1. By way of this petition under Article 226 of the Constitution of India, petitioner-Gujarat State Road Transport Corporation (hereinafter referred to as the 'Corporation') has challenged judgment and award dated 11.05.1999 passed by the Industrial Tribunal, Vadodara in Reference (IT) No.20 of 1994.
2. The facts which can be culled out from the record of the petition are as under.
2.1.
That the respondent-workman was working as reliever watchman with the petitioner-Corporation in Bharuch Division since 1983. It appears that as per the settlement arrived at between the petitioner-Corporation with the Union and, more particularly, settlement dated 21.12.1989, in Section 20 whereof, it was inter alia provided that the daily wager or Badli Kamdar, who completes 180 days of his service, should be given benefit of time-scale. It further transpires that as the said benefit was not accorded to the present respondent-workman, the respondent-workman filed reference before the Industrial Tribunal being Reference (IT) No.195 of 1988.
3. It appears that while the reference was pending before the Tribunal, the petitioner-Corporation undertook exercise of regular selection. It transpires from the record of the petition and, more particularly, Annexure-B, that the Divisional Selection Committee in its meeting dated 21.02.1991, selected several persons on different posts. It transpires from the category of the watchman that the respondent-workman was selected in the said selection process for regular appointment. However, on perusing the said minutes, it transpires that the petitioner-Corporation selected the respondent-workman on condition that the respondent-workman would withdraw the case i.e. Reference (IT) No.195 of 1988 which was pending before the Industrial Tribunal, Vadodara. It was also resolved by the Selection Committee that an undertaking would be filed by the selectee i.e. the present respondent-workman that no objection shall be raised by him in future.
4. It is an admitted position that apropos the selection, the respondent-workman was appointed on the regular post of watchman and that he has also been given the benefit of time-scale as per very Section 20 of the settlement with effect from 04.10.1992.
5. It is noteworthy that before giving posting to the respondent-workman on permanent basis by the Selection Committee, condition to withdraw the said reference was imposed upon the respondent-workman. It appears that the respondent-workman gave purshis at Exh.13 by way of reference being Reference (IT) No.195 of 1988 and the Industrial Tribunal, Vadodara, by its order dated 13.01.1992, permitted the respondent-workman to withdraw the said reference with a liberty to raise such a dispute in future. The order of the Tribunal is a part of the record of the Industrial Tribunal in the reference under consideration at Exh.15.
6. It reveals from the record that as the benefit of time-scale was not given to the respondent-workman, on 04.10.1992, a dispute was raised by the respondent-workman to the effect that he is entitled to the benefit of time-scale as per the settlement from the date, he completed 180 days as watchman.
7. The Industrial Tribunal, after considering the evidence on record and after hearing the petitioner as well as the respondent-workman, vide impugned judgment and award dated 11.05.1999, allowed the said reference and directed the petitioner to give benefit of time-scale to the respondent-workman from the date on which he completed 180 days as he is appointed since 1983. Being aggrieved by the said judgment and award, the present petition is filed.
8. Mr.Dipen Desai, learned counsel for the petitioner-Corporation has raised two main contentions. Firstly, Mr.Desai, learned counsel pointed out that the appointment of the respondent-workman as a regular watchman was in the year 1992 after he was selected in the regular selection process held as per the decision taken by the Divisional Recruitment Committee in its meeting held on 21.02.1991. Mr.Desai, learned counsel submitted that it was a fresh appointment and, therefore, the respondent is not entitled to the benefit of Section 20 of the settlement on his completion of 180 days as a reliever watchman. Mr.Desai, learned counsel submitted that the respondent-workman has already been put in the time-scale with effect from 04.10.1992. Mr.Desai, learned counsel submitted that the service which the respondent workman has rendered as daily wager was different and the respondent-workman having been selected as a fresh appointee in the recruitment process undertaken in the year 1991-1992, as aforesaid, it would amount to fresh appointment. Mr.Desai, learned counsel further submitted that even the selection of the respondent No.2 was on the condition that he would withdraw the earlier reference and, therefore, he has withdrawn the same and accepted the appointment as per the conditions, and, therefore, he cannot be permitted to raise the same dispute again. Mr.Desai, learned counsel submitted that this vital fact is totally ignored by the Tribunal and thus, the Tribunal has committed an error apparent on the face of the record in coming to the conclusion that the respondent-workman is entitled to the benefit of time-scale on his completing 180 days from the initial appointment in the year 1983. Mr.Desai, learned counsel, therefore, submitted that the petition deserves to be allowed and the impugned judgment and award deserves to be quashed and set aside. No further contentions are raised by learned counsel Mr.Desai.
9. Per contra, Mr.Priyank P. Jhaveri, learned counsel for the respondent-workman submitted that the settlement was in existence even before the respondent-workman was appointed as a daily rated reliever watchman in the year 1983. Mr.Jhaveri, learned counsel, relying upon Section 20 of the settlement, more particularly, settlement dated 01.08.1987, pointed out that the same would apply even to the daily wager and the respondent workman is, therefore, entitled to the benefit of time-scale from the date on which, he completed 180 days as daily wager. Mr.Jhaveri, learned counsel submitted that the contention raised by the petitioner to the effect that the selection of the respondent-workman was on regular watchman would mean that he is giving up his right for the benefit of time-scale as per Section 20 of the settlement while he was working as a reliever watchman (daily wager). Mr.Jhaveri, learned counsel further pointed out that in a similar matter, this Court (Coram: K.S. Jhaveri, J.) while interpreting Section 20 of the settlement has allowed those petitions which were based on earlier judgment of this Court in Special Civil Application No.393 of 2000 which stood confirmed in the Letters Patent Appeal No.905 of 2000 against which, the petitioner-Corporation had filed Special Leave Petition (Civil) No.12607 of 2001 before the Apex Court which was dismissed by judgment and order dated 10.08.2001. Mr.Jhaveri, learned counsel, therefore, submitted that the petition is devoid of merits and the same deserves to be quashed and set aside.
10. Considering the contentions raised by both the learned counsel and perusing the impugned award and documents which forms part of record of this petition, it transpires that the respondent-workman was working as reliever workman (daily wager) since 1983. As far as the contention raised by Mr.Desai, learned counsel for the petitioner that as the earlier reference being Reference (IT) No.195 of 1988 came to be withdrawn by the respondent-workman as per one of the conditions of his appointment on regular basis would preclude the respondent from challenging order rather raising same issue in present reference, deserves to be negatived. On perusing the order Exh.15, passed by the Industrial Tribunal in the earlier Reference (IT) No.195 of 1988, it clearly transpires that the respondent-workman had given purshis at Exh.13 in the said reference and had prayed for permitting him to withdraw the said reference on condition to raise similar dispute in future. The said fact is recorded in the said order of withdrawal dated 13.01.1992 by the Tribunal and it was permitted to be withdrawn with the specific stipulation in the order. Therefore, the contention that the second reference is not maintainable, deserves to be negatived.
11. As stated above, Mr.Jhaveri, learned counsel for the respondent-workman has rightly relied upon the judgment rendered by this Court in the case of Deputy Executive Engineer V/s. Babubhai Barsibhai Gamit C/o. Surat Labour Union rendered in Special Civil Application Nos.2015 of 2001 and others on 28.07.2010. Even in the earlier judgment, which is relied upon, this Court (Coram: Y.B. Bhatt, J., as he then was) vide judgment and order dated 27.01.2000, passed in Special Civil Application No.393 of 2000, in paragraph Nos.4 and 5 had observed thus:-
"4. There is no dispute that the workman was a reliever watchman and that he has been working as such for over 20 years. The Tribunal found on the facts of the case that he has put in more than 180 days and therefore at least this condition is satisfied.
5. The only contention raised before me by learned counsel for the petitioner is that the Tribunal has not considered the other conditions imposed by the settlement under reference viz. that the workman should have been on the select list, and that he should have been assigned for work against persons on regularly sanctioned post. It may be that the Tribunal has not specifically discussed this issue for the simple reason that this contention was not raised before it in the present form. However, from the discussion found in the impugned judgment and award it becomes obvious that the basic facts pertaining to these questions were not in dispute. It was not in dispute that the workman was a reliever watchman, and that he was being assigned work as and when necessary, when the regular watchman was not available. It has never been the petitioner's case that the workman was not assigned work in the place of a person who was not a regular employee. Both the sides have taken the situation for granted, and the entire matter was contested before the Tribunal on the basis that the regular watchmen, on account of whose absence such reliever watchman came to be employed, were employees who were regular employees in a regular time-scale. Secondly it was never a specific case put up by the petitioner before the Tribunal that the workman's name did not figure on the list of such reliever watchmen who would be offered employment as and when required. It is obvious that a select list, in the context of the present circumstances, could only mean a select list of such casual workmen who would be offered work when the regular employees in the regular time-scale happen to be absent. Thus, the list of such daily wagers or a list of such casual workmen would be the select list in the context of the relevant clause (clause 20) of the settlement in question which has been discussed and relied upon in the impugned judgment and award."
12. Even the contention raised by Mr.Desai, learned counsel for the petitioner that the selection of the respondent-workman in the year 1992 would mean that it is a fresh selection, would not preclude the respondent-workman from getting benefit of his earlier service as reliever watchman. In light of the observations of this Court in case of Deputy Executive Engineer (supra), Section 20 of the said settlement also prescribes for daily wagers, who have worked continuously for 180 days. In the instant case, it is an admitted position that the respondent was working as reliever watchman since 1983 and, therefore, he is entitled to the benefit of Section 20 of the settlement for his service which he has rendered as reliever watchman, independent of his fresh selection as a watchman on regular basis.
13. Considering the findings given by the Tribunal, it cannot be said that the Tribunal has committed any error, much less any error, apparent on the face of the record, which warrants interference of this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India.
14. Hence, the petition fails and the same is dismissed. Rule is discharged. Interim relief, if any, stands vacated.
(R.M.CHHAYA, J.) Hitesh Top