Gujarat High Court
Menderda Gram Panchayat Thru ... vs Maheshbhai Ramjibhai Maheta on 16 February, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/1754/2022 ORDER DATED: 16/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.1754 of 2022
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MENDERDA GRAM PANCHAYAT
THRU ADMINISTRATOR / SARPANCH
Versus
MAHESHBHAI RAMJIBHAI MAHETA & 1 other(s)
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Appearance:
MR DIPAL R RAVAIYA(6532) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR SAMIR B GOHIL(5718) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 16/02/2022
ORAL ORDER
1. The petitioner is a statutory body constituted under the provisions of the Gujarat Panchayats Act, 1993. Prior thereto, it was under the control of the Administrator appointed by the State Government.
2. Respondent no.1 is a workman working as a Helper (Walveman) in the office of the petitioner-Gram Panchayat. He was given employment as a daily wager since October, 2002. By way of Reference (D) Case No.6 of 2011, the respondent no.1 claimed the benefit of regularization in service, including other benefits before the Labour Court, Junagadh.
3. The Labour Court, Junagadh, after adjudication of the matter, passed an award on 09.09.2021, directing the petitioner to regularise the respondent from 15.03.2011 i.e. from the date of making the reference. The petitioner is also directed to grant financial benefit from 01.01.2021, however for the intervening period from 15.03.2011 till 31.12.2020, no Page 1 of 5 Downloaded on : Fri Feb 18 21:10:09 IST 2022 C/SCA/1754/2022 ORDER DATED: 16/02/2022 financial benefit is granted.
4. The petitioner, being aggrieved by the same, preferred Special Civil Application No.4728 of 2018 before this Court and by order dated 17.09.2019 this Court had set aside the award passed by the Labour Court and remanded the matter back to the Labour Court to decide afresh.
5. According to the petitioner, the Labour Court, without properly adjudicating the matter, passed final award dated 09.09.2021, whereby, it was directed that the respondent no.1 be reinstated by the petitioner, treating his service as continued and permanent.
6. It is submitted that the Development Commissioner, Gujarat State has issued a setup list of the employees sanctioning the posts in the respective Village Panchayat on 24.04.1973, however, there is no sanctioned post of Walveman for in the petitioner-Gram Panchayat. Therefore, the petitioner has challenged the impugned award. It is submitted that the Labour Court has erred in not considering the Notification dated 25.08.1983 issued by the Secretary, Panchayat Department, to the effect that the Gram Panchayat has no power to regularise the service of any employee.
7. In response to the aforesaid submission, learned advocate Mr.Samir Gohil appearing for the respondent workman has placed reliance on the order dated 19.09.2019 passed in Special Civil Application No.15709 of 2019 and has submitted that the issue is squarely covered, since the co-
Page 2 of 5 Downloaded on : Fri Feb 18 21:10:09 IST 2022C/SCA/1754/2022 ORDER DATED: 16/02/2022 employee of the respondent-workman, in whose favour the Labour Court had passed the award, the same is confirmed by the Coordinate Bench.
8. This Court has heard the learned advocates appearing for the respective parties.
9. It is not in dispute that the Coordinate Bench has confirmed an identical award vide order dated 19.09.2019 passed in Special Civil Application No.15709 of 2019. Mr.Dipal R. Ravaiya appearing for the petitioner has submitted that since there is no sanctioned post of Walveman, the workman cannot be regularized. It is submitted that the Labour Court has also ignored the Notification dated 25.08.1983 issued by the Secretary, Panchayat Department, Gujarat State that the Gram Panchayat has no power or authority to regularize the service of any of the employees working in the Gram Panchayat. According to him, the Development Commissioner, Gujarat State has issued a setup list of the employees sanctioning the posts in the respective Village Panchayats on 24.04.1973, however, since there is no sanctioned post of Walveman in Mendarda Gram Panchayat, and hence, the impugned award passed by the Labour Court shall have to be quashed and set aside.
9. It is an established fact that the respondent no.1 is working with the petitioner from last 20 years. There is no dispute that he has continued to work every year for 240 days and his service was on a continuous and uninterrupted basis. This has been noted by the Labour Court on the basis Page 3 of 5 Downloaded on : Fri Feb 18 21:10:09 IST 2022 C/SCA/1754/2022 ORDER DATED: 16/02/2022 of the documentary as well as oral evidence. The only plea that has been taken is of absence of any setup of Walveman. It is noteworthy that the Labour Court has extensively dealt with oral as well as documentary evidences and has noted that though the work of the permanent employee has been taken from the respondent no.1, he has not been paid the dues by the petitioner under the pretext of absence of sanctioned post. It has rightly termed this conduct of the petitioner as "unfair labour practice" from last 20 years. The respondent admittedly has been working as a Walveman (Class-IV) and that has been proved by clinching evidence of the petitioner's side. Relying upon the decisions rendered in cases of Umrada Gram Panchayat v. Secretary, Municipal Employees Union and others reported in 2015 (1) GLH 712 and the decision of Vrajlal Bachubhai Khachariya v. State of Gujarat reported in 2018 (1) GLH 56, the Labour Court has chosen to partly allow the case of the respondent.
10. This Court finds that the law on the subject is duly applied to the proved facts by the Presiding Officer. The proof of 240 days of working continuously each year is an unquestionable proof, which is derived from the officially maintained documents on the part of the petitioner. The authorities, which are termed as 'State' under Article 12 of the Constitution of India surely cannot shield themselves behind the availability of the sanctioned post when it chooses to take work from the workman of the very post for such a long period. Therefore, there would be no requirement to interfere with the award of the Labour Court. There is also constant and continuous requirement of services in the setup of the petitioner Panchayat.
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11. In similar set of facts, in case of another employee, who was working as a Plumber, the Coordinate Bench has confirmed the award dated 12.12.2017 passed in Reference (D) Case No.2 of 2011, vide order dated 19.09.2019 in Special Civil Application No.15709 of 2019. The petitioner had raised similar contentions, which are raised in the present writ petition.
12. The impugned award does not suffer from any illegality or perversity. Hence, this petition is summarily rejected.
(A. S. SUPEHIA, J) MAHESH BHATI/34 Page 5 of 5 Downloaded on : Fri Feb 18 21:10:09 IST 2022