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2024 DIGILAW 1815 (GUJ)

SAURASHTRA SHRAMIK SANGH v. AMRELI MUNICIPALITY

2024-09-05

A.S.SUPEHIA, MAUNA M.BHATT

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JUDGMENT : A.S. SUPEHIA, J. 1. The present appeal emanates from the order passed by the learned Single Judge dated 29.08.2016 rejecting the writ petition filed by the appellant-Union on behalf of the workman challenging the award dated 29.05.2007 passed by the Industrial Tribunal, Bhavnagar in Reference (IT) No. 130 of 2003. 2. The appellant-Union submitted that the workman, who was appointed as a Clerk in 1987 raised a demand in 1992 for regularising the service, which culminated into reference proceedings being Reference (IT) No. 130 of 2003. It appears that initially the Tribunal passed an award in favour of the workman however, the Municipality assailed the same before this Court by filing a writ petition being Special Civil Application No. 2779 of 2002 and this Court vide order dated 19.01.2006 remanded the matter back to the Tribunal. Thereafter, the Tribunal has rejected the reference proceedings, which has culminated into the captioned writ petition. The learned Single Judge has rejected the same and hence, this appeal. 3. The sole ground, on which the Industrial Tribunal has rejected the reference proceedings, by holding that there are 34 posts in the set-up of Junior Clerks and presently 88 employees are working and since, there is over set up of 54 Junior Clerks in Nagarpalika and hence, the workman cannot be ordered to be regularised. The learned Single Judge has also rejected the writ petition by reiterating such fact. 4. At the outset, Mr. G.M. Joshi, learned senior advocate for the appellant has submitted that in the case of very same Nagarpalika and the similar set of employees to that of the present appellant who are also working as Clerks, the Industrial Tribunal, by various awards, ordered regularizing of the Clerks which was subject matter of challenge before this Court and ultimately, the Division Bench, by the order dated 28.08.2023, has rejected the writ petition filed by the present Municipality. Thus, it is urged that the present appeal may be allowed in terms of the said judgment as similarly situated Clerks to the present employees, who are subsequently appointed to the appellant, are regularized. 5. Thus, it is urged that the impugned order passed by the Tribunal as well as the learned Single Judge may be quashed and set aside. 6. 5. Thus, it is urged that the impugned order passed by the Tribunal as well as the learned Single Judge may be quashed and set aside. 6. Per contra, Mr.Deepak Sanchela, learned advocate for the Amreli Municipality-respondent has submitted that no order directing regularization of the workman can be passed, since there is no sanctioned post available. In support of his submission, he has relied on the recent decision of the Apex Court in the case of Vibhuti Shankar Pandey vs. State of Madhya Pradesh & Ors. 2023 (3) SCC 639 . Reliance is also placed on the judgment dated 01.09.2017 passed by the Coordinate Bench in Letters Patent Appeal No. 1284 of 2016. It is submitted that an illegality has been committed by the Amreli Municipality-respondent while regularizing such Clerks and the same cannot be again repeated in the case of the appellant-workman. By placing reliance on the judgment in the case of Dalip Singh and Ors. vs. State of Haryana and Ors. 2019 (11) SCC 422 , he has submitted that similar terms cannot be extended to the appellant as the appellant cannot claim equality in negativity. He further submitted that the appellant-workman had retired in the year 2014. Thus, it is urged that the impugned judgment passed by the learned Single Judge may not be set aside as no sanctioned posts were available as held by the Tribunal as well as the learned Single Judge. 7. We have heard the learned advocates appearing for the respective parties. When this Court had pointed out that the judgment dated 28.08.2023 passed by the Coordinate Bench in the case of very same Amreli Municipality confirming the regularization to the clerks, who are similarly situated to the present appellant-workman, (in some case junior), in response, the learned advocate Mr.Sanchela for the respondent Municipality, raised that such workmen/Clerks have been illegally regularized by the Municipality. We fail to understand that how such contention can be raised before this Court once the Division Bench of this Court has confirmed the regularization of the Clerks few of them are junior to the appellant-workman. The comparative chart of the workman and the present appellant is as under: S. No. LPA No. Workman Post Demand Raised in Date of Joining 1. The comparative chart of the workman and the present appellant is as under: S. No. LPA No. Workman Post Demand Raised in Date of Joining 1. 1056 of 2016 Bharatkumar Talakchand Gorasiya (Appellant) Clerk 1992 1987 Reference IT No. 130 of 1993 was rejected by the Industrial Tribunal, Bhavnagar vide order dated 29.05.2007 SCA No. 23607 of 2007 was rejected by the High Court vide order dated 29.08.2016 2. 829 of 2023 Jitendra Bapusinh Parmar Clerk 2000 01.07.1988 Award passed by Industrial Tribunal, Bhavnagar regularizing the workman on 03.09.2015 SCA No. 13192 of 2016 by Municipality before the High Court was dismissed dated 05.08.2022 LPA No. 829 of 2023 was dismissed dated 28.08.2023 3. 830 of 2023 Pravinbhai Dhirajlal Dhanani Clerk 2001 31.12.1990 Award passed by Industrial Tribunal, Bhavnagar regularizing the workman on 22.08.2015 SCA No. 13193 of 2016 by Municipality before the High Court was dismissed dated 05.08.2022 LPA No. 830 of 2023 was dismissed dated 28.08.2023 4. 1351 of 2014 Rajendrasingh Ranjitsinh Basan Clerk 2001 1989 Award passed by Industrial Tribunal, Bhavnagar regularizing the workman on 01.09.2012 SCA No. 9141 of 2013 by Municipality before the High Court was dismissed dated 08.10.2014 LPA No. 1351 of 2014 was dismissed dated 11.02.2015 5. 1348 of 2014 Himatlal Murjibhai Chavda Clerk 2001 1989 Award passed by Industrial Tribunal, Bhavnagar regularizing the workman on 01.06.2013 SCA No. 17120 of 2013 by Municipality before the High Court was dismissed dated 08.10.2014 LPA No. 1348 of 2014 was dismissed dated 11.02.2015 6. 1349 of 2014 Rehman M. Bilakhia Clerk 2001 1989 Award passed by Industrial Tribunal, Bhavnagar regularizing the workman on 23.05.2013 SCA No. 17122 of 2013 by Municipality before the High Court was dismissed dated 08.10.2014 LPA No. 1349 of 2014 was dismissed dated 11.02.2015 8. It is not in dispute that the respondents of Letters Patent Appeal Nos.828 of 2023 and allied matters were serving as Clerks in the very same Amreli Municipality. The details of the appellant at Sr.No. 1, if are compared with other Clerks would exposit that the appellant had raised the demand prior to other Clerks, and he had also joined before them. 9. It is very interesting to note that the Coordinate Bench has specifically recorded the evidence of the employer i.e. the Municipality in paragraph Nos. The details of the appellant at Sr.No. 1, if are compared with other Clerks would exposit that the appellant had raised the demand prior to other Clerks, and he had also joined before them. 9. It is very interesting to note that the Coordinate Bench has specifically recorded the evidence of the employer i.e. the Municipality in paragraph Nos. 3.4 to 3.9, which is as under: “3.4 Looking to the judgment and award of the Industrial Tribunal in the second case of Jitendra Bapusinh Parmar, it was observed that evidence of witness of first party employer (Exh.25) showed that one Rajeshbhai Dudhat who was appointed on the same day, came to be regularised in 1997. Similarly, one Dilipbhai Jinabhai Vaghasiya, was also regulaised in 1991-1992. Yet another workman Chaganbhai Kurjibhai Vaghasiya who was taken after the workman and was junior to him, came to be regularised on 18.8.1988. Other juniors named Chaturbhai Ramani and Hareshbhai Bhanderi were also regularised. On the basis of above facts, it was urged that there was breach of Article 14 of the Constitution. 3.5 In the third case, two workmen were involved named Pravinbhai Dhirubhai Dhanani and Shri Vijaybhai Harilal Buch. Shri Vijaybhai Harilal Buch came to be regularised, therefore reference survived only for Pravinbhai Dhirubhai Dhanani. The Labour Court considered the evidence of witness of the first party employer (Exh. 24A) to come to a conclusion that the services of the said workman was continuous in nature. 3.6 The witness stated that 10% of the total sanctioned set up may be employed as rojamdars. He admitted that several other rojmdars were made permanent subsequently had have been in service. He stated that those workmen were made permanent either upon the award of the Labour Court or by recruitment process. The said evidence was also confronted with the statement showing set-up of the Municipality, which was duly signed by the Chief officer (Exh. 21) 3.7 What is conspicuous to be noticed is that in all three cases, the Industrial Tribunal had before it the statement showing the set up of the Municipality produced at Exh. 40, in first two cases, and Exh. 59 in the last case. The set up indicated the sanctioned posts and the vacant post in the relevant category. The Industrial Tribunal recorded that the sanctioned posts was shown to be 42. 40, in first two cases, and Exh. 59 in the last case. The set up indicated the sanctioned posts and the vacant post in the relevant category. The Industrial Tribunal recorded that the sanctioned posts was shown to be 42. Out of that, 9 posts were cancelled due to 20% cut policy and thereafter 33 posts remained to be available, out of which 24 posts were filled in. Therefore, 9 posts were available and vacant to be filled in. 3.8 The Labour Court in the judgment and award in first Reference Case No. 54 of 2003 noted inter alia that the witness of the first party employer had admitted that the workman could be absorbed on the post of junior clerk, which were available. They could be considered for absorption as clerk to be appointed on regular basis on such posts. In addition to the posts of junior clerk, other posts of clerk were also vacant. This finding was recorded on the basis of the details of the set-up. 3.9 In view of the evidence, it was further noted that the workmen could be absorbed on the post equivalent to junior clerk and that such equivalent posts were also vacant and available in the set-up of the Municipality. In light of the above evidence and factual finding, the Industrial Tribunal considered and held that the workmen to be entitled to be regularised.” 10. Thus, the evidence, which is recorded by the Tribunal in the various reference proceedings and as recorded by the Coordinate Bench, would indicate that the witnesses of the Amreli Municipality have admitted that the juniors to such Clerks were regularized by them. The names of them are incorporated as herein above. The witness of the respondent-Amreli Municipality has admitted that in the 10% of the total sanctioned set up, the daily wagers are appointed and various other daily wagers and Rojamdars are made permanent, such evidence was also confronted with the statement showing set up of the Municipality, which was duly signed by the Chief Officer (Exh.21). In another case, the Industrial Tribunal had recorded the statement showing the set up of the Municipality produced at Exh.40, in first two cases, and in Exh.59 in the last case and the set up indicated the sanctioned post and vacant post in the relevant category. In another case, the Industrial Tribunal had recorded the statement showing the set up of the Municipality produced at Exh.40, in first two cases, and in Exh.59 in the last case and the set up indicated the sanctioned post and vacant post in the relevant category. It is categorically recorded that the Industrial Tribunal has found that the sanctioned posts were shown to be 42 and out of them, 09 posts were cancelled due to 20% cut policy and thereafter, 33 posts remained to be available, out of which 24 posts were filled in and 09 were still available. 11. The Labour Court in the case of such Clerks in Reference Case No. 54 of 2003 has also inter alia noted that the witness of the Amreli Municipality has admitted that the workman could be absorbed on the post of Junior Clerk, which are available. After recording such facts, the Coordinate Bench, after placing reliance on the judgment of the Supreme Court, has held thus: “5.4 Section 25T of the Industrial Disputes Act 1947 contains prohibition against the employers resorting to unfair labour practice. It says that, “no employer or workman or trade union, whether registered under the Trade Unions Act 1926 or not, shall commit any unfair labour practice.” The expression unfair labour practice is defined in 2(ra) of the Industrial Disputes Act to mean any of the practices specified in the Fifth Schedule. When the Fifth Schedule of the Industrial Disputes Act is seen, it enlists one of the unfair labour practices in item No. 10 to be thus, “To employ workmen as ‘badlis’, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen” 5.5 The Supreme Court pertinently observed in Regional Manager, State Bank of India vs. Raja Ram, (2004) 8 SCC 164 as under: “In other words, before an action can be termed as an unfair labour practice it would be necessary for the Labour Court to come to a conclusion that the badlis, casuals and temporary workmen had been continued for years as badlis, casuals or temporary workmen, with the object of depriving them of the status and privileges of permanent workmen. To this has been added the judicial gloss that artificial breaks in the service of such workmen would not allow the employer to avoid a charge of unfair labour practice. However, it is the continuity of service of workmen over a period of years which is frowned upon. (Para 9) 5.5.1 The Apex Court proceeded to state: “Besides, it needs to be emphasised that for the practice to amount to unfair labour practice it must be found that the workman had been retained on a casual or temporary basis with the object of depriving the workman of the status and privileges of a permanent workman. There is no such finding in this case. Therefore, Item 10 in List I of the Fifth Schedule to the Act cannot be said to apply at all to the respondent's case and the Labour Court erred in coming to the conclusion that the respondent was, in the circumstances, likely to acquire the status of a permanent employee.” (Para 9) 5.5.2 The decision in Raja Ram (supra), was followed in Regional Manager, State Bank of India vs. Rakesh Kumar Tewari (2006) 1 SCC 530 . 5.6 It is to be noted that in the present case, specific finding is recorded by the Industrial Tribunal and reiterated by learned single Judge that the treatment meted out to the workmen was unfair labour practice. 5.7 Oil and Natural Gas Corporation (supra), the Supreme Court extensively referred to the law on the issue and after eloboratly discussing the law, the following propositions were laid down: “(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution. (ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages. (iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service. (iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14. (v) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen.” (Emphasis supplied) 5.8 The decisions in Uma Devi (III) (supra) and Amreli Municipality (supra) sought to be pressed into service on behalf of the appellant, had not only different context of facts, in the present case, the aspect stands in the forefront is that the facts and the material before the Industrial Tribunal led inescapable conclusion that the employer was conducting itself by adopting unfair labour practice. The ratio of decisions of the Supreme court in Hari Nandan Pradad (supra), Raja Ram (supra), which the Supreme Court finally laying down the parameters in Oil and Natural Gas Corporation (supra), are applicable to the facts obtaining in the present case. 6. Reverting back to the facts of this case and the findings recording by the Industrial Tribunal and reiterated by learned single Judge, as already observed, the workmen have been continuing for more than three decades on daily rate basis. This was despite availability of posts in the sanctioned set-up, for which a clear and categorical findings came to be recorded by learned single Judge on the basis of the details considered by the Industrial Tribunal about the set-up, confirming the same. 6.1 The test laid down in Raja Ram (supra) and Rakesh Kumar Tewari (supra) are satisfied in the facts of the present case. 6.1 The test laid down in Raja Ram (supra) and Rakesh Kumar Tewari (supra) are satisfied in the facts of the present case. It could be emphatically said that the case of the workmen falls within the corners of observations and directions of the Supreme Court in Oil and Natural Gas Corporation (supra), to be classified for grant of relief of regularisation, as the vice of unfair labour practice on part of the employer is established. 6.2 On all standpoints, on facts as well as in law, the judgment and awards of the Industrial Tribunal in all cases upheld by learned single Judge, are eminently just, proper and legal. The challenge thereto fails. 6.3 For all the foregoing reasons and discussion, the impugned judgment and order of learned single Judge confirming the judgment and award of the Industrial Tribunal in each of the cases, does not book any error requiring interjection in exercise of Letters Patent jurisdiction. 7. All the Letters Patent Appeals are hereby dismissed.” 12. Thus, it is very curious to note that in the reference proceedings of the present appellant-workman, a stand is taken by the Municipality that there were no sanctioned posts available at the very relevant period however, in the cases of other Clerks no such contention is raised. The appellant cannot be discriminated, and he is required to be offered the same treatment, which has been offered to his colleagues. The judgment and order passed by the Division Bench in the case of the other Clerks, is of later point of time and the learned Single Judge had no occasion to consider the said judgment. We do not find any compelling reason to deviate from the observations recorded by the learned Single Judge. There cannot be any cavil on the proposition of law as enunciated by the Apex Court in the judgments, on which reliance is placed by learned advocate Mr. Sanchela however, the same will not apply to the facts of the present case, more particularly in light of the judgment passed by the Coordinate bench in case of similarly situated employees. 13. Sanchela however, the same will not apply to the facts of the present case, more particularly in light of the judgment passed by the Coordinate bench in case of similarly situated employees. 13. Under these circumstances and in light of the judgment passed by the Coordinate Bench dated 28.08.2023 in the case of the similarly situated employees, we are inclined to quash and set aside the judgment and order dated 29.08.2016 passed by the learned Single Judge confirming the order dated 29.05.2007 passed by the Industrial Tribunal, Bhavnagar in Reference (IT) No. 130 of 2003. 14. As a sequel, the said award of the Industrial Tribunal is also quashed and set aside. The respondents are directed to confer the benefits to the appellant, which are extended to other similarly situated Clerks pursuant to the judgment and order dated 28.08.2023 passed by the Coordinate Bench passed in Letters Patent Appeal No. 828 of 2023 and allied matters. 15. The appeal succeeds.