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SCA/670/2002 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 670 of 2002
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 ?
======================================
VADODARA
MUNICIPAL - Petitioner(s)
Versus
MOHMAD
ISMAIL USMANIA SHAIKH - Respondent(s)
======================================
Appearance
:
MR PRANAV G DESAI for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) :
1,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 26/08/2010
ORAL
JUDGMENT
1. This
petition is directed against the judgment and award dated 29th
September 2001 passed by Labour Court, Vadodara in Reference (LCV)
No.1113 of 1995 whereby the petitioner was directed to treat the
respondent as permanent driver and to grant him all consequential
benefits.
2. The
respondent was working with petitioner Corporation as driver. His
appointment was for fixed time period and for fixed work. He
approached the Labour Court, Vadodara contending that he had
completed 307 days and respondent had terminated his services
illegally and violated the provisions of Section 25-F, G and H of the
Act. The Labour Court passed the award granting permanency.
3. Though
served, none appears for the respondent. Heard the learned Advocate
for the petitioner and perused the relevant documents on record.
Having considered the submissions and perused the record of the case,
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) GLR 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. This
Court further observed therein that the Apex Court, in no uncertain
terms, ruled that the Labour Court/Industrial Tribunal can neither
regularize services of a workman nor grant permanency when his
initial appointment itself de hors the rules or not on the sanctioned
post and has deprecated orders of the High Court/Labour
Courts/Tribunals directing to regularize services of not legally
recruited persons and has given guidelines.
5. The
Labour Court has not considered the ratio laid down in the aforesaid
decision. Therefore the matter is required to be remanded to the
Labour Court.
6. Accordingly
the judgement and award impugned in the present petition is quashed
and set aside. Matter is remanded to the Labour Court for
consideration afresh in light of the decision in the case of Amreli
Municipality (supra). Such decision shall be taken within a period of
two years from the date of receipt of writ of this court. It is
clarified that this Court has not expressed any opinion on merits of
the matter. Rule is made absolute accordingly with no order as to
costs.
[K.S.
JHAVERI,J.]
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