Anilbhai Dahyabhai vs Jasdan Nagarpalika
2022 Latest Caselaw 1299 Guj

    C/SCA/5893/2008                                CAV JUDGMENT DATED: 04/02/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                R/SPECIAL CIVIL APPLICATION NO. 5893 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

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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 ?

================================================================ ANILBHAI DAHYABHAI Versus JASDAN NAGARPALIKA ================================================================ Appearance:

MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1 MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 1 ================================================================

CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

Date : 04/02/2022

CAV JUDGMENT

1. The present Special Civil Application challenges the award dated 11.05.2007 passed by the Labour Court, Rajkot in Reference (LCD) No.10 of 1997 whereby the learned Labour Court has dismissed the reference preferred by the petitioner for regularization in service.

C/SCA/5893/2008 CAV JUDGMENT DATED: 04/02/2022

2. The brief facts leading to filing of the present petition are as follows :-

2.1 The petitioner workman came to be appointed as a daily wager - Safai Kamdar on 24.08.1992 in the respondent Nagarpalika. The petitioner raised a demand for regularization before the Additional Labour Commissioner who made a reference to the Labour Court being Reference (LCD) No. 10 of 1997. The parties led the evidence in support of their case. At the time of final hearing of the reference, none appeared for the petitioner. However, the learned Labour Court, on the basis of documentary and oral evidence/submissions, was pleased to decide the said reference. Vide impugned judgment and award, the Labour Court dismissed the reference for regularization holding that the petitioner had not produced any evidence as to how or through which channel he came to be appointed as Safai Kamdar in the respondent Nagarpalika and held that since the petitioner was not appointed through any proper procedure of employment, he is not entitled to regularization. The petitioner herein thereafter filed an application under Rule 26-A of the Gujarat Industrial Rules being Misc. Application No. 44 of 2007 for restoration and rehearing of the reference. By order dated 31.12.2007, the said application came to be rejected holding that the award dated 11.05.2007 was not an ex parte award and that it was passed on merits after duly considering all the documentary and oral evidence produced on record by the petitioner. Aggrieved, the petitioner has preferred the present Special Civil Application.

3. Learned advocate Mr. K. M. Ghavariya for learned advocate Mr. Murali Devnani appearing for the petitioner submitted that the petitioner was entitled to regularization since he was working on the establishment for a long period. It was further submitted that the sanctioned set-up of the respondent Nagarpalika had vacancy and therefore also, the petitioner ought to have been

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considered against the said vacancy and regularized by the respondent. He submitted that the petitioner also produced a list of persons who had been absorbed against the sanctioned set-up alongwith a list of vacant posts and therefore also, the petitioner was entitled to absorption and regularization in the regular set-up of the respondent Nagarpalika. It was submitted that on 05.04.2008, the services of the petitioner came to be terminated by the respondent Nagarpalika because he had preferred the present Special Civil Application challenging the denial of regularization by the Labour Court. It was submitted that the petitioner again raised Reference (LCR) No. 192 of 2008 challenging his termination and the said reference came to be allowed by the Labour Court directing the respondent to reinstate the petitioner with continuity in service and 20% back-wages. That the respondent Nagarpalika had thereafter preferred Special Civil Application No. 2928 of 2017 challenging the said order passed by the learned Labour Court, which was disposed of by order dated 19.03.2019 whereby the reinstatement of the petitioner was upheld with continuity in service, but the direction for payment of 20% back-wages was quashed and set aside. Lastly and in the alternative, learned advocate for the petitioner submitted that in view of judgment of Hon'ble Apex Court in case of State of Punjab vs. Jagjit Singh [(2017) 1 SCC 148], the petitioner may be granted the wages at the minimum of the pay-scale and the award may be modified to that extent since he is being paid the wages under the Minimum Wages Act even after such a long period of service.

4. Learned advocate Mr. Deepak Sanchela appearing for the respondent Nagarpalika submitted that the learned Labour Court had called upon the petitioner to produce the evidence with regard to his appointment, however despite repeated chances given to the petitioner, he was not able to produce any evidence to show that he had been appointed as a daily-wager by following due

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procedure of recruitment. Despite assurances given by the petitioner that he would be producing the same, till the disposal of the reference, no such appointment order was produced by the petitioner. It was submitted that since the petitioner was not appointed by following any due procedure, he was not entitled to regularization as the recruitment in the sanctioned set-up has to be done by following due procedure of law. It was also submitted that the learned Labour Court has passed appropriate order after duly considering the evidence on record and also the arguments of the parties. He submitted that the respondent Nagarpalika had produced the evidence on record to show that there were no vacancies in the sanctioned set-up and there was no possibility of the petitioner of being absorbed against any vacant post. Lastly, learned advocate for the respondent submitted that the petitioner was not entitled to wages at the minimum of the pay-scale and that he was being paid as per the Minimum Wages Act which was applicable to the daily-wager.

5. Heard learned advocates for the respective parties and perused the documents on record.

6. It is seen from the award that despite repeated opportunities granted to the petitioner and despite the fact that he himself agreed to produce the appointment letter, the same was never produced by the petitioner before the Labour Court to show that he was appointed by following any procedure. The petitioner did not even produce his application made to the Corporation as alleged by him in support of his case for regularization in service. The list of vacant posts in the sanctioned set-up as produced by the petitioner has been rebutted by the respondent by duly producing the relevant documents to show that there were no vacancies. In absence of any cogent evidence with regard to his appointment by following due procedure of law, the petitioner herein is not entitled to regularization in service. Even by order dated 19.03.2019 in

C/SCA/5893/2008 CAV JUDGMENT DATED: 04/02/2022

Special Civil Application No. 2928 of 2017, the petitioner has been continued in service with the status of workman as on the date of his illegal termination and the said order has also become final.

7. In respect of the contention that the petitioner should be granted the benefit of wages at the minimum of the pay-scale in terms of the judgment of the Hon'ble Apex Court in Jagjit Singh (supra), it is seen that the Hon'ble Apex Court has held that all the temporary employees (irrespective of nomenclature - daily-wage employees, ad-hoc employees, employees appointed on casual basis, contractual employees and the like) would be entitled to draw wages at the minimum of the pay-scale (at the lowest grade in the regular pay- scale) as extended to the regular employees holding the same post. This Hon'ble Court in Letters Patent Appeal No.1155 of 2019 and connected matters vide order dated 09.05.2019 has also taken into consideration the judgment of the Hon'ble Apex Court in Jagjit Singh (supra) and held that the employees such as the present petitioner deserve consideration of limited relief of grant of minimum of pay-scale without the benefit of permanency and regularization due to long years of service. In the present case, the petitioner is working as a daily wager employee since 24.08.1992.

8. For the aforesaid reasons and in the facts and circumstances of the present case, the Special Civil Application is partly allowed. The respondent Nagarpalika is directed to grant the benefit of wages at the minimum of the pay-scale of Safai Kamdar in terms of the judgment of the Hon'ble Apex Court as well as this Hon'ble Court as discussed above from the date of filing of the present Special Civil Application. The Special Civil Application is disposed of accordingly. No order as to costs.

(ANIRUDDHA P. MAYEE, J.) cmk