IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12035 of 2003 For Approval and Signature:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================= 1 Whether Reporters of Local Papers may be allowed to see the 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
4 as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================= TALALA GRAM PANCHAYAT - Petitioner Versus BHARATKUMAR LALDAS AGARAVAT & 22 - Respondents ================================================= Appearance :
MRS. SANGITA PAHWA for M/S THAKKAR ASSOC. for Petitioner: MR AK CLERK for Respondents : 1 - 23.
MR ANSHIN H DESAI for Respondents : 1 - 23. MR ASHISH H SHAH for Respondents : 12 - 23. MR RAJESH K KANANI for Respondents : 12 - 23.
================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/09/2012 & 28/9/2012.
ORAL JUDGMENT
1. The petitioner Gram Panchayat and opponent in reference Demand No.10/2001 arising out of the award of Labour Court, Junagadh, has approached this Court under Article 226 and 227 of the Constitution of India, inter alia challenging the award and order dated 27/1/2003 passed by the Labour Court, partly allowing the reference and directing the petitioner- Gram Panchayat to treat the 23 workmen to be continuous in service since the day of their entry and allot them alternate work and on the day they completed 240 days, they be treated as permanent employees and be granted all the benefits admissible to permanent employees w.e.f. 1/1/2002 with cost of Rs.1,000/- under reference.
2. The facts leading to filing this petition as could be culled out from memo of the petition, and award and the documents placed on record could be narrated as under.
The respondent workmen were employed by the petitioner for performing work of collection of octroi. The workmen were issued appointment orders indicating that their work was to collect octroi. The workmen were given appointment order in the year 1999 and the workmen were engaged for collecting the octroi. Workmen through their union namely Saurashtra Majoor Mahajan Sangh, Bhaktinagar, Rajkot, raised demands with various prayers including for making them permanent employee of the Panchayat and the benefits admissible to the permanent employee. During pendency of conciliation proceedings it appears that the State abolished octroi which was perceived by the employer petitioner as a requirement of dispersing with the services of the workmen, hence vide order dated 30/4/2001 workmen's services were terminated. As this happened during pendency of conciliation proceedings the embargo imposed upon the employer was pleaded for challenging the order. Ultimately the reference was made vide order dated 4/5/2001 wherein the interim order was passed by the Tribunal bearing all factors in mind and directing the petitioner to pay either 50% wages to the workmen or reinstate them, as admittedly there was no compliance of provision of section 33 I.D. Act. Said order, that is the interim order which was made by the Presiding Officer of Labour Court on 2/7/2001 was carried into challenge by way of filing Special Civil Application No. 5324 of 2001 before this Court, wherein as could be seen from the order passed on 25/7/2011 no interference was made by the Court and thus the order of the Labour Court dated 2/7/2001 remain intact where under 50% wages were ordered to be paid to the workmen concerned. After recording evidence of both the sides and appreciating the submission canvassed by learned advocates for the parties, the Labour Court partly allowed the reference and passed the award dated 25/1/2003 treating the respondent workmen to be continuous in employment since the date of their initial appointment and directed the petitioner to accord the workmen work in the nature of alternative work other than octroi collection as octroi was abolished and from the date they completed 240 days they were to be treated as having become permanent and be given benefits admissible to the permanent employees with cost of Rs.1,000/- This award in order is under challenge before this Court under Article 226 & 227 of the Constitution of India.
3. Learned advocate for the petitioner contended that the award could not have been passed at all in favour of the workmen as the workmen could not be said to be entitled to the relief prayed for, the award therefore may be quashed and set aside.
4. Learned advocate for the petitioner invited this Court's attention to the terms of reference and submitted that the terms of reference indicate that the Labour Court was to adjudicate upon claim of the workman for being regularized in the service of the Gram Panchayat and when the claim of regularization was examined it was duty cast upon the Labour Court to examine that whether the workmen on the date of initial appointment were eligible to be appointed against the post and whether there were sanctioned post available and whether their appointments were made after following the statutory provision and due process of law. In the instant case neither of the aforesaid criterion is fulfilled therefore it was not open to the Labour Court to ignore these facts and straightway order reinstatement which renders the award liable to be quashed and set aside in exercise of the power conferred upon this Court under article 226 & 227 of the Constitution of India.
5. Learned advocate for the petitioner invited this Court's attention to the appointment orders issued to the workmen and contended that this appointment orders themselves would unequivocally make it clear that the appointment of the workmen were purely temporary and on adhoc basis and it was issued by the Sarpanch of the Gram Panchayat. The Sarpanch of the Gram Panchayat was admittedly not the appointing authority and therefore the appointment cannot be said to be legally made so as to create any right in the workmen / respondents herein. The advocate for the petitioner further contended that the workmen were appointed in the year 1999 and when it was declared by the State of Gujarat that the octroi is being abolished then naturally the purpose for very appointment being not continuing, the services where of the workmen not to be required to be continued the Panchayat therefore at the relevant time i.e. 30/4/2001 brought about an end to the services of the workmen. The period from 1999 to 30/4/2001 cannot be said to be a long period so as to create any right in the workmen for claiming regularization as sought to be made out by the workmen before the Labour Court and unfortunately Labour Court has accepted the same in utter ignorance of the facts available on record, therefore the award impugned is required to be quashed and set aside.
6. Learned advocate for the petitioner thereafter contended that State's directives qua absorbing the staff working in collection of octroi for other work could not have been construed as creating any substantive right in favour of workmen so as to persuade the Labour Court in ordering reinstatement of workmen in continuation with benefit of permanency. The Labour Court misconstrued the direction issued by the State which direction cannot be construed to be in any way providing for absorption of daily wager as permanent employee. This would rather run counter to the established principle of law and therefore such an interpretation of the direction was wholly unjustified on the part of the Labour Court.
7. Learned advocate for the petitioner further contended that the record & proceedings of the Labour Court in respect of reference would clearly indicate that the workmen / respondents herein were not appointed against clear vacancy nor were they made to work for years together so as to deny them right of permanency, nor were they victimized so as to give rise to plea of unfair labour practice. Therefore, in these facts & circumstances when plea of unfair labour practice is absent in favour of workmen, Labour Court ought not to have made an assumption that the workmen had worked for a long period and passed order of reinstatement with permanency in favour of the workmen. The order in award therefore being contrary to the provision of law requires quashment, accordingly and same should be quashed and set aside.
8. Learned advocate for the petitioner therefore contended that the Labour Court was invited to consider various decisions on the point as could be seen from the award and Labour Court's observation on page-10. The Labour Court however did not appreciate the ratio laid down in those decisions and misinterpreted the ratio laid down in case of Gujarat Agricultural University Vs. All Gujarat Kamdar Karmachari Union, reported in 2002 (3) GLR 2541 and held that the workmen on account of their completing 240 days uninterruptedly were entitled to be made permanent. The ratio of the decision in 2002 (3) GLR 2541 (supra) cannot be understood to lay down that on completion of 240 days the workmen attains the status of being permanent or acquires right to be made permanent. Reading of the award would clearly show that the ratio is misunderstood by the Labour Court and therefore, on this ground also the order in award deserve to be quashed and set aside.
9. Learned advocate for the petitioner further contended that the workmen in fact cannot be said to have continued for a long period as it is sought to be canvassed and as it is relied upon by the Labour Court for passing the award. The factum of workmen's first appointment being in the year 1999 and the termination of service on 30/4/2001 would eminently go to show that the workmen did not put up long period as sought to be canvased by them. The workmen's continuation thereafter which is highlighted by the Labour Court cannot be said to be continuous by the employer and as such the workmen put in service only from 1999 to 2001 and their services were not required on account of abolition of octroi and, therefore, the collective facts & circumstances should have persuaded the Labour Court not to pas any order in award in favour of the workmen.
10. Learned advocate thereafter contended that the Labour Court has not appreciated provisions of law that the petitioner being a Gram Panchayat was governed by the statutory provision and the employment within the Gram Panchayat was also governed by statutory principle and provisions and in view of those provisions the Sarpanch being not a competent authority to appoint could not have appointed the workmen and therefore the workmen's appointment per se was not legal and as such they did not have any right to be continued or to be made permanent. The workmen have not established on record as to how and in what manner they are eligible to be appointed or under which law the selection procedure could have been go-bye. Therefore in these facts & circumstances the Labour Court could not have straightway allowed the reference in part and ordering that the workmen be treated to be permanent from the day they completed 240 days in service. The order in award therefore being contrary to the prevision of law require to be quashed and set aside.
11. Learned advocate for the petitioner thereafter invited this Court's attention to the judgment of the Full Bench of this Court in case of Amreli Municipality Vs. Gujarat Pradesh Municipal Employees Union, reported in 2004 (2) G.L.H. 692, and made elaborate submissions in respect of the observation of the Full Bench by reading paragraph Nos. 6.1, 12.1.2, 12.1.12, 12.1.14. The plain and simple reading of these observations were sought to be heavily relied upon by advocate for the petitioner to support her contention that the Labour Court was not justified at all in law in passing the award which is impugned in this petition.
12. Learned advocate for the petitioner invited this Court's attention to the observations made by the Apex Court in case of Secretary,State of Karnataka And Others Vs. Uma Devi (3) And Others, reported in (2006) 4 SCC pg. 1, and contended that the Apex Court has emphatically laid down that earlier rulings holding contrary to law laid down by the Bench in case of Uma Devi would be treated as over ruled and therefore the view expressed by the Bench in case of Uma Devi (3) would hold the field which would eminently go against the proposition of regularization of employees or workmen dehors the provisions of law, especially when said employment was not in accordance with law or after following due procedure of law. The observations of the Bench in Uma Devi have been fortified by the subsequent decision of the Apex Court decision in case of Official Liquidator Vs. Dayanand And Others, reported in (2008) 10 SCC pg. 1. In view of this unequivocal provision of law pronounced by the Court the submissions qua so called breach of Article 14 or discriminatory treatment would also be not in any way helpful to the workmen as the workmen cannot be permitted to submit that earlier in case of many employees of such nature the award of the Labour Courts were accepted and they were regularized. The State has been instructed of the concerned including the Panchayat to challenge the award of Labour Court in such nature and therefore assuming for the sake of arguing without accepting that on earlier occasions the Panchayat accepted Labour Court's award and employees have been regularized, then also the respondent workmen under the impugned award cannot be permitted to be regularized on the ground of so called breach of Article 14 of the Constitution, as otherwise it would be contrary to the law laid down by the decision of Uma Devi (supra).
13. Learned advocate for the petitioner contended that the Full Bench of our Court in case Amreli Municipality, 2004 (2) GLH 692 (supra) has very aptly observed that even if the matter is arising out of labour legislation namely Industrial Disputes Act, the Labour Court's power to grant relief will have to be guided by the provisions of Constitution and the law laid down by the Apex Court. In this view of the matter the award impugned can not be sustained and the same is required to be quashed and set aside.
14. Learned advocate for the workmen contended that this being a petition under Article 226/227 of the Constitution of India the Court may not be called upon to appreciate and re-appreciate the evidences adduced based whereupon the findings have been recorded by the Labour Court, and the order whereof is subject matter of challenge before this Court.
15. Learned advocate for the workmen contended that some of the orders in respect of some of the workmen though contain that they have been appointed for octroi collection, but evidence on record which has come out by way of testimony, examination and cross examination would go to show that all the workmen were given work other than octroi collection.
16. Learned advocate for the workmen contended that the order of relieving the workmen of their duties passed on 30/4/2001 could not have been passed without obtaining the requisite permission from the concerned authority or in view of provision of Section 33 of I.D. Act. The order came to be passed without following due procedure of law and, therefore, Labour Court was constrained to pass interim order, whereby 50% of payment of wages was ordered which order was assailed in this Court by way of writ petition, wherein also no alteration was made in the order of Labour Court. The fact remains to be noted that when the final order came to be passed in the reference and this petition was preferred, following orders were passed in this matter on 14/10/2003 and on 11/12/2003 respectively.
“Order dated 14/10/2003 passed by Miss. R.M. Doshit, J, reads thus:-
“ Heard the learned advocates. RULE.
Notice as to interim relief and hearing of the rule returnable on 12th November, 2003.
The learned advocate Mr. Anshin Desai waives service of rule on behalf of all the respondents.
Three questions arise in this writ petition.
(1) Whether the respondents – workmen had raised industrial dispute with respect to termination of their service and whether such industrial dispute was ever referred to the Court below:
(2) Whether collection of octroi can be said to be sovereign function of the petitioner – Gram Panchayat.
(3) Whether the respondents workmen who admittedly were not appointed in accordance with the statutory rules of appointment can claim right to regularization in service.
Pending this petition there shall be ad interim stay in terms of paragraph 9(B). The arrears of wages payable ;to the respondents workmen pursuant to the interim order dated 2nd July, 2001 made by the learned Labour Judge, Junagadh shall be paid as early as possible but not later than 30th June, 2004.”
“Order dated 11/12/2003 passed by Mr. Ravi R. Tripathi,J, reads thus:-
Heard the ld. advocates. So far as ad-interim relief granted on 14.10.2003 in terms of paragraph 9(B) is concerned, the same is modified to the effect that there shall be stay of the award only qua backwages meaning thereby the petitioner Panchayat shall implement the award in so far as reinstatement of the workmen is concerned. It is further clarified that the reinstatement given under this order of the Court will be subject to the final outcome of the petition. The part of the order dated 14.10./2003, which reads as under, “The arrears of wages payable to the respondents – workmen pursuant to the interim order dated 2nd July, 2001 made by the learned Labour Judge, Junagadh shall be paid as early as possible but not later than 30th June 2004”
continues.”
3. Learned advocate for the workmen thereafter contended that the documents available in the record and pleadings would indicate that this employer- originally Gram Panchayat (now, Nagar Palika) has always recruited persons and as & when they needed they are used to get order in favour of the workmen from the Courts, and same have been complied with and the workmen have been regularized without much clamour. In fact ld. advocate went on submitting to the extent that almost all the employees today in the establishment of the petitioner employer are recruited in a similar fashion and when there is no dispute qua qualifications eligibility criterion, mere terming the workmen to be workmen not employed as per recruitment rules without showing recruitment rules or placing reliance upon the same, the order passed by the Labour Court could not have been assailed in any manner.
4. Learned advocate for the workmen relying upon decision of the Apex Court in case of Rohtas Industries Ltd. Vs. Brijnandan Pandey and others, reported in 1957 S.C. pg. 1, invited this Court's attention to the observations of the Apex Court in para-11 and submitted that time & again in various decisions of the Apex Court the jurisdiction and scope of exercise thereof in the adjudicatory forums under I.D. Act have been so construed as to giving them almost unfettered right to even cast additional terms of employment in the interest of justice of workmen. The Apex Court has clearly acknowledged that the industrial arbitration may involve extension of existing establishment or making of new one or in general creation of new complication or modification of old one. The fact remains that as the Panchayat, now the Nagarpalika is governed by a statute would not ipso facto absolve or make it immune from the essential characteristic of it being industry as such in light of the Apex Court rulings in case of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and others, reported in AIR 1978 S.C. 548, which is not yet in any manner whittled down by any Bench of the Court. The decision of the Apex Court in above case still hold the field which would indicate that the activities carried out by this employer was squarely that of an industrial activity and as such there was no scope of arguing contrary to that and it has been required to be viewed from that angle only. This proposition is canvassed based upon the ratio of the judgment that the unfair labour practice could be inferred from the facts & circumstances of the case and it was argued that in the instant case even otherwise of the Court's order the termination was not warranted which is sought to be resorted under the pretext of abolition of octroi. In the same line of AIR 1978 S.C. 548, learned advocate for the workmen have cited following decisions, viz. (1) The Co- Operative Central Bank Ltd And Others, Vs. The Additional Industrial Tribunal, Andhra Pradesh And Others, reported in 1969 (2) SCC 43; (2) Atic Industries Ltd Vs. Workmen etc. reported in (1972) 2 SCC 88; (3) Apollo Tyres Limited Vs. C.P.
Sebastian, reported in (2009) 14 SCC 360; (4) Chief Conservator of Forests And Another Vs. Jagannath Maruti Kondhare And Others, reported in (1996) 2 SCC 293; and (5) Western India Automobile Association Vs. The Industrial Tribunal, Bombay and Others, and Governor General of India -
Intervener, reported in AIR (36) 1949 Federal Court pg. 111. Special emphasize is laid upon the observation of the Apex Court in case of Atic Industries Ltd reported in (1972) 2 SCC 88 (supra) on the point that any just & reasonable order could be passed in case where unfair labour practice is proved and established.
5. Learned advocate appearing for the workmen in fact relying upon provision of I.D. Act and the definition of Unfair Labour Practice , Chapter-V-C, Section 25-T, r/w schedule, contended that the employees workmen working for a longer period without giving them benefit of regular employment despite their fulfilling of the qualifications would amount to clear unfair labour practice and in such a case when the workmen make agitation in the form of raising dispute then the Court has ample power to issue appropriate direction and lay- down terms & conditions in respect of such workmen's employment with the employer. In support his contention learned counsel relying upon decision in case of Chief Conservator of Forests And Another Vs. Jagannath Maruti Kondhare And Others, reported in (1996) 2 SCC 293, contended that the observations of the Apex Court in this case where though in respect of similar provision in case of Maharashtra Recommendation of Trade Union and provision of Unfair Labour Practice Act 1971 are in question, those provisions are pari materia with existing provisions in Industrial Disputes Act. The fact in the case is that nowhere at anytime employer has argued or attempted to establish that the workmen did not possess the requisite qualification required to be appointed on the post to which the workmen were assigned to do their work. The entire attempt on the part of the employer is to thwart the legitimate claim of the workmen on the basis of so called irregularities in their employment or appointment procedure for which they have not produced any evidence to indicate as to how and as to what provision workmen could be said to have not been appointed in accordance with law.
6. Learned advocate for the workmen relying upon the decision in case of General Labour Union (Red Flag) Bombay Vs. B.V. Chavan And Others, reported in (1985) 1 SCC 312*, submitted that, when unfair labour practice is alleged and imputed to the employer the Court examining the same will have right to come to an appropriate conclusion to determine as to whether the practice was merely adopted to device as a pretend to determine service of the workmen to deprive of them their right. (*the case cited is in respect of dispute qua closure or lock out. The observations of the Court is qua the scope of examining unfair labour practice )
7. Another decision cited by learned advocate for the workmen is in respect of Hindustan Lever Ltd Vs. Ashok Vishnu Kate And Others, reported in (1995) 6 SCC 326. The observations of the Apex Court in respect of I.D. Act as well as Maharashtra Act referred therein would show that I.D. Act has broader scope as mentioned in para-35 & 37 of the decision. Emphasis is laid on observations in respect of scope of the Act in para-37.
8. The other decision cited by learned advocate for the workmen is in respect of Wasim Ahmed Saeed Vs. Union of India And Others, reported in (2003) 10 SCC 454. Reliance is placed on para-15 & 16 of the said decision in support of the submission that I.D. Act has an effective remedy to redress the grievance of workmen claiming victimization on the part of the employer which may not be the pretending unfair labour practice.
9. Learned advocate for the respondent workmen invited this Court's attention to the documents forming part of the record of this petition and contended that those documents have been pressed into service to demolish the submission canvassed on behalf of the employer that there exists no vacancy in which the workmen could have been regularized. In fact the grounds for dispensing with the services, namely abolition of octroi could not be made basis for justifying the stand of the employer as the number of resolutions placed on record of the case in unequivocal terms indicate that on account of abolition of octroi the surplus employees and or staff is to be accommodated on other posts. The documents in form of proposal to the authorities including staff strength and justifying that administrative expenses does not cross and exceeds limit set out and the fact that on earlier occasions many employees have been regularized on account of verdict of the Courts would collectively go to show that the order of the Labour Court needs no interference by this Court in exercise of power under Article 226/227 of the Constitution of India.
10. Learned advocate for the workmen laid emphasis on document on page 141 appended to further affidavit, i.e. bill for expenses dated 7/6/2012 for the month of May 2012, document on page-145 with special emphasis upon mentioning at column no.11 and the narration and explanation there against to substantiate the claim that there exists still vacancies on which workmen could have been accommodated had there been a genuine effort on their part, the documents on page no. 147, 148, 149, 149, 151 are referring to staff to be appointed, and the parameters given which does not exceed even if present respondents workmen are included there under.
11. Learned advocate for the workmen further contended that the employer cannot be justified in submitting that the continuation of the workmen till final disposal of the reference was only on account of interim order. The fact remains to be noted that the workmen had in fact raised demand for regularization even prior to their date of termination and as termination was brought about during pendency of conciliation proceedings, even otherwise said direction would per se involve as there was no attempt to even comply with provision of section 33 (1)(A) as the demand raised for regularization and their services came to be brought about which would stare on the face of the employer.
12. Before adverting to rival contentions of the parties, it would be most expedient herein to set out few indisputable aspects emerging therefrom, namely :-
a) The workmen / respondents herein were appointed, as per the say of the employer petitioner for octroi collection work, in the petitioner's establishment. They through the labour union called Saurashtra Majoor Mahajan Sangh raised several demands, including that of granting them benefit of regularization, dearness allowance, leave, uniform and other allowances etc. admissible to the permanent employees. The demand was followed by letter of intervention, conciliation proceedings. As no dispute by parties started and during pendency of those proceedings, State declared its policy that octroi in the State of Gujarat will stand abolished from 1/5/2001. In the present case except respondent no. 6, 7, 8, 9 & 11, other respondents workmen were engaged in collection of octroi. They were sought to be terminated vide order dated 1/5/2001. As it happened to take place during the proceedings of conciliation when the reference was made on the demand the workmen lodged application for seeking relief by way of interim relief. Said application was made in the reference (LCJ) No. 10/2001, the order whereof is under challenge of the Court vide order dated 27/1/2003 directing the petitioner that 18 workmen out of total 23, either be reinstated or if not alternative job could be offered and in that case they be paid 50% wages towards salary. The order was required to be passed in respect of 18 workmen only as 5 workmen services were not terminated. This interim order of the Labour Court was carried in challenge by the petitioner by way of Special Civil Application No. 5324 of 2001 before this Court. The High Court on 25/7/2002 passed following order:-
“ Heard the parties. Affidavit in reply is taken on record. The contents of Annexure-H, page-
65 are also taken into consideration. Interim relief is refused.”
b) The statement of claim was filed and the written statement was also filed putting up respective stand of the parties. Written statement contained denial qua 18 workmen not being doing any permanent work and they were said to have been engaged for collection of octroi. But as per the order of State of 1/5/2001 for not collecting octroi and as collection of octroi is stopped from 1/5/2001 the workmen engaged for this work were relieved before office hours on 1/5/2001. It was pleaded that section 33 provisions are not applicable and its applicability of section is 9 (A) of the I.D. Act, as there was no change a such. Submission was sought to be made on account of abolition of octroi work, Panchayat's reduction in work as well as income and funds were pleaded for justifying the termination.
c) Union produced documentary evidence under exhibit at list no. 4, 10 and 24. One workman Singala Ramnikbhai was examined vide exhibit-27 and vide exhibit-28 evidence is closed. Opponent i.e. present petitioner produced list of documents at exhibit-1 dated 9/12/2012 and their witness namely Gelabhai Virabhai Rathod is examined at exhibit-29 and exhibit-30 is witness admission.
d) The Labour Court has framed two points for determination namely whether the applicants were entitled to be given relief which they have demanded and what order ?
The same have been answered in affirmative and as per the order while recording the reasons the court has elaborately discussed the evidence on record.
e) The witness on the part of the workmen whose testimony is recorded at exhibit-27 has deposed that workmen who are party in proceedings namely 23 in number have been working in various departments namely electric, octroi tax, accounts, water supply, laboratory and office work. The witness also stated that workmen were in fact engaged for work before 1/4/1999. This witness has further deposed that the workmen in the reference were working for more than 12 hours and discharging the same duty functioned, performed and discharged by fellow workmen who are workmen on permanent or regular basis, or who have been given benefit of permanancy by the employer. As the workmen were not given equal treatment they constrained to raise dispute with the help of the union. The testimony of the workmen's witness further revealed that it was deposed before the Labour Court that despite there being clear order and instruction from the State not to relieve and discharge the staff engaged in octroi and to accommodate them on other departments to work. As there was an attempt to relieve and discharge them they were constrained to move appropriate application. It was further deposed that on account of abolition of octroi the loss accrued to Panchayat on account of abolition of octroi was made good by the State resulting in to making up of deficit occurring on account of abolition of octroi which indicate that there was in fact no financial constrains as pleaded by the employer. The orders of appointments were placed on record.
f) The Labour Court was requested to take the evidence in form of evidence of vide Shri Gelebhai Virabhai Rathod exhibit-29 which inter alia contended that the appointment and engagement of the workmen was not in accordance with law and they were engaged mainly & essentially for collecting of octroi. On account of abolition of octroi the persons appointed for that purpose were logically required to be relieved and therefore they are not entitled to seek any relief.
g) The cross examination of this witness taken by the representative of the workmen evinced few important facts and aspects which needs be borne in mind. In the course of examination it came out on record on the part of the Panchayat witness that he was working in the organization since 32 years as head clerk and was completely aware of the development and instances of the case. He has further deposed that the permanent set up of Panchayat was totally 49 that include K.G.
examination that aforesaid 49 employees set up is sanctioned on stage-wise. But he has admitted that the set up which he is saying is in existence since last 22 years when the population of Talala village was about 14000 to 15000. In fact enhancement in set up was proposed but not approved. This witness has further admitted that it is true that on account of increase in work allotted requirement of engaging more workmen is existing. He has further admitted that workmen of this reference have been continuously working from the date of appointment and out of them 5 workmen are still working on the job. He has further admitted that like other regular employees these employees were also required to put in requisite hours of service. He admitted that there was difference between wages of present workmen and regular workmen. The testimony of witness of the Panchayat further revealed that the employee namely Shri Lakhad, Singlala and Shri Virani are transferred from octori section into that of office work. He has further admitted that on 1/5/2001 when octori was abolished, that time they were working in the office. He also admitted that present employees were receiving benefits like dearness allowance, bonus, earned leave etc. He submitted that present employees workmen in the reference are receiving wages which at the most could be said to be minimum wages or equal thereto. He admitted that as the demand of workmen was that of benefits admissible to permanent employees, as on earlier occasions on the similarly situated such employees matters whenever labour court used to make orders and awards same have been complied with. He has also admitted that the appointment orders of the employees concerned in reference was issued by Sarpanch of Talala Panchayat and they were all recorded in dispatch register and in that way there are other employees engaged other than octroi employees. In a case of Paresh R. Singala in the appointment order it was not mentioned that it was for octroi only. Similarly in case of another officer also such order is passed. The Panchayat account is audited by government auditor and there was no audit objection raised on the part of State qua appointment of these employees covered under the reference. He further admitted that the expenses against the wages were duly approved keeping in mind set up in the panchayat, present employees were engaged. He further admits that on abolition of octroi either Panchayat or State did not pass any order of relieving or discharging the staff and employee. He further admits that the income which was accrued from collection of octroi, equivalent income thereof is received from State by way of grant and thus Panchayat is not to bear any loss on account of abolition of octroi. He further admitted that in Panchayat water supply, electricity, safai helper daily wagers are working and those daily wagers have been made regular and or permanent. It is also admitted that their recruitment was also made similar like the employees covered by the reference.
h) Witness of the management was confronted with letter marked 24/20 and he had to admit that in that letter which is pertaining to Nagarpalika, there is specific mention regarding octroi employee. He admitted that present employees were competent and eligible to carry out other work also.
i) Labour Court based upon this has recorded its unequivocal findings that it is established beyond doubt that the workmen covered by this reference were required to be regularized. There were work available on which they were given work and they were paid as per minimum wages act. The earlier order of appointment have not been canceled. The administrator had relieved the employees by passing resolution which contains reason of abolition of octroi by the State. But the circular issued by the State did not contain any instruction qua discharge against relieving the employee. The court has recorded further that on the contrary it talks of absorption of such employees in other departments, and even if they are daily wagers engaged for octroi they are to be treated as permanent in the general establishment and after doing this exercise if it is required to be discharged or relieved and employee who has been left out in that case also the principle of last come first go should be observed. Said policy is to observe which is contrary to the one which is pleaded and relied upon by the employer.
j) The court has discussed elaborately about purport of section 33, 33A , 38 and come to the conclusion that the benefit as admissible to all is required to be extended to workman atleast from when they complete 240 days and accordingly passed order dated 27/1/2003 which is impugned in this petition.
k) It is important to note at this stage that in this petition initially the order was passed on 14/10/2003 by this Court (Coram: Miss. R.M.Doshit, J) which reads thus:-
“ Heard the learned advocates. RULE.
Notice as to interim relief and hearing of the rule returnable on 12th November, 2003.
The learned advocate Mr. Anshin Desai waives service of rule on behalf of all the respondents.
Three questions arise in this writ petition.
(1) Whether the respondents – workmen had raised industrial dispute with respect to termination of their service and whether such industrial dispute was ever referred to the Court below:
(2) Whether collection of octroi can be said to be sovereign function of the petitioner – Gram Panchayat.
(3) Whether the respondents workmen who admittedly were not appointed in accordance with the statutory rules of appointment can claim right to regularization in service.
Pending this petition there shall be ad interim stay in terms of paragraph 9(B). The arrears of wages payable ;to the respondents workmen pursuant to the interim order dated 2nd July, 2001 made by the learned Labour Judge, Junagadh shall be paid as early as possible but not later than 30th June, 2004.”
“Subsequent to above order, another order dated 11/12/2003 came to be passed by this Court in the present petition (Coram: Ravi R. Tripathi, J), which reads thus:-
“ Heard the ld. advocates. So far as ad-interim relief granted on 14.10.2003 in terms of paragraph 9(B) is concerned, the same is modified to the effect that there shall be stay of the award only qua backwages meaning thereby the petitioner Panchayat shall implement the award in so far as reinstatement of the workmen is concerned. It is further clarified that the reinstatement given under this order of the Court will be subject to the final outcome of the petition. The part of the order dated 14.10./2003, which reads as under, “The arrears of wages payable to the respondents – workmen pursuant to the interim order dated 2nd July, 2001 made by the learned Labour Judge, Junagadh shall be paid as early as possible but not later than 30th June 2004”
continues.”
l) Thus, according to above, the workmen were in fact discharging their duties though they have been consistently termed to be a class apart known as 'octroi employee' though they are infact assigned work in other departments.
m) The important documents by way of reply rejoinder and annexures have come on record reference they are to be governing the field, reference there to must be wholly unjustified. The fact remains to be noted that out of 23 right from the beginning 5 employees were not even discharged and controversy qua reinstatement and payment of wages remains qua 18 employees only, and if order of this Court dated 11/12/2003 is read, even those 18 are also engaged and they are paid wages and as could be seen from page-142 the 17 employees (one being not available on account of passing away) are paid as if they are daily wagers only. Page 142 indicates work and the days of duty etc.
n) The document at page-144 and 146 indicate that the sufficient vacancies are available for accommodating of the present 22 employees as regular employees without any further formalities at the end of staying of state authorities, except granting due permission. Document at page 147 is a resolution dated 22/1/2004 which indicate that what is minimum sanctioned strength on the establishment and how the same is to be determined. If that guidelines is taken into consideration or the parameters then also answer in form of availability of the vacancy in the present Talala Nagarpalika would indicate that there exists sufficient number of vacancies to accommodate the present workmen on the establishment. Document at page 147 indicate that out of total 42 staff/ rojamdar, in which present workmen are starting from 7 to 28.
o) The fact remains to be noted that in fact the contention raised on behalf of the workmen that till date the recruitment procedure for making permanent had never been resorted to in this Nagarpalika at all. The rojamdar, work charge or permanent employee have been recruited through the means of either recruitment by way of body of the Panchayat or Sarpanch as the case may be, but in respect of both, there were orders either by labour court or other courts which have been duly complied with and thus they have attained the status of permanent employee which gives cause of concern to the present workmen as in their case relying upon the subsequent decision of the Apex Court in Secretary,State of Karnataka And Others Vs. Uma Devi (3) And Others, reported in (2006) 4 SCC pg. 1, an attempt is made to resist their claim for permanency despite the fact that they are educationally qualified and as such there is no dispute that they do not hold requisite qualification to hold the post.
27. In view of the aforesaid indisputable factual backdrop, question arises as to whether this Court in exercise of power under Article 226/227 of the Constitution should interfere with the order in award, especially in respect of direction of regularization of the workmen as the same is resisted on account of observations made by the Apex Court in case of Secretary,State of Karnataka And Others Vs. Uma Devi (3) And Others, reported in (2006) 4 SCC pg. 1, (supra). This Court, therefore, would like to advert to the subsequent decision of the Apex Court of post Umadevi decision for appreciating & crystallization of law as on date. Accordingly, advocate for the petitioner has heavily relied upon the observations of Full Bench in case of Amreli Municipality Vs. Gujarat Pradesh Municipal Employees Union, reported in 2004 (2) G.L.H. 692 (supra), and submitted that the ratio laid down by Full Bench so far as the matters arising from the arena of industrial dispute is much more apt and applicable to the present case rather than the observation of the Apex Court in Uma Devi (supra), and therefore relying upon both the ratios and observations in both the cases it was contended that the order impugned containing direction of regularization of employees who were not appointed as per the provision of recruitment rules cannot be sustained.
28. The fact remains to be noted that subsequent to the Apex Court decision in Uma Devi (supra), sizable developments taken place in this regard is required to be noted in form on various decisions as stated herein above. Learned advocate for the respondent workmen in fact cited division Bench decision of this Court in case of Gujarat Maritime Board And Ors. Vs. Ashokkumar Ijjatrai Anjariya And Anr., reported in 2008 (3) GLH 767, wherein this Court observed that the order of regularization could not have been assailed as at the relevant time judgment of Uma Devi was not available when the impugned order there under was passed. The Court said that judgment of Uma Devi was not available at a time of impugned order was passed and effect of judgment would be prospective only unless it is proved. The Court hasten to add here that observations of Apex Court on Uma Devi case are to be taken into consideration in its totality as truncated reading of the judgment would not lead to any firm conclusion with regard to the ratio. The observations made by the Supreme Court in case of Uma Devi, especially observations in para-53 would clearly indicate that all cases of irregular appointments or employments are not to be treated at par and they are to be deprived of benefit. Even in that case also the one time measure was suggested of bringing about regularity. That apart the fact remains to be noted that as observed by Apex Court in subsequent cases, observations of Uma Devi case are required to be viewed in light of the subsequent judgments of the Court arising out of the industrial disputes cases only. Following three authorities would be material to throw sufficient light on this aspect, viz: (1) In case of Oil & Natural Gas Corpn.Ltd. Vs. Engg. Mazdoor Sangh, reported in (2007) 1 SCC 250; (2) In case of Maharashtra State Road Transport Corporation And Another Vs. Casteribe Rajya Parivahan Karmchari Sanghatana, reported in (2009) 8 SCC 556; and (3) in case of Oil And Natural Gas Corporation Limited (2) Vs. Engineering Mazdoor Sangh, reported in (2009) 10 SCC 641.
29. This Court in an unreported decision in case of Gujarat State Road Transport Corporation Vs. V.K. Parmar, decided on 28/3/2012 in Special Civil Application No. 2416 of 2011, after taking into consideration Uma Devi ratio and other judgments did not disturb the order of regularization while dismissing corporation's petition challenging the order of regularization passed under industrial disputes act. That judgment was to be viewed from its totality and the circumstances which have been narrated there under, namely lack of vacancy etc.
30. In light of the aforesaid discussions and the three authorities cited herein above, this Court is of the considered view that this petition is a petition which is calling for no interference. As otherwise also the Labour Court order even if it is required to be complied with will have to be complied with and in the process appropriate orders could be passed taking in to consideration various aspects which would not militate against fair play on the part of all the concerned, including the authority. The Court would have viewed seriously had there been an aspect of total lack of qualification and eligibility criteria which is not the case. The following glaring aspects required to be taken into consideration for not interfering with the judgment & award, namely;
(a) In this particular Nagarpalia no single appointment is made through recruitment rules. No Recruitment Rules were ever produced before the Labour Court and broad submissions qua existence of Recruitment Rules without indicating the same would not entitle the Nagarpalika to challenge the award and order as it would amount to raising further points which are not pleaded and answered.
(b) The appointments in this Nagarpaliak had never been made by any Recruitment Rules or any procedures were ever followed and the fact remains that on earlier occasions the entire set up was full of employees who were obtained order from the Court which have been complied with. In the present case also when the order of the employer did not say anything on ineligibility or disqualification of the employees, even if taking into consideration existing Recruitment Rules, their employment is not to be disturbed at this stage.
(c) At this stage, learned advocate for the respondents- workmen states that out of total 23 workmen, respondent no.2 died in 2004, and respondent at sr. no. 11 had never joined in the service and respondent nos. 15, 17, 18 & 19 have left the service. Thus, there remains 17 workers. Out of the 17 workers, the Nagarpalika has never relieved 5 of them i.e. they were accommodated in various establishments. Thus, now there remains only 12 workers who are to be regularised for which clear vacancies are available in the Nagarpalika. It is further stated by learned advocate for the respondents – workmen that, out of remaining 12 respondents, at Sr. No. 1, 3, 5, 9 and 15 are not qualified to undertake administrative work (Class-III) but are qualified to work as Class-IV employees and remaining 7 respondents are to be regularized on administrative side as Class-III employees.
(d) It goes without saying that dismissal of this petition would, if no other order is obtained from higher forum, require the Nagarpalika to undertake the exercise of regularization of services of the respondents-employees strictly in accordance with law which may require them to obtain appropriate requisite sanction form the concerned authority and this judgment will therefore be inuring qua the Nagarpalika only and State authorities would be at liberty to take appropriate decision which will be treated as a decision afresh and would govern the facts and circumstances of both the sides.
30. With this observations the petition is dismissed. Rule discharged. Interim relief granted granted shall stand vacated. However there shall be no order as to costs.
[ S.R. BRAHMBHATT, J ] /vgn