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Gujarat High Court · body

2018 DIGILAW 1210 (GUJ)

Anilkumar M Soni v. State of Gujarat

2018-10-23

A.S.SUPEHIA

body2018
JUDGMENT : 1. By way of the present writ petition, the petitioner challenges the action of the respondent authorities appointing the respondent No.3 on the post of Assistant Commissioner of Labour (Class-I). 2. The facts relevant for deciding the present petition are adumbrated as under: 2.1 The petitioner joined service of the Food Corporation of India (FCI) on 19.12.1985 and had continued with the FCI till 30.11.1998. The petitioner left the FCI pursuant to his appointment on the post of Government Labour Officer, after his direct selection through the Gujarat Public Service Commission (GPSC) on 01.12.1998. Since then, the petitioner has been working as the Government Labour Officer. 2.2 An advertisement was issued by the respondent-GPSC on 27.5.09, inviting applications for appointment on the post of Assistant Commissioner of Labour (Class-I). In all, four posts were advertised, out of which two posts were for the general category candidates and two posts were reserved for the Socially and Educationally Backward Classes candidates. The appointment on the post of Assistant Commissioner of Labour (Class-I) at the time of issuance of the said advertisement was governed by the Recruitment Rules. As per the Recruitment Rules to be eligible for appointment on the post of the Assistant Commissioner of Labour (Class-I), a candidate must have experience of about three years as a “Labour Officer” in any Government Office or industrial undertaking. 2.3 Since the petitioner was fulfilling the eligibility criteria for appointment on the said post, he applied for the same. Accordingly, the petitioner was called for personal interview vide call letter dated 05.08.2011. 2.4 Thereafter, the respondent-GPSC published result of the recruitment process in question. Vide letter dated 13.10.2011, the respondent-GPSC had informed the petitioner that his name was included at Serial No.1 in the waiting list prepared by the respondent-GPSC. 2.5 From the perusal of the result published by the respondent-GPSC, it was evident that one person, namely, Shri Ajitsinh Naransinh Dodia-respondent No.3 was placed at serial No.1 in the select list. 2.6 Upon inquiry, it was learnt that respondent no.3 does not possess the requisite experience of three years as a “Labour Officer” in the Government Office or in industrial undertaking, as mentioned in the advertisement as per the Recruitment Rules. 2.6 Upon inquiry, it was learnt that respondent no.3 does not possess the requisite experience of three years as a “Labour Officer” in the Government Office or in industrial undertaking, as mentioned in the advertisement as per the Recruitment Rules. 2.7 Learned advocate Mr.Vyas appearing for the petitioner has submitted that initially the respondent No.3 was working with Videocon Narmada Glass on the post of Officer, Personnel & Administration, from 10.04.2000 to 29.01.2005. Thereafter, respondent No.3 was appointed as a Senior Officer, Personnel & Administration (P & A) and was subsequently appointed as Manager (Human Capital & General Affairs) and was thereafter, promoted as Senior Manager (Human Capital & General affairs) with Welspun Corporation Limited, where he worked upto September, 2010. Thus, he has submitted that the aforesaid documents reveal that the respondent No.3 does not possess the requisite experience of “Labour Officer” in any Government Office or industrial undertaking. 2.8 Mr.Vyas has further contended that the respondent-GPSC has not considered the case of 14 other candidates who did not possess the requisite experience of Labour Officer. Out of the said 14 candidates, even the cases of the candidates possessing similar experience as that of respondent No.3 have also not been taken into consideration by the respondent-GPSC on its own. However, the petitioner was not supplied the information in this regard by the respondent-GPSC in spite of the request of the petitioner. Shri Shailesh Modi and Ms. Ishita Trivedi are such candidates whose experience was not considered by the respondent-GPSC. In case of the said two candidates, in the application forms for appointment on the post in question, in the column of the post held by them, they had mentioned their post as Senior Manager (H.R.) and Assistant Manager (H.R.) respectively and, therefore, the same were not considered by the respondent authorities since their experience was not in accordance with the Recruitment Rules. Under the circumstances, it is the case of the petitioner that had respondent No.3 given the correct facts regarding the post held by him, he would not have been called even for personal interview. Under the circumstances, it is the case of the petitioner that had respondent No.3 given the correct facts regarding the post held by him, he would not have been called even for personal interview. 2.9 Detailed representations were made by the petitioner to the respondent authorities bringing on record all the above facts along with the supporting documents, however, no response was received from the respondent authorities and on the other hand the respondent authorities issued appointment order to respondent No.3 on the post of Assistant Commissioner of Labour (Class-I). Being aggrieved by the said action of the respondent authorities, the petitioner has approached this court seeking the aforementioned relief. 3. Learned advocate Mr. Vyas appearing on behalf of the petitioner has submitted that by considering the case of respondent No.3 for appointment on the post in question, the respondent authorities have given a complete goby to the Recruitment Rules for appointment on the post in question. It is settled position of law that no recruitment can be made de hors the Recruitment Rules and, therefore, the action of the respondent authorities is also against the settled position of law and hence, the indulgence of this court is sought for. 3.1 Learned advocate for the petitioner submitted that even if it is believed that respondent No.3 was designated as “Welfare Officer” then also the Recruitment Rules as well as the advertisement provide for the experience as a “Labour Officer” and not as a “Welfare Officer”. Thus, the socalled experience of respondent No.3 as “Welfare Officer”, even if believed to be true, could not have been taken into consideration by the respondent authorities for appointment of respondent No.3 on the post in question, more particularly in view of the specific provision made in the Recruitment Rules, as reflected in the advertisement, which provides for experience as a “Labour Officer” and not as a “Welfare Officer.” 3.2 Learned advocate for the petitioner submitted that the “Welfare Officer” is mainly required to act in furtherance of the welfare of laborers in an industrial undertaking. The appointment of a Welfare Officer is governed by statutory Recruitment Rules known as the Welfare Officers (Recruitment and Conditions of Service) (Gujarat) Rules, 1963 (“the Rules” for short), wherein the duties required to be performed by a “Welfare Officer” are contained in Rule 7 thereof. The appointment of a Welfare Officer is governed by statutory Recruitment Rules known as the Welfare Officers (Recruitment and Conditions of Service) (Gujarat) Rules, 1963 (“the Rules” for short), wherein the duties required to be performed by a “Welfare Officer” are contained in Rule 7 thereof. Rule 7(A)(1)specifically provides as under: “7A: Non Performance of other duties: (1) No Welfare Officer, Additional Welfare Officer or an Assistant Welfare Officer shall deal with any disciplinary case against a worker, or appear before the Conciliation Officer, or in Courts or Tribunals on behalf of the factory management against a worker or workers.” 3.3 Learned advocate for the petitioner also submitted that respondent No.3, who claims to have worked as “Welfare Officer” has done the acts which are in gross contravention of the above referred rules. Not only respondent No.3 has remained present before the courts/ tribunals in the disciplinary matters against the workmen but he has also actively participated in the said proceedings against the workers at the instance of the authorities of the industrial undertakings. The specific instances in this regard, which are in gross contravention of the above referred Rule 7(A) are as under: “(i) The respondent No.3 has appeared against the workers in innumerable cases before the Labour Court, Industrial Tribunal, on behalf of the factory management; (ii) The respondent No.3 has dealt with the disciplinary case against the workers by issuing them show cause notices on behalf of the management; (iii) The respondent No.3 has even appeared before the conciliation officer on behalf of the management against the worker.” 3.4 Learned advocate for the petitioner submitted that respondent No.3, who claims to have worked as a “Welfare Officer” has done all the acts which were expressly prohibited to be done by a “Welfare Officer” according to Rule 7(A) of the Rules. Under the circumstances, the claim of respondent No.3 that he has worked as a “Welfare Officer” is absolutely false and frivolous. 3.5 Learned advocate for the petitioner submitted that from the documents produced with the petition, it is evident that respondent No.3 has worked with Videocon Narmada Glass in the post of Officer, Personnel & Administration, from 10.04.2000 to 29.04.2005. Under the circumstances, the claim of respondent No.3 that he has worked as a “Welfare Officer” is absolutely false and frivolous. 3.5 Learned advocate for the petitioner submitted that from the documents produced with the petition, it is evident that respondent No.3 has worked with Videocon Narmada Glass in the post of Officer, Personnel & Administration, from 10.04.2000 to 29.04.2005. Thereafter, respondent No.3 was appointed as Senior Officer, Personnel & Administration (P & A) and was subsequently appointed as Manager (Human Capital & General Affairs) and was thereafter promoted as Senior Manager (Human Capital & General Affairs) with Welspun Corporation Limited, where he had worked upto September, 2010. 3.6 Learned advocate for the petitioner further contended that the action of respondent No.3 is in gross contravention of the Recruitment Rules of the “Welfare Officer” and he has undertaken all the acts which were expressly prohibited by the said Rules to be performed by a Welfare Officer. Thus, merely because respondent No.3 is shown as a “Welfare Officer” in the Annual Returns, only with a view to project before the Government authorities that the mandatory provisions are complied with by the company, it cannot be said that respondent No.3 was in fact working as a “Welfare Officer.” Learned advocate further submitted that in fact respondent No.3 has worked against the welfare of the interest of the workmen that too contrary to the specific rules in this regard and, therefore, the contention of respondent No.3 that he has worked as Welfare Office cannot be accepted. 3.7 Learned advocate for the petitioner submitted that based on the representation made by the petitioner, the respondent authorities had conducted an inquiry through the Deputy Labour Commissioner, Baroda Region, Baroda. In the inquiry report submitted by the Inquiry Officer, it has been specifically stated that the experience of the respondent No.3 in Videocon Narmada Glass cannot be taken into consideration. In the inquiry report submitted by the Inquiry Officer, it has been specifically stated that the experience of the respondent No.3 in Videocon Narmada Glass cannot be taken into consideration. From the documents obtained by the Inquiry Officer i.e. the Deputy Commissioner of Labour from the said two companies and which are enclosed with the said report, the same supports the contention of the petitioner that respondent No.3 was appointed and designated as “Officer, Personnel & Administration” with the Videocon Narmada Glass, from 10.04.2000 to 29.01.2005 and was thereafter appointed and designated as Senior Officer, Personnel & Administration (P & A) and was subsequently appointed Manager (Human Capital & General Affairs) and was thereafter promoted as Senior Manager (Human Capital & General Affairs) with Welspun Corporation Limited. 3.8 Learned advocate for the petitioner submitted that so far as the experience of the respondent No.3 in Welspun Corporation Limited is concerned, from the perusal of the documents attached to the said report, it would be very much evident that the appointment of the respondent No.3 was not on the post of “Welfare Officer”. However, the Deputy Commissioner Labour, has grossly erred in considering the experience of respondent No.3 on the post of Welfare Officer merely on the basis of the alleged intimation letter addressed to the Deputy Director, Industrial Safety and Health, Bharuch, which also does not appear to be a genuine document. Thus, the Deputy Commissioner of Labour has relied on the documents given by the private company at the behest of respondent No.3 and has failed to verify the corresponding record of the Government. Learned advocate submitted that even the respondent-GPSC has rightly not considered the said experience of respondent No.3 in Welspun Corporation Limited for calling him for personal interview. 3.9 Learned advocate for the petitioner submitted that based on the said report, the Commissioner of Labour, Gujarat State, had submitted a report to the Government, wherein it has been specifically pointed out that respondent No.3 has not worked as “Labour Officer” and whether the experience of the Welfare Officer can be considered or not shall be decided in consultation with the respondent-GPSC by the department. 4. Learned advocate Mr.Shukla appearing for the respondent No.2-GPSC has submitted that respondent No.3 has been appointed while considering his experience as per the Rules and no illegality has been committed by the respondent-GPSC in this regard. 4. Learned advocate Mr.Shukla appearing for the respondent No.2-GPSC has submitted that respondent No.3 has been appointed while considering his experience as per the Rules and no illegality has been committed by the respondent-GPSC in this regard. He has submitted that the officers working under the industrial undertakings have different nomenclatures, and it is not mandatory that the designation of the Welfare Officer in the State Government as well as industrial undertakings should be common. 5. Learned advocate Mr.Kashyap Joshi appearing for the respondent No.3 has submitted that respondent No.3 was having the requisite experience for the post of “Welfare Officer” and, therefore, the appointment of respondent No.3 on the post of Assistant Commissioner of Labour (Class-I) is in accordance with law. He has submitted that generally, the employees, who have covered under the statutory designation under the Factories Act, 1948 i.e. occupier, factory manager, welfare officer, safety officer and medical officer have both designations i.e. statutory designation as well as pay scale designation but mostly known by his/her pay scale designation and the same does not mean that they have not been working as their statutory designation. He has submitted that as per the duties of “Welfare Officer” defined under section 7 of the Rules, the “Welfare Officer” has not been defined therein. He has further submitted that besides, the petitioner is unnecessarily harping upon Rule 7A(1) of the Rules, which prescribes the 'Nonperformance of other duties'. It was submitted that this rule only states that Welfare Officer should not deal with any disciplinary case against a worker or should not appear before a conciliation officer or in courts or tribunals on behalf of the factory management against a worker or workers. 5.1 Learned advocate for respondent No.3 further submitted that the aforesaid bar or prohibition does not expressly or impliedly disqualify the person who was working on the post of 'Welfare Officer'. The rule only says – what should not be performed, but does not debar his status as 'Welfare Officer'. It was further submitted that moreover, Rule 7A(2) of the Rules stipulates that in such cases 'the Chief Inspector of Factories may, by an order in writing direct that such Welfare Officer, as the case may be, shall not be required or permitted to do such work. It was further submitted that moreover, Rule 7A(2) of the Rules stipulates that in such cases 'the Chief Inspector of Factories may, by an order in writing direct that such Welfare Officer, as the case may be, shall not be required or permitted to do such work. It was submitted that in the present case, nothing was happened contrary to the duties and, therefore, there was not a single complaint in respect of any of the functioned carried out by respondent No.3 during his entire tenure as a Welfare Officer. It was submitted that the socalled prohibition for performance of certain other duties was never become hindrance in the statutory duties of respondent No.3 as a Welfare Officer. 5.2 Learned advocate for the respondent No.3 further submitted that besides, it is pertinent to note that the word “Labour Officer” is defined under section 3(22) in Chapter 2 (Authorities to be constituted or appointed under this Act) of Bombay Industrial Act, 1946. It was submitted that as per Section 8 of the said Act, the State Government may, by notification in the Official Gazette, appoint Labour Officers for any local area or areas. Thus, the designation of “Labour Officer” has limited jurisdiction in Gujarat and Maharashtra State only and also limited to the Government post only and not for the Industrial Establishments. 5.3 Learned advocate for respondent No.3 further submitted that Rule 11 of the Gujarat Motor Transport Workers Rules, 1965 contains qualification of Inspector and accordingly subrule 2(c), any degree-holder from recognized University, who have worked in any industrial organization or Government Department as Labour or Welfare Officer for not less than two years can be appointed as Inspector. It was therefore, contended that the Government has been treated both designations i.e. “Welfare Officer” as well as “Labour Officer” equally. It was submitted that with regard to the function of a Welfare Officer, which respondent No.3 had performed during his tenure at Videocon Industries Limited, Chavaj and Welspun Corporation Limited, Vadadla. It was submitted that both unions are single bargaining agents and duly recognized by the management of Videocon Narmada Glass and Welspun Corporation Limited respectively from day one, for each and every settlement / agreement on behalf of the entire workforce. 6. Having heard the learned advocates for respective parties, this court has perused the documents annexed with the writ petition. 7. 6. Having heard the learned advocates for respective parties, this court has perused the documents annexed with the writ petition. 7. The case of the petitioner is that respondent No.3 does not possess the requisite experience of Labour Welfare Officer, as prescribed under the Recruitment Rules. As per the Recruitment Rules, for appointment by direct selection to the post of Assistant Commissioner of Labour, a candidate must possess 03 (three) years experience as a “Labour Officer” in the Government Office or in an industrial undertakings. It is pertinent to note that a report dated 08.12.2011 was filed by the Labour Commissioner, State Government, Gandhinagar in this regard, and the same was intimated to the Deputy Secretary, Labour and Welfare Department in the context of the experience of respondent No.3. As per the report, the experience of respondent No.3 in the industrial undertaking of the Videocon Narmada Glass cannot be considered for the purpose of recruitment for the post of Assistant Commissioner of Labour, whereas the experience of respondent No.3 in Welspun Corporation Limited can be considered for the purpose of appointment. It is also mentioned that respondent No.3 had worked for four years as a Labour Welfare Officer. It is specifically noted that respondent No.3 worked as Welfare Officer for four years and such experience can be considered after consultation with the respondent-GPSC. 8. It appears that the respondent No.3 has produced the requisite experience certificate of Welspun Corporation Limited, which shows that he was designated as an “Officer, Personnel and Administration Department” between 10.04.2000 to 29.01.2005. In the considered opinion of this court, the designation of the “Labour Welfare Officer” in the State Government would be at variance from the industrial undertakings. An industrial undertaking may adopt a different nomenclature for Labour Officer though the work done by both the officers may be identical. An industrial undertaking may not strictly designate an officer as a “Labour Officer” in terms with the government department. In the present case, the respondent no.3 was designated as “Officer, Personnel and Administration Department”by the industrial undertaking in which he was serving, and he was doing all the duties akin to Labour Officer of a state government department. Thus, the difference in the designation would not suggest that respondent No.3 was not having any experience as a “Labour Welfare Officer”. Thus, the difference in the designation would not suggest that respondent No.3 was not having any experience as a “Labour Welfare Officer”. The report dated 08.12.2011 filed by the Labour Commissioner, State Government, Gandhinagar, in favour of the respondent no.3 treating his experience as a “Welfare officer” at par with “Labour Welfare officer” has not been challenged by the petitioner. Thus, no error has been committed by the respondent authorities in appointing the respondent no.3 to the post of Assistant Commissioner of Labour. 9. Reliance placed by the learned advocate appearing on behalf of the petitioner on various orders, wherein the presence of the respondent No.3 has been noted by the Labour Court and Industrial Tribunal, cannot come to the rescue of the petitioner, since a perusal of the same would show that respondent No.3 appeared on behalf of Welspun Corporation, in the settlements between the concerned workmen as well as the industrial undertaking. The duties of the “Welfare Officer” are defined under Rule 7(A) of the Welfare Officer (Recruitment and Conditions of Service) (Gujarat) Rules, 1963. Rule 7 stipulates that the “Welfare Officer” shall establish contacts and hold consultation with a view to maintaining harmonious relation between the factory management and the workers. There are various departments enumerated under Rule 7 of the Rules which include various measures which will serve to raise standard of living of workers and general promote their wellbeing, and relation between the factory management and the workers, to advise workers against going on illegal strikes, to bring to the notice of workers their rights and liabilities under the standing orders. Thus, respondent No.3 was serving under the Personnel and Administration Department and was performing his duties while appearing in the settlement. Pursuant to the aforesaid settlements, the Industrial Tribunals/Labour Courts passed the awards. In the considered opinion of this court, respondent No.3 cannot be said to have acted contrary to the Rule 7(A) of the Welfare Officer (Recruitment and Conditions of Service)(Gujarat) Rules, 1963. 10. In view of the aforesaid analysis and observations, the present petition fails and the same stands dismissed. RULE is discharged with no order as to costs.