Gujarat High Court
Union Of India Thro' D.A.E. Secretary & vs Kakrapar Anumathak Karmachari ... on 18 February, 2015
Author: Jayant Patel
Bench: Jayant Patel
C/SCA/8700/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8700 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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UNION OF INDIA THRO' D.A.E. SECRETARY & 1....Petitioner(s)
Versus
KAKRAPAR ANUMATHAK KARMACHARI SANGATHAN....Respondent(s)
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Appearance:
MR JD AJMERA, ADVOCATE for the Petitioners
MR TR MISHRA, ADVOCATE for the Respondents
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
Date : 18/02/2015
ORAL JUDGMENT
1. The petitioners, by this petition, challenge the award Page 1 of 7 C/SCA/8700/2003 JUDGMENT passed by the Industrial Tribunal, whereby the reference has been allowed and it is further directed that in respect of 37 concerned employees, option be given to them of their earlier services and if opted, benefit be given from the date of the training by treating it as continuous service.
2. The short facts of the case appear to be that as per the petitioners, they wanted to engage Trade Apprentice in the Kakrapar Atomic Power Project of Government of India and therefore, on 16.8.1986, an advertisement was given. The concerned employees of the respondent union (hereinafter referred to as "the concerned employees") applied for the post and they were selected and they were issued appointment letters while engaging them on apprenticeship basis. Thereafter, on 3.9.1987, the Government of India decided to form a Corporation for the Nuclear Power Projects and under these circumstances, Nuclear Power Corporation of India Limited was incorporated on 4.9.1987. On 11.5.1989, the concerned employees completed the training programme and as per the petitioners, after completion of training, they were given appointment by the Nuclear Power Corporation of India Limited (hereinafter referred to as "Power Corporation"). The concerned employees accepted all the conditions and later on, options were given also to the other Government of India employees, who were on deputation with the Power Corporation. Such continued for a long time. However, in the year 1999, the dispute was raised by the respondent union on behalf of the concerned employees contending that the option for absorption or retaining the rights with the Government of India should have been given. Such dispute was referred to the Tribunal for adjudication being Reference (ITC) No.30 of Page 2 of 7 C/SCA/8700/2003 JUDGMENT 1999. The Tribunal ultimately passed the above referred award. Under the circumstances, present petition before this Court.
3. I have heard Mr. Ajmera, learned counsel appearing for the petitioners and Mr. Mishra, learned counsel appearing for the respondents.
4. The copy of one of the appointment orders is produced at Annexure D dated 8.4.1987 by which the concerned employees and the other similarly situated persons were offered apprenticeship for the purpose of training. In the said letter, it has been stated as under:
"You are hereby offered a Trade Apprenticeship in this Project."
5. There are various conditions, to which we are not much concerned in the present matter. The relevant condition is condition No.7, which reads as under:
"On your joining the training you will be required to execute an agreement in the prescribed form (enclosed) undertaking:-
a) to complete the course of training within the prescribed period, and;
b) to serve, on successful completion of training any of the organization/constituent units under the Department of Atomic Energy for a period of five years if offered employment."
[Emphasis supplied]
6. The aforesaid shows that the obligation is created upon the concerned employees, who complete the training to serve with the department for a period of five years, but the Page 3 of 7 C/SCA/8700/2003 JUDGMENT contingency is that if he or she is offered employment. There is no counter obligation with the Government of India to offer employment. It is undisputed position that when the concerned employees completed the training, the Power Corporation was already formed and the appointment orders were issued in 1989. The concerned employees consciously accepted all conditions as that of the employees of the Power Corporation and continued in the service of the Power Corporation for about 10 years i.e. upto 1999. The concerned employees also enjoyed the benefit as if the employees of the Power Corporation. After a period of about 10 years, a dispute has been raised referred to herein above that the option should have been made available to the concerned employees to continue the benefit of the Government of India.
7. In my view, there was no obligation on the part of the Government of India to offer employment pursuant to the letter for offering apprenticeship after completion of requisite training period. Secondly, when the concerned employees completed the training, by that time, the Power Corporation was already formed and the project was assigned to the Power Corporation. Thirdly, after completion of training, appointment is offered by the Power Corporation to the concerned employees and not by the Government of India. Fourthly, the concerned employees consciously accepted all terms and conditions of the appointment order and they continued to enjoy the benefit as if the employees of the Corporation for a period of about 10 years and the dispute is raised for the first time in the year 1999. In my view, the Tribunal committed apparent error on the face of the record in reaching to the finding that if any person was appointed as Page 4 of 7 C/SCA/8700/2003 JUDGMENT employee of the Government of India, the period undergone during the training was to be counted and therefore, it can be said that the training was by the Government of India and those persons would have a right as if the employees of the Government of India. The Tribunal lost sight of the aspect though it was already on record that training as Trade Apprenticeship cannot be equated with the regular selection process, wherein after employment, the persons are sent on training. Further, the Tribunal failed to consider that there was express condition in the apprenticeship offered by the Government of India that after completion of training, the concerned employees would be required to serve, but the condition precedent was for offering employment and that is why the language used is "employment if offered". No employment was offered upon completion of the training period by the Government of India, but it came to be offered by the Power Corporation. Under these circumstances, it is difficult to reach the conclusion that there was any relationship of employer and employee with Government of India at the time when the concerned employees started regular service with the Power Corporation. The relation, if any, was with the Power Corporation and in any case, such relation had ceased with Government of India once the concerned employees accepted the offer made by the Power Corporation for employment and agreed to abide by all terms and conditions. In my view, such aspect has not at all been properly considered by the Tribunal and the Tribunal is said to have committed error apparent on the face of the record.
8. Mr. Mishra, learned counsel appearing for the concerned employees and the union attempted to contend that Page 5 of 7 C/SCA/8700/2003 JUDGMENT in respect of canteen employees, who were engaged by the contractor as contract labourer, were absorbed by the Government of India and they are treated as if the employees of the Government of India including for pension purpose and such may either be termed as a ground of discrimination or it could be said as a valid cause for the petitioners through union to raise a dispute and under such circumstances, though were before the Tribunal, but not specifically dealt with, may be considered by this Court before quashing of the award passed by the Tribunal even if this Court finds that the Tribunal committed error apparent on the face of the record.
9. In my view, the attempt cannot be countenance for the reason that the concerned employees in the present case were unlike the employees of the contract labourer working in the canteen. Further, whether to absorb the employees of the contractor by the Government of India or not is essentially a policy decision, but on such ground, the discrimination cannot be said since the concerned employees in the present case were already offered Trade Apprenticeship and further they were already offered the employment by the Power Corporation. As such, unless the parity is there in all respect, the ground of discrimination cannot be invoked as canvassed. Hence, I do not find that such contention would make any difference for maintaining the award passed by the Tribunal.
10. In view of the aforesaid observations and discussions, the award passed by the Tribunal cannot be sustained in the eye of law. Resultantly, the same is quashed and set aside with the observation that the reference shall stand dismissed. The petition is allowed to the aforesaid extent. Rule is made Page 6 of 7 C/SCA/8700/2003 JUDGMENT absolute to the aforesaid extent. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) shekhar Page 7 of 7