Gujarat High Court
Bhavnagar Municipal Corporation & vs Rajubhai Ratnabhai Kalotara on 24 July, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/7460/2010 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7460 of 2010
TO
SPECIAL CIVIL APPLICATION NO. 7464 of 2010
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BHAVNAGAR MUNICIPAL CORPORATION & 1....Petitioner(s)
Versus
RAJUBHAI RATNABHAI KALOTARA....Respondent(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1 - 2
MR TR MISHRA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 24/07/2017
COMMON ORAL ORDER
1. Heard Ms.Roshani Patel, learned advocate for Mr.Munshaw, learned advocate for the petitioner corporation and Mr.U.T. Mishra, learned advocate for the respondents.
2. In this group of five petitions, similar facts and common contentions against the awards passed by the learned Industrial Tribunal are raised. Learned advocates for the contesting 1 HC-NIC Page 1 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER parties have put forward common submissions in support of their respective case. The learned Industrial Tribunal has passed separate but similar awards in respect of five claimants (five reference cases). Therefore, group of five petitions is decided by this common judgment. 2.1 The petitioner - Bhavnagar Municipal Corporation has placed under challenge separate but similar awards with directions passed by the learned Industrial Tribunal at Bhavnagar in Reference Case Nos.74/2001, 55/2004, 64/2002, 33/2001 and 45/2004.
2.2 Except in Reference Case No.74/2001, in which the case the learned Industrial Tribunal passed award on 30.10.2009, in other reference cases, i.e. Reference Case Nos.55/2004, 64/2002, 33/2001 and 45/2004, the learned Industrial Tribunal passed awards on 16.11.2009. 2.3 By the impugned awards, the learned Industrial Tribunal has directed the petitioner 2 HC-NIC Page 2 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER corporation to consider the claimants as permanent Peon with effect from the date of award and to pay salary and other benefits on par with permanent employee in the category of Peon, with effect from 22.8.2005, however, the period from 22.8.2005 till the date of award should be considered notional and the workmen would be entitled for actual payment of regular salary as per the award with effect from the date of the award. With the said directions, the learned Industrial Tribunal partly allowed the reference cases.
2.4 Feeling aggrieved by the said reference cases and the awards, the corporation has preferred this group of petitions.
3. So far as the factual background is concerned, it has emerged that five claimants in above mentioned reference cases raised industrial dispute with the demand that from the date when they completed three years of service, they should be considered regular, permanent and full 3 HC-NIC Page 3 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER time employee in the category of Peon and that they should be paid salary on par with full time permanent employee. Appropriate Government referred the said demand for adjudication to the learned Industrial Tribunal vide separate but almost similar terms of reference. The said orders of reference culminated into above mentioned five reference cases.
3.1 In their respective statements of claim, the claimants alleged that they have been working with the opponent corporation since more than three years, however, the corporation pays fixed salary of Rs.900/ and that the corporation treat them as parttime employees. The claimants alleged that initially, they were engaged on parttime basis and they were paid fixed wages for 2 hours, i.e. Rs.200/ and after they worked for about two years, they were paid Rs.600/ fixed wages on 4 hours / day basis. They also alleged that after they worked for about six months on 4 hours basis, they were engaged to 4 HC-NIC Page 4 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER work for full time, however, they were paid fixed salary at Rs.900/. The claimants also alleged that they worked from 10.30 a.m. to 6.10 p.m. and that they worked regularly, diligently and continuously from the date they were initially engaged, however, they were not paid regular salary on par with permanent and full time employees. The claimants alleged that with effect from 11.4.2001, the corporation arbitrarily reduced their salary and the corporation started paying them fixed wages on 4 hours / day basis. With such allegation, the claimants raised demand that they should be considered regular, permanent and full time employees from the date when they completed three years service with the corporation. The claimants alleged that the practice of the corporation to pay them fixed wages for many years though they worked full time, which amounted to unfair labour practice and it also amounts to breach of Articles 14 and 16 of the Constitution of India.
5 HC-NIC Page 5 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER 3.2 The corporation opposed the reference cases. In its written statement, the opponent corporation claimed that the claimants worked only parttime,i.e. For 4 hours per day and they were paid salary accordingly, i.e. parttime basis. The corporation contended that the set up of the permanent post is fixed by the Government of Gujarat and there are no vacancies on the sanctioned permanent set up. The corporation also contended that the claimants were engaged on casual, ad hoc and daily wage basis on account of exigency of work and they were not engaged for full time but they were engaged and they worked only parttime, i.e. 4 hours per day, on the days when they would be engaged. The corporation also contended that the claimants never worked for full time and on regular basis with the corporation and that, therefore, their demand for status of permanent and full time employees is unjustified.
3.3 After the parties concluded the 6 HC-NIC Page 6 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER pleadings, the learned Industrial Tribunal received evidence from both sides and on conclusion of evidence by both sides, the learned Industrial Tribunal heard rival contentions of the contesting parties. Thereafter the learned Industrial Tribunal passed impugned award with above mentioned directions.
4. Learned advocate for the corporation assailed the award and submitted that the learned Industrial Tribunal could not have issued direction to treat the claimants as regular, permanent and full time employees, when the claimants were working on parttime basis inasmuch as they worked for 4 hours per day. Learned advocate for the corporation submitted that the claimants were engaged without following prescribed procedure for selection and recruitment. It is also contended that the claimants had never worked on full time basis and they had accepted appointment with the knowledge that they are engaged only on parttime. They 7 HC-NIC Page 7 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER also claimed that on completion of working hours, i.e. 4 hours per day, the claimants were free to work elsewhere and that, therefore, the direction to treat the claimants as regular, permanent and full time employees is unjustified. Learned advocate for the petitioner corporation also contended that there is no vacancy on sanctioned and permanent set up and that, therefore, there is no possibility to treat the claimants as regular and permanent employees on full time, that too in absence of sanction by the State Government and that the claimants cannot be considered permanent and full time employees on nonsanctioned posts. She submitted that the learned Industrial Tribunal passed impugned direction without considering the said administrative difficulty on account of absence of sanctioned posts on the establishment. Learned advocate for the petitioner corporation emphasized the contentions in paragraph Nos.5C, 5D and 5F of the petition, which read thus: 8
HC-NIC Page 8 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER "5C The Hon'ble Apex Court and the Hon'ble Full Bench of the Hon'ble High Court of Gujarat has also held that such irregularly employed daily wager, parttimers etc. by Municipal corporations, Panchayats, Municipalities or such other authorities cannot be made permanent on regular, permanent, sanctioned posts as the said posts are to be filled up after following due procedure of recruitment through a meritorious candidates after giving equal opportunities to the competent candidates.
D The petitioners submit that the respondent herein was employed purely on temporary, adhoc and part time basis without following due procedure of recruitment to meet with the administrative exigencies and thereafter continued from time to time with an enhancement in consolidated monthly remuneration. It ought to have been appreciated that the respondent was only a part timer and never employed against any permanent, sanctioned, regular post which are required to be filled up in accordance with recruitment rules and giving equal opportunities to all competent and meritorious candidates. The petitioners submit that even authorities are required to follow the roaster system also while filling up regular permanent sanctioned posts. In other words the respondent herein who was employed without following recruitment procedure has no right to claim benefit of regularization on permanent, sanctioned post without following due procedure of recruitment.
F The petitioners submit that Nagar Prathmik Shikshan Samiti of Bhavnagar Municipal Corporation is not at all a final authority on any administrative policy as well as recruitment and, therefore, its resolution No.27 passed on 22.8.05 to promote the respondent and similarly situated other part time Peons to the post of full time permanent Peon was subject to approval from the higher authority like Standing Committee as well as General Body. The petitioners submit that the said resolution was turned down by the Standing Committee through its Resolution No.271 passed on 15.10.08. It is submitted that the Standing Committee only resolved to enhance monthly remuneration to Rs.1500/ with effect from 1.10.08. In other words the Resolution of Nagar Prathmik Shikshan Samiti dated 22.8.05 was not at all approved by the Standing Committee of the Corporation."
Any other contentions are not raised. 4.1 Per contra, learned advocate for the 9 HC-NIC Page 9 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER claimants, i.e. present respondents contended that the arrangement on parttime basis was only a paper arrangement, whereas actually the claimants were required to work on full time basis. Learned advocate for the claimants contended that the claimants were paid fixed wages for long time and the request and demand by the claimants for salary on par with regular, permanent and full time employees was repeatedly denied by the corporation, despite the fact that the claimants performed similar duties and functions on full time basis, on par with permanent and full time employees. Learned advocate for the claimants contended that the corporation illegally and arbitrarily discriminated their services and their duties and functions as against the permanent workmen and thereby the corporation committed unfair labour practice. He submitted that the award and direction passed by the learned Industrial Tribunal are based on evidence on record. Learned advocate for the claimants submitted that similar 10 HC-NIC Page 10 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER issue in respect of employees employed by Junagadh District Panchayat was examined and decided by the Court in the decision dated 27.7.2006 in Special Civil Application No.11744 of 2006 whereby the High Court confirmed similar award and the directions passed by the learned Industrial Tribunal in case of District Development Officer, Junagadh. Learned advocate for the claimants placed reliance on the order dated 28.1.2015 passed by the District Development Officer, Bhavnagar and he submitted that the District Panchayat, Bhavnagar passed the said order to comply the decision by the learned Industrial Tribunal in Reference Case No.31/1998, wherein the learned Industrial Tribunal considered similar case and similar issues / contentions in respect of an employee in category of Sweeper was engaged on parttime basis. He submitted that an employee who was engaged as parttime Sweeper by the office of the District Panchayat had raised industrial dispute which was registered as Reference Case No.31/1998, wherein 11 HC-NIC Page 11 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER the learned Industrial Tribunal passed similar award on 20.3.2006 which was challenged by the District Development Officer in Special Civil Application No.11744 of 2006. He submitted that this Court confirmed the award vide judgment dated 27.7.2006 in Special Civil Application No.11744 of 2006. He further submitted that the said judgment dated 27.7.2006 was carried in appeal, i.e. Letters Patent Appeal No.847 of 2013 and the said appeal was rejected on 2.7.2013 and subsequently, Hon'ble Apex Court dismissed Special Leave Petition against the said decision by the learned single Judge and the Division Bench. He submitted that after dismissal of the Special Leave Petition, District Panchayat passed order dated 28.1.2015 and regularized the service of the parttime Peon. On strength of the said order, learned advocate for the respondents submitted that the issues similar to the issues raised in present petitions have already been decided and that, therefore, present award challenged in present petitions may not be 12 HC-NIC Page 12 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER disturbed.
5. I have considered rival submissions by learned advocates for the contesting parties. I have also considered impugned award passed by learned Tribunal and other material available on record.
6. The factum of the employment of the claimants with the Municipal Corporation is not in dispute. The date of joining and total length of service of the claimants with the petitioner Municipal Corporation is also not in dispute. The fact that the dispute and claim was raised after completion of 3 years of service with the Corporation, is not in dispute.
7. The fact that the claimants were initially paid fixed salary at Rs.200/ and then they were paid fixed salary at Rs.600/ which was subsequently increased to fixed salary @ Rs.900/ and that initially claimants were engaged on part time basis for 4 years and thereafter working 13 HC-NIC Page 13 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER hours were increased to 6 hours is also not in dispute. Of course, the claimants have alleged that though they were engaged on part time basis and it was claimed that their appointments were for 4 hours work / day, they were actually made to work full time and they were performing duties and function on par with regular and full time employees. The said allegations is disputed by the Municipal Corporation.
8. However, the fact about their employment, total length of service are not in dispute. Similarly, the fact that at the relevant time they worked for 6 hours per day and that the corporation paid fixed salary at Rs.900/ is also not in dispute.
9. The dispute was raised by the claimants somewhere in 2001, 2002 and 2004 after they completed service of 3 years. This translated into the fact that the claimants have been in service with Corporation since 1998, 1999 and 2001 and that by now, the claimants have 14 HC-NIC Page 14 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER completed service of more than 15 years with the Corporation.
10. The fact that the claimants are in service is also not in dispute. The said fact establishes that the work, the duties and the function which the claimants perform are of permanent and perennial nature and their service are required by the Corporation, is also not in dispute.
10.1 The learned Tribunal has derived finding of fact from the evidence (oral and documentary) placed on record by the Municipal Corporation. From the material which the Corporation placed on record, it emerged before the learned Tribunal that the Government has sanctioned, for the Municipal Corporation, set up with 22 permanent post in the category of Peon. Learned Tribunal also found that the Corporation had engaged only 17 peons on permanent basis whereas 5 permanent and sanctioned posts were vacant, however, the service of the claimants who were working since 15 HC-NIC Page 15 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER long time are not being regularized despite vacancies in permanent post on sanctioned setup. 10.2 It is also pertinent to note from the material available on record that the learned Tribunal also found that on 22.8.2005 the Corporation has passed Resolution No.27 whereby it was resolved that the persons who worked as Peon on part time basis with the primary education committee, should be regularized as full time permanent employees on the vacancies in respect of permanent post of Peon and that their services should be regularized after taking into account their interse seniority.
10.3 Thus, learned Tribunal found that there were vacancies in respect of permanent post on sanctioned establishment and that the Corporation had already passed Resolution to regularize service of the claimants on the basis of their interse seniority however, the said decision/ resolution was not being implemented. 16 HC-NIC Page 16 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER 10.4 The learned Tribunal also found that the Municipal Education Committee had already recommended the case of claimants, however, the said recommendation was not taken into account. 10.5 Learned Tribunal also found that at the time when the claimants were engaged, they were engaged after undergoing process of interview and their age/ birth date, Education qualification, Physical fitness (on the basis of medical certificate), Character certificate etc. were examined and thereafter the claimants were appointed.
10.6 Learned Tribunal also took into account the duty list under which duties and functions were assigned to the claimants.
11. From above mentioned details and from the discussion in the award, it comes out that the learned Tribunal has taken into account relevant aspect before passing impugned direction. In this background, when the 17 HC-NIC Page 17 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER observation by the Court in the decision dated 27.7.2006 in Special Civil Application No. 11744 of 2006, which, according to the details mentioned in the order dated 28.1.2015 passed by District Development Officer, Bhavnagar, have been confirmed by the Division Bench and Special Leave Petition against the said decision is rejected, are taken into account and when the provision under Item Serial No.10 in PartI of Schedule of Industrial Disputes Act is taken into account, then it becomes clear that the findings and direction passed by learned Tribunal do not deserve to be disposed.
11.1 While passing impugned direction, learned Tribunal has taken into account all relevant factors and have given effect to the direction from the date of award and not as per the terms of reference, according to which benefit of permanency and regular payscale etc., was claimed from the date when the claimants completed service of 3 years.
18 HC-NIC Page 18 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER 11.2 Instead, learned Tribunal has in just and reasonable manner granted the benefits from the date of the award.
11.3 Even the payment of difference of wages is directed to be paid from the date of award though the effect is granted from 22.8.2005. 11.4 From the above mentioned discussion, it has emerged that the learned Tribunal took into account 22.8.2005 as cutoff date because it was on the said date (i.e. 22.8.2005) that the Committee had passed Resolution to regularize services of the claimants in light of the fact that sufficient number of vacancies in respect of permanent post on sanctioned establishment were available at the relevant time.
11.5 In this factual background, the direction passed by learned Tribunal does not warrant any interference.
12. Any material which would convince this 19 HC-NIC Page 19 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER Court to hold that the final direction passed by learned Tribunal are arbitrary or perverse or unjust and contrary to the material on record before the learned Tribunal, is neither available on record nor brought to the notice of this Court. The petitioners have failed to establish that the direction by the learned Tribunal are unjust or arbitrary or unreasonable.
13. It is pertinent to note that it was not the case even of the Corporation before learned Tribunal and it is not its case even before this Court also that the claimants do not possess requisite qualification as prescribed by applicable Rules for the post in question and/ or at the time of their initial entry the claimants were age barred. Such facts are neither pleaded nor proved before learned Tribunal and such contention is not raised at the time of hearing of the petition.
13.1 Thus, when it is not the case of the Corporation that the claimants do not possess 20 HC-NIC Page 20 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER requisite and prescribed qualification and/ or at the time of entry in the service they were age barred and/ or the claimants do not fulfill prescribed eligibility criteria, then in such circumstances there is no justification to interfere with and to disturb the finding of facts and final conclusion and direction by learned Tribunal, more particularly when the claimants have regularly and continuously worked with the Corporation for about 15 years and also in light of the fact that the practice adopted by the Corporation amounts to unfair labour practice inasmuch as despite vacancy on permanent setup the Corporation illegally and arbitrarily continued the claimants on daily wage and part time basis.
For abovementioned reasons and in light of the foregoing discussions the petitions fail and deserve to be rejected and accordingly rejected. Rule is discharged.
21 HC-NIC Page 21 of 22 Created On Mon Aug 21 02:29:52 IST 2017 C/SCA/7460/2010 ORDER (K.M.THAKER, J.) Bharat 22 HC-NIC Page 22 of 22 Created On Mon Aug 21 02:29:52 IST 2017