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SCA/8121/2010 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8121 of 2010
With
SPECIAL
CIVIL APPLICATION No. 16623 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
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 ?
=========================================================
LATHI
NAGAR PALIKA - Petitioner(s)
Versus
NATUBHAI
BHIKHABHAI BARIYA - Respondent(s)
=========================================================
Appearance
:
MR
DEEPAK P SANCHELA for
Petitioner(s) : 1,
MR VC VAGHELA for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 28/12/2010
COMMON ORAL JUDGMENT
The
petitioner, Lathi Nagar Palika, through its Chief Officer has filed
these two petitions
under Articles 226 and 227 of the Constitution of India praying for
quashing and setting aside the impugned award dated 29.9.2009 passed
by the Industrial Tribunal at Bhavnagar in a Reference (IT) No.118
of 1993 as well as award dated 23.3.2010 passed by the Labour Court,
Amreli in Reference Case No.11 of 2003.
This Court has issued
rule on 16.7.2010 and ad-interim relief in terms of para 8(C) of
Special Civil Application No.8121 was granted by virtue of which
impugned award/orders were stayed. The Court has, however, made
clear that the present service condition of the respondent will not
be changed by the petitioner without following due procedure under
the law.
Ad-interim
relief granted earlier was confirmed on 12.8.2010 and the matter was
fixed for final hearing. On 23.12.2010 when the
matter has come up for hearing this Court was of the view that the
petitioner should have filed two separate petitions challenging both
the awards separately and hence separate one page petition being
Special Civil Application No.16623 of 2010 was filed challenging the
award passed by the Labour Court on 3.3.2010 in Reference Case No.11
of 2003.
Since rule was commonly
issued in earlier petition there is no need to issue separate rule
in one page petition which is subsequently filed by the petitioner.
Heard Mr.Deepak P.
Sanchela, learned advocate appearing for the petitioner and Mr.
V.C.Vaghela, learned advocate appearing for the respondent in both
these petitions.
It
is the case of the petitioner Nagar Palika that the respondent
workman alongwith others
were working as daily wager in Nagar Palika and had worked for more
than 240 days. The respondent workman was working as part time
wireman and dispute was raised through the Union, namely, Amreli
District Mazdoor Sangh before the Industrial Tribunal at Rajkot
where it was registered as Reference (IT) No.135 of 1991. However,
on constitution of Bhavnagar Tribunal, the said reference was
transferred to the Bhavnagar and it was registered as Reference (IT)
No.118 of 1993.
The
respondent workman has filed his statement of claim in which he has
submitted that he was working in different post but he was not made
permanent nor he was given the benefit of permanent employee and
since he has completed 240 days he was required to be made
permanent. The petitioner Nagar Palika in its Written Statement has
specifically stated that the respondent workman was working
as a daily wager and on adhoc basis. It is further stated that the
respondent workman and similarly situated other persons were
required only when there was work. It is further stated that there
is no provisions under the Industrial Disputes Act which cast an
obligation on the employer to make permanent. After considering the
statement of claim as well as Written Statement and the arguments of
the learned counsels appearing for the parties the Industrial
Tribunal directed the petitioner Nagar Palika to absorb the
respondent workman as a regular employee and to pay the arrears with
effect from 1.1.1997 on 27.12.2000.
Being
aggrieved by the said award passed by the Industrial Tribunal the
petitioner challenged the said award before this Court in Special
Civil Application No.4327 of 2002. This Court vide its order dated
13.12.2005 set aside the said award and remanded the matter
back to the Tribunal for deciding it afresh.
It is also the case of
the petitioner that somewhere in 2001 one Mr.Sureshkumar Dodia has
filed Special Civil Application No.7 of 2001 seeking benefit of the
Government Resolution dated 7.10.1988. The said petition came to be
dismissed on the ground of an alternative remedy. The petitioner
Nagar Palika, thereafter, after following due procedure of law
terminated the services of the respondent employee and hence the
dispute was raised by the respondent workman before the Labour Court
in Reference No.11 of 2003 for reinstatement in service. Thus, two
different proceedings were going on before two different forums i.e.
Industrial Tribunal as well as Labour Court.
The
Reference No.118 of 1993 pending before the Industrial Tribunal came
to be decided on 29.9.2009
and the petitioner was directed to regularize the respondent
workman. Likewise, the Reference No.11 of 2003 pending before the
Labour Court also came to be decided on 23.3.2010 and the order of
termination was cancelled by the Labour Court.
It is these two orders
passed by the Labour Court as well as Industrial Tribunal which are
challenged in the present petitions.
Mr.Sanchela,
learned advocate appearing for the petitioner has submitted that the
Industrial Tribunal has erred in passing an award directing the
petitioner Nagar Palika to regularize service of the respondent
workman. The Tribunal has not taken into consideration the
provisions of Gujarat Municipalities Act, the policy decision taken
by the Government with regard to recruitment, and the qualification
as well as procedure required to be followed for filling up the
regular
post. He has further submitted that the directions given by the
Industrial Tribunal to regularize services of the respondent workman
and to pay scale as well as benefit is absolutely illegal and
contrary to law laid down by this Court as well as Apex Court. He
has further submitted that the Director of Municipalities has
clearly issued directions to all Municipalities, more particularly
petitioner Nagar Palika that they should not keep the daily wager
more than 10% of total number of sanctioned posts. He has further
submitted that the petitioner Nagar Palika is governed by the
provisions of the Act and the set up of the staff pattern and the
post are being fixed by the Director of Municipalities. When there
is no regular vacant post available no such direction could have
been issued. He has, therefore, submitted that the directions issued
by the Industrial Tribunal are absolutely improper and unjustified
and hence the impugned award deserves
to be quashed and set aside.
While challenging the
award passed by the Labour Court Mr.Sanchela submitted that the
services of the respondent workman were terminated after following
due procedure of law and hence the Labour Court is not justified in
setting aside the said termination order.
Mr.V.C.Vaghela,
learned advocate appearing for the respondent workman in both these
matters, on the other hand, have supported the award passed by the
Industrial Tribunal as well as Labour Court. He has further
submitted that the Industrial Tribunal as well as Labour Court has
decided the respective references, after considering the evidence –
oral as well as documentary on record and after applying its mind
to the provisions of the Act as well as the facts on record and
hence the same should not be disturbed
by this Court while exercising its writ jurisdiction under Articles
226 and 227 of the Constitution of India.
Mr.
Vaghela has further submitted that alongwith the respondent workman,
there are other 15 workmen, out of whom many are junior to the
respondent and they have been confirmed whereas the respondent was
denied the benefit of permanency. He has further submitted that the
petitioner has put up 7 years service at the time when other 15
persons were made permanent. He has, therefore, submitted that there
should not be any discrimination amongst the workmen, who have
worked as daily wagers. The action of the petitioner Nagar Palika
is, therefore, in violation of Articles 14 and 16 of the
Constitution of India. The Industrial Tribunal has considered all
these points and issued directions to make the respondent workman
permanent and hence the challenge to the
said award should not be entertained by this Court.
So far as reference
before the Labour Court is concerned, the Labour Court has quashed
and set aside the termination order passed by the Nagar Palika and
the petitioner Nagar Palika was directed to reinstate the workman on
his original post within 30 days with 50% back wages. The Labour
Court has specifically come to the conclusion that the termination
of service of the workman is in violation of provisions of
Industrial Disputes Act and hence the workman was entitled to
reinstatement.
In
support of his submission, Mr. Vaghela relied on the decision of the
Apex Court in the case of Harjinder Singh Vs.
Punjab State Warehousing Corporation, reported in (2010) 3 SCC 192,
wherein the Court after discussing the entire case law on the
subject has held that if a man is deprived of his livelihood, he
is deprived of all his fundamental and constitutional rights and for
him the goal of social and economic justice, equality of status and
of opportunity, the freedoms enshrined in the Constitution remain
illusory. Therefore, the approach of the Courts must be compatible
with the constitutional philosophy of which the directive principles
of State policy constitute an integral part and justice due to the
workman should not be denied by entertaining the specious and
untenable grounds put forward by the employer – public or
private. The Apex Court, therefor, allowed the petition filed by the
workman and the impugned order of the High Court was set aside and
the award passed by the Labour Court was restored. He has,
therefore, submitted that the facts being almost identical, the
order quashing and setting aside the services of the respondent
workman with 50% back wages should not be disturbed by
the Court and the directions with regard to regularization should
have also been implemented by the Nagar Palika.
Having
heard the learned counsels appearing for the parties and having
considered their rival submissions in light of the impugned awards
passed by the Industrial Tribunal as well as Labour Court and having
further considered the authorities cited before the Court, the Court
is of the view that the Industrial Tribunal has clearly erred in
issuing directions for regularization of the services of the
respondent workman. It is settled position in law and in number of
decisions, this Court as well as Apex Court have held that the Court
has no power to issue direction for regularization of the service of
the workman. The Court cannot create any new post, which is not
there. The issuance of direction of regularization of the respondent
workman in the present case, amounts
to creation of new post, which is barred under the law.
The ground of challenge
against termination raised by Mr. Vaghela has also no substance. The
respondent workman was wireman and he was not on sanctioned post.
The Director of Municipalities has specifically issued direction not
to engage daily wagers more than 10% of the permanent employees. The
respondent workman, therefore, cannot be made permanent. In that
view of the matter award passed by the Tribunal issuing direction to
the petitioner Nagar Palika to make the respondent workman permanent
and to pay him pay-scale is quashed and set aside.
So
far as award passed by the Labour Court is concerned, it is true
that services of the respondent workman were terminated on 5.5.2001.
At the time of termination of his services provisions of Section 25F
have not been
complied with and he was neither issued notice nor paid notice pay
or retrenchment compensation. However, the Court has, of late, taken
the decisions that when the services of the respondent workmen are
not by way of regular mode, their initial appointments are not in
accordance with law and it is by way of back door entry. If they
have got the employment in an establishment in this manner, in that
case the provisions of Section 25F are not required to be complied
with. At the most in such cases the concerned workman is entitled to
some reasonable compensation. Reliance is placed before the Court on
the decision of the Apex Court in the case of Senior
Superintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal
and others, reported in (2010) 6 SCC 773,
wherein it is held that it has been consistently held by the Supreme
Court that relief by way of reinstatement with back wages is not
automatic even if termination of an
employee is found to be illegal or is in contravention of the
prescribed procedure and that monetary compensation in lieu of
reinstatement and back wages in cases of such nature may be
appropriate. The Court further held that in view of the aforesaid
legal position and the fact that the workmen were engaged as daily
wagers for about 25 years back and they worked hardly for 2 or 3
years, relief of reinstatement and back wages to them cannot be said
to be justified and instead monetary compensation would subserve the
ends of justice.
The
learned Single Judge of this Court in the case of Amreli
Municipality Vs. Timaniya Maganbhai Gordhanbhai (Special Civil
Application No.10712 of 2010 decided on 12.10.2010)
has taken the view that in case of daily wager, order of
reinstatement and back wages cannot be passed and in case if it is
found that there was breach of Section 25(F),
25(G) and 25(H) of the Industrial Disputes Act, the concerned
workman can be compensated by way of lump-sum monetary compensation.
The Court has accordingly directed the petitioner Nagar Palika in
that case to pay an amount of Rs.40,000/- to the respondent workman
by way of lump-sum monetary compensation within the period of eight
weeks from the date of said decision.
Considering the above
legal position and facts of the present case, the Court is of the
view that award passed by the Labour Court of reinstatement with 50%
back wages is required to be modified by awarding compensation of
Rs.75,000/- to the respondent workman which shall be paid within two
months from today. It is made clear that acceptance of this amount
by the respondent workman would be considered as the acceptance of
the decision by the respondent workman.
Subject to the above
directions and observations these petitions are allowed. Rule is
made absolute to the above extent without any order as to costs.
(K.
A. PUJ, J.)
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