Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 1309 (GUJ)

Talaja Municipality v. Velji Premji Vaghela

2015-12-21

JAYANT M.PATEL, VIPUL M.PANCHOLI

body2015
JUDGMENT : Jayant M. Patel, J. 1. Draft amendment granted. All appeals are admitted. Mr. Rajesh P. Mankad appears for respondent in Letters Patent Appeal No. 1464/15, 1465/15, 1466/15 and 1467/15 and he also appears for Mr. Mukesh Rathod in LPA No. 1463/15 and waives notice of admission. 2. With the consent of the learned advocates appearing for both the sides, the appeals are finally heard today. 3. As the facts are more or less connected and common questions arise for consideration, they are being considered simultaneously. 4. In Letters Patent Appeal No. 1463/15 arising from Special Civil Application No. 12412/09 and Letters Patent Appeal No. 1467/15 arising from Special Civil Application No. 12417/09, the workmen were engaged as Pump man. Whereas, in Letters Patent Appeal No. 1465/15 arising from Special Civil Application No. 12414/09, the workman was working as Labour. In rest of the Letters Patent Appeals, the respondent workmen were working as Pagi Watchman. 5. We may record that for the sake of convenience, the Municipality shall be referred to as "employer" and the concerned workman shall be referred to as "workmen". As per the workmen, in spite of the fact that regular vacancies were available as that of Pump man, Watchman, and Labour with the employer, they were appointed in the year 1996-1997 on the respective posts as daily wager. The demand was made for regularisation, but the said demand was not accepted by the employer and therefore, the disputes were raised by the respective workman for regularisation and grant of permanency benefits in the year 2007. Such disputes came to be referred to the Industrial Tribunal for adjudication. The Tribunal, ultimately, at the conclusion of the proceedings, passed the judgment & award whereby the workman of Reference IT No. 16/07 was ordered to be made permanent on the post of Watchman Pagi with effect from 02.03.2001, the workman of Reference IT No. 17/07 was ordered to be made as permanent as Labour with effect from 17.04.2002, Workman of Reference IT No. 19/07 was ordered to be made as permanent from 17.04.2002 on the post of Watchman, the workman of IT Reference No. 20/07 and the workman of IT Reference No. 15/07 were ordered to be made as permanent with effect from 17.07.2002 and 03.03.2001 respectively. The aforesaid award came to be passed on 09.04.2009 by the Tribunal. The aforesaid award came to be passed on 09.04.2009 by the Tribunal. The appellant municipality challenged the aforesaid award passed by the Tribunal in SCA Nos. 12412/09 to 12417/09 except SCA No. 12415/09. The learned Single Judge vide order dated 13.08.2015, dismissed all the petitions. Under the circumstances, the present appeals before the Division Bench of this Court. 6. We have heard Mrs. Pahwa, learned counsel appearing for the appellant employer and Mr. Rajesh Mankad appearing for all the workmen in the present group of appeals. 7. The first contention raised by the learned counsel appearing for the appellant was that as per the sanctioned setup of the Government, the post of Labour did not exist at all. So far as the post of Pump man are concerned, their were five posts and they were also filled up and therefore, no vacant posts were available. So far as the posts of Watchman is concerned, she submitted that no sanctioned posts were available as per the new setup of 2004. But she submitted that as per the old setup, there were two posts of Watchman, but they were already filled up and therefore, no post of watchman was available. So far as the posts of Pump man is concerned, she submitted that in the old setup, there were no post, but in the new setup, five posts were provided which were also filled up and therefore, there were no posts available of the Pump man. She submitted that if regular posts were not available and the appointments were given as Labour on temporary posts, it cannot be said to be unfair labour practice as held by the Tribunal which did not came to be interfered with by the learned Single Judge. 8. The contention raised by the learned counsel for the appellant prima facie appears to be attractive, but upon further scrutiny, if examined with the deposition of Mr. Vasantrai Chottalal, Exh. 34, who was the witness of the municipality itself, in the examination-in-chief, he stated that when these workmen were taken, there were vacancies of Watchman and Pump man. Further, in the cross-examination, the said witness has stated that the post of Labour is in Class IV and there were about six I posts vacant. The aforesaid evidence led on behalf of the municipality shows that the post of watchman, pump man as well as labour were vacant. Further, in the cross-examination, the said witness has stated that the post of Labour is in Class IV and there were about six I posts vacant. The aforesaid evidence led on behalf of the municipality shows that the post of watchman, pump man as well as labour were vacant. In spite of the same, the workmen concerned were given appointment on temporary basis. Under these circumstances, it cannot be said that the post were not available at the relevant point of time nor the fault can be found with the findings recorded by the Tribunal. It cannot be said that the findings recorded by the Tribunal for availability of posts were supported by material. 9. The attempt was made by the learned counsel appearing for the appellant to contend that when there were documentary evidences produced, the Tribunal ought to have discarded the oral evidence given by the witness on behalf of the municipality. 10. We are afraid such contention can be accepted. First of all, the contention raised in the written statement is no evidence unless the witness enters the witness box and the other side is given opportunity to cross examine. The oral evidence is an evidence. It is true that the documentary evidence could also be considered, but the said witness of the municipality in the oral evidence has not at all referred to the documentary evidence. The Tribunal has disbelieved the data produced of the old sanctioned setup and new sanctioned setup as against the oral evidence of the witness. Such an approach could not be said to be erroneous or perverse on the part of the Tribunal. Under the circumstances, the attempt cannot be countenanced. 11. The learned counsel for the appellant next contended that the Tribunal ought not to have directed regularisation or permanency benefit to the respondent workmen much prior to the date on which the reference was made. She alternatively submitted that even if such benefits were found to be proper by the Tribunal, the same could be from the date of the award and not even from the date of reference made by the Tribunal. 12. Whereas, Mr. Mankad, learned counsel appearing for the respondent workmen contended that in any case, the benefits were available to the workmen and the Tribunal could direct from the date of the reference. 12. Whereas, Mr. Mankad, learned counsel appearing for the respondent workmen contended that in any case, the benefits were available to the workmen and the Tribunal could direct from the date of the reference. However, he submitted that if this Court is inclined to take the view that such benefit could not have been directed from the date of the reference, then the workmen would be satisfied if it is so directed to be considered from the date of the award because as per him, the unfair labour practice was proved and the Tribunal had the jurisdiction to grant permanency benefit by way of regularisation. 13. Considering the facts and circumstances of the case, it appears to us that the rights were crystallised before the Tribunal when the Tribunal recorded the conclusion that it was unfair labour practice. It is true that the appointment of the workmen were much earlier from 1996-1997, but at the same time, it is clear that the reference is made in the year 2007 and the award is passed in the year 2009. Under these circumstances, we find that it would be appropriate that the permanency benefits are granted to the workmen concerned on the respective posts from the date of the award. 14. The learned counsel for the appellant also contended that if the posts are not made available, how the municipality would be in a position to grant permanency benefit in absence of available posts and therefore, this Court may consider the said aspects. 15. In our view, such aspects need not be inquired at the appellate stage for the simple reason that if the posts are wrongly filled up, it would be for the municipality to take appropriate action in accordance with law and if the posts are genuinely required for the purpose of implementation of the award of the Tribunal, then also, it would be for the Municipality to take appropriate action in accordance with law for creation of the posts. We only leave it by observing that as per the deposition of the above witness of the Municipality at the time when the Tribunal exercised the power, the posts were available. We do not find it appropriate to observe further. 16. Mrs. We only leave it by observing that as per the deposition of the above witness of the Municipality at the time when the Tribunal exercised the power, the posts were available. We do not find it appropriate to observe further. 16. Mrs. Pahwa, learned counsel for the appellant by relying upon the decision of the Apex Court in the case of Maharashtra State Road Transport Corporation and Another v. Casteribe Rajya Parivahan Karmchari Sanghatana , (2009) 8 SCC 556 contended that in the said decision, it was observed that if the posts are not available, the regularisation could not be ordered. 17. In our view, the said decision has no applicability because as observed by us and it is a part of the record that as per the witness of the Municipality employer itself, the posts were vacant at the time when the deposition was recorded. 18. In view of the aforesaid observations and discussions, the judgment and award passed by the Tribunal as well as the order passed by the learned Single Judge are not required to be interfered with so far as it relates to grant of permanency benefit/regularisation on the respective posts to the concerned workmen. But the effect of the order shall be from the date of the award passed by the Tribunal and not from the date as mentioned in the award. It is further observed that the award of the Tribunal shall be complied with within a period of three months from the receipt of the order of this Court. The appeals are partly allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.