Gabrubhai Revabhai vs Botad Nagar Palika
2021 Latest Caselaw 10863 Guj

     C/SCA/6272/2012                             JUDGMENT DATED: 06/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


               R/SPECIAL CIVIL APPLICATION NO. 6272 of 2012


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER


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1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         Yes

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          GABRUBHAI REVABHAI
                                Versus
                          BOTAD NAGAR PALIKA
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER


                             Date : 06/08/2021


                            ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the impugned award

dated 07.03.2012 passed by the Industrial Tribunal, Bhavnagar

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in Reference (I.T.) No.102 of 1998, whereby the reference

preferred by the petitioner herein came to be rejected, the

present petition is filed by the petitioner - workman under

Articles 226 and 227 of the Constitution of India for the following

prayers.

(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, quashing and setting aside the impugned award passed by the Industrial Tribunal marked ANN.A to this petition, being illegal, contrary to record and against the decision rendered by the Hon'ble Supreme Court of India in series of petitions quoted in the body of the petition;

(B) That Your Lordships be Pleased to direct the respondent to grant pay-scale along with the arrears for the post of Peon to the petitioner;

(C) Pending admission and final disposal of this petition, Your Lordships be pleased to direct the respondent to reconsider the case in the light of the submissions made in the present petition;

(D) Any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice together with costs;

2. Brief facts of the present case is that the petitioner was

working in Class IV Cadre in Botad Nagarpalika and he was

initially appointed as daily wager w.e.f. 01.01.1998. It is

contended by the petitioner that earlier his service came to be

terminated on 27.04.2005 and, therefore, he has raised the

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industrial dispute by filing a Complaint No.(I.T.) No.7 of 2005

before the Tribunal and the Tribunal has held the impugned

action in terminating the service of the petitioner as illegal and

directed reinstatement with all consequential benefits vide

award dated 30.06.2007. It is further contended by the petitioner

that against the aforesaid award, the respondent filed Special

Civil Application No.29004 of 2007 before this Court whereby this

Court (Coram: Hon'ble Mr.Justice H. K. Rathod) has modified the

award vide order dated 02.04.2008 and held that the workman is

entitled for reinstatement with continuity of service with 50% of

back wages of interim period. It is contended that the petitioner

is continuously working from 1998. It is also contended by the

petitioner that as the Union has preferred the reference in 1998

for treating the workman as permanent from the date of his

appointment along with the prayer of granting him all benefits of

permanent employee along with the arrears.

2.1 The respondent herein has resisted the claim of the

petitioner by filing written statement at Exhibit 12 in the

reference and has stated that there is sanctioned set up in the

institution and as and when there is addition of work, the

institution was engaging the persons on purely temporary and

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daily basis. It is stated that the workman was appointed as daily

wager w.e.f. 01.01.1998 and, thereafter, he had immediately i.e.

on 06.02.1998 get an interim injunction and by virtue of the

interim injunction, he is serving. It is contended that the

workman is working out of set-up and the reference is not

tenable.

3. Heard Mr.T. R. Mishra, learned counsel for the petitioner

and Mr.Premal Joshi, learned counsel for the respondent through

video conferencing.

4. Mr.T. R. Mishra, learned counsel for the petitioner has

vehemently submitted the same facts which are narrated in the

memo of petition. He has drawn the attention of the Court

regarding the observations of various decisions referred to in the

memo of petition. He has submitted that the Tribunal has

rejected the reference only on the ground of the decision of the

Apex Court in the case of State of Karnataka Vs. Umadevi. While

referring to the earlier award, he has submitted that the

respondent herein has challenged the award by filing Special

Civil Application No.29004 of 2007 wherein also reinstatement of

the workman was confirmed with back wages of 50%. While

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referring to the abstracts of various decisions as referred to in

the memo of petition, he has submitted that by virtue of those

decisions, the petitioner is entitled to get "equal pay for equal

work" and entitled to be considered as permanent employee

with effect from his initial appointment i.e. 01.01.1998. He has

submitted that the workman has produced various documentary

evidence before the Tribunal which are at Exhibits 58, 62, 63 and

64. While referring to the cross-examination of the officer of the

Nagarpalika, he has submitted that the officer has no personal

knowledge and he has admitted that the workman was working

since 01.01.1998.

5. Mr.Mishra, learned counsel for the petitioner has further

submitted that while treating the workman on daily basis since

1998, it is nothing but an unfair labour practice on behalf of the

respondent herein. He has submitted that the provisions of

Section 25B and 25F of the Industrial Disputes Act, 1947

(hereinafter be referred to as the "I.D. Act.") as well as item

No.6 and 10 of Schedule V of the I.D. Act are applicable to the

facts of the present case. According to him, non-granting of

equal pay, which are available to Class IV employee in the

Nagarpalika, to the petitioner is unfair labour practice and the

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Tribunal ought to have considered all these aspects. According to

him, the Tribunal has not considered the various decisions relied

upon by the petitioner herein and has mainly relied upon the

decision in the case of State of Karnataka Vs. Umadevi which is

not applicable to the facts and circumstances of the case. He

has submitted that the Tribunal has committed serious error of

facts and law in rejecting the reference filed by the petitioner. He

has submitted that the impugned award needs to be set aside.

He has prayed to allow the present petition and pass appropriate

order for granting pay scale to the petitioner as available to

Class IV employee of the respondent and the petitioner be

treated as permanent employee with effect from his initial

appointment i.e. 01.01.1998. He has relied upon the following

decisions in support of his submissions:-

(1) Amarkant Rai Vs. State of Bihar and others, (2015) 8 SCC

(2) Maharashtra State Road Transport Corporation and

another Vs. Casteribe Rajya Parivahan Karmchari

Sanghatana, (2009) 8 SCC 556

(3) State of Punjab and others Vs. Jagjit Singh and others,

(2017) 1 SCC 148;

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(4) Botad Nagarpalika Vs. Shantaben Jagjivanbhai in Letters

Patent Appeal No.289 of 2003 dated 28.09.2011;

(5) Mahuva Municipality Vs. Maheshbhai Jinabhai Sarvayya,

Letters Patent Appeal No.1036 of 2016 and allied matters

dated 06.03.2018 passed by the Division Bench (Coram:

Hon'ble Mr.Justice Anant S. Dave and Hon'bleMr.Biren

Vaishnav);

(6) Bhogilal R. Damor Vs. Secretary and others, in Special

Civil Application No.15183 of 2011 and allied matters

dated 17.10.2011 passed by this Court (Coram: Hon'ble

Mr.Justice Anant S. Dave);

6. Per contra, Mr.Premal Joshi, learned counsel for the

respondent has vehemently submitted that the petitioner has

continued in service due to the interim order of the Court and,

therefore, he cannot be treated as permanent employee. He has

submitted that on account of the interim protection by the order

of the Court, the petitioner is working and, therefore, there is no

question of any unfair labour practice. He has submitted that

there is set-up available in Nagarpalika. He has submitted that

the entry of the present petitioner in the Nagarpalika is only as a

daily wager and that too, on temporary basis from 01.01.1998.

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He has submitted that after just one month of services, the

petitioner approached the Court and obtained the interim

injunction and, thereafter, on that basis, he is working. He has

submitted that the petitioner has not mentioned the date of his

appointment in the statement of claim in the present reference.

He has submitted that by virtue of filing of Civil Suit No.58 of

1998 and Complaint (I.T.) No.6 of 1998, he obtained an interim

injunction and since then he is working. According to him, the

petitioner has worked just for approximately one and half month

and has raised the dispute. Mr.Joshi, learned counsel has

submitted that the decisions relied upon by learned counsel for

the petitioner are not applicable to the facts of the present case.

According to him, in the present case there is no regular

appointment of the petitioner and he was appointed on purely

temporary and daily wager and his entry in the service is

backdoor entry and due to the judicial order, he has been

continued in service. He has prayed to dismiss the present

petition by confirming the order of the Tribunal. According to

him, the Tribunal has not committed any error of facts and law in

rejecting the reference of the petitioner and the same is

sustainable in the eyes of law and, therefore, the same may be

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confirmed by dismissing the present petition. He has submitted

that the reliance placed upon by various decisions by the learned

advocate for the petitioner and referred to in the memo of

petition are also not applicable to the facts and circumstances of

this case.

6.1 Mr.Joshi, learned counsel for the respondent has relied

upon the following decisions:-

(1) Secretary, State of Karnataka and others Vs. Umadevi and

others, (2006) 4 SCC 1;

(2) State of Rajasthan and others Vs. Daya Lal and others,

(2011) 2 SCC 429;

7. In rejoinder, Mr.Mishra, learned counsel for the petitioner

has submitted that there was termination of the petitioner in the

year 2005 which was challenged by him in the Labour Court and,

thereafter, he was reinstated in service with back wages and

continuity of service. He has submitted that initial period of from

1997 till 2005 even if not considered, the benefits be given to

the petitioner from 2005 and onward. He has submitted that

since the petitioner is working in the respondent for long time

and is carrying out same work of Class IV employee, he may be

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granted the same pay scale. He has also submitted that if no

regularization is granted, even then, he may be granted lowest

pay scale of the Class IV employee. He has prayed to allow the

present petition and to quash and set aside the impugned award

of the Tribunal.

8. In the case of Jagjit Singh and others (supra), the Apex

Court has considered the principle of "equal pay for equal work"

and ultimately, summarized the said principle as follows :-

(i) The "onus of proof" of parity in the duties and responsibilities of the subject post with the reference post under the principle of "equal pay for equal work" lies on the person who claims it. He who approaches the court has to establish that the subject post occupied by him requires him to discharge equal work of equal value, as the reference post.

(Para 42.1)

Orissa University of Agriculture & Technology v. Manoj K. Mohanty, (2003) 5 SCC 188: 2003 SCC (L&S) 645; U. T. Chandigarh, Admn v. Manju Mathur, (2011) 2 SCC 452 : (2011) 1 SCC (L&S) 348; SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122 : (2011) 2SCC (L&S) 192; National Aluminum Col Ltd. v. Ananta Kishore Rout, (2014) 6 SCC 756 : (2014) 2 SCC (L&S) 353, relied on

(ii) The mere fact that the subject post occupied by the claimant is in a "different department" vis-a-vis the reference post does not have nay bearing on the determination of a claim under the principle of "equal pay for equal work". Persons discharging identical duties cannot be treated differently in the matter of their pay, merely because they belong to different departments of the Government. (Para 42.2)

Randhir Singh v. Union of India, (1982) 1 SCC 618 :

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1982 SCC (L&S) 119; D. S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145, relied on

(iii) The principles of "equal pay for equal work", applies to cases of unequal scale of pay, based on no classification or irrational classification. For equal pay, the employees concerned with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity. (Para 42.3)

Randhir Singh v. Union of India, (1982) 1 SCC 618 : 1982 SCC (L&S) 119; Federation of All India Customs and Central Excise Stenographers v. Union of India, (1988) 3 SCC 91 : 1998 SCC (L&S) 673; Mewa Ram Kanojia v. All India Institute of Medical Sciences, (1989) 2 SCC 235 : 1989 SCC (L&S) 329; Grih Kalyan Kendra Workers' Union v. Union of India, (1991) 1 SCC 619 : 1991 SCC (L&S) 621; S. C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897 : 2 SCEC 943, relied on

(iv) Persons holding the same rank / designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay and cannot claim the benefit of the principle of "equal pay for equal work". Therefore, the principle would not be automatically invoked merely because the subject and reference posts have the same nomenclature.

(Para 42.4)

Randhir Singh v. Union of India, (1982) 1 SCC 618 : 1982 SCC (L&S) 119; State of Haryana v. Haryana Civil Secretarial Personal Staff Assn., (2002) 6 SCC 72 : 2002 SCC (L&S) 822; Hukum Chand Gupta v. ICAR, (2012) 12 SCC 666 : (2013) 3 SCC (L&S) 493, relied on

(v) In determinating equality of functions and responsibilities under the principle of "equal pay for equal work", it is necessary to keep in mind that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible. The nature of work of the subject post should be the same and not less onerous than the

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reference post. Even the volume of work should be the same. And so also,, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of "equal pay for equal work."

Federation of All India Customs and Central Excise Stenographers v. Union of India, (1988) 3 SCC 91 : 1988 SCC (L&S) 673; SBI v. M. R. Ganesh Babu, (2002) 4 SCC 556 : 2002 SCC (L&S) 568; State of U. P. v. J. P. Chaurasia, (1989) 1 SCC 121 : 1989 SCC (L&S) 71; Grih Kalyan Kendra Workers' Union v. Union of India, (1991) 1 SCC 619 : 1991 SCC (L&S) 621, relied on

(vi) For placement in a regular pay scale, the claimant has to be a regular appointee selected on the basis of a regular process of recruitment. An employee appointed on a temporary basis cannot claim to be placed in the regular scale.

(Para 42.6)

Orissa University of Agriculture & Technology v. Manoj K. Mohanty, (2003) 5 SCC 188: 2003 SCC (L&S) 645, relied on

(vii) Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay scales. Such as "selection grade", in the same post. But this difference must emerge out of a legitimate foundation, such as - merit, or seniority, or some other relevant criteria.

(Para 42.7)

State of U. P. v. J. P. Chaurasia, (1989) 1 SCC 121 : 1989 SCC (L&S) 71, relied on

(viii) If the qualifications for recruitment to the subject post vis-a-vis the reference post are different, it may be difficult to conclude that the duties and responsibilities of the posts are qualitatively similar or comparable. In such a case the principle of "equal pay for equal work" cannot be invoked.

(Para 42.8)

Mewa Ram Kanojia v. All India Institute of medical Sciences, (1989) 2 SCC 235 : 1989 SCC (L&S) 329; State of W.B. v. Tarun K. Roy, (2004) 1 SCC 347 : 2004 SCC (L&S) 225, relied on

State of W.B. v. Debdas Kumar, 1991 Supp (1) SCC

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138 : 1991 SCC (L&S) 841, referred to

(ix) The reference post with which parity is claimed under the principle of "equal pay for equal work" has to be at the same hierarchy in the service as the subject post. Pay scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post. (Para 42.9)

Union of India v. Pradip Kumar Dey, (2000) 8 SCC 580 : 2001 SCC (L&S) 56; Hukum Chand Gupta v. ICAR, (2012) 12 SCC 666 : (2013) 3 SCC (L&S) 493, relied on

Hukum Chand Gupta v. Central Administrative Tribunal, CWP No.9595 of 2004, decided on 8-7-2008 (P&H), held affirmed

Dibyendu Bhattacharya v. SAIL, 2008 SCC OnLiine Cal 524 : (2008) 4 CHN 232, referred to

(x) A comparison between the subject post and the reference post under the principle of "equal pay for equal work" cannot be made where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master. Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity.

(Para 42.10)

Harbans Lal v. State of H. P., (1989) 4 SCC 459 : 1990 SCC (L&S) 71; Official Liquidator v. Dayanand, (2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943, relied on

Ananta Kishore Rout v. National Aluminium Co. Ltd., (2007) 103 Cut LT 281, referred to

(xi) Different pay scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of "equal pay for

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equal work" would not be applicable. And also when the reference post includes the responsibility to take crucial decisions, and that is not so far the subject post.

(Para 42.12)

SBI v. M. R. Ganesh Babu, (2002) 4 SCC 556 : 2002 SCC (L&S) 568, relied on

(xii) The priority given to different types of posts under the prevailing policies of the Government can also be a relevant factor for placing different posts under different pay scales. Herein also, the principle of "equal pay for equal work" would not be applicable. (Para 42.12)

State of Haryana v. Haryana Civil Secretariat Personal Staff Assn., (2002) 6 SCC 72 : 2002 SCC (L&S) 822, relied on

(xiii) The parity in pay, under the principle of "equal pay for equal work", cannot be claimed merely on the ground that at an earlier point of time the subject post and the reference post, were placed in the same pay scale. The principle of "equal pay for equal work" is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities.

(Para 42.13)

State of W.B. v. W.B. Minimum Wages Inspectors Assn., (2010) 5 SCC 225 : (2010) 2 SCC (L&S) 1, relied on

State of U. P. v. Ministerial Karamchari Sangh, (1998) 1 SCC 422 : 1998 SCC (L&S) 287 ; Associate Banks Officers Assn. v. SBI, (1998) 1 SCC 428 : 1998 SCC (L&S) 293; U. P. SEB v. Aziz Ahmad, (2009) 2 SCC 606 : (2009) 1 SCC (L&S) 418, cited

(xiv) For parity in pay scales under the principle of "equal pay for equal work", equation in the nature of duties is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of

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duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable. (Para 42.14)

U. T. Chandigarh, Admn. v. Manju Mathur, (2011) 2 SCC 452 : (2011) 1 SCC (L&S) 348, relied on

(xv) There can be a valid classification in the matter of pay scales between employees even holding posts with the same nomenclature i.e. between those discharging duties at the headquarters, and others working at the institutional / sub-office level when the duties are qualitatively dissimilar.

(Para 42.15)

Hukum Chand Gupta v. ICAR, (2012) 12 SCC 666 : (2013) 3 SCC (L&S) 493, relied on

(xvi) The principle of "equal pay for equal work" would not be applicable, where a differential higher pay scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues.

(Para 42.16)

Hukum Chand Gupta v. ICAR, (2012) 12 SCC 666 : (2013) 3 SCC (L&S) 493, relied on

(xvii) Where there is no comparison between one set of employees of one organisation, and another set of employees of a different organisation, there can be no question of equation of pay scales under the principles of "equal pay for equal work", even if two organisations have a common employer. Likewise, if the management and control of two organisations is with different entities which are independent of one another, the principle of "equal pay for equal work" would not apply.

S. C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897 : 2 SCEC 943; National Aluminium Co. Ltd v. Ananta Kishore Rout, (2014) 6 SCC 756 : (2014) 2 SCC (L&S) 353, relied on.

Surendra Nath Pandey v. U. P. Land Development Corpn. Ltd., 2004 SCC OnLine All 1481 : 2005 All LJ 229, held, reversed.

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8.1 It is further observed in the said decision that in claim of

temporary employees for minimum wages, on par with regularly

engaged Government employees, cannot be denied.

9. In the case of Umadevi (supra), the Apex Court has held

that casual labourer / temporary employee do not have any right

to regularize in public employment. It is also held that

temporary, contractual casual ad hoc daily wagers must be

deemed to be accepted by the employee fully knowing the

nature of it and the consequences flowing from it.

10. In the case of State of Rajasthan and others Vs. Daya

Lal and others (supra), the Apex Court has, in para-12,

summarized the well settled principle relating to the

regularization and parity in pay as under:-

"12. We may at the outset refer to the following well-settled principles relating to regularisation and parity I 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

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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.

(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.

[See State of Karnataka v. Umadevi, (2006) 4 SCC 1, M. Raja v. CEERI Educational Society, (2006) 12 SCC 636, S. C. Chandra v. State of Jharkhand, (2007) 8 SCC 279. Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand,

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(2007) 15 SCC 680 and Official Liquidator v. Dayanand, (2008) 10 SCC 1.]

11. In the case of Maharashtra State Road Transport

Corporation (supra), the Apex Court, while dealing with its own

decisions in the case of Umadevi's case, has observed in paras-

34 to 36 as under:-

34. It is true that the case of Dharwad District PWD Literate Daily Wage Employees Assn. Vs. State of Karnataka, (1990) 2 SCC 396 arising out of industrial adjudication has been considered in State of Karnataka v. Umadevi, (2006) 4 SCC 1 and that decision has been held to be not laying down the correct law but a careful and complete reading of decision in State of Karnataka v. Umadevi, (2006) 4 SCC 1 leaves no manner of doubt that what this Court was concerned in State of Karnataka v. Umadevi, (2006) 4 SCC 1 was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed.

35. State of Karnataka v. Umadevi, (2006) 4 SCC 1 is an authoritative pronouncement for the proposition that Supreme Court (Article 32) and High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme.

36. State of Karnataka v. Umadevi, (2006) 4 SCC 1 does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP Act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exists. Umadevi cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of

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MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established.

12. In the case of Amarkant Rai (supra), the Apex Court has

observed that considering the facts and circumstances of the

case, the appellant has served the University for more than 29

years on the post of night guard and that he had served the

College on daily wages, in the interest of justice, directed the

authorities to regularise the services of the appellant

retrospectively. Of course, it is without monetary benefits of the

notional period and with continuity of service.

13. In the case of Bhogilal R. Damor (supra), this Court

(Coram: Hon'ble Mr.Justice Anant S. Dave) has directed the

concerned authority to examine case of each of the petitioners

vis-a-vis the post on which the petitioner - workmen was

working, qualification contained therein, nature of duty

discharged by such workmen, in light of the scheme approved by

the Apex Court in Gujarat Agricultural University and also

process under taken by the petitioner - workmen before

Government Labour Officer, Banaskantha.

14. In the case of Maheshbhai Jinabhai Sarvayya (supra),

wherein while setting aside the order of the learned Tribunal as

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well as the order of the learned Single Judge granting

regularization was reversed. Regarding the question of granting

pay and pay scale that was available to the permanent clerks,

the Division Bench of this Court has observed that the

Municipality was directed to grant the minimum of the pay-scale

revised from time to time to the Clerks and the peon and

directed to pay arrears of amount thereof.

15. Having considered the submissions made by the learned

counsel for the respective parties, recitals of various decisions in

the memo of petition, the materials placed on record as well as

impugned award passed by the Tribunal, it is an admitted facts

that the petitioner herein was initially appointed as daily wager

on temporary basis w.e.f. 01.01.1998. It is also an admitted facts

that in the very next month i.e. in the month of February 1998,

the workman has approached the Civil Court and has obtained

the interim injunction and by virtue of interim injunction, his

services came to be continued. It also appears from the record

that thereafter, the workman has approached the Tribunal by

filing Complaint (I.T.) No.6 of 1998 and obtained the stay, against

his proposed termination of service, and he was continued in

services by virtue of that order. It also reveals from the record

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that in the meanwhile, his services was terminated in the year

2005 against which he has filed Complaint (I.T.) No.7 of 2005

which came to be allowed by the Tribunal on 30.06.2007, while

granting relief of reinstatement with back wages from

29.02.2005. It is also an admitted facts that against that order,

the respondent has preferred Special Civil Application No.29004

of 2007 which came to be partly allowed vide order dated

02.04.2008 passed by the Coordinate Bench (Coram: Hon'ble

Mr.Justice H. K. Rathod) modifying the order of full back wages to

the extent of reducing 50% back wages of interim arrears, of

course, with the reinstatement and continuity of services. Thus,

Complaint (I.T.) No.7 of 2005 came to be instituted due to

termination of the service of the workman and vide order dated

30.06.2007, the complaint came to be allowed, as Reference

(I.T.) No.102 of 1998 for regularization was pending.

16. Now, considering the record of the petition, it appears that

the workman through the Union has filed Reference (I.T.) No.102

of 1998 alleging that the petitioner was working on the post of

the peon and he is not made permanent, whereas, his juniors

have been made permanent in services. The other point raised

that the respondent was being paid only minimum wages to the

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workman, but other benefits are not being paid to him though he

was coming out the same duties which are being carried out by

the permanent employee. It is contended by the petitioner that

though he is required to be made permanent, he was not made

permanent and, therefore, the notice dated 06.02.1998 was

served to the respondent alleging that he was not being made

permanent. It is also contended by the petitioner that therefore,

he has approached the concerned Assistant Labour

Commissioner, thereafter, as no settlement was made,

Reference (I.T.) No.102 of 1998 was filed. On all these grounds, it

is prayed that the petitioner to make him permanent with the

date of his initial appointment and to direct the respondent to

pay him all the benefits which are available to the permanent

employee.

17. It appears that the respondent herein has filed it's written

statement at Exhibit 12 opposing the grant of such relief on the

ground that the workman was not performed duty continuously

and he was appointed as daily wager on temporary basis w.e.f.

01.01.1998 and he has immediately filed conciliation application

for making him permanent in service. It is stated by the

respondent that there are only two permanent posts of the peon

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in the setup, whereas, the workman is working on temporary and

daily wage basis and he is out of setup. It is also denied the

allegation made by the workman that the juniors of him were

made permanent. It is also stated that the wage, which is liable

to be paid, are being paid. It is further stated that by filing

reference, the workman has obtained the injunction from the

Court and, therefore, he is in service. It is alleged that the

workman has worked only for one month as daily wager and has

raised demand of making him permanent is unreasonable and

unconstitutional. It is alleged that as he was not working against

permanent post, he was likely to be terminated, he has

immediately approached the concerned Court by alleging the

false facts and obtained an interim injunction. On all these

grounds, it was prayed to dismiss the reference.

18. On perusal of the oral and documentary evidence produced

on record, it appears that in the chief-examination, the workman

has categorically stated the same facts which are narrated in the

statement of claim. According to him, the post on which he is

working is permanent in nature. He has further deposed that as

per initial order, now he is working as watchman. It is also

deposed by him that at the time of his deposition, he was getting

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remuneration of Rs.2600 - Rs.2700, whereas, the permanent

watchman was getting Rs.5,000/-. According to him, he was not

granted any benefits which are available to the permanent

employee. During his cross-examination, he has stated that he

did not know as to what was his remuneration at the time of his

initial appointment. He has denied the suggestion that he was

relieved from the service w.e.f. 31.03.1998. He has shown his

ignorance as to whether he has filed any suit in the Civil Court.

However, he has admitted that he has filed Complaint (I.T.) No.6

of 1998 before the Industrial Tribunal and obtained interim

injunction thereof. He has deposed that his brother is also

permanent watchman. He has deposed that he has not produced

any documentary evidence regarding his service being

continuous.

19. It appears from the deposition of Bharatkumar

Pravinchandra Vyas at Exhibit 34, which is produced at page

No.70 that the workman was not selected through recruitment

process and he entered in service w.e.f. 01.01.1998 and within

short period, he has filed the complaint before the conciliation

officer. He has deposed that the workman was not working on

permanent post and due to the injunction of the Court, he was

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not relieved from the service. He has deposed that the workman

has not been appointed on any permanent post and he was

appointed by passing the resolution. It is his version that there is

no post vacant in the setup of the peon. He has deposed that no

recruitment process is going on and no daily wagers are being

appointed.

19.1 During his cross-examination, he has admitted that

when the workman was taken in service, he was not in

service of the Nagarpalika and whatever he has stated

are on the basis of the record and he has no personal

knowledge. He has shown his ignorance as to whether

workman was engaged on 01.01.1997 or 01.01.1998. He

has also admitted that the record of the pay bill as well as

attendance card are available on record of the

Nagarpalika. He has admitted that the Recruitment

Committee is for the purpose of recruiting the daily

wager. Regarding setup, he has stated that he cannot say

as to what are the strength of the setup for various posts

and he did not know as to when the setup of the

Nagarpalika was lastly sanctioned.

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20. Both the sides have produced the documentary evidence

which consists of various orders passed in favour of the workman

assigning the duty as well as set up of the Nagarpalika.

21. Now, considering the evidence on record, it clearly

transpires that after getting service as daily wager in the month

of January 1998, the workman has, after one month, filed civil

suit and obtained injunction and, thereafter, he has moved the

Industrial Tribunal by filing reference and obtained the injunction

thereof. It also appears from the record that on the basis of the

injunction, his service came to be continued. It is also admitted

fact that during the pendency of that reference, the workman

was relieved from the service due to some misconduct. But the

employer did not follow the procedure under the Industrial

Disputes Act and did not file any application for approval.

Therefore, in absence of such application, the workman has

moved the Industrial Tribunal by filing reference in the year 2005

which came to be allowed as referred to hereinabove. Thus, the

workman came to be reinstated due to the order of the Tribunal

which was modified by the Coordinate Bench of this Court. Thus,

the version of the workman that his service is continued from

1998 is based on account of passing of the injunction in his

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favour. It also appears from the record that there was no regular

setup of the peon. However, one thing is clear that he was

serving from 1998 and still he is in service. Thus, almost 23

years has been passed. Of course due to the injunction order

obtained by him, he is in service from 1998.

21.1 At this juncture, it is worthwhile to refer to para-42.6 of the

case of Jagjit Singh and others (supra) which reads as under:-

For placement in a regular pay scale, the claimant has to be a regular appointee selected on the basis of a regular process of recruitment. An employee appointed on a temporary basis cannot claim to be placed in the regular scale.

22. Thus, in the present case, it is crystal clear that workman is

not a regular appointee selected on the basis of regular process

of recruitment. Therefore, he being appointed on temporary

basis that too, daily wager, he cannot claim to be placed in the

regular service. Further, in para-12(ii) of the decision in the case

of Daya Lal and others (supra), 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". In the present case, the service of the

workman is continued due to the interim injunction initially

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passed by the Civil Court and, thereafter, by the Tribunal.

Therefore, the claim of the workman that he was in continuous

service since 1998 does not confer him any right to get a

permanency in the post.

23. Now, so far as the prayer of the petitioner regarding his

regularization of his service is concerned, it is admitted facts that

he was not selected by following due procedure. There is no any

iota of evidence produced by him that he fulfills the qualification

meant for the post. Further continuation of his service is based in

the interim order of the Court. In view of the above, the prayer

for regularization cannot be granted to the workman i.e.

petitioner. However, after his dismissal by the Tribunal in the

year 2012, his service is not terminated by the authority

concerned. It also appears that he is working with the

respondent as Class IV servant. Therefore, considering the

observation of the Apex Court in the said of Jagjit Singh and

others (supra), the claim of the workman for minimum wages,

on par with regularly engaged the employees, cannot be

declined.

24. In view of the above, the petition is partly allowed. The

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impugned award dated 07.03.2012 passed by the Industrial

Tribunal, Bhavnagar in Reference (I.T.) No.102 of 1998 is

quashed and set aside. It is held that the petitioner herein is

entitled to get the benefits of wages at par with the minimum of

regular pay scale revised from time to time on the same lines as

being given to the regular Class IV employees from the date of

filing of this petition i.e. 13.04.2012. The respondent -

Nagarpalika is directed to extend the benefits of granting wages

at par with the minimum of the pay scale revised from time to

time to the petitioner herein together with arrears from the date

of filing of this petition within a period of three months from the

date of receipt of the writ of this order.

If any representation is made by the petitioner for further

benefits under the Government Resolution dated 17.10.1988, then, if

the said Government Resolution is made applicable to the respondent,

the same may be considered by the respondent for further benefits

considering the aforesaid order of granting the minimum pay scale to

the petitioner herein.

25. Rule is made absolute to the aforesaid extent. No order as to

costs.

(DR. A. P. THAKER, J) V.R. PANCHAL