3 The opponent opposed the reference. In its written statement the opponent board generally denied the allegations but did not dispute the assertion that Mr. Modi has been working in the category of/ on the post of Helper and Mr. Patel has been working in the category of/ on the post of Electrician. The board however disputed that the claimants had not worked for 240 days in every year. The board claimed that the said claimants have been working on daily wage basis and that their demand for regularization and status of permanent workman is not justified. 3.4 Upon conclusion of pleadings by both sides, learned Labour Court received oral and documentary evidence and heard rival submissions. 4 C/SCA/15382/2016 ORDER After considering material available on record, learned Labour Court passed award with above mentioned directions.

4. Mr. Aloria, learned advocate for the petitioner board vehemently assailed the award and submitted that the workmen did not place any material on record to prove that they have worked for more than 240 days in any year. He submitted that the claimants were engaged and they were working on daily wage basis and that therefore their demand for regularization and status of permanent workman was not justified and should not have been granted. Learned advocate for the petitioner board also submitted that the claimants were not engaged after following procedure for selection and they were engaged irregularly and that therefore their claim of regularization and status of permanent workman is not justified and should not be granted. Learned advocate for the petitioner board submitted that the learned Labour Court failed to appreciate the 5 C/SCA/15382/2016 ORDER said submissions and committed error in drawing adverse inference and in assuming that the workmen had worked for more than 240 days. According to learned advocate for the petitioner the award is based on unjustified and unwarranted inferences and conclusions/ finding are erroneous. The award therefore, should be set aside.

4.1 Learned advocate for the respondent workmen opposed the said submission. She submitted that the award passed by learned Labour Court is neither erroneous nor arbitrary or unjustified. She submitted that the employer i.e. the petitioner board did not provide any document during period of service. The employer did not provide Identity card, or Attendance Card or pay receipt. She submitted that salary was paid by obtaining signature in the pay roll (register) and attendance was also marked in attendance register however any documents were not supplied to the workmen. She said that the claimants, 6 C/SCA/15382/2016 ORDER therefore, did not have any document to place on record to establish their attendance and therefore claimants had called upon the employer to place on record the attendance register and pay register for relevant period however the petitioner board failed to place such material on record and that therefore learned Labour Court has drawn adverse inference against the employer and assumed that they have worked for 240 days. She submitted that the demand being just and reasonable the Court granted the relief and that the award does not suffer from any infirmity.

5. I have considered rival submissions and material available on record and the impugned award.

6. At the outset, it is relevant and necessary to mention that the board did not dispute the assertion that one of the claimants ( Mr. Modi) was working on the post of Helper and other 7 C/SCA/15382/2016 ORDER claimant (Mr. Patel) was working on the post of Electrician.

6.1 From the award it has also emerged that when the proceedings were pending before the learned Labour Court there were vacancies on the said post of Helper and Electrician however the service of present respondents were not regularized against such vacancies. 6.2 From the award it also comes out that the petitioner board failed to place attendance register or pay register on record.

7. In this context, it would be appropriate to take into account the observation by Hon'ble Apex Court in case of Shree Ram Industries and a profitable reference can also be had to the observation by Hon'ble Apex Court in case of R.M.Yellati v. Asstt. Executive Engineer[(2006) 1 SCC 106]. In the said decisions Hon'ble Apex Court has explained that when the employer does 8 C/SCA/15382/2016 ORDER not issue pay receipt, attendance card, identity card, etc and does not place on record the pay and wage Registers for the relevant period and the workman asserts, in his deposition, that he has worked for 240 days in a year then the obligation to prove that the workmen did not work for 240 days in preceding 12 months shifts to the employer.

8. When the facts of present case and position of record in present case is observed in light of above quoted observations, it becomes clear that the board, undisputedly, did not provide any document or material to the workmen, more particularly the documents containing record of their attendance and/ or salary.

9. Undisputedly, the petitioner did not issue appointment orders.

10. In this view of the matter, workmen had no material which they could place on record before 9 C/SCA/15382/2016 ORDER the learned Labour Court to establish their attendance and/ or total length of their service. 10.1 In this context it is also relevant to note that despite workmen's written request the board did not place on record relevant documents (which would be in Board's possession custody). Therefore the Court's decision to draw adverse inference/ to accept claimants' assertion cannot be faulted. Fortunately for the workmen their claim with regard to the date of their initial appointment i.e. 12.4.1989 in case of Mr. Modi and 1.11.1990 in case of Mr. Patel, was not disputed by the present petitioner board. 10.2 It is also relevant to note that it was not the case of the board before the learned Labour Court that in the interregnum i.e. from 1989 and 1990 until the date when the claimants raised the dispute/ demand and/ or during pendency of the proceedings before learned Labour Court, the 10 C/SCA/15382/2016 ORDER services of the claimants were ever terminated or discontinued.

10.3 Under the circumstances, it was not in dispute before the learned Labour court that the workmen rendered service in the category of/ on the post of Helper and Electrician respectively from April, 1989 and November, 1990 and that they served continuously and without any break from the said dates.

10.4 In this view of the facts, as such, the dispute with regard to the days of service/ work completed by the claimants during each year, could not be in dispute.

11. Nonetheless, the board, so as to take advantage of the fact that the workmen did not have any documents in their hands to establish their claims, raised dispute with regard to number of days for which the claimants worked in each year.

11 C/SCA/15382/2016 ORDER 11.1 The claimants, during their deposition asserted that they had worked for 240 days and also called upon the employer to place on record relevant documents.

11.2 The board did not place any material (pay register or attendance register or any other document) on record before learned Labour Court.

12. Under the circumstances, the learned Labour Court was compelled to and left with no alternative but to draw adverse inference against present petitioner.

12.1 The learned Labour Court therefore assumed that the claimants had worked for 240 days. 12.2 The said findings of fact by learned Labour Court cannot be faulted , more particularly when above quoted observations by Hon'ble Apex Court are taken into account and the fact that the 12 C/SCA/15382/2016 ORDER board did not place relevant registers on record before the learned Labour court.

12.3 Therefore, the submission by learned advocate for the petitioner board on this count does not deserve to be sustained.

13. Now, so far as the issue related to the demand by the claimants for regularization in service and status of permanent workmen is concerned, it is necessary and appropriate to take into account that the claimants have been serving as Helper and Electrician respectively, regularly and continuously from April, 1989 and November, 1990.

14. Since even after rendition of service for almost 8 years, their services were not regularized and they were not treated as regular employee of the board and since the benefits on par with regular workers were denied, the claimants raised dispute in 1997 which came to be 13 C/SCA/15382/2016 ORDER referred for adjudication to learned Labour court.

15. Before learned Labour Court, above mentioned factual aspects have been established.

16. The claimants also established that at the time when the dispute was raised and also when the proceedings were pending before learned Labour Court there were vacancies against the post of Helper and Electrician.

16.1 In this context, learned Labour Court has taken into account and relied on the observation by Hon'ble Apex Court in the decision in case of State of Karnatake 7 Ors v. M.L. Kesari (2010 III CLR 193) as well as decision in case of Punjab Water Supply and Sewerage Board v. Ranjodhsingh (2007 LLR 561) and the decision in case of Indian Drugs and Pharmaceuticals v. Their Workers (2006 12 SCALE 1) and the decision in case of Jetharam Deora v. Indian Telecom Industries Pvt. Ltd (2010 14 C/SCA/15382/2016 ORDER 3 CLR 957), as well as decision in case of General Manager ONGC, Shilchar v. ONGC Contractual Workers Union and the decision in case of Maharashtra State Road Transport Corporation (2009) 8 SCC 566, and the decision in case of Umrala Gram Panchayat v. The Secretary, Municipal Employees Union & Ors [(2015) 12 SCC 775] and the decision in case of Durgapur Casual Workers Union v. Food Corporation of India [2015 1 CLR 379] and the decision in case of ONGC Ltd v. Petroleum Coal Labour Union & Ors [2015 II CLR 772].

16.2 Relying on the observation by Hon'ble Apex Court in the said cases, the learned Labour Court reached to the conclusion that the demand by the claimants are justified and deserve to be granted.

16.3 Learned Labour Court also considered that mere rendition of service for long time 15 C/SCA/15382/2016 ORDER would not make person entitle for regularization or status of permanent workman.

16.4 The learned Labour Court found that it was not the case of the board that the claimants were not qualified for the post in question and that they did not possess requisite qualification or eligibility criteria.

16.5 The learned Labour Court also took into account that there were vacancies against the post in question and that there was no complaint with regard to conduct of the workmen and/ or their efficiency or discharge of their duties and functions.

16.6 Besides the said facts, learned Labour Court also took into account the criteria mentioned by the Hon'ble Apex Court in above discussed decision.

17. The award is assailed on the ground that the 16 C/SCA/15382/2016 ORDER learned Labour Court committed error by assuming that the workman rendered service for 240 days. So as to assail the award on the said ground, it is claimed by the petitioner that the workman did not place any document on record to establish the said fact.

18. On this count, it is relevant to note that the workman, in his deposition, asserted that he had worked continuously and rendered service for 240 days. He also asserted, in his deposition, that the opponent employer did not provide any document.

19. It is duty and obligation of employer to issue appointment order which would specify the terms and conditions of service. It is also duty and obligation of the employer to provide, an employee, payslip, attendance card and identity card. If the employer fails in the said obligation and does not provide such basic documents then an employee would never have, in 17 C/SCA/15382/2016 ORDER his possession, any material and any evidence to even prima facie demonstrate his status as an employee and/ or relationship of employee and employer (with the opponent in the reference case) and he would also not be able to place on record before the Court the evidence about wages paid to him or about his attendance. Without providing such basic documents to employee,the employer cannot claim and contend that the employee must produce evidence to prove his attendance and to prove that he rendered continuous service i.e. he worked for 240 days and the employee's failure on this count should entail rejection of claim. Such contention / objection by an employer who does not provide the documents would be unjust and preposterous for employer to raise said contention. In present case, the claimant on one hand, deposed that he served regularly and continuously and that he completed service of 240 days. On the other hand, the claimant also demanded production of documents. Despite such position,the employer who 18 C/SCA/15382/2016 ORDER held, in its custody, relevant documents, did not place the documents before the Court and the employer (present petitioner) kept back relevant documents from the Court. In this view of the matter, the said objection by the petitioner against the adverse inference drawn by the employer is unjustified and cannot be sustained. After having committed breach of its own obligation (i.e. to provide attendance card, wageslip, identity card, appointment order and such other relevant document to employees) the employer cannot claim that the employee failed to discharge the obligation or that the employee failed to prove the employment or continuous service for 240 days. The conclusion by the learned Labour Court on this count cannot be faulted.

20. In this background, the demand by the claimant for regularization cannot be said to be unjustified and the findings of fact recorded by 19 C/SCA/15382/2016 ORDER learned Labour Court and the decision by learned Labour Court cannot be faulted.

21. In this view of the matter, the petitioner board raised the ultimate weapon and contentions namely that the claimants were engaged irregularly.

21.1 A wrong doer cannot take benefit of its own wrong. In this context it is relevant to note that the petitioner board, when it required service of the present respondents, on its own volition gave gobye to the selection procedure and engaged the claimants and availed their service without following the procedure. The obligation to not commit any irregularity, was on Board's shoulders.

21.2 However to serve its own interest and to suit its need and inconvenience the Board, very conveniently, threw out of window and compromised the procedure and not only engaged the claimants but continued them for such long time. 20 C/SCA/15382/2016 ORDER 21.3 The petitioner board (after having engaged the claimants) continued to avail their services for almost 25 years. At any stage, the board did not realise that it had engaged the claimants, allegedly, without following procedure for selection and their engagement was irregular and that therefore it should discontinue such irregularity.

21.4 Not only the board failed to take corrective action immediately or within short time after having engaged the claimants, but the board allowed 25 years to lapse.

21.5 Even after the claimants raised the dispute and appropriate government referred the dispute for adjudication, the board continued to avail service of the present claimants.

21.6 The board did not follow procedure prescribed by law either to regularise the 21 C/SCA/15382/2016 ORDER service or to put a fullstop to their own irregularity by discontinuing service of the claimants in accordance with the procedure prescribed by law.

21.7 In this view of the matter, the petitioner board, now cannot be permitted to raise contention on the ground that initial appointment of the claimant is irregular and without following prescribed procedure. A wrong doer cannot take advantage of its own wrong. In present case, it is pertinent to note that the opponent (employer) before learned Labour Court did not demonstrate that its establishment has framed Rules and procedure for selection and recruitment in the category of labourers. Even if it is assumed that for the said purpose, the provision under GCSR would be applicable to the petitioner establishment (petitioner's office) the obligation to observe and comply /follow the said procedure was on the petitioner. A candidate, who offers his candidature for 22 C/SCA/15382/2016 ORDER selection and recruitment would not know the provisions or procedure for selection and recruitment or the intricacies of the said procedure. A candidate, who is seeking employment in ClassIV post (labourer's post), would believe that the procedure which is followed while engaging him is in accordance with the applicable Rules. If the employer itself, consciously and knowingly commits breach of such procedure and indulges in irregularity then the employer cannot take benefit of its own wrong ( irregularity) and such employer cannot be permitted to take such disadvantage. In this context, profitable reference can be had to the observation by the Hon'ble Apex Court in case of Bhartiya Seva Samaj Trust through President & Anr. v. Yogeshbhai Ambalal Patel & Anr. [(2012) 9 SCC 310] wherein Hon'ble Apex Court observed, inter alia, that: "28. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim 'allegans suam turpitudinem non est audiendus'. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong. (Vide:

G. S. Lamba and Ors. v. Union of India and Ors., AIR 1985 SC 1019; Narender Chadha and Ors. v. Union of India and Ors., AIR 1986 SC 638; Molly Joseph alias Nish v. George 23 C/SCA/15382/2016 ORDER Sebastian alias Joy, AIR 1997 SC 109 : (1996 AIR SCW 4267); Ashok Kapil v. Sona Ullah (1996) 6 SCC 342 : (1996 AIR SCW 3180); and T. Srinivasan v. T. Varalakshmi (Mrs.), AIR 1999 SC 595 : (1998 AIR SCW 3885)). This concept is also explained by the legal maxims ' Commodum ex injuria sua nemo habere debet'; and 'nullus commodum capere potest de injuria sua propria '. (See also: Eureka Forbes Ltd. v. Allahabad Bank and Ors. (2010) 6 SCC 193 :

(AIR 2011 SC (Civ) 2538 : 2010 AIR SCW 3429); and Inderjit Singh Grewal v. State of Punjab and Anr. (2011) 12 SCC 588 : (2011 AIR SCW 6259))."

(emphasis supplied)

22. In this view of the matter, the said contention by the board fails and deserves to be rejected.

23. At this stage it would not be out of place to take into account observation by Hon'ble Apex Court in case of Secretary, State of Karnataka and others vs. Umadevi (3) and others [(2006) 4 SCC 1]. Even in the said decision wherein Hon'ble Apex Court has observed, inter alia, that:

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R. N. Nanjundappa and B. N. Nagrajan (supra), and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly 24 C/SCA/15382/2016 ORDER sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.

24. Keeping above quoted observation in focus it is also appropriate to note that the State has framed such Policy and for implementation of the policy i.e. to give formal shape to the policy for purpose and proper implementation of resolution. The State has issued GR dated 17.10.1988. The said GR confers certain benefits which, though not in nature of regularization in stricto sensu, are close to and resembles the benefit of regularization of service for those daily wagers who have rendered and completed service for 5 years and more. In that view of the matter also the award passed by the learned Labour Court stands the scrutiny.

25 C/SCA/15382/2016 ORDER

25. In this context it is also relevant to take into account the fact that the conduction and action of the Board to continue, for such long period, employees on daily wage basis and to deprive them from benefits of leave, regular salary, the payscale permanently is not only unjust and arbitrary but also amounts to unfair labour practice.

26. In this context, reference can be had to the Entry No.10 in PartI of ScheduleV of the Industrial Disputes Act, which reads thus:

"10. To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen".

27. At this stage reference can be had to the observation in case of Maharashtra SRTC v.

Casteribe Rajya Parivahan Karmachari Sangathan wherein Hon'ble Apex Court observed that:

"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 26 C/SCA/15382/2016 ORDER 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."

33. ....Unfair labour practice on the part of the employer is engaging employees as badlis, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.

36. Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi cannot be held to have overriden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."

28. Besides above mentioned aspects, learned Labour Court has also taken into account the government's policy declared by virtue of GR dated 17.10.1988.

29. Undisputedly, the board has adopted the said GR and the said Policy decision by the State Government is relevant and applicable to the petitioner board.

27 C/SCA/15382/2016 ORDER

30. The said policy declares that service of the daily wager who have completed service of 5 years and who have completed service for 10 years will be regularised in accordance with provisions under the said GR.

31. The learned Labour Court has allegedly and justifiably drawn analogy from the GR and observed that even otherwise the board was under

obligation to regularise the service of the claimants in view of the Policy under GR dated 17.10.1988 and all benefits which would be available to daily wager on completion of 10 years of service, should be available to the claimants and should have been, accordingly granted to the claimants and that therefore regardless of the demand/ dispute raised by the workmen, even in light of the policy decision declared vide GR dated 17.10.1988, the claimant would be entitled for benefits of regularization in service and for consequential benefits.

28 C/SCA/15382/2016 ORDER

32. Learned Labour Court has supported its decision and direction on strength of the said GR as well as the said decision by learned Labour Court and the said reasoning cannot be faulted.

33. For above mentioned reasons, this Court finds that there is no error in the award.

34. The findings of fact recorded by learned Labour Court are based on undisputed facts or on the basis of material available on record and the said findings cannot be termed as perverse and therefore cannot be disturbed.

35. The decision and direction passed by learned Labour Court are supported by relevant observation by Hon'ble Apex Court in above mentioned decisions.

36. The petitioner board has failed to support and justify its contention that award is unjust or unreasonable and erroneous. Any error is not 29 C/SCA/15382/2016 ORDER established, any illegality or arbitrariness is also not established and the petitioner has failed to demonstrate that the award is perverse, in any manner.

37. It is also pertinent to note that the learned Labour Court has also tried to balance equity by not granting benefit for the period from 1999 to 2012.

38. Even regularization is not granted from the date of appointment or from the date when the claimants completed service of 240 days.

39. On the contrary, benefit of regularization is granted upon conclusion of 10 years of service and the benefit of actual payment of salary on par with regular pay scale is granted with effect from 1.1.2012.

40. Accordingly the learned Court has completely balanced the equity and there is no illegality or 30 C/SCA/15382/2016 ORDER arbitrariness or even nonapplication of mind so far as the said directions are concerned.

41. On overall consideration of the award, it has emerged that award does not suffer from any error on any ground and there is no justification to disturb the award.

Therefore, the petition fails and deserves to be rejected and is accordingly rejected. If any interim relief is in operation stands vacated.

(K.M.THAKER, J) saj 31

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