Gujarat High Court
Deputy Executive Engineer Sardar ... vs Mahadevbhai Dhanjibhai Khokhar & on 9 January, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/20/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20 of 2013
With
SPECIAL CIVIL APPLICATION NO. 17955 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
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 ?
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DEPUTY EXECUTIVE ENGINEER SARDAR SAROVAR NARMADA
NIGAM....Petitioner(s)
Versus
MAHADEVBHAI DHANJIBHAI KHOKHAR & 1....Respondent(s)
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Appearance:
BHARGAV KARIA & ASSO, ADVOCATE for the Petitioner(s) No. 1
MR NILESH M SHAH, ADVOCATE for the Respondent(s) No. 1
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 09/01/2017
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COMMON ORAL JUDGMENT
1. Heard Mr.Karia, learned advocate for the petitioner and Mr.Shah, learned advocate for the respondent.
2. The petition being Special Civil Application No.20 of 2013 is filed by Sardar Sarovar Narmada Nigam Limited (hereinafter referred to as 'the Nigam') through its Deputy Executive Engineer against the award dated 29.9.2011 passed by the learned Labour Court at Surendranagar in Complaint No.2 of 2003 whereby the learned Labour Court has directed the Nigam to reinstate original complainant on his original post with 50% backwages. Whereas the petition being Special Civil Application No.17955 of 2014 is filed by union, on behalf of the concerned workman, against the award dated 23.9.2011 passed by the learned Labour Court at Surendranagar in Reference (LCD) No.6 of 2003 whereby the learned Labour Court declined the demand of the union on behalf of the concerned workman for Page 2 of 32 HC-NIC Page 2 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT regularization and status of permanent workman for the concerned claimant.
2.1 The contesting parties in both the cases are common. Besides this, the subject matter of the dispute is interconnected. In view of the said fact, learned advocates for the contesting parties have made common submissions with regard to their respective cases, for both the petitions. Since the common issues and contentions are involved in both the cases, the captioned two petitions are decided by this common judgment.
3. The original claimant had raised demand that in view of the long, regular and continuous service his service should be regularized and status of permanent workman should be conferred to him. The employer did not accept the said demand. Therefore, the dispute arose between the parties. The union named Surendranagar Jilla Mazdoor Sangh sponsored the dispute. Appropriate Government, vide order of reference dated Page 3 of 32 HC-NIC Page 3 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT 26.3.2003, referred the said demand for adjudication to the learned Labour Court at Surendranagar. The said dispute culminated into Reference (LCD) No.6 of 2003.
3.1 It has also emerged from the record that while the said dispute was pending before Conciliation Officer and while the dispute was pending for adjudication before the learned Labour Court, the Nigam discontinued service of the original claimant, i.e. Mr.M.D. Khokhar with effect from 25.7.2003, i.e. after the order of reference was passed by appropriate Government [which culminated into Reference (LCD) No.6 of 2003]. Differently put, during pendency of the dispute related to the demand of Mr.Khokhar for regularization in service, his service came to be discontinued by Nigam on 25.7.2003 and that, therefore, the claimant felt aggrieved and he invoked provision under Sections 33 and 33A of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') and filed complaint Page 4 of 32 HC-NIC Page 4 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT before the learned Labour Court on the ground that his service is illegally terminated and that the Nigam has committed breach of Section 33 of the Act. The said complaint came to be registered as Complaint No.2 of 2003 in Reference (LCD) No.6 of 2003.
3.2 The claimant filed his statement of claim in above mentioned Reference (LCD) No.6 of 2003 with the allegation that he is in service with the Nigam since last 11 years and he is working as Driver and that though he is continuously employed by the Nigam for 11 years as Driver and despite the fact that he has been working regularly and continuously for such long period of 11 years, his service is not considered permanent and the status of permanent workman is not conferred to him and he is deprived of benefit of permanent workman. With such allegation, he demanded regularization in service and status of permanent workman as well as the benefit on par with the permanent workman. The Page 5 of 32 HC-NIC Page 5 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT claimant, through the union, contended that there is vacancy on permanent post of sanctioned set up and that, therefore, there is justification in his demand, more particularly because he has been working continuously since last 11 years and in each year, he has worked for more than 240 days. 3.3 The Nigam opposed the said demand on various grounds. The Nigam contended that the claimant is not appointed after following procedure for selection and recruitment and that the claimant is engaged intermittently and on ad hoc and daily wage basis as and when need arises and the allegation that the claimant worked for more than 240 days is not correct. The Nigam also contended that since the claimant is not appointed after regular selection, he is not entitled for regularization in service and/or for salary and benefits on par with other permanent employees.
3.4 In the said reference proceedings, the contesting parties, i.e. concerned claimant Page 6 of 32 HC-NIC Page 6 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT (through his union) and the Nigam led their respective oral as well as document evidence. 3.5 After considering the evidence available on record and after considering rival submissions, the learned Labour Court passed the award dated 23.9.2011 and rejected the claimant's demand for regularization in service, for the reasons recorded in the award.
3.6 As mentioned earlier, while the said Reference No.6 of 2003 was pending before the learned Labour Court, the Nigam discontinued the service of the claimant on 25.7.2003 and that, therefore, the claimant filed Complaint No.2 of 2003 on the allegation that his service came to be discontinued during pendency of the dispute (Reference No.6 of 2003), wherein his demand for regularization in service was pending for consideration. According to the claimant, hi service could not have been terminated without complying the condition prescribed by Section 33 of the Act. However, without taking any Page 7 of 32 HC-NIC Page 7 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT permission, the Nigam terminated his service and committed breach of section 33. With such allegation, the claimant filed said complaint. 3.7 The complaint was opposed by the Nigam. The Nigam contended that the claimant was engaged as temporary employee on ad hoc and daily wage basis and since there was no need to continue to engage him his service was discontinued and that, therefore, the provisions under section 33 of the Act are not attracted and applicable and the complaint filed by invoking provisions under section 33 is not maintainable.
3.8 The learned Labour Court considered the complaint and the evidence available on record and having regard to the provisions under section 33 of the act, the learned Labour Court partly allowed the complaint and while setting aside the action of the Nigam, directed the Nigam to reinstate the claimant with 50% backwages.
4. It is pertinent to note that the Page 8 of 32 HC-NIC Page 8 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT claimant has not filed any petition against the learned Labour Court's decision denying 50% backwages. However, the claimant has filed captioned petition (Special Civil Application No.17955 of 2014) against the award passed by the learned Labour Court in Reference (LCD) No.6 of 2003 whereby his demand for regularization is not granted.
5. During hearing of the captioned petitions, Mr.Karia, learned advocate for the Nigam assailed the award dated 29.9.2011 in Complaint No.2 of 2003 and he submitted that the learned Labour Court has committed error in directing the Nigam to reinstate the claimant and to pay him 50% backwages. He submitted that the learned Labour Court failed to appreciate that the claimant was working with the Nigam on daily wage basis and that, therefore, the allegations and contentions with regard to breach of section 33 could not have been sustained. Without prejudice to the said contention, Mr.Karia, Page 9 of 32 HC-NIC Page 9 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT learned advocate for the Nigam submitted that even if the findings by the learned Labour Court and final conclusion by the learned Labour Court as well as the direction to reinstate the claimant are held to be justified, then also the direction to pay 50% is unjustified and the said direction may be set aside.
5.1 Mr.Shah opposed the submissions and claimed that since the claimant's service was terminated when dispute for regularization of service was pending and the Nigam failed to seek approval under Section 33 of the Act, it committed breach of said section and therefore, there is no error in the award directing reinstatement with 50% backwages, more particularly because breach of Section 33 is proved.
6. Mr.Shah, with regard to the petition filed by the claimant relied on the documents placed on record before the learned Labour Court, more particularly communication dated 1.4.1999 by Page 10 of 32 HC-NIC Page 10 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT the Executive Engineer to General Manager (Training) of the Nigam whereby the Executive Engineer seems to have recommended regularization of claimant's service. Mr.Shah also placed reliance on the document dated 29.7.1999 by Executive Engineer, Surendranagar to Superintending Engineer whereby also similar recommendation is reiterated. On strength of the said documents, learned advocate Mr.Shah for the claimant submitted that though there is vacancy on permanent post of sanctioned set up, the Nigam rejected the claimant's request for regularization in service and the learned Labour Court failed to appreciate the fact that the vacancy on permanent post on sanctioned set up exists and that, therefore, the demand for regularization should be granted, more particularly in view of the fact that the claimant is working continuously and regularly with the Nigam since last 11 years as Driver and that in each year he has worked for more than 240 days and that, therefore, there is complete Page 11 of 32 HC-NIC Page 11 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT justification in the demand for regularization. Mr.Shah, learned advocate for the claimant submitted that the learned Labour Court failed to appreciate the said aspect as well as the evidence on record and arbitrarily rejected claimant's demand and that, therefore, the award deserves to be set aside and the Nigam should be directed to regularize service of the claimant from the date when the claimant completed service of more than 240 days and that the Nigam should also pay arrears for interregnum.
6.1 Mr.Karia, learned advocate opposed the petition and the demand. He emphasized that appointment itself is defective and irregular therefore such demand cannot be entertained. He also submitted that there are no vacancies and no sanction for such post / appointment on the approved set up and that merely on ground of long service such relief cannot be granted. He submitted that there is no error in the award denying relief in form of regularization of Page 12 of 32 HC-NIC Page 12 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT service.
7. I have considered rival submissions by learned advocates for the contesting parties. I have also considered the material available on record of the captioned two petitions and I have also considered the award passed by the learned Labour Court in Reference (LCD) No.6 of 2003 as well as Complaint No.2 of 2003.
7.1 For sake of convenience, it would be appropriate to first deal with the Nigam's grievance and objection against the award dated 29.9.2011 in Complaint No.2 of 2003.
8. So far as the said award is concerned, it is relevant to take into account, at the outset, certain undisputed facts.
8.1 It is not in dispute that the claimant had, through is union, raised demand for regularization in service and appropriate Government referred the said demand / dispute for adjudication to the learned Labour Court vide Page 13 of 32 HC-NIC Page 13 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT order of reference dated 26.3.2003. 8.2 Thus, the dispute/ demand for regularization in service of the claimant was initially pending before Conciliation Officer. Thereafter it was pending before the learned Labour Court since 26.3.2003.
8.3 While the said dispute / demand for regularization of claimant's service was pending before the learned Labour Court, the claimant's service came to be discontinued by the Nigam on 25.7.2003.
8.4 The Nigam has not disputed the fact that the Nigam terminated service of the claimant. The Nigam has also not disputed the fact that the claimant's service came to be discontinued with effect from 25.7.2003. The Nigam could not dispute the fact that on the date when the claimant's service came to be terminated (i.e. on 27.7.2003), the dispute / demand for regularization of claimant's service was pending Page 14 of 32 HC-NIC Page 14 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT before the learned Labour Court (since 26.3.2003).
8.5 Above mentioned undisputed facts bring in picture the provision under section 33. The said section 33 reads thus:
"33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings (1) During the pendency of any conciliation proceeding before b [an arbitrator or] a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, b [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman;
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for Page 15 of 32 HC-NIC Page 15 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT approval of the action taken by the employer. ... ... ..."
8.6 According to the said provision, if service of an employee is sought to be terminated or if conditions of service of an employee are sought to be altered during pendency of the dispute, then depending on the fact that the termination of the service or alteration in service conditions are connected with pending dispute or not, the employer would be obliged to seek permission or approval from Conciliation Officer or the Court where the dispute is pending. In the event, the termination of service or alteration in service conditions is effected without complying with the said requirement of seeking approval or permission, as the case may be, then breach of section 33 would occur which would create right in favour of the affected employee to file complaint under section 33A of the Act.
8.7 In this context, it would be appropriate
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to refer to the observations by Hon'ble Apex Court in the case of The Bhavnagar Municipality vs. Alibhai Karimbhai & Others [AIR 1977 SC 1229], wherein Hon'ble Apex Court has observed that:
"14. The character of the temporary employment of the respondents being a direct issue before the Tribunal is that condition of employment, however insecure, must subsist during the pendency of the dispute before the Tribunal and cannot be altered to their prejudice by putting an end to that temporary condition. This could have been done only with the express permission of the Tribunal. It goes without saying that the respondents were directly concerned in the pending industrial dispute. No one can also deny that snapping of the temporary employment of the respondents is not to their prejudice. All the five features adverted to above are present in the instant case. To permit rupture in employment, in this case, without the prior sanction of the Tribunal will be to set at naught the avowed object of Section 33 which is principally directed to preserve the status quo under specified circumstances in the interest of industrial peace during the adjudication. We are, therefore, clearly of opinion that the appellant has contravened the provisions of Section 33 (1) (a) of the Act and the complaint under Section 33A, at the instance of the respondents, is maintainable.
The submission of Mr. Parekh to the contrary cannot be accepted." (Emphasis supplied) 8.8 In view of the undisputed fact that at the relevant time, the dispute / demand for regularization of the claimant's service was pending, the Nigam could not have terminated service of the claimant without complying conditions under section 33 of the Act.
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8.9 Since the Nigam undisputedly terminated
claimant's service without complying condition and requirement prescribed by section 33, the Nigam's action is illegal and in violation of section 33 of the Act.
8.10 That is precisely the final conclusion which the learned Labour Court has reached to and recorded in the award dated 29.9.2011 in Complaint No.2 of 2003.
8.11 The finding of fact and final conclusion recorded by the learned Labour Court are in consonance with section 33 of the Act and supported by the decision by Hon'ble Apex Court in case of Bhavnagar Municipality (supra). Therefore, the said findings of fact and final conclusion by the learned Labour Court cannot be faulted and they do not warrant any interference.
9. In this background, the only issue which would survive for consideration is with regard to the final direction by the learned Labour Court.
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9.1 Having reached to the conclusion that
the claimant's service came to be terminated illegally and in breach of statutory provision, the learned Labour Court directed the Nigam to reinstate the claimant.
10. In this context, in the decision in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) (2013) 10 SCC 324 wherein Hon'ble Apex Court has observed that:
"38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer Page 19 of 32 HC-NIC Page 19 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position visàvis the employee or workman. He can avail the services of best legal brain for prolonging Page 20 of 32 HC-NIC Page 20 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees."
10.1 When above quoted observations by Hon'ble Apex Court are taken into account in light of the fact that the claimant's service was terminated in violation of statutory provision, then it becomes clear that there is no justification to interfere with the order directing the Nigam to reinstate the claimant. Such direction to reinstate the claimant is normal and natural consequence which should follow. Therefore, the said direction cannot be faulted.
11. Mr.Karia, learned advocate for the Nigam, in alternative, contended that the direction to pay 50% backwages may be set aside. 11.1 Above quoted observations by Hon'ble Apex Court also make it clear that if specific case and strong justification for exception is Page 21 of 32 HC-NIC Page 21 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT not made out by the employer for denying whole or part of the backwages, the said relief will ordinarily not be denied to the claimant. 11.2 In present case, any material to justify denial of 50% backwages, as granted by the learned Labour Court, is not made out by the employer, i.e. the Nigam.
12. Any case to set aside the direction to pay 50% backwages is not made out, more particularly in view of the observations by Hon'ble Apex Court in case of Deepali Gundu Surwase (supra). Therefore, the Nigam's submission to set aside the direction granting 50% backwages is hereby rejected.
13. Now, so far as the award dated 23.9.2011 in Reference (LCD) No.6 of 2003 is concerned, it is noticed that after considering the document on which the claimant placed reliance, the learned Labour Court has recorded finding of fact that the claimant has not made out any justification Page 22 of 32 HC-NIC Page 22 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT for direction to regularize his service and/or for status of permanent workman.
14. So far as the said decision by the learned Labour Court is concerned, it is appropriate to take into account the observations by Hon'ble Apex Court in case of Secretary, State of Karnataka and others vs. Umadevi (3) and others [(2006) 4 SCC 1], wherein Hon'ble Apex Court has observed, inter alia, that:
"41. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.
42. The argument that the right to life protected by Article 21 of the Constitution of India would include the Page 23 of 32 HC-NIC Page 23 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
43. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the Page 24 of 32 HC-NIC Page 24 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment.
In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
45. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.
46. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part Page 25 of 32 HC-NIC Page 25 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 35953612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.
47. Coming to Civil Appeal Nos. 18612063 of 2001, in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed.
48. C.A. Nos. 352024 of 2002 have also to be allowed since the decision of the Zilla Parishads to make permanent the employees cannot be accepted as legal. Nor can the employees be directed to be treated as employees of the Government, in the circumstances. The direction of the High Court is found unsustainable."
15. From the above quoted observations by Hon'ble Apex Court, it becomes clear that if the initial appointment is irregular and in violation of prescribed procedure for selection and recruitment, then merely because the person has worked for more number of years, right for Page 26 of 32 HC-NIC Page 26 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT regularization in service and/or for status of permanent workman would not accrue and such relief or benefit cannot be granted on such ground.
16. Besides this, at the time of hearing, learned advocate for the claimant failed to make out any ground against the observation and finding of fact recorded by the learned Labour Court.
16.1 Learned advocate for the claimant placed reliance on the Government Resolution dated 17.10.1988. Mr.Karia, learned advocate for the Nigam, however, submitted that the said resolution is not applicable or binding to the Nigam which is an autonomous body, more particularly because the Nigam has not adopted the said Government Resolution dated 17.10.1988 by passing appropriate resolution in its government body and that, therefore, reliance placed on Government Resolution dated 17.10.1988 is misconceived.
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16.2 There is substance in the said
contention by learned advocate for the Nigam and therefore, any benefit on strength of the said Government Resolution cannot be extended to the claimant.
16.3 After considering such relevant aspects, the learned Labour Court has denied the demand for regularization in service and considering material available on record, this Court does not find any justification to interfere with the said decision by the learned Labour Court. 16.4 Besides this, learned advocate for the claimant has failed to make out any ground to set aside the said decision by the learned Labour Court and to grant benefit of regularization in service and status of permanent workman. 16.5 Therefore, the award does not warrant any interference.
17. However, before concluding, it is Page 28 of 32 HC-NIC Page 28 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT relevant and necessary to mention that the award, to certain extent, requires modification inasmuch as while rejecting the reference, the learned Labour Court has observed that the Nigam will continue the claimant's service.
17.1 However, while passing the said direction, the learned Labour Court has also observed that the Nigam shall continue the claimant in service as daily wager.
17.2 While rejecting the reference, the learned Labour Court could not have and ought not to have passed such direction or could not have and ought not have made such observation inasmuch as the said direction or observation by the learned Labour Court would adversely affect the claimant's case for regularization in service as and when circumstances or justification for such action / benefit arise in accordance with law. The said observation and direction by the learned Labour Court would scuttle all options of the claimant and it puts embargo on Nigam's right and Page 29 of 32 HC-NIC Page 29 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT option of considering claimant's case for regularization at proper stage and time and in accordance with law and the direction also seals the fact of the claimant for all times to come and by such direction he would be destined to continue only as daily wager upto the age of superannuation and that, therefore, the said observation deserves to be set aside.
18. In the result, the award dated 23.9.2011 in Reference No.6 of 2003 is partly modified with the direction that the observation by the learned Labour Court that the claimant will be continued as daily wager, is set aside and the award is restricted to the decision by the learned Labour Court rejecting the demand for regularization and status of permanent workman with the clarification that as and when circumstances arise for considering the case of the claimant for regularization in service in accordance with, the Nigam may consider the case of the claimant in accordance with law and applicable rules and Page 30 of 32 HC-NIC Page 30 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT policy and will pass appropriate order.
19. At this stage, Mr.Shah, learned advocate for the claimant submitted that the claimant desires to make appropriate representation to the Nigam in view of the fact that the vacancy on permanent post of sanctioned set up still exists and certain other persons (working as Driver with the Nigam) have been regularized in service by the Nigam while claimant's case remained pending before the Court.
19.1 In view of the said submission by learned advocate for the claimant, it is clarified that for the claimant to decide future course of action as he deems fit or as he may be advised and there is nothing for the Court to observe on that count except to clarify that if the claimant submits such representation, the competent authority may consider the same in accordance with law and applicable rules.
With the aforesaid clarifications and Page 31 of 32 HC-NIC Page 31 of 32 Created On Sat Aug 12 02:40:30 IST 2017 C/SCA/20/2013 JUDGMENT observations, the petition being Special Civil Application No.17955 of 2014 stands disposed of.
In the result, the petition filed by the Nigam, i.e. Special Civil Application No.20 of 2013 stands dismissed and Rule is discharged. So far as the petition filed by the workmen, i.e. Special Civil Application No.17955 of 2014 is concerned, the award is partly modified and with the clarifications recorded above, the said petition stands disposed of.
Sd/-
(K.M.THAKER, J.) Bharat Page 32 of 32 HC-NIC Page 32 of 32 Created On Sat Aug 12 02:40:30 IST 2017