Gujarat High Court
Vegad Chitharbhai Mohanbhai vs Khetivadi Utpan Bazar on 23 January, 2017
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/9693/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9693 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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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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VEGAD CHITHARBHAI MOHANBHAI....Petitioner(s)
Versus
KHETIVADI UTPAN BAZAR....Respondent(s)
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Appearance:
MS M O NARSINGHANI, ADVOCATE for the Petitioner(s) No. 1
MR VC VAGHELA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 23/01/2017
ORAL JUDGMENT
Page 1 of 11
HC-NIC Page 1 of 11 Created On Sat Aug 12 20:47:03 IST 2017 C/SCA/9693/2015 JUDGMENT
1. This petition seeks quashment of the award dated 30th April, 2015 passed below Reference D No.1 of 2001 by Labour Court, Bhavnagar whereby, the Reference came to be rejected. The petitionerworkman sought regularization of service which came to be declined by the Labour Court principally on two grounds:
I) that the appointment of the petitioner was contractual.
II) that no set up was available.
2. Having considered the rival contentions, both the above grounds for rejection of the Reference are found to be not sustainable for the following reasons.
2.1 A bare perusal of the document which is nomenclatured as a contract is in fact a one side assurance given by the workman to the employer for compliance with the conditions noted therein. There was nothing on record of the Labour Court to infer acceptance of the said offer made by the workman to constitute a contract or agreement under the relevant provisions of the Indian Contract Act, 1872. The Labour Court having failed to take into consideration the said legal position, fell into serious error of law.
2.2 As regards lack of sanctioned post, the reliance is sought by the learned counsel for the Page 2 of 11 HC-NIC Page 2 of 11 Created On Sat Aug 12 20:47:03 IST 2017 C/SCA/9693/2015 JUDGMENT respondentemployer on Section 22 of the Gujarat Agricultural Produce Market, Act 1963 as also Rule 41A of Gujarat Agricultural Produce Market Rules which, for ready reference are reproduced hereunder:
"Section 22. Appointment of servants of market committee and conditions of service. (1) There shall be a Secretary for every market committee, who shall be appointed by the market committee with the approval of the Director and subject to the terms and conditions prescribed. The Secretary shall exercise such powers and perform such duties as the market committee may from time to time direct.
(2) The market committee may employ such other officers and servants as may be necessary for the management of the market. The market committee shall, in the case of any officer or servant of Government whom it employs pay such pension, contribution, gratuity or leave allowance as may be required by the conditions of his service under Government for the time being in force.
(3) Subject to any rules made in this behalf, the market committee may provide for the payment to its officer and servants of such salaries, leave, Page 3 of 11 HC-NIC Page 3 of 11 Created On Sat Aug 12 20:47:03 IST 2017 C/SCA/9693/2015 JUDGMENT allowances, pensions or gratuities as it deems proper, and may contribute to any provident fund which may be established for their benefit."
"Rule 41A. Salary of Secretary, Officers and Servants of the Market Committee. (1) The Market Committee shall pay to the Secretary, officers and Servants of the Committee salary in scales not higher then the scales specified below the different categories of Market Committee as may be approved by it.
(A) Market Committee with annual income for last three completed financial years of above Rs.16/ lakhs(Category A.) S.No. Name of the Post Pay Scale 1 Secretary 2200-75-280-EB-100-4000 2 Assistant Secretary 1640-60-2600-EB-75-2900 3 Overseer 1400-40-1600-50-2300-EB-60-2600 4 Accountant or Inspector 1400-40-1600-50-2300-EB-60-2600 5 Statistician 1350-30-1440-1800-EB-50-2200 6 Supervisor 1350-30-1440-1800-EB-50-2200 7 Cashier 1350-30-1440-1800-EB-50-2200 (B) Market Committee with annual income for last three completed financial years of above Rs.8/ lakhs and up to Rs.16/ lakhs (CategoryB) S.No Name of the Post Pay Scale 1 Secretary 2000-60-2300-EB-75-3200-100-3500 2 Assistant Secretary 1400-40-1600-50-2300-EB-60-2600 3 Accountant or Inspector 1350-30-1440-1800-EB-50-2200 4 Supervisor 1200-30-1560-EB-40-2040 5 Statistician 950-20-1150-EB-25-1590 Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat Aug 12 20:47:03 IST 2017 C/SCA/9693/2015 JUDGMENT (C) Market Committee with annual income for last three completed financial years of above Rs.2/ lakhs and up to Rs.8/ lakhs (Category C) S.No Name of the Post Pay Scale 1 Secretary 1640-60-2600-EB-75-2900 2 Assistant Secretary 1200-30-1560-EB-40-2040 3 Accountant or Inspector 1200-30-1560-EB-40-2040 (D) Market Committee with annual income of up to Rs.2/ lakhs per annum or those not covered by Categories "A", "B", and "C".
S.No Name of the Post Pay Scale
1 Secretary 1400-40-1600-50-2300-EB-60-2600
2 Assistant Secretary or 1200-30-1560-EB-40-2040
3 Inspector or Accountant 1200-30-1560-EB-40-2040
(E) For other cadre
4 Clerk 950-20-1150-EB-25-1500
5 Naik/Peon/Watchman 750-12-870-EB-14-940
6 Rent House Man 775-12-955-EB-14-1025
7 Auctioner from whom 950-20-1150-EB-25-1500
work of Clerk is being
taken
8 Auctioner/Auction 950-20-1150-EB-25-1150
Clerk/Harrajidar/Recorder
/ Kunta Clerk/Canteen
Manager/Motor
Driver/Clerk-cum-
Inspector/Accountant
Clerk
9 Naik 775-12-955-EB-14-1150
10 Sweeper/Gardener/Door- 750-12-870-EB-14-940
Keeper/Watchman/Water
man
Provided that
(i) in approving the scales to be paid to the employees of the Market Committee, the Page 5 of 11 HC-NIC Page 5 of 11 Created On Sat Aug 12 20:47:03 IST 2017 C/SCA/9693/2015 JUDGMENT Market Committee shall take into consideration its capacity to pay and the need for resources for meeting its obligations and objectives under the Act and total expenditure on salaries and all allowances including retirement benefits, if any (including wages of daily rated or casual employees) shall not normally exceed 40% of the income for the year;
(ii) where the total annual expenditure on salaries and all allowances including retirement benefits, if any (including wages of daily rates or casual employees) is estimated to exceed 40% of the estimated income for the year 198889, the prior approval of the Director shall be required for financing the pay scales within the maximum indicated above.
(iii) Where the category of a Market Committee on the basis of last three year's income is to be changed upwards, such Market Committee shall pay salary in scales not exceeding the scales applicable for that category with effect from the first day of the first if such years. (2) The Market Committee may pay such clearness allowance and other allowances o the Secretary, officers and servants of the Committee as it may decide subject to the maximum payable by the State Government to its employees stationed at Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Aug 12 20:47:03 IST 2017 C/SCA/9693/2015 JUDGMENT the same place and drawing equivalent pay and subject to the second proviso under subrule (1).
(3) The pay of the Secretary, officers and servants shall be fixed in the revised pay scales in accordance with the formula decided by the Director.
(4) The revised pay scales adopted by the Market Committee in accordance with sub rule (1) may be applicable from 1st January, 1986 or such later date as the Committee may decide having regard to its resources and ability to pay subject to the second proviso under subrule (1). (5) Where before 1st January, 1988 the Market Committee has already accepted and implemented revised pay scales which are higher than the maximum pay scales specified for the concerned category of market committee, or where the requirement of a second proviso to subrule (1) is not fulfilled, the committee shall adopt such pay scales which are higher than the scales specified above, subject to the second proviso under subrule (1). If the employees have been given higher pay scales before 1st January, 1988 the difference between the pay already being drawn and the pay admissible under the revised pay scales shall be treated as personal pay to be absorbed in future Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat Aug 12 20:47:03 IST 2017 C/SCA/9693/2015 JUDGMENT increments. Where the market committee has accepted or implemented after 1st January, 1988, the revised pay scales which are not in accordance with the provisions of this Rule, the Market Committee shall proceed to revise the pay scales in accordance with these Rules and the excess payment made o the employees shall be recovered in suitable installments.
(6) where owing to change of classification, a Market Committee is classified in a lower category than its category before before the coming into force of these Rules, and the category of post it had in the older higher category is not approved for the new lower category, the revised pay scales applicable for the posts which continue to exist on the establishment will be as follows:
Earlier Category A or B Existing Pay Scale Revised Pay Scale Overseer Cat. A 425-700 1400-2600 Supervisor Cat. A 330-660 1200-2040 Supervisor Cat. B 260-460 1200-2040 Cashier Cat. A 330-660 1200-2040 Statistician Cat. A 330-660 1200-2040 Statistician Cat. B 260-460 950-1500
3. What is discernable from Section 22 is the power vested with the market committee and not the Government to employ Secretary or other officers and servants as may be necessary for the Page 8 of 11 HC-NIC Page 8 of 11 Created On Sat Aug 12 20:47:03 IST 2017 C/SCA/9693/2015 JUDGMENT management; with the salaries, leave allowances, pensions or gratuity as deemed proper by the market committee, subject to the Rules made in this behalf. Rule 41A categorizes the market committee into category A, B and C depending upon the annual income for the last 3 completed years respectively being above 16 lakhs, between 8 and 16 lakhs and above Rs.2 lakhs and up to Rs.8 lakhs subject to the satisfaction of other conditions provided in the proviso to the Rule. For approving the pay scale, the Market Committee is to be guided by various factors as indicated in the proviso to Rule 41A and other relevant provisions. Beyond what is specifically provided in Section 22 and Rule 41A or in any other provision, neither the Director nor the State is contemplated to have any control on the authority of the market committee in employing its officers and servants. Thus, the sanction of the post by the Government having not been contemplated under the Act or Rules, the finding rendered by the Labour Court that no sanctioned set up was available with the market committee is erroneous in as much as it is for the market committee itself to decide its own set up after taking into consideration the relevant factors indicated in Section 22 of the Act read with Rule 41A of the Rules.
4. In above view of the matter, learned advocate for the petitioner submitted that the job which Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat Aug 12 20:47:03 IST 2017 C/SCA/9693/2015 JUDGMENT the petitioner was discharging i.e. Sweeper since 1988 is of perennial nature and is admittedly being done by the petitioner since long and therefore, regularization ought to have been admitted by the Labour Court. Learned counsel pointed out that the finding that the workman had no evidence to prove his length of service is erroneous and perverse in view of the documentary evidence produced on record of the Labour Court wherein the respondent had admitted the length of service as certified by the respondent. Learned counsel for the petitioner has also taken this Court to the finding of the Labour Court where it has given contradictory findings to an effect that there is no evidence in support of the fact that the petitioner is working since long and at the same time it is stated that the evidence produced by the petitioner is in relation to his appointment as daily wager on fixed remuneration. Having perused the impugned judgment and award, there appears to be a great deal of substance in the arguments advanced by the learned counsel for the petitioner.
5. As an instance, learned counsel for the petitioner has pointed out that in APMC Rajkot number of employees have been conferred a status of permanent employees.
6. Considering the over all circumstances of the case, in the opinion of this Court, the Labour Page 10 of 11 HC-NIC Page 10 of 11 Created On Sat Aug 12 20:47:03 IST 2017 C/SCA/9693/2015 JUDGMENT Court is obliged to take the decision afresh in the light of this judgment as also in the light of Section 22 of the Act read with Rule 41A of the Rules. For that purpose, the parties would place necessary material on the record of the Labour Court, on consideration of such entire record, as also the record already placed, the Reference shall be decided by the Labour Court in accordance with law after giving proper opportunity to the parties concerned.
7. In view of the above discussion, the petition is allowed, impugned award is quashed and set aside. The case is remanded to the Labour Court for reconsidering the issue of the petitioner's regularization in the light of the observations made in this judgment. The necessary exercise shall be carried out within a period of six months from the date of receipt of this order.
(G.R.UDHWANI, J.) FARHAN Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat Aug 12 20:47:03 IST 2017