Kanubhai Ambalal Vasava Deceased Through Wife and Lhs Lilaben Kanubhai Vasava v. Vadodara Mahanagar Seva Sadan
2022-10-20
BIREN VAISHNAV
body2022
DigiLaw.ai
ORDER : 1. Mr. Maulik Nanavati, learned counsel appears for and on behalf of the respondent on advance copy. 2. Heard learned advocates for the respective parties and perused the record. 3. In this petition under Article 226 of the Constitution of India, it is the case of the petitioner that he is entitled to the benefits of regularization on completion of three years of service on the date of which he completed 720 days of employment in three years with the corporation. The foundation of this relief is based on an award of an Industrial Tribunal dated 19.12.1983, by which, the Tribunal in a dispute between the workman-employee by the Vadodara Municipal Corporation and its' workmen in respect of the employees' demand to make them permanent, issued following directions : “I direct the Corporation to make permanent the Rojamdari workmen who have joined the service in 1978 and thereafter and who have completed three years of service and those who will complete three years of service in future, provided they have completed 720 days of service such time. The Corporation to pay costs of Rs.50/- to the union. Sd/- M.J. Kirpalani Secretary Sd/- G.S. Barot A'bad, dt. 19th Dec.83 Industrial Tribunal” The prayers in these petitions therefore rather than granting them the benefit which has been so granted from 27.09.2007, the regularization should be given in accordance with the directions issued by the Tribunal. 4. Mr. Beg learned counsel for the petitioners relies on a decision of this Court passed in Special Civil Application No.8287 of 2016 wherein the petitioners had comeforth for an identical relief. This Court by an order dated 10.04.2019, considered the decision of the co-ordinate bench in Special Civil Application No.10008 of 2013, which had passed the following order : “4.1 On the other hand, Mr.
This Court by an order dated 10.04.2019, considered the decision of the co-ordinate bench in Special Civil Application No.10008 of 2013, which had passed the following order : “4.1 On the other hand, Mr. Rawal, learned advocate for the contesting respondent workmen has submitted that, the concerned workmen were entitled to regularisation of service on completion of 720 days working as a daily wager in the period of three years, as per the awards passed by the Industrial Tribunal in Reference (IT) No.146 of 1976 dated 28.07.1983, and more particularly Reference (IT) No.446 of 1981 dated 19.12.1983, and the said benefit was accordingly granted also by the Corporation itself vide office order dated 02.02.2006, however the effect thereof was given from the date of issuance of order, which according to the concerned workmen, ought to have been with effect from the completion of 720 days of service as daily wager in three years, which was much earlier. It is submitted that, since the principal controversy, as to whether the concerned workmen were entitled to the said benefit or not, was already adjudicated and there was no dispute in that regard, it was that benefit, which was capable of being computed in terms of money, for which recovery applications were filed, which are allowed by the Labour Court, on the basis of evidence led before it. It is submitted that, the Labour Court has rightly granted relief, which may not be interfered with by this Court. 4.2 It is further submitted by the learned advocate for the workmen that, the office order dated 27.09.2007 passed by the Corporation itself is based on the award of the Industrial Tribunal in Reference (IT) No.446 of 1981 dated 19.12.1983. As per the said award, on completion of 720 days of employment as a daily wager in three years, the concerned workmen are held to be entitled to regularisation of service, and the said award has been consistently followed by the Corporation, in all cases. Attention of this Court is also invited to the orders passed by the Corporation from time to time in that regard and also the orders passed by this Court, including an order dated 30.08.1991 duly signed by the Municipal Commissioner, Vadodara. It is submitted that, filing of this group of petitions itself is pick and choose policy of the Corporation, which may not be entertained by this Court.
It is submitted that, filing of this group of petitions itself is pick and choose policy of the Corporation, which may not be entertained by this Court. It is submitted that, these petitions be dismissed. 5. Learned advocate for the respondent workman has also pointed out that, in some cases even no contest was put forward by the Corporation and therefore, the petitioner be not heard in those matters. To this, Mr. Pandya, learned advocate for the petitioner Corporation has submitted that, only in Special Civil Application No.11225 of 2013 it is so, but on merits all petitions are identical. On behalf of the petitioner it is submitted that, in the paper book of Special Civil Application No.10008 of 2013, all the relevant material is placed on record, and the said petition be treated as a lead matter. Learned advocate for the respondent does not have any objection to this. 6. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under. 6.1 The argument of learned advocate for the petitioner Corporation, on the procedural aspect, that the recovery applications under Section 33C(2) of the Industrial Disputes Act, 1947 were not maintainable, at the first blush, appears to be with some substance, however on closer scrutiny, it has transpired that, on merits, the say of the Corporation is not right, and even on this procedural aspect, the say does not appear to be well founded, as recorded hereinafter. 6.2 So far, the merits of the matter is concerned, the awards of the Industrial Tribunal in Reference (IT) No.146 of 1976 and Reference (IT) No.446 of 1981 are on record. The said awards, more particularly the one which is referred by the Corporation in the office order dated 27.09.2007 itself, I.e. Reference (IT) No.446 of 1981, in terms mandates that, on completion of 720 days employment as a daily wager in three years, the concerned workmen shall be taken on regular establishment.
The said awards, more particularly the one which is referred by the Corporation in the office order dated 27.09.2007 itself, I.e. Reference (IT) No.446 of 1981, in terms mandates that, on completion of 720 days employment as a daily wager in three years, the concerned workmen shall be taken on regular establishment. The question before this Court is not, as to whether the said award is legal or otherwise, or as to whether it can have any applicability for all time to come, because, not only it is not challenged, nor any modification is sought therein by the Corporation in accordance with law, but it is being implemented even now by the petitioner Corporation, and even in the facts of this case, the very office order dated 27.09.2007is stated to have been issued as compliance of the said award. Further, there is no ambiguity regarding what that award means. It regulates regularisation of service of daily wagers in future also. Deviation therefrom was unsuccessfully attempted by the Corporation once, which is evident from the office order dated 30.08.1991, which is on record. In view of above, it cannot be disputed that, what was claimed by the workmen from the Labour Court in the recovery applications in question, was such benefit, which they were entitled to, and which was also capable of being computed in terms of money. Under these circumstances, their claim would fall within the ambit of Section 33C(2) of the Act, which they had invoked. 6.3 Further, from the office order dated 27.09.2007 itself it is clear that, the information was called for, from the concerned departments, as to, as on 31.12.2002 which workmen had completed 720 days employment as a daily wager in three years. It is not in dispute that this inquiry was made for the purpose of conferring benefits pursuant to the award in question I.e. Reference (IT) No.446 of 1981 dated 19.12.1983. Inspite of that, the said order further records that, the benefit is given from the date of issuance of the order I.e. 02.02.2006. The contention of the Corporation that, the workmen were not entitled to this benefit merely on completion of 720 days in three years as a daily wager, is inconsistent with record and therefore, it is rejected.
Inspite of that, the said order further records that, the benefit is given from the date of issuance of the order I.e. 02.02.2006. The contention of the Corporation that, the workmen were not entitled to this benefit merely on completion of 720 days in three years as a daily wager, is inconsistent with record and therefore, it is rejected. Under these circumstances, merely by writing that the effective date of benefit would be the date of issuance of office order, should not have operated against the concerned workmen. Asking the workmen in these facts, to go for adjudication of reference afresh, would amount to giving premium to the employer for his arbitrariness and illegality, which this Court would not do, and that would also not further the ends of justice. 6.4 In view of above, it is found that, neither on merits, nor on procedural aspect, the petitioner Corporation has any case, which may call for any interference in the impugned orders passed by the Labour Court. For these reasons, these petitions need to be dismissed.” 5. Considering the fact that the issue has been set at rest by this Court in the order as aforesaid, the respondent Corporation is directed to consider the case of the petitioners for granting them the benefit of regularization in consonance with the directions issued by the Tribunal so reiterated by this Court in its' order dated 10.04.2019. The directions issued by this Court are reiterated for the respondents to consider. 6. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under. 6.1 So far, the merits of the matters are concerned, the awards of the Industrial Tribunal in Reference (IT) No.146 of 1976 and Reference (IT) No.446 of 1981 are on record. The said awards, more particularly the one which is referred by the Corporation in the office order dated 2.2.2006 in Special Civil Application No.217 of 2020 itself, i.e. Reference (IT) No.446 of 1981, in terms mandates that, on completion of 720 days employment as a daily wager in three years, the concerned workmen shall be taken on regular establishment.
The said awards, more particularly the one which is referred by the Corporation in the office order dated 2.2.2006 in Special Civil Application No.217 of 2020 itself, i.e. Reference (IT) No.446 of 1981, in terms mandates that, on completion of 720 days employment as a daily wager in three years, the concerned workmen shall be taken on regular establishment. The question before this Court is not, as to whether the said award is legal or otherwise, or as to whether it can have any applicability for all time to come, because, not only it is not challenged, nor any modification is sought therein by the Corporation in accordance with law, but it is being implemented even now by the petitioner Corporation, and even in the facts of this case, the very office order dated 27.09.2007 is stated to have been issued as compliance of the said award. Further, there is no ambiguity regarding what that award means. It regulates regularization of service of daily wagers in future also. 6.2 Further, from the office order dated 2.2.2006 itself it is clear that, the information was called for, from the concerned departments, as to, as on 31.12.2002 which workmen had completed 720 days employment as a daily wager in three years. It is not in dispute that this inquiry was made for the purpose of conferring benefits pursuant to the award in question i.e. Reference (IT) No.446 of 1981 dated 19.12.1983. In spite of that, the said order further records that, the benefit is given from the date of issuance of the order i.e. 02.02.2006. The contention of the Corporation that, the workmen were not entitled to this benefit merely on completion of 720 days in three years as a daily wager, is inconsistent with record and therefore, it is rejected. Under these circumstances, merely by writing that the effective date of benefit would be the date of issuance of office order, should not have operated against the concerned workmen. Asking the workmen in these facts, to go for adjudication of reference afresh, would amount to giving premium to the employer for his arbitrariness and illegality, which this Court would not do, and that would also not further the ends of justice.
Asking the workmen in these facts, to go for adjudication of reference afresh, would amount to giving premium to the employer for his arbitrariness and illegality, which this Court would not do, and that would also not further the ends of justice. 6.3 In view of above, it is found that, neither on merits, nor on procedural aspect, the petitioner Corporation has any case, which may call for any interference in the impugned orders passed by the Labour Court. For these reasons, these petitions need to be dismissed. 7. Accordingly the petition is disposed of with a direction to the Corporation that in the event the petitioners are entitled to the benefit of regularization, the same may be considered and necessary orders granting the benefit in terms of the award passed by the Tribunal be granted within a period of six weeks from the date of receipt of copy of this order. Direct service is permitted.