Gujarat State Land ... vs Jagdish Karsanbhai Rathod C/O ...
2021 Latest Caselaw 10047 Guj

     C/SCA/8439/2009                             JUDGMENT DATED: 30/07/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8439 of 2009


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

================================================================

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

2     To be referred to the Reporter or not ?                         No

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 ?

================================================================
GUJARAT STATE LAND DEVELOPMENTCORPORATION LTD & 2 other(s)
                         Versus
 JAGDISH KARSANBHAI RATHOD C/O KUTCHH JILLA MAJOOR VIKAS
================================================================
Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1,2,3
MR MUKESH H RATHOD(2432) for the Respondent(s) No. 1
================================================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 30/07/2021

                            ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the impugned award

dated 22.06.2009 passed by the Labour Court at Bhuj in

Reference [L.C.D.] No.9 of 2004 whereby the Labour Court has

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directed the petitioners to regularize the service of the

respondent as Class - IV employee in the category of peon w.e.f.

09.02.1985 and also to regularize consequential benefits

including the difference of arrears of pay, dearness allowance

etc. w.e.f. 09.02.1985 with interest at the rate of 12% per

annum, the petitioners have preferred the present petition under

Articles 14, 16, 226 and 227 of the Constitution of India for the

following prayers:-

A. Admit the present Special Civil Application.

B. Allow the present Special Civil Application by way of issuing appropriate writ of mandamus or writ of cerritary or any other writ, direction or order quashing and setting aside the award dated 22.06.09 passed by the Hon'ble Labour Court at Bhuj in Reference [LCD] 9/04 annexed as ANNEXURE - E by way of holding that the same is illegal, unjust, arbitrary, erroneous and contrary to the facts and evidence on record, against the judgments of the Hon'ble Supreme Court of India and Hon'ble High Court of Gujarat against the provisions of the Industrial Disputes Act, 1947 and without jurisdiction in the interest of justice.

C. Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay the implementation, execution and operation of the award dated 22.06.09 passed by the Hon'ble Labour Court at Bhuj in Reference [LCD] 9/04 annexed as ANNEXURE - E in the interest of justice.

D. Call for the record and proceeding of the case bearing Reference [LCD] 9/04 from the Hon'ble Labour Court at Bhju by way of passing appropriate orders in the interest of justice.

E. Pass such other and further orders as the nature and circumstances of the case may require, in the interest of justice.

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2. Brief facts of the case is that the respondent herein -

workman has approached the Labour Court contending that he

was serving as peon w.e.f. 09.02.1982 and was being paid

monthly salary of Rs.1136/- and he was appointed by petitioner -

Corporation herein vide order dated 09.02.1982. It is contended

that he was performing duty as peon on permanent basis. That,

there is set-up of peon in the institution and the post is vacant. It

is also contended that the opponents No.1 and 2 (petitioners

No.1 and 2 herein) were not regularizing the service of the

workman and they were not making permanent him. It is

contended that even the workman is treated as part-time

workers and it is shown that the work, only for four hours per

day, being taken from the workman. However, in reality, he is

working as full time worker. It is contended that the workman is

entitled to get regularization of service for the post of peon with

ancillary benefits. It is also contended that had the workman

appointed on the post of peon in the pay scale of Rs.194 -

Rs.272 than he could have got Rs.7,000/- per month and the

respondents herein have not given any benefits of the

permanent employee to the workman. It is contended that the

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workman has worked for 240 days in every year and, therefore,

he is entitled for regularization of his service on permanent

basis. It is alleged that the necessary legal notice was issued to

the respondents, but they have not given positive response to

him and, therefore, he has filed the reference. It is further

contended that the petitioners herein need to follow the

Government resolutions and they have to regularize the service

of the workman with ancillary benefits of salary and dearness

allowance along with the interest thereof.

3. Heard Mr. H. S. Munshaw, learned counsel for the

petitioners and Mr. Mukesh Ratod, learned counsel for the

respondent through video conferencing.

4. Mr. H. S. Munshaw, learned counsel for the petitioners has

submitted that the petitioner - Corporation is a corporate body

and it has followed the instructions of the Government and there

is sanctioned set-up. He has submitted that now, the Corporation

is received the instructions that the staff members has been

transferred to the other institutions. He has submitted that the

workman was working as part timer and was never appointed on

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permanent post. He has submitted that he has approached the

Lobour Court for regularization of the service after almost 22

years of service. He has submitted that there is no satisfactory

reasons provided for filing such reference after 22 years. He has

submitted that there is clear stand of the petitioners to the fact

that the workman was part timer and he was only doing the work

of sweeping for four hours only in a day. He has submitted that

he was working on temporary post. He has submitted that in his

cross-examination, the workman has accepted that he was

working on contingency basis. Further, he has submitted that

whether the Labour Court has no authority to pass such order

when the employee has no case. He has submitted that the

reasoning for granting regularization as assigned by the Labour

Court is not sustainable in the eyes of law. He has submitted that

the reliance placed on the various Government Resolutions by

the Labour Court is erroneous and those resolutions and circulars

are not applicable to the present case. He has submitted that the

Corporation is registered under the Companies Act and it has

own Rules and Regulations for recruitment and, therefore, the

Government resolutions and circulars are not automatically

applicable to it.

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4.1 Mr.Munshaw, learned counsel for the petitioners has

submitted that without verifying the fact that the concerned

circulars and resolutions are not applicable in a present case, the

Labour Court has passed the impugned award. He has submitted

that there was no post available for granting the prayer of

permanent / regularization of service. He has submitted that due

to the impugned award, there is financial implication and the

interest is penal in character. He has submitted that the interest

is only admissible in the case of non-payment of pension. He has

submitted that the petitioner - Corporation has also closed. He

has submitted that the impugned award of the Labour Court is

factually incorrect and deserves to be quashed and set aside. He

has prayed to allow the present petition.

4.2 Mr.Munshaw, learned counsel for the petitioners has relied

upon the following decisions:

1. State of Tamil Nadu Vs. A. Singamuthu, (2017) 4 SCC

113;

2. Amreli Municipality Vs. Gujarat Pradesh Municipal

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Employees Union, 2004 (2) GLH 692;

3. Gujarat Water Supply and Sewerage Board Vs. Rajesh

Pravinchandra Rajyaguru, 2020 (4) G.L.H. 491;

4. Judgment of dated 23.06.2015 passed by this Court

(Coram: Hon'ble Ms.Justice Sonia Gokani) in Ratilal

Rajubhai Solanki Vs. Ahmedabad Municipal

Corporation in Letters Patent Appeal No.16044 of

2013;

5. Per contra, Mr.Mukesh Rathod, learned counsel for the

respondent has vehemently submitted that the impugned award

of the Labour Court is in consonance with the materials placed

on record and it has taken into consideration the various

government resolutions and circulars which have not been

followed by the petitioners. He has submitted that the learned

counsel for the petitioners has, for the first time, raised the

question of part timer, however, no such question was raised

before the Labour Court. He has submitted that the workman

was transferred from one place to another by order dated

30.03.2000 which has been produced before the Labour Court.

He has submitted that this action of the petitioners suggests that

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the workman was serving on Class - IV post. He has submitted

that it is an admitted fact that the workman was working since

23 years. He has submitted that can there any part timer on

contingency for almost 23 years. According to him, the workman

has produced various documentary evidence which includes the

letter of interview, various office orders and the various

resolutions, but there is no rebuttal evidence produced by the

Corporation. He has submitted that the issue of delay has not

been raised by the Corporation in written statement and,

therefore, that point cannot be considered in the present case.

He has submitted that the arguments of the learned counsel for

the petitioners is not in consonance with the materials placed on

record before the Labour Court. He has submitted that the

impugned award of the Labour Court is factually and legally

sustainable in the eyes of law. He has submitted that the

impugned award is not perverse and therefore it does not

require to be interfered with. He has submitted that the reliance

placed upon various decisions by the learned counsel for the

petitioners are concerned, the same are not applicable to the

factual aspects of the case. He has submitted that so far as the

payment of interest is concerned, it is within the discretion of the

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Court. He has submitted that the Corporation has exploited the

workman and, therefore, the payment of interest cannot be said

to be penal in nature.

5.1 While relying upon the following decisions, Mr.Rathod,

learned counsel for the respondent has prayed to dismissed the

petition.

(1) Umrala Gram Panchayat Vs. Secretary, Municipal

Employees Union and others, (2015) 3 GLR 2197;

(2) Maharashtra State Road Transport Corporation and

another Vs. Casteribe Rajya Parivahan Karmchari

Sanghatana, (2009) 8 SCC 556;

(3) The order of the Division Bench dated 26.09.2013

rendered in Gujarat State Land Development

Corporation Ltd and another in Letters Patent Appeal

No.2652 of 2004 in Special Civil Application No.8575

of 1989 which came to be confirmed by the Supreme

Court vide order dated 10.01.2014 rendered in

Special Leave Petition (C) No.38939 of 2013;

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6. In rejoinder, Mr.Munshaw, learned counsel for the

petitioners has submitted that there was no averments made in

the statement of demand for making him permanent. He has

submitted that the certificate issued to the workman which has

been relied upon by the workman before the Labour Court are

only for quality of his work, but it does not give him any right for

regularization. Regarding the use of word "part-time", he has

submitted that it is just a manual work. He has submitted that so

far as the delay aspect is concerned, it is legal aspect and can be

raised at any stage of proceedings which includes petition under

Article 226 of the Constitution and even at the appellate stage.

He has submitted that the workman was not full time employee.

He has prayed to allow the present petition.

7. In the case of State of Tamil Nadu (supra), the Apex Court

has summarized the principles of regularization, while placing

reliance upon its earlier decision in the case of State of Rajasthan

Vs. Daya Lal, (2011) 2 SCC 429. The Apex Court has observed in

para-16 as under:-

"16. In State of Rajasthan and Others Vs. Daya Lal and Others(2011) 2 SCC 429, this Court has considered the scope of regularisation of irregular or part-time

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appointments in all possible eventualities and thisCourt clearly laid down that part-time employees are not entitled to seek regularisation as they do not work against any sanctioned posts. It was also held that part-time employees in government-run institutions can in no case claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Relevant excerpt from the said judgment is as under: (SCC pp. 435-36, para 12)

"12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:

(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization 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 regularization of services of an employee which would be violative of 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 regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.

(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 regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.

(iii) Even where a scheme is formulated for regularization 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

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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 regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization 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. Uma Devi, (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, (2007) 15 SCC 680 and Official Liquidator v. Dayanand, (2008) 10 SCC 1" (emphasis added)"

8. It appears that only opponent No.2 - petitioner No.2 herein

has filed written statement wherein it is admitted that the

respondent herein - workman was working since 09.02.1982.

However, it is stated that the workman has worked as part-time

workman and the service of four hours was taken from him. It is

also stated that the post on which the respondent herein was

working is not permanent post and he was never appointed on

the post of peon. It is further stated that the workman was given

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the work of sweeping in the office. It is also stated that

respondent - department is established by the Government and

it is working under the guidelines of the Government and it has

not breached any of the Rules and Regulations or the notification

of the Government. It is stated that as per the Government

Resolutions issued from time to time, the workman is paid with

minimum wages as per the Wages Act. It is stated that the

workman being paid fixed remuneration of Rs.1136.20 paise. It

is, therefore, urged to reject the reference.

9. It appears that before referring to the reference by the

concerned Conciliation Officer, the conciliation proceedings was

initiated and thereafter, the reference is referred to the Labour

Court under Section 10(1)(c) of the Industrial Disputes Act, 1947.

It appears from the award of the Labour Court that the workman

has relied upon various government resolutions including the

letter of interview given by the petitioners herein to the

respondent and the letter of appointment and other orders

issued from time to time. Whereas, on behalf of the original

opponents - petitioners herein, one affidavit of Shri Bhailalbhai

Bhawanbhai, Assistant Director has been produced at Exhibit 20

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and no other evidence has been produced by the petitioners

herein.

10. On perusal of the impugned award of the Labour Court that

while relying upon the various government resolutions and

circulars and the fact that the workman has worked since

09.02.1982 and has completed almost 23 years at the time of

passing of the impugned award, the Labour Court has granted

award in favour of the workman directing the petitioners herein

to regularize the service of the workman as Class IV and to grant

pay scale and ancillary benefits with 12% interest.

11. It appears from the record and proceedings and the version

of the workman, which has been made on oath, that in view of

the government resolutions, he was called for interview for the

post of peon. But, as he has not completed the five years of

service at the relevant time, he was not interviewed. He has also

deposed that thereafter, he was called for interview, but, he was

not informed regarding the result thereof. According to him, he

has studied upto 8th Standard, whereas, the qualification for peon

is only passing of 4th Standard. He has submitted that he is

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serving in the respondent since almost 23 years and other

persons have been regularized, whereas, he has not been

granted benefits as per the Government resolutions. On perusal

of his cross-examination, it appears that he has accepted that at

the relevant time he was serving on contingency basis. But,

other factors which he has referred to in his chief-examination

have not been challenged in his cross-examination.

12. On perusal of the materials placed on record, it transpires

that the Finance Department has issued resolution dated

26.12.1980 regarding regularization of the part-time employee

who has completed continuous service of three years. The said

circular has been issued in furtherance of earlier resolution of the

Finance Department being PCR-2576/73-M dated 24.03.1976.

The relevant portion of the Government Resolution of the

Finance Department, which is produced at Exhibit 40 in the Trial

Court, dated 26.12.1980 especially para-2 needs to be

reproduced, which is as under:-

"2. Whenever, part time employment has continued for 3 years, the Head of the Department should make efforts as per the prescribed recruitment Rules and procedure for filing in the posts, to absorb such incumbents in regular posts that may be available under his control and to

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replace the incumbent by a fresh part time employee."

13. It also appears from the letter dated 11.05.1986 at Exhibit

39 that in consonance with the Government Resolution, there

was official communications to the effect that the persons who

have completed five years of service on contingency and whose

Education-Qualification is of 4th Standard pass and age between

18 years to 30 years, they should be called for interview for the

post of peon. On perusal of the letter dated 11.12.1986 at Exhibit

39, it is clearly found that the name of the present petitioner has

been shown therein. It also reveals from letter dated 21.02.1987

at Exhibit 21 addressed to the workman that as he has not

completed five years continuous service, he was not permitted to

appear in the interview. This letter is issued by the petitioner

herein. It also reveals from the resolution issued by the

Agriculture Forest and Cooperative Department dated

04.06.1981 at Exhibit 42 that age relaxation is granted in favour

of the persons, who were working in the department. On perusal

of the office order at Exhibit 22 which is passed on the basis of

the Government Resolution dated 17.10.1988 based on the

Dolatram Parmar Committee, the provisions have been made in

consonance with the resolution dated 17.10.1988 for granting

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various benefits to the work-charged employee etc., which

suggests that the daily wagers who have not completed five

years of continuous service then, they would be entitled for

minimum wages. It also provides therein that the persons who

have completed five years continuous service, but who have

served for particular years of service, as such, not completed ten

years service, then, they would be paid fixed salary of an amount

of Rs.750/- plus dearness allowance prevailing at the relevant

time and they would be entitled for casual leave and option

leave in all 14 days and would be entitled to get remuneratioin

for Sunday. There is also provision in para-3 that the persons

who have completed ten years of service and upto fifteen years

service, they would be entitled to get pay scale as applicable to

the Class IV employee. It is also provided therein that they are

treated to be as permanent for all purpose. There are other

provisions providing various benefits to the persons who have

completed more than 15 years of service. Now, admittedly, this

circular is applicable to the petitioner herein also.

14. It also appears from the letter at Exhibit 43 addressed to

the workman i.e. the respondent wherein he was directed to

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remain present for the post of peon which, letter has been issued

by the Managing Director of the petitioner herein.

15. It also appears from the statement prepared by the

Assistant Director of the petitioner herein which is at Exhibit 44

that the name of the respondent is shown at Sr.No.2 and date of

his initial appointment is 09.02.1982 and at the time of

preparation of statement, he has completed 17 years of service.

It is also appears from the other statement at Exhibit 45

prepared by the officer that regarding particulars of the

respondent as on 01.10.1988 wherein there is specific note to

the effect that as per the Government Resolution dated

01.10.1988, as the respondent has completed six years of

service, he is entitled to get pay of Rs.750/- per month and it was

requested to make him permanent. All the aforesaid

documentary evidence which are in the nature of the

Government Resolutions and Circulars and also official

communications made by the present petitioners to the

respondent clearly suggests that the workman is entitled to get

fixed pay after completion of five years of service and,

thereafter, on completion of five years of service, he is entitled

to pay scale of Class IV employee and after completion of ten

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years of service, he is entitled to get the permanency and

ancillary benefits. Thus, the respondent - workman is entitled to

get the benefits as per the office order at Exhibit 22. Therefore,

the reference made by the workman needs to be granted.

However, the award passed by the Labour Court in granting the

benefits of permanency to the employee w.e.f. 09.02.1985 is not

sustainable in the eyes of law. Merely because, there is

Government Resolution to consider the person who has

continuously served for three years being considered for the

permanent appointment as Class IV servant, it does not ipso

facto creats any right in favour of the workman to be considered

as permanent employee. The other resolutions granting various

benefits of permanency in completion of certain period of service

needs to be taken into consideration. Therefore, the impugned

award needs to be quashed and set aside. However, the

petitioners herein need to be directed to comply with the office

order passed on 02.03.1990 which is in consonance with the

resolution of the Government dated 17.10.1988 based on the

report of Dolatram Parmar Committee.

16. In view of the above, the following order will serve the end

of justice.

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17. The petition is partly allowed. The impugned award dated

22.06.2009 passed by the Labour Court at Bhuj in Reference

[L.C.D.] No.9 of 2004 is hereby quashed and set aside. The

petitioners are directed to give all the benefits as per its own

office order dated 02.03.1990 at Exhibit 22, which is based upon

the Government Resolution dated 17.10.1988 which is based on

the Dolatram Parmar Committee recommendation, to the

respondent within a period of three months from the date of

receipt of the writ of this Court. The petitioners are directed to

pay all the benefits available to him including the arrears of pay

and pension and other ancillary benefits in accordance with law.

Rule is made absolute to the aforesaid extent. Interim

relief, if any, stands vacated forthwith.

No order as to costs.

Record and proceedings be sent back to the concerned

Trial Court forthwith.

Sd/-

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