Gujarat High Court
Amreli Municipality vs Saurastra Shramik Sangh & Ors on 8 October, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/17122/2013 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17122 of 2013
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AMRELI MUNICIPALITY ....Petitioner
Versus
SAURASTRA SHRAMIK SANGH & Ors ....Respondents ================================================================ Appearance:
MR DEEPAK P SANCHELA, ADVOCATE for the Petitioner MR GM JOSHI, ADVOCATE for the Contesting Respondent- Workman MR RASHESH RINDANI for the STATE AUTHORITIES ================================================================ CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 08/10/2014 CAV ORDER
1. Challenge in this petition is made by the employer Municipality, to the award passed by the Industrial Tribunal, Bhavnagar in Reference (IT) No.67 of 2001 dated 23.05.2013.
The Tribunal has ordered that, the respondent workman shall be treated to be in the regular employment of the Municipality, with effect from January, 2001, on the post of Clerk, on which he was working since the year 1989. During the pendency of the Reference, the concerned workman has retired on attaining the age of superannuation on 30.06.2009. The Page 1 of 7 C/SCA/17122/2013 CAV ORDER Tribunal has ordered that, the concerned workman shall be paid difference of his wages, as was paid to other confirmed employees working in the said cadre, for the period from January, 2001 to the date of his superannuation retirement i.e. 30.06.2009.
2. Heard Mr. Deepak Sanchela, learned advocate for the petitioner Municipality, Mr. G.M.Joshi, learned advocate for the contesting respondent workman and Mr.Rashesh Rindani, learned Assistant Government Pleader for the respondent State Authorities.
3.1 Mr.Sanchela, learned advocate for the petitioner Municipality has submitted that, the Tribunal has committed error by giving direction as contained in the impugned award, since the respondent workman was not appointed after following due process of recruitment, and further that there is no vacant post in the sanctioned set up, the petitioner has to follow the instructions given by the Government regarding regularisation of service and / or confirmation of the workman on permanent post, and if the workman is treated to have been regularised against permanent vacant post, it will be a back door entry, which is impermissible in law. It is further submitted that only because the concerned workman has worked for very long period, that itself is no ground to treat the said workman to be in regular employment on permanent post and he would not be entitled to get wages which other regularly appointed workmen might be getting. He has submitted that the Tribunal did not have power to grant the relief which it has. It is also submitted that the expenditure of the Municipality is also exceeding the stipulation prescribed by Page 2 of 7 C/SCA/17122/2013 CAV ORDER the Authorities of the Government and the implementation of the impugned award would be inconsistent with the set up sanctioned by the Government. It is therefore submitted that the impugned award be quashed and set aside.
3.2 Learned advocate for the petitioner Municipality has relied on the following decisions of Hon'ble the Supreme Court of India in support of his submissions.
(i) AIR 2006 SC 1806 - State of Karnataka versus Uma Devi
(ii) 2012 AIR (SCW) 3806 - Union of India versus Ram Singh Thakur
(iii) 2014(4) SCC 769 - Secretary to Government, School Education Department, Chennai versus Thiru R.Govindaswamy
4. On the other hand, Mr. G.M.Joshi, learned advocate for the contesting respondent workman has submitted that, the respondent workman has been doing the work since years, which is of permanent nature. It is submitted that, the respondent workman possesses the requisite qualification, which is the requirement for the post in question. It is submitted that, the Municipality was not paying him the wages, at par with other workmen doing the same job. It is further submitted that, even the persons junior to respondent are made permanent by the Municipality. It is submitted that, the action of the Municipality of not regularising the service of the respondent workman was only with a view to deprive him of wages and other benefits which the other employees are getting, which, in terms, is unfair labour practice. It is Page 3 of 7 C/SCA/17122/2013 CAV ORDER submitted that, the petitioner Municipality was thus resorting to unfair labour practice, and after considering the totality and evaluating the material on record, the Tribunal has recorded finding of fact in that regard and has granted consequential relief to the workman and therefore this Court may not interfere. In support of this contention, reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Hari Nandan Prasad vs. Employer I/R to Management of FCI reported in AIR 2014 SC 1848, more particularly Para-34 thereof. It is further submitted that, so far the argument of the petitioner that the procedure was not followed at the time of initial appointment of the workman, is an aspect for which the respondent can not be blamed, nor can be deprived of relief, if otherwise he is entitled to. In support of this contention, reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Bhartiya Seva Samaj Trust vs. Yogeshbhai Ambalal Patel reported in (2012) 9 SCC 310. It is submitted that, this petition be dismissed.
5. Learned Assistant Government Pleader has submitted that, the present dispute is between the petitioner - Municipality and the respondent workman. The stand of the respondent State Authorities is that it supports the present petition only qua the legal aspects involved in the matter, however, the respondent State Authorities do not support the petitioner Municipality for its action of irregular appointments or the consequences thereof.
6. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under.
Page 4 of 7C/SCA/17122/2013 CAV ORDER 6.1 The respondent workman had initially joined the service as Clerk with the petitioner Municipality on 07.11.1989 and
since then, he was working with the petitioner Municipality regularly and continuously. The Tribunal has recorded finding of fact that, the work which the respondent workman has been doing, is of permanent nature, and he had worked on the said post for years and even then he was paid his wages on daily wage basis. The petitioner Municipality had not given effect of permanency to the respondent, inspite of the fact that, on the regular set up there was a post of Clerk, which was sanctioned and vacant. It has come on record that the persons junior to him are already regularised in the service by the Municipality. With these findings of fact, the Tribunal has, in substance arrived at the conclusion that the Municipality has resorted to unfair labour practice. It is under these circumstances the Tribunal has directed that the respondent workman is entitled to wages as is payable to other regularly appointed workmen and for that purpose appropriate directions are issued. This Court finds that, the Tribunal has not committed any error while granting this relief to the workman. The impugned award therefore does not call for any interference by this Court.
6.2 So far the contentions raised on behalf of the petitioner Municipality to the effect that, at the time of initial appointment of the workman no procedure was followed etc. are concerned, the same would not take the case of the Municipality any further in view of the settled position of law that, no Authority can be permitted to agitate that, it is he, who had to follow certain procedure, which it had not followed, and therefore the workman is not entitled to any relief.
Page 5 of 7C/SCA/17122/2013 CAV ORDER Reference in this regard can be made to the observations of Hon'ble the Supreme Court of India in the case of Bhartiya Seva Samaj Trust versus Yogeshbhai Ambalal Patel reported in (2012) 9 SCC 310.
6.3 So far the authorities cited by learned advocate for the Municipality are concerned, there cannot be any dispute with regard to the proposition of law enunciated therein, however, on the face of the findings of fact recorded by the Tribunal as noted above, the same shall not take the case of the Municipality any further. This Court finds that, on conjoint reading of the findings of fact recorded by the Tribunal as noted above, and the observations of Honourable the Supreme Court of India in the case of Hari Nandan Prasad vs. Employer I/R to Management of FCI reported in AIR 2014 SC 1848, more particularly para:34 thereof, no interference is called for in the award passed by the Tribunal. This Court further finds that, any interference by this Court in the impugned award, in the facts of this case, would ultimately result in restoration of a situation of unfair labour practice, as defined under Section 2(ra) of the Industrial Disputes Act, 1947, read with the Fifth Schedule, Part-I, more particularly Entry Nos.9 and 10 thereof. This petition is therefore required to be dismissed.
7. For the reasons recorded above, this petition is dismissed. Ad-Interim relief granted in favour of the petitioner Municipality is vacated. The Municipality is directed to give effect to the impugned award, within a period of two months from today. With this direction, notice is discharged. No order as to costs.
Page 6 of 7 C/SCA/17122/2013 CAV ORDER
(PARESH UPADHYAY, J.)
8. After this order is pronounced, learned advocate for the petitioner Municipality has requested that this order be stayed for some time to enable the Municipality to approach the higher forum. Since two months' time is already granted by this Court to give effect to the impugned award of the Tribunal, no further indulgence needs to be shown to the petitioner. This request therefore is rejected.
(PARESH UPADHYAY, J.) M O Bhati/10 Page 7 of 7