Gujarat High Court
Agriculture Produce Market ... vs Mansingh Khadaksing Bhist on 11 June, 2021
Bench: A. P. Thaker
C/SCA/5002/2015 JUDGMENT DATED: 11/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5002 of 2015
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 ? 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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AGRICULTURE PRODUCE MARKET COMMITTEE
Versus
MANSINGH KHADAKSING BHIST & 3 other(s)
================================================================
Appearance:
MR GM AMIN(124) for the Petitioner(s) No. 1
DIPESH D CHHAYA(8075) for the Respondent(s) No. 1,2,3
JEET Y RAJYAGURU(8039) for the Respondent(s) No. 1,2,3
RULE SERVED(64) for the Respondent(s) No. 4
===============================================================
CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 11/06/2021
ORAL JUDGMENT
1. The present petition under Article 226 of the
Constitution of India has been filed by the petitioner
challenging the impugned award dated 16.01.2015 passed
C/SCA/5002/2015 JUDGMENT DATED: 11/06/2021
by the Labour Court No.1, Rajkot in Reference (L.C.D.)
No.12/2002, whereby the Labour Court has ordered to
regularize the respondents within 30 days and to make
them permanent as Class-IV employees.
2. It is the main contention of the petitioner that it is an
Agriculture Produce Market Committee established under
the Gujarat Agriculture Produce Market Act and Rules
framed thereunder. It has referred to the facts of the case
and has contended that the workmen (respondents no.1 to
3) are serving in the Marketing Committee only purely on
temporary basis as Watchman (Chowkidar). The grievance
of the workmen is that they should be made permanent
and the benefits of 5th Pay Commission be extended to
them and difference of arrears be paid to them. It is also
contended that the workmen have filed an appeal before
the Director of Agriculture Marketing and Rural Financing,
State of Gujarat bearing Appeal No.28 to 30 of 2001 in
which they have stated that three employees namely
Suresh Vagasia, Raju Sakia and Ashwin Valan were made
permanent, whereas, they were not made permanent and
as per the Rule No.7, 22 employees who are permanent
employees are paid higher pay scale, whereas, the
respondents were not paid the same and not treated at
par with others. It is also prayed in the appeal that they
should not be removed from their original posts and as per
Rule 7, they should be paid with par to other permanent
employees from 3.5.2001.
C/SCA/5002/2015 JUDGMENT DATED: 11/06/2021
2.1 It is also contended by the petitioner that the
Director, Agriculture Produce Marketing & Rural Financing,
State of Gujarat has dismissed all those appeals filed by
the workmen and, thereafter, the workmen have also
approached before the Conciliation Officer, Rajkot by filing
Application No.40 of 1999 which was withdrawn by the
workmen. It is also contended that thereafter, the
workmen through Union made an application to the
Deputy Labour Commissioner which came to be rejected
by the Labour Commissioner by order dated 10.06.2002.
Thereafter, the workmen have made a Reference to the
Labour Court wherein claim statement was filed by the
workmen alleging that they have completed 240 days as
Class IV employee and claiming pay scale of Class IV
employee i.e. Rs.750-Rs.940 as a permanent employees
with other consequential benefits.
2.2 It is contended by the petitioner that they have filed
defence statement at Exhibit 8 wherein they have
submitted that the workmen were appointed as watchman
as and when need arises. It is also undisputed that as per
Rules and Regulations, there is restriction of spending
40% of the income and the Director by order dated
02.01.2001 has permitted to revise schedule to regularize
the employees in which item-4 of watchman was not
mentioned. It is contended that the post of watchman is
not sanctioned and, therefore, there is no question of
making the present workmen as permanent employees.
According to the petitioner, the Labour Court has not
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considered the facts and circumstances and materially
erred in granting the prayer of regularization of the
workmen and directing the petitioner to make respondents
as permanent Class IV employees. The petitioner has
prayed to quash and set aside the impugned award.
3. Heard Mr.G. M. Amin, learned advocate for the
petitioner and Mr.Dipesh Chhaya, learned advocate for the
respondents through video conferencing.
4. Mr. G. M. Amin, learned advocate for the petitioner
has vehemently submitted that the claim of the workmen
to be appointed on permanent post cannot be acceded to
as they were appointed on the post of watchman on the
basis of as and when their services needed and no such
posts are sanctioned. He has submitted that since the
workmen were not appointed through regular selection
process and there is no sanctioned post of watchman
available, there is no question of granting any pay of Class
IV and to make them permanent. While referring to the
impugned award, he has submitted that in the impugned
award the defence raised by the petitioner herein is
clearly mentioned at page no.26 of the compilation that
the workmen have already approached the authority by
filing Appeals No.28 to 30 of 2001 asking the same relief
which came to be rejected. He has submitted that as per
resolution No.4 dated 03.05.2001, the petitioner herein
has made 15 employees as permanent except the present
workmen. He has referred to the reply filed by the
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Committee before the appropriate authority that the
workmen were not punished and, therefore, the appeals
are not maintainable and accordingly, the same were
rejected. He has also referred to the defence raised by the
Committee wherein it is stated that so far as other persons
namely Sureshbhai Vaghasiya, Ranubhai Sakhiya and
Ashwinbhai Valani are concerned, they were working
since many years as Peon and, therefore, they were made
permanent and there is sanctioned post of Peon and
Nayak. He has submitted that there was specific defence
raised by the Committee that they cannot make any
person permanent who was earlier appointed on daily
wagers. He has submitted that the defence raised in the
present petition was already raised before the Labour
Court, however, that defence has not been properly
appreciated by the Labour Court.
4.1 While referring to the statement of claim of the
workmen, he has vehemently submitted that the claim of
the workmen regarding regularization of their services in
Class - IV pay scale cannot be acceded to. He has also
referred to the written statement filed by the petitioner -
herein and has submitted that in view of the fact that
there is no sanctioned post of watchman and the workmen
were not appointed through regular recruitment selection
process, therefore, they cannot be made permanent. He
has submitted that no benefits of 5th Pay Commission was
given to the regular staff members of the committee and,
therefore, there is no question of granting any sort of pay
C/SCA/5002/2015 JUDGMENT DATED: 11/06/2021
scale of 5th Pay Commission to the workmen. He has
submitted that so far as the stand of the workman that
other workmen have made permanent is concerned, they
were appointed earlier and they have possessed requisite
qualification and there were sanctioned posts of peon,
watchman, therefore, they were made permanent and
their service was regularized. He has submitted that the
petitioner is not an industry and there is no question of
relationship of employer - employee within the meaning of
the provisions of the ID Act. He has submitted that the
Labour Court has no jurisdiction to entertain the claim and
the Labour Court has exceeded its jurisdiction and passed
the award without any authority of law.
4.2 Mr.Amin, learned advocate has relied upon the
following decisions;
(1) The order dated 25.01.2018 passed by the Division
Bench of this Court in Director District Rural
Development Agency and another Vs. Kishorkumar
D. Tank and others, rendered in Letters Patent
Appeal No.1093 of 2013 in Special Civil Application
No.1834 of 2005;
(2) Indian Drugs & Pharmaceuticals Ltd Vs. Workmen,
Indian Drugs & Pharmaceuticals Ltd, (2007) 1 SCC
408;
(3) Surinder Prasad Tiwari Vs. U. P. Rajya Krishi
Utpadan Mandi Parishad and others, (2006) 7 SCC
684;
(4) Secretary, State of Karnataka and others Vs.
Umadevi (3) and others, (2006) 4 SCC 1;
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4.2 In sum and substances, the submissions of the
learned advocate for the petitioner is that -
(a) The workman has approached to the Higher Forum
wherein they have failed and no further proceedings
thereof was taken by the workmen;
(b) The workmen has approached the conciliation of
proceedings which was withdrawn by them;
(c) The Rural Finance Department has an authority to
sanction post and it has not been made party;
(d) No sanctioned post of chowkidar available with the
committee;
(e) No jurisdiction is vested with the committee to
appoint anyone in absence of sanctioned post;
(f) No jurisdiction with the Labour Court to pass an
order of reinstatement when the case is of the
temporary and ad-hoc daily wager;
(g) The workmen are daily wagers;
(h) No jurisdiction with the Labour Court to create any
post.
4.3 Mr.Amin, learned advocate for the petitioner has
prayed to allow the present petition by setting aside the
impugned award in question.
5. Per contra, Mr.Dipesh Chhaya, learned advocate for
the respondents - workmen has submitted that the Labour
Court has properly appreciated the entire facts and
circumstances of the case in its proper perspective and
has not committed any error of facts and law in granting
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the reliefs to the workmen. He has submitted that the
Labour Court is final Court of finding of facts and the High
Court has limited jurisdiction to interfere with such finding
of facts. He has submitted that the decisions relied upon
by the learned advocate for the petitioner are not
applicable to the factual aspects of the present case. He
has submitted that in view of the decision of the Apex
Court in the case of Pandurang Sitaram Jadhav Etc. Vs.
The State of Maharashtra through its Dairy Manager and
another decided on 25.09.2019, the observation in the
case of Secretary, State of Karnataka Vs. Umadevi is no
more applicable. While referring to the materials placed on
record, he has submitted that the workmen were called for
interview and they were appointed after following due
process of recruitment and, therefore, their entry in the
services is not a back door entry. He has submitted that
the persons, who were appointed, after the appointment
of the present workmen have been made permanent and,
therefore, the workmen are entitled to get same relief
which was granted to those workmen who have been
made permanent and granted Class IV post.
5.1 Mr.Chhaya, learned advocate has submitted that the
submission of the learned advocate for the petitioner is
contrary to the documentary evidence produced in the
case. He has submitted that the rights of the workmen has
been defeated as other persons are made permanent on
the post of watchman and other persons junior to
workmen have been made permanent. He has submitted
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that the letter of appointments are issued to the workmen
wherein there is no averments in the letter that the
workmen are daily rated wagers. He has relied upon the
decision of the Division Bench of this Court passed in the
case of Jetpur Navagadh Municipality through Chief
Executive Officer Vs. Saurashtra Employees Union in
Letters Patent Appeal No.637 of 2019 in Special Civil
Application No.18816 of 2016 and allied matters dated
15.03.2019. He has submitted that the Labour Court has
appreciated every facts and has not committed any error
of facts and law and there is no need of interference in the
impugned award passed by the Labour Court. He has
prayed to dismiss the present petition.
6. In rejoinder, Mr.Amin, learned advocate for the
petitioner has submitted that the reliance placed upon the
decisions of the Apex Court in the aforesaid civil appeal is
not applicable to the facts of the present case. Regarding
reliance of Letters Patent Appeal No.634 of 2019, learned
advocate for the petitioner has submitted that in that
case, there was sanctioned post available wherein in the
present case there is no sanctioned post of watchman is
available. He has submitted that there was an
advertisement in the year 2004 for permanent post. He
has submitted that it is not a case of promotion and,
therefore, the submissions on the part of the workmen are
not tenable. He has submitted that the decisions cited on
behalf of the workmen are not applicable to the facts of
the case. He has prayed to quash and set aside the
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impugned award.
7. In the case of Umadevi and others (supra), the
Constitutional Bench has observed in para-43, the Apex
Court has observed as under:-
43. ............. Therefore, consistent with the scheme for
public employment, this Court while laying down the law,
has necessarily to hold that unless the appointment is in
terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any
right on the appointee. If it is a contractual appointment,
the appointment comes to an end at the end of the
contract, if it were an engagement or appointment on
daily wages or casual basis, the same would come to an
end when it is discontinued. Similarly, a temporary
employee could not claim to be made permanent on the
expiry of his term of appointment. It has also to be
clarified that merely because a temporary employee or a
casual wage worker is continued for a time beyond the
term of his appointment, he would not be entitled to be
absorbed in regular service or made permanent, merely on
the strength of such continuance, if the original
appointment was not made by following a due process of
selection as envisaged by the relevant rules. It is not open
to the court to prevent regular recruitment at the instance
of temporary employees whose period of employment has
come to an end or of ad hoc employees who by the very
nature of their appointment, do not acquire any right. High
Courts acting under Article 226 of the Constitution of India,
should not ordinarily issue directions for absorption,
regularization, or permanent continuance unless the
recruitment itself was made regularly and in terms of the
constitutional scheme. Merely because, an employee had
continued under cover of an order of Court, which we have
described as 'litigious employment' in the earlier part of
the judgment, he would not be entitled to any right to be
absorbed or made permanent in the service. In fact, in
such cases, the High Court may not be justified in issuing
interim directions, since, after all, if ultimately the
employee approaching it is found entitled to relief, it may
be possible for it to mould the relief in such a manner that
ultimately no prejudice will be caused to him, whereas an
interim direction to continue his employment would hold
up the regular procedure for selection or impose on the
State the burden of paying an employee who is really not
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required. The courts must be careful in ensuring that they
do not interfere unduly with the economic arrangement of
its affairs by the State or its instrumentalities or lend
themselves the instruments to facilitate the bypassing of
the constitutional and statutory mandates.
48. ............. There is no fundamental right in those who
have been employed on daily wages or temporarily or on
contractual basis, to claim that they have a right to be
absorbed in service. As has been held by this Court, they
cannot be said to be holders of a post, since, a regular
appointment could be made only by making appointments
consistent with the requirements of Articles 14 and 16 of
the Constitution. The right to be treated equally with the
other employees employed on daily wages, cannot be
extended to a claim for equal treatment with those who
were regularly employed............."
8. The Apex Court has observed in para-44 in the
aforesaid case that "the concept of 'equal pay for equal
work' is different from the concept of conferring
permanency on those who have been appointed on ad hoc
basis, temporary basis, or based on no process of
selection as envisaged by the Rules".
9. In the case of Surinder Prasad Tiwari (supra), the
Apex Court has, after referring various decision, observed
that "in the backdrop of constitutional philosophy, it would
be improper for the courts to give direction for
regularisation of services of the person who is working
either as daily-wager, ad hoc employee, probationer,
temporary or contractual employee, not appointed
following the procedure laid down under Articles 14, 16
and 309 of the Constitution. It is further observed that in
our constitutional scheme, there is no room for back door
entry in the matter of public employment.
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10. In the case of Indian Drugs & Pharmaceuticals
Ltd (supra), after referring earlier decisions, the Apex
Court has observed that the term "temporary employee"
is a general category which has under it several sub-
categories e.g. casual employee, daily-rated employee, ad
hoc employee, etc. A daily-rated or casual worker is only a
temporary employee, and it is well settled that a
temporary employee has no right to the post, or to be
continued in service, to get absorption, far less of being
regularised and getting regular pay. It is further observed
that unless the appointments are made by following the
rules, such appointees do not have any right to claim
permanent absorption in the establishment. The court
cannot direct continuation in service of a non-regular
appointee. Even if an ad hoc or casual appointment is
made in some contingency the same should not be
continued for long, as was done in the present case. A
casual or temporary employment is not an appointment to
a post in the real sense of the term. It is further observed
that regularisation cannot be a mode of appointment. A
post must be created and/or sanctioned before filing it up.
10.1 In the said case, the Apex Court has further observed
in para-34 as under:-
34. Thus, it is well settled that there is no right vested
in any daily-wager to seek regularisation. Regularisation
can only be done in accordance with the rules and not
dehors the rules. ............
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10.2 In the said case, the Apex Court has further observed
in para-38 as under:-
38. The respondents have not been able to point out
any statutory rule on the basis of which their claim of
continuation in service or payment of regular salary can
be granted. It is well settled that unless there exists some
rule no direction can be issued by the court for
continuation in service or payment of regular salary to a
casual, ad hoc, or daily-rated employee. Such directions
are executive functions, and it is not appropriate for the
court to encroach into the functions of another organ of
the State. The courts must exercise judicial restraint in
this connection. The tendency in some courts/tribunals to
legislate or perform executive functions cannot be
appreciated. Judicial activism in some extreme and
exceptional situations can be justified, but resorting to it
readily and frequently, as has lately been happening, is
not only unconstitutional, it is also fraught with grave peril
for the judiciary.
10.3 In the aforesaid case, the Apex Court has further
observed in para-43 that it has to be held that the rules of
recruitment cannot be relaxed and the court/tribunal
cannot direct regularisation of temporary appointees
dehors the rules, nor can it direct continuation of service
of a temporary employee (whether called a casual, ad hoc
or daily-rated employee) or payment of regular salaries to
them.
10.4 The Apex Court has further observed in para-47 as
under:-
"47. We are of the opinion that if the court/tribunal directs
that a daily-rated or ad hoc or casual employee should be
continued in service till the date of superannuation, it is
impliedly regularising such an employee, which cannot be
done as held by this Court in Secy., State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 and other decisions of this
Court."
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11. Considering the submissions made by learned
advocates for the parties and various decisions referred to
hereinabove coupled with the facts of the present case, it
is crystal clear that there is no dispute that Reference
L.C.R. No.12/2002 was made by the concerned authority.
The question referred to the Labour Court is regarding the
entitlement of the workmen who have completed 240 days
to get the benefits of 5th Pay Commission available to the
workmen and also as to whether they are entitled to get
arrears thereof. The question of dispute is that the claim of
demand made by the workmen is to the effect that the
workmen are serving as watchman with fixed pay since
1995. It is alleged that the workmen are entitled to get
pay scale of 5th Pay Commission available to the Class IV
employees. It is alleged that though, they have issued
legal notice to the institution, their demand is not
satisfied. There are three workmen, who have entered in
service w.e.f. 19.10.1995, 07.05.2001 and 02.01.2001. It
is alleged that their services are of permanent in nature
and they are total three watchmen. It is alleged that
annual turn over of the APMC is Rs.50,00,000/-. It is
alleged that the APMC falls within the definition of
"industry" of the I.D. Act as well as the respondents fall
within the definition of the 'workman'. It is alleged that
though they are working since 1995, the other workmen
who have joined the services later on have been made
permanent in Class IV and, thereafter, they have been
granted the regular pay scale. It is alleged that at the
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relevant time, the pay scale of the peon, watchman was
Rs.750-Rs.940 and since 01.01.1996, the pay scale has
been implemented with 5th Pay Commission. According to
the workmen, they are entitled to get the aforesaid scale.
Accordingly, they have sought for the benefits of the 5th
Pay Commission along with the arrears on the basis
making permanent of the other workmen, who have
joined the services.
12. The APMC has filed its written statement at Exhibit 8
before the Labour Court denying the averments made in
the statement of claim. According to the petitioner -
employer, earlier the present workmen have filed the
Conciliation Case No.40/1999 before the Labour
Commissioner, Rajkot which came to be withdrawn and,
thereafter, the appeals were preferred before the Director,
APMC vide Appeals No.28 to 30 of 2001 for the same
relief, which came to be rejected on 29.08.2001.
According to it, since the dispute raised by the workmen
came to be adjudicated, there is bar of res judicata. It has
also denied that the workmen have worked without
interruption for a period of 240 days. It is also denied that
the workmen are entitled to get regular pay scale and
arrears on the basis of the benefits being granted to the
other employees. It is also raised issue that the workman
cannot be termed as workmen within the meaning of I.D.
Act as well as APMC cannot be termed as and industry. It
is also averred that all the three workmen are daily wagers
only and they are being paid daily wages as per the rules
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and regulations of the APMC and after getting sanctioned
from the Government, the regular appointment could be
given and the APMC cannot create it's own setup without
sanction by the Government. It is alleged that they have
no power to make anybody permanent. It is alleged that
they were sanctioned post, which has been sanctioned by
the authority vide order dated 02.01.2001 and there is no
post of watchman sanctioned therein and, therefore, they
cannot absorb or make permanent the workmen herein. It
is also alleged that even if the workmen are working since
many years, they have not entitled to be made permanent
in absence of sanctioned post. According to it, the persons
who are made permanent are working on the sanctioned
post and, therefore, the demand of the workmen is not
maintainable. It is contended that the claim of the
workmen cannot be accepted and, therefore, reference
may be rejected.
13. On perusal of the materials placed on record, it
appears that during the course of the reference, the
workmen have sought for the documentary evidence by
filing application produced by the APMC and the same
came to be objected by the APMC by filing reply and
stated that those documentary evidence are not relevant
and prayed to reject the application. It appears from the
impugned award passed by the Labour Court that during
the course of the evidence, the documentary evidence
placed by the workmen as well as by the opponent. It also
appears that the workmen have examined one Mansing at
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Exhibit 17, whereas, the APMC has examined Jaysukhbhai
at Exhibit 68.
14. It is pertinent to note that before the Labour Court,
the petitioners have sought for the necessary
documentary evidence from the employer by filing
appropriate application. The same has been objected by
the employer on the ground that it is not relevant. It is
pertinent to note that one of the set of the documents is
relating to the muster roll from the year 1995 onwards as
well as seniority list of permanent employees. Thus, the
prayer of the workmen to produce those documents is
objected by the employer. It appears that the employer
has concealed those documents from scrutiny of the
Labour Court. It appears that if those documents might
have been produced before the Labour Court, it might
have been adversed to the defence of the employer.
15. It is pertinent to note that there is specific stand
taken by the workmen that they were appointed after due
procdure of taking interview and this fact has not been
controverted by the employer. Rather the employer has
concealed the documents and has denied to produce
those documents. On perusal of the evidence of the
witness of the employer, it clearly transpires that the
allegations made by the workmen that junior to them have
been made permanent by the employer is substantiated
by cross-examination of the witness of the employer. It
clearly transpires that the persons namely Suresh Vagasia
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and Raju Sakia who were appointed after the appointment
of the workmen, have been made permanent on the post
of peon w.e.f. 03.05.2001. Not only that one Ashwin Valan,
Chowkidar has been made permanent w.e.f. 03.05.2001. It
also appears from the written statement of the employer
that the persons, who have been mentioned by the
workmen, have to make them permanent those persons
who were made permanent as they have passed 12th
standard and they were ready to work as watchman and
clerical was taken from them.
16. It is also pertinent to note that the averments made
by the workmen regarding process of taking interview
having been undertaken, have not been denied by the
employer. Further, the version of the workmen regarding
non-mentioning of the words "daily wager" is also not
denied. Under these circumstances, the version of the
workmen that they were selected after process of taking
necessary interview can be believed. It also appears from
the record that the employer has made other similarly
situated persons as permanent, who are junior to the
present workmen on the concerned posts. It also appears
that the post of watchman, peon and nayak are
transferred posts. It also appears from the evidence that
there is no Recruitment Rules for making permanent on a
daily wager. But nothing is brought on records that there
is Recruitment Rules to make daily wager as permanent.
However, the fact remains that by virtue of resolution, the
petitioner herein has appointed certain similarly situated
C/SCA/5002/2015 JUDGMENT DATED: 11/06/2021
persons - daily wagers as permanent. It suggests that the
employer has adopted pick and choose policy.
17. On perusal of the impugned award, it appears that
the Labour Court has considered all the aspects and has
passed the impugned award. It also appears that now, the
financial benefits has been granted to the workmen and
the employer has directed to fix pay notionally and actual
payment of arrears is ordered to be granted from
01.01.2014. The Labour Court has answered the points
which were referred to by the concerned Government
Authority i.e. Higher Labour Authority, Rajkot vide order
dated 10.06.2002 bearing No.KH/H.S.M.C./6156 for its
adjudication. The Labour Court, on the basis of the
materials available on record, has decided that point and
has ultimately passed the impugned order. Considering
the special facts and circumstances of the case, the
impugned award passed by the Labour Court is correct.
18. In view of the above, the present petition deserves to
be dismissed and accordingly, it is dismissed. The
impugned award dated 16.01.2015 passed by the Labour
Court No.1, Rajkot in Reference (L.C.D.) No.12/2002 is
hereby confirmed. Rule is discharged. Interim relief, if any,
stand vacated forthwith.
Sd/-
(DR. A. P. THAKER, J)
V.R. PANCHAL
