Gujarat High Court
For Approval And Signature: Sd/ vs Secretary on 11 January, 2016
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/2668/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2668 of 2005
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR.JUSTICE K.M.THAKER
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
PALANPUR MUNICIPALITY THROGH CHIEF OFFICER....Petitioner(s)
Versus
SECRETARY, BANASKANTHA SAFAI KAMDAR SANGH &
1....Respondent(s)
Appearance:
MR MEHUL H RATHOD, ADVOCATE for the Petitioner(s) No. 1
MR BHUSHAN B OZA, ADVOCATE for the Respondent(s) No. 1
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 11/01/2016
ORAL JUDGMENT
1. The petitioner municipality has brought under challenge an award dated 7.8.2004 passed by the learned Industrial Page 1 HC-NIC Page 1 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT Tribunal in Reference (IT) No.225 of 1998 whereby the learned Tribunal has granted demand Nos.5 and 6 raised by the respondent workmen - union viz. that every three years from 1996-97 onwards, the municipality should provide coat/blazer and umbrella to the claimants. The learned Tribunal has also directed the petitioner municipality to regularize the service of 91 ad hoc employees who have worked for 240 days from the date on which they completed 240 days of service with the municipality and thereafter, one increment for every five years of service should be granted and the amount payable should be deposited in their respective provident fund account w.e.f. 1.4.2004. The petitioner municipality is aggrieved by the said award and direction. Hence, present petition.
2. The factual background involved in and leading to the submission of present petition are that the union raised and sponsored the claim and dispute on behalf of 91 employees engaged by the petitioner municipality in its health department as Safai Kaamdar (sweepers) on and Page 2 HC-NIC Page 2 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT from different dates starting from January 1991 and total length of their service with the petitioner municipality ranges from 20 years to 10 years. The said 91 workmen (hereinafter referred to as the "concerned workmen") are engaged and employed by the petitioner municipality since many years . The respondent union raised various demands and claims on behalf of the concerned workmen including claim for coat/blazer, umbrella, shops, shocks and other equipments necessary for sweeping work etc. Over and above the said demands the respondent union also claimed that the petitioner municipality should regularize the service of the concerned workmen and treat them as permanent workmen form the date on which the concerned workmen completed work for 240 days with the petitioner municipality and grant all consequential benefits available to permanent employees. Since municipality did not accept the said demand and claims industrial dispute was raised. The appropriate government referred the said demands and dispute for adjudication to the learned Industrial Tribunal vide order of reference dated 10.9.1998. The said reference was registered by the Page 3 HC-NIC Page 3 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT learned tribunal as Reference (IT)No. 225 of 1998. During pendency of the said proceedings appropriate government issued notification and modified the order of reference. 2.1 During the proceedings before learned tribunal the respondent union filed statement of claim justifying demand for regularization and permanency. So far as the demand seeking regularization and status of permanent workmen for the concerned persons is concerned, the respondent union stated in the statement of claim that some of the employees out of concerned 91 workmen were working with the petitioner municipality since 1984 while some other (i.e. about 5 persons) were employed since 1985 and about other 5 persons were working with the petitioner municipality since 1986 and about 13 persons were working with the petitioner municipality since 1987 and about 3 persons engaged by the petitioner municipality during period from 1988 to 1996 and about 5- 6 persons were engaged during the period from 1997 to 2000. The respondent workmen claimed that most of the concerned workmen had worked with the petitioner Page 4 HC-NIC Page 4 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT municipality for more than 10 years and that therefore their demand for regularization in service and the demand for status of permanent workmen and consequential benefit was justified. The respondent workmen also claimed that for almost 2 decades the persons were continued on ad-hoc / temporary basis or on daily wage basis and they were deprived of benefit available to the permanent workmen. The respondent workmen also claimed that with passage of time from 1984 onwards the territorial limits of the municipality had increased and expanded and the work had increased manifold however, the petitioner municipality, despite such facts did not revise the strength of staff which was fixed before 1984 and thereby frustrated the claim and right of the workmen to be regularized and treated as permanent workmen. 2.2 The petitioner municipality opposed the reference by filing its written statement. The petitioner municipality submitted in its written statement that the demands raised on behalf of the concerned workmen are frivolous, unjust and unreasonable and the concerned workmen are Page 5 HC-NIC Page 5 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT not entitled for such benefit. While the written statement reflected some details with regard to other claims and demands by the workmen relevant and necessary details with reference to the demand for regularization and permanency are found in the written statement.
3. It is necessary to mention that it is noticed that some contentions have been raised during the hearing of this petition in respect of which any foundation is not laid or relevant facts were not stated in the written statement and/or any evidence also was not led before the learned Labour Court and such case was not presented even during the hearing of reference before the learned Labour Court.
3.1 One of such contentions which did not find place in the statement of claim is that the concerned workmen are not engaged after following procedure prescribed for selection and recruitment. Another such contention is to the effect that when the persons were engaged or during the time they were continued there was no vacancy on the Page 6 HC-NIC Page 6 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT establishment of the municipality where they could have been employed and that therefore it cannot be said that the concerned persons were employed in respect of clear and existing vacancy of permanent post on regular establishment of the municipality. By way of its third such contention municipality sought to claim that the concerned persons do not possess qualification and that when there is no vacancy on the establishment of the municipality and when initial appointments have been made illegally and without following prescribed procedure then benefit of regularization of service and status of its permanent workmen cannot be granted by Tribunal. The petitioner municipality has further contended that the impugned directions requiring the petitioner to regularize the service of the concerned workmen and grant them status and benefit of permanent workmen would amount to back-door entry and that therefore the impugned award is bad in law and unsustainable. The municipality has challenged the award essentially on the ground that there is no vacancy on the permanent establishment merely because the concerned workmen have worked for long Page 7 HC-NIC Page 7 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT time, benefit of regularization and permanent status cannot be granted.
3.2 However, it is relevant to mention that there is nothing on record of the petition that the municipality has prescribed minimum qualification for the post of Safai Kamdar and/or what is the prescribed minimum qualification for said post. The qualification of the persons is also not on record. Thus, there is nothing on record to demonstrate that such contention is raised after examining and comparing individual qualifications vis-a- vis prescribed qualifications.
3.3 Such contentions have been raised on the premise that though such grounds or contentions were not raised in the statement of claim and any foundation was not laid in the written statement, the document supporting such contentions was placed before the learned tribunal. The petitioner municipality raised one more contention and claimed that the impugned award is beyond scope of reference inasmuch as appropriate government did not Page 8 HC-NIC Page 8 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT refer dispute or claim as to whether the staff strength of the petitioner municipality should be increased or not and in absence of such demand.
4. On behalf of the respondent union and concerned workmen it is claimed and submitted that the concerned persons have been continued on ad-hoc or temporary basis for more than 10 years and in many cases for more than 20 years and the said action itself is arbitrary and in violation of article 14. It is also claimed that the learned tribunal is clothed with power and authority and has jurisdiction to pass directions of the nature similar to the directions which have been passed by the impugned award. It is also claimed that the date of joining of the concerned workmen and / or month of service completed by the concerned workmen and / or fact that the concerned workmen have worked continuously with the petitioner municipality since the time they were engaged are not in dispute because any dispute with regard to the said facts was not raised in the written statement or during the evidence. It is also claimed that each of the Page 9 HC-NIC Page 9 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT concerned persons had worked for not less than 240 days and that with passage of time and their continuous employment with the petitioner municipality for decades and the same has created right in their favour to be continued in their service with the petitioner municipality and to be treated as regular and permanent employee of the petitioner municipality. Differently put, it is claimed that in view of the number of days for which the concerned persons have worked with the municipality the concerned persons have become entitled for regularization of their service.
5. It is relevant and necessary to mention that the written statement filed by present petitioner municipality does not contain or reflect either the contentions raised by the petitioner at the time of hearing of this petition or even the factual details in light of which such contention can be raised at this stage.
5.1 The written statement does not contain or reflect the contention that the petitioner municipality has framed Page 10 HC-NIC Page 10 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT Rules and Regulations which lays down the policy and procedure for selection and recruitment of employees and that such rules or policy do not confer power on any authority to engage the persons on daily wage bases or casual basis for undertaking the functions which are the petitioners primary function and statutory duty as per the Municipality Act.
5.2 The written statement also does not contain and reflect any contention that the concerned persons were engaged without following prescribed procedure by rules or policy for selection and recruitment and even the contention on the ground that the concerned persons were not appointed after inviting names of candidates from employment exchange and / or the names of the concerned persons were not forwarded by employment exchange.
5.3 Besides this, the written statement does not reflect any condition to the effect that at the time when the concerned persons were engaged there was no vacancy Page 11 HC-NIC Page 11 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT on the permanent establishment.
5.4 The written statement does not contain any contention that concerned persons do not possess qualification as prescribed by relevant rules or policy. The prescribed qualifications - if any - are not mentioned in the reply. It is not even explained that what could be or what are prescribed qualification for post of Sweeper and that the concerned persons do not possess such prescribed qualification.
5.5 The written statement does not contain any details of the sanctioned posts and as to whether any posts were vacant at the relevant time or not. However, from the submissions by learned Counsel for the municipality it appears that during the proceedings before learned labour Court the petitioner municipality had placed the statement containing details of the sanctioned posts on the establishment of the petitioner municipality which included the details about the sanctioned posts in the concerned department and its establishment i.e. in Page 12 HC-NIC Page 12 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT Sanitation Department. Though, the said statement seems to have been placed before the learned labour Court, it appears that there was neither foundation in the written statement nor any evidence or any resolution or order by government sanctioning the strength of the concerned department and the post in question was not available on record.
6. Likewise, when statement of claim is examined even the statement of claim filed by the union is found to be lacking in the relevant details with reference to the claim for regularization of service and status of permanent workman. Most of the statements and details mentioned in the statement of claim are in respect of other benefits which were claimed by the union, however, relevant details and foundation with regard to its claim for regularization of service of concerned workman and for status of permanent employee is wanting.
7. On this count, it is necessary to mention that when the statement of claim filed by the respondents is examined, Page 13 HC-NIC Page 13 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT it emerges that except mentioning that the concerned workmen are working since last many years with the petitioner municipality and that the concerned workmen have worked for 240 days every year during the period of their services with the petitioner municipality, any other details, e.g. whether they had submitted application pursuant to any advertisement or whether their names were registered with and called for from and forwarded or sponsored by employment exchange to the petitioner municipality and whether their appointments were made after following selection and recruitment procedure prescribed by the rules and regulations applicable to the petitioner municipality and/or that when they were engaged any sanctioned posts and clear vacancy on such sanctioned posts existed or not, are not found in the statement of claim. The facts and details which would be relevant and material for determining claim of regularisation / permanency with the petitioner municipality are not found in the statement of claim. 7.1 Likewise, when the written statement filed by the Page 14 HC-NIC Page 14 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT petitioner municipality is examined, it is noticed that except disputing that the concerned workmen had worked for 240 days, above-mentioned relevant aspects are not mentioned and clarified even by the petitioner municipality in its written statement. In the written statement, the petitioner municipality has not set up a case that the concerned workmen were not engaged after inviting applications or after inviting names from employment exchange and/or that the concerned workmen were not engaged on sanctioned posts and at the time when they were engaged any clear vacancy on sanctioned post did not exist and they were engaged without following the procedure prescribed for selection and recruitment is applicable or not. Though during the hearing of this petition, such contentions are raised but from the written statement, it appears that the petitioner municipality did not set up such case and facts in the written statement. The petitioner municipality also did not set up the case in the written statement that the concerned workmen were engaged irregularly and/or in absence of any sanctioned posts and clear vacancy on Page 15 HC-NIC Page 15 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT such sanctioned posts and without following procedure for selection and recruitment as prescribed under the rules. Differently put, the contentions which are sought to be raised during hearing of this petition, are not found in the written statement filed by the petitioner municipality.
8. As mentioned earlier, the petitioner municipality has not set-up its case in its written statement but in view of the decisions by Hon'ble Apex Court or by High Court during period the reference remained pending before the learned Labour Court or during pendency of this petition, such contentions have been raised by the petitioner municipality at the time of hearing of this petition. Therefore, even at the cost of repetition, it is necessary to mention that on one hand, there is no foundation in the written statement or oral evidence for raising such contention nor there is sufficient, cogent evidence either documentary or oral, to provide factual support to such contentions.
8.1 Thus, said defect and shortfall including absence of Page 16 HC-NIC Page 16 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT relevant evidence - oral as well as documentary - is on both sides.
9. In this view of the matter, it appears appropriate to keep in focus the relevant aspects, parameters, guidelines, etc. laid down by Hon'ble Apex Court and High Court with regard to the claim for regularization of service and claim for status of permanent workman by persons, who are allegedly engaged by local authority or government or by State owned / run corporation, without following procedure for selection and recruitment and after entering the employment in such manner, they have continued in service for very long time. This would bring out and illustrate the factual aspects which must have been pleaded and proved by both sides to support their respective cases.
10. Since the petitioner before this Court is municipality, it would be appropriate to start this process by taking into account decision by Full Bench in case of Amreli Municipality. In the said decision, the municipality had Page 17 HC-NIC Page 17 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT challenged the award passed by the learned Labour Court whereby the said petitioner was directed to regularize service of its employees engaged on daily wage / casual basis. After considering rival and conflicting contentions and judicial decisions. The portion relevant for present purpose is found in below quoted observations by the Full Bench.
"12.1 ...(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) and (D) xxx.
12.1.2The Apex Court, in no uncertain terms, ruled that the Labour Court/ Industrial Tribunal can neither regularise services of a workman nor grant permanency when his initial appointment itself is de hors the rules or not on the sanctioned post and has depricated orders of the High Court/Labour Courts/Tribunals directing to regularise services of illegally recruited persons and has given guidelines. We are not impressed by the submission advanced on behalf of the workmen that the orders were passed in petitions under Article 226 of the Constitution of India and, therefore, such orders are not applicable in the present case in deciding the controversy. The Labour Courts/ Industrial Tribunals are required to pass orders consistent with the law laid down by the higher Courts. Needless to say that the exercise of wide powers by Labour Court/ Tribunal is always subject to or governed by the law laid down by the higher Courts. 12.1.3As far as the cases on hand are concerned, wherein local authorities are involved, so far as the Municipality is concerned, it is bound by the statutory provisions, more particularly sections 47, 50, 260 and 271 of the Gujarat Municipalities Act. As provided under subsection (2) of section 47, the Municipality, with the previous sanction of the Director and if so required by the State Government, create all or any of the posts Page 18 HC-NIC Page 18 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT stated therein and shall have power to make appointment to the post as provided under subsection 3) of section 47. Likewise, under section 50 of the Act, it is obligatory on the part of the Municipality to obtain previous sanction of the Director to create such posts of officers and servants as specified under subsection (1) and (2) of section 47 as it shall deem necessary for the purpose of carrying out duties under the Act. Any recruitment in that behalf shall be determined in accordance with the rules made under section 271 of the Gujarat Municipalities Act and the power to make appointment in any post referred to in subsection (1) shall vest in the Municipality or in the authority empowered by the Municipality by rules made in this behalf under section 271. Thus, the local authority is the appointing authority and in service jurisprudence, the appointing authority has the key role to play in the matter of appointment. Before creating a post of Officer or a servant of the Municipality, previous sanction of Director of Municipalities is a mandatory condition which is known as "sanctioned set up" of the Municipality.
12.1.4True, as far as the petitioner Amreli Municipality is concerned, there are no rules under Section 271 of the Act. However, for filling up the vacancies, previous sanction by the Director of Municipalities is a statutory requirement. The Municipality is bound by the directions issued by the State Government from time to time. Likewise, under section 260 of the Act, the Director of Municipalities is empowered to prevent extravagance in the employment. The Director can issue such directions without hearing the local authority or the employees in view of the fact that such directions are not affecting any individual employment.
12.1.9Apart from that, the view taken by the Division Bench in Kalol Municipality's case (supra) is impliedly overruled by the subsequent judgment of the Supreme Court. The Constitutional Bench of the Supreme Court, in the case of The New Manekchowk Spinning and Weaving Mills Ltd. Vs. The Textile Labour Association, Ahmedabad, reported in AIR 1961 SC 867 and in the case of Hindustan Times Ltd. Vs.Their Workmen, reported in AIR 1963 SC 1332, (a Four Judges Bench) has held that the Industrial Tribunal is bound to consider and follow the statutory provisions of other enactments also while exercising powers under the Industrial Disputes Act. 12.1.13 Even if it is held that the Labour Court/ Industrial Tribunal has wide jurisdiction to alter service conditions, it can exercise such powers subject to the recruitment rules, availability of sanctioned posts and subject to the grant and limits of budgetary provisions. When there is no permanent post, no direction can be given to the authorities to absorb daily wage employees by creating new posts. It is the common phenomenon in the case of Nagarpalikas/Municipalities/Government Corporations where such Page 19 HC-NIC Page 19 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT appointments are made on political considerations. The parties in power may recruit their own persons as daily rated employees and thereafter by seeking orders from the Court, they want to absorb such employees on permanent establishment. Time and again, such practice is depricated in so many words in the judgments referred by us. The Panchayats, Municipalities, Municipal Corporations or Government Corporations as well as Government establishments are facing severe financial crisis only because of such staff which may be required for the time being, but to make them permanent would definitely adversely affect the financial substratum of respective organisations and the the Courts should not be party to such illegal and irregular appointments by allowing them to be continued at the cost of public exchequer. We are conscious of the fact that by not approving the appointments of such daily wagers, it will be very difficult for them to survive and the question of their livelihood would arise. Keeping this aspect in mind, we do feel that in appropriate cases, their interests are required to be protected. We accordingly give following guidelines.
(1) to (4) xxxxxxxx 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.
12.1.15 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) xxxxxxxx"
10.1 It is relevant to mention that when the said decision by the Full Bench was delivered, the decision in case of Umadevi [(2006) 4 SCC 1] by the Constitution Bench was not available. The said decision by Hon'ble Apex Court is a Page 20 HC-NIC Page 20 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT watershed and milestone decision and while dealing with the claim and dispute related to the regularization of service, it is imperative to focus on the law laid down by Hon'ble Apex Court by the said decision.
10.2 In the decision in said case of Umadevi Hon'ble Apex Court observed that there is distinction between regularization and confirment of permenance in service jurisprudence. While referring the observations in paragraph No.26 in the decision in case of R.M.Nananjundappa v. Thimmiah, Hon'ble Apex Court observed that the regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. By referring to the observations in case of B.N.Nagarajan v. State of Karnataka, Hon'ble Apex Court observed that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to Page 21 HC-NIC Page 21 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT cure only such defects as are attributable to the methodology followed in making the appointments. In the said case of Umadevi (3) Hon'ble Apex Court observed, inter alia, that:-
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
Page 22 HC-NIC Page 22 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT 10.3 After the decision in case of Umadevi decided on 10.4.2006, Hon'ble Apex Court rendered the decision in case of National Fertilizer v. Somvirsingh [(2006) 5 SCC 493] on 12.5.2006 and observed, inter alia, that:-
" 18. Regularisation, furthermore, is not a mode of appointment. If appointment is made without following the Rules, the same being a nullity the question of confirmation of an employee upon the expiry of the purported period of probation would not arise. The Constitution Bench in Umadevi (supra) made a detailed survey of the case laws operating in the field.
23. The contention of the learned counsel appearing on behalf of the Respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban in employment, no recruitment was permissible in law. The reservation policy adopted by the Appellant had not been maintained. Even cases of minorities had not been given due consideration.
24. The Constitution Bench thought of directing regularisation of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V. Narayanappa [(1967) 1 SCR 799], Nanjundappa v. T. Thimmiah & Anr.[(1972) 2 SCR 799] and B.N. Nagarajan & Ors. v. State of Karnataka & Ors. [(1979) 3 SCR 937] wherein this Court observed:
"16. In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR 937], this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments"
25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the Respondents are illegal. They do not, thus, have any legal right to continue in service."
10.4 Thereafter, in 2007 in case of Indian Drugs and Pharmaceuticals Ltd (supra) Hon'ble Apex Court observed, Page 23 HC-NIC Page 23 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT inter alia, that:-
"13. It may be mentioned that a daily rated or casual worker is only a temporary employee, and it is well settled that a temporary employee has no right to the post vide State of Uttar Pradesh & Anr. vs. Kaushal Kishore Shukla 1991(1) SCC 691. The term 'temporary employee' is a general category which has under
it several sub-categories e.g. casual employee, daily rated employee, ad hoc employee, etc.
14. The distinction between a temporary employee and a permanent employee is well settled. Whereas a permanent employee has a right to the post, a temporary employee has no right to the post. It is only apermanent employee who has a right to continue in service till the age of superannuation (unless he is dismissed or removed after an inquiry, or his service is terminated due to some other valid reason earlier). As regards a temporary employee, there is no age of superannuation because he has no right to the post at all. Hence, it follows that no direction can be passed in the case of any temporary employee that he should be continued till the age of superannuation.
15. Similarly, no direction can be given that a daily wage employee should be paid salary of a regular employee vide State of Haryana vs. Tilak Raj 2003 (6) SCC 123.
16. We are afraid that the Labour Court and High Court have passed their orders on the basis of emotions and sympathies, but cases in Court have to be decided on legal principles and not on the basis of emotions and sympathies.
31 No doubt, there can be occasions when the State or its instrumentalities employ persons on temporary or daily wage basis in a contingency as additional hands without following the required procedure, but this does not confer any right on such persons to continue in service or get regular pay. Unless the appointments are made by following the rules, such appointees do not have any right to claim permanent absorption in the establishment.
34. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan & others vs. State of Kerala & others 1996 (10) SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore vs. State of Maharashtra 1997(3) SCC 209, Union of India & others vs. Bishambar Dutt 1996 (11) SCC 341. The direction issued by the services tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.
Page 24 HC-NIC Page 24 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT
37. Creation and abolition of posts and regularization are a purely executive function vide P.U. Joshi vs. Accountant General, Ahmedabad & others 2003(2) SCC 632. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits.
38. The respondents have not been able to point out any statutory rule on the basis of which their claim of continuation in service or payment of regular salary can be granted. It is well settled that unless there exists some rule no direction can be issued by the court for continuation in service or payment of regular salary to a casual, ad hoc, or daily rate employee. Such directions are executive functions, and it is not appropriate for the court to encroach into the functions of another organ of the State. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.
40. The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The relevant case law and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam vs. Dy. S.P. AIR 2005 Mad 1, and we fully agree with the views expressed therein."
11. Above quoted observations and legal position as regards the claim for regularization and permanency in service by casual or daily wage workers or NMR workers explained by Hon'ble Apex Court, High Court the facts and other relevant aspects which must be pleaded in the Page 25 HC-NIC Page 25 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT pleadings and foundation must be laid and evidence must be placed before the Court where such claim is to be adjudicated.
12. When the statement of claim filed by the respondents and the written statement filed by the petitioner municipality are taken into account in light of the directions passed by the learned Industrial Court vide impugned award it emerges that neither the petitioner nor the respondents mentioned basic and relevant details in the statement of claim and written statement and they failed to lay foundation for their respective case / claim and defence. The claimants as well as the municipality have also failed to place relevant, necessary and cogent evidence on record, more particularly so far as the claim for benefit of regularisation and status of confirm / permanent employees is concerned.
12.1 Above discussion brings out that the facts and other relevant aspects which must have been pleaded and for which foundation must have been laid and thereafter Page 26 HC-NIC Page 26 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT relevant evidence must have been placed were not pleaded and / or proved.
12.2 In this background the question which would arise is whether the learned Tribunal has considered this aspect, and if yes, how has the Tribunal considered these aspects.
13. However, before adverting to this aspect, it is appropriate to consider, for sake of convenience, the Tribunal's decision with regard to other claims / demands which the workmen had raised and the dispute for which was also referred for adjudication, alongwith demand for regularization and permanency, by the Order of Reference dated 10.9.1998.
14. As mentioned earlier, the respondent union demanded benefits like, coat (blazer), umbrella, gum boot, soap / bathing soap, sweeper' broom, basket, etc. 14.1 On this count it is pertinent to note that the municipality failed to lead any evidence and establish that Page 27 HC-NIC Page 27 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT it was regularly supplying such material and demand by workmen was excessive and/or unreasonable. The municipality failed to place any material on record on record to justify its refusal to consider and grant the said other demands raised by the workmen. The concerned workmen who are engaged and have been working as sweeper, justified their demand for soap / bathing soap in light of the work that they have to perform. Likewise, they have also justified demand for gum boot in light of the nature of the duties that they have performed. The workmen also placed evidence on record to justify their claim for their wheel barrow, broom and basket inasmuch as they placed before the learned Tribunal that after sweeping roads, they have to collect the waste / dust / leaves, the desiccate on the sides of the road and various material thrown by the residence, shop owners, etc. of the village and for lifting such material which is collected in heaps at different places / spots on the road, they need wheel - barrow to take such material to the dumping site earmarked by the municipality. As mentioned earlier, the municipality did not lead any evidence, much less any Page 28 HC-NIC Page 28 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT cogent evidence to controvert the justification made by the workmen.
14.2 In backdrop of such evidence the respondent union for the workmen demanded that the workmen should be given 12 broom in a year, 3 bamboo baskets and 2 metal baskets, 1 spade, 2 pairs of gum boot, 1 wheel barrow, soaps / bathing soap, 4 pairs of hand gloves and Rs.520/- per workman to compensate them for having purchased the said items / materials at their cost.
14.3 The learned Tribunal did not find any justification for allowing claim of 12 brooms per year or Rs.520/- for workman having allegedly purchased during the past 20 years or for 4 pairs of hand gloves, 3 bamboo baskets or 2 metal baskets, etc. and held that though the said items may be required for performing the duties, however, there was no justification for brooms, baskets which were claimed by the workmen. The learned Tribunal also found that the workmen did not establish to the satisfaction of the learned Tribunal that during past years, they had Page 29 HC-NIC Page 29 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT purchased items / materials at their cost, for which they should be compensated by payment of Rs.520/-. 14.4 Consequently, the learned Tribunal rejected the demands of the workmen mentioned at Sr.Nos.2, 3 and 4 of the order of reference. The learned Tribunal, however, partly allowed the demand at Sr.Nos.5 and 6 of the order of reference, i.e. for a coat (blazer) and umbrella and instead of granting demand for one coat (blazer) and umbrella, the learned Tribunal directed the municipality to provide it coat (blazer) and umbrella to the concerned workmen every 3 years.
14.5 So far as the said direction is concerned, this Court finds no reason or justification to interfere with such direction. The municipality has failed to establish that the direction partly allowing the demands at Sr.Nos.5 and 6 of the order of reference is arbitrary or justified. Therefore, the petition to the extent it challenges the direction partly allowing the demands at Sr.Nos.5 and 6 of the order of reference, i.e. directing the petitioner to provide a coat Page 30 HC-NIC Page 30 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT (blazer) and an umbrella every 3 years, is rejected.
15. Now, so far as the demand for regularisation and status of permanent workmen is concerned, it is necessary to mention that the learned Tribunal considered the petitioner's objection that the municipality would not come within purview of the definition of the term 'industry' as defined under section 2(j) of the Act. 15.1 The learned Tribunal, after considering the said decision, rejected the objection of the petitioner municipality and held that the municipality would come within purview of definition of the term 'industry'. In view of the decision by Hon'ble Apex Court in the case of Bangalore Water Supply Sewerage Board the learned Tribunal has not committed any error in rejecting such objection. The said decision by the learned Tribunal does not warrant any interference and therefore, the said aspect against the said conclusion by the learned Tribunal is rejected.
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15.2 The above discussion takes this Court to the discussion by, reasoning of and the decision by learned Tribunal as regards the demand for regularisation and status of permanent workmen.
15.3 The learned Tribunal has directed the municipality to regularise the services of the workmen and treat them as permanent workmen of the municipality from the date when each one of them completed service for 240 days with the petitioner municipality and also to release / grant one increment for completed service of 5 years, which should be deposited with the provident fund account of the respective workmen.
15.4 Now, when the award which is impugned in present petition, is taken into consideration, it emerges that neither the workmen nor the petitioner had led cogent evidence with regard to any aspects mentioned above and that the learned Tribunal has also not addressed the said issues which ought to have been considered before passing the direction obliging the petitioner municipality Page 32 HC-NIC Page 32 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT to regularise the service of the concerned workmen and to confer status of permanent workmen and to grant one increment for every 5 years of service.
15.5 It appears that the union had examined one Mr. Amrutbhai as its witness. The union examined one witness. Copy of the deposition of the said workman is not on record. The petitioner municipality also examined one witness namely Mr. Laljibhai Bhikhabhai and even examination-in-chief of the said witness was not completed and that therefore, by making necessary observation in paragraph No.7 of the award, the learned Labour Court has discarded the incomplete examination- in-chief of the said witness of the petitioner municipality. Thus, in effect, there is absence of cogent evidence on the part of the petitioner municipality.
15.6 The learned counsel for the petitioner submitted that during the proceedings of the reference the petitioner municipality had placed on record that the sanctioned strength of the municipality so far as the post / cadre of Page 33 HC-NIC Page 33 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT Sweeper in Sanitation Department of the petitioner municipality is concerned is 154 and the petitioner municipality was obliged to absorb 50 employees pursuant to award passed by the learned Labour Court / Industrial Tribunal, however, any evidence is not found or record which would clarify the facts and details as to how any vacancies occurred after the concerned persons were engaged (i.e. during last 20 years) and by following which procedure such vacancies were filled-up. It is also relevant to note that the officer whose affidavit was filed did not remain available for cross-examination and therefore, the said evidence was not considered by the learned Tribunal. It appears that the petitioner municipality had specifically claimed that the said officer is transferred. Thus, neither from the side of the workmen nor from the side of the petitioner municipality, any evidence with regard to the sanctioned strength, existence of any vacancy, requisite qualification, etc. was available on record before the learned Tribunal.
15.7 As mentioned earlier, statement of claim and written Page 34 HC-NIC Page 34 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT statement are silent with regard to these aspects and neither side has set up any case by mentioning relevant and appropriate details and facts.
16. Unfortunately, despite such lacuna on both sides, the learned Tribunal passed and issued impugned directions only on the ground that substantial financial burden will not be imposed on the petitioner municipality and the petitioner municipality did not establish that its financial position was weak and secondly on the ground that the concerned workmen have been working with the petitioner municipality since more than about 20 years, the learned Tribunal passed the direction requiring the petitioner municipality to consider the respondents as permanent workmen. However other relevant factors have not been considered.
16.1 On reading the award, more particularly paragraph No.28 of the award, it is noticed that the learned Tribunal has recorded and accepted that the sanctioned strength for permanent posts of the establishment of the Page 35 HC-NIC Page 35 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT municipality for Sanitation Department, i.e. employees in the category and post of Sweeper / Cleaner, etc. is 154 and that though territorial boundaries of the petitioner municipality have expanded over the period the municipality has not increased the sanctioned strength and it has found that the petitioner municipality has continued the concerned workmen without increasing its strength / sanctioned posts during last many years. Despite having recorded absence of sanctioned post / vacancy on sanctioned post, learned Tribunal passed impugned direction and did not take into account observations by Hon'ble Apex Court. The learned Tribunal has also recorded that the petitioner municipality has passed resolution for increasing the posts / strength in sanitation department and for want of government's approval the sanctioned posts for sanitation department of petitioner municipality continues to be 154. In this context it is pertinent to note that the learned Tribunal has on one hand recorded aforesaid observations and findings in absence of cogent evidence (i.e. merely on the basis of unsubstantiated statement) and on the other hand despite Page 36 HC-NIC Page 36 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT such findings, or rather even after recording said observations and conclusions, the learned Tribunal has proceeded to issue the impugned directions on above- mentioned two grounds, viz. (a) the financial position of the petitioner municipality is not weak and the direction to regularise the service of the concerned workmen would not impose additional financial burden on the municipality because the municipality is already paying regular salary to the concerned workmen and (b) on the ground that the workmen are employed by the petitioner municipality since many years.
17. It is also relevant that merely because the workmen have worked for long duration and/or that the workmen have worked for 240 days for long duration, that singular or solitary factor alone would not earn regularisation and/or status of permanency for such persons and only on that ground regularisation and permanency for such persons cannot be granted but other host of factors and several other aspects including sanctioned strength, clear vacancy, recruitment after following procedure prescribed, Page 37 HC-NIC Page 37 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT etc. must be taken into account. It should also be considered that regularisation in service (of the persons who are illegally or irregularly employed) would amount to introducing another mode of recruitment which is not permissible and regularisation cannot be made of mode of recruitment.
18. None of the aspects discussed above have been considered by the learned Tribunal while passing the impugned directions. The impugned directions have been passed without considering relevant aspects and / or in absence of necessary evidence as well as the pleading.
19. In this view of the matter, there appears no option except to remand the matter for fresh consideration by the learned Tribunal where the concerned workmen may get opportunity to appropriately set up a case in their statement of claim and lead necessary and appropriate evidence to establish relevant facts and aspects to justify and support their demand. Likewise, the petitioner municipality may also get an opportunity to plead proper Page 38 HC-NIC Page 38 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT factual aspects in the written statement and place necessary evidence for consideration by the learned Tribunal.
20. The Court is conscious of the fact that substantial time has elapsed since the workmen raised the claim and the dispute and that the concerned workmen have been in the process of litigations since many years. However, in view of vital lacuna in the pleadings and in the field of evidence and even in the proceeding and in absence of sufficient material which may support and justify the directions it is not possible for this Court to approve and confirm the directions passed by the learned Tribunal. At the same time, it appears that rejection of reference by allowing the petition would also deprive the opportunity and right to establish their case and seek proper relief after placing on record sufficient, cogent and necessary evidence in support of their claim. Under the circumstances, it appears that following order will serve the interest of justice.
21. The impugned award so far as the direction with Page 39 HC-NIC Page 39 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT regard to Demand No.4, i.e. for regularisation of the service of the concerned workmen and for status of permanency and for one increment for completion at every 5 years of service is set aside.
22. The other directions by the learned Industrial Tribunal are not interfered with and the award with regard to other directions / benefit is not disturbed.
23. The matter is remanded to the learned Industrial Tribunal for fresh decision with regard to Demand No.4, i.e. for regularisation of the service of the concerned workmen and for status of permanent and for one increment for completion at every 5 years of service, with clarification that the learned Tribunal shall endeavour to hear and decide the reference as expeditiously and preferably within 6 months after the matter reaches to the learned Tribunal.
24. It will be open to the workmen to appropriately modify the statement of claim from the date of receipt of first Page 40 HC-NIC Page 40 of 41 Created On Sat Sep 24 00:29:03 IST 2016 C/SCA/2668/2005 JUDGMENT notice by the learned Tribunal.
25. The learned Tribunal will grant necessary permission for the said purpose. Within 15 days thereafter, the petitioner municipality will be entitled to amend its written statement and place necessary facts, and details and within 6 months thereafter the learned Tribunal will endeavour to hear and decide the reference finally.
With the aforesaid clarifications and directions, the petition is disposed of. Rule is made absolute to the aforesaid extent.
Sd/-
(K.M.THAKER, J.) Suresh*Bharat* Page 41 HC-NIC Page 41 of 41 Created On Sat Sep 24 00:29:03 IST 2016