Gujarat High Court
Saurashtra Shramik Sangh & 2 vs Savarkundala Municipality & on 24 January, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/619/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 619 of 2013
[On note for speaking to minutes of order dated 09/09/2016 in
C/SCA/619/2013 ]
SAURASHTRA SHRAMIK SANGH & 2....Petitioner(s)
Versus
SAVARKUNDALA MUNICIPALITY & 1....Respondent(s)
Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1 - 3
MR DEEPAK P SANCHELA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1 - 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 24/01/2017
ORAL ORDER
Learned advocate for the petitioners in Special Civil Application No.619 of 2013 has taken-out Note for Speaking to Minutes dated 19.1.2017 with reference to judgment dated 9.9.2016 in Special Civil Application No.619 of 2013.
2. In the Note for Speaking to Minutes dated 19.1.2017, learned advocate has stated that:-
"The above petition was disposed off by judgment dated 09/09/2016 (Coram: Honourable Mr. Justice K.M.Thaker). Inadvertently there was a typographical error in paragraph number 33.(b) of the abovementioned judgment. With respect to the Reference (I.T.) number, instead of Reference (I.T) no.98 of 1999 and Reference (I.T) no.151 of 1999, the Reference (I.T) no.99 of 1999 is correct reference (I.T) number against which the abovementioned petition is preferred."
3. In view of said submissions and with consent of Mr. Sanchela, learned advocate for the respondent, office is directed to make below mentioned corrections in last two Page 1 HC-NIC Page 1 of 23 Created On Thu Jan 26 01:59:00 IST 2017 1 of 23 C/SCA/619/2013 ORDER lines of paragraph No.33(b) on page No.19 of the judgment dated 9.9.2016 in Special Civil Application No.619 of 2013. 3.1 Instead of Reference (IT) No.98 of 1999, following number shall be substituted [by deleting Reference (IT) No.98 of 1999].
"Reference (IT) No.99 of 1999"
3.2 The last line of paragraph No.33(b), which reads thus:-
"and Reference (IT) No.151 of 1999" shall be deleted and the word "are" shall be deleted and substituted by word "is".
With aforesaid directions, the Note for Speaking to Minutes dated 19.1.2017 stands disposed of.
(K.M.THAKER, J.) kdc Page 2 HC-NIC Page 2 of 23 Created On Thu Jan 26 01:59:00 IST 2017 2 of 23 C/SCA/619/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 619 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER ========================================================== 1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?
2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of NO the judgment ?
4 Whether this case involves a substantial question of NO law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== SAURASHTRA SHRAMIK SANGH & 2....Petitioner(s) Versus SAVARKUNDALA MUNICIPALITY & 1....Respondent(s) ========================================================== Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1 - 3 MR DEEPAK P SANCHELA, ADVOCATE for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No. 1 - 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 09/09/2016 ORAL JUDGMENT
1. Heard Mr. Joshi, learned advocate for the Page 1 of 21 HC-NIC Page 3 of 23 Created On Thu Jan 26 01:59:00 IST 2017
3 of 23 C/SCA/619/2013 JUDGMENT petitioners and Mr. Sanchela, learned advocate for the respondent.
2. In captioned petition two petitioners - out of original three claimants - have challenged award dated 3.12.2011 passed by learned Industrial Tribunal at Bhavnagar in Reference (IT) No.99 of 1999 whereby learned Tribunal rejected the said reference case.
3. So far as factual aspects are concerned, it has emerged from the record and from the submissions by learned advocates that two (Mr.I.H. Jhankhara and Mr.M.M. Jhankhara) out of three claimants in Reference Case No.99 of 1999 (i.e. SCA No.472/2013) were engaged by the respondent Nagar Palika in the category of Fitter. One claimant (Mr.P. Desai), a Valveman, did not pursue his claim - reference. Therefore, nil reference is passed qua third claimant i.e. Mr.P Desai.
4. It has also emerged from the record and from Page 2 of 21 HC-NIC Page 4 of 23 Created On Thu Jan 26 01:59:00 IST 2017 4 of 23 C/SCA/619/2013 JUDGMENT the submissions by learned advocates that two workmen are concerned in this petition.
5. Order of reference was passed in respect of three persons, however, the third employee, i.e. Mr.Pravinbhai seems to have voluntarily left the job and he did not prosecute the reference. He had not come forward to offer his evidence and press in service his claim. Therefore, the learned Tribunal considered the case of two claimants and this petition is also restricted to two claimants.
6. Both claimants alleged that they are engaged as and working as Fitter.
7. Mr.Ismail Jakhra allegedly joined the service with the Nagarpalika on 28.4.1995 as Fitter whereas Mr.Mehboob Jakhra allegedly joined the service with the Nagarpalika on 28.4.1997 as Fitter.
8. In this background, the dispute raised by the claimants was referred for adjudication to the Page 3 of 21 HC-NIC Page 5 of 23 Created On Thu Jan 26 01:59:00 IST 2017 5 of 23 C/SCA/619/2013 JUDGMENT learned Industrial Tribunal and it culminated into Reference (IT) No.99 of 1999.
9. In their statement of claim, the claimants alleged that they have been working as Fitter with the Nagarpalika more than 10 years and that the duties performed by them are of permanent nature and they performed duties and functions similar to the duties performed by other workmen. They also alleged that during the tenure of more than 10 years, they worked continuously and regularly and more than 240 days. With such allegation, the claimants demanded that their services should be regularized and they should be treated permanent employees of the Nagarpalika and all benefits at par with permanent employees should be granted to them.
10. The Nagarpalika opposed the reference and contended in its written statement that the claimants are engaged without following procedure for selection and recruitment and that there is no post of Fitter on sanctioned set up and even Page 4 of 21 HC-NIC Page 6 of 23 Created On Thu Jan 26 01:59:00 IST 2017 6 of 23 C/SCA/619/2013 JUDGMENT otherwise, no vacancy where the claimants can be engaged. It was also contended that the work performed by the claimants is not of permanent requirement but need for work of Fitter arises only casually or intermittently and at such times the claimants are engaged for temporary and fixed period on daily wage basis. The Nagarpalika also denied the allegations by the claimants about length of service or that they have worked for 240 days or that they performed duties similar to the duties performed by regular employees etc. The Nagarpalika contended that the demand by the claimants amounts to seeking backdoor entry which does not deserve to be granted.
11. When the parties completed their pleadings, the learned Tribunal received evidence from both the sides. Upon conclusion of evidence of both sides, the learned Tribunal heard rival submissions and thereafter passed impugned award with above directions.
12. Mr.Joshi, learned counsel for the claimants, Page 5 of 21 HC-NIC Page 7 of 23 Created On Thu Jan 26 01:59:00 IST 2017 7 of 23 C/SCA/619/2013 JUDGMENT submitted that the workmen has been working as Fitter with the Nagarpalika since more than 10 years. He also claimed that present claimants were engaged after they passed through interview. The claimants are working continuously and regularly and in each year, the claimants have worked for more than 240 days. He also submitted that nature of duties and functions performed by the claimants are similar to the duties and functions performed by other workmen who are considered regular/permanent workmen in the same cadre/category where the claimants are working. The area of Nagarpalika, the population of the city, the roads and buildings etc. and need for more number of employees have increased manifold since the time the set up of the Nagarpalika was sanctioned/finalized by the State Government and despite such all round increase in the working/service area of the Nagarpalika, there is no corresponding increase in the sanctioned set up of the municipality. Any steps either to increase the sanctioned set up and/or to increase Page 6 of 21 HC-NIC Page 8 of 23 Created On Thu Jan 26 01:59:00 IST 2017 8 of 23 C/SCA/619/2013 JUDGMENT the income/source of income are not taken by the Nagarpalika and the position of statusquo as regards the set up, number of employees, income, etc. has continued since many years and that therefore, the Nagarpalika is not justified in contending that in absence of posts and/or vacancy on sanctioned set up, the demand by the claimants cannot be considered and granted. According to learned counsel for the claimants, the very fact that the claimants are continuously engaged by the Nagarpalika for more than 10 years establishes the need and requirement of the claimants and their service. Despite such fact, the claimants are continued in service on daily wage basis and the benefits available to regular and permanent employees are not extended to the claimants and despite such facts, the status of permanent workmen is not conferred to the claimants and they are not treated as regular employees of the Nagarpalika. According to learned counsel for the claimants, the practice of the Nagarpalika amounts to unfair labour Page 7 of 21 HC-NIC Page 9 of 23 Created On Thu Jan 26 01:59:00 IST 2017 9 of 23 C/SCA/619/2013 JUDGMENT practice. He submitted that if the unfair labour practice is established, then, the learned Tribunal can grant appropriate relief irrespective of the constraints in the area of regularization of service of the employees.
13. Per contra, Mr. Sanchela, learned counsel for the Nagarpalika, submitted that the Nagarpalika being a statutory body is bound by its regulations and it cannot deviate from or commit breach of regularizations. He denied the claim and allegations by the claimants. He also denied the allegations that the claimants have been working regularly and continuously and/or that they have been engaged as Fitter and that they are working for more than 10 to 12 years and/or that they have been working as Fitter or that they were selected / appointed after interview. He further submitted that under the Act and under rules procedure for selection and recruitment of the employees is prescribed and that therefore the Nagarpalika cannot appoint / recruit any Page 8 of 21 HC-NIC Page 10 of 23 Created On Thu Jan 26 01:59:00 IST 2017 10 of 23 C/SCA/619/2013 JUDGMENT employee on its permanent set up without prescribed procedure. Learned advocate for the Nagarpalika submitted that claimants have been engaged without following prescribed procedure and that therefore their appointments cannot be regularized. According to learned advocate for the Nagarpalika if the services of the claimants are regularized and if the Nagarpalika is directed to confer status of permanent workmen to the claimants then it would amount to regularization of backdoor entry which is not permissible in law. Mr. Sanchela, learned advocate for the Nagarpalika reiterated and emphasized the irregularities and defects in the appointments of the claimants and he also reiterated and emphasized the fact that there is neither post nor vacancy on the sanctioned set up of the Nagarpalika. Mr.Sanchela, learned advocate for the Nagarpalika relied on the decisions in case of Secretary, State of Karnataka and others vs. Umadevi (3) and others [(2006) 4 SCC 1] and in the case of Amreli Municipality vs. Gujarat Page 9 of 21 HC-NIC Page 11 of 23 Created On Thu Jan 26 01:59:00 IST 2017 11 of 23 C/SCA/619/2013 JUDGMENT Pradesh Municipal [2004 (3) GLR 1841].
14. In rejoinder Mr.Joshi, learned advocate for the claimants submitted that so far as decision by full bench in case of Amreli Nagarpalika is concerned learned Single Judge and Hon'ble Division Bench have, after cited decision by full bench and after considering the said decision approved and confirmed the orders passed by the learned Labour Court and learned Industrial Court granting the claim for regularization in service. He also submitted that when case for unfair labour practice is established the Labour Court or industrial court would have jurisdiction and authority to grant appropriate relief to cure and set right unfair labour practice.
15. I have considered impugned award and material on record and I have also considered rival submissions.
16. It appears from the record that both claimants had filed affidavit in lieu of Page 10 of 21 HC-NIC Page 12 of 23 Created On Thu Jan 26 01:59:00 IST 2017 12 of 23 C/SCA/619/2013 JUDGMENT ExaminationinChief. From the discussion in the award, it appears that the Nagarpalika did not lead any specific evidence to controvert the said allegations by the claimants.
17. It has emerged from the record that claimant Mr.Ismail Jakhra as well as claimant Mr.Mehboob Jakhra had filed affidavit, wherein they stated that they had submitted application for appointment in response to the advertisement issued by the Nagarpalika and that they were selected after interview. They have claimed that they were called for interview and their interview was conducted and thereafter they were selected. The said two claimants also mentioned names of certain persons who, according to their allegation, were junior to them, however, they were continued in service, whereas their services were discontinued. The said claimants also alleged that after their services were terminated, certain other persons were appointed / engaged by the Nagarpalika. In the Page 11 of 21 HC-NIC Page 13 of 23 Created On Thu Jan 26 01:59:00 IST 2017 13 of 23 C/SCA/619/2013 JUDGMENT said affidavit the claimants also mentioned names of the persons who were allegedly engaged after they were appointed i.e. who were junior to them and yet their services have been allegedly regularized.
18. According to the Nagarpalika, need for Fitter arises only intermittently and actually there is no requirement of service of Fitter on regular and daily basis.
19. From the discussion in the award, it appears that the Nagarpalika did not lead any specific evidence to controvert the said allegations by the claimants.
20. The claimants have also claimed that they have been working since 1995 and 1997 and they have been working continuously and regularly with the Nagarpalika. The said claim of the workmen is not controverted by the Nagarpalika.
21. The said assertion of the claimants is considered and dealt with by the learned Tribunal Page 12 of 21 HC-NIC Page 14 of 23 Created On Thu Jan 26 01:59:00 IST 2017 14 of 23 C/SCA/619/2013 JUDGMENT in paragraphs No.11 to 13 of the award wherein, the learned Tribunal has, after examining the evidence, recorded that the assertion by the claimants is not converted by the Nagarpalika and that, therefore, there is no reason or justification to believe the statements of claimants that services of the said other persons have been regularized by the Nagarpalika. The learned Tribunal has also recorded that the Nagarpalika has implemented couple of awards passed by the learned Labour Court or the learned Industrial Tribunal, in respect of certain claimants and the said claimants have been regularized in service as Fitter, in compliance of the award.
22. It, however, appears that such observations are, probably, recorded only on the basis of allegations by the claimant i.e. without actually examining respective / specific award and reasons for such direction. On this count, there is no discussion in impugned award.
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23. From the award, it appears that the claimants, in their evidence, also alleged that they had submitted application in response to advertisement inviting applications for the post of Fitter and that their applications were considered by the Nagarpalika and they were called for interview and after personal interview they were selected and appointed.
24. The claimants also alleged that duties and functions which they are performing, are of permanent nature and regular and permanent employees who are working as Fitter, are performing similar duties and there is no difference in the duties and functions performed by them and the regular / permanent workmen are engaged as Fitter.
25. The case of the claimants that they had submitted an application and they were selected after personal interview, is considered by the learned Tribunal in paragraph No.12 of the award.
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According to the observations in the award, it does not come out that the Nagarpalika had disputed the said case and allegations by the claimants.
26. What is pertinent is the fact that after discussing above mentioned aspects, the learned Tribunal has, after taking into account the sanctioned set up, observed that the post of Fitter does not figure in the sanctioned set up.
27. Unfortunately, even after recording certain relevant factual aspects in paragraph Nos. 11 to 13 of the award the learned Tribunal did not consider it necessary and appropriate to examine the case of the claimants from perspective of unfair labour practice.
28. At this stage, it is worthwhile to turn to paragraph No.12 of the award. The learned Tribunal has, in the said paragraph No.12, observed, after taking into account Exh.31 (sanctioned set up of the Nagarpalika which was Page 15 of 21 HC-NIC Page 17 of 23 Created On Thu Jan 26 01:59:00 IST 2017 17 of 23 C/SCA/619/2013 JUDGMENT applicable in 200910), that at Sr.Nos.60, 61 and 62, posts of Valve Operator, Fitter and Bore Operator are mentioned against the column which contain the details about total number of said posts on sanctioned set up and the column reflects 'Nil'. Thus, there are no sanctioned posts. Thereafter, the learned Tribunal has referred to Exh.41 (i.e. sanctioned set up applicable to the Nagarpalika after June 2010) and after considering the details from said Exh.41, the learned Tribunal has observed that even in the said set up, there is no sanctioned post of Fitter. Thereafter, in paragraph No.13 of the award, the learned Tribunal has recorded that from Exh.31 it appears that the Nagarpalika had regularized service of three persons who worked as Fitter on account of the award passed by the learned Tribunal. The learned Tribunal has further observed that the said three persons seem to have been appointed in 199597. From the observations in paragraphs No.12 and 13, it does not come out that the learned Tribunal recorded Page 16 of 21 HC-NIC Page 18 of 23 Created On Thu Jan 26 01:59:00 IST 2017 18 of 23 C/SCA/619/2013 JUDGMENT the said observations with regard to regularization of service of three persons after actually examining the award passed by the learned Labour Court / learned Tribunal and after verifying / confirming the factual aspects, i.e. names of the persons in the award with the list of employees in the service of panchayat and whether they are the same persons whose names are alleged by present claimants and whether their services have been actually regularized as Fitter and whether they are actually engaged and working as Fitter (after the regularization) and whether their initial appointment was after the date of appointment of present respondents.
29. The said factual aspects as well as the aspects related to the claimant's allegation about unfair labour practice and/or the aspects which emerge from the affidavits filed by both claimants (i.e. they had submitted applications in pursuance of the advertisement and they were selected after interview) are not examined by the Page 17 of 21 HC-NIC Page 19 of 23 Created On Thu Jan 26 01:59:00 IST 2017 19 of 23 C/SCA/619/2013 JUDGMENT learned Labour Court.
30. The learned Tribunal has also not addressed the issue as to whether the advertisement which was allegedly issued by the Nagarpalika (according to the details mentioned in the affidavit dated 9.11.2009 filed by the claimants) was actually issued or not and whether the said advertisement was issued for inviting applications for the post of Fitter or for some other posts. The learned Tribunal has passed the impugned award without considering above mentioned and such other relevant factual aspects related to and connected with the claim of present respondents.
31. From the facts of the case, it appears that the said aspects deserve to be considered by the learned Tribunal before reaching to and before recording final conclusion with reference to the demand of present respondents.
32. Since the said aspects have not been examined Page 18 of 21 HC-NIC Page 20 of 23 Created On Thu Jan 26 01:59:00 IST 2017 20 of 23 C/SCA/619/2013 JUDGMENT by the learned Tribunal and final conclusion is recorded by the learned Tribunal without examining the said aspects and without addressing the issue that if any post of Fitter was not available on sanctioned set up, then how could the Nagarpalika have regularized service of three claimants on post of Fitter, the matters deserve to be remanded to the learned Tribunal so that the learned Tribunal can verify relevant documents and ascertain / confirm the factual aspects, more particularly availability or absence of post of Fitter on sanctioned set up (at the time when present respondents raised demand as well as at the time when the service of three claimants came to be allegedly regularized on the post of Fitter and at the time when the learned Tribunal passed the award).
33. Therefore, following order is passed:
(a) The impugned awards are quashed and set aside with a view to remanding the cases for reconsideration by the learned tribunal.Page 19 of 21
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(b) Two awards dated 1.12.2011 and 2.12.2011 passed by learned Industrial Tribunal at Bhavnagar in Reference (IT) No. 98 of 1999 and Reference (IT) No. 151 of 1999 are remanded to the learned tribunal for fresh consideration.
(c) The learned Tribunal shall decide the said two reference cases a fresh after granting opportunity of hearing to both the sides.
(d) It will be open to the claimants as well as Nagarpalika to raise such contention as may be available in law and in light of the facts and evidence available on record.
(e) After considering evidence available on record and the observations by Hon'ble Apex Court in above mentioned cases, learned tribunal shall decide said two reference cases a fresh in accordance with law, however without being influenced by previous or impugned awards.
The petitions are disposed of accordingly.
Page 20 of 21 HC-NIC Page 22 of 23 Created On Thu Jan 26 01:59:00 IST 2017 22 of 23 C/SCA/619/2013 JUDGMENT (K.M.THAKER, J.) Bharat Page 21 of 21 HC-NIC Page 23 of 23 Created On Thu Jan 26 01:59:00 IST 2017 23 of 23