1. Heard learned counsel appearing for the parties.
2. The petitioners, second party workers in New Reference I.T. No.80/1993 from the Court of Presiding Officer, Industrial Tribunal, Bhavnagar have approached this Court under Articles 226 and 227 of the Constitution of India, challenging the award and order dated 24.08.2000 passed by the Industrial Tribunal in so far as, it did not award the arrears of wages once having declared them to be entitled for regularization from the date of their initial entries in the service and restricting the actual payment benefits from the date of the award for the reasons stated in the petition.
3. The facts leading to filing this petition, as could be culled out from the memo of petition deserve to be set out as under;
3.1 The petitioners that is the original workers were constrained to raise industrial dispute in respect of they being discriminated against in employment of the respondent Municipality, as despite they being working for the entire duty hours which were more than five hours, they were paid as part-time employees and were not given any other benefits of regular employees. The said dispute was referred to the competent Court under order dated 28.02.1990, wherein it was stated that three 'Tedagars' working in Bagasara Nagarpalika, namely; Jayaben Bhurabhai, Hiraben D.Trivedi and Shardaben Jagjivan Ganatra should be regularized and be paid the benefits of regularization with arrears from the date of the initial entry in the service.
3.2 This reference was numbered and renumbered on account of change of jurisdiction of the Tribunal, but fact remains to be noted that the order of reference is that of 28.02.1990. The Tribunal after recording elaborately the findings qua the workers working for more than five hours and discharging their duties as 'Tedagars' and after taking into consideration resolution no. 65 of the employer Municipality and the proposal to absorb these workers in regular employment, the Tribunal held that they deserve to be made permanent from the date of their entry in the service, but the actual benefit in terms of payment should accrue to them only from the date of the order and award and the earlier date should be taken for determining the wages payable on that basis and the 'notional' fixation was ordered. This non granting of arrears benefit in terms of money and confining it to the date of award is subject matter of challenge before this Court. It is required to be noted at this stage that the employer Municipality also had preferred petition being S.C.A. No.4333 of 2001, which came to be withdrawn, as recorded by this Court (Coram: R.S.Garg, J.) in its order dated 14.08.2007, which read as under;
“Shri M.B. Parikh, learned Counsel for the petitioner, submits that he has instructions to inform the Court that in view of compliance of the order by the petitioner – Bagasara Municipality, the petition has become infructuous. He prays for withdrawal of the same.
The petition is, accordingly, dismissed. Rule is discharged. Interim relief if any, is vacated. No costs.
3.3 Thus, the impugned award which was subject matter of challenge in the two petitions by the employer as well as employees concerned for the different reasons is now to be examined by the Court in light of the existing challenge of workers and their heirs.
4. Learned counsel for the petitioners - workers contended that the order permitting withdrawal of the petition of the employer being S.C.A. No. 4333 of 2001 assumes greater significance, as the challenge to the award, so far as the direction of regularization and payment of wages on that basis is concerned, could be said to have been given up on part of the employer which amounts to acceptance of the amount in its totality by the employer. Therefore, to that extent now employer cannot be permitted to go beyond it even while defending the award, as the award itself is accepted and, therefore, on the ground of so called vulnerability of the award and reasoning of the award cannot be permitted to be highlighted by learned advocate appearing on behalf of the Municipality.
5. Learned counsel for the petitioners workers further contended that the concept of 'notional' is not available to the Tribunal without there being any cogent reason for curtailing the actual payment of wages. The Tribunal has at one hand given all the benefits accepting the workers' say qua their entitlement of permanency and on other hand by restricting the benefits admissible only from the date of the award without there being any justifiable reason and hence the award to that extent is required to be modified.
6. Learned counsel for the petitioners workers further contended that the testimony of the witnesses and the findings recorded by the Tribunal and subsequent development in form of withdrawal of the petition by the employer indicate that there existed no reason which would have justified curtailment of the payment of benefits and restriction thereof only from the date of the order. The Tribunal could have considered at least mentioning of the reasons for such curtailment. In absence of any reason for curtailment, the award and direction of curtailment becomes vitiated so far as it does not grant benefits and payment of benefits from the actual date of entry in service. The petition, therefore, is required to be allowed.
7. Learned counsel for the respondent contended that the withdrawal of the petition being S.C.A. No.4333 of 2001 cannot be construed as giving up defence available to the employer for defending its stand in this petition, as even the Tribunal has observed in its order that the workers were not entitled to receive actual benefit from earlier date. That, one of the workers retired prior to filing of the Reference and other one retired during the pendency of the petition and third one is continuing and in fact by virtue of the order of this Court, the award is already implemented. As the award is implemented now, this petition may not be entertained and be dismissed as the workers should feel satisfied as the award is already implemented. The financial condition of the Municipality is also not sound as to bear burden in the form of actual payment from the date of the entry of the workers in the service.
8. Learned counsel for the Municipality further submitted that the award indicates that the workers were part-time employees and the testimony of the Chief Officer of the Municipality indicate that they were never doing full-fledged work and they were working for two to three hours solely for fetching children and accompanying them to their respective places. This would indicate that the workers were not entitled to receive even the benefit of permanency, but as it is not open for argument, no further relief can be granted in favour of the workers which would saddle the Municipality with additional financial burden.
9. Learned counsel for the Municipality cited decision of the Apex Court in case of Secretary, State of Karnataka And Others Vs. Umadevi (3) And Others, reported in (2006) 4 Supreme Court cases 1, as well as decision of this Court in case of Amreli Municipality Vs. Gujarat Pradesh Municipal Employees Union, reported in 2004 (2) G.L.H. 692 to resist the prayers in this petition.
10. This Court is of the considered view that the petition is required to be allowed partly and the award impugned is required to be modified partly for the following reasons namely;
(i) Learned counsel for the workers is justified in submitting that the Tribunal ought to have recorded reason for withholding actual payment when the terms of reference did not preclude such relief to be granted. In fact this Court is also of the considered view that looking to the terms of reference and the jurisdictional aspect available to the Tribunal it can be said that the Tribunal was not in any manner precluded from granting appropriate relief in appropriate permanency, then it was a duty cast upon the Tribunal to come out with cogent reason as to why and for what reason Tribunal thought it fit to restrict the actual payment and the benefit from the date of the order. The award is entirely silent qua these aspects and, therefore, this Court is of the considered view that the same, to that extent, is required to be modified, or else it will amount to denying the legitimate right to the workers after having succeeded in the litigation and established their claim of being permanent or being treated as permanent.
(ii) Learned counsel for the respondent Umadevi (3) And Others (supra) as well as this Court in case of Amreli Municipality Vs. Gujarat Pradesh Municipal Employees Union (supra), as it would otherwise amount to permitting the respondent Municipality to take one more chance and revive its own challenge which they have expressly given up, which amounts to accepting the award, which includes findings qua workers being entitled for permanency from the date of inception. Having come to this conclusion that the observations of the Apex Court in case of Secretary, State of Karnataka And Others Vs. Umadevi (3) And Others (supra) as well as this Court in case of Amreli Municipality Vs. Gujarat Pradesh Municipal Employees Union (supra) will be of no avail to the respondent employer, the Court is of the considered view that a question arises as to whether the workers be granted benefit right from the date of inception of their services or it be restricted from the date on which they raised dispute. In the oral facts and circumstances of the case, it would be appropriate if the actual payment of arrears is confined to the date of the order of reference, as at least from that date it can be said that the workers were agitating their case and were seeking justice from that day. The period prior thereto may not be considered for entitlement of actual payment to them, but the order of the
counted from the date on which they have completed 240 days and it would be on that basis the actual payment would be made only from 28.02.1990, that is the date on which the order of reference was made. According to this Court, the workers may not be entitled to receive actual benefits as they also did not raise dispute on earlier occasion though the workers have been serving since 1963 and in other two cases at least from 1997.
11. Therefore, to the aforesaid extent the award is modified and now as per the modified award the arrears of payment is to be made from the date of inception of service, but the actual payment is made from the date of the reference i.e. 24.08.2000. The petition is partly allowed. Rule is made absolute to the aforesaid extent. No costs.
12. It goes without saying that the Court has not given any additional direction. This order is merely a modification of the original award in which the date of actual payment is shifted from the date of reference to 28.02.1990. The arrears be paid on that basis within three months from the date of receipt of writ of this order.
Direct service is permitted.
Pankaj
(S.R.BRAHMBHATT, J.)