Gujarat High Court
Bhavnagar Municipal Corporation vs Kaushikbhai Batukbhai Zala on 29 June, 2021
Bench: J.B.Pardiwala, J.B.Pardiwala And Nanavati
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1577 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 7460 of 2010
With
R/LETTERS PATENT APPEAL NO. 1578 of 2017
In
SPECIAL CIVIL APPLICATION NO. 7461 of 2010
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1578 of 2017
In
SPECIAL CIVIL APPLICATION NO. 7461 of 2010
With
R/LETTERS PATENT APPEAL NO. 1579 of 2017
In
SPECIAL CIVIL APPLICATION NO. 7462 of 2010
With
R/LETTERS PATENT APPEAL NO. 1580 of 2017
In
SPECIAL CIVIL APPLICATION NO. 7463 of 2010
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 1580 of 2017
In
SPECIAL CIVIL APPLICATION NO. 7463 of 2010
With
R/LETTERS PATENT APPEAL NO. 1581 of 2017
In
SPECIAL CIVIL APPLICATION NO. 7464 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
==========================================================
1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
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BHAVNAGAR MUNICIPAL CORPORATION & 1 other(s)
Versus
RAJUBHAI RATNABHAI KALOTARA
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2
MR TR MISHRA(483) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 29/06/2021
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1 Since the issues raised in all the captioned appeals are the same
and the challenge is also to a common judgement and order passed by a
learned Single Judge of this Court, those were take up for hearing
analogously and are being disposed of by this common judgement and
order.
2 For the sake of convenience, the Letters Patent Appeal No.1577 of
2017 is treated as the lead appeal.
3 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 judgement and order passed by a learned Single Judge of
this Court dated 24th July 2017 in the Special Civil Application No.7460
of 2010, by which the learned Single Judge declined to interfere with
the award passed by the Industrial Tribunal and thereby rejected the
writ application.
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
4 The facts giving rise to this appeal may be summarized as under:
5 The respondent herein (workman) was serving with the Nagar
Prathmik Shikshan Samiti of the Bhavnagar Municipal Corporation as a
part time employee. Even after putting in more than three years of
service, the Corporation kept on paying a fixed salary of Rs.900/- per
month. The Corporation treated the respondent herein as a part time
employee. The workman, initially, was engaged on part time basis and
was paid a fixed wage for two hours of work i.e. Rs.200/- and two years,
thereafter, he was paid Rs.600/- towards fixed wage for four hours work
on daily basis.
6 The unfair labour practice at the end of the Corporation,
ultimately, led to a reference before the Industrial Tribunal under the
provisions of the Industrial Disputes Act, 1947. The reference came to be
partly allowed. The operative part of the reference reads thus:
"1. This reference is party allowed.
2. The order is hereby passed directing the petitioners nos.1 and 2
to pay salary and other admissible benefits to the workman Shri
Rajubhai Ratnabhai Kalotra with effect from the publication of this
award considering him as permanent Peon. The time period from
22/08/2005 till the date of award shall be considered as notional and
the benefits of pay-scale shall be paid accordingly.
3. It is ordered that the first party shall pay Rs.500/- to the second
party as costs."
7 Thus, the Tribunal passed an award directing the Corporation to
treat the workman as a regular Peon on its establishment and also
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
directed to pay the salary accordingly. The Tribunal clarified that the
benefits for the period between 22 nd August 2005 and 30th October 2009
i.e. the date of the award, shall be notional.
8 The Corporation, being dissatisfied with the award passed by the
Tribunal, challenged the same before this Court by filing the Special
Civil Application No.7460 of 2010.
9 The learned Single Judge, after due consideration of all the
relevant aspects of the matter, thought fit not to disturb the award and
rejected the writ application filed by the Corporation accordingly.
10 The Corporation, being dissatisfied with the judgement and order
passed by the learned Single Judge, has come up with the present
appeal.
11 Mr. Munshaw, the learned counsel appearing for the Corporation
vehemently submitted that the learned Single Judge committed a serious
error in rejecting the writ application, thereby affirming the illegal
award passed by the Tribunal. He would submit that the respondent
herein was appointed purely on adhoc basis. He would submit that it
was a backdoor entry. He would submit that regularization cannot be
granted to a part time employee.
12 Mr. Munshaw would submit that there is no fundamental right
much less any legal right in those who have been employed on daily
basis or temporary or on contractual basis to claim that they have a right
to be absorbed in service. It is argued that the part time employees are
not subject to service rules or other regulations which govern and
control the regularly appointed staff of the department. In such
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
circumstances, the question of giving them equal pay for equal work or
considering them for regularization would not arise.
13 Mr. Munshaw would argue that mere long continuation in service
on temporary or adhoc or daily wage by itself will not entitle such
employee to claim regularization if he not worked against any
sanctioned post. Sympathy and sentiments cannot be the ground for
passing any order of regularization in the absence of any legal right.
14 In such circumstances referred to above, Mr. Munshaw prays that
there being merit in his appeal, the same be allowed and the impugned
order passed by the learned Single Judge be set aside and the Special
Civil Application No.7460 of 2010 be allowed by quashing and setting
aside the award passed by the Tribunal.
15 Mr. Munshaw, in support of his aforesaid submissions, has placed
reliance on the following judgements:
[1] Taleshkumar Maganbhai Patel and others vs. Ahmedabad
Municipal Corporation and another [Special Civil Application
No.11441 of 2012 and allied matters decided on 23rd June 2015]
[2] Secretary to Government, School Education Department,
Chennai vs. R. Govindswamy and others [2014] 4 SCC 769]
[3] State of Tamil Nadu vs. A. Singamuthu [(2017) 4 SCC 113]
[4] Vrajlal Bachubhai Khachariya vs. State of Gujarat [(2018) 2
GLR 917]
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
[5]State of Karnataka and others vs. G.V. Chandrashekar [(2009)
4 SCC 342]
[6] Upendra Singh vs. State of Bihar [(2018) 3 SCC 680]
[7] Pallaviben Pareshkumar Jaiswal vs. Principal [(2017) 1 GLR
781]
16 On the other hand, Mr. Mishra, the learned counsel appearing for
the respondent has vehemently opposed this appeal in submitting that
no error, not to speak of any error of law could be said to have been
committed by the learned Single Judge in passing the impugned order.
Mr. Mishra laid much emphasis on the findings recorded by the learned
Single Judge that the Corporation is guilty of unfair labour practice.
17 In such circumstances referred to above, Mr. Mishra prays that
there being no merit in this appeal filed by the Corporation, the same
may be dismissed.
ANALYSIS:
18 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 Single Judge committed any
error in passing the impugned order.
19 We take notice of the order passed by a Coordinate Bench of this
Court dated 29th January 2018, which reads thus:
1.00. RULE. Mr.T.R. Mishra, learned advocate waives service of notice
of rule on behalf of the respective respondents - original workmen.
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
2.00. In the facts and circumstances of the case and with the consent of
the learned advocates appearing on behalf of the respective parties,
present application is taken up for final hearing today.
3.00. After making some submissions and considering the Judgement
and Awards passed by the learned Industrial Tribunal, confirmed by the
learned Single Judge, this Court is inclined to stay the respective
Judgement and Awards passed by the learned Industrial Tribunal,
confirmed by the learned Single Judge with reasons. However,
Mr.Mishra learned advocate appearing on behalf of the original
workmen has stated at the bar that he does not invite reasoned order
while granting interim relief as prayed for and staying the Judgement
and Awards passed by the learned Industrial Tribunal, confirmed by the
learned Single Judge. Under the circumstances we are not passing
reasoned order while granting interim relief as prayed for and staying
the further execution, operation and implementation of the respective
Judgement and Awards passed by the learned Industrial Tribunal,
confirmed by the learned Single Judge.
Under the circumstances, by way of interim relief it is directed
that there shall be stay of further execution, operation and
implementation of the respective Judgement and Awards passed by the
learned Industrial Tribunal, confirmed by the learned Single Judge
during the penedncy and final disposal of the main Letters Patent
Appeals. However, it is clarified and directed that the concerned
workmen shall be paid the wages even as part-timers as per the
Minimum Wages Act and the Resolutions passed by the Government
from time to time under the Minimum Wages Act modified from time to
time Rule is made absolute accordingly in each of the applications.
In the facts and circumstances of the case, there shall be no
order as to costs."
20 Thus, it appears that at the time of admission of the present
appeal, the impugned award passed by the Tribunal as well as the
impugned judgement passed by the learned Single Judge came to be
stayed from its operation, implementation and execution.
21 We first propose to look into the findings recorded by the learned
Single Judge in his impugned judgement. We quote the findings as
follows:
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
"6. The factum of the employment of the claimants with the
Municipal Corporation is not in dispute. The date of joining and total
length of service of the claimants with the petitioner Municipal
Corporation is also not in dispute. The fact that the dispute and claim
was raised after completion of 3 years of service with the
Corporation, is not in dispute.
7. The fact that the claimants were initially paid fixed salary at
Rs.200/ and then they were paid fixed salary at Rs.600/ which was
subsequently increased to fixed salary @ Rs.900/ and that initially
claimants were engaged on part time basis for 4 years and
thereafter working hours were increased to 6 hours is also not in
dispute. Of course, the claimants have alleged that though they
were engaged on part time basis and it was claimed that their
appointments were for 4 hours work / day, they were actually made to
work full time and they were performing duties and function on par
with regular and full time employees. The said allegations is
disputed by the Municipal Corporation.
8. However, the fact about their employment, total length of
service are not in dispute. Similarly, the fact that at the relevant
time they worked for 6 hours per day and that the corporation paid
fixed salary at Rs.900/ is also not in dispute.
9. The dispute was raised by the claimants somewhere in 2001,
2002 and 2004 after they completed service of 3 years. This
translated into the fact that the claimants have been in
service with Corporation since 1998, 1999 and 2001 and that
by now, the claimants have completed service of more than 15
years with the Corporation.
10. The fact that the claimants are in service is also not in
dispute. The said fact establishes that the work, the duties
and the function which the claimants perform are of
permanent and perennial nature and their service are required by the
Corporation, is also not in dispute.
10.1 The learned Tribunal has derived finding of fact from the evidence
(oral and documentary) placed on record by the Municipal
Corporation. From the material which the Corporation placed on
record, it emerged before the learned Tribunal that the
Government has sanctioned, for the Municipal Corporation, set
up with 22 permanent post in the category of Peon. Learned
Tribunal also found that the Corporation had engaged only 17 peons on
permanent basis whereas 5 permanent and sanctioned posts were
vacant, however, the service of the claimants who were working
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
since long time are not being regularized despite vacancies in
permanent post on sanctioned setup.
10.2 It is also pertinent to note from the material available
on record that the learned Tribunal also found that on
22.8.2005 the Corporation has passed Resolution No.27 whereby
it was resolved that the persons who worked as Peon on part
time basis with the primary education committee, should be
regularized as full time permanent employees on the vacancies in
respect of permanent post of Peon and that their services should be
regularized after taking into account their interse seniority.
10.3 Thus, learned Tribunal found that there were vacancies in
respect of permanent post on sanctioned establishment and that
the Corporation had already passed Resolution to regularize service
of the claimants on the basis of their interse seniority however,
the said decision/resolution was not being implemented.
10.4 The learned Tribunal also found that the Municipal Education
Committee had already recommended the case of claimants, however,
the said recommendation was not taken into account.
10.5 Learned Tribunal also found that at the time when the claimants
were engaged, they were engaged after undergoing process of interview
and their age/ birth date, Education qualification, Physical fitness
(on the basis of medical certificate), Character certificate etc.
were examined and thereafter the claimants were appointed.
10.6 Learned Tribunal also took into account the duty list under
which duties and functions were assigned to the claimants.
11. From above mentioned details and from the discussion in
the award, it comes out that the learned Tribunal has taken
into account relevant aspect before passing impugned direction.
In this background, when the observation by the Court in
the decision dated 27.7.2006 in Special Civil Application No. 11744
of 2006, which, according to the details mentioned in the order
dated 28.1.2015 passed by District Development Officer, Bhavnagar,
have been confirmed by the Division Bench and Special Leave Petition
against the said decision is rejected, are taken into account
and when the provision under Item Serial No.10 in Part I of
Schedule of Industrial Disputes Act is taken into account, then it
becomes clear that the findings and direction passed by learned
Tribunal do not deserve to be disposed.
11.1 While passing impugned direction, learned Tribunal has
taken into account all relevant factors and have given effect
to the direction from the date of award and not as per the terms of
reference, according to which benefit of permanency and regular
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
payscale etc.,was claimed from the date when the claimants
completed service of 3 years.
11.2 Instead, learned Tribunal has in just and reasonable manner
granted the benefits from the date of the award.
11.3 Even the payment of difference of wages is directed to be paid
from the date of award though the effect is granted from
22.8.2005.
11.4 From the above mentioned discussion, it has emerged that the
learned Tribunal took into account 22.8.2005 as cutoff date because it
was on the said date (i.e. 22.8.2005) that the Committee had
passed Resolution to regularize services of the claimants in
light of the fact that sufficient number of vacancies in respect of
permanent post on sanctioned establishment were available at
the relevant time.
11.5 In this factual background, the direction passed by
learned Tribunal does not warrant any interference.
12. Any material which would convince this Court to hold that
the final direction passed by learned Tribunal are arbitrary or
perverse or unjust and contrary to the material on record
before the learned Tribunal, is neither available on record nor
brought to the notice of this Court. The petitioners have failed
to establish that the direction by the learned Tribunal are
unjust or arbitrary or unreasonable.
13. It is pertinent to note that it was not the case even of the
Corporation before learned Tribunal and it is not its case even before
this Court also that the claimants do not possess requisite
qualification as prescribed by applicable Rules for the post in
question and/ or at the time of their initial entry the claimants were age
barred. Such facts are neither pleaded nor proved before learned
Tribunal and such contention is not raised at the time of hearing of
the petition.
13.1 Thus, when it is not the case of the Corporation that
the claimants do not possess requisite and prescribed qualification
and/ or at the time of entry in the service they were age barred and/
or the claimants do not fulfill prescribed eligibility criteria,
then in such circumstances there is no justification to interfere
with and to disturb the finding of facts and final conclusion
and direction by learned Tribunal, more particularly when the
claimants have regularly and continuously worked with the Corporation
for about 15 years and also in light of the fact that the practice adopted
by the Corporation amounts to unfair labour practice inasmuch as
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
despite vacancy on permanent setup the Corporation illegally and
arbitrarily continued the claimants on daily wage and part-time basis."
22 The findings recorded by the learned Single Judge referred to
above may be summarized as under:
[i] The respondent had been in service with the Corporation
since 1998 and had put in almost 15 years of service when the
learned Single Judge passed the impugned order.
[ii] The materials on record would indicate that the Corporation
needs the services of the respondent. The services rendered by the
respondent are of permanent and perennial nature.
[iii] The State Government has sanctioned, in favour of the
Corporation, the set up with 22 permanent posts in the category of
Peon. The Corporation had appointed only 17 Peons on
permanent basis, whereas 5 permanent and sanctioned posts
remained vacant.
[iv] Despite vacancies in the permanent post on the sanctioned
set up, the respondent was made to work as a part time daily
wager.
[v] The learned Single Judge took notice of the fact that the
Corporation vide resolution No.27 dated 22nd February 2005
passed in its General Body Meeting had resolved that all those
persons working as Peon on part time basis with the Primary
Education Committee should be regularized i.e. be made full time
permanent employees on the vacancies in respect of permanent
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
post of Peon and that their services should be regularized after
taking into account their inter se seniority.
[vi] The Municipal Education Committee had already
recommended the case of the respondent, however, such
recommendation was not taken into consideration.
[vii] When the respondent herein was engaged, he was asked to
undergo the process of interview and his age, birth date,
education qualification, physical fitness, character certificate, etc,
were examined and thereafter, he was appointed.
[viii] The respondent herein worked regularly and continuously
with the Corporation for about 15 years.
23 The learned Single Judge says that the practice adopted by the
Corporation amounts to unfair labour practice as despite clear vacancies
on the permanent set up, the Corporation illegally and arbitrarily
continued the respondent on daily wage basis as a part time employee.
24 If the learned Single Judge, after looking into all the above
referred aspects, thought fit not to disturb the award passed by the
Tribunal and rejected the writ application filed by the Corporation, then,
in our opinion, no error, not to speak of any error of law could be said to
have been committed by the learned Single Judge in passing the
impugned order.
25 We are at one with the finding recorded by the learned Single
Judge that the Corporation is guilty of unfair labour practice.
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
26 In the aforesaid context, we may refer to the decision of the
Supreme Court in the case of Hari Nandan Prasad vs. Employer I/R to
Management of FCI and another reported in (2014) 7 SCC 190, more
particularly, the observations 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 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,
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
otherwise, non-regularization of the left over workers itself would
amount to invidious discrimination qua 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."
27 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.
28 Section 2(ra) defines "unfair labour practice", which reads thus;
"Unfair labour practice means any of the practices specified in the Fifth
Schedule"
29 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."
30 We are of the view that the decision of the Supreme Court in the
case of Harinandan Prasad (supra) helps the respondent. We are
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convinced having regard to the facts of the case and materials on record
that the Corporation could definitely be said to have indulged in unfair
labour practice. The Corporation has no reply to the observations made
by the Supreme Court as contained in para 39 of Harinandan Prasad
(supra).
31 We have also looked into the case law relied upon by Mr.
Munshaw in support of his submissions. However, none of the
judgements relied upon is of any avail to Mr. Munshaw.
32 While dealing with the present appeal, one has to bear in mind
that a intra-Court appeal is really not a statutory appeal preferred
against the judgment and order of an inferior to the superior Court. The
appeal inter se in a High Court from one Court to another is really an
appeal from one coordinate Bench to another Coordinate Bench and it is
for this reason that a writ cannot be issued by one Bench of the High
Court to another Bench of the High Court nor can even the Supreme
Court issue writ to a High Court. Thus, unlike an appeal, in general, an
intra-Court appeal is an appeal on principle and that is why, unlike an
appeal, in an ordinary sense, such as a criminal appeal, where the whole
evidence on record is examined afresh by the appellate Court, what is
really examined, in an intra-Court appeal, is the legality and validity of
the Judgment and/or Order of the Single Judge and it can be set aside
or should be set aside only when there is a patent error on the face of
the record or the judgment is against the established or settled principle
of law. If two views are possible and a view, which is reasonable and
logical, has been adopted by a Single Judge, the other view, howsoever
appealing such a view may be to the Division Bench, it is the view
adopted by the Single Judge, which should, normally, be allowed to
prevail. Hence, the impugned judgment of the learned Single Judge
C/LPA/1577/2017 JUDGMENT DATED: 29/06/2021
should not be completely ignored and this Court has to consider the
judgment and order in its proper perspective and if this Bench, sitting as
an appellate Bench, is of the view that the decision has been arrived at
by the learned Single Judge without any material error of fact or law,
then, the judgment, in question, should be allowed to prevail.
33 In the aforesaid, we have reached to the conclusion that we
should not interfere with the impugned order passed by the learned
Single Judge.
34 In the result, this appeal fails and is hereby dismissed.
35 For all the foregoing reasons, the other connected appeals also fail
and are hereby dismissed. Consequently, all the connected Civil
Applications also stand disposed of.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
CHANDRESH
