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SCA/7878/1999 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7878 of 1999
With
SPECIAL
CIVIL APPLICATION No. 7886 of 1999
With
SPECIAL
CIVIL APPLICATION No. 7937 of 1999
With
SPECIAL
CIVIL APPLICATION No. 7938 of 1999
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 ?
=========================================================
KALAVAD
MUNICIPAL BOROUGH – Petitioner(s)
Versus
ARJAN
RUPABHAI & 4 – Respondent(s)
=========================================================
Appearance :
MR
PV HATHI for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) :
1,
UNSERVED-EXPIRED (R) for Respondent(s) : 2,
MR TR MISHRA for
Respondent(s) : 3 – 4, 4.2.1, 4.2.2, 4.2.3, 4.2.4,4.2.5 – 5.
MR
PRADEEP PATEL for Respondent(s) : 5.2.1, 5.2.2,5.2.3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 13/07/2010
ORAL
COMMON JUDGMENT
1. As
common questions on law and facts are involved in these petitions,
they are disposed of by this common judgment.
2. In
this group of petitions, the petitioner has prayed to quash and set
aside the impugned award passed by the Labour Court, Jamnagar,
whereby the petitioner is directed to regularize the services of the
respondents from the date they have completed 240 days and pay the
arrears as per permanent employees w.e.ef. 01.01.1996.
3. The
facts in brief are that the respondents were working as daily wager
with the petitioner Municipality since long and they were paid salary
as per the rules of the Panchayat and the Municipality. It is the
case of the respondent workmen that though they were working since
long with the petitioner Municipality, they were not made permanent.
Being aggrieved by the same, the respondent workmen raised an
industrial dispute which was ultimately referred to the Labour Court
for adjudication. Before the Labour Court both the parties adduced
evidence and on the basis of the material produced before it, the
Labour Court partly allowed the references with the aforesaid
directions. Hence, these petitions.
4. Heard
learned counsel for the respective parties and perused the documents
on record. It is not in dispute that the
respondent workmen were appointed
on daily wage basis by the petitioner Municipality. The issue whether
a person working on a daily wage basis can claim regularization in
service has already been settled.
5. In
the case of Secretary, State of Karnataka & Ors. v. Umadevi
& Ors., (2006) 4 S.C.C. 1, the Apex Court has held that
Courts should not issue directions with regard to adsorption,
regularization, or permanent continuance of temporary, contractual,
casual, daily-wage or ad-hod employees appointed / recruited and
continued for long in public employment dehors the constitutional
scheme of public employment, unless the recruitment itself was made
regularly and in terms of the constitutional scheme. Similar view
has been taken by the Apex Court in the decision of Accounts Officer
(A & I) APSRTC & Ors. v. K.V. Ramana & Ors,
reported in
2007 II CLR 81, wherein the Court has held that even if the
contract labourers or casual workers or ad hoc employees have worked
for a long period they cannot be regularized de hors the rules of
selection. In another decision of the Division Bench of this Court
in the case of Amreli Municipality v. Gujarat Pradesh Municipal
Employees Union reported in 2004(2) GLH
692, the Court has observed as under :-
12.1 After
considering the decisions cited before us, the following
principles emerge:
(A) No regularisation or permanency can be effected de hors the statutory provisions or the guidelines.
(B) Long service put in by the workmen itself may not be a ground to regularise services of ad hoc/ temporary workmen against the sanctioned set up without following statutory procedure of recruitment. At the most, Labour Court/ Industrial Tribunal can issue direction for consideration of absorption subject to availability of posts on the establishment.
(C) To avoid nepotism and corruption, no backdoor entry in service;
(D) Financial capacity of the local body to have additional burden is a relevant consideration to be kept in mind while ordering regularisation or absorption.
12.1.2 The Apex Court, in no uncertain terms, ruled that the Labour Court/ Industrial Tribunal can neither regularise services of a workman nor grant permanency when his initial appointment itself is de hors the rules or not on the sanctioned post and has deprecated orders of the High Court/ Labour Courts /Tribunals directing to regularise services of illegally recruited persons and has given guidelines. We are not impressed by the submission advanced on behalf of the workmen that the orders were passed in petitions under Article 226 of the Constitution of India and, therefore, such orders are not applicable in the present case in deciding the controversy. The Labour Courts/ Industrial Tribunals are required to pass orders consistent with the law laid down by the higher Courts. Needless to say that the exercise of wide powers by Labour Court/ Tribunal is always subject to or governed by the law laid down by the higher Courts.”
6. Looking to the facts of the case and the principle laid down in the aforesaid decisions, the impugned award passed by the Labour Court directing to regularize the services of daily wagers is illegal and bad in law and the same deserves to be quashed and set aside.
7. In the result, the petitions are partly allowed. The impugned award passed by the Labour Court, Jamnagar directing the petitioner to regularize the services of respondent workmen is quashed and set aside. However, the direction qua the payment of arrears of wages and allowances stands confirmed. The rest of award remains as it is. Rule is made absolute to the aforesaid extent with no order as to costs. It is, however, observed that the benefits conferred upon the respondent workmen will not be withdrawn by the petitioner Corporation and the service conditions of the respondent workmen shall not be changed without due process of law.
[K.S. JHAVERI, J.]
/phalguni/
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