Gujarat High Court
Vrajlal Bachubhai Khachariya vs State Of Gujarat & 5 on 1 September, 2017
Bench: M.R. Shah, B.N. Karia
C/LPA/1284/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1284 of 2016
In SPECIAL CIVIL APPLICATION NO. 10667 of 2012
With
LETTERS PATENT APPEAL NO. 1302 of 2016
In SPECIAL CIVIL APPLICATION NO. 10666 of 2012
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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VRAJLAL BACHUBHAI KHACHARIYA....Appellant(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance in LPA No.1284 of 2016:
MR GM JOSHI, ADVOCATE for the Appellant(s) No. 1
MR ROHAN YAGNIK, ASSISTANT GOVT. PLEADER for the Respondent(s) No. 1
MR BHAVESH P TRIVEDI, ADVOCATE for the Respondent(s) No. 5
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
MR RR TRIVEDI, ADVOCATE for the Respondent(s) No. 5
NOTICE SERVED for the Respondent(s) No. 6
NOTICE SERVED BY DS for the Respondent(s) No. 1, 3 - 4
Appearance in LPA No.1302 of 2016:
MR MB PARIKH, ADVOCATE for the Appellant(s) No. 1
MR ROHAN YAGNIK, ASSISTANT GOVT. PLEADER for the Respondent(s) No. 1
MR BHAVESH P TRIVEDI, ADVOCATE for the Respondent(s) No. 5
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3
MR RR TRIVEDI, ADVOCATE for the Respondent(s) No. 5
NOTICE SERVED for the Respondent(s) No. 6
NOTICE SERVED BY DS for the Respondent(s) No. 1, 3 4
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
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C/LPA/1284/2016 JUDGMENT
Date : 01/09/2017
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] As common question of law and facts arise in both these Letters Patent Appeals, they are disposed of by this common judgment and order.
[2.0] Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge in Special Civil Application Nos.10667/2012 and 10666/2012 by which the learned Single Judge has dismissed the said Special Civil Applications and has confirmed the respective awards passed by the learned Industrial Tribunal in Reference (IT) No.60/1996 and Reference (IT) No.36/1996 respectively, by which the learned Industrial Tribunal rejected the claim of the original workman of regularization and/or permanency and rejected the said references, the original workmen have preferred the present Letters Patent Appeals under Clause 15 of the Letters Patent.
[3.0] The facts leading to the present Letters Patent Appeals in nut shell are as under:
[3.1] That both the appellants herein - original workmen were serving as daily wagers. They raised an industrial dispute and claimed that on completion of 240 days, they are entitled to the permanency and they are required to be paid the pay scale which has been paid to the permanent employees. That on appreciation of evidence and having found that their appointments as daily wagers were not on the sanctioned post and after following due procedure of recruitment / selection and therefore, merely on completion of 240 days, they cannot claim permanency and/or the pay scale Page 2 of 10 HC-NIC Page 2 of 10 Created On Sun Oct 01 09:59:24 IST 2017 C/LPA/1284/2016 JUDGMENT which was being paid to the permanent employees, following decision of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka vs. Umadevi(3) reported in (2006) 4 SCC 1, the learned Industrial Tribunal rejected / dismissed the aforesaid references.
[3.2] Feeling aggrieved and dissatisfied with the respective judgments and awards passed by the learned Industrial Tribunal in Reference (IT) No.60/1996 and Reference (IT) No.36/1996, the respective original workman preferred the aforesaid two Special Civil Application Nos.10667/2012 and 10666/2012 before this Court. That by impugned common judgment and order the learned Single Judge has dismissed the said petitions.
[3.3] Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge in dismissing the petitions, the original petitioners - original workman have preferred the present Letters Patent Appeals under Clause 15 of the Letters Patent.
[4.0] Shri G.M. Joshi, learned Advocate and Shri M.B. Parikh, learned Advocates have appeared on behalf of the original workman. Shri Bhavesh Trivedi, learned Advocate has appeared on behalf of the respondent Nagarpalika, Shri H.S. Munshaw, learned Advocate has appeared on behalf of the District Development Officer, District Panchayat, Taluka Panchayat and Shri Rohan Yagnik, learned Assistant Government Pleader has appeared on behalf of the State Authorities.
[5.0] Shri G.M. Joshi, learned Advocate appearing on behalf of the appellant in LPA No.1284/2016 has vehemently submitted that in Page 3 of 10 HC-NIC Page 3 of 10 Created On Sun Oct 01 09:59:24 IST 2017 C/LPA/1284/2016 JUDGMENT the facts and circumstances of the case the learned Single Judge has materially erred in dismissing the petition and confirming the judgment and award passed by the learned Industrial Tribunal rejecting the reference. It is vehemently submitted by Shri Joshi, learned Advocate that as such even before the learned Single Judge it was a case of remand. It is submitted that in the present case as such the learned Single Judge has specifically observed and held on appreciation of evidence that as such both the workmen were possessing requisite qualifications. It is submitted that even the learned Single Judge has also specifically obserevd that though the respondent claimed that there was no vacancy on permanent and sanctioned establishment, the respondent failed to place on record the details with regard to permanent / regular sanctioned set up of the corporation and the sanctioned posts of clerks and as to whether at the relevant time any of the sanctioned posts was vacant or not. It is submitted that thereafter the learned Single Judge has specifically observed that in absence of such evidence, the learned Tribunal has mechanically accepted the claim of the respondent Nagarpalika that there was no vacancy on the sanctioned post though the relevant material to satisfy the Court on this count was not placed on record of the learned Industrial Tribunal. It is submitted that therefore even not only the appellants herein - original petitioners but even the Nagarpalika also requested to remand the matter.
[5.1] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Umadevi(3) (Supra) is concerned, relying upon the decision of the Hon'ble Supreme Court in the case of Hari Nandan Prasad and Another vs. Employer I/R to Management of Food Corporation of India and Another reported in (2014) 7 SCC 190, it is vehemently submitted that as Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Oct 01 09:59:24 IST 2017 C/LPA/1284/2016 JUDGMENT observed and held by the Hon'ble Supreme Court, the decision of the Hon'ble Supreme Court in the case of Umadevi(3) (Supra) shall not be applicable when the industrial dispute is raised and the same shall not come in the way of the Labour Court and/or Industrial Tribunal in granting the reliefs under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as "ID Act"). It is submitted that therefore, the learned Single Judge has materially erred in dismissing the petitions confirming the judgment and award passed by the Reference Court in relying upon and/or considering the decision of the Hon'ble Supreme Court in the case of Umadevi(3) (Supra).
Making above submissions and relying upon the above decisions, it is requested to admit/allow the present Letters Patent Appeals.
[6.0] Shri M.B. Parikh, learned Advocate appearing on behalf of the appellant of LPA No.1302/2016 has adopted the submissions made by Shri Joshi, learned Advocate appearing on behalf of the appellant of LPA No.1284/2016.
[7.0] Both these appeals are vehemently opposed by learned Advocates appearing for respective respondents more particularly Shri Bhavesh Trivedi for the respondent Nagarpalika and Shri H.S. Munshaw, learned Advocate appearing on behalf of the respondent No.2. It is submitted by learned Advocates appearing for respective respondents that in the present case admittedly the claim before the learned Industrial Tribunal and/or Industrial Tribunal which was referred to the Industrial Tribunal was whether on completion of 240 days, the services of the workman is required to be regularized and/or they should be made permanent or not? It is submitted that as such the dispute was not raised under the Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Oct 01 09:59:24 IST 2017 C/LPA/1284/2016 JUDGMENT provisions of the ID Act and/or with respect to unfair labour practice. It is submitted that having found that the respective workman served for only 2 to 3 years as a Clerk and that too as a daily wagers and their appointments were hit by Article 14 of the Constitution of India; their appointments were without following any procedure of recruitment / selection, they cannot claim regularization and/or permanency. It is submitted that therefore in the facts and circumstances of the case neither the learned Single Judge nor the Industrial Tribunal have committed any error in rejecting the claim of the workman for regularization and/or permanency on their completing 240 days as daily wagers, relying upon the decision of the Hon'ble Supreme Court in the case of Umadevi (3) (Supra).
[7.1] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Harin Nand Prasad (Supra), it is submitted that on the contrary, observations in the aforesaid decision shall assist and/or help the respondents rather than the workmen. It is submitted that in the facts and circumstances of the case more particularly when the original workmen claimed the regularization / permanency on their completing 240 days and that was the only dispute which was referred to the Industrial Tribunal and there was no question of any unfair labour practice alleged and/or such was not the dispute before the Industrial Tribunal, even otherwise the decision of the Hon'ble Supreme Court in the case of Hari Nandan Prasad (Supra) shall not be applicable to the facts of the case on hand.
Making above submissions it is requested to dismiss the present Letters Patent Appeals.
[8.0] Heard the learned Advocates appearing for respective parties Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Oct 01 09:59:24 IST 2017 C/LPA/1284/2016 JUDGMENT at length.
[8.1] At the outset it is required to be noted that both the original workmen were as such appointed and working as Clerk as daily wagers. They completed hardly 2 to 3 years as daily wagers. They raised an industrial dispute and claimed the regularization / permanency on their completing 240 days. That was the only dispute which was referred to the Reference Court. After having held that even the appointments of the original workmen as daily wager Clerk were not after following due procedure of selection and/or recruitment, their appointments were hit by Article 14 of the Constitution of India and therefore, following the decision of the Hon'ble Supreme Court in the case of Umadevi (3) (Supra), their claim for regularization / permanency has been rejected and the same has been confirmed by the learned Single Judge by the impugned common judgment and order.
[8.2] Nothing is on record and as such it is not the case on behalf of the appellants that their appointments were after following due procedure of recruitment / selection process. Nothing is on record that any applications were invited and thereafter after holding recruitment process they were appointed as daily wagers. However, Shri Joshi, learned Advocate appearing on behalf of the appellant of LPA No.1284/2016 has submitted that having once appointed de hors the recruitment process without following the recruitment process and/or selection process, the Nagarpalika cannot be permitted to take the benefit of their own wrong. However, it is required to be noted that in the present case it is not a question of taking the benefit by the Nagarpalika of its own wrong. What is required to be considered is the claim of the original workman of regularization / permanency on their completing 240 days as daily Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Oct 01 09:59:24 IST 2017 C/LPA/1284/2016 JUDGMENT wagers. Having found that their appointments were not done after following the due procedure of recruitment / selection process, their appointments can be said to be violative of Article 14 of the Constitution of India, following the decision of the Hon'ble Supreme Court in the case of Umadevi (3) (Supra), the learned Single Judge as well as the learned Industrial Tribunal have rightly rejected the petitions / references and have rightly refused the regularization / permanency on the workmen completing 240 days as daily wagers. We are in complete agreement with the view taken by the learned Single Judge as well as the Industrial Tribunal.
[8.3] Now, so far as the submissions made by Shri Joshi, learned Advocate appearing on behalf of the original workman that the decision of the Hon'ble Supreme Court in the case of Umadevi (3) (Supra) shall not come in the way of the Industrial Tribunal in granting the relief of regularization is concerned, at the outset it is required to be noted that as such the Hon'ble Supreme Court in para 34 has specifically observed and held that the Labour Court is to keep in mind that there should not be any direction of regularization if this offends the provisions of Article 14 of the Constitution on which the judgment in Umadevi (3) (Supra) is primarily founded. It is further observed by the Hon'ble Supreme Court while considering with another decision of the Hon'ble Supreme Court in the case of State of Maharashtra vs. R.S. Bhonde reported in (2005) 6 751 that even the Labour Court / Industrial Court can grant certain reliefs having regard to the statutory powers conferred upon the Labour Court / Industrial Tribunal, which include the reliefs of giving the status of permanency to the contract employees, such statutory power does not get denuded by the judgment in Umadevi (3) (Supra). However, such a power is to be exercised only when it is found that Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Oct 01 09:59:24 IST 2017 C/LPA/1284/2016 JUDGMENT the employer has indulged in unfair labour practice by not filling up permanent posts even when available and continuing to employ workers on temporary / dailywage basis and taking the same work from them and making them do some purpose which was being performed by the regular workers but paying them much less wages. It is specifically observed that it is only when a particular practice is found to be unfair labour practice and it necessitates giving direction under Section 30 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (as being considered in that case). In para 39 the Hon'ble Supreme Court has again reiterated that even if there are posts available, in absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as dailywage worker/ad hoc/temporary worker for number of years. In para 39, it is specifically observed and held as under:
"34. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to Art.14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Art.14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Art. 14, rather than violating this constitutional provision."Page 9 of 10
HC-NIC Page 9 of 10 Created On Sun Oct 01 09:59:24 IST 2017 C/LPA/1284/2016 JUDGMENT [8.4] Thus, considering the aforesaid decision of the Hon'ble Supreme Court when the initial appointments as daily wagers are violative of Article 14, merely because the workman has worked for number of years and their appointments can be said to be back door entry, their services are not required to be regularized and that the Labour Court / Industiral Tribunal would not be justified in passing the order of regularization and/or permanency. As observed hereinabove in the present case the dispute which was referred to the Industrial Tribunal was that whether on completion of 240 days the workmen are entitled to the regularization and/or permanency or not. Under the circumstances, even otherwise the aforesaid decision in the case of Hari Nandan Prasad (Supra) shall not be applicable to the case on hand. The case would squarely fall within the four corners of the decision Hon'ble Supreme Court in the case of Umadevi (3) (Supra). No error has been committed by the learned Single Judge in dismissing the petition and confirming the awards passed by the learned Industrial Tribunal rejecting the references and rejecting the claim of regularization / permanency.
[9.0] In view of the above and for the reasons stated above, both these Letters Patent Appeals fail and the same deserve to be dismissed and are, accordingly, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
Sd/ (M.R. SHAH, J.) Sd/ (B.N. KARIA, J.) Ajay Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Oct 01 09:59:24 IST 2017