Municipal Commissioner vs Khodidas Bachubhai Thakor
2022 Latest Caselaw 5731 Guj

      C/SCA/5223/2018                             ORDER DATED: 29/06/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 5223 of 2018
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                        MUNICIPAL COMMISSIONER
                                 Versus
                  KHODIDAS BACHUBHAI THAKOR & 2 other(s)
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Appearance:
MR HAMESH C NAIDU(5335) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR UT MISHRA(3605) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 29/06/2022
                              ORAL ORDER

[1] This petition under Article 227 of the Constitution of India is filed by the petitioner for following reliefs:-

"(A) A writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction be issued to quash and set aside impugned award dated 22nd August, 2017 passed by the learned Labour Court No.4, Ahmedabad in Reference (T) No.505 of 2007 and further be pleased to reject the Reference.

(B) Pending the admission, hearing and final disposal of the petition, this Hon'ble Court may be pleased to say the execution, implementation and operation of the impugned award dated 22nd August, 2017 passed by the learned Labour Court No.4, Ahmedabad in Reference (T) No.505 of 2007."

[2] Essentially the challenge is to the order of the Labour Court in Reference (T) No.505 of 2007. By the impugned order, the Labour Court has in its operative part held that order of oral termination dated 13.08.2004 is illegal and therefore, the respondent-workman was ordered to be reinstated. The Court had issued notice by an order dated 10.04.2018, where offer was recorded from the respondent-corporation for offering lump-sum compensation. The matter has been adjourned from time to time and today, when the

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matter was taken up and continued for substantial period, learned advocate for the respondent has failed to appear. No request made on his behalf and nobody has appeared and hence, with the assistance of learned advocate for the petitioner, the matter is taken up for final disposal considering the matter to be pending at since 2018 , the pleadings are also completed by both sides .

[3] At the outset, learned advocate for the petitioner submitted that the Labour Court has proceeded on an erroneous footing that the respondent has suffered an illegal termination, whereas it has always been the case of retrenchment. Learned advocate has drawn attention of this Court to the order of retrenchment dated 31.08.2004 and submitted that the order in itself would indicate that the respondent-workman has been paid notice pay as provided for and has also been offered the retrenchment allowance. It is also submitted that the order would indicate that as and when if any recruitment is to take place for the same post, the workman would be given priority and hence, the corporation has complied with the requirement of Section 25F of Industrial Disputes Act, 1947. Despite this, without there being any evidence on record, the Labour Court has proceeded as if the respondent has been terminated.

[3.1] Learned advocate has submitted that the respondent- workman has never intended join the service of the petitioner- corporation as he was by the retrenchment order, retrenched in the year 2004 and the Nagarpalika with which the respondent-workman was engaged had merged into the corporation in the year 2006 and the present dispute is raised only in the year 2007 and therefore, from 2004 to 2007, the respondent-workman has not made any efforts either to raise a dispute. Moreover, from the statement of claim also, there is no explanation for this period. It is submitted that the respondent-workman was a backdoor entrant and was

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engaged with Ghatlodiya Nagarpalika at the relevant time without following any process of law.

[4] In the affidavit in reply filed on behalf of the respondent- workman, it is contended by workman that immediately after the termination, other persons were recruited as daily wagers. It is also submitted that the workman had completed more than 240 days in a year and therefore, he could not have been terminated. It is submitted that while passing the award, the Labour Court has taken into consideration all the documentary evidences and the respondent has been able to establish his case on the basis of the oral evidence which he had submitted on affidavit.

[5] In rejoinder, learned advocate appearing for the petitioner submitted that in other cases of identically situated workmen, employed under Ghatlodiya Nagapalika prior to the merger, the industrial disputes were. However, in those disputes, wherein the Labour Court has ordered compensation in lieu of reinstatement. It is submitted that the Laboour Court ought to have followed uniform practice of the other Labour Court in this matter as well. Learned advocate refereed to Reference (T) No.678 of 2010 and Reference (T) No.679 of 2010. Learned advocate also referred and relied upon the decision of the Apex Court in case of Incharge Officer and Another v/s. Shankar Shetty, reported in 2010 (9) SCC 126.

[6] The Court has heard learned advocates for the parties and perused the documents placed on record. The undisputed facts are that the respondent No.1-workman was engaged with Ghatlodiya Nagarpalika even as per the case of the respondent-workman from 02.11.1998 to 31.08.2004 and was retrenched under an order dated 31.08.2004. Meaning thereby, the respondent-workman had worked from 02.11.1998 to 31.08.2004 with erstwhile Ghatlodiya Nagarpalika. From the evidence on record, which is in the form of

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affidavit of the respondent-workman, nothing is coming on record with regards to the manner and method in which the appointment of the respondent-workman has taken place with the Nagarpalika. In the cross-examination at Exh.16, the respondent-workman has deposed that approximately in the year 1998, he had joined Ghatlodiya Nagarpalika and thereafter, he had continued to work till 31.08.2004. In a specific question asked, it is stated that there is no documentary evidence with regard to his engagement nor any appointment letter.

[6.1] The question was asked with regards to raising an industrial dispute in the year 2007 has also not been answered by the respondent-workman and therefore, from the statement of claim, from the evidence in chief and in the cross-examination, no reason is coming out why the respondent though retrenched by an order dated 31.08.2004 has raised the industrial dispute only in the year 2007. This aspect would gain relevance as there is subsequent development after the order of retrenchment was served.

[6.2] The development is in the manner that in the year 2006, the Ghatlodiya Nagarpalika had merged into the Ahmedabad Municipal Corporation. The Notification dated 20.11.2006 was placed on record before the Labour Court, in the opinion of the Court, it was the duty of the Labour Court to examine the provisions of the notification as the same would have provided for the existing establishment and the employees under the Nagarpalika.

[6.3] When the merger had taken place in the year 2006 by Notification dated 20.11.2006, obviously the retrenchment order dated 31.08.2004 was already passed, was not under challenge and therefore, the respondent-workman was not on the roll of the Nagarpalika when the actual merger took place. Therefore, the provisions which would have been made in the notification of

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merger with regard to the employees of the Nagarpalika, would not in any case be applicable.

[7] On the issue of retrenchment, the Court has examined the order of retrenchment placed on record which specifies five reasons for the retrenchment. The order also specifies issuance of cheque in favour of respondent which was in lieu of the notice. Moreover, there also is a reference to payment of retrenchment allowance. The Labour Court has failed to examine retrenchment order in itself, but has proceeded to treat the retrenchment order as an order of oral termination. Hence, an error is committed by the Labour Court.

[8] This Court in the oral judgment dated 17.08.2009 in Special Civil Application No. 7967 of 2009 and allied matters has dealt with the issue of the employees of erstwhile Nagarpalika upon their merger with the Ahmedabad Municipal Corporation and has categorically stated that the respective employees of the Nagarpalika cannot be ordered to be absorbed on regular basis even on the existing sanctioned vacant post in absence of any recruitment process being followed. In para-7 the Court has held as under:-

"7. Heard Shri T.R. Mishra, learned advocate appearing on behalf of the respective petitioners at length. Having heard Shri T.R. Mishra, learned advocate appearing on behalf of the respective petitioners and considering the facts narrated in each of the petitions and considering the decision of the Ahmedabad Municipal Corporation dated 29/06/2009 on the representation made by the respective petitioners, it appears that all the respective petitioners were serving on different posts as Junior Clerk, Senior Clerk, Technical Supervisor,Superintendent, Head Clerk, Junior Accountant, Peon, Driver etc. with the respective Gram Panchayat/Nagarpalika on ad hoc and temporary basis and on fixed salary. Considering the order on the representation, it appears that the appointment of the respective petitioners by the concerned respective Gram Panchayat/Nagarpalika were absolutely illegal and without following the due procedure of selection and recruitment and all the appointments were by

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back door entry. It also appears that the appointment of the

SCA/7967/2009 6/8 JUDGMENT respective petitioners were not on the sanctioned post. The concerned Gram Panchayat/Nagarpalika, under which the respective petitioners were serving/working came to be merged into the local limits of the Ahmedabad Municipal Corporation in the year 2006 and due to the administrative exigencies and expansion of the local limits of the Ahmedabad Municipal Corporation, there was a need of the employees and, therefore, supernumerary posts were created for temporary period and all the respective petitioners and other employees of the concerned Gram Panchayat/Nagarpalika came to be continued on the said supernumerary posts on the same terms and conditions on which they were working with the respective Gram Panchayat/ Nagarpalika. As stated hereinabove, all the respective petitioners were serving/working as ad hoc and temporary basis on fixed salary under the respective Gram Panchayat/Nagarpalika, and, therefore, they cannot have better status while continuing with the Ahmedabad Municipal Corporation. As stated hereinabove, the appointment of the respective petitioners with the respective Gram Panchayat/Nagarpalika were absolutely illegal and, therefore, the prayer of the respective petitioners to consider the case of the respective petitioners on supernumerary post on the sanctioned vacant post and to pay them regular salary and other benefits will tantamount to giving premium to the illegalities. As such, considering the decision of the Hon'ble Supreme Court in the case of STATE OF BIHAR Vs. UPENDRA NARAYAN SINGH & ORS reported in 2009(5) SCC 65 and in the case of PINAKI CHATTERJEE & ORS Vs. UNION OF INDIA & ORS reported in 2009(5) SCC 193, no relief can be granted in favour of the respective petitioners to absorb them on regular basis on the existing sanctioned vacant post and to

SCA/7967/2009 7/8 JUDGMENT pay them the regular salary and other benefits paid to other employees. If the respective petitioners would have been continued with the respective Gram Panchayat/Nagarpalika, in that case, no relief could have been granted to the respective petitioners to regularise their services and to pay them their salary in the regular pay-

scale of permanent employees. It is required to be noted that in the petitions, it is not the case on behalf of the respective petitioners that the appointment of the respective petitioners by the respective Gram Panchayat/Nagarpalika was after following the due procedure of selection inviting the applications by giving advertisement in local newspaper and/or calling their name from the employment exchange and after due selection by the selection committee and on the

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sanctioned vacant post. Under the circumstances, the prayer of the respective petitioners to absorb them on the supernumerary sanctioned vacant post and to pay them regular salary and other benefits inclusive of increments etc., which are paid to the employees of the Ahmedabad Municipal Corporation, cannot be granted. All the respective petitioners came to be absorbed/continued with the Ahmedabad Municipal Corporation on the same terms and conditions on which they were working with the concerned Panchayat/Nagarpalika i.e. on absolute ad hoc and temporary basis and on fixed salary and, therefore, all the petitions deserves to be dismissed. However as and when fresh selection is held, it will be open for the respective petitioners to pray for age relaxation and make a representation so that their case can be considered on merits alongwith others."

[9] Considering the submissions made by learned advocate for the petitioner-corporation, referring to the other references of the similarly situated workmen of Ghatlodiya Nagarpalika, the petitioner-corporation is still ready and willing to offer a compensation of Rs.1 Lakh in lieu of reinstatement. Accepting the submission made by learned advocate for the petitioner, the impugned award 22nd August, 2017 passed by the learned Labour Court No.4, Ahmedabad in Reference (T) No.505 of 2007 is set aside, in lieu the respondent-corporation to pay an amount of Rs.1 Lakh towards the compensation.

[10] With the aforesaid, the petition stands disposed of.

(A.Y. KOGJE, J) SIDDHARTH