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Gujarat High Court · body

2024 DIGILAW 2076 (GUJ)

State Of Gujarat v. Daya Hamir Sadiya

2024-11-26

M.K.THAKKER

body2024
JUDGMENT : 1. Present petitions are filed under Articles 226 and 227 of the Constitution of India challenging the judgment and award dated 28.03.2016 passed by the learned Industrial Tribunal, Jamnagar in various References on same date, the details of which are stated as under: 2. Special Civil Application No.6786 of 2017 is filed against the judgment and award dated 28.03.2016 passed by the learned Industrial Tribunal, Jamnagar in Reference (IT) No.330 of 2012, whereby the directions were issued to consider the service of the respondent herein as a permanent employee from the date when the respondent completed 240 days of continuous service after joining of the respondent in the year 2006. The respondent sangh issued the demand notice for 14 persons for the purpose of making them permanent employees and giving the benefits of permanency from the date on which they completed 240 days of continuous service. This notice was issued on 21.02.2011 and thereafter on 03.03.2011 the respondents were orally instructed not to resume the duties and their services were terminated. On raising the dispute before the Assistant Labour Commissioner, the dispute remained pending and during that period of time the petitions were filed before this Court being Special Civil Application No.4060 of 2011 and this Court vide order dated 29.03.2011 directed the petitioner not to relieve the respondents till 18.04.2011. Thereafter, the respondents were permitted to resume the duty. The State has challenged the aforesaid order by preferring the Letters Patent Appeal before this Court and this Court has again issued the directions vide order dated 18.04.2011 directing to continue the respondent upto 02.05.2011. On submissions of the failure report of the Assistant Labour Commissioner, the dispute was referred to the Deputy Labour Commissioner, Rajkot and thereafter the dispute was referred before the Industrial Tribunal, Rajkot. Thereafter on 12.07.2011, the complaint came to be filed before the Industrial Tribunal, Rajkot and the Industrial Tribunal Rajkot has passed an order dated 26.09.2011 directing the present petitioner to maintain the status quo till the final disposal of the Reference. 3. Again, petitions were filed before this Court being Special Civil Application No.16032 of 2012 and allied matters and the same was disposed of vide oral order dated 04.12.2012 on the statement of the learned AGP that the respondents are already relieved. 3. Again, petitions were filed before this Court being Special Civil Application No.16032 of 2012 and allied matters and the same was disposed of vide oral order dated 04.12.2012 on the statement of the learned AGP that the respondents are already relieved. Again the State has approached before the Apex Court by way of preferring the Special Leave Petitions, which were also dismissed at the stage of condonaton of delay on 21.07.2012. Learned Industrial Tribunal after considering the pursis filed by the respondent-workman and the endorsement made by the learned advocate for the State regarding continuous service has allowed the Reference on merits on 28.03.2016, which is the subject matter of challenge before this Court. 4. The facts arising out of other allied matters submitted by the learned AGP are relevant to be reproduced hereinbelow: 4.1. In SCA No. 8024/2017, the present petition has been arisen from IT Reference no. 320/2012, respondent (employee) Naimish Vyas was posted as a clerk with District Planning office, Collector Office Porbandar (employer) from the date 18/04/2004 (date of joining) and he was orally terminated on 03/03/2011. 4.2. In SCA No. 10139/2017, the present petition has been arisen from IT Reference no. 326/2012, respondent (employee) Vipul Haresh Purohit was posted as a clerk with District Planning office, Collector Office Porbandar (employer) from the date 21/07/2005 (date of joining) and he was orally terminated on 03.03.2011. 4.3. In SCA No. 10141/2017, the present petition has been arisen from IT Reference no. 333/2012, respondent (employee) Rajalben Vyas was posted as a clerk with District Planning office, Collector Office Porbandar (employer) from the date 01/01/2002 (date of joining) and he was orally terminated on 03/03/2011. 4.4. In SCA No. 6814/2017, the present petition has been arisen from IT Reference no. 321/2012, respondent (employee) Sarman Sanga Kodiyatar was posted as a driver with Collector office, Porbandar (employer) from the date 14/06/1999/ (date of joining) and he was orally terminated on 03/03/2011. 4.5. In SCA No. 6844/2017, the present petition has been arisen from IT Reference no. 322/2012, respondent (employee) Rajesh B. Kubavat was posted as a driver with Mamlatdar office, Kutiyana (employer) from the date 01/07/2000 (date of joining) and he was orally terminated on 03/03/2011. 4.6. In SCA No. 6787/2017, the present petition has been arisen from IT Reference no. 4.5. In SCA No. 6844/2017, the present petition has been arisen from IT Reference no. 322/2012, respondent (employee) Rajesh B. Kubavat was posted as a driver with Mamlatdar office, Kutiyana (employer) from the date 01/07/2000 (date of joining) and he was orally terminated on 03/03/2011. 4.6. In SCA No. 6787/2017, the present petition has been arisen from IT Reference no. 334/2012, respondent (employee) Bachubhai A. Joshi was posted as a driver with Collector office, Porbandar (employer) from the date 10/03/2004 (date of joining) and he was orally terminated on 03/03/2011. 4.7. In SCA No. 6847/2017, the present petition has been arisen from IT Reference no. 327/2012, respondent (employee) Kishor Merkhi Haran was posted as a driver with Collector office, Porbandar (employer) from the date 28/08/2002 (date of joining) and he was orally terminated on 03/03/2011. 4.8. In SCA No. 6920/2017, the present petition has been arisen from IT Reference no. 323/2012, respondent (employce) Nilesh Rambhai Balas was posted as a computer operator with Collector office, Porbandar (employer) from the date 01/09/2000 (date of joining) and he was orally terminated on 03/03/2011. 4.9. In SCA No. 6813/2017, the present petition has been arisen from IT Reference no. 324/2012, respondent (employee) Shailesh Rambhai Balas was posted as a computer operator with District Supply office, collector office Porbandar (employer) from the date 28/12/2002 (date of joining) and he was orally terminated on 03/03/2011. 4.10. In SCA No. 6786/2017, the present petition has been arisen from IT Reference no. 330/2012, respondent (employee) Kamlesh Mohanlal Modha was posted as a computer operator with Collector office, Porbandar (employer) from the date 01/12/2006 (date of joining) and he was orally terminated on 03/03/2011. 4.11. In SCA No. 6785/2017, the present petition has been arisen from IT Reference no. 331/2012, respondent (employee) Daya Hamir Sadiya was posted as a peon with Collector office, Porbandar (employer) from the date 21/09/2007 (date of joining) and he was orally terminated on 03/03/2011. 4.12. In SCA No. 6850/2017, the present petition has been arisen from IT Reference no. 336/2012, respondent (employee) Mayur Mukundrai Pandiya was posted as a peon with Collector office, Porbandar (employer) from the date 01/01/1996 (date of joining) and he was orally terminated on 03/03/2011. 4.13. In SCA No. 6926/2017, the present petition has been arisen from IT Reference no. 4.12. In SCA No. 6850/2017, the present petition has been arisen from IT Reference no. 336/2012, respondent (employee) Mayur Mukundrai Pandiya was posted as a peon with Collector office, Porbandar (employer) from the date 01/01/1996 (date of joining) and he was orally terminated on 03/03/2011. 4.13. In SCA No. 6926/2017, the present petition has been arisen from IT Reference no. 335/2012, respondent (employee) Kishor Mukundrai Pandya was posted as a Xerox Operator with Collector office, Porbandar (employer) from the date 17/02/1998 (date of joining) and he was orally terminated on 03/03/2011. 4.14. In SCA No. 6117/2017, the present petition has been arisen from IT Reference no. 325/2012, respondent (employee) Ahmed Mahammad Siyani was posted as a peon with Geology and Mining Office, Porbandar (employer) from the date 01/01/1996 (date of joining) and he was orally terminated on 03/03/2011. 5. Heard the learned AGP Ms.Surbhi Bhati for the State and learned advocate Ms.Vidhi Bhatt for respondent. 6. Learned AGP Ms.Bhati submits that out of 15 cases one person namely, Hitesh Narayan Gohel has already joined the service as a Constable in SRPF and the other person, namely, Razak Karim Shervani has crossed the age of superannuation at the time when the learned Industrial Tribunal pronounced the order dated 29.02.2016. For remaining 13 cases, five employees were not working with the present petitioner herein, however, the said issue has not been considered by the learned Industrial Tribunal. 7. Learend AGP Ms.Bhati submits that as per the decision rendered by the Apex Court in Civil Appeal No.3595 to 3612 of 1999 dated 10.06.2006, the learned Industrial Tribunal cannot issue the directions for making the respondent as a permanent in service and therefore, the directions, which are issued by the learned Industrial Tribunal regarding regularizing the service of the present respondent is against the above settled principle and also against the decision of the Apex Court. 8. Learned AGP Ms.Bhati further submits that as per the decision rendered in the case of Umadevi, the practice of backdoor entry is deprecated. However, though it was contended before the learned Industrial Tribunal that the respondents herein were not joined the service of the present petitioner after following the recruitment procedure, the learned Industrial Tribunal issued the directions to regularize the service of the respondent. However, though it was contended before the learned Industrial Tribunal that the respondents herein were not joined the service of the present petitioner after following the recruitment procedure, the learned Industrial Tribunal issued the directions to regularize the service of the respondent. Learned AGP Ms.Bhati further submits that the present respondents herein had not produced any appointment order at the time of appointment as a daily wager though they were having the knowledge that they cannot claim the permanency right that too on the post which is not sanctioned in the set up, without considering the same, learned Tribunal has issued the directions to regularize the services of the respondents. 9. Learned AGP Ms.Bhati further submits that no any evidences were produced before the learned Industrial Tribunal to suggest that there were sanctioned post which has not been filled up, however, the directions which are issued for regularizing the service is in violation of Articles 14 and 16 of the Constitution of India. Learned AGP Ms.Bhati submits that in the set up of the present petitioner only posts which were taken were filled up by following the recruitment process by the Gujarat Sub-Ordinate Service Selection Board therefore, the judgment and award passed by the learned Industrial Tribunal is illegal, erroneous and contrary to the facts and circumstances of the case. 10. Concluding the arguments, learned AGP Ms.Bhati submits that the petitions preferred by the petitioner require to be allowed and the impugned judgment and award is required to be set aside. 11. Per contra, learned advocate Ms.Vidhi Bhatt representing the respondent-workmen has vehemently opposed the petitions and submitted that the petitioner being a State has adopted the unfair labour practice by engaging the daily wagers and taking the work of permanent employees. They were deprived from the benefit of pay allowance and other benefits, which are paid to the similarly situated employees and that cannot be expected from the State, who is an ideal employer. Learned advocate Ms.Bhatt submits that initially the petition was filed before this Court being Special Civil Application No.4060 of 2011 by the respondent workman seeking protection in the employment and this Court has protected the employment of the respondent, that petition was preferred after the Reference of dispute to the learned Industrial Tribunal and the learned Industrial Tribunal has directed to maintain status quo therefore, petitions became infructuous and the same were disposed of. The fact remained that all the respondents have continued to remain in employment of the petitioner till date. 12. So far as the contention of the present petitioner with regard to non-working employees with the office of the Collector is concerned, it is submitted by the learned advocate Ms.Bhatt that the present respondents are working since 01.12.2006 as a computer operator and on the different posts, the work which was done was of perennial in nature and the respondent had served continuously since 2006. Learned advocate Ms.Bhatt submits that the learned Commissioner after examining the dispute comes to the conclusion that the dispute which was raised is falling under the definition of Section 2K of the I.D.Act and therefore, the same is referred to the learned Industrial Tribunal. Learned advocate Ms.Bhatt submits that at present 13 respondents are before this Court as two workmen have already employed in the other establishment. 13. Learned advocate Ms.Bhatt submits that so far as the decision relied by the present petitioner in the case of Civil Appeal Nos.3595 to 3612 of 1999 rendered by the Apex Court is concerned, the same was with regard to the powers of the High Court under Article 226 of the Constitution of India to grant the benefits of permanency and regularization. In the instant case, the impugned award has been passed after proper adjudication by the learned Industrial Tribunal and the learned Industrial Tribunal is having powers under the I.D.Act to direct employer not to change service condition and even binding the contracts on employers. 14. Learned advocate Ms.Bhatt submits that the respondent workman has served for more than 21 years and after spending the entire life he cannot be thrown out from the employment nor can be continued on bear minimum wages and deprived from his legitimate claim of wages of equal pay to equal work and therefore, contention with regard to the backdoor entry raised after the period of 21 years of services cannot be considered at this stage. 15. Learned advocate Ms.Bhatt further submits that there is no material produced on record by the petitioner to establish that sanctioned posts were in existence at the relevant point of time and whether that sanctioned post were duly filled-up by following the recruitment regulations. 15. Learned advocate Ms.Bhatt further submits that there is no material produced on record by the petitioner to establish that sanctioned posts were in existence at the relevant point of time and whether that sanctioned post were duly filled-up by following the recruitment regulations. Learned advocate Ms.Bhatt further submits that even the petitioner has not bothered to examine any witness before the learned Industrial Tribunal and therefore, the learned Industrial Tribunal is justified in passing the impugned award directing to regularize the service of the present respondent. 16. Learned advocate Ms.Bhatt submits that, in fact, the sanctioned posts are available as observed by the learned Industrial Tribunal in the impugned award, which was not rebutted by the petitioner by producing the cogent and convincing evidence, therefore, no error has been committed by the learned Industrial Tribunal by arriving the conclusion that the respondents are required to pay the benefit of permanent employees from the date of completion of 240 days from the date of joining i.e. on 19.09.2006. 17. Having thoroughly considered the submissions made by the learned advocates for the respective parties, it transpires that respondents herein were working on the different posts with the petitioner company since more than 20 years, details of each workmen is mentioned hereibelow: 18. It is undisputed fact that except one respondent, in Special Civil Application No.6785 of 2017, namely, Dahya Hamir Sadiya, all are working as on date and getting the minimum wages from the petitioner establishment. It is also not disputed that following the sanctioned set up is available with the present petitioner, which was produced before the learned Assistant Labour Commissioner during the conciliation proceedings, the same is reproduced herein below: Name of post Sanctioned post(10% diduction eligible for allotment Number of posted in District Vacant post against sanction ed 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-cum-Typist 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 20. The pursis below Exhibit 12, which was filed before the learned Industrial Tribunal, wherein the endorsement was made by the learned Government Advocate that all the respondents are continued as on date, suggests that though it is contended by the learned AGP before this Court during the hearing of Special Civil Application Nos.16032 to 16046 of 2012 that the respondents were terminated, appears not correct and an untrue statement. It is also not in dispute that though due opportunity was provided by the learned Industrial Tribunal to lead the evidence neither any witnesses were examined nor any evidence was placed before the learned Industrial Tribunal to show that there is no post available in the sanctioned set up. In absence of the sanctioned set up neither this Court nor the learned Industrial Tribunal can pass an order to create post and to regularize the service, however, that is not the case herein as from the chart referred herein above suggests that there is a post available and vacant also. 21. So far as the arguments with regard to the backdoor entry is concerned, it would be apposite to refer the decision of the Apex Court in the case of Vinod Kumar and others vs. Union of India wherein the following observations are made: “5. Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants in the capacities of regular employees, performing duties indistinguishable from those in permanent posts, and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the temporary and scheme-specific nature of their initial engagement. Moreover, the appellants' promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified merits a reconsideration of their employment status. 6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. 6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra). 7. The judgement in the case Uma Devi (supra) also distinguished between “irregular” and “illegal” appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case. Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder: “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [ (1967) 1 SCR 128 : AIR 1967 SC 1071 ] , R.N. Nanjundappa [ (1972) 1 SCC 409 : (1972) 2 SCR 799 ] and B.N. Nagarajan [ (1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 ] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” 22. It clearly transpires from the record that the present respondents had served for more than 20 years with the present petitioner establishment and though the work is of perennial in nature, they were not made permanent despite having served as a regular employee. 23. This Court is of the view that by depriving from getting the benefits which are given to the regular employees, the petitioner has adopted the unfair labour practice and though the sanctioned posts are available, have remained unfilled and getting the work from the respondents workmen by paying minimum wages for the post, which was meant for the permanent employees. It is nothing but exploitation of the poorly paid employees. 24. In view of the above, this Court does not find any infirmity in the impugned judgment and award passed by the learned Industrial Tribunal and therefore, the petitions are required to be dismissed. 25. It is clarified that the respondent-workman, namely, Daya Hamir Sadiya, who is respondent in Special Civil Application No.6785 of 2017 has attained the age of the superannuation as per the details given by the learned AGP on 31.05.2023 is entitled for the benefits of regular employee till the date of his retirement. 26. Resultantly, these petitions are dismissed. 25. It is clarified that the respondent-workman, namely, Daya Hamir Sadiya, who is respondent in Special Civil Application No.6785 of 2017 has attained the age of the superannuation as per the details given by the learned AGP on 31.05.2023 is entitled for the benefits of regular employee till the date of his retirement. 26. Resultantly, these petitions are dismissed. The judgment and award passed by the learned Industrial Tribunal is hereby confirmed. Rule is discharged. ORDER IN CIVIL APPLICATIONS In view of the judgment passed in Special Civil Applications, the Civil Applications also stands disposed of accordingly.