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2020 DIGILAW 126 (GUJ)

Tankara Taluka Panchayat v. Jorubha Najbhai Gida

2020-01-22

SONIA GOKANI

body2020
JUDGMENT : 1. Both these petitions are taken up for hearing together and being disposed of by this common judgment, as they are arising from the Reference (IT) No.107 of 2011 decided on dated 13.04.2017 preferred before the Industrial Tribunal, Rajkot. 2. The petitioner Taluka Panchayat employee preferred the petition under Article 226 and 227 of the Constitution of India challenging the judgment and award of the Industrial Court, wherein the petition filed by an employee – respondent workman is under Article 226 of the Constitution of India, where the prayers sought for are to the effect that the employer is denying the benefit of equality of pay and exploiting the petitioner and its act is as unjust, arbitrary, illegal and violative act under Article 14 and 16 of the Constitution of India and the employee is also entitled to minimum pay scale with permissible allowances payable to the driver working under the employer. 2.1 The Court deem it appropriate to decide both of them together by addressing the Taluka Development Officer as petitioner employer and employee Jorubha Najbhai Gida as respondent. 3. The Court has passed following order on 09.01.2020 and the petitioner has been directed to disclose the details of last centralized recruitment carried out by them; “1. The petitioner herein Tankara Taluka Panchayat is a Body duly constituted under the provisions of Gujarat Panchayat Act, 1993. It challenges the judgment and award dated 13.93.2017 delivered by the Industrial Tribunal in Reference (IT) No.107 of 2011, whereby it directed the petitioner to regularise the service of respondent No.1 w.e.f. 03.05.2002 and fixed his salary accordingly on notional basis and pay him the actual benefits with w.e.f. 13.04.2017. 2. Respondent No.1 as per his school leaving certificate was born on 01.06.1971. He was offered work as a daily wage driver w.e.f. 03.05.2001 and continue to serve as per the administrative requirement from 03.05.2001 till date. 3. One post of peon-cum-driver is sanctioned by the Development Commissioner, Gujarat State, Gandhinagar for Tankara Taluka Panchayat and the same is lying vacant. The services of respondent No.1 were availed on daily wage basis. The jeep was also allotted by the Government of Gujarat on 28.04.2002 and in absence of any regular driver duly posted by the competent authority of the Rajkot District Panchayat, the services of respondent No.1 continued on a daily waged basis. 4. The services of respondent No.1 were availed on daily wage basis. The jeep was also allotted by the Government of Gujarat on 28.04.2002 and in absence of any regular driver duly posted by the competent authority of the Rajkot District Panchayat, the services of respondent No.1 continued on a daily waged basis. 4. He approached the Industrial Tribunal by filing the Reference (IT) No.107 of 2011 praying for regularisation in service on completion of 240 days every year with all consequential benefits. 5. After availing opportunities to the parties, the Industrial Tribunal allowed the said Reference in favour of the respondent workman and therefore, the present petition. 6. According to the petitioner-panchayat, the respondent recruitment was not in accordance with the recruitment rules. It is centralize recruitment at the level of the District Panchayat. It is not being disputed that there is one sanctioned post of peon cum driver, which has not been filled in all these years. The petitioner, therefore, is before this Court with the following prayers: “9... (A) Be pleased to admit the present Special Civil Application; (B) Be pleased to allow this Special Civil Application by way of passing appropriate orders, writ, mandamus or writ or directions quashing and setting aside the Award dated 13.04.2017 delivered by the Hon'ble Industrial Tribunal in Reference (IT) No.107 of 2011, annexed as Annexure F by way of holding that the same are illegal, unjust, arbitrary and contrary to the facts and materials on record as well as the provisions of Industrial Disputes Act, 1947 in the interest of justice. (C) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to grant interim relief by way of staying the implementation, execution and operation of the impugned Award dated 13.04.2017 delivered by the Hon'ble Industrial Tribunal in Reference (IT) No.107 of 2011, annexed as Annexure-F in the interest of justice. (D) Be pleased to pass such other and further orders as the nature of the case may be required and the Honourable Court may deem thought fit to pass such order.” 7. This Court has heard the learned advocate, Mr.H.S.Munshaw appearing for the petitioner, who does not dispute that respondent No.1 continued to serve the Taluka Panchayat from 03.05.2001, when he was taken up as a daily waged driver. His efficiency and regularity also is not being questioned. This Court has heard the learned advocate, Mr.H.S.Munshaw appearing for the petitioner, who does not dispute that respondent No.1 continued to serve the Taluka Panchayat from 03.05.2001, when he was taken up as a daily waged driver. His efficiency and regularity also is not being questioned. However, he has seriously challenged the grant of regularisation by the Tribunal on the ground that the regular and permanent post is to be filled in by the Morbi District Panchayat, which was formerly Rajkot District Panchayat as per the recruitment rules for the cadre of driver. His grievance is also to an effect that the services of respondent No.1 cannot be regularised without following the due procedure of recruitment. The Tribunal has disregarded the settled principles of law and therefore, the award is contrary to several judgments of the Apex Court. It is pointed out to this Court that Special Civil Application No.9458 of 2006 was also preferred by respondent No.1 and the same was disposed of granting him permission to raise the industrial dispute on 12.10.2004. 8. It is also further grievance on the part of the Panchayat that the regularisation of service has been made w.e.f. 03.05.2002 within a period of 01 year of his service as a daily wager. This grant of regularisation is completely contrary to the law on the subject. 9. The Court erred in holding and observing that the continuing 16 years of service as a daily wager is a discriminatory practice. 10. Learned advocate, Mr.Kamani appearing with learned advocate, Mr.Pathak has urged that he has rendered the spotless service from the year 2001 and the Court has regarded the oral as well as documentary evidences to hold in favour of respondent No.1. To continue somebody on the very post without availing any benefit is rightly held to be contrary to Section 2 (r)(a) r/w scheduled 5 and item No.10 of the Industrial Dispute Act. It is also rightly held to be prohibitory under Section 25 T of the Industrial Tribunal Act. If no post has been advertised for making the person permanent and if the Court on a detail consideration has directed the regularisation of the post when the sanctioned post is available, no interference is desirable. Various decisions are pressed into service to hold that ordinarily this Court need not exercise its jurisdiction interfering with the award which is legally tenable. 11. Various decisions are pressed into service to hold that ordinarily this Court need not exercise its jurisdiction interfering with the award which is legally tenable. 11. In rejoinder, learned advocate, Mr.H.S.Munshaw has admitted that the amount which is being paid to the respondent is of what has been given to the daily wager and no other benefits have been made available to him till date. 12. Learned advocate, Mr.Kamani has also fairly submitted that the Court may appropriately consider the year of regularisation bearing in mind the fact that he has joined the services in the year 2001. At this stage, it would be desirable for the Court to know since there is a centralized recruitment process followed by the District Panchayat to know as to whether at any stage from the year 2001, the process of recruitment at a centralized level had been conducted by the Rajkot District Panchayat or Morbi District Panchayat as the case may be. He shall also let the Court know of the fact whether there is any increase in sanctioned post or driver in these 20 years, not only at a level of Taluka Panchayat, but also at a District Panchayat level. 13. The matter is being posted for apprising the Court on this limited aspect on 17.01.2020. To be listed in the first ten matters.” 4. An affidavit filed pursuant to the said order by the Taluka Development Officer states that respondent No.1 was engaged on 03.05.2001 as a regular and permanent employee in the cadre of driver. However, he was not posted by the District Development Officer, Rajkot District Panchayat as competent authority. It also states that cadre of driver is a district wise cadre and is controlled and administered by the District Development Officer. 4.1 It is to be noted at this stage that now the respondent No.1 will be governed by Morbi District Panchayat since Morbi has been given a status of the district and notification to that effect was issued on 09.12.2014 and the District Panchayat has came into existence from the year 2015. 4.2 The present petitioner was having one vehicle being Bollaro Jeep bearing registration No. GJ 03 GA 0368, which was driven by respondent No.1 as a daily wager driver. 4.2 The present petitioner was having one vehicle being Bollaro Jeep bearing registration No. GJ 03 GA 0368, which was driven by respondent No.1 as a daily wager driver. 4.4 It is also submitted that the sanctioned set up of the cadre of driver is 103 in Rajkot District Panchayat and 32 in Morbi District Panchayat. They are required to be filled up by the centralized recruitment process as per the Recruitment Rules framed by the Government of Gujarat through the Panchayats and Rural Housing Department and the District Panchayat Service Selection Committee has to undertake the very process of recruitment. However, as per the policy of the State Government the service of the oursourcing agency is taken. It is the say of the officer that the petitioner is paying to the respondent Rs.559.70 ps. per day as a daily wager. 5. Thus, it can be clearly made out that no recruitment has taken place from the year 2001. The respondent otherwise has continued to work all these years without any opportunity to participate in recruitment process. It can also be noticed that he is being paid as a daily wager all through out and has not been availed the benefits of Government Resolution dated 17.10.1988, which has already been made applicable to the employees of the Panchayat. It is not being disputed by learned advocate Mr. Munshaw that various decision rendered by this Court and the Apex Court unequivocally applied the Government Resolution dated 17.10.1988 to the employees of the Panchayat. Thus noticing practice of continuing the respondent as a daily wager, without giving him opportunity to become permanent and with no recruitment having been undertaken in last two decades to fill up sanctioned posts, the Court sees no reason to interfere with the impugned order passed by the Industrial Tribunal in Reference (IT) No. 107 of 2011. The tribunal has given very cogent and convincing reasons based on the strength of oral as well as documentary evidence and unmistakably and aptly granted reliefs to the respondent. 6. At this stage, the decision rendered in case of Shalini Shyam Shetty and Anr. The tribunal has given very cogent and convincing reasons based on the strength of oral as well as documentary evidence and unmistakably and aptly granted reliefs to the respondent. 6. At this stage, the decision rendered in case of Shalini Shyam Shetty and Anr. v. Rajendra Shankar Patil reported in 2010 AIR SCW 6387 deserves reference wherein the Apex Court on considering the conspectus of law under Article 226 and 227 of the Constitution of India has laid down and reiterate the ambit and scope of invoking supervisory jurisdiction under Article 227 of the Constitution of India. “62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated : (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of Tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of Appeal over the orders of Court or Tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh ( AIR 1954 SC 215 ) (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh ( AIR 1954 SC 215 ) (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the Tribunals and Courts subordinate to it, 'within the bounds of their authority'. (f) In order to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India and others, reported in (1997) 3 SCC 261 : ( AIR 1997 SC 1125 : 1997 AIR SCW 1345) and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the Tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.” 7. Having found clearly from the material on record that the Industrial Tribunal has acted within its bounds and there is a complete absence of manifest failure of justice or patent perversity in the order or gross injustice going to the root of the matter, warranting any interference by this Court, except the operative order where the tribunal has granted the benefits from the year 2002 making him permanent within one year. 8. On 03.05.2001, an appointment was made of the respondent and, therefore he could not have been made permanent from 03.05.2002 when he was a daily wager and the dispute had been raised by him, first time in the year 2011. 9. 8. On 03.05.2001, an appointment was made of the respondent and, therefore he could not have been made permanent from 03.05.2002 when he was a daily wager and the dispute had been raised by him, first time in the year 2011. 9. It is not challenged as mentioned above that the respondent would be entitled to the benefits of the Government Resolution dated 17.10.1988. 10. Noticing the regularization order from 03.05.2002 according to this Court, it is an error going to the root which deserves interference. Since the respondent has approached the Industrial Tribunal after 10 years in the year 2011, the trial Court could not have granted the regularization from 03.05.2002. Even otherwise, the claim of respondent was based on benefits available under the 18.10.1988 and, therefore also, it could be only on completion of 10 years in the service and could not have been within one year of his appointment as a daily wager. Resultantly, this limited aspect would require interference and accordingly, the following order; 10.1 The impugned judgment by the Industrial Tribunal so far as its direction to treat the respondent as regular employee and on the establishment of Panchayat is not in any manner interfered with. However, considering the reference of respondent in the year 2011 and his completion of 10 years on 03.05.2011, instead of making him permanent from 03.05.2002 the permanency and other benefits granted on the basis of the Resolution dated 17.10.1988 shall be made available to the respondent on his completion of 10 years. 10.2 Let all arrears and benefits be given to the respondent within 12 weeks from the date of receipt of copy of this order. 11. In view of above, petition is partly allowed. The judgment and award stands modified accordingly. The interim relief granted earlier stands vacated. Rule is made absolute to that extent.