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Gujarat High Court · body

2024 DIGILAW 2073 (GUJ)

State Of Gujarat v. Ahmed Mahammad Shiyani

2024-11-26

M.K.THAKKER

body2024
JUDGMENT : M. K. Thakker, J. 1. By filing this petition under Articles 226 and 227 of the Constitution of India, the State of Gujarat has challenged the award passed by the learned Industrial Tribunal, Junagadh in Reference (IT) No.325 of 2012 (old case No.68 of 2011) dated 28.03.2016 by which, the learned Industrial Tribunal has ordered to consider the respondent as permanent from the date when the respondent completed 240 days of continuous service after joining of the respondent in the year 1996. As per the claim of the respondent, the respondent was appointed in the year 1996 at Ranavav, District Junagadh. Thereafter, in the year 1998 Ranavav Taluka became a part of Porbandar District after its bifurcation therefore, they were considered as a sweeper from the year 1998 in the Porbandar District. 2. It was stated in the statement of claim that there is a permanent sanctioned post, which is vacant and the work, which was taken from the present respondent was perennial in nature and though they were continued since long, they were not paid less than minimum wages. On giving the demand notice seeking permanent status, the petitioner has terminated the service of the respondent therefore, the petition was filed before this Court being Special Civil Application No.4060 of 2011 in which, the directions were issued not to terminate the service of the respondent. Thereafter, complaint came to be filed before the learned labour Court, wherein the directions were issued to reinstate the respondent to the original post. Thereafter, the State has filed the petition challenging the aforesaid order passed in complaint case under Section 33 of the I.D.Act being Special Civil Application Nos.16032 of 2012 to 16046 of 2012 and on the statement of the learned AGP representing the State that respondents were relieved from the job, the above petitions were disposed of. However, during the course of hearing, pursis below Exhibit 12 was filed by the present respondent stating that they are continued on the service, which was also endorsed by the concerned advocate representing the petitioner therefore, demand was raised before the learned labour Court to give the permanent status to the respondent from the date of completion of 240 days from this appointment letter. 3. 3. The petitioner herein is represented before the learned labour Court, however, no any evidence was laid before the learned labour Court and only the objection has been filed by way of written statement stating that they were daily wagers and their appointments were de-hors the policy of the Government therefore, they are not entitled for the relief which was prayed. Learned labour Court, after considering the evidence, has allowed the Reference partly directing the petitioner herein to consider their service as a permanent on completion of 240 days from 1996. It is further directed to consider the period from 1996 to date of award i.e. of 28.03.2016 as a notional and observed that the respondent herein will not be entitled for any arrears or any mandatory benefits for this period. The aforesaid order, directing to consider the service of the respondent as permanent from the date of completion of 240 days, is under challenge before this Court. 4. Heard the learned AGP Ms.Surbhi Bhati for the petitioner-State and learned advocate Ms.Vidhi Bhatt for respondent-workman. 5. Learned AGP Ms.Surbhi Bhati submits that the respondent herein was serving as a part time sweeper, therefore, he cannot be placed on regular set up. Learned AGP Ms.Bhati submits that the respondent was appointed as a part time sweeper at Ranavav Taluka, Junagadh at the relevant point of time. The sanctioned set up post was available at the relevant point of time only for the post of peon, driver, clerk-cum-typist, junior clerk, surveyor/supervisor of the mine and Royalty Inspector. There was no post for part time sweepers. As the sanctioned set up post is always a post of permanent nature, the part time sweeper or part time employee can never be placed in a sanctioned set up post. 6. Learned AGP Ms.Bhati further points out that as per the Government Resolution dated 23.09.1998, the wages were paid according to the working hours of the respondent. As initially the respondent was working for only one hour with Mine Supervisor Office at Ranavav Taluka, Junagadh District, the respondent was paid Rs.225/- per hour as per the aforesaid Government Resolution. Learned AGP Ms.Bhati submits that pursuant to the directions issued by this Court dated 22.07.2019, the further affidavit is filed by the present petitioner contending that the present respondent had continued to work as a part time sweeper from July 2006 at Porbandar. Learned AGP Ms.Bhati submits that pursuant to the directions issued by this Court dated 22.07.2019, the further affidavit is filed by the present petitioner contending that the present respondent had continued to work as a part time sweeper from July 2006 at Porbandar. On 07.12.2006, a letter was addressed by the respondent to the Geologist, Porbandar with regard to the claiming of wages from the month of March 2006 to June 2006, wherein it is categorically stated that the respondent was working as a part time sweeper and that also for one hour. It is further contended by the learned AGP Ms.Bhati that the said evidences were not produced before the learned Industrial Tribunal, however, the fact remains that the respondent herein was appointed as a part time sweeper and that too also without having any sanctioned post. 7. Learned AGP Ms.Bhati submits that no evidences were produced before the learned Industrial Tribunal by the respondent to show that the respondent was working as a daily wager and not as a part time and with regard to the sanctioned post, except bare statement, no any evidence was produced. Learned AGP Ms.Bhati submits that merely completion of 240 days does not give the entitlement of permanent status to the part timers and the learned Industrial Tribunal has committed an error in directing the present petitioner to consider the service of the respondent as a regular service on completion of 240 days from the date of joining only on the consideration of their length of service. Learned AGP Ms.Bhati further submits that serving for long period does not create vested right to regularise the service and their services were continued under the orders passed by Court of law, therefore, also the respondent is not entitled for the relief which is claimed for. 8. Learned AGP Ms.Bhati, at the end, prays that as without considering the above aspect, learned Industrial Tribunal has passed the impugned award therefore, the same is required to be set aside and the petition is required to be allowed. 9. As against the same, learned advocate Ms.Vidhi Bhatt submits that despite the directions issued by this Court on 22.07.2019 to examine the case of the present respondent as per the G.R. dated 17.10.1988, a new case came to be put up before this Court by way of further affidavit. 9. As against the same, learned advocate Ms.Vidhi Bhatt submits that despite the directions issued by this Court on 22.07.2019 to examine the case of the present respondent as per the G.R. dated 17.10.1988, a new case came to be put up before this Court by way of further affidavit. Learned advocate Ms.Bhatt submits that under the G.R. dated 17.10.1988, the benefits are given to the employees on the completion of 240 days on completion of service of five years or 10 years. Learned advocate Ms.Bhatt submits that it is directed by this Court to calculate the service in which 240 days or more from the date of his initial appointment is completed. Learned advocate Ms.Bhatt further submits that instead of complying with the directions, new documents were placed on record, which were not part of the record before the learned Industrial Tribunal by the petitioner. 10. Learned advocate Ms.Bhatt further submits that despite the petitioner represented by the advocate and has filed the objection by way of written statement and though due opportunities were provided, he has not placed any evidence before the learned Industrial Tribunal therefore, new evidence cannot be placed before this Court as the respondent would not have opportunity to rebut the same. 11. Learned advocate Ms.Bhatt further submits that the petitioner has adopted the unfair labour practice by taking work of regular employees from the respondent and thereafter denying the benefits of the regular employees in the sanctioned set up. Learned advocate Ms.Bhatt submits that for more than 20 years, the respondent has served with the petitioner-authority and the petitioner State has taken the work which is of perennial in nature, without giving them the status, benefits and privileges of the permanent employee and the same is prohibited under the I.D.Act as it would amount to be unfair labour practice. 12. Learned advocate Ms.Bhatt submits that under the scheme of the G.R.dated 17.10.1988, if a daily wage employee completed 10 years of service then he is absorbed in services and is entitled for the benefits, which a permanent employee gets. Learned advocate Ms.Bhatt submits that as the new evidences, which were placed on record before this Court, were not produced before the learned Industrial Tribunal despite the learned Tribunal has provided opportunity. Learned advocate Ms.Bhatt submits that as the new evidences, which were placed on record before this Court, were not produced before the learned Industrial Tribunal despite the learned Tribunal has provided opportunity. Learned advocate Ms.Bhatt submits that learned Industrial Tribunal has not committed any error in passing the award dated 28.03.2016 directing the petitioner to consider the service of the respondent as permanent on completion of 240 days from the year 1996 onward. Learned advocate Ms.Bhatt submits that in view of above, this petition is required to be dismissed and the impugned award is required to be confirmed. 13. Having heard the learned advocates for the respective parties and considering the documents, which were placed on record before this Court, it transpires that at the time of hearing Special Civil Application No.6117 of 2017 and allied matters before this Court on 22.07.2019 following order was passed: “Civil Application are made either for vacation of the interim relief/s order where it is granted or for execution of the award where interim relief is not granted. The controversy is with regard to rights under Government Resolution dated 17.10.1988. The Government did not put the relevant record on the file of the Labour Court and in its absence the award was rendered in favour of the workmen. Since it is a question of implementation of the Government Policy envisaged in the above resolution, irrespective of the occurrence in the Labour Court or irrespective of the award, it is obligatory for the State to place on affidavit all the relevant facts so as point out whether or not the workmen herein are entitled to the benefits under the aforesaid resolution. Let the affidavit be filed. S.O. to 08.08.2019.” 14. Perusing the award passed by the learned Industrial Tribunal, it transpires that the workman has claimed that the petitioner has committed breach of the principle of equal pay and equal work as the respondent is serving with the petitioner from 1996 onwards and despite the respondent worked as a regular employee, he has been paid less than minimum wages. The respondent-workman was cross examined by the petitioner’s advocate in which it is admitted that he was paid according to the minimum wages and he has not been appointed after following due procedure. He did not produce any appointment letter neither any evidence to show that he completed 240 days in any of the year. The respondent-workman was cross examined by the petitioner’s advocate in which it is admitted that he was paid according to the minimum wages and he has not been appointed after following due procedure. He did not produce any appointment letter neither any evidence to show that he completed 240 days in any of the year. Against which, objections were filed below Exhibit 6 by the learned advocate for the petitioner wherein it is admitted that the respondent was working as a daily wager, however, neither any evidence was placed on record nor any witness was examined. 15. Learned advocate Ms.Bhatt submits that the learned Industrial Tribunal has considered the sanctioned set up which was placed before the Assistant Labour Commissioner at the stage of conciliation proceeding which is reproduced herein below: Name of post Sanctioned post(10% diduction eligible for allotment Number of posted in District Vacant post against sanctioned post Remark Currunt New Total 1. 2. 3. 4. 5. 6. 7. Clerk 14 5 19 07 12 Vacancies filled up in 2009 in which 06 posts are vacant Clerk-cumTypist 04 02 06 00 06 Posts in column No.6 are all vacant after relieving contractual employees Typist 04 01 05 01 04 ” Driver (Class-III) 04 01 05 03 02 ” Peon-cum-Driver 0 02 02 00 02 ” Peon 07 08 15 10 05 ” Total 33 19 52 21 31 ” 16. The learned labour court comes to the conclusion that the respondent was serving since long and doing the work which is perennial in nature and not regularizing the service of the present respondent would amount to unfair labour practice, which is prohibited under the I.D.Act therefore, the respondent is entitled for the benefits, which are given to the permanent employee. 17. Pursuant to the directions issued by this Court, further affidavit was filed, which is at page No.112 of this petition, wherein the petitioner has produced the request letter made by the respondent to pay the wages considering the working hours i.e. one hour that too also on the post of sweeper. The receipts, which are placed on the record from page 131 to 146, indicate that the present respondent was paid wages of the part time sweeper, considering his working hours. The receipts placed on the record appear to have been signed by the present respondent also. The receipts, which are placed on the record from page 131 to 146, indicate that the present respondent was paid wages of the part time sweeper, considering his working hours. The receipts placed on the record appear to have been signed by the present respondent also. The sanctioned orders for payment of aforesaid wages were also placed before this Court from page 147 to 169. There is a list, which is produced at page 171, showing that the respondent, along with other persons, was working as a part-time sweeper across the different departments. 18. It is true that as per the G.R. dated 17.10.1988, the workmen, who had completed five years of service, is to be placed in the fixed pay scale and thereafter on completion of 10 years of service as per Section 25B of the I.D.Act, they would be entitled for the pay scale of regular employee. To consider the aspect that whether this G.R. is applicable to the part timers or not, the working hour is the main aspect. 19. This Court has referred the decision rendered by the Division Bench of this Court in Letters Patent Appeal No.125 of 2023, wherein it is held that if the work was of perennial in nature and discharging of duty by the workman was for whole day then the workman would be entitled for the benefits of the G.R. dated 17.10.1988. The certificate, which was placed before this Court by the petitioner dated 08.12.2006 at page 130 suggests that the respondent worked from March 2006 to June 2006 for one hour per day on the post of part time sweeper. Therefore, it cannot be concluded that the respondent worked for whole day like regular employee as the payment receipts as well as the application signed by the present respondent suggests that the respondent worked as a part time sweeper for one hour per day. It is true that the aforesaid documents were not placed on record before the learned Industrial Tribunal, however, the affidavit-in-rejoinder filed by the respondent at page 232 does not controvert the aforesaid document nor has placed any other evidence on record to show that the documents, which are placed before this Court is not true and correct. 20. It is true that the aforesaid documents were not placed on record before the learned Industrial Tribunal, however, the affidavit-in-rejoinder filed by the respondent at page 232 does not controvert the aforesaid document nor has placed any other evidence on record to show that the documents, which are placed before this Court is not true and correct. 20. It is true that the respondent workman was not appointed after following due procedure, however, as per the decision rendered by this Court in the case of Vinod Kumar and others vs. Union of India rendered in Civil Appeal No.5153-54 of 2024 wherein it is held that reliance on procedural formalities cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Therefore, denial of regularization on that ground that no procedure was followed at the time of appointment would not help to the present petitioner in denying to the respondent to get the benefits of regularization. 21. This Court has also considered the decision rendered by the Apex Court in the case of Union of India and others vs. Ilmodevi, reported in (2021) 20 SCC 290 wherein the Apex Court has held as under: “9. At the outset, it is required to be noted that the respondent-original applicants were working as contingent paid part-time sweepers (Safai Karamcharies working for less than five hours a day) in a Post Office at Chandigarh. It is not in dispute and cannot be disputed that there are no sanctioned posts of Safaiwalas in the Post Office in which the respondents were working. There is no documentary evidence on record to establish and prove that the respondents were working continuously. Even otherwise as observed hereinabove, they were working as contingent paid part-time sweepers. Even it is not the case on behalf of the respondents that their appointment was done after following due procedure of selection and to that extent, it cannot be said that their appointments were irregular. As such, in the absence of any sanctioned posts in the Post Office in which the respondents were working, there was no question of appointing the respondents after following due procedure. In light of the above, the directions issued by the High Court in the impugned judgment and order [Union of India v. Ilmo Devi, 2015 SCC OnLine P&H 5144] are required to be considered. *** 13. In light of the above, the directions issued by the High Court in the impugned judgment and order [Union of India v. Ilmo Devi, 2015 SCC OnLine P&H 5144] are required to be considered. *** 13. The observations made in para 9 are on surmises and conjectures. Even the observations made that they have worked continuously and for the whole day are also without any basis and for which there is no supporting evidence. In any case, the fact remains that the respondents served as part-time employees and were contingent paid staff. As observed above, there are no sanctioned posts in the Post Office in which the respondents were working, therefore, the directions issued by the High Court in the impugned judgment and order [Union of India v. Ilmo Devi, 2015 SCC OnLine P&H 5144] are not permissible in the judicial review under Article 226 of the Constitution. The High Court cannot, in exercise of the power under Article 226, issue a mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularisation policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue mandamus and/or direct to create and sanction the posts. 14. Even the regularisation policy to regularise the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue mandamus and/or issue mandatory directions to do so. In R.S. Bhonde [State of Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 : 2005 SCC (L&S) 907], it is observed and held by this Court that the status of permanency cannot be granted when there is no post. It is further observed that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularisation is done. It is further observed that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularisation is done. 15.In Daya Lal [State of Rajasthan v. Daya Lal, (2011) 2 SCC 429 : (2011) 1 SCC (L&S) 340] in para 12, it is observed and held as under : “12. We may at the outset refer to the following well-settled principles relating to regularisation and parity in pay, relevant in the context of these appeals: (i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised. (ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious employment”. Even temporary, ad hoc or daily wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right. Even temporary, ad hoc or daily wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right. (iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates. (iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees. (v) Part-time temporary employees in Government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. 16. Thus, as per the law laid down by this Court in the aforesaid decisions part-time employees are not entitled to seek regularisation as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.” 22. This Court has also considered the decision rendered by the Apex Court in the case of State of Karnataka and others vs. M.L.Kesari and others, reported in, (2010) 9 SCC 247 differentiating the irregular appointments and illegal appointments. This Court has also considered the decision rendered by the Apex Court in the case of State of Karnataka and others vs. M.L.Kesari and others, reported in, (2010) 9 SCC 247 differentiating the irregular appointments and illegal appointments. “7:It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3) [ (2006) 4 SCC 1 ], if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” 23. Considering the ratio laid down by the Apex Court in the above cases, if the facts of the present case is to be examined then it is undisputed fact that there was no any sanctioned post for the sweeper for which the regularization has been claimed. It also transpired that the present respondent was working as part timer and he has been paid according to his working hours i.e. one or two hours. The certificates, which are placed on record also suggest that the respondent had worked as a part time sweeper for one or two hours. In absence of any sanctioned post, this Court is of the view that no any directions can be issued upon the State Government to regularize the service of the present respondent though they had worked for quite long time and the respondent cannot claim parity with full time workers as he is serving as a part time employee. 24. Resultantly, this petition succeeds and is hereby allowed. 24. Resultantly, this petition succeeds and is hereby allowed. The impugned judgment and award passed by the learned Industrial Tribunal dated 28.03.2016 passed in Reference (I.T.) No.325 of 2012 (Old Case No.68 of 2011) is hereby quashed and set aside.