Gujarat High Court
Jamjodhpur Nagarpalika vs Sunil Punjabhai Dhakecha on 25 July, 2023
Bench: Sunita Agarwal, N.V.Anjaria
NEUTRAL CITATION
C/LPA/200/2023 JUDGMENT DATED: 25/07/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 200 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 18202 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/LETTERS PATENT APPEAL NO. 200 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL Sd/-
and
HONOURABLE MR. JUSTICE N.V.ANJARIA Sd/-
=============================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
=============================================
JAMJODHPUR NAGARPALIKA
Versus
SUNIL PUNJABHAI DHAKECHA
=============================================
Appearance:
MR RC KAKKAD(389) for the Appellant(s) No. 1
MR HEM DAVE, ADVOCATE WITH
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 3
=============================================
Page 1 of 11
Downloaded on : Sat Sep 16 22:44:53 IST 2023
NEUTRAL CITATION
C/LPA/200/2023 JUDGMENT DATED: 25/07/2023
undefined
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 25/07/2023
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. This appeal is directed against the judgment and order dated 27.6.2022 passed by the learned Single Judge in allowing the writ petition filed by the appellant Jamjodhpur Nagarpalika challenging the award passed by the Labour Court in two connected writ petitions.
2. The facts in brief relevant to decide the controversy at hand are that a reference was made by the respondent workman seeking reinstatement and permanency in the permanent set up of the Nagarpalika as Pipeline Repairer with all consequential benefits. The petitioner Nagarpalika / appellant herein had challenged the award on the ground that the appointment of the respondent workman had been made without following due procedure and hence, there was no question of Page 2 of 11 Downloaded on : Sat Sep 16 22:44:53 IST 2023 NEUTRAL CITATION C/LPA/200/2023 JUDGMENT DATED: 25/07/2023 undefined continuance much less permanency. The learned counsel appearing for the appellant herein vehemently argues that the award to grant permanency or regularise the services of the respondent workman is wholly illegal, inasmuch as, the respondent workman was a daily wager. The Labour Court has proceeded to hold that the respondent workman has completed 240 days preceding 12 months and for termination of services, the procedure for retrenchment had not been followed. The contention is that the Labour Court has erred in granting permanency, issuing direction to the appellant not only to reinstate the respondent workman but also grant him appointment on a permanent post, which was wholly without jurisdiction. The reliance is placed on the decision of the Apex Court in the case of Oil and Natural Gas Corporation vs. Krishan Gopal and others [2020 SCC OnLine SC 150] to assert that the powers of the Labour Court or the Industrial Court cannot be extended to a direction to order regularisation, where such a direction offends the provisions contained Page 3 of 11 Downloaded on : Sat Sep 16 22:44:53 IST 2023 NEUTRAL CITATION C/LPA/200/2023 JUDGMENT DATED: 25/07/2023 undefined in Article 14 of the Constitution, in the context of public employment. The submission is that the appointment of the respondent workman being a backdoor entry and there being no sanctioned post, the Labour Court has acted beyond its jurisdiction in directing for regularisation. Further, the learned Single Judge has committed an error of law in issuing direction to the appellant Nagarpalika to adjust the respondent workman as per the vacant posts available in the sanctioned set up instead of Pipeline Repairer, though it was of the view that the direction of the Labour Court granting permanency on particular post of Pipeline Repairer was based on no evidence, and the award was required to be interfered with to that extent.
3. Taking note of the above submission of the learned counsel for the appellant, we are required to record that the reference before the Labour Court was for regularisation of the temporary services of the respondent workman. The claim of the workman was that he had been in service for almost 20 years and had Page 4 of 11 Downloaded on : Sat Sep 16 22:44:53 IST 2023 NEUTRAL CITATION C/LPA/200/2023 JUDGMENT DATED: 25/07/2023 undefined wrongly been treated to be a temporary employee, though there were vacant posts in the establishment. The appellant Nagarpalika has discriminated as the respondent workman has been paid wages lesser than which is being earned by other employees rendering similar services. While issuing direction for granting permanency, the Labour Court recorded a finding that the respondent workman had been working with the appellant Nagarpalika continuously since 1999 uptil August 2010 when his services were terminated. No reason could be assigned by the appellant Nagarpalika before the Labour Court for continuance of the respondent workman temporarily, though the permanent vacancy was available.
4. On the presentation of the instant appeal, by order dated 23.2.2023, this Court had directed the appellant Nagarpalika to place on record by way of affidavit of the Chief Officer, the details of the sanctioned set up and the post available in the set up as on the date of the order, for the purpose of determination of question for grant of Page 5 of 11 Downloaded on : Sat Sep 16 22:44:53 IST 2023 NEUTRAL CITATION C/LPA/200/2023 JUDGMENT DATED: 25/07/2023 undefined relief to the petitioner. Along with the affidavit dated 7.3.2023, a detail chart of the posts in the permanent establishment / set up and the available vacancies, signed by the Chief Officer of Nagarpalika concerned on 27.2.2023, have been placed before us. A perusal of the said chart indicates that there was a permanent set up, wherein sanctioned post of Pipeline Repairer was available. No explanation has been furnished by the appellant Nagarpalika for continuance of the respondent workman on temporary basis as Pipeline Repaier for a period of more than 20 years. The findings recorded by the Labour Court that appellant Nagarpalika had indulged in unfair labour practice by not filling up permanent posts even though such posts were available, for a period of more than 20 years, by continuing the workman as temporary or daily wage despite they were performing the same work and duties as a regularised workman, on lower wages, could not be successfully assailed by the learned counsel for the appellant. The submission that the Labour Court has committed Page 6 of 11 Downloaded on : Sat Sep 16 22:44:53 IST 2023 NEUTRAL CITATION C/LPA/200/2023 JUDGMENT DATED: 25/07/2023 undefined jurisdictional error in granting the status of permanency to the respondent workman, as it was a backdoor appointment and grant of permanency to the respondent workman would offend the concept of equality enshrined under Article 14 of the Constitution, is without any substance.
5. The fact remains that the appellant Nagarpalika had engaged the respondent workman in the year 1999 on the post of Pipeline Repairer by terming his appointment as temporary appointment. The respondent workman continued to work in the establishment of appellant Nagarpalika from the year 1999 till August 2010. The reference seeking permanency on the post of Pipeline Repairer in permanent establishment of the appellant Nagarpalika was then made by the respondent workman, with the contention that he has continued to work for more than 20 years and was discharging the same duties as that of a permanent employee, on the post of Pipeline Repairer. The termination of temporary appointment of respondent workman in August 2010 was in violation of Page 7 of 11 Downloaded on : Sat Sep 16 22:44:53 IST 2023 NEUTRAL CITATION C/LPA/200/2023 JUDGMENT DATED: 25/07/2023 undefined the provisions of Section 25G and H of the Industrial Disputes Act, 1947. The further claim was to grant permanency by giving appointment on the permanent vacant posts in few of long continuous service of the respondent workman.
6. The Labour Court has recorded the finding that the respondent workman had completed 240 days preceding 12 months and discontinuance of the respondent workman on the premise that the appellant Nagarpalika faced financial constraint was found to be an illegal act. It is an admitted fact of the matter that no order terminating the services of the respondent workman had been passed. The above noted findings recorded by the Labour Court have not been assailed before us. Only contention made by the learned counsel for the appellant Nagarpalika is that as there is no post of Pipeline Repairer which is sanctioned and vacant, the grant of permanent status to the respondent workman would be illegal.
Page 8 of 11 Downloaded on : Sat Sep 16 22:44:53 IST 2023
NEUTRAL CITATION C/LPA/200/2023 JUDGMENT DATED: 25/07/2023 undefined
7. As noted above, it is evident from the perusal of the material on record, as also the findings given by the Labour Court and the learned Single Judge that the appellant Nagarpalika had indulged in unfair labour practice by continuing the respondent workman on temporary basis, though posts in the permanent set up were available. The act of appellant Nagarpalika in continuing the respondent workman on temporary basis on lower wages despite discharge of the same duties as that of a permanent employee in the permanent establishment is nothing but amounts to unfair labour practice. It is evident that the appellant Nagarpalika had continued the respondent workman for years together with the object of depriving him of the benefits payable to a permanent workman, though he was discharging the same duty as that of a permanent employee. No explanation could be offered by the appellant Nagarpalika either before the Labour Court or before the learned Single Judge or in this appeal as to why the respondent workman was continued on temporary basis on the post Page 9 of 11 Downloaded on : Sat Sep 16 22:44:53 IST 2023 NEUTRAL CITATION C/LPA/200/2023 JUDGMENT DATED: 25/07/2023 undefined of Pipeline Repairer when the vacant post of Pipeline Repairer in the permanent establishment was available. No such record of permanent set up of appellant Nagarpalika was placed before the Labour Court and the findings recorded by the Labour Court that the witness or the appellant Nagarpalika admitted that there was a permanent set up but the detail thereof was not made available, could not be assailed by the learned counsel for the appellant Nagarpalika.
8. The learned Single Judge, while modifying the relief granted by the Labour Court, had directed that instead of giving permanent status from August 2010, the respondents workmen be treated as permanent employee from the date on which vacancies are available in permanent set up of the establishment of the appellant - Nagarpalika. While directing so, consideration was given to the fact of long duration of engagement of the respondents workmen. Option has also been given to the appellant to adjust the respondents against other vacant post than that of the Peon or Pipeline Repairer in the Page 10 of 11 Downloaded on : Sat Sep 16 22:44:53 IST 2023 NEUTRAL CITATION C/LPA/200/2023 JUDGMENT DATED: 25/07/2023 undefined establishment.
9. For all the above noted facts, relying upon the judgment of the Apex Court in the case of Oil and Natural Gas Corporation (supra) [emphasis to para 34(ii) of the said decision], we do not find any error in the decision of the learned Single Judge. In the result, the appeal is dismissed being devoid of merit. Civil application does not survive and accordingly the civil application is disposed of.
Sd/-
(SUNITA AGARWAL, CJ ) Sd/-
(N.V.ANJARIA, J) Bharat Page 11 of 11 Downloaded on : Sat Sep 16 22:44:53 IST 2023