Gujarat High Court
Surendranagar District Panchayat And ... vs Karsan Nanji Kanzaria And Ors. on 22 November, 1994
JUDGMENT Susanta Chatterji, J.
1. The petitioner-Surendranagar District Panchayat has filed the aforesaid petitions challenging the Award dated 17-12-1993 in Reference (ITR) Nos. 281/88, 284/88 and 196/89 and the Award dated 17.1.1994 in Reference (ITR) No. 94/88, Annexure A to each of the petitions.
2. By the impugned Awards the Tribunal has ordered that the services of those workers, save, those who have expired, left or have been transferred and absorbed in the State, who have completed ten years' of service as on 1-10-1988 be regularised at par with permanent employees and services of those who complete 10 years thereafter be regularised and be put at part with permanent employees on the date when they complete 10 years and that they be paid all benefits of permanent employees and that the workers who are working as clerks, shall fulfill qualifications as laid down in the Award itself. It was further made clear that the inter se seniority apart this regularisation, in no manner would affect prejudicially seniority of others and that the period of 10 years proceeding 1-10-1988 or subsequent as the case may be, will be treated as notional regular tenure.
3. In all the aforesaid four References common question of facts and law arose. The Industrial Tribunal-Gujarat-Rajkot has passed elaborate and reasoned Awards in the said Reference which have been challenged in the aforesaid petitions.
4. Learned Advocate appearing for the petitioner has challenged the Awards and submitted, inter alia, that the petitioner has grievance as regards the payment of salary, allowances and benefits to the workmen as are being paid to the permanent employees, their services cannot be regularised unless there is increase in the strength of the present cadre and other formalities are complied with and the procedure as laid down for the regularisation is gone through as per the convenience of the employer. According to the learned Advocate for the petitioner the Awards of the Industrial Tribunal suffer from inherent defects. In support of his contention, attention of this Court has been drawn to the recent decision of the Supreme Court in the case of Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra & Ors. 1994 (5) JT 378 : 1995 I CAT MAT 5. It has been found by the Supreme Court that where a post has got to be filled up through the Public Service Commission and there are certain eligibility criteria for the post, the person although may have served for number of years cannot claim for served for number of years cannot claim for regularisation taking advantage of the Temporary Government Servants Extension of Permanency Resolution of 1975 by over reaching the provisions of law.
5. Learned Advocate for the petitioner has further relied on the decision in the case of Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Others 1992 I CLR 537 wherein the scope of regularisation of the casual labourers was considered and it was found inter alia, that the persons employed under the Scheme could not claim regularisation because they have put in two years' service. Scope of Jawaharlal Nehru Rozgar Yojna and the persons employed thereunder were considered. Learned Advocate also referred to the decision in the case of State of Haryana and Ors. v. Piara Singh and Others 1992 II CLR 890, wherein the Supreme Court found that directions for the regularisation in respect of all adhoc/temporary employees who have continued for more than an year was not proper. There cannot be any blanker directions by the High Court for regularisation of services of all such employees and the Court, while giving directions for regularisation of service act with due care and caution. It must first ascertain the relevant facts and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre of strength of a particular service, class or category. The High Court in that case directed wholesome regularisation of all such persons who had put in one year's service and that too unconditionally. It was observed that the direction that all those ad hoc/temporary employees who have continued for more than an year should be regularised is unsustainable.
6. Attention of this Court has also been drawn to the judgment of the Supreme Court in the case of Catering Cleaners of Southern Railways v. Chief Commercial Superintendent Southern Railway 1990 Lab. I.C. 1936 where in the direction issued by the Supreme Court to absorb the catering cleaners in Railway and to make them departmental employees will arise only after permanent pots become available.
7. Reliance is also placed by the learned Advocate for the petitioner on the decision of the Supreme Court in the case of Satyanarayan Sharma & Ors. v. National Mineral Development Corporation Ltd. & Ors. 1990 II LLJ 596. In the said case it was held by the Supreme Court that the High Court has clearly found that there are no vacancies or work available in the establishment for absorption of the petitioners and that for quite some time they have been continued on the rolls and paid inspite of there being no work. On these facts the question of directing no work. Regulations would not arise. The principle of regularisation of a daily rated workman and payment to him of the pay equal to that of a regular workman arises only when the daily rated workman is doing the same worm as the regular workman and there being a vacancy available for him, he is not absorbed against it or not even paid equal pay for the period during which the same work is taken from him.
8. By placing reliance on the aforesaid decision, the learned Advocate for the petitioner has strongly argued that the awards of the Industrial Tribunal are not at all sustainable. He has further submitted that there is no bar or impediment to comply with the terms of the award when the fund would be available or situation will a rise by increasing the cadre strength and when permanent posts are made available and by following the procedure in that regard. It is apprehended that the award of the Industrial Tribunal will be thrust upon the petitioner and to void the said situation, the present petitions have been filed challenging the awards of the Industrial Tribunal.
9. The petitions have been contested by the concerned workmen. Learned Advocate appearing for the Workmen in all the aforesaid matters, invited the attention of this Court to the decision of this Court in the case of Kalol Municipality and Anr. v. Shantaben Kalidas & Ors. 1993 II CLR 597, wherein the Division bench of this Court considered a similar case and observed that the directions that may be given by the Labour Court or the Tribunal while deciding as industrial dispute may enable the Municipality to amend the Rules framed by it under Section 271 of the Gujarat Municipalities Act. But if there is no provisions in the Rule or that the permanent set up fixed by the Municipality is already determined and the same is limited it cannot be set up as a defence by the Municipality that the Labour Court or the Industrial Tribunal cannot give direction which is not in conformity with the rules framed by it. The rules framed by the Municipality are unilaterally framed without involving the workmen employed by it. Thus, unilateral determination of the number of staff by the municipality cannot bind the workmen engaged by it. Such unilateral decision about the number of staff cannot truncate the powers of the Labour Court or that of the Industrial Tribunal to adjudicate the dispute referred to in accordance with the provisions of the Act. It has been found that the Municipal Act does not deal with the sphere of Industrial Disputes Act. Initially when the first contract of employment was made or the initial rules were made the matter would be governed by the Municipal Act. After the workman raised the industrial dispute for changing their existing conditions of service, the matter would be entirely governed by the Industrial Disputes Act which provides for settlement of industrial disputes by changing, modifying or altering the existing conditions of service whether under a contract or under rule. Once the dispute is raised the matter would be governed by the Industrial Law.
10. With great anxiety this Court has patiently heard the learned Advocate for the respective parties. Having heard to the learned Advocates and considering the materials on record it is observed that this Court invoking the jurisdiction under Article 227 of the Constitution of India is not sitting in appeal over the decision of the statutory authority. This Court as to consider about the decision making process and/or to find whether the judgment or the Award of the Tribunal suffers from any perversity or for any act beyond the jurisdiction conferred upon the Tribunal or suffers from any inherent defect necessitating any interference by the Writ Court in view of the decision of the Supreme Court in the case of State of U.P. v. Dharmander Prasad Singh AIR 1989 SC 997.
11. In the present case, admittedly the workmen who have performed the duties continuously for more than 10 years against perennial nature of work have been given the benefit of regularisation at par with the permanent employees. The Tribunal has considered the evidence on record and has passed a comprehensive reasoned order, which is neither contrary to nor inconsistent with the material on record or the principles of law. This Court does not find that there is any defect in the decision making process. Besides the principles of the ratio of the decisions relied upon and/or referred to by the learned Advocate for the petitioner, in support of the case of the petitioner, are not applicable to the peculiar facts and circumstances of the present cases. The respondent-workmen who have eligibility to be appointed have since been found working for more than 10 years against the permanent nature of work and there is no bar and/or impediment for the regularisation of such workmen who have been found continuously working for more than 10 years and by giving them benefit nationally without interfering with the inter se seniority of others. Pausity of funds is no answer for non regularisation of such workmen, as found by the Industrial Tribunal. Considering all aspects of the matter, this Court does not find that the act done or caused to have been done by the Industrial Tribunal by passing the Awards in the aforesaid References, has exceeded the jurisdiction vested in it or such directions are contrary to the ratio of the decisions of the Supreme Court or other High Courts as discussed above. As this Court does not find anything wrong with the decisions of the Industrial Tribunal, this Court does not interfere with the impugned Awards passed by the Industrial Tribunal. On merits the case of the petitioner is not sustainable.
12. In the result, all the aforesaid petitions are dismissed. Rule in each of the petitions is discharged with no order as to costs.