Veraval Patan Joint Nagarpalika ... vs Mahagujarat General Works Union
2021 Latest Caselaw 7544 Guj

     C/SCA/11347/2012                                   JUDGMENT DATED: 02/07/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 11347 of 2012


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 ?

================================================================
VERAVAL PATAN JOINT NAGARPALIKA THROUGH ITS CHIEF OFFICER
                         Versus
           MAHAGUJARAT GENERAL WORKS UNION
================================================================
Appearance:
MR MURALIN DEVNANI(1863) for the Petitioner(s) No. 1
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
================================================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                                 Date : 02/07/2021

                                ORAL JUDGMENT

1. The present petition is filed under Articles 226 and 227 of the Constitution of India for the following prayers.

(A) YOUR LORDSHIPS MAY BE PLEASED TO issue a writ of certiorari or any other appropriate writ, direction and/

C/SCA/11347/2012 JUDGMENT DATED: 02/07/2021

or order in the nature of certiorari quashing and setting aside the impugned order dated 13.4.2012 in Demand Reference Case No.3 of 1991 passed by the learned Judge, Labour Court, Junagadh.

(B) Pending admission, hearing and final disposal of this application, be pleased to stay by staying the operation, implementation and execution of the impugned order dated 13.4.2012 in Demand Reference Case No.3 of 1991 passed by the learned Judge, Labour Court, Junagadh.

(C) Your Lordships may be pleased to award any such other and further relief as may be deemed just and expedient in the interest of justice.

2. Heard Mr.Murali Devnani, learned advocate for the petitioner and Ms.Sejal Mandavia, learned advocate for the respondents, at length, through video conferencing.

3. Mr.Devnani, learned advocate for the petitioner has vehemently submitted that initial appointments of the concerned persons were illegal as no legal procedure was followed for the selection. According to him, since the persons concerned were not appointed on the regular basis, there is no question of any reinstatement. He has submitted that the Labour Court has specifically observed in its award that the persons are not entitled to be made permanent. He has submitted that however, on the contrary, the Labour Court has passed the impugned award directing the petitioner to give permanency with seniority. He has submitted that the written statement filed by the petitioner herein before the Labour Court has not been considered properly. While inviting the attention of the Court, he has submitted that earlier, the Labour Court has passed the award to grant permanency to the members of the Union which

C/SCA/11347/2012 JUDGMENT DATED: 02/07/2021

came to be challenged by the petitioner by filing Special Civil Application No.9325 of 2003 wherein the Coordinate Bench of this Court (Coram: Hon'ble Mr.Justice K. S. Jhaveri) vide order dated 26.08.2010 set aside the said order and the matter was remanded to the Labour Court to decide the same in consonance with the decision of the Full Bench of this Court in the case of Amreli Municipality Vs. Gujarat Pradesh Municipal Employees Union Union, 2004 (3) GLR 1841. While inviting the attention of the Court to the award of the Labour Court, he has submitted that out of the persons, the persons named in the award some have left the job and different references which are filed by some persons are pending. He has submitted that the Labour Court has committed error of facts and law in passing the impugned award. He has prayed to set aside the impugned award and allow the present petition. He has relied upon the following decisions :-

1. Vrajlal Bachubhai Khachariya Vs. State of Gujarat dated01.09.2017 rendered in Letters Patent Appeal No.1284 of 2016 with allied matter;

2. Gangadhar Pillai Vs. Siemens Ltd dated 10.11.2006 rendered in Appeal (Civil) No.4769 of 2006;

4. Per contra, Ms.Mandavia, learned advocate for the respondents has submitted that the impugned award passed by the Labour Court is just and proper. According to her submissions, the Labour Court has only directed the petitioner

C/SCA/11347/2012 JUDGMENT DATED: 02/07/2021

herein to get the set-up sanctioned from the Higher Authority and, thereafter, to consider the case of permanency and to grant permanency to the members of the Union keeping in mind the seniority. She has submitted that the order passed in previous litigation cannot be considered at all. She has submitted that the decisions cited by the learned advocate for the petitioner are not applicable to the facts of the present case. She has prayed to dismiss the present petition.

5. Having considered the submissions made on behalf of both the sides and considering the materials placed on record and the award of the Labour Court, it appears that earlier the Labour Court has granted Reference Demand Case No.3 of 1991 which came to be challenged by the present petitioner by filing Special Civil Application No.9325 of 2003 which was disposed of by the Coordinate Bench of this Court (Coram: Hon'ble Mr.Justice K. S. Jhaveri) on 26.08.2010 directing the Labour Court to take into consideration the Full Bench decision of this Court rendered in the case of Amreli Municipality (supra). It also appears from the award that after remand of the matter, the Labour Court has considered the facts of the case and, thereafter, passed the impugned award. On perusal of the award, it clearly transpires that the petitioner has clearly stated in its written statement that some of the persons named in the reference are not working with it and two of them have left the job and their cases for reinstatement have been rejected, whereas, the other cases are also pending regarding some other workmen. It has been specifically stated by the petitioner herein that they have joined

C/SCA/11347/2012 JUDGMENT DATED: 02/07/2021

the services in the year 2000 and yet they have demanded permanency from the year 1993. It is stated therein that there is no permanent set-up and all the persons are appointed as daily wagers. It appears from the impugned award that the Labour Court has specifically held that no permanency can be granted to the workmen. However, ultimately, it directed the petitioner to take necessary action for sanction of set-up and whenever set-up is sanctioned, it should examine the seniority of the workmen and, thereafter, the permanency be granted to the workmen. Thus, the ultimate award passed by the Labour Court is not in consonance with the reasoning given by it to the effect that no permanency can be granted to the workmen.

6. It is pertinent to note that in similar situation, the Division Bench of this Court in the case of Vrajlal Bachubhai Khachariya (supra) has held that 'when the initial appointments as daily wagers are violative of Article 14, merely because the workman has worked for number of years and their appointments can be said to be back door entry, their services are not required to be regularized and that the Labour Court / Industrial Tribunal would not be justified in passing the order of regularization and/or permanency'.

7. In the case of Gangadhar Pillai (supra), the Apex Court has held that 'it is not the law that on completion of 240 days of continuous service in a year, the concerned employee becomes entitled to for regularization of his service and/or permanent status. The concept of 240 days in a year was introduced in the

C/SCA/11347/2012 JUDGMENT DATED: 02/07/2021

industrial law for definite purpose. Under the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten a statutory liabilities upon the employer to pay compensation to be computed in the manner satisfied in Section 25-F of the Industrial Disputes Act, 1947 before he is retrenched from services and not for any other purposes. The Apex Court has also referred to its earlier decisions of Madhyamik Siksha Parishad, U.P Vs. Anil Kumar Mishra and others, AIR 1994 SC 1638 as well as decision in the case of M. P. Housing Board Vs. Manoj Shrivastava, (2006) 2 SCC 702.

8. In view of the aforesaid legal preposition and considering the facts and circumstances of the case, this Court is of the considered opinion that the Labour Court has committed serious error of facts and law in passing the impugned award. The same is not sustainable in the eyes of law.

9. In view of the above, the present petition is allowed. The impugned award dated 13.04.2012 passed by the Labour Court, Junagadh in Reference Demand Case No.3 of 1991 is hereby quashed and set aside.

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

Sd/-

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