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SCA/1364/1997 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1364 of 1997
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 ?
=========================================================
LIMBDI
MUNICIPALITY - Petitioner(s)
Versus
KURESHI
SHIRAJ ALABELI & 1 - Respondent(s)
=========================================================
Appearance :
MR
MINESH C DAVE for
Petitioner(s) : 1,
MR CL SONI for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 22/07/2010
ORAL
JUDGMENT
1. By
way of this petition, the petitioner has prayed to quash and set
aside the impugned award dated 26.08.1991 passed in Reference [ITR]
No. 134/1985, whereby the Industrial Tribunal has directed the
petitioner to regularize the services of the respondent workmen.
2. The
short facts of the case are that the respondent workmen at the
relevant time were working on the post of Octroi Nakedar of the
petitioner Municipality. The respondent workmen raised an industrial
dispute for regularization of their services, which was ultimately
referred to the Industrial Tribunal for adjudication being Reference
No. 134 of 1985. The Industrial Tribunal allowed the reference and
directed the petitioner to regularize the services of the respondent
workmen. Hence this petition.
3. Heard
the learned counsel for the respective parties. Having considered the
submissions and perused the documents on record, it transpires that
the issue involved in the present case is squarely covered by a Full
Bench decision of this Court in the case of Amreli Municipality
V. G.P.M.E. Union, reported
in 2004(3) 1841. The ratio laid down in the
said decision reads as under:
“12.1 After
considering the decisions cited before us, the following principles
emerge:
[A] No
regularization 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
regularize 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 fro consideration of absorption subject to availability of
posts on the establishment.
[C] To
avoid nepotism and corruption, no back-door 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 regularization or
absorption.”
4. The
aforesaid decision has not been considered by the Industrial Tribunal
while considering the aforesaid case. Therefore it would be in the
interest of justice to remand the matter to consider the same afresh
in view of the aforesaid decision.
5. In
the view of the principle laid down in the aforesaid decision, the
impugned award of the Industrial
Tribunal is quashed and set aside. The matter is
remanded to the Industrial Tribunal for consideration of the same
afresh. The Industrial Tribunal shall decide the reference within a
period of six months from the date of receipt of writ of this order.
It is clarified that in view of quashing of the award the recovery
proceedings will not survive. Rule is made absolute to the above
extent with no order as to costs.
[K.S.
JHAVERI, J.]
/phalguni/
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