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2024 DIGILAW 2017 (GUJ)

BABRA NAGAR PALIKA v. ASHOKBHAI SOMABHAI VARSADA

2024-10-30

M.K.THAKKER

body2024
JUDGMENT : M.K. THAKKER, J. 1. Rule returnable forthwith. Learned advocate Ms. Siddhi Vadodariya waives service of Rule on behalf of respondent. 2. The present petition is filed challenging the judgment and award of the learned Industrial Tribunal of Bhavnagar dated 24.11.2022 in reference IT No. 1 of 2020 whereby, the directions were issued to the present petitioner to regularise the service of the respondent as a valman and grant permanancy benefits i.e. seniority, promotion, retirement benefits, gratuity etc. from the date on 01.08.2003. It was further clarified by the learned Tribunal that period from 01.08.2003 to 04.01.2020 was treated as notional and respondent- employees fare not entitled any arears. The aforesaid award is challenged by filing the petition under Article 226 and 227 of the Constitution of India. 3. The facts leading to the present petition is that on 09.01.2020 the respondent no. 1 filed statement of claim before the learned Tribunal, Bhavnagar below Exh.12 alleging that he was appointed from 01.08.2003 as Valman and on 21.07.2018 he served demand notice through registered post and through Union but as the same was remained unattended therefore, on 28.05.2019 chartered of demand was made before the Conciliation Officer being no. 13 of 2019 and on 04.01.2020 the dispute was referred to the learned Tribunal. It is stated by the respondent that though he was serving as a Valman from one year 2003 continuously without any break, however, he is getting fixed pay which is less than minimum wages even though the post of Valman is permanent and work is perennial in nature. The Nagarpalika by adopting unfair labour practice has not made him permanent and therefore, it was prayed before the learned court to regularise his service. The learned Labour Court after considering the evidence and the rival submissions made by the learned advocates, has passed impugned award allowing the reference directing petitioner to regularise service which is the subject matter of challenge before this Court. 4. Heard learned advocate Mr. M.B. Parikh for the petitioner and learned advocate Ms. Siddhi Vadodaria for respondent. 5. Learned advocate Mr. M.B. Parikh submits that while passing the impugned award the learned Tribunal has overlooked the written statement wherein, it is contended that respondent herein was not appointed by following due procedure and his appointment was purely of temporary in nature. M.B. Parikh for the petitioner and learned advocate Ms. Siddhi Vadodaria for respondent. 5. Learned advocate Mr. M.B. Parikh submits that while passing the impugned award the learned Tribunal has overlooked the written statement wherein, it is contended that respondent herein was not appointed by following due procedure and his appointment was purely of temporary in nature. As there was no sanction post of Valman therefore, he was appointed as daily wager. Learned advocate Mr. M.B. Parikh submits that as per section 50(1) of the Gujarat Municipality Act, 1963, the petitioner cannot appoint or promote any of the employees without prior permission of the Regional Commissioner. It was stated that petitioner’s overall expenditure is more than 45% and they are facing acute financial problems as they are indebted. Learned advocate Mr. M.B. Parikh submits that appointment of the respondent is absolutely a back door entry and without following due procedure of law as there was no publication of any advertisement neither they were called for any interview. 6. Learned advocate Mr. M.B. Parikh has relied on the decision rendered by the Apex Court in the case of Secretary to Gov. Comm. Vs. A. Singamuthu, (2017) 4 SCC 113 and submitted that a long continuation of service is irrelevant factor and does not confer any right to regularise the service when the scheme of regularisation is missing. Learned advocate Mr. M.B. Parikh has also relied on the decision rendered by the Apex Court in the case of Upendra Singh Vs. State of Bihar, (2018) 3 SCC 680 and submitted that the claim of regularisation cannot be considered when the appointment were not made by the competent authority. At the end the learned advocate Mr. M.B. Parikh submits that without considering the aforesaid settled law learned labour Court has directed regularisation of service of the present petitioner and therefore, petition is required to be allowed. 7. As against the same learned advocate Ms. Siddhi Vadodariya has submitted that learned Tribunal while passing the award has given the findings which are based on the evidence and considering the length of service that is 21 years. Learned advocate Ms. Vadodariya submits that service which was rendered by the respondent is permanent in nature and similarly situated persons who are juniors to the present respondent were regularised by the Nagarpalika. Learned advocate Ms. Learned advocate Ms. Vadodariya submits that service which was rendered by the respondent is permanent in nature and similarly situated persons who are juniors to the present respondent were regularised by the Nagarpalika. Learned advocate Ms. Vadodariya submits that from last two decades the work which is of perennial in nature has been taken by the Nagarpalika by paying the amount which is absolutely meagre. Learned advocate Ms. Siddhi Vadodariya submits that production application was filed below Exh.13 demanding seniority list, attendence register, Salary Register, Pay Slip, Bank Statement, PPF Register, Sanction Setup, Statement showing the vacant post available in Nagarpalika and details of the cases filed by the employees of the Nagarpalika. Learned advocate Ms. Siddhi Vadodariya submits that though the application was allowed by the learned Tribunal vide order dated 02.02.2022 the petitioner has not produced any relevant documents. 8. Learned advocate Ms. Siddhi Vadodariya submits that all the grounds which are raised before this Court by the learned advocate Mr. Parikh was already decided by this Court in SCA No. 19334 of 2017 which was confirmed by the Division Bench in LPA No. 1398 of 2022 and thereafter, that concerned Nagarpalika has implemented the order of this Court by regularising the service of the present petitioner. Learned advocate Ms. Siddhi Vadodariya submits that the aforesaid order was further challenged before the Apex Court by way of filing SLP which was also dismissed and after considering all the materials, learned Tribunal has allowed the reference and granted benefit from the date of reference and directed to consider the period from 01.08.2003 to date of joining i.e. 04.01.2020. 9. Having considered the submissions and reason asssigned by the learned labour court it is undisputed fact that present respondents who are serving as Valman since 01.08.2003 issued demand notice which was given was remained unattended, therefore, demand raised before the learned labour court. Evidence which was recorded before the learned court on filing reference being no. 1 of 2020 from where it transpires that the respondent herein had served continuously with present petitioner Nagarpalika and though the work which was performed was in perennial in nature they have been paid meagre amount which was less than minimum wages. Evidence which was recorded before the learned court on filing reference being no. 1 of 2020 from where it transpires that the respondent herein had served continuously with present petitioner Nagarpalika and though the work which was performed was in perennial in nature they have been paid meagre amount which was less than minimum wages. The contention with regard to Nagarpalika is that overall expenditure of Nagarpalika is more than 45% of the sanction and they are facing acute financial problems was already dealt by this Court in the case of SCA No. 19334 of 2017: “9. It appears from the record especially from the evidence of the petitioner municipality that There about 160 permanent employees with the organization. Out these 160 labourers, there are about 50 labourers who have been appointed on permanent basis through direct recruitment. It is true that, except these 50 labourers, the remaining were appointed as daily wagers and at later stage, they were made permanent. It is true that out of the employees who were made permanent, some were made permanent on the basis of the order of the court and some were made permanent by the Municipality by passing a resolution thereabout. It is true that the Municipality has never made any attempt to make the concerned laborer a permanent employee. 13. At this stage, it would be appropriate to refer to a decision of Division Bench of this Court in case of Amreli Nagarpalika (Supra), where the Division Bench had to deal with similar contention raised herein. Paragraph Nos. 2.1, 11, 17 and 21 of the said decision read as under: “2.1 The appellants herein are the Union and the original claimants. The claimant herein was appointed on the post of peon by the respondent No. 1 Amreli Nagarpalika vide order dated 21.12.1983. As on date also, the claimant is in service, but as a daily wager drawing daily wages in accordance with the Minimum Wages Act. It appears that the claimant herein went before the Tribunal and prayed for regularization of his service. The claimant prayed before the Tribunal that he should be conferred the status of being a permanent workman and should be paid salary and other perquisites at par with the regular and permanent workmen. The Tribunal rejected the claim. 11. It appears that the claimant herein went before the Tribunal and prayed for regularization of his service. The claimant prayed before the Tribunal that he should be conferred the status of being a permanent workman and should be paid salary and other perquisites at par with the regular and permanent workmen. The Tribunal rejected the claim. 11. Thus, the ratio discernible from the above referred observations is that the Labour Court should not issue any direction of regularization. However, the Labour Court/Industrial Court may exercise its powers for giving the status of permanency to the contract employees if the employer is found to have indulged in unfair labour practice by not filling up the permanent post even when available and continuing to employee workers on temporary/daily wage basis. In Para-39, the Supreme Court laid down that even if it is found that similarly situated workmen have been regularized by the employer itself under some scheme or otherwise and the workmen in question who had approached the Industrial/Labour Court is at par with them, then the direction of regularization in such cases may be legally justified. 17. Having regard to the aforesaid, we are of the view that the decision of the Supreme Court in Hari Nandan Prasad (supra) helps the appellant in seeking the reliefs he is praying for after putting in more than 40 years of service with the Nagarpalika. We are convinced having regard to the facts of the case that the Nagarpalika could definitely be said to have indulged in unfair labour practice. The Nagarpalika has no reply to the observations made by the Supreme Court as contained in Para-39 of Hari Nandan Prasad (supra). 21. The next question that comes to our mind is what relief should be granted to the appellant. We are of the view that the appellant should be granted notional benefits (all benefits which the appellant would have received as a regular employee) upto the date of the filing of the present appeal. The Amreli Nagarpalika shall absorb the appellant on permanent basis and shall start paying regular salary attached to the post. The arrears towards the difference of regular pay scale from the date of filing of the appeal shall also be paid within a period of three months from the date of the receipt of the writ of this order.” 10. The Amreli Nagarpalika shall absorb the appellant on permanent basis and shall start paying regular salary attached to the post. The arrears towards the difference of regular pay scale from the date of filing of the appeal shall also be paid within a period of three months from the date of the receipt of the writ of this order.” 10. The submission that there is no sanction post available of Valman this Court has considered the issue in detail by the Division Bench in LPA No. 1398 of 2022 which is reproduced herein-below: “4.4 It was attempted in vain by learned advocate for the Municipality that the Municipality did not have the posts of Valveman in the set-up. This court sitting in the Letters Patent Appeal would not like to deviate from the finding of facts on that score recorded by the Industrial Tribunal and confirmed by learned single Judge. The details of the set-up was before the Industrial Tribunal. Even otherwise, it is to be observed that keeping the workman in service giving them meager wages on daily rate basis had indeed no sanctity in law. It was the duty and obligation on the part of the Municipality to seek sanctioned set-up from the competent higher authority to have the posts of Valveman to accommodate the workman concerned to grant them the permanency benefits, when work performed by them was of perennial nature. 5. Keeping the workmen on daily rated basis for unduly long by paying them lower wages and not getting the posts sanctioned at the same time, would amount to adopting unfair labour practice. 5.1 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. 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.” 5.2 When the employer avoids to fill up the permanent posts even when posts are available and continues to employ workers on temporary or daily wage basis taking the same work from them, which is done by the regular workers and pays meager wages, it is a case of unfair labour practice. It is an exploitative conduct where the employer keeps his employees poorly paid unbearably long. Unfair labour practice is exploitation of workmen. This situation entitles the workman to be absorbed as permanent employee casting obligation in law on the employer. In view of facts and the factual findings recorded in para 5.1 hereinabove, such situation is obtained in the present case. 5.3 In Hari Nandan Prasad and Another vs. Employer I/R to Management of Food Corporation of India and Another, (2014) 7 SCC 190 , the Supreme Court emphasised the fine balancing of the rights of the employer employee in the matter of regularisation of the employees and granting temporary employees the benefit of permanency. Referring to some of its own the decisions, the Supreme Court observed that it was dependent on the facts of each case as to whether the order of regularisation is necessitated to advance justice to the daily rated workman or such benefit is to be denied where giving of such direction would infringe upon the employer’s rights. 5.3.1 The decisions in Maharashtra SRTC vs. Casteribe Rajya P. Karmchari Sanghatana, (2009) 8 SCC 556 and U.P. Power Corporation Ltd. vs. Bijli Mazdoor Sangh and Others, (2007) 5 SCC 755 were considered by the court in Hari Nandan Prasad (supra). 5.3.1 The decisions in Maharashtra SRTC vs. Casteribe Rajya P. Karmchari Sanghatana, (2009) 8 SCC 556 and U.P. Power Corporation Ltd. vs. Bijli Mazdoor Sangh and Others, (2007) 5 SCC 755 were considered by the court in Hari Nandan Prasad (supra). Upon harmonised reading of these two decisions, it was stated that even where the posts are available, in absence of any unfair labour practice, the Labour Court cannot give direction for regularisation only on the ground of long service rendered by daily rated workman. 5.3.2 In Hari Nandan Prasad (supra), the Supreme Court, however, clarified that wherever the Labour Court or Tribunal have statutory power to grant relief to the workman it would include power to grant the relief of accruing status of permanency to the contractual employee or daily rated employee. It was in terms stated that where the employer is found to have indulged into any unfair labour practice, as defined in Industrial Disputes Act, the relief of regularisation could be extended. 5.3.3 The Supreme Court in Hari Nandan Prasad (supra) observed that in such set of facts, if regulariastion is not granted, it would even offend and violate the equality clause under Article 14 of the Constitution: “However, whenever it is found that similarly situated workmen are regularised by the employer itself under some scheme or otherwise and the workmen in question who have approached the Industrial/Labour Court are on a par with them, direction of regularisation in such cases may be legally justified, otherwise, non-regularisation of the left-over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Article 14 of the Constitution. Thus, the Industrial adjudicator would be achieved the equality by upholding Article 14 of the Constitution, rather than violating this constitutional provision.” (Para 39) 5.4 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) 5.4.1 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) 5.4.2 The decision in Raja Ram (supra), was followed in Regional Manager, State Bank of India vs. Rakesh Kumar Tewari (2006) 1 SCC 530 . 5.5 In 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. (Emphasis supplied) (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. (Emphasis supplied) (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.” (Para 34) (Emphasis supplied) 11. In view of the above, in the opinion of this Court, the issue referred in this petition is no more res-integra in view of the decision of this Court dated 25.03.2022 in SCA No. 19334 of 2017 and the decision dated 08.11.2023 in LPA No. 1398 of 2022. 12. Therefore, this petition is dismissed. The judgment and award of Industrial Tribunal, Bhavnagar dated 24.11.2022 in reference IT No. 1 of 2020 is hereby confirmed. 13. Rule is discharged accordingly.