Gujarat High Court
Gujarat State Rural Deve. Corpo. Ltd. vs Upendrakumar J. Rao on 4 July, 2006
Equivalent citations: 2006 LAB. I. C. 3429, 2007 (1) AJHAR (NOC) 231 (GUJ) (2006) 3 CURLR 39, (2006) 3 CURLR 39
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
Page 1572
1. Heard the learned Advocate, Mr. H.S. Munshaw, appearing on behalf of petitioner Corporation.
2. In the present petition, the petitioner Corporation has challenged the award passed by Labour Court, Surendranagar in Reference Demand No 2 of 1999 dated 9.1.2006, whereby, the Labour Court has granted Page 1573 regular pay scale to the respondent workman in the post of Civil Supervisor and with consequential benefits w.e.f. 1.9.1994. The Labour Court has also made it clear that no difference of salary of scale of Civil Supervisor and consequential benefits should have to be paid to the workman. Meaning thereby that the respondent workman is not entitled to any difference of salary or arrears of salary w.e.f. 1.9.1994, but petitioner Corporation has to implement the award within a period of 30 days from the date of publication.
3. Learned Advocate, Mr. Munshaw, appearing on behalf of petitioner Corporation, submitted that respondent workman was not eligible for any relief and his appointment is without procedure. The respondent workman was temporary/ad-hoc/time bound appointed. He also submitted that there is no sanctioned/vacant post of Civil Supervisor available with the petitioner, therefore, regularization in the post of Civil Supervisor to a workman, who entered in the service by back door entry, the petitioner Corporation is not able to accommodate the respondent workman. The financial crisis of petitioner on the ground that out of 175 posts, 145 posts have been sent on deputation and the Corporation is likely to be wound up. For that, necessary resolution is already passed. He also submitted that before some time, the service of workman was terminated by Corporation and then, he raised dispute which was allowed by Labour Court. Against which, petition filed by Corporation was rejected. Therefore, the workman was reinstated in service. He also submitted that 7 posts were there, but due to administrative instructions from Government, one post has been abolished on 26.2.1996 because of cut of 20% in administrative expenses. He relied upon two decisions reported in 2004 (3) GLR 1841 (Full Bench of this Court) and Anr. . He read over before this Court the head note of Full Bench's decision and Para.5 of the decision of the Apex Court. He also read over certain paragraphs of the award in question. Except that, no submission is made by learned Advocate, Mr. Munshaw and no other decision has been cited and relied by him.
4. In light of this, after considering the submissions made by learned Advocate, Mr.Munshaw, and after perusing the award in question, now I am examining the contentions raised by learned Advocate, Mr. Munshaw on the basis of the facts which were on record before the Labour Court. It is necessary to note that respondent workman was appointed as Civil Supervisor on fixed salary of Rs. 750/- w.e.f. 22.10.1986. The petitioner Corporation has called the name by letter dated 7.3.1986 from Employment Exchange, Surendranagar of eligible candidates for the post of Civil Supervisor. Therefore, the names were sponsored by Employment Exchange and it was referred to the petitioner Corporation. It is necessary to note one important aspect that the petitioner Corporation called the names from Employment Exchange for the post of Civil Supervisor for direct recruitment under the provisions of Recruitment Rules in the scale of Rs. 425/800. This was the letter given to the employment exchange calling Page 1574 the name of eligible candidates for the post of Civil Supervisor in the scale of Rs. 425/800. It is also necessary to note that after receiving the names from Employment Exchange, a call letter to remain present in interview was issued by Corporation to the respondent workman, wherein also, scale was mentioned as Rs. 425/800. But, thereafter, the petitioner Corporation has changed the mind without any base and after interview, the fixed salary was suggested to the respondent workman of Rs. 750/- which was accepted by respondent workman. Subsequently, it was demanded by the workman and result thereof is that the service of the workman was terminated. These facts have been taken into account by the Labour Court. So looking to this aspect as discussed by Labour Court in Issue No 1 (page-35), it is sufficient to prove the facts that appointment of respondent workman made by petitioner after following due process of law. All the procedures were followed calling the name from employment exchange issuing call letter to remain present for interview and then, appointment was made. Except that, there is no other procedure under the statutory Rules required to be implemented by the Corporation. Therefore, according to my opinion, the appointment of the respondent workman is not back door entry. On the contrary, there is a evidence of front door entry i.e. regular appointment made by Corporation.
5. The Labour Court has considered this aspect in detail and considering the evidence on record as well documents which were produced by both the parties, the finding given by the Labour Court that in writ petition filed by respondent workman being SCA No 9362 of 1993 where the prayer was made to regularize his service because the nature of work which was performed by another Civil Supervisor and present respondent workman is same and, therefore, respondent workman is entitled the regular salary of the post. At that occasion, in order dated 12.8.1994 passed in SCA No. 9362 of 1993 by this Court, where assurance given by the petitioner, as incorporated in Para.2 of the order dated 12.8.1994, is quoted as under:
2. It clearly says that the respondent Corporation as and when there is a scope for regular appointment shall consider the case according to Rules. The petitioner may, therefore, apply thereunder. On behalf of the respondents, L.A. Mr. Baxi has assured that he too will communicate with the concerned authority and see that the representation is considered as early as possible. The petitioner is free to raise all the contentions that he has raised in this petition and any additional contentions, if he is advised to. The representation shall be decided by the authority as early as possible in no case later than 4 weeks from the date of receipt of the representation.
5.1 On the basis of the said assurance, representation was made by respondent workman, but his representation was rejected. Thereafter, he raised industrial dispute with a demand that he entitled the regular salary of the post in question. On 1.4.1991, there was a set up of 7 persons in post of Civil Supervisor. One Civil Supervisor has tendered resignation in the month of April,1990, therefore, one post is found to be vacant in the year Page 1575 1990. At that occasion also, the workman was working with Corporation. So, from April,1990, one post of Civil Supervisor was found vacant. Even though the assurance was given before this Court which was recorded in order dated 12.8.1994, the case of the respondent workman was not considered by the petitioner Corporation. Before this Court, a sympathetic consideration was assured by the petitioner, but no regular salary was given to the respondent workman. This aspect has been taken into account by Labour Court that why benefit, though available, is not given to the respondent workman. The huge hue and cry submitted before this Court by raising number of technical contentions as if the Labour Court has no jurisdiction to grant such benefit. The financial difficulty, resolution to wind up the Corporation, 20% cut due to administrative expenses and one post has been also abolished due to financial constraint of the Corporation, these are the contentions raised by learned Advocate, Mr.Munshaw before this Court. But the real fact has not been pointed out by the learned Advocate. Arguments was advanced that it was a back door entry, but forgetting the facts that it was a regular appointment given by Corporation to the workman, as in the call letter issued by Corporation for the post of civil supervisor, the scale was also mentioned, but at the time when workman cleared viva-voce test, the offer was made to the workman to accept the fixed salary for the post of civil supervisor. It is not the case of the petitioner that respondent workman is not qualified and eligible for the post. It is also not the case of the petitioner before the Labour Court that work of civil supervisor, one regular and another is fixed salary are different altogether. That no such contention has been raised by petitioner before the Labour Court. Meaning thereby that nature of work of regular civil supervisor and fixed salary civil supervisor are same which were performed by both employees in the Corporation. In such circumstances, it is necessary to consider the situation of workman having financial crisis, not able to get the job though qualified in right time, responsibility of the family to maintain and in absence of job, it is very difficult to maintain the family. These are the hard reality attached to the workman when he was demanding the job from the Corporation. Therefore, choice exercised by compulsion was not choice at all. This view has been taken by Delhi High Court in case of Neema Tiwari and Ors. v. MCD and Anr. reported in 2006 II CLR 485 wherein it has been held that decision of petitioners to accept employment on fixed salary could not be held against them when Corporation utilized their services as a primary teacher for number of years and not paying the regular salary to such primary teachers, the Delhi High Court has directed to the authority to pay the regular salary to such primary teachers, those who are working on fixed salary. This being the position of the respondent workman, when he was called for regular employment in a regular salary by the Corporation, after completing viva-voce test, offer was made for fixed salary. For workman compulsion was there, therefore, he was not having any choice to say no to the Corporation. Therefore, the contention raised by petitioner that he was appointed on fixed salary for a period of six months, for a particular project are totally irrelevant submissions and contrary to the record and, therefore, such submission are rejected.
Page 1576
6. The decision of the Full Bench, referred above and relied upon by learned Advocate is not applicable to the facts of this case. Some times, the Advocates while citing the decision, merely read the head note only. It may be appreciated that any observations made by a Court in the facts and circumstances of that case, is not a ratio applicable to all cases. The ratio should have to be found out on the basis of the question which has been raised for consideration of the Court, examined and decided by the Court. Same difficulty and mistake committed by the Advocate relying upon Full Bench's decision merely reading the head note, as if the Labour Court has no jurisdiction to pass such award. The said decision is not applicable for two reasons; one is that from record itself it is proved that it was not a back door entry of the respondent workman and secondly, his name was called from employment exchange for regular salary, the respondent workman was qualified and eligible for the post performing the same type of work which was performed by other regular employee and he was appointed on fixed salary after process of interview as per Recruitment Rules. Therefore, this decision of Full Bench, with respect, not applicable to the facts of this case. However, the observations made by the Full Bench in case of Amreli Municipality v. Gujarat Pradesh Municipal Employees Union, 2004 (3) GLR 33. Para.12.1.14, 12.1.15 and 12.1.16 of the said decision are quoted as under:
12.1.14 Thus, in view of the above, even if it is held that keeping daily rated/casual employees for a long duration amounts to unfair labour practice, that fact by itself, will not make them permanent and/ or regularise service. While deciding such preferences for regularisation or permanency, the Labour Court/Industrial Tribunal, at the most, can pass order directing the authorities to consider their claim in the light of factors/ observations stated above instead of straight away passing the orders of regularisation or granting permanency.
In view of the above discussion, we answer the question referred to us as under:
(i) The Labour Court/Industrial Tribunal has no jurisdiction to issue direction or pass an award regularising services of employees of a Municipality or local authority without there being any 'sanctioned set up' and no person can be regularised if such a person had entered service without following selection process under the title of daily rated employee.
(ii) In view of our answer to the above question, the judgment rendered by Division Bench in the case of Kalol Municipality v. Shantaben, reported in 1993(2) GLR 997 is now no longer a good law in view of subsequent decisions rendered by the Apex Court and more particularly the decision in the case of N.S.Giri v. Corporation of State of Mangalore . The subsequent decision rendered by the Division Bench of this Court Page 1577 in the case of Halvad Nagarpalika and Ors. v. Jani Dipakbhai Chandravadanbhai and Ors. reported in (2003) 2 GHCJ 397 is held to be a good law. All the matters shall be placed before the concerned Courts taking up such matters for passing appropriate orders.
12.1.16Before parting, we may like to observe that the unfortunate workmen who have continued for years as temporary employees and have succeeded before the Labour Court/Industrial Tribunal, in view of our decision, in the event of their termination, the authorities may see to it that no unqualified person is appointed in their place and their claim for regularisation be considered provided they are eligible on the sanctioned posts. If the posts are not sanctioned, the authorities may take such steps which are necessary in accordance with the provisions of law/rules/ circulars within the budgetary provisions.So as to see that no irregularities are committed in the matter of appointment by Panchayats, Municipalities and Corporations, in our opinion, it would be advisable if the State Government issues an appropriate circular giving details with regard to the aforestated guidelines to all the local authorities. Order accordingly.
6.1 The aforesaid observations made by Full Bench on the background as narrated in Para.12(1), which reads as under:
12.1 After considering the decisions cited before us, the following principles emerge:
(A) No regularisation or permanency can be effected de hors the statutory provisions or the guidelines.
(B) Long service put in by the workmen itself may not be a ground to regularise services of ad hoc/ temporary workmen against the sanctioned set up without following statutory procedure of recruitment. At the most, Labour Court/Industrial Tribunal can issue direction for consideration of absorption subject to availability of posts on the establishment.
(C) To avoid nepotism and corruption, no backdoor entry in service;
(D) Financial capacity of the local body to have additional burden is a relevant consideration to be kept in mind while ordering regularisation or absorption.
7. The decision of the Apex Court as referred above is also not applicable to the facts of this case, on the ground that here a regular appointment on fixed salary was made and respondent workman remained in service for about 20 years with the petitioner. The respondent workman was appointed on fixed salary. If Court has no power to change the conditions of service protect the legal right or grant it or if Court is restrained from making any change for better conditions of service under the Labour Law, especially Industrial Disputes Act, Bombay Industrial Relations Act and other relevant Labour Laws, then, the employer becomes a dictator and will adopt the principles of hire and fire, and appoints any person even violating Page 1578 fundamental rights of the concerned employee. Right to life includes the food and to maintain the family. This can be violated by the corporate body or private employer if the Court has no power to change or alter or protect the legal and fundamental right or the conditions of service of an employee. This is not the ratio laid down by the Full Bench in its decision or the Apex Court, but only in case of Panchayat and Corporation some favourtism was implemented by ruler party appointed some own relative/favourable persons and subsequently, they are considered to be regularized. For that purpose, a specific examination was done by the Full Bench and on that back ground, certain directions have been issued. But, it is not the ratio laid down by the Full Bench of this Court that Industrial Tribunal while deciding the industrial dispute which has been referred by appropriate Government for adjudication has no jurisdiction to grant regular salary to the concerned employee and Industrial Tribunal should not have to pass such orders. This is not the ratio, but the decision of the Full Bench Court has to be considered in light of the back ground which was considered by the Full Bench of this Court, but not otherwise.
8. In this case, ultimate relief which has been granted by the Labour Court is also not properly appreciated by the petitioner Corporation and his Advocate. What relief has been granted by the Labour Court in favour of workman, it is necessary to understand. The Labour Court has not granted permanency as well as regularization, but has granted regular salary to the workman, for which he was performing similar nature of work with similar responsibility, a qualified employee not receiving proper salary by corporate body, which is a State authority, therefore, after 20 years the qualified employee, who was appointed after due process of law, remained in fixed salary as if that his life is fixed by the Corporation. Such arbitrary victimization at the hands of Corporation has been set aside by the Labour Court and granted the only regular salary without any arrears of salary w.e.f. 1.9.1994 which cannot be considered to be a regularization in the post or made him permanent in the post. So huge hue and cry of set up/sanctioned post is totally irrelevant for granting the benefit to the workman, who was in service for more than 20 years in a fixed salary, as if that workman is living in fixed life has been rightly corrected by the Labour Court and granted the benefit of regular salary to the respondent workman in light of the assurance given by petitioner Corporation before this Court by order dated 12.8.1994. The facts of this case as if that some mercy from Corporation is required for regular salary to be given to the respondent workman. The Court is not depend upon any mercy of corporate body. The Court has power to pass such order as if the Court feels that there is injustice done by the corporate body, which is the State authority. Therefore, according to my opinion, while passing such award, the Labour Court has not committed any error. On the contrary, it is a right award in right spirit and right relief has been granted by the Labour Court to the respondent workman.
9. Recently, the Division Bench of this Court has examined the question of regularization to the casual labourer/daily wagers being contract labour, Page 1579 those who were working for more than 12 years. The award passed by the Labour Court/Industrial Tribunal granting regularization in favour of such employees working with the ONGC that award was challenged by ONGC before this Court and ultimately, the Division Bench of this Court subsequent to the Full Bench decision of this Court, has confirmed the award granting the regularization in favour of the workmen which reported in 2005 (2) GLH 703 in case of ONGC v. Engineering MS decided on 12.5.2005. The Division Bench has considered number of decisions in respect to the subject matter which are also connected with this case. But observations made by the Division Bench of this Court in Para.18 are relevant, therefore, quoted as under:
18. Before parting with the judgment, however, it may be apposite to observe that when not just any instrumentality of the State but a giant company with deep pockets, wages a long-drawn war against its own employees with legitimate claims and aspirations, it's managers ought to consult their own conscience and take the opportunity of doing justice themselves rather than adopting the strategy of wearing them out and draining their meagre resources in one after the other legal battles while they may be devoting better part of their lives to the organization. Even in the modern times of free-market economy and globalisation,the precept of recently departed Pope John Paul-II may be noted. His concept of globalisation was, "to ensure that the winner in this process will be humanity as a whole, not just a wealthy elite that controls science, technology, communication and the planet's resources to the detriment of the vast majority of its people". And according to Pope Benedict XVI; "The intrinsic dignity of each person must always be respected in work, in action and in law". A machine may be used as a more convenient substitute for a workman but a workman cannot be treated or switched on and off like a machine.
9.1 The right to life has also been discussed by Bombay High Court in case of Standard Chartered Grindlays Bank Ltd. v. Govind Phopale and Anr. 2003 (96) FLR 145. Para.17, 18, 19 and 20 of the said decision are quoted as under:
17. I need not stress the fact that wage is the real content of the Article 21. If we were to take out the wage content from this Article 21 it would be reduced to a dead letter not worth even for a decoration. In the absence of the source of livelihood which is protected by Article 21, the other fundamental rights would sound hollow and empty words and would collapse in no time as a dilapidated house. The workman and his family should not be made to stare merely on the pretext that proceedings under Section 33(2)(b) for approval of the action taken by employer is pending though he is told by law that the jural relationship continues and he still carried the label that he is an employee of the Page 1580 applicant employer before the Tribunal. This jural sense of employment must put bread in his empty belly. He cannot be denied the wage content of his jural relationship by drawing a fine distinction of law point that he has factually ceased to be in employment as the employer has already passed an order of dismissal/discharge though he still continues to be in the employment of the employer in law. In the case of Fakirbhai, (vide supra), the Supreme Court was very much conscious of the delay in disposal of discharge/dismissal matters where the workmen concerned needed relief very badly. The Supreme Court has, therefore, considering the crucial aspect of the delay has given a great solace to the working class whose fate is covered under Section 33 of the Act as a whole not to be subdivided by the sub-sections.
18. The aforesaid discussion is the essence of the wisdom which I have drawn from the following a few recent judgments of the Supreme Court. I am not quoting the quotable quotes from the said judgments to state what is very well known and well established needing no elaboration:
C.E.S.C., Ltd. v. Subhash Chandra Bose, in Para 30, at page 355 and 356:
The right to social justice is a fundamental right. Right to livelihood springs from the right to life guaranteed under Article 21. The health and strength of a worker is an integral facet of right to life. The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all. Right to human dignity, development of personality, social protection, right to rest and leisure as fundamental human rights to common man mean nothing more than the status without means. To the tillers of the soil, wage earners, labourers, wood cutters. rickshaw pullers, scavengers and hut dwellers. the civil and political rights are 'mere cosmetic' rights. Socio-economic and cultural rights are their means and relevant to them to realise the basic aspirations of meaningful right to life. The Universal Declaration of Human Rights, International Conventions of Economic, Social and Cultural Rights recognise their needs which include right to food, clothing, housing, education, right to work, leizure, fair wages, decent working conditions, social security, right to physical or mental health, protection of their families as integral part of the right to life. Our Constitution in the Preamble and Part IV reinforces them compendiously as socioeconomic justice, a bed-rock to an egalitarian social order. The right to social and economic justice is thus fundamental right.
(iv) Consumer Education and Research Centre and Ors. v. Union of India and Ors. in Para.22 and 24, at page 18.
22. The jurisprudence of personhood or philosophy of the right to life envisaged under Article 21, enlarges its sweep to encompass human personality in its full blossom with invigorated health Page 1581 which is a wealth to the workman to earn his livelihood to sustain the dignity of person and to live a life with dignity and equality.
24. The expression 'life' assured in Article 21 does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure.
(v) Dr.Ashok v. Union of India and Ors.:
Page 11 Headnote, Paras4 and 5 Right to life enshrined in Article 21 means right to have something more than survival and not mere existence or animal existence.
It includes all those aspects of life which go to make a man's life meaningful, complete and worth living. By giving an extended meaning to the expression Slife in Article 21 the Supreme Court has brought health hazards due to pollution within it and so also the health hazards from use of harmful drugs.
19. The Tribunal has rightly touched the Article 21. I have merely tried to expand the idea briefly. Every legislation touching the question of livelihood or employment must yield to Article 21 of the Constitution of India. It gives freedom from starvation. The ratio Fakirbhai read with the Jaipur Zilla (vide supra) unequivocally declares that all such workmen concerned under Section 33 of the I.D.Act shall not starve but shall have to live to outlive the litigation.
20. It however, needs to be clarified that this ratio is based on the firm foundational fact that the jural relationship of employer-employee subsists and not in other cases where the Jural relationship comes to an end.
In the aforesaid circumstances, I do not find any fault with the reasoning of the Tribunal and there is no illegality or impropriety in the impugned order passed by the Tribunal awarding remuneration equivalent to the suspension allowance or subsistence allowance under the rules. The petition, therefore, stands dismissed with no order as to costs.
9.2 The Madras High Court in case of Ramkirshnan P. and Anr. v. Union of India and Anr. reported in 2003 II LLJ 463 in Para.7 has held as under:
7. Learned Counsel for the writ petitioners took the Court through the typed set of papers filed by the petitioners to substantiate their case. It is not in dispute that the petitioners were engaged or working as bakers in the MRC Canteen (Cafeteria) for the past nearly two decades and above and that they have been working continuously, also is not in dispute, but they were being paid consolidated salary. The requirement of the petitioners' service is perennial as the consumption and supply of bakery products in the canteen is perennial in nature. It is unfortunate that the petitioners have been kept as casual labourers for more than 20 years being paid consolidated wages, which definitely works hardship. When the services of a bakerman are required on Page 1582 permanent basis and sale and consumption of bakery items is perennial in nature in the MRC canteen, and when the petitioners have continuously worked for more than two decades, it is not known as to how the respondents could still contend that the engagement is only temporary or casual and that there is no sanctioned post. If there is no sanctioned post, it is incumbent on the part of the respondents to have created the post and they cannot keep the individual as casual or on consolidated wages for decades together and deny them their service benefit. Such a treatment by the respondents to the petitioner is shocking and it is definitely violative of Articles 14 and 21 and it reflects on the respondents. When the petitioners have been working as casual or daily wage workers and when they are in continuous service for more than two decades, such workmen should have been regularized.
10. In view of these observations made by the Division Bench of this Court, according to my opinion, there is no substance in the present petition. This Court having very limited jurisdiction to interfere in such award while exercising the power under Article 227 of the Constitution of India. This Court cannot act as an appellate authority and even in case if two vies are possible, then also, this Court cannot interfere with such award. The Apex Court has considered the power of the High Court under Article 227 of the Constitution of India in a decision reported in Laxmikant Revachand Bhojwani and Anr. v. Pratapsing Mohansingh Pardeshi, . Relevant observations are in Para.9 which are quoted as under:
The High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardships or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
11. Because of the award, the petitioner Corporation has not to suffer any financial loss because no arrears has been granted to be paid to the respondent workman because of granting the regular salary for the post of Civil Supervisor.
12. In view of the above discussions, present petition stands dismissed.