IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2305 of 2004 For approval and Signature:
HONOURABLE MR. JUSTICE N.V.ANJARIA ========================================================= Whether Reporters of Local Papers may be allowed to see the 1 judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ? Whether this case involves a substantial question of law as to the 4 interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= DEPUTY EXECUTIVE ENGINEER (PORT) & 1 - Petitioner(s) Versus KESHAVJI MANJIBHAI KAGATHRA - Respondent(s) =========================================================
Appearance :
MS SEJAL K MANDAVIA for Petitioner(s) : 1 - 2. MR BD KARIA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 17/07/2012 ORAL ORDER This writ petition under Article 226 of the Constitution is directed against the judgment and award dated 6th September, 2003 passed by the Industrial Tribunal, Rajkot in reference (IT) No. 140 of 1991, whereby the Tribunal directed the Gujarat Maritime Board, the petitioner herein, to regularize the services of the respondent-workman treating him as a permanent employee and granting him the regular pay scale with other consequential benefits and 50% of arrears arising out of difference in the pay scale.
2. The respondent-workman was engaged as work-charged Mistry with effect from 08.07.1982 by the petitioner Gujarat Maritime Board. It was his case before the Labour Court that despite his long and satisfactory services, he was not being regularized and thus was deprived of his due right. It was further the case of the respondent that the Board had regularised services of other workmen. According to him since his work was of permanent nature, and of the same kind as was performed by the regular employees, he too deserved the benefit of regularization, according to him.
3. Heard learned advocate Ms. Sejal K.Mandavia, for the petitioner and learned advocate Mr. B.D.Karia, for the respondent.
4. It is submitted by the learned advocate for the petitioner that the judgment and award of the Industrial Tribunal is ex-facie illegal inasmuch as the Tribunal could not have issued the directions to regularize the services of the workman, who was a work-charged employee. Learned advocate relied on the decision of Hon'ble the Full Bench of this Court in Amreli Municipality Vs. Gujarat Pradesh Municipal Employees Union [ 2004 (3)G.L.R. 1.]. This Court has held that the Labour Court/Industrial Tribunal have no jurisdiction to issue direction for regularisation the services of the employees without there being any sanctioned set up or to pass an award to that effect. It is held that no person can be regularised if such a person is recruited without following the selection process. Learned advocate invited Court's attention to paragraph Nos. 2, 3, and 4 , wherein the Hon'ble Full Bench has laid down the principles in that regard.
4.1 Learned advocate for the respondent on the other end submitted that the respondent was not one illegally appointed. He was employed on the work charged establishment. It was submitted that he has put in more than 3 decades of service by now and the length of tenure of his service would show that work performed by him is of permanent nature and the post is also available. He relied on a decision of Apex court passed in case of State of Karnataka Vs. Umadevi (2006) 4 SCC 17 and in it particular the observations in paragraph 53 of the judgment. Paragraph no. 53 is reproduced herein under :
“One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointment) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the 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 abovereferred 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 the 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 regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”
4.2 Learned advocate for the respondent on the basis of above observations submitted that it is incumbant in law for the Gujarat Maritime Board to offer one time measure of regularization to the respondent. According to his submission the respondent was fulfilling all the criteria mentioned by the Supreme Court in the above quoted observations. He further relied on judgment passed in case of State of Karnataka and others Vs. M.L.Kesari, [(2010) 9 SCC 247] in order to submit that though in Uma Devi (Supra) the Apex Court directed to undertake the exercise of offering one time measure within six months, merely because the said mentioned period is over, the obligation in that regard does not cease.
5. At this stage learned advocate for the petitioner Ms. Sejal K. Mandavia fairly stated that the respondent is in service and has been getting basic salary in the scale of Rs. 915-1500 duly revised as per 5th Pay Commission to pay scale of Rs. 3050-4590 and has been getting the maximum freezed pay of Rs. 4590/-.
6. Having considered the facts of the case and submissions of both the sides, in light of law declared by Amreli Municipality (supra), the impugned judgment and award cannot be allowed to sustain, as it directs regularization of services of the respondent workman. Such a direction was beyond the powers of the Industrial Tribunal, therefore, the impugned judgment and award dated 06.09.1993 passed by the Industrial Tribunal, Rajkot in (IT) 140 of 1991 is hereby quashed and set-aside.
6.1 At the same time as per the workman's case is that he was initially appointed to as a work-charged employee and he has been in service continuously for more than 30 years, in that view, his case deserves to be examined and considered in light of the observations in the paragraph No.
53 of Umadevi (supra). Therefore, it is observed that the petitioner Board shall examine and consider the case of the respondent in accordance with the observations in paragraph no. 53 of the decision in Umadevi (Supra), and if on facts, the respondent's case is found to be covered within the parameters laid down therein, the petitioner shall act further in terms of the said observations and shall take necessary decision.
7. With the above observations the petition is allowed. The rule is made absolute accordingly. No order as to costs.
deepak (N.V. ANJARIA,J.)