Gujarat High Court Case Information System
Print
SCA/2015/2001 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2015 of 2001
With
SPECIAL
CIVIL APPLICATION No.13000 of 2003
With
SPECIAL
CIVIL APPLICATION No.13995 of 2003
With
SPECIAL
CIVIL APPLICATION No. 873 of 2004
With
SPECIAL
CIVIL APPLICATION No. 1372 of 2004
With
SPECIAL
CIVIL APPLICATION No. 8371 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
4
Whether
this case involves a substantial question of law 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 ?
=========================================================
DEPUTY
EXECUTIVE ENGINEER - Petitioner(s)
Versus
BABUBHAI
BARSIBHAI GAMIT C/O SURAT LABOUR UNION - Respondent(s)
=========================================================
Appearance :
IN
S.C.A. No.2015/2001
: MR JV BHAIRAVIA for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 28/07/2010
ORAL
JUDGMENT
All
these petitions involve common questions on law and facts and
therefore, they are disposed of by this common judgment.
1. In
these petitions, the petitioners have challenged the impugned awards
passed by the Courts below, whereby, they have directed to place the
concerned workmen on time-scale, having completed 180 days of service
and to grant other ancillary benefits.
2. The
issued involved in this petition is covered by a decision of this
Court rendered in S.C.A. No.393/2000 dated 27.01.2000, which reads as
under;
“1. This is a petition under Article 227 of the
Constitution of India though styled as one under Articles
14, 226 and 227 of the Constitution.
2. Before proceeding further on the merits of the
matter it is desirable to keep in mind the observations
of the Supreme Court in the case of Mohmmad Yunus Vs.
Mohammad Mustaqim (AIR 1984 SC 38) and Khali Ahmed Bashir
Vs. Tufelhussein S. Sarangpurwala (AIR 1988 SC 184), on
the question of the scope and ambit of the jurisdiction
of this Court in the context of the powers which this
Court may exercise under Article 227 of the Constitution.
The Supreme Court has observed in the aforesaid two cases
that the High Court, while examining a petition under
Article 227 of the Constitution of India, cannot
reappreciate the evidence and cannot disturb the findings
of fact recorded by the courts below except where the
same are perverse, and even errors of law cannot be
corrected.
2. The only contention raised herein is in the
context of the observations and findings recorded by the
Industrial Tribunal, that in paragraph 7 of the impugned
judgement, the Tribunal has interpreted the earlier
settlement dated 23rd November 1984, and in that context
found that those persons who find a place on the select
list of daily wagers who have been given work in the
place of workmen appointed on a regularly sanctioned
post, and where such daily wagers have put in 180 days as
specified in the said settlement will be taken on the
regular time scale. The petitioner had occasion to file
the reference since he was not given the benefit of
regular time scale although, according to him, he was
qualified. The Labour Court, therefore, after
interpreting the said settlement and in view of the
undisputed facts on record, allowed the reference.
3. It is pertinent to note that neither side has led
any oral evidence and that the respondent Corporation has
not produced any documentary evidence whatsoever as
regards the attendance of the workman. On the other hand
the workman had filed Exh.6 in the list of documents
pertaining to his attendance.
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
judgement 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 judgement and award.
6. The Tribunal has also referred to and relied upon
an earlier judgement and award delivered by the
Industrial Tribunal, Rajkot cited in paragraph 10 of the
present judgement and award, and noted that 32 such
reliever-watchmen have been granted a regular time-scale,
and that the said award has been implemented by the
petitioner Corporation. In the light of this fact viz.
that 32 such reliever watchmen have been granted a
regular time-scale, the Tribunal had occasion to note
that the Corporation has made no submission whatsoever.
Thus, if the petitioner Corporation has chosen to grant a
regular time scale to 32 such reliever watchmen, based
upon the earlier Award referred to hereinabove, there is
no reason why the present respondent workman should not
have been granted the same benefit.
7. In the premises aforesaid, there is no substance
in the present petition and the same is, therefore,
summarily dismissed.”
3. The
aforesaid order was challenged in L.P.A. No.905/2000. However, the
same came to be dismissed vide order dated 12.03.2001. Against the
said order, S.L.P. (Civil) No.12607/2001 was filed before the Apex
Court, which, also came to be dismissed vide judgment and order dated
10.08.2001.
4. In
view of the above, this group of petitions also stand rejected. Rule
is discharged. Interim relief, if any, stands vacated.
[K.S.
JHAVERI, J.]
Pravin/*
Top