Gujarat High Court
Saurashtra Shramik Sangh Through ... vs Amreli Nagarpalika Through Chief ... on 29 June, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1674 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 12428 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
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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SAURASHTRA SHRAMIK SANGH THROUGH PRESIDENT & 1 other(s)
Versus
AMRELI NAGARPALIKA THROUGH CHIEF OFFICER
==========================================================
Appearance:
VYOM H SHAH(9387) for the Appellant(s) No. 1,2
DELETED(20) for the Respondent(s) No. 2
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 29/06/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
1. This appeal under Clause 15 of the Letters Patent is
at the instance of the original writ applicants of a writ
application and is directed against the judgment and order
passed by a learned Single Judge of this Court dated
07.09.2016 in the Special Civil Application No.12428 of
2012, by which, the learned Single Judge rejected the writ
application.
2. The facts, giving rise to this writ application, may be
summarized as under;
2.1 The appellants herein are the Union and the original
claimants. The claimant herein was appointed on the post
of peon by the respondent No.1 Amreli Nagarpalika vide
order dated 21.12.1983. As on date also, the claimant is
in service, but as a daily wager drawing daily wages in
accordance with the Minimum Wages Act. It appears that
the claimant herein went before the Tribunal and prayed
for regularization of his service. The claimant prayed
before the Tribunal that he should be conferred the status
of being a permanent workman and should be paid salary
and other perquisites at par with the regular and
permanent workmen. The Tribunal rejected the claim.
2.2 In such circumstances, referred to above, the
claimant came before this Court by filing the Special Civil
Application No.12428 of 2012. The learned Single Judge
heard the Special Civil Application No.12428 of 2012 along
with the allied writ applications and a common judgment
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
was delivered. The claimant herein lost before the
learned Single Judge. The learned Single Judge, while
rejecting the writ application filed by the claimant,
observed in Para-13 as under;
"So far as the case of the claimant in other cases i.e.
Special Civil Application No.9811 of 2013 (where the
concerned claimant works as labourer in construction
department) and Special Civil Application No.15089
of 2012 (where the concerned claimant works as
cleaner in fire department) and Special Civil
Application No.12428 of 2013 (where the concerned
claimant works as peon) and Special Civil Application
No.18229 of 2013 (wherein the concerned claimant
is working as cleaner) are concerned, it has emerged
from the award that after taking into account the
sanctioned set up, the learned Tribunal has recorded
finding of fact that on sanctioned set up either the
said post is not approved / sanctioned or any
vacancy in respect of the said post does not exist
and when the said findings are taken into account,
then, it emerges that in light of the above quoted
observations by Hon'ble Apex Court in cases of Hari
Nandan Prasan & Anr. (supra), Umadevi (supra) and
M.L.Kansari (supra), the final decision of the learned
Labour Court as regards the claimants who are
engaged as and working as labourer and peon i.e.
Special Civil Application No.9811 of 2013 and Special
Civil Application No.12428 of 2012 cannot be faulted.
Therefore, so far as award challenged in Special Civil
Application No. 9811 of 2013 i.e. award dated
14.12.2011 in Reference Case No. 56 of 2010 and
the award challenged in Special Civil Application No.
12428 of 2012 i.e. award dated 9.4.2012 in
Reference Case No. 52 of 2012 with reference to Mr.
R.L. Bhatt are not disturbed and the said awards are
confirmed. The said two petitions i.e. Special Civil
Application No. 9811 of 2013 and Special Civil
Application No. 12428 of 2012 are not accepted."
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
2.3 It is pertinent to note at this stage that in the above
referred Para-13 of the impugned judgment, we find
reference of the Special Civil Application No.9811 of 2013.
This writ application filed by one another workman was
also ordered to be rejected by the learned Single Judge by
the very same judgment impugned in the present appeal.
The Letters Patent Appeal No.1673 of 2017 was filed by
the concerned workman of the Special Civil Application
No.9811 of 2013. A Coordinate Bench of this Court
dismissed the appeal and thereby affirmed the order
passed by the learned Single Judge. The Letters Patent
Appeal No.1673 of 2017 came to be dismissed
substantially relying on the decision of the Supreme Court
in the case of Hari Nandan Prasad & Anr. vs.
Employer I/R to Management of FCI & Anr., reported
in (2014) 7 SCC 190.
2.4 Being dissatisfied with the judgment and order
passed by the learned Single Judge, the original writ
applicant has come up with the present appeal.
3. Mr. G.M. Joshi, the learned senior counsel assisted by
Mr. Vyom Shah, the learned advocate appearing for the
appellants clarified, at the outset, that on the very same
day and date on which the Letters Patent Appeal No.1673
of 2017 arising from the Special Civil Application No.9811
of 2013 came to be dismissed, notice was issued by the
very same Bench in the present letters patent appeal and
the appeal was ordered to be notified for final hearing
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
after the summer vacation of 2018. According to Mr.
Joshi, the order passed by a Coordinate Bench in the
Letters Patent Appeal No.1673 of 2017 should not come in
the way of the present appellants as the case of the
present appellants stands on a different footing.
4. The principal argument of Mr. Joshi is that the
appellant in the present case was appointed in 1983,
whereas almost more than 20 employees appointed
almost 10 years thereafter on the same service conditions
were absorbed as the permanent employees and are
drawing salary of the regular pay scale with all other
benefits. It is argued that even after putting in almost 40
years of service without any break, the appellant herein is
being paid the minimum wages and is being treated as a
daily wager. This, according to Mr. Joshi, is nothing but
unfair labour practice. Mr. Joshi would submit that the
learned Single Judge committed a serious error in rejecting
the writ application by relying on the decision of the
Supreme Court in the case of Hari Nandan Prasad (supra).
According to Mr. Joshi, Hari Nandan Prasad (supra) is
helpful to him and, in fact, supports the case put up by the
appellants herein. Mr. Joshi would submit that within next
four years, the appellant would retire from service. If he
does not succeed in the present appeal, then he would
retire as a daily wager and will not receive a single penny
towards the retiral benefits. It will be a mockery of justice
to ask a person to retire as a daily wager after putting in
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
45 years of continuous service.
5. In such circumstances, referred to above, Mr. Joshi
prays that there being merit in his appeal, the same be
allowed and appropriate relief be granted in the larger
interest of justice.
6. On the other hand, this appeal has been vehemently
opposed by Mr. Deepak Sanchela, the learned counsel
appearing for the Amreli Nagarpalika. He would submit
that this appeal may be dismissed as the Letters Patent
Appeal No.1673 of 2017 arising from the very same
judgment impugned in the present appeal came to be
dismissed way back on 01.12.2017. Mr. Sanchela
concedes so far as the factual position pointed out by Mr.
Joshi from the materials on record is concerned. In other
words, Mr. Sanchela concedes to the fact that the
employees much junior to the appellant were appointed
on ad-hoc basis and were absorbed as the regular
employees. However, Mr. Sanchela has no answer to our
question as to why the appellant herein was left out and
not absorbed on regular basis.
7. Mr. Sanchela would submit that in view of the
decision of the Supreme Court in the case of Hari Nandan
Prasad (supra), the learned Single Judge could not be said
to have committed any error in passing the impugned
judgment.
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
8. In such circumstances, referred to above, Mr.
Sanchela prays that there being no merit in this appeal,
the same be dismissed.
ANALYSIS
9. Having heard the learned counsel appearing for the
parties and having gone through the materials on record,
the only question that falls for our consideration is
whether the learned Judge committed any error in
passing the impugned order?.
10. We must first look into the decision of the Supreme
Court in the case of Hari Nandan Prasad (supra) and try to
understand the ratio therein. In Hari Nandan (supra), the
Supreme Court observed in Paras-34 and 39 as under;
"34. A close scrutiny of the two cases, thus, would
reveal that the law laid down in those cases is not
contradictory to each other. In U.P. Power
Corporation, this Court has recognized the powers of
the Labour Court and at the same time emphasized
that the Labour Court is to keep in mind that there
should not be any direction of regularization if this
offends the provisions of Art.14 of the Constitution,
on which judgment in Umadevi is primarily founded.
On the other hand, in Bhonde case, the Court
has recognized the principle that having
regard to statutory powers conferred upon the
Labour Court/Industrial Court to grant certain
reliefs to the workmen, which includes the
relief of giving the status of permanency to the
contract employees, such statutory power does
not get denuded by the judgment in Umadevi's
case. It is clear from the reading of this
judgment that such a power is to be exercised
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
when the employer has indulged in unfair
labour practice by not filling up the permanent
post even when available and continuing to
workers on temporary/daily wage basis and
taking the same work from them and making
them some purpose which were performed by
the regular workers but paying them much less
wages. It is only when a particular practice is
found to be unfair labour practice as
enumerated in Schedule IV of MRTP and PULP
Act and it necessitates giving direction
under Section 30 of the said Act, that the Court
would give such a direction.
39. On harmonious reading of the two judgments
discussed in detail above, we are of the opinion that
when there are posts available, in the absence of any
unfair labour practice the Labour Court would not
give direction for regularization only because a
worker has continued as daily wage
worker/adhoc/temporary worker for number of years.
Further, if there are no posts available, such a
direction for regularization would be impermissible.
In the aforesaid circumstances giving of
direction to regularize such a person, only on
the basis of number of years put in by such a
worker as daily wager etc. may amount to
backdoor entry into the service which is an
anathema to Art.14 of the Constitution.
Further, such a direction would not be given
when the concerned worker does not meet the
eligibility requirement of the post in question
as per the Recruitment Rules. However,
wherever it is found that similarly situated
workmen are regularized by the employer itself
under some scheme or otherwise and the
workmen in question who have approached
Industrial/Labour Court are at par with them,
direction of regularization in such cases may
be legally justified, otherwise, non-
regularization of the left over workers itself
would amount to invidious discrimination qua
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
them in such cases and would be violative
of Art.14 of the Constitution. Thus, the
Industrial adjudicator would be achieving the
equality by upholding Art. 14, rather than
violating this constitutional provision."
11. Thus, the ratio discernible from the above referred
observations is that the Labour Court should not issue any
direction of regularization. However, the Labour
Court/Industrial Court may exercise its powers for giving
the status of permanency to the contract employees if the
employer is found to have indulged in unfair labour
practice by not filling up the permanent post even when
available and continuing to employee workers on
temporary/daily wage basis. In Para-39, the Supreme
Court laid down that even if it is found that similarly
situated workmen have been regularized by the employer
itself under some scheme or otherwise and the workmen
in question who had approached the Industrial/Labour
Court is at par with them, then the direction of
regularization in such cases may be legally justified.
12. Keeping the aforesaid in mind, we now look into the
materials on record and not disputed by the other side.
We keep in mind that the appointment of the appellant
herein is of December, 1983. The following employees
appointed almost five years and thereafter came to be
absorbed on regular basis and are drawing regular salary.
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
Sr. No. Name Date of
Appointment
1. Shri Keshubhai Mangaljibhai Gardener 01.03.87
2. Shri Govindbhai Mohanbhai Gardener 18.04.87
3. Shri Anil Maganlal Gardener 01.03.91
4. Shri Kaderbhai Noorabhai Metar Gardener 12.08,.88
5. Shri Jivabhai Kadvabhai Gardener 14.11.90
6. Shri Iqbal Aamadbhai Pump-man Since 6 years
7. Shri Abhesingh Babubhai Watchman 1976
8. Mohammed Aaya Abdulrazzak Conductor 30.-08.89
9. Riyaz Razzakbhai Nevivala 11.8.89
10. Chavda Nanjibhai Bhimjibhai 04.03.89
11. Nidesh Bachubhai Podiya 03.02.89
12. Mansurali Gulamhussain Gadhiya 08.11.89
13. Kapil Lalshankar Bhatt 14.06.88
14. Pravinchandra J. Adhyaru 05.01.89
15. Deepak Kanubhai Sagar 04.01.89
16. Faruk Karimbhai Vaghela 07.04.89
17. Dadubhai Tabhabhai Solanki 12.04.89
18. Asraruali Akbarali Saiyed 20.11.88
19. Jayantibhai B. Kachhdiya 19.05.89
20. Imamuddin Alimiya Chisti .03.89
21. Teli Hanif Ismailbhai 10.05.89.
22. Rajesh M. Gangadiya 31.12.85
23. Hasmukh Odhavji Joshi 19.02.83
24. Jitendra S. Bhatt 02.07.83
25. Manhar G. Nayakiya 12.10.82
26. Rajesh H. Amreliya 26.10.84
13. We take notice of the following from the document
which is at page-73. The following employees were
appointed on the very same post of peon much after the
appointment of the appellant herein. The details are as
under;
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
Sr. Name Designation Date of Order Date Remarks
No. Appointment No. of
& Regularization
Date
1. Shri R. N. Solanki Peon 22.06.84 22.06.84 22.06.84
2. Shri Vyas P.B. Peon 01.02.86 01.02.86 01.02.86
3. Shri Razzakbhai A. Peon 05.12.87 2343- 05.12.87
Varukda 05.12.87
14. Is it the stance of the Nagarpalika that all the above
referred employees were not appointed on vacant and
sanctioned posts?. Is it the stance of the Nagarpalika that
such appointments of all the above referred persons, at
the relevant point of time, were illegal?. No, such is not
the stance of the Nagarpalika. In fact, the Nagarpalika has
no stance in the present case except arguing that a similar
situated person lost before the learned Single Judge and
his appeal also came to be dismissed and, therefore, the
present appeal should also be dismissed.
15. Section 2(ra) defines "unfair labour practice, which
reads thus;
"Unfair labour practice means any of the practices
specified in the Fifth Schedule"
16. The Fifth Schedule lays down the unfair labour
practices. Entry No.10 of the Fifth Schedule reads thus;
"10. To employ workmen as "badlis" casuals or
temporaries and to continue them as such for years,
with the object of depriving them of the status and
privileges of permanent workmen."
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
17. Having regard to the aforesaid, we are of the view
that the decision of the Supreme Court in Hari Nandan
Prasad (supra) helps the appellant in seeking the reliefs he
is praying for after putting in more than 40 years of
service with the Nagarpalika. We are convinced having
regard to the facts of the case that the Nagarpalika could
definitely be said to have indulged in unfair labour
practice. The Nagarpalika has no reply to the observations
made by the Supreme Court as contained in Para-39 of
Hari Nandan Prasad (supra).
18. In E.P. Royappa v. State of Tamil Nadu and Anr.,
1974(1) S.L.R. 497, a Constitution Bench of the Supreme
Court considered the scope of Articles 14 and 16 and laid
down the following principles:-
" Article 16 embodies the fundamental guarantee
that there shall be equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State. Though
enacted as a distinct and independent fundamental
right because of its great importance as a principle
ensuring equality of opportunity in Public
employment which is so vital to the building up of
the new classless egalitarian society envisaged in the
Constitution, Article 16 is only an instance of the
application of the concept of equality enshrined
in Article 14. In other " words, Article 14 is the genus
while Article 16 is a species. Article 16 gives effect to
the doctrine of equality in all matters relating to
public employment. The basic principle which, there
informs both Articles 14 and 16 is equality and
inhibition against discrimination. Now, what is the
content and reach of this great equalising principle?
It is a founding faith, to use the words of Bose, J. "a
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
way of life", and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot
countenance any attempt to truncate its all
embracing scope and meaning, for to do so would be
to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions
and it cannot be "cribbed, cabined and confined"
within traditional and doctrinaire limits. From a
positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are
sworn enemies; one belongs to the rule of law in a
republic while the other, to the whim and caprice of
an absolute monarch. Where an act is arbitrary, it is
implicit in it that it is unequal both according
to political logic and constitutional law and is,
therefore, violative of Article 14 and if it
affects any matter relating to public
employment, it is also violative of Article
16. Article 14 and 16 strikes at arbitrariness in
State action and ensure fairness and equality
of treatment. They require that State action
must be based on valid relevant principles
applicable alike to all similarly situate and it
must not be guided by any extraneous or
irrelevant considerations because that would
be denial of equality. Where the operative
reason for State action, as distinguished from
motive inducing from the antechamber of the
mind, is not legitimate and relevant but is
extraneous and out side the area of
permissible considerations, it would amount to
mala fide experience of power and that is hit
by Articles 14 and 16. Mala fide exercise of
power and arbitrariness are different lethal
radiations emanating from the same vide; in
fact the latter comprehends the former. Both
are inhibited by Articles 14 and 16.
It is also necessary to point out that the ambit and
reach of Articles 14 and 16 are not limited to cases
where the public servant effected has a right to a
post. Even if a public servant is in an officiating
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
position, he can complain of violation of Articles 14
and 16 if he has been arbitrarily or unfairly treated or
subjected to mala fide exercise of power by the State
machine. It is, therefore, no answer to the charge of
infringement of Articles 14 and 16 to say that the
petitioner had no right to the post of Chief Secretary
but was merely officiating in that post. That might
have some relevance to Article 311 but not Articles
14 and 16."
19. In The Manager Govt. Branch Press and Anr. v.
D.B. Belliappa, A.I.R. 1979 S.C. 429, a three judges
bench of the Supreme Court held that protection of
Articles 14 and 16(1) is available even to a temporary
government servant and if the action of the employer is
found to be arbitrary or discriminatory, it is liable to be
invalidated. While repelling the argument advanced on
behalf of the appellant that Articles 14 and 16 do not have
any relevance in the matters involving termination of
services of temporary employees, their Lordships held as
under:-
"Mr. Veerappa's first contention is that Articles 14
and 16(1) of the Constitution have no application,
whatever, to the case of a temporary employee
whose service is terminated in accordance with the
terms and conditions of his services because the
tenure or the duration of the employment of such an
employee is extremely precarious being dependent
upon the pleasure and discretion of the employer-
State. In our opinion, no such generalisation can be
made. The protection of Articles 14 and 16(1)
will be available even to such a temporary
Government Servant if he has been arbitrarily
discriminated against and singled out for harsh
treatment in preference to his juniors, similarly
circumstanced. It is true that the competent
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
authority had the discretion under the conditions of
service governing the employee concerned to
terminate the latters employment without notice.
But, such discretion has to be exercised in
accordance with reason and fair play and not
capriciously. Bereft of rationality and fairness,
discretion degenerates into arbitrariness which is the
very antithesis of the rule of law on which our
democratic polity is founded. Arbitrary invocation or
enforcement of a service condition terminating the
service of a temporary employee may itself
constitute denial of equal protection and offend the
equality clause in Articles 14 and 16(1). Article
16(1) guarantees "equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State".
Moreover, according to the principle underlying S.
16 of the General Clauses Act, the expression
appointment used in Article 16(1) will include
termination of or removal from service, also."
20. In view of the aforesaid, we are of the view that it is
high-time we should grant appropriate relief to the
appellant, otherwise, within next three to four years, he
will retire as a daily wager.
21. The next question that comes to our mind is what
relief should be granted to the appellant. We are of the
view that the appellant should be granted notional
benefits (all benefits which the appellant would have
received as a regular employee) upto the date of the filing
of the present appeal. The Amreli Nagarpalika shall absorb
the appellant on permanent basis and shall start paying
regular salary attached to the post. The arrears towards
the difference of regular pay scale from the date of filing
C/LPA/1674/2017 JUDGMENT DATED: 29/06/2021
of the appeal shall also be paid within a period of three
months from the date of the receipt of the writ of this
order.
22. In the result, this appeal succeeds and is hereby
allowed. The impugned order passed by the learned
Single Judge is set aside. The Special Civil Application
No.12428 of 2012 is allowed to the aforesaid extent. The
impugned award passed by the Industrial Tribunal is
hereby quashed and set aside. The respondent Amreli
Nagarpalika to act accordingly at the earliest.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
Vahid
