Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 796 (GUJ)

Maheshbhai Jagubhai Naliyapara v. Superintendent

2015-08-13

S.R.BRAHMBHATT

body2015
JUDGMENT S.R. Brahmbhatt, J. 1. Rule. Mr. Devang Dave, learned Assistant Government Pleader waives service of Rule on behalf of respondents. By consent Rule is fixed forthwith. The petitioner, who happened to be a second party workman in the Demand Reference Case No. 11 of 2003 in the Court of Presiding Officer, Labour Court, Junagadh, has approached this court by way of this petition filed under Article 226 of the Constitution of India challenging the award and judgment passed on 17.10.2014, whereunder the Demand Reference Case was rejected by the Court for the reasons stated thereunder. 2. The facts in brief, as could be culled out from the memo of petition, deserves to be set out, are as under: 2.1. The petitioner, through Union, raised demand under letter dated 20.01.2003, seeking the benefits on accounts of his being continuously serving as peon from 21.01.1998. The said demand had not been accepted which arise to failure report and reference to the concerned, wherein it was marked as Demand Reference Case No. 11 of 2003. The workman filed statement of claim contending that atleast from 21.08.1990, he should be treated as regular employee and he be granted all the benefits and differences of wages etc. The services of the petitioner had been terminated in the year 1994 without following the procedure of law which resulted into the disputes and pursuant thereto, the reference being Reference (LCJ) No. 172 of 1994 which came to be allowed by the Court on 12.09.1997. Being aggrieved by the said order, the respondent had preferred a petition in this Court being Special Civil Application No. 7342 of 2000 which had not been entertained and the award got confirmed. The workman has not been treated as permanent employee nor he was receiving any benefits, therefore, he had to raise demand through union vide letter dated 20.01.2003 which had been referred to the Court for the unfair labour practice into service and it was urged that he was serving as peon in the office. He is treated as unskilled labour and paid wages. The written statement filed at Exh. 8 raising the demand inter alia contending that contention of the workman had been working as peon from 21.01.1998, was not correct. The workman was required to be called as and when there was a work as unskilled labour for the work of measurement etc. He is treated as unskilled labour and paid wages. The written statement filed at Exh. 8 raising the demand inter alia contending that contention of the workman had been working as peon from 21.01.1998, was not correct. The workman was required to be called as and when there was a work as unskilled labour for the work of measurement etc. The record maintenance work was undertaken and in that work his service regularized as unskilled labour and helper. The employer - first party, further relied upon the decision of this Court, in the very special case being Special Civil Application No. 7342 of 2000, dated 18.06.2001 and contended that the workman has no right to seek any regularization. The Court framed three points for consideration namely whether the workman was entitled to be regularized from 21.08.1990 and deserves to be granted 100 per cent wages along with the cost, second whether the respondent established that the workman was working as daily wager for carrying the apparatus in work, land measurement and thirdly, whether the employer - respondent through as the workman had been appointed as a back door entry, he does not deserves to be granted benefits or not. The Court answered the first point in negative and remaining two in affirmative and rejected the Reference on 17.10.2014, which gave rise to the petition. 3. The learned advocate for the petitioner workman contended that the Labour Court has absolutely misdirected itself while framing points as there was no scope for ignoring the continuous service served by the workman which was infact hit by the provisions of Industrial Disputes Act. 4. The Labour Court ought to have appreciated the fact that the workman had been working as peon in the establishment of the respondent and therefore, he could not have been treated as unskilled labour and denied the regularization. It was further contended that the question of back door entry, which is sought to be highlighted, could not have been appreciated by the Court as there was no question of any back door entry, so far as provisions of Industrial Disputes Act is concerned. The learned counsel submitted that looking to the very submission of the workman and the fact that the workman has been continuously working since 1998, his prayer could not be declined by the Court. 5. The learned Assistant Government Pleader Mr. The learned counsel submitted that looking to the very submission of the workman and the fact that the workman has been continuously working since 1998, his prayer could not be declined by the Court. 5. The learned Assistant Government Pleader Mr. Devang Dave appearing for the State has contended that the workman did not deserve to be treated as permanent employee as he was not appointed following due procedure of law. The decision rendered by the Court cannot be said to be perverse so as to call for interference. The learned Assistant Government Pleader submitted that the Court has infact observed that the workman was entitled to be treated as regular employee on account of completion of his 240 days only. 6. The learned advocate appearing for the petitioner had infact urged that the Court may atleast remand back the matter for appropriate appreciation of the facts in light of the provisions of Industrial Disputes Act. 7. Learned Assistant Government Pleader could not dispute the aspect that provisions of Industrial Disputes Act as well the question of unfair labour practice have not been considered by the Court at all. 8. This Court is of the considered view that though the Labour Court has rendered the lengthy judgment, the Labour Court has infact misdirected itself and missed the rules and points, which required labour court's consideration. The Labour Court appears to have been swayed by the general principle flowing from the Supreme Court decision in the case of Secretary, State of Karnataka and Others v. Umadevi (3) and Others AIR 2006 SC 1806 : (2006) 4 SCC 1 : LNIND 2006 SC 261 : (2006) 2 MLJ 326 : 2006-II-LLJ 722. However, the subsequent decision of the Supreme Court have taken a specific view that so far as the Industrial Disputes Act is concerned, the Labour Court's power to adjudicate the dispute in light of the provisions, have not been curtailed in any manner as observed in the case of Secretary, State of Karnataka and Others v. Umadevi (3) and Others (supra). The Court could have, therefore, addressed itself for the real aspect of the prayer. The Court could have, therefore, addressed itself for the real aspect of the prayer. The workman's demand could have been viewed appropriately and even if assuming for the sake of examining without holding that workman did not deserve to be treated as a regular employee on account of the establishment being governmental establishment, runs under the rules and regulations, then also the workman's claim qua the wages at the par with fellow workmen in light of the provisions of Industrial Disputes Act, indeed special examination which unfortunately Labour Court has missed. The Labour Court has all along proceeded at the footing that the workman had been engaged as an unskilled labour and was required to discharge its duties as such for carrying the equipments for land measurement etc., even if were so, the same would not prevent the Court from examining the plea of continuous employee since the year 1998. Interregnum factum of termination and reinstatement, even if taken into consideration, they are also after reinstatement. The workman's continuous service could not have been ignored so as to deny him the equal treatment. There are various aspects which required appropriate appreciation in light of the provisions of Industrial Disputes Act. The employer is not permitted to perpetuate the employer of workman on the tenterhook uncertainty daily wager, in case, if the work is perennial nature and there exists sufficient vacancy and withheld to carry out the work. 9. In this view of the matter, the court at this stage, need not to go into other aspects but the Court has to come to the conclusion that the Labour Court approached in not addressing itself the Rules questioned, merits consideration, which persuade this Court for quashing and setting aside the award impugned in this petition and issue directions to the Court for deciding the case afresh remanding the matter back to the Labour Court. 10. This Court is of the considered view that as the matter i.e. Demand Reference Case, is of the year 2003, and all material are available on record, the same shall be decided as expeditiously as possible preferably within a period of six months from the date of receipt of this order. The petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.