Chief Officer Shri, Gariyadhar ... vs Maheshgiri Gurugiri Goswami
2021 Latest Caselaw 8129 Guj

     C/SCA/16521/2020                          JUDGMENT DATED: 09/07/2021



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 16521 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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1     Whether Reporters of Local Papers may be                      NO
      allowed 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 ?
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         CHIEF OFFICER SHRI, GARIYADHAR NAGAR PALIKA
                              Versus
                MAHESHGIRI GURUGIRI GOSWAMI
==========================================================
Appearance:
MR VIJAY H NANGESH(3981) for the Petitioner(s) No. 1
MR VICKY B MEHTA(5422) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                           Date : 09/07/2021

                           ORAL JUDGMENT

1. Rule. Learned advocate Mr. Bipin Mehta waives service of rule on behalf of the respondent No.1. By consent of the parties, the matter was taken up for final hearing.

2. The present petition is filed seeking following reliefs:

C/SCA/16521/2020 JUDGMENT DATED: 09/07/2021

"(A). Your Lordships may be pleased to admit and allow this petition;

(B). Your Lordships may be pleased to issue appropriate writ, direction and / or order by quashing and setting aside the award / order dated 14.10.2020 passed by the Learned Presiding Officer, Court No. 1, Labour Court, Bhavnagar in Ref. (Demand) No. 6 of 2008 (Annexure-A) in the interest of justice;

(C). Pending admission and till final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of the order dated 14.10.2020 passed by the Learned Presiding Officer, Court No. 1, Labour Court, Bhavnagar in Ref. (Demand) No. 6 of 2008 (Annexure-A) in the interest of justice;

(D). Any such other and / or further orders that may be thought just and proper, in the facts and circumstances of the present case."

3. Heard learned advocate Mr. Vijay H. Nangesh for the petitioner and learned advocate Mr. Bipin M. Mehta for the respondent no.1.

4. Brief facts giving rise to the present petition are stated as under:

4.1. The respondent no.1 herein had raised the dispute before the Deputy Labour Commissioner, Rajkot, which was, later on, culminated into Reference (Demand) No. 06 of 2008 claiming regularization of the services from the date of his appointment as permanent Clerk alongwith the regular salary as a Clerk and all

C/SCA/16521/2020 JUDGMENT DATED: 09/07/2021

consequential and incidental benefits flowing thereof. It was the case of the present respondent no.1 before the Labour Court that he is serving as a Clerk under the present petitioner since 01.01.1986 and his selection and appointment was made after following due process, wherein, the interview was conducted, pursuant to the advertisement published on the notice board of the office. He was being paid daily wages as per the minimum wages by treating him as a daily-wager, though, his nature of work was of permanent nature and the same as performed by the permanent employees. In spite of the workman having performing the similar duties and having same nature of work, he was extended the benefits at par with the permanent employees. On the basis of the aforesaid, the workman claimed the benefit of the regularization on the ground that the present petitioner is practicing unfair labour practice and though there are vacant posts in the set-up of the present petitioner, the workman (present respondent no.1) was continued as a daily-wager.

4.2. The petitioner herein appeared before the Labour Court and denied the claim of the workman (present respondent no.1) on the ground that the present petitioner cannot be said to be a State, as it is not into any trade, business or profession, that the State authority

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is not joined as a party respondent and on the ground that the workman's appointment in the petitioner- Municipality was without following due recruitment process, and therefore, it can be said to be a back-door entry. The Presiding Officer, Labour Court No.1, Bhavnagar, after hearing the learned advocates for the workman as well as the Municipality and after appreciating the documentary as well as oral evidence on record vide order below Exh.42 dated 14.10.2020 allowed the Reference partly and directed the present petitioner to regularize the present respondent no.1 on the post of the Clerk w.e.f. 01.01.1986 and to grant him the benefits from the date of filing of the reference i.e. 14.11.2008 and directed that the period from 01.01.1986 to 14.11.2008 be treated as notional period and that the workman could not be entitled to get the arrears for the aforesaid period but the same would entitle the workman to get the benefits of seniority, promotion and retiral benefits and gratuity.

4.3. Being aggrieved by and feeling dissatisfied with the aforesaid order below Exh. 42 dated 14.10.2020 passed by the Presiding Officer, Labour Court No. 1, Bhavnagar, the Municipality has preferred present writ petition under Articles 226 and 227 of the Constitution of India though it's Chief Officer.

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5. Learned advocate Mr. Vijay Nangesh appearing for the petitioner Municipality submitted that the Labour Judge has committed an error while passing the impugned order by treating the Municipality as an ' industry'. Learned advocate Mr. Nangesh further submitted that the respondent no.1 herein was appointed without following due procedure of law, and hence, his appointment was illegal, as the same was by way of a back-door entry. Further, according to Mr. Nangesh, the respondent no.1's appointment was not as per the set-up of the organization, and therefore also, in view of the law laid down by the Hon'ble Supreme Court in the case of the Secretary, State of Karnataka v/s. Umadevi reported in (2006) 4 SCC 1, when the workman's appointment itself was illegal by way of a back-door entry, the Labour Court ought not to have granted the benefits of regularization to the workman. Learned advocate Mr. Nangesh also submitted that, though, the Director of Municipality being the State authority who is disbursing the grant to pay salary to the workmen of the petitioner Municipality, is the necessary party. The Director of Municipality was not joined as a party in the original reference by the workman, and therefore also, without necessary party, since the Labour Court proceeded with the reference, the award is faulty and cannot sustain.

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6. No other or further submissions were made by learned advocate Mr. Nangesh, while assailing the reference under challenge.

7. Per contra, learned advocate Mr. Bipin I. Mehta submitted that identically situated persons, just like the present respondent no.1 workman, also had approached the Industrial Tribunal and the Industrial Tribunal had partly allowed those references. Those identically situated persons were also serving under the same Municipality, viz. Gariyadhar Municipality. The aforesaid references which were partly allowed by the Industrial Tribunal, were the subject matter of challenge before this Court by preferring Special Civil Application No. 18642 of 2017 (in the case of Chief Officer, Gariyadhar Nagar Palika v. Arvindbhai Dhulabhai Vanzara & others) and allied matters and the coordinate Bench of this Court vide order dated 27.11.2017, dismissed the aforesaid set of petitions. Learned advocate Mr. Mehta further submitted that the order dated 27.11.2017 passed in Special Civil Application No. 18642 of 2017 and allied matters, were further challenged before the Division Bench of this Court by way of Letters Patent Appeal No. 589 of 2019 and allied matters and those Letters Patent Appeals were also dismissed by the Division Bench of this Court vide order dated 12.03.2019. Learned advocate Mr. Mehta further

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submitted that the petitioner Municipality even challenged the order dated 12.03.2019 passed by the Division Bench of this Court before the Hon'ble Supreme Court by filing Special Leave to Appeal (Civil) Nos. 13729-13732 of 2019, and eventhough, the Hon'ble Supreme Court dismissed the Special Leave to Appeals preferred by the petitioner Municipality. Learned advocate Mr. Mehta submitted that the facts of those workmen in respect of whom, the petitioner Municipality carried the matters upto the Hon'ble Apex Court, which also arose from the similar references, and the present workman's case is identical. Therefore, it is unfair on the part of the petitioner Municipality to challenge the order passed by the Labour Court in respect of the present workman, though, the Municipality has failed upto the Hon'ble Supreme Court.

8. On the strength of the aforesaid submissions, learned advocate Mr. Mehta submitted that the present petition deserves to be dismissed with costs, as the issue is well settled, by now.

9. Having heard the learned advocates appearing for the respective parties, when this Court put it to Mr. Nangesh as to whether there is any difference between the facts of the present petition and the one which were dismissed by the coordinate Bench vide order dated 27.11.2017, and

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which has been confirmed upto the Hon'ble Supreme Court. Learned advocate Mr. Nangesh fairly submitted that except different posts on which those respective workmen are working, there is no difference between the facts of the present workman and those workmen, as such. This query was put to Mr. Nangesh specifically bearing in mind the fact that Mr. Nangesh himself had appeared for the petitioner Municipality in those petitions as well as in Letters Patent Appeals.

10. Since Mr. Nangesh could not distinguish the facts of the present petition, as against, the facts of those petitions being Special Civil Application No. 18642 of 2017 and allied matters, it is crystal clear that the workman who is the respondent No.1 in the present petition is identically situated to the workmen in respect of whom the Municipality thought it fit to carry the matter upto the Hon'ble Apex Court and failed.

11. However, as regards the contention of Mr. Nangesh in respect of the Municipality is not an ' industry' and hence, the reference was not maintainable is concerned. On perusal of the order passed by the Presiding Officer, Labour Court No.1, Bhavnagar, this Court finds that same contention was raised before the Labour Court as well, and while dealing with the Issue No.1 in paragraph nos. 4 and 5, the Presiding Officer, Labour Court, Bhavnagar has by relying upon the judgment of the Hon'ble

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Supreme Court in the case of Bangalore Water Supply & Sewerage Board v. A. Rajppa & Anr. reported in 1978 (1) LLJ 349 has rightly held that the present petitioner falls within the definition of 'industry', as defined under Section 2(j) of the Industrial Disputes Act, 1947. As regards the petitioner's contention about the fact that the workman was not appointed after following due process of law, but was appointed by way of back-door entry is concerned, the Presiding Officer, Labour Court has relied upon the order dated 27.11.2017 passed in Special Civil Application No. 18624 of 2017 and allied matters, and has rightly party allowed the reference, as while relying upon the order dated 27.11.2017 passed in Special Civil Application No. 18642 of 2017, the Presiding Officer, Labour Court followed the ratio of the judgments of the Hon'ble Supreme Court laid down in the case of Hari Nandan Prasad and another V/s. Employer I/R to Management of Food Corporation of India and another reported in (2014)7 SCC 190 and Umrala Gram Panchayat V/s. Secretary, Municipal Employees Union and others reported in (2015)12 SCC 775, which has been relied upon by the coordinate Bench and the view of the coordinate Bench of this Court has been upheld upto the Hon'ble Supreme Court.

12. As far as the contention of Mr. Nangesh in respect of not joining the Director of Municipality as party in the

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original reference is concerned, this Court is of the view that, when on merit, the Municipality could not succeed either before the learned Single Judge and the Division Bench of this Court or before the Hon'ble Supreme Court and when the similar reference has been confirmed upto the Hon'ble Supreme Court, taking such hyper technical stand in identical petition and thereby requesting the Court to remand back the matter to cure this technical defect would amount to miscarriage of justice, in case, if, such request is acceded to positively.

13. In view of above and considering the fact that the Presiding Officer, Labour Court No.1, Bhavnagar has appreciated the oral as well as documentary evidence, and thereafter, has partly allowed the reference in line with similar references in respect of identically situated workmen and when the petitions challenging those references have been dismissed and such dismissal orders have been confirmed upto the Hon'ble Supreme Court, I do not find any reason to interfere with the order dated 14.10.2020 passed by the Presiding Officer, Labour Court No. 1, Bhavnagar in Reference (Demand) No. 06 of 2008. Hence, the present petition deserves to be dismissed and the same is dismissed, accordingly, with no order as to costs. Rule is discharged.

(NIRZAR S. DESAI,J) Pradhyuman