1. This petition has been preferred against the judgment and award dated 10.12.2009 passed by the Industrial Tribunal, Vadodara in Reference (IT) No.111/1999 whereby, the reference was allowed and the petitioner-Corporation has been directed to regularize the service of respondent on the original post from the date of completion of 180 days of service and also to grant benefit of time-scale with effect from 01.01.2006. The period from the date of completion of 180 days to 31.12.2005 was directed to be treated as notional for all purposes.
2. The facts as emerging from the record are that on 27.06.1991 the Board of Directors of the petitioner-Corporation passed a Resolution whereby, the eligibility criteria for regularization of the services of skilled daily waged artisans, semi-skilled daily waged artisans and unskilled labourers in the Corporation was fixed. Subsequently, the petitioner-Corporation published General Establishment Order dated 07.09.2007 by which the services of 61 Casual Labourers (Rojamdars) were regularized on the basic pay of Rs.2,500/- in the pay-scale of Helper (Class-IV) of Rs.2500 - Rs.5775.
3. The respondent-workman was appointed as a Casual Labourer (Rojamdar) on 21.09.1993 in the Ticket Section of Vadodara Division of the petitioner-Corporation. Though the respondent-workman had rendered continuous service and was similarly situated with the above 61 Rojamdars, his services were not regularized by the petitioner-Corporation. Therefore, he raised a dispute, which, ultimately, culminated into a reference before the Industrial Tribunal. The Industrial Tribunal allowed the reference by impugned judgment and award, which is under challenge in the present petition.
4.0 Mr.
Hardik Raval learned counsel for the petitioner submitted that the respondent-workman was not appointed after following due recruitment procedure and that he was also not working on the sanctioned post. He submitted that when the appointment was contrary to the recruitment rules, the Tribunal ought not to have granted him the benefits of permanency and time-scale.
4.1 In support of his submission, Mr. Raval has relied upon a decision of the Apex Court in the case of Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006) 4 SCC 01 wherein, the Apex Court extensively discussed about the powers of Courts to issue directions regarding regularization of the services of temporary, contractual, casual, daily-wage or ad-hoc employees in public employment. Reliance was also placed on another decision of the Apex Court in the case of State of Bihar v. Upendra Narayan Singh and others, (2009) 5 SCC 65 and at an attempt has been made to show that Courts have refused the relief of reinstatment / regularization to illegal appointees / back-door entrants.
5.0 Mr. Mukesh Rathod learned counsel for respondent-workman submitted that the respondent was appointed as a Rojamdar on the basis of an Office Order issued by the Central Office of the petitioner-Corporation. He submitted that the post of Casual Labourer is permanent and that the respondent was appointed on the permanent vacant post. Therefore, the respondent-workman has been rightly granted the benefits of regularization and time-scale by the Industrial Tribunal.
5.1 Mr.
Rathod further submitted that in some other Divisions of the petitioner-Corporation, similarly situated workmen had raised disputes before the competent Industrial Tribunal and that in the three different cases, awards came to be passed in favour of the workmen, which became subject matter of challenge before this Court in (i) S.C.A. No.8563/2003 dated 21.07.2010 and thereafter, in L.P.A. No.2909/2010 dated 18.04.2011; (ii) in S.C.A. No.11744/2001 dated 18.12.2001 and in L.P.A. No.345/2002 dated 16.06.2003; and
(iii) in S.C.A. No.13087/2000 dated 21.07.2010 and in L.P.A. No.2748/2010 dated 21.02.2011. He also placed reliance upon the Resolution dated 27.06.1991 passed by the petitioner-Corporation whereby, the criteria for regularization of the services of skilled daily waged artisans, semi-skilled daily waged artisans and unskilled labourers has been laid down and also the General Establishment Order dated 07.09.1991 by which the services of about 61 Casual Labourers (Rojamdars) were regularized on the post of Helper.
5.2 In support of his submissions, Mr. Rathod has placed reliance upon the decision of the Apex Court in the case of Maharashtra State Road Transport Corporation and Another v. Casteribe Rajya Parivahan Karmchari Sanghtana and more particularly, on the observations made in Paras - 34 to 36, which reads as under;
"34. It is true that Dharwad Distt. PWD Literate Daily Wages Employees' Assn. arising out of industrial adjudication has been considered in Umadevi (3) and that decision has been held to be not laying down the correct law but a careful and complete reading of the decision in Umadevi (3) leaves no manner of doubt that what this Court was concerned in Umadevi (3) was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed.
35. Umadevi (3) is an authoritative pronouncement for the proposition that the Supreme Court (Article 32) and the High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme.
36. Umadevi (3) does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act or order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exists. Umadevi (3) cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."
6. Having heard both the sides, the bone of contention is whether the respondent was appointed after following due recruitment procedure or was he a "back-door" entrant. It has been strongly pleaded before this Court that the respondent was a "''back-door" entrant and therefore, he is not entitled to get the benefits of regularization and time-scale pay in view of the decision in Umadevi's case (supra). The principle rendered in Umadevi's case (supra) is clear and unambiguous. It does not create an embargo on the powers of the Industrial Tribunals or Labour Courts in passing appropriate orders, if it is found that the workman is a victim of unfair labour practice adopted by the employer. The principle rendered in Umadevi's case (supra) has been interpreted in the subsequent decision of the Apex Court in Casteribe Rajya Parivahan Karmchari Sanghtana's case (supra). Thus, by now, it is well settled that Industrial Tribunals or Labour Courts can issue directions for absorption, regularization or permanent continuance if the recruitment is made regularly and in terms of the Constitutional scheme.
7. In the instant case, in the Statement of Claim (Exhibit-6) filed by the respondent-workman, it was averred that he was appointed as a Casual Labourer in the Accounts Section of the petitioner-Corporation on 21.09.1993 and that there was a permanent post of Casual Labourer in every Division of the petitioner-Corporation. It was averred that his main duty included maintenance of tickets, etc. It was also averred that his case was governed by Clause-20 of the Terms of Settlement according to which he was entitled to get all the benefits of time-scale on completion of 180 days of service from the date of his appointment. Along with his written submissions, the respondent-workman had produced documentary evidence vide Exhibits - 14 to 20. The respondent-workman had also produced the Attendance Sheets vide Exhibits - 22 to 53. The petitioner-Corporation denied all the allegations in its written statement.
8. From the cross-examination of the respondent-workman (Exhibit-12), it is established that he was appointed in pursuance of the advertisement published by the petitioner-Corporation and subsequent interview. He was appointed on the basis of a Circular, which was issued by the Central Office of the petitioner-Corporation. The respondent was paid wages from the Contingency Funds of the petitioner-Corporation.
9. It is pertinent to note that the petitioner-Corporation had vehemently objected to the claim of the respondent-workman of signing on the Attendance Sheets / Muster Roll. However, the petitioner-Corporation had not produced any Attendance Sheet / Muster Roll in support of its case. On the contrary, the respondent-workman had produced the Attendance Sheets vide Exhibits - 22 to 53. The allegation made by the petitioner-Corporation that the respondent-workman had stolen the "Rojamdar Card" from the Stores and had himself filled in the Attendance Sheets was also found to be false and baseless.
10. The petitioner-Corporation had examined one Manubhai Ramnath Sharma (Exhibit-64) as its witness. In his cross-examination, the witness admitted that there was a Ticket Section in every Division of the petitioner-Corporation and that in every Ticket Section, a Casual Labourer was employed. He has also admitted that the Central Office, Ahmedabad of the petitioner-Corporation has issued a Circular for appointment of Casual Labourers. The witness admitted that Casual Labourer was mainly entrusted with the duty of maintenance of Tickets and that the duty was permanent in nature. The witness also admitted that the respondent-workman was given work for 20 days in a month.
11. From the evidence of the aforesaid witness (Exhibit-64), it is established that though the petitioner-Corporation was seized with each and every document pertaining to the case, viz. the Circular, Attendance Sheets / Muster Roll, Pay-Bills, etc., none of the documents were produced by it before the Industrial Tribunal. In fact, it was the respondent-workman who had produced the Attendance Sheets vide Exhibits - 22 to 53 to prove his case.
12. From the above set of circumstances, it is clear that the petitioner-Corporation made each and every attempt available under the sky to suppress the legitimate rights of the workman and also to deprive him of the monetary benefits, which he is legally entitled to receive. The history of litigation between the parties show that the manner in which the respondent-workman was victimized by the employer though in similar set of cases, the petitioner-Corporation had already implemented the awards passed by the concerned Industrial Tribunals.
(I) In the case of one Girishbhai Mahadik, who was also employed as a Casual Labourer in the Ticket Section of Bharuch Division of the petitioner-Corporation, an award dated 27.06.2002 was passed by Industrial Tribunal, Vadodara in favour of the workman in Reference (IT) No.36/1997, which was challenged before this Court by way of filing S.C.A. No.8563/2003. The said petition was dismissed vide judgment and order dated 21.07.2010 against which L.P.A. No.2909/2010 was preferred, which was also rejected, vide judgment and order dated 18.04.2011. Pursuant thereto, the petitioner-Corporation implemented the award dated 27.06.2002.
(II) In another case, wherein also, the concerned workman, S. G. Baria, was working as a Casual Labourer in the Ticket Section of Godhra Division of the petitioner-Corporation, similar dispute was raised vide Reference (IT) No. 240/1995 wherein, award dated 15.02.2001 was passed in favour of the respondent-workman by Industrial Tribunal, Vadodara. The said award was challenged before this Court by way of filing S.C.A. No.11744/2001. The said petition was summarily dismissed vide order dated 18.12.2001 against which L.P.A. No.345/2002 was preferred, which was also rejected, vide order dated 16.06.2003. Pursuant thereto, the petitioner-Corporation implemented the award.
(III) Thereafter, in the case of one Bhanubhai D. Patel, similar dispute arose, which was decided by Industrial Tribunal, Nadiad, vide award dated 19.02.2000 passed in Reference (ITN) No.458/1998. The said award was also challenged before this Court by way of filing S.C.A. No.13087/2000, which was dismissed vide judgment and order dated 21.07.2010 against which L.P.A. No.2748/2010 was preferred, which was rejected vide order dated 21.02.2011. Subsequently, the petitioner-Corporation implemented the award.
13. From the above, it is clear that the respondent herein is similarly situated to the workmen concerned in each of the above cases. In the above cases, the concerned workmen were also employed as Casual Labourers in the Ticket Section of different Divisions of the petitioner-Corporation. Though appointment was made after following due recruitment procedure, the petitioner-Corporation is trying to defend its case by pleading that the respondent-workman was a "back-door" entrant. The petitioner-Corporation, being a public body, ought not to have taken such defence, which, I am sorry to say, points towards the dismal state of affairs of the Corporation. This is nothing but, an attempt on the part of the Corporation to take shelter of the decision rendered by the Apex Court in Umadevi's case (supra).
14. It is a matter of fact that the case of the respondent-workman would be governed by Clause-20 of the Settlement (Exhibit-15) which provides that Casual Labourers (Rojamdars) who have been appointed against sanctioned permanent posts and who have rendered continuous service of 180 days from the date of their appointment are entitled to get the benefit of time-scale. In Para-13 of the impugned award, the Industrial Tribunal has narrated the total numbers of days of work put in by the respondent-workman in a tabular form on the basis of the Attendance Sheets, which were produced on record vide Exhibits - 22 to 53. At this juncture, it would be relevant to note that the petitioner-Corporation had not produced the Attendance Sheets / Muster Roll though call for, which speaks for itself. From the said documents, it is evident that the respondent-workman had rendered the requisite days of work, which would entitle him to get the benefit of time-scale, as provided under Clause-20 of the Settlement.
15. The petitioner-Corporation has also devised schemes for regularization of temporary employees working on its establishment. By Resolution dated 27.06.1991, the petitioner-Corporation had fixed the eligibility criteria for regularization of the services of skilled daily waged artisans, semi-skilled daily waged artisans and unskilled labourers working in the Corporation. It had also published General Establishment Order dated 07.09.2007 by which the services of about 61 Casual Labourers (Rojamdars) were regularized on the basic pay of Rs.2,500/- in the pay-scale of Helper (Class-IV) of Rs.2500 - Rs.5775. However, for certain unknown reasons, the respondent has been denied the benefits of regularization and time-scale and thereby, has been victimized and dragged into several uncalled litigations.
16. Considering the facts and circumstances of the case, I am of the considered opinion that the appointment of the respondent-workman was done in accordance with due selection procedure and against the permanent sanctioned post and therefore, he has been rightly granted the benefits of continuous permanency and time-scale by the Industrial Tribunal. Since the appointment of respondent-workman is found to be regular, the petitioner-Corporation cannot get benefit of the decision rendered in Umadevi's case (supra). I am in complete agreement with the reasonings given by and the finding recorded by the Industrial Tribunal in its award and hence, find no reasons to entertain this petition.
17. For the foregoing reasons, the petition is dismissed. Notice is discharged.
[K.
S. JHAVERI, J.] Pravin/* Top