1. This petition under Article 227 of the Constitution has been preferred by Ahmedabad Municipal Corporation being aggrieved by the award passed by Industrial Tribunal, Ahmedabad, whereby industrial tribunal partly allowed the reference of the workman and directed the petitioner-corporation to credit 50% of earned leave in leave account of workman-Dr. Ranjanaben Shah and granted her encashment of total earned leave at her balance on date of her retirement.
2. The Deputy Commissioner of Labour, by order dated 22.02.1989, referred an industrial dispute for adjudication to the Industrial Tribunal, Ahmedabad, in exercise of powers conferred under Section 10(1) of the Industrial Disputes Act. The terms of the reference before the Industrial Tribunal was as under:
“In the matter whether Dr. Rajnaben Shah, part-time Doctor, working in Parvatibhai Prasutigruh, Health Department is entitled to earned leave, sick-leave, L.T.C, casual leave, contributory provident fund as per the scale of Harijan Kalyan Kendra or not?”
3. It appears that the workman was working as a part-time Doctor in Parvatibai Maternity Home of Ahmedabad Municipal Corporation. The workman joined services of the Corporation on 24.01.1975 as a part-time Doctor. Record reveals that the workman is M.B.B.S. D.G.O. As per the award of learned Arbitrator, Mr. I.G.Thakore, she was being given 50% of the basic wages, 50% of dearness allowance, 50% of HRA, 50% of CCA. She was placed in the pay scale of Rs. 700-1300 from 01.01.1976, and thereafter, by another arbitration award of learned Arbitrator Mr. G.S.Barot, the workman was placed in the pay scale of Rs. 200-4000, and was accordingly, given 50% of the total emoluments. It appears that the Union- respondent No. 1 submitted that in Reference (I.T.) Nos. 390/1981, 757/1982 and 743/1982, the industrial tribunal awarded compensation of L.T.C., earned leave, sick-leave etc. to the part-time workers working in the Harijan Kalyan Kendra. An instance of Reference (I.T.) No. 570/86, in case of one Maltiben Shah, was also given where she was given the benefits of earned leave, sick- leave, matrimonial leave, P.F. etc. As the authority rejected the prayer for grant of such benefits, the reference was taken up for hearing by the Industrial Tribunal.
3. The Industrial Tribunal, while allowing the reference in part, held as under:
“5. Learned Shri Rajendra Shah has raised his claim on two Awards (1) Arbitration Award of Shri I.G.Thakore and (2) Award given by the Industrial Tribunal of Shri G.S.Barot in Reference (IT) No. 390/81, 7557/742/82. It appears that in the arbitration award, for the first time, the learned Arbitrator, Shri I.G.Thakore dealt with the cases for part time employees at page 325 of the arbitration award. The case of part time employees working in the Harijan Kalyan Kendras was dealt with the length with Ramakada Attendants, Coach and Lady Supervisor in the bath, Part time teacher of Vyayam Vidyalaya, Part time Band Master, Part time Tokker at page 329 of the arbitration Award and the part time doctor are don't with at least part. The present workman being part time Doctor, we will have to look at the arbitration. Award so far as part time Doctors are concern. Part time Doctors were given the pay scale of Rs. 75-5-125. Over and above, they were given Rs. 75/- as conveyance allowance. The learned Arbitrator observed that remuneration of these Doctors were not damaged since last 25 years and, therefore, he directed that in the case of Doctor. If he is M.B.B.S. he should be given the pay scale of Rs. 500-900. As per the formula which the learned Arbitrator quoted at page 329 of the Award, these part time Doctor were to be paid proportionate percentage of the total emoluments. Accordingly, the present workman was given 50% of the total emoluments because her duty hours were only for 4 hour per day and this normally continues to apply to the part time workers. Even after the arbitration Award of Shri G.S.Barot, on the aforesaid formula the present workman was being paid 50% of the total emoluments in the pay scale of Rs. 2200-4000.
6. So far as the contention of learned Shri Rajendra Shah is concerned, the case of the workman is covered by the common Award given by Shri G.S.Barot in Reference (IT) No. 390/757/743. Learned Shri P.L.Shah for the Corporation submitted that the workman was given 15 Casual Leave, she also allowed private practioce hence the reference should be rejected. I have gone through the aforesaid common award. It was a case of Part time workers working in the Harijan Kalyan Kendras. The Union had raised demand for the benefits of Earned leave, sick leave, maternity leave, L.T.C., P.F. Etc. The Corporation had contended that there was a clear distinction between full time workers and part time workers of the Corporation and the later can not be given all the benefits given to the full time workers. Accordingly, the Corporation had contended that there was a clear distinction between full time workers and part time workers of the Corporation and the later can not be given all the benefits given in the full time workers. Accordingly, the Corporation had contended that the demands of the Union be rejected. Learned Shri G.S.Barot, the then Industrial Tribunal, after considering the contention of both the sides observed at para 5 that “In this case, there is not dispute that the working house of the lady workers concerned are from 11.30 am to 4.30 pm as against the working hours from 11.30 am to 6.00 pm of the full time workers of the Corporation. Thus, the lady workers concerned are so doubt part-time workers though the difference in the working hours is a small one. However, keeping in mind this small difference in working hours the learned Arbitrator has already granted them 85% of the Pay scale fixed for them as also the same % of HRA, DA and CCA. However, we have also to consider certain other development that took place after the date of passing of the award of the learned Arbitrator. It appears that pursuant to certain awards of the Industrial Tribunals, the Corporation have now to make perment all daily wages workmen who have worked in the Corporation continuously for five years or more and have worked for minimum 180 days in each such year. Thus, even these daily rated workmen now enjoy all the benefits as are available to the other permanent workmen of the Corporation. In this context of this development, I think the case of these part time workers needs to be considered more sympathetic. In my opinion, the aims of justice would be met if other benefits such as leave, L.T.C. and PF. are granted to these part time workers at the same percentage rate at which the basic pay and three other allowances presently being granted to them.”
Part time workers working in the Harijan Kalyan should be extended the benefits of different kinds of leave, L.T.C. and P.F. to the extent of 85%. The observations made by learned Shri G.S.Barot are as follows:
7. This Tribunal thinks that the observations made by learned Shri G.S.Barot can also be applied in the present case. Thought the workman was doing private practice, she cannot be denied the benefits which are otherwise available to her on the basis of the aforesaid award. During the course of arguments, it was made known to this Tribunal that the concerned workman, Dr. Ranjnaben Shah has retired from service around April, 1988. Therefore, the question of giving the benefits of Contributory P.F., C.I., L.T.C., Sick Leave, etc. does not arise. So far as the Earned Leave is concerned, learned Shri Rajendra Shah submitted that the same be given with retrospective effect i.e. from 01.01.1986 as was given in the common award of learned Shri G.S.Barot and I am not inclined to accept this submission because the period of claim would be much longer. The demand was raised in 1987 and the dispute was referred to this Tribunal only on 22.02.1989. This Tribunal is, therefore, of the view that it would be in the fitness of things if the demand of the Earned Leave is granted from 22.02.1989. But it may be made clear that as the other benefits of pay scale are given to the workman on 50% basis, she would be entitled to Earned Leave also on the 50% basis, that it a permanent workman is given 30 days Earned Leave as per year. The present workman would be entitled go get 50% percent of Earned Leave 15 Earned Leave. In the result, I pass the following order:
“ This Reference is partly allowed. The Ahmedabad Municipal Corporation shall credit 50% of Earned Leave in leave account of Dr. Ranjanaben Shah and Grant her encashment of total Earned Leave at her balance on date of her retirement.”
4. I have heard learned advocate, Mr. H.S.Munshaw for the petitioner and learned advocate, Mr. D.J.Chauhan for the respondent. I have also gone through the materials on record.
5. The only contention pressed in service by learned advocate for the petitioner is that the tribunal has failed to consider an important fact that the workman was permitted by the corporation to carry on with her private medical practice after her duty hours with the petitioner- corporation, and therefore, she is not entitled for double benefit. I do not find any substance in this contention.
6. In my opinion, the Industrial Tribunal has not committed any error much less an error of law which calls for any interference in exercise of my supervisory jurisdiction under Article 227 of the Constitution. Unless the findings recorded by the industrial are proved to be perverse or contrary to the evidence on record, this Court cannot disturb the same being the findings of fact. This aspect has been considered by the Apex Court in Laxmikant Revchand Bhojwani and anr. Vs. Pratapsing Mohansingh Pardeshi, reported in 1995 (6) SCC 576. Relevant observations made by the Apex Court in para 9 of the said judgement are, therefore, reproduced as under:
“The High Court under Art. 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave justice would be done unless the High Court interferes.”
7. Therefore, in view of the above, there is no substance in this petition and the same deserves to be rejected. Same is, therefore, rejected. Rule is discharged. Interim relief granted earlier stands vacated.
[J.B.PARDIWALA, J.]
JYOTI