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2018 DIGILAW 2361 (BOM)

Union of India v. Panchu S. Sutar

2018-09-28

SADHANA S.JADHAV

body2018
JUDGMENT : Sadhana S. Jadhav, J. Writ Petition No. 4121 of 2001 : 1. The petitioner herein challenges the award dated 21st June, 1999 passed by the Presiding Officer of the Central Government Industrial Tribunal No. II in Reference No. CGIT/2/105 of 1998 directing the petitioner-Employer to regularise the services of the respondent-workman, who is the petitioner in Writ Petition No. 6794 of 2009. The respondent-workman was working as a Driver continuously in the Pay-Scale of Rs. 950/- to Rs. 1,500/-. He was treated as a worker, employed on contract on receipt of Work Orders. The respondent-workman was employed by the Executive Engineer, C.P.W.D., Navi Mumbai in the capacity of Motor Lorry Driver w.e.f. 27th May, 1991. He was in continuous services of the respondent in its Navi Mumbai Central Division. The respondent-workman was deprived of benefits available to the regular workman and was subjected to discriminatory treatment and therefore had raised the industrial dispute. 2. The Industrial Tribunal No. II passed an award on 21st June, 1999 directing the petitioner-employer to regularise the services of the respondent-workman from the date of availability of the vacancy. The respondent-workman was continued in his services. The order dated 21st June, 1999 was challenged by the employer by filing Writ Petition No. 4121 of 2001. The petition was admitted vide order dated 3rd April, 2002 and there was interim relief in terms of prayer clause (b) and the enforcement of the impugned order dated 21st June, 1999 was stayed by this Court. Therefore, the petitioner-employer had terminated the services of the respondent-workman by its order dated 30th March, 2001 w.e.f. 1st April, 2001. 3. It is pertinent to note that the services of the petitioner in Writ Petition No. 6794 of 2009 were terminated two days prior to the hearing of Writ Petition No. 4121 of 2001. 4. The 'Workman' had therefore raised an industrial dispute seeking reinstatement in services from 1st April, 2001 before the Assistant Labour Commissioner, Central Mumbai. The establishment had refused to settle the demand on the ground that there is a ban for recruitment. The Assistant Labour Commissioner had therefore forwarded the Failure and Conciliation Report vide communication dated 18th January, 2002 and the dispute was referred for adjudication to Industrial Tribunal. The establishment had refused to settle the demand on the ground that there is a ban for recruitment. The Assistant Labour Commissioner had therefore forwarded the Failure and Conciliation Report vide communication dated 18th January, 2002 and the dispute was referred for adjudication to Industrial Tribunal. The Statement of Claim was filed on 8th October, 2002 and the written statement was filed on 5th December, 2002 stating that the respondent was given work on contract basis and the contract was discontinued w.e.f. 1st April, 2001 and since there is no employer-employee relationship, the petition would not be maintainable. 5. Needless to say that the Workman was in continuous services from 27th May, 1991 atleast till 1st April, 2001. In fact the order dated 21st June, 1999 was challenged only after two years without there being any plausible explanation for not obeying the order and neither challenging the same before the High Court. Moreover the workman was terminated even prior to the admission and grant of relief in Writ Petition No. 4121 of 2001. 6. It is the contention of the petitioner-employer in Writ Petition No. 4121 of 2001 that the workman did not have requisite qualification and experience as laid down in C.P.W.D. Manual for Recruitment of Motor Lorry Drivers, which requires 5 years driving experience of which atleast 3 years should be of driving of heavy motor vehicles. It is contended that the workman was driving a Jeep, which is a light vehicle and was engaged on contract and therefore he was not entitled to get the benefits of leave, LTC, Medical, increments etc. It is also contended that the judgment of the Hon'ble Apex Court in the case of Surinder Singh and Anr. vs. Engineer-in-Chief, C.P.W.D. and another, reported in AIR 1986 SC 584 was not applicable to the case of the workman as it was applicable for Motor Lorry Drivers and not to the drivers, who are engaged on contract for driving jeeps and cars, which are the light vehicles. It is also contended that there was no post of Jeep Driver in the organisation and no such requirement as to qualification were prescribed for jeep driver in the setup of the organisation and therefore the workman could not have claimed parity with the Motor Lorry Drivers. 7. It is also contended that there was no post of Jeep Driver in the organisation and no such requirement as to qualification were prescribed for jeep driver in the setup of the organisation and therefore the workman could not have claimed parity with the Motor Lorry Drivers. 7. It is pertinent to note that in the said organisation, no lorries were available even on the date of appointment of Motor Lorry Drivers. That the workman was appointed along with 7 other Motor Lorry Drivers. That by letter dated 6th March, 1997, the Superintending Engineer (Coord.), Circle, CPWD, Mumbai had communicated to the Chief Engineer (WZI), CPWD, Mumbai that the matter of regularisation of Motor Lorry Drivers is pending before the Minister of Urban Affairs and that in the meantime, the proposal for change of designation of the posts is necessary and that the Chief Engineer, C.P.W.D., Mumbai has reminded the Director General (Works), New Delhi that the workers are already deployed as Motor Lorry Drivers, only formal order awaited from Director General (Works) and that in case of the change of designation decided by the Director General, there would be no vacancy in the post of Motor Lorry Driver. 8. All that is contended by the learned counsel for the petitioner in Writ Petition No. 4121 of 2001 is that the workman was not having the experience of driving Motor Lorry and therefore the impugned order needs to be set aside. 9. It is pertinent to note that Hiralal Mishra did not hold the licence as a Motor Lorry Driver, whereas the present workman had Motor Lorry Driver's Licence No. 87C21/92, which was valid upto 22nd June, 1996. The case of regularisation was under consideration. The workman was initially engaged on Work Order basis as stopgap arrangement till regular Motor Lorry drivers are recruited. There were no posts of motor lorry drivers as there were no lorries available and therefore all drivers were driving the Jeeps. Learned counsel for the respondent submits that this act on the part of the petitioner is violative of Article 14 of the Constitution of India. There were no posts of motor lorry drivers as there were no lorries available and therefore all drivers were driving the Jeeps. Learned counsel for the respondent submits that this act on the part of the petitioner is violative of Article 14 of the Constitution of India. Learned counsel for the respondent has also drawn attention of this Court to the recommendation by the Executive Engineer dated 4th November, 1993, wherein the Executive Engineer while considering the claim on behalf of the workmen for regularisation of their services as Motor Lorry Drivers had communicated to the Superintending Engineer (Coordination) as follows: "At present he is driving vehicle No. 4259 as Shri. Arif Khan, MLD is under suspension orders. As seen from the records of this office, the performance of MLD, Shri P.S. Suthar is very good and satisfactory. His case for recruitment as MLD is fully justified." As far as Hiralal Mishra is concerned, the remarks were that "his performance is very good and the case for recruitment as MLD being S.C. category is fully justified. Mr. Hiralal Mishra was transferred to Superintending Engineer, Ahmedabad Central Circle. The same remarks were given in respect of Mr. Chedilal, Motor Lorry Driver. It is, in these circumstances that the learned counsel for the respondent is justified in submitting that the case of the Workman was considered and he was recommended to be recruited as M.L.D. after observing his performance from 27th May, 1991 and at that time also, no objection was raised that he does not possess experience as a Motor Lorry Driver. 10. It is also rightly submitted that the post to which the workman was appointed was named as Motor Lorry Driver and the duties were driving motor vehicles of all the descriptions both light and heavy including running, repairs and adjustments. In fact, it is a matter of record that there is no separate category of drivers in the department, such as a car drivers, jeep drivers and motor lorry drivers and pay-scale of all the drivers irrespective of the vehicle, he is driving is the same. 11. Learned counsel for the petitioner in W.P. No. 6794 of 2009 submits that the ban on recruitment since 1994 would not be applicable to the case of the present petitioner since he was appointed prior to 1995. 11. Learned counsel for the petitioner in W.P. No. 6794 of 2009 submits that the ban on recruitment since 1994 would not be applicable to the case of the present petitioner since he was appointed prior to 1995. It appears that in the conciliation proceedings held on 17th January, 2002, the workman was not reinstated on the ground that there was a ban on recruitment. 12. In view of the orders dated 16th June, 2004 and 17th August 2004 passed by this Court in Writ Petition No. 401 of 2004 filed by the C.P.W.D., the department had regularised the services of nine Motor Lorry Drivers covered in three awards dated 16th January, 1998, 29th July, 2002 and 30th July, 2002 and had regularised the services from 1st January, 2004. It was observed by the Division Bench that the vacancies in the grade of "MLD" both in promotion and direct recruitment quoted had not been filled for several years and in view of the C.G.I.T. order, they have to permit the concerned workers to function as MLDs, driving the vehicle of the Division/Circles and that being the position, it will be in the interest of natural justice to allow all the benefits to them, which are available to MLDs performing the same duties. It was also observed that the non-action on the part of the respondents in not regularising the workers cannot be countenanced. That the award dated 21st June, 1999 passed in the case of the workmen i.e. the respondents in Writ Petition No. 4121 of 2001, the award dated 21st June, 1999 has not been implemented. It is, in these circumstances that Writ Petition No. 6794 of 2009 deserves to be allowed in terms of prayer clause (a). 13. The order passed by the Presiding Officer, C.G.I.T. Court No. 2, Mumbai dated 4th March, 2009 in Reference No. CGIT/2/66 of 2002 is hereby quashed and set aside. 14. The respondent shall reinstate and issue Work Order to the Motor Lorry Driver, Mr. P.S. Suthar on/or before 30th November, 2018. 15. The Management shall regularise his services as per award dated 21st June, 1999 and from the date of award i.e. 21st June, 1999. 16. Rule is made absolute in above terms. 17. In view of the judgment and order passed in Writ Petition No. 6794 of 2009, the Writ Petition No. 4121 of 2001 is dismissed.