1. This group of petitions have been filed by the first party in Reference (I.T.) Nos. 21/2006, 22/2006, 24/2006 and 25/2006 arising from the Industrial Tribunal, Bhavnagar challenging the orders in award passed in four references baring Reference (IT) No. 23 of 2006, partly allowing the references and directing the petitioner to treat the respondents-workmen as permanent from 29/3/1985 and accord them all the admissible benefits flowing there from. These four petitions, as they are arising out of the common judgment & award and are containing almost same facts & circumstances of the case were clubbed together and are heard & disposed of by this common judgment & order.
2. The facts in brief leading to filing these petitions as could be culled out from memo of the petitions and the award impugned deserve to be set out as under in order to appreciate the controversy between the parties.
3. The petitioner Gujarat Maritime Board happens to be the statutory Board constituted under the provisions of Gujarat Maritime Board Act, 1981, and is engaged in looking after minor ports in State of Gujarat. The workmen / respondents herein above were constrained to raise their demand for treating them as permanent and regular employees of the Board on account of their continuous services rendered in the Board and their claim based upon the provision of Article 14 of the Constitution of India that the workmen were subjected to unfair labour practice as the employees junior to them ere regularized and given benefits of permanency denying them such a treatment for no reason was said to be violative of Article 14 of the Constitution of India. This demand was referred to the competent Court wherein they were numbered as Reference (I.T.) No. 21 of 2006 in SCA No. 7880 of 2009; Reference (I.T.) No. 22 of 2006 in SCA No. 7881 of 2009; Reference (I.T.) No. 24 of 2006 in SCA No. 7883 of 2009 and Reference (I.T.) No. 25 of 2006 in SCA No. 7884 of 2009 respectively. Statements of Claim are filed against which written statements came to be filed and the Court adjudicated the references. The workmen claimed that they were appointed on their respective post from the date mentioned in the statement of claim which ranges from the year 1979 to 1983. The workmen were appointed after inviting names from the concerned Employment Exchange and after subjecting them to the selection procedure and hence they were required to be treated as permanent employees. Workmen's services were treated to be as 'work charge employee' and the appointment orders given to them were to this effect only. The workmen's services were terminated vide order dated 29/3/1985 unceremoniously without following due procedure of law and hence workmen were required to raise industrial dispute which came to be referred to the competent court at the relevant time wherein the Labour Court at Junagadh gave reference number being Reference No. (LCJ) No. 924 of 1990 to 930 of 1990. Vide order dated 21/7/1998 the Court ruled in their favour and ordered reinstatement with continuity of services, however granted 80% backwages instead of 100%. This awards of Labour Court, Junagadh, were carried into High Court by way of preferring Special Civil Application No. 1007 of 1998 challenging the award by the present petitioner / employer Board. This Court decided this matter vide order in judgment dated 15/6/1999 and dismissed the petition by confirming Labour Court orders. The order of this Court dated 15/6/1999 was carried into appeal being Letters Patent Appeal No. 1048 of 1999, wherein the Division Bench while rejecting the appeal vide order dated 17/4/2000 slashed the backwages to 40% and to that extent the awards were modified party. Being aggrieved by the order in appeal, petitioner Board carried this order before the Supreme Court by preferring SLP No. 2979 of 2011, which also came to be rejected vide order dated 14/1/2003.
4. The reinstatement of the workmen were not accompanying with the benefits admissible to the permanent employees and therefore workmen being aggrieved of said treatment were agitating for getting similar treatment which was accorded to fellow workmen who were not even enjoying the status of work charge employee and who were not appointed by following any procedure akin to selection procedure that was adopted in case of respondents-workmen.
5. The employer Board in its written statement vehemently denied the contentions and submitted to the Court that the treatment accorded to the daily wagers cannot be claimed by the present workmen/respondents herein above as they were forming a class apart and as such discrimination cannot be pleaded on their part. The employer Board before the Labour Court in written statement said that daily wagers were given benefit of Government Resolution dated 17/10/1988 which was in fact accorded to many daily wagers in various Corporations and Statutory Bodies of the State and in many cases the treatment of permanency came to be accorded on account of the decisions of the Court which cannot be said to be an action so arbitrary or discriminatory as to invite any interference by the Court.
6. The set of employees said to have been regularized or enjoying benefit of permanency were the employees recruited directly as per the selection procedure and recruitment rules and therefore the workmen and similarly situated employees cannot clamour against such regularization and or appointment as this direct recruits are legitimately forming a separate class. In short the allegation qua discrimination being ill-founded required rejection outright.
7. The Industrial Court after appreciating the evidence adduced by the parties came to the conclusion that the workmen were justified in claiming treatment as permanent staff from the date mentioned in the award and accordingly partly allowed the references and directed the petitioner Board to treat the workmen as permanent from the date mentioned there under and accord them all admissible benefits flowing there from. The reference qua one employee being Reference No. (IT) 23/2006 however was rejected and this Court is not concerned with that as no further proceedings as on date survives from any quarter.
8. This award dated 30/3/2009 is subject mater of challenge in this group of petitions on the grounds mentioned there under.
9. Learned advocate appearing for the petitioner Board contended that the statement in the form of written statement available on record of the Industrial Court contains specific stand of the employer that the Board is being a statutory authority and also an authority as prescribed under Article 12 of the Constitution of India has to follow the settled principle of law and recruitment procedures. The present workmen who are before the Court were not appointed in accordance there with and therefore when their appointments were not in accordance with law or as per the rules these workmen have no right whatsoever to be treated as permanent employees.
10. Learned advocate for the Board invited this Court's attention to the stand spelt out for this effect in the written statement which is produced on record of this petition also and contended that non production of Recruitment Rules per say before the Industrial Court would not be so fatal or an error on the part of the employer so as to persuade this Court to hold against the petitioner. The Recruitment Rules have been available in the form of Recruitment Rules promulgated and prevalent in the State as this statutory Board has resolved to adopt and follow as per the instruction of the State's recruitment procedure and recruitment rules prevalent there in. The requisite circular being Circular dated 16/4/1982 is placed on record of these petitions which though not forming part of the Industrial Court's record, would sufficiently indicate that the said being a public document production thereof here cannot be objected to and the Court may also take that into consideration in support of the stand taken by the Board qua existence of a set of procedure and rules for making appointments to various posts in the Board.
11. Learned advocate for the Board thereafter invited this Court's attention to the rules called Gujarat Non Secretariat Clerks, Clerk/Typist, and Typist (Direct Recruitment Procedure) Rules 1970 which were also not placed before the Industrial Court. Those rules will indicate that these were the rules containing procedure for recruitment to the posts and the workmen / respondent herein above were not recruited as per the procedure contained in this rules. Learned advocate therefore urged that the rules may be taken on record to indicate that the Board followed this procedure through out.
12. Learned advocate for the petitioner thereafter contended that the Industrial Tribunal has unfortunately not appreciated the facts that the set of employees who are sought to be projected as if they were juniors to the workmen and they were regularized were in fact legitimately appointed direct recruits against the vacancies by following due procedure as prescribed under the recruitment rules. Therefore this set of employees, though subsequently appointed to the present workmen's date of appointment cannot be said to have been appointed so as to attribute discriminatory treatment to the workmen as their junior employees have been appointed after following due procedure of law and as such they cannot be said to be in any manner equivalent to the workmen nor the workmen can claim any parity so as to attributed justifiable action of so called discrimination to the petitioner Board.
13. Learned advocate for the Board thereafter contended that the employees who were forming workforce known as daily wagers also cannot be equated with the present workmen as the daily wagers were required to be accorded same benefits flowing from the policy and practice emanating from Government Resolution dated 17/10/1988. The present workmen cannot claim parity with daily rated employees as they were not qualified to be given said treatment as the said treatment was available only to daily rated employees as such. Admittedly workmen were forming part of the work charge employee force and being a separate class could not have sought any parity nor could have claimed any discrimination on account of treatment accorded to the daily rated employees.
14. Learned advocate for the petitioner further contended that daily rated employees who came to be made permanent on account of various Labour Courts awards and in pursuance thereof are also forming class by themselves which cannot be said to be equivalent to the present respondent workmen so as to justify their claim of discrimination. The employees who are covered by various Courts orders and in whose favour the Courts granted of permanency were required to be made permanent even if they were appointed subsequent to the appointment of present respondent workmen.
15. Learned advocate for the petitioner relying upon the Apex Court decision in case of Umadevi reported in (2006) 4 SCC pg. 1, contended that the Courts do not have any power either to create posts or to order permanency as done by the Tribunal in the present case. The ratio laid down by Apex Court in case of Umadevi will have a complete applicability to the facts & circumstances of the present case and therefore, on account of established provision of law, the judgment and awards impugned in these petitions cannot be sustained and the same are required to be quashed and set aside.
16. Learned advocate for the petitioner Board invited this Court's attention to the observation made by Full Bench of this Court in Amereli Municipality V. Gujarat Pradesh Municipal Employees Union, reported in 2004 (3) GLR pg. 1841 and contended that the law so far as the State is concerned is clear even prior to the pronouncement of ratio laid down in Umadevi (supra) as the provision of law as stood then, and now do not permit the direction qua regularization of an employee who was initially not appointed in accordance with provision of law.
17. Learned advocate for the petitioner invited Court's attention to another decision of the Apex Court in case of Urmila Devi And Others Vs. State of Bihar And Others, reported in 1999 SCC (L&S) 642 and contended that assuming for the sake of arguing without conceding that the document exhibit-48 contains names of the employees who were regularized were not required to be regularized, then also, on the earlier action of the Board even if not in accordance with law or is a wrong regularization of employee at an earlier in point of time, would not justify claim of the present workmen for being regularized on the spacious plea of breach of Article 14 and or unfair labour practice.
18. Learned advocate for the petitioner further contended that the ground of unfair labour practice which is sought to be made out before this Court was conspicuously absent as could be seen from the statement of claim and pleadings, therefore the Court could not have attributed unfair labour practice to the petitioner so as to grant relief in favour of the workmen and therefore on this ground also the award impugned deserve to be quashed and set aside.
19. Learned advocate for the respondent workmen contended that the statements of claim filed by the workmen clearly indicate that the workmen were subjected to unfair practice which was nothing but unfair labour practice and they were denied their legitimate rights and benefits admissible to them. The workmen were ordered to be reinstated with continuity of service and 80% of back wages by the Court of competent jurisdiction and the said order had not been disturbed till the matter was disposed of by Supreme Court but except the reduction in quantum of backwages from 80% to 40%. Therefore, continuity of service cannot be denied to the workmen. Based upon the said decision and the attendant circumstances the workmen rightly claimed that they were deliberately denied the benefits of permanency which otherwise would have been made available to them as it is no one's case that workmen did not fulfill the eligibility criteria for being appointed on the post which they were appointed right from the beginning.
20. Learned advocate for the workmen respondent contended that the observations of the Industrial Tribunal would clearly go to show that the Tribunal has recorded in unequivocal terms that the workmen's initially appointment were by following the procedure of law whereby their names were invited from Employment Exchanges and they were subjected to selection procedure and thereafter only they have been appointed. When these facts have been brought on record the Tribunal recorded that these workmen's appointment were not on account of any corrupt practice or favoritism then the ratio laid down in case of Umadevi (supra) will have no applicability whatsoever in question in the present case.
21. Learned advocate for the workmen contended that the Industrial Tribunal has in unequivocal terms recorded in its findings qua the discriminatory treatment meted out to the workmen on account of the fact that the workmen were compelled to serve only as work charge employees depriving them the benefits which was made available and admissible to all others, including persons who were working merely as daily wagers. The heartburning on the part of workmen were doubled when their juniors were accorded benefits of permanency which has resulted into juniors drawing higher wages of emoluments than the workmen who were admittedly seniors to those employees. This treatment cannot be glossed over by specious plea of separate class as sought to be made out by learned advocate for the petitioner. That class which is sought to be made out were not existing before the Court as could be seen from the proceedings and findings recorded by the Industrial Court.
22. Learned advocate for the workmen thereafter invited this Court's attention to the observations qua the set of employees who were given benefit of permanency despite of their initial appointment not being in accordance with rules which were placed into service only before this Court in this proceeding. Learned advocate for the respondents contented that the recruitment rules which have been pressed in to service in this Court cannot be looked into on the ground that those recruitment rules were not forming part of the Industrial Tribunal proceedings nor were they be considered in any manner by the Court. This being a petition under Article 227 or even it is to be considered under Article 226 of the Constitution, then also when recruitment rules were not subject matter of consideration in any manner by the Industrial Tribunal then the judgment of the said Tribunal cannot be assailed on the ground or recruitment rules which were never placed before the Tribunal for its consideration. Therefore on account of simple principle of pleading also recruitment rules which are now relied upon and placed in service are of no avail to the employer petitioner and same may not be looked into for considering the award which was admittedly passed without referring this recruitment rules. In any event employer petitioner cannot be permitted to produce this recruitment rules and makes submission on the basis thereof which is sought to be made for the first time before this Court under Article 226/227 of the Constitution of India.
23. Learned advocate for the workmen thereafter contended that, assuming for the sake of argument, without conceding that this recruitment rules have applicability, then also very perusal of this recruitment rules show that the Board did not follow this very rules so far as the appointment of juniors were made who have been classified to be direct recruits as the petitioner has not indicate in any manner as to how and in what manner appointments were made. The submission canvassed on behalf of the petitioner that the Board formed recruitment committee and recruitment committee invited applications from open market in itself would not make the recruitment of those employees sustainable in respect of Rule 70 of the Rules which is being for the first time placed in this Court for assailing the order in award. Therefore on this ground also Industrial Tribunal award needs no interference.
24. Learned advocate for the workmen further contended that the ratio laid down in case of Umadevi by Apex Court will have no applicability whatsoever in light of the subsequent judgment of explaining of Umadevi by Apex Court in case of Maharashtra State Road Transport Corporation And Another Vs. Casteribe Rajya Parivahan Karmchari Sanghatana, reported in (2009) 8 SCC pg.
556 with special emphasis upon observations made in para no. 34, 35, 36 and upto 47. This observations were sought to be relied upon to canvass submission that so far as the Industrial Tribunal and Labour Courts are concerned the power granted to it flow from the respective labour legislation and Umadevi ratio laid down by Apex Court in Umadevi (4) cannot be so construed as to clip the powers of the Courts so as to render those provisions nugatory. The entire decision in case of Umadevi by & large revolves around the Court's jurisdiction qua issuing direction in respect of employees who were dubbed to be employees recruited as back door entrants. In the instant case observations of the Industrial Tribunal in respect of procedure followed and the lack of favoritism and or corrupt practice would be sufficient to indicate that the ratio of Apex Court in case of Umadevi will have no applicability whatsoever in the present facts & circumstances of the case.
25. Learned advocate for the workmen/ respondents invited this Court's attention to the document exhibit-40, 41 and 48 and contended that the observations made by Industrial Tribunal in respect of claim of the workmen flowing from those document cannot be said to be in any manner perverse and or ill founded so as to call for interference of this Court. The workmen have been continuously working since the date of their appointment and non granting them the benefits of permanency would amount to practicing discrimination against them which is otherwise also not permissible under Article 14 of the Constitution as the petitioner themselves have claimed to be agency and instrumentality of the State covered by Article 12 of the provision of the Constitution. In view of this also the petitions be rejected.
26. Learned advocate for the workmen thereafter contended that the nature of duties performed by the workmen have not been assailed in any manner before the Tribunal or before this Court nor have the employer made any whisper about the qualifications or lack of qualification. On the contrary the workmen's qualification and eligibility for performing duties for which they being appointed is unquestioned in any manner and therefore when it is established by way of evidence before the Court that the workmen have been adopted to be work charge only for the purpose of denying the benefits as they were performing same duty and performing same work as those employees who have been given status of regular employees the award impugned in this petitions do not require any interference and the petitions be dismissed.
27. This Court has heard learned advocates for the parties and perused the petition as well as the award in question. Before adverting to rival submissions of learned advocates for the parties it is most expedient to set out the main undisputable aspects emerging therefrom, namely :-
a) The workmen have said to have been serving since their initial date of appointment continuously till today except on account of forced exile on account of their termination which was brought about on 29/3/1985 and which was quashed and set aside and the decision whereof was appealed before Apex Court so far as this workmen are concerned. Therefore one aspect becomes clearer and indisputable that the workmen have right to claim continuity in service since their initial date of appointment as such.
b) The workmen are required to be treated to be continuous from their initial days of appointment and therefore bearing this fact in mind their claim for permanency is required to be viewed in light of the provisions of the Industrial Dispute Act with special emphasis to Schedule V & X.
c) Petitioner is a statuary Board constitute under the provision of Gujarat Maritime Board Act, 1981, and the fact remains to be noted that till date neither the State nor the Board has framed any recruitment rules whatsoever for making appointment to the posts and vacancies in the Board.
d) The Board has not led any evidence whatsoever before the Tribunal to indicate the recruitment procedures which the Board follows in respect of appointing persons on regular basis. In other words their exists no evidence on the record of the Tribunal on the part of the petitioner Board to indicate that which procedure of recruitment is followed or supported by which rules for making permanent appointment on the vacancies and posts in the Board.
e) The Recruitment Rules of 1970 sought to be pressed in service by advocate of the Board are not forming part of record before the Industrial Tribunal, nor are there any discussion or opportunity to any party qua advancing the submission based there upon.
f) The Recruitment Rules of 1970 are said to be followed, but the fact has come on record that the Board is not dependent upon any centralized recruiting agency, as envisaged in the 1970 Recruitment Rules for filling the vacancies and making appointments to the posts in Board.
g) The Board has through its advocate before this Court indicated that the Board recruits employees by inviting application by releasing advertisement in news papers and after holding selection by way interview recruitments are made. The advocate could not make any recruitment rules prescribing qualifications for the posts to be filled in by said method nor has the advocate of the petitioner placed on record any qualification criteria prescribed by statutory rules for making valid appointment to posts and or vacancies and work held / performed or discharged by respondent workmen.
h) The Recruitment Rules placed into service of 1970 admittedly envisages the recruitment procedure which is popularly known in common parlance to be “Centralized Recruitment Scheme” which has been time & again subjected to scrutiny in many petitions in this Court. The Board cannot therefore claim that they rely upon the Centralized Recruitment Agency for manning the posts in the Board.
i) The statement of claim filed by the workmen contains specific allegation with regard to the discriminatory treatment meted out to them which is sought to be answered by the Board in the written statement making general denial and specific averment qua Board being instrumentality of the State is governed by Article 12, and the recruitment of workmen not being in accordance with recruitment rules or procedure, their claim were denied. In other words the Board did not place on record even 1970 recruitment rules for denying claim of workmen before the competent Tribunal.
j) The non production of any rules & regulations or Government Resolution or direction in form of Government Resolution to the Board would leave no room to the Court for drawing any presumption with respect to existence of any recruitment rules which could be profitably relied upon for defeating the claim of the workmen before the Industrial Tribunal. In other words on account of lack of recruitment rules precisely applicable to the recruitment procedure in the Board, there was no challenge to the claim of eligibility of the workmen as could be seen from the statement of claim as well as written statement. In other words it is not in any manner doubted that the workmen did not possess requisite qualifications for manning the posts or filling the vacancies for which they were initially recruited as work charge employees and continue thereafter till date.
28. In view of the aforesaid factual backdrop of almost indisputable facts, question arises as to whether the order impugned in these petitions cannot be said to be unreasonable and or resulting into miscarriage of justice. In fact the decisions cited at the Bar on behalf of the workmen would eminently go to show that the broad submission qua so called irregularities in recruitment and jurisprudence flowing from the Industrial Disputes Act and Labour Legislation would not be countenanced as such. Moreover the petitions though have come to be treated to be the one filed under Article 226 of the Constitution also, the Tribunal is not joined as party which in my view will militate against the fundamental principle pronounced by this Court in case of (The) Bhagyodaya Co-Operative Bank Limited Vs. Natvarlal K. Patel And Anr., reported in 2011 (3) GLH (FB) 39, that for maintaining petition under Article 226 the Tribunal and / or subordinate Tribunal is to be joined as party for seeking writ or certiorari, or would render the petition liable to be dismissed so far as it is filed under Article 226 of the Constitution. In the instant case the advocate for the petitioner has not pointed out anything that in what way the petition under Article 226 would be maintainable as there are no submissions indicating the petitioner had any case for seeking writ or order in nature of writ.
29. This brings the Court to consider that the matter is essentially under Article 227 of the Constitution of India and in that ambit the challenge to the impugned order is required to be examined. The fact remains to be noted that the workman covered by the references were appointed under the Recruitment Procedure and the Tribunal's finding qua their appointment being after following the procedure of calling names from Employment Exchange is not to be discarded in any manner, rather that would help the workmen in their contention that their appointments cannot be termed to be backdoor entry as sought to be made out.
30. The plea with regard to so called irregularities based upon the observation of the Apex Court in case of Umadevi (supra) is also be of no avail, as in the instant case when the employer has failed in establishing as to what was the procedure followed or what was the procedure required to be followed or what recruitment rules are applicable, then the said recruitment cannot be said to be so irregular, so as to deny any right to the employees covered by the award.
31. Learned advocate for the workmen relying upon the decision in case of Maharashtra Road Transport Corporation (supra) rightly submitted that on spacious plea of Umadevi(supra) the workmen cannot be denied legitimate right to be treated as regular employee especially when the workmen have been denied the benefit of permanency only on account of their so called irregular appointment which otherwise also not borne out by the facts in the record. The Court is required to consider as to whether the submission canvassed on behalf of the advocate for the employer with regard to applicability of the rule in regard to sufficient submission to deny the benefit, the recruitment rules of 70 have remained unexplained as to how they are applicable, though the claim is made that admittedly the 70 rules envisages Centralized Recruitment Agency to make appointment and when such agency is recruiting persons for appointment to vacancies and posts in non- secretariat office and places which presupposes that, that very agency will undertake recruitment or selection. In the instant case the employer petitioner has not attempted even to place on record the 70 rules before the Court nor have they made any attempt to explain before this Court as to in what way they can be said to be governed by the Centralized Recruitment Rules. At the most, it can be said that the qualifications mentioned their under could be borrowed and insisted upon for recruiting employees in a corporation. Otherwise this being a Board is recruiting staff of its own accord after advertising and the Board's advocate has not produced any other material to indicate in form of recruitment rules existing in time. The Court hasten to add here that the Board's advocate has not even argued or submitted that employees covered under the award were not eligible otherwise. What is argued is only that they were recruited on work charge basis and they will remain the same and they are getting all the benefits except the benefits which are admissible to the permanent employees.
32. This Court is of the considered view that this submission of learned advocate for the Board is bereft of merits required to be dismissed as there exist an award in favour of the workmen of which this Court is not inclined to interfere with the award on account of it being just & proper. There is also no violation of any authority of law, the award would not be in any manner required any interference impugned in the petitions. In the result the petitions are dismissed as being bereft of merits. Rule discharged in each petition. Interim relief if any granted earlier shall stand vacated in each petition. However, there shall be no order as to costs.
[S.R. BRAHMBHATT, J ] /vgn