Gujarat High Court
Savarkundla Municipality vs Ajaybhai Dhirubhai on 8 November, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/1398/2022 ORDER DATED: 08/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1398 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 19334 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1398 of 2022
With
R/LETTERS PATENT APPEAL NO. 1400 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 19335 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1400 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 19335 of 2017
With
R/LETTERS PATENT APPEAL NO. 1402 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 19337 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1402 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 19337 of 2017
With
R/LETTERS PATENT APPEAL NO. 1436 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 19339 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1436 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 19339 of 2017
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SAVARKUNDLA MUNICIPALITY
Versus
AJAYBHAI DHIRUBHAI
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Appearance:
MR. DEEPAK SANCHELA WITH DINESHKUMAR D GAUTAM(9549) for the
Appellant(s) No. 1
for the Respondent(s) No. 2
MR. GAUTAM JOSHI, SR. ADV. WITH MR DIVYESH SEJPAL WITH MR.
VYOM SHAH (1322) for the Respondent(s) No. 1
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NEUTRAL CITATION
C/LPA/1398/2022 ORDER DATED: 08/11/2023
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 08/11/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) All these four Letters Patent Appeals have the genesis in different judgment and awards passed by the Industrial Tribunal, Bhavnagar, challenge thereto in different Special Civil Applications, came to be dealt with by learned single Judge delivering a common judgment and order dated 25.3.2022. The appeals arise from common judgment and order of learned single Judge, referable to respective petitions. Learned single Judge upheld the judgment and awards of the Industrial Tribunal in different cases to dismiss all the petitions.
2. Heard learned advocate Mr. Deepak Sanchela with learned advocate Mr. Dineshkumar Gautam for the appellant-Savarkundala Municipality and learned senior advocate Mr. Gautak Joshi assisted by learned advocate Mr. Divyesh Sejpal and learned advocate Mr. Vyom Shah for the respondent-workmen, in all the appeals.
3. Though learned single Judge has passed common judgment and order dealing with the cases simultaneously, in order to properly examine the merits of the challenge to the judgment and order of learned single Judge by the appellant and for that purpose to be specific, this court has examined the facts of each case separately and independently, relevant of which are delineated herein.
3.1 In the first captioned Letters Patent Appeal No. 1398 of 2022, it Page 2 of 12 Downloaded on : Fri Nov 10 20:55:05 IST 2023 NEUTRAL CITATION C/LPA/1398/2022 ORDER DATED: 08/11/2023 undefined
was judgment and award dated 16.5.2017 in Reference (IT) No. 46 of 2010 of Industrial Tribunal was challenged in the writ petition by the Municipality. Similarly, in Letters Patent Appeal No. 1400 of 2022, Reference (IT) No. 7 of 2010 decided on 11.5.2017 and in Letters Patent Appeal No. 1402 of 2022, Reference (IT) No. 48 of 2010 decided on 12.5.2017, were called in question before the learned single Judge. In the last captioned Letters Patent Appeal No. 1436 of 2022 what was challenged is judgment and award of Industrial Tribunal dated 18.3.2017 in Reference (IT) No. 74 of 2005 dated 18.3.2017 was called in question before the learned single Judge.
3.2 In all the cases, the workmen held the post of Valveman on daily rate basis. The relief granted by the Industrial Tribunal was identical by issuing similar directions in each case. The workmen were directed to be to be regularised from the initial date of joining which were 1.5.2005, 1.11.2006, 1.3.2006 and 1.4.1998 respectively. It was further directed to pay to them difference of salary for the period from the date of Reference, that is 30.6.2010, however the period from the date of joining, for instance in the first case it was 1.5.2005 till 30.6.2010 was directed to be treated as notional not entitling the workman to receive any arrears in respect of the said part of service period, however, it was provided to be notionally counted for the purpose of paying retirement benefits such as pension, gratuity to the workman.
3.3 The representative facts are taken from the record of Letters Patent Appeal No. 1398 of 2022. In the statement of claim filed by the workman (Exh. 6), it was stated that he had been working as Valveman since 1.5.2005, that an advertisement was displayed in the notice board and upon taking interview, he was selected, however, for all these years, he was kept on daily rated status. That the work performed by the workman Page 3 of 12 Downloaded on : Fri Nov 10 20:55:05 IST 2023 NEUTRAL CITATION C/LPA/1398/2022 ORDER DATED: 08/11/2023 undefined was the same as was performed by the regular employee It was also the case that work was of perennial nature. It was stated that the Municipality had regularised several daily rated workmen including by implementing of judgment and award of the Labour Court in other cases.
3.4 The case was contested by the first party employer by filling reply (Exh.8) denying the case of the workmen to state and contend that the court could not issue directions to regularise the workman, that the workman did not undergo the process of recruitment, that there was no posts sanctioned for Valveman and that no work was available in the Municipality. In other words, stock contentions were raised by the Municipality denying the benefit of grant of regularisation.
3.5 The Industrial Tribunal examined the workman (Exh.9) and he was also cross-examined. The witness of the first party employer Harendrabhai Dhirajlal Joshi (Exh.16), deposed in common in all the reference cases. On the basis of the evidence and material on record, the Industrial Tribunal come to a conclusion that the witnesses of the first party employer pleaded ignorance about the manner in which the workman was taken in service. He accepted that certain workmen were regularised and some of them were pursuant to the award of the Labour Court.
4. The facts could be elicited from the evidence that there were 40 to 42 water bores managed by the Municipality to supply water to the inhabitants of the town, which was the function and duty of the Municipality under the law. The findings in that regard was recorded by the Industrial Tribunal on the basis of the evidence of witness of the first party employer (Exh. 16). It was also revealed from his evidence that the work of Valveman was to be of continuous nature for 24 hours. The Page 4 of 12 Downloaded on : Fri Nov 10 20:55:05 IST 2023 NEUTRAL CITATION C/LPA/1398/2022 ORDER DATED: 08/11/2023 undefined water was supplied to the different areas of the town which was managed by the persons-workmen posted as valvman.
4.1 A copy of the set-up of the Municipality was also available with the Industrial Tribunal at Exh. 14. Also before the Industrial Tribunal was the resolution of the Municipality itself (Exh. 20). They revealed that the post of one pumpman against every pump was sanctioned and accordingly, the persons were recruited and retained on the post of pumpman. Those factual details went to show that there were sufficient number of pumps for which workmen were employed and that the work of supply of water from bore was of permanent nature.
4.2 The facts in other cases were on the similar lines and before the Industrial Tribunal, evidence was adduced by both the sides of similar nature. The Tribunal proceeded to decide the respective references on the basis of similar facts and the evidentiary material before it.
4.3 The findings recorded by the Tribunal in each case were that the workman held the post of Valveman for more that 15 to 18 years in each case. They continued as daily rated workman. The work was available and the post was also shown to be available in the set-up. Regarding availability of posts, a finding of fact came to be recorded by the Industrial Tribunal in judgment and award, which was revisited with by learned single Judge to reiterate and confirm the findings.
4.4 It was attempted in vain by learned advocate for the Municipality that the Municipality did not have the posts of Valveman in the set-up. This court sitting in the Letters Patent Appeal would not like to deviate from the finding of facts on that score recorded by the Industrial Tribunal and confirmed by learned single Judge. The details of the set-up was Page 5 of 12 Downloaded on : Fri Nov 10 20:55:05 IST 2023 NEUTRAL CITATION C/LPA/1398/2022 ORDER DATED: 08/11/2023 undefined before the Industrial Tribunal. Even otherwise, it is to be observed that keeping the workman in service giving them meager wages on daily rate basis had indeed no sanctity in law. It was the duty and obligation on the part of the Municipality to seek sanctioned set-up from the competent higher authority to have the posts of Valveman to accommodate the workman concerned to grant them the permanency benefits, when work performed by them was of perennial nature.
4.5 Learned advocate for the respondent-workman supported judgment and award of Industrial Tribunal and order of learned single Judge which confirmed the award of the Industrial Tribunal. Learned advocate for the respondent workman relied on the decision of the Supreme Court in Oil and Natural Gas Corporation vs. Krishan Gopal and Others (2020 SCC OnLine SC 150) to submit that the case of the workman is covered with the four corners of the decision of the Supreme Court in the said decision.
5. Keeping the workmen on daily rated basis for unduly long by paying them lower wages and not getting the posts sanctioned at the same time, would amount to adopting unfair labour practice 5.1 Section 25T of the Industrial Disputes Act 1947 contains prohibition against the employers resorting to unfair labour practice. It says that, "no employer or workman or trade union, whether registered under the Trade Unions Act 1926 or not, shall commit any unfair labour practice." The expression unfair labour practice is defined in 2(ra) of the Industrial Disputes Act to mean any of the practices specified in the Fifth Schedule. When the Fifth Schedule of the Industrial Disputes Act is seen, it enlists one of the unfair labour practices in item No.10 to be thus, "To employ workmen as 'badlis', casuals or temporaries and to continue them Page 6 of 12 Downloaded on : Fri Nov 10 20:55:05 IST 2023 NEUTRAL CITATION C/LPA/1398/2022 ORDER DATED: 08/11/2023 undefined as such for years, with the object of depriving them of the status and privileges of permanent workmen"
5.2 When the employer avoids to fill up the permanent posts even when posts are available and continues to employ workers on temporary or daily wage basis taking the same work from them, which is done by the regular workers and pays meager wages, it is a case of unfair labour practice. It is an exploitative conduct where the employer keeps his employees poorly paid unbearably long. Unfair labour practice is exploitation of workmen. This situation entitles the workman to be absorbed as permanent employee casting obligation in law on the employer. In view of facts and the factual findings recorded in para 5.1 hereinabove, such situation is obtained in the present case.
5.3 In Hari Nandan Prasad and Another vs. Employer I/R to Management of Food Corporation of India and Another [(2014) 7 SCC 190], the Supreme Court emphasised the fine balancing of the rights of the employer employee in the matter of regularisation of the employees and granting temporary employees the benefit of permanency. Referring to some of its own the decisions, the Supreme Court observed that it was dependent on the facts of each case as to whether the order of regularisation is necessitated to advance justice to the daily rated workman or such benefit is to be denied where giving of such direction would infringe upon the employer's rights.
5.3.1 The decisions in Maharashtra SRTC vs. Casteribe Rajya P. Karmchari Sanghatana [(2009) 8 SCC 556] and U.P.Power Corporation Ltd. vs. Bijli Mazdoor Sangh and Others [(2007) 5 SCC 755] were considered by the court in Hari Nandan Prasad (supra). Upon harmonised reading of these two decisions, it was stated that even Page 7 of 12 Downloaded on : Fri Nov 10 20:55:05 IST 2023 NEUTRAL CITATION C/LPA/1398/2022 ORDER DATED: 08/11/2023 undefined where the posts are available, in absence of any unfair labour practice, the Labour Court cannot give direction for regularisation only on the ground of long service rendered by daily rated workman.
5.3.2 In Hari Nandan Prasad (supra), the Supreme Court, however, clarified that wherever the Labour Court or Tribunal have statutory power to grant relief to the workman it would include power to grant the relief of accruing status of permanency to the contractual employee or daily rated employee. It was in terms stated that where the employer is found to have indulged into any unfair labour practice, as defined in Industrial Disputes Act, the relief of regularisation could be extended.
5.3.3 The Supreme Court in Hari Nandan Prasad (supra) observed that in such set of facts, if regulariastion is not granted, it would even offend and violate the equality clause under Article 14 of the Constitution, "However, whenever it is found that similarly situated workmen are regularised by the employer itself under some scheme or otherwise and the workmen in question who have approached the Industrial/Labour Court are on a par with them, direction of regularisation in such cases may be legally justified, otherwise, non-regularisation of the left-over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Article 14 of the Constitution. Thus, the Industrial adjudicator would be achieved the equality by upholding Article 14 of the Constitution, rather than violating this constitutional provision." (para 39) 5.4 The Supreme Court pertinently observed in Regional Manager, State Bank of India vs. Raja Ram [(2004) 8 SCC 164] as under, "In other words, before an action can be termed as an unfair labour practice it would be necessary for the Labour Court to come to a conclusion that the badlis, casuals and temporary workmen had been continued for years as badlis, casuals or temporary workmen, with the object of depriving them of the status and privileges of permanent Page 8 of 12 Downloaded on : Fri Nov 10 20:55:05 IST 2023 NEUTRAL CITATION C/LPA/1398/2022 ORDER DATED: 08/11/2023 undefined workmen. To this has been added the judicial gloss that artificial breaks in the service of such workmen would not allow the employer to avoid a charge of unfair labour practice. However, it is the continuity of service of workmen over a period of years which is frowned upon. (para 9) 5.4.1 The Apex Court proceeded to state, "Besides, it needs to be emphasised that for the practice to amount to unfair labour practice it must be found that the workman had been retained on a casual or temporary basis with the object of depriving the workman of the status and privileges of a permanent workman. There is no such finding in this case. Therefore, Item 10 in List I of the Fifth Schedule to the Act cannot be said to apply at all to the respondent's case and the Labour Court erred in coming to the conclusion that the respondent was, in the circumstances, likely to acquire the status of a permanent employee." (para 9) 5.4.2 The decision in Raja Ram (supra), was followed in Regional Manager, State Bank of India vs. Rakesh Kumar Tewari (2006) 1 SCC 530.
5.5 In Oil and Natural Gas Corporation (supra), the Supreme Court extensively referred to the law on the issue and after eloboratly discussing the law, the following propositions were laid down, "(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution;
(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;Page 9 of 12 Downloaded on : Fri Nov 10 20:55:05 IST 2023
NEUTRAL CITATION C/LPA/1398/2022 ORDER DATED: 08/11/2023 undefined (emphasis supplied)
(iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service;
(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and
(v) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen."
(emphasis supplied) (para 34) 5.6 The test laid down in Raja Ram (supra) and Rakesh Kumar Tewari (supra) are satisfied in the facts of the present case. It could be emphatically said that the case of the workmen falls within the corners of observations and directions of the Supreme Court in Oil and Natural Gas Corporation (supra), to be classified for grant of relief of regularisation, as the vice of unfair labour practice on part of the employer is established.
5.7 In similar set of facts, yet another decision of the Co-ordinate Bench of this Court in Jamjodhpur Nagarpalika versus Sunil Punjabhai Dhakecha in R/Letters Patent Appeal No. 200 Of 2023 in R/Special Civil Application No. 18202 Of 2017 decided on 25.07.2023 deserves to be noticed. The following paragraph was observed and held,
7. ....., it is evident from the perusal of the material on record, as also the findings given by the Labour Court and the learned Single Judge that the appellant Nagarpalika had indulged in unfair labour practice by continuing the Page 10 of 12 Downloaded on : Fri Nov 10 20:55:05 IST 2023 NEUTRAL CITATION C/LPA/1398/2022 ORDER DATED: 08/11/2023 undefined respondent workman on temporary basis, though posts in the permanent set up were available. The act of appellant Nagarpalika in continuing the respondent workman on temporary basis on lower wages despite discharge of the same duties as that of a permanent employee in the permanent establishment is nothing but amounts to unfair labour practice. It is evident that the appellant Nagarpalika had continued the respondent workman for years together with the object of depriving him of the benefits payable to a permanent workman, though he was discharging the same duty as that of a permanent employee. No explanation could be offered by the appellant Nagarpalika either before the Labour Court or before the learned Single Judge or in this appeal as to why the respondent workman was continued on temporary basis on the post of Pipeline Repairer when the vacant post of Pipeline Repairer in the permanent establishment was available. No such record of permanent set up of appellant Nagarpalika was placed before the Labour Court and the findings recorded by the Labour Court that the witness or the appellant Nagarpalika admitted that there was a permanent set up but the detail thereof was not made available, could not be assailed by the learned counsel for the appellant Nagarpalika.
5.8 The evidence regarding the set up at Exh.22 shows that the posts in the set up were available and vacant. It is to be noted that in the present case, specific finding is recorded by the Industrial Tribunal and reiterated by learned single Judge that the treatment meted out to the workmen was unfair labour practice. The ratio of decisions of the Supreme court in Hari Nandan Pradad (supra), Raja Ram (supra), which the Supreme Court finally laying down the parameters in Oil and Natural Gas Corporation (supra), are applicable to the facts obtaining in the present case.
6. For all the aforesaid reasons and discussion, no ground is made out to interfere with the judgment and order of learned Single Judge in each Page 11 of 12 Downloaded on : Fri Nov 10 20:55:05 IST 2023 NEUTRAL CITATION C/LPA/1398/2022 ORDER DATED: 08/11/2023 undefined of the Letters Patent Appeals.
7. The Letters Patent Appeals stand meritless and are hereby dismissed.
The Civil Applications also stand disposed of in view of dismissal of the main Appeal.
(N.V.ANJARIA, J) (CHEEKATI MANAVENDRANATH ROY, J) C.M. JOSHI Page 12 of 12 Downloaded on : Fri Nov 10 20:55:05 IST 2023