Gujarat High Court
Junagadh Agriculture University ... vs Kailashben Natwarlal Pandya on 25 August, 2023
Bench: Devan M. Desai
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C/LPA/232/2023 JUDGMENT DATED: 25/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 232 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 13279 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/LETTERS PATENT APPEAL NO. 232 of 2023
With
R/LETTERS PATENT APPEAL NO. 233 of 2023
In
SPECIAL CIVIL APPLICATION NO. 3372 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/LETTERS PATENT APPEAL NO. 233 of 2023
In
SPECIAL CIVIL APPLICATION NO. 3372 of 2019
With
R/LETTERS PATENT APPEAL NO. 234 of 2023
In
SPECIAL CIVIL APPLICATION NO. 12026 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/LETTERS PATENT APPEAL NO. 234 of 2023
In
SPECIAL CIVIL APPLICATION NO. 12026 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the No
fair copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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JUNAGADH AGRICULTURE UNIVERSITY THROUGH REGISTRAR
Versus
KAILASHBEN NATWARLAL PANDYA & 2 other(s)
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Appearance:
MR DG CHAUHAN(218) for the Appellant(s) No. 1
for the Respondent(s) No. 3
MR PJ MEHTA(467) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 25/08/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
These three Letters Patent Appeal preferred by
the appellant Agricultural University under Clause 15
of the Letters Patent are cognate since they arise
from common judgement and order of learned Single
Judge dated 10.03.2022. As the facts are similar and
the issues identical, all the appeals were heard
together to be treated simultaneously by this order.
2. The first captioned Letters Patent Appeal No.
232 of 2023 is relatable to the common judgment and
order of the learned Single Judge insofar as it
concerns Special Civil Application No. 13279 of 2017.
The second Letters Patent Appeal corresponds to
Special Civil Application No.3372 of 2019 and the
third Letters Patent Appeal No. 234 of 2023 pertains
to Special Civil Application No. 12026 of 2013.
2.1 As per the impugned judgment and order, learned
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Single Judge upheld the judgment and award of the
Industrial Tribunal in cases of workmen who were
daily rated employees of the university. The benefit
of regularisation to the workmen came to be confirmed
by learned Single Judge, which was extended to them
in light of the scheme of regularisation framed in
respect of the very University by the Supreme Court
in Gujarat Agricultural University vs. Rathod Labhu
Bechar & Ors.[(2001) 3 SCC 574].
2.2 It may be noticed at the outset that while
several employees were involved in the instant three
Letters Patent Appeals, who were the respondents
herein, it was given out by learned advocate Mr. D.G.
Chauhan for the appellant University jointly with
learned advocate Mr. P.J. Mehta for the respondent
employees that the University has granted the benefit
of regularisation as also the consequential benefits
to all of them in accordance with the decision of the
Supreme Court in Rathod Labhu Bechar (supra).
2.3 It was however claimed on behalf of the
appellant University that four of the employees named
Kailashben Natwarlal Pandya, Kaliben Ranabhai Mori,
who are two of the respondents in Letters Patent
Appeal No. 232 of 2023, Maganbhai Ramjibhai Rathod,
one of the respondent employee in Letters Patent
Appeal No. 233 of 202, Devbalaben Arjanbhai Jethwa,
who is one of the respondents in the remaining
Letters Patent Appeal, are not entitled to the
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benefits of the scheme and regularisation.
2.4 Learned advocate for the University at the same
time stated before the Court that these four
employees have already been given benefits of
regularisation during the pendency of the contempt
proceedings initiated by them. It was so stated by
learned advocate for the University upon production
of orders passed by the competent authorities of the
University, by learned advocate for the said
employees.
2.5 Amongst the said four daily rated employees, who
were urged to be treated differently, as per the
submission of the learned advocate for the
University, Kailashben Natwarlal Pandya who joined
the service on 23.07.1993 is still under employment
of the University, having completed 28 years of
service. In the same way, Kaliben Ranabhai Mori
joined the employment as daily rated workman on
08.06.1993 and has completed 29 years of service and
presently also working. The third employee Maganbhai
Ramjibhai Rathod still in service, has put in 25-30
years of service, it was stated. The last named
Devbalaben Arjanbhai Jethwa has retired in the year
2013. In that view, learned advocate for the
University harped about non-entitlement of the four
employees named above, to be governed under the
scheme under the decision in Rathod Labhu Bechar
(supra), consequently not liable to be given
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regularisation.
3. Noticing the basic facts in the background from
the record of the first captioned Letters Patent
Appeal, the workman invoked the jurisdiction of the
Industrial Tribunal, Rajkot, by filing Reference (IT)
No. 153 of 2003 seeking benefit of regularisation,
putting forward their Statement of Claim dated
19.11.2003. Their case inter alia was that they had
been serving in the University as daily rated workmen
for more than 10 years continuously. It was the case
that they had completed 240 days in each year, but
the University have been indulging in unfair labour
practise to keep them away from the benefit of
regularisation even as the work was of perennial
nature.
3.1 The Reference was contested by the University by
filing reply dated 02.08.2004/26.04.2005 wherein it
was inter alia contended that all the employees-
workmen including the four above named workmen were
agricultural labourers and they were paid as per the
rules. It was stated in the reply that the
University was obliged to grant the permanency
benefits to all the workmen who have completed the
requisite number of years and continuous service as
per the decision of the Supreme Court.
3.2 It was further sought to be contended that the
workmen had not completed requisite continuous
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service till date. The Industrial Tribunal partially
allowing the Reference directed regularisation of the
workmen giving the incidental benefits of fixing the
pay-scale and paying the consequential benefits. It
was provided by the Industrial Tribunal that from the
date of Reference till the date of Award dated
09.01.2019, the workmen will not be entitled to
receive any arrears, but the period shall be treated
as notional.
3.3 Learned Single Judge revisited with the facts
and findings recorded by the Industrial Tribunal and
the award which was passed by it granting the benefit
of regularisation. Learned Single Judge observed
thus, in paragraph 27 of the order, noticing that the
workmen were in service since almost three decades.
"Perusing the awards of the Industrial Tribunal
would indicate that evidence has come on record
as is discussed by the Industrial Tribunal that
the employees therein were working for over more
than twenty five years. The tribunal has drawn
adverse inference in light of the decision of
the Supreme Court and found that the employees
were working for more than 25 to 30 years and
which was therefore unfair labour practice."
3.4 Two References filed for similar relief and on
identical set of facts by different workmen, in that
regard, learned Single Judge observed in para 28 to
put the things in uniform manner and the awards of
the Tribunal as far as granting the benefits of
notional wages is concerned, came to be modified
accordingly,
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"Once identical awards were a subject matter of
challenge and affirmed by the supreme Court in
the case of Labhu Bechar (Supra), there is no
reason why the benefits ought to be granted to
the employees who were before the Industrial
Tribunal in these two petitions. However, it is
made clear that since the employees were before
the Tribunal and the Tribunal looking to the
financial burden of the State only granted
benefits on a notional basis, needs to be
modified inasmuch as the respondent employees
who were before the Industrial Tribunal and or
the beneficiaries of the award of the Industrial
Tribunal dated 9.1.2019 and 5.2.2019 should be
considered on the same lines as the petitioners
of the aforesaid petitions, which are being
decided today by a Common CAV Judgment for
extending the benefits of regularization in
accordance with the decision of the Supreme
Court in the case of Labhu Bechar (Supra)."
4. The moot assail to the judgment and order of the
learned Single Judge on the part of the University
was confined to the aforesaid four workmen, in whose
respect it was submitted by learned advocate for the
appellant University that they did not fall within
the corners of the scheme of regularisation as per
the decision of the Supreme Court in Rathod Labhu
Bechar (supra), they having not completed requisite
number of years of continuous service. It was sought
to be contended that these four workmen could not be
said to have completed 10 years of service to be
entitled to regularisation and that they deserve to
be excepted from the benefit even though the others
have been granted.
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4.1 Learned advocate for the appellant further
proceeded to submit that in the terms of Reference
what was claimed was only regularisation and the
benefit pursuant to the decision of the Supreme Court
in Rathod Labhu Bechar (supra) was not in the arena
of dispute. It was contended that the Labour Court
had exceeded the jurisdiction in granting the award,
which could be said to be beyond the terms of
reference.
4.2 Learned advocate for the appellant then relied
on the affidavit dated 21.08.2023 as well as the
order dated 14.08.2023 passed by the Vice Chancellor
of the University which reiterated that one of the
four workmen Kailashben Natwarlal Pandya, having not
completed 10 years of service, could not be said to
be entitled to the benefit of regularisation under
the judgment of the Supreme Court. He then tried to
rely on the statements produced in relation to
Kailashben Natwarlal Pandya and Kaliben Ranabhai
Mori to suggest that they did not complete requisite
10 years of service.
4.3 The decision of the Supreme Court in Union of
India vs. Ibrahim Uddin and Anr. [(2012) 8 SCC 148]
was pressed into service for its paragraph 77 to
submit that relief could not be granted beyond the
pleadings. Another decision also of the Supreme
Court in Mahendra L. Jain & Ors. vs. Indore
Development Authority & Ors. [(2005) 1 SCC 639] was
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relied on by pointing out from paragraph 34 of the
said judgment that when no case is made out from the
statement of claim, relief ought to have been denied.
4.4 By referring to the decision in Indian Drugs &
Pharmaceuticals Ltd. vs. Workmen, Indian Drugs &
Pharmaceuticals Ltd. [(2007) 1 SCC 408], learned
advocate for the appellant put forth the proposition
of law that daily rated wager has no right to be
regularised and no such vested right could be
claimed. Yet another judgment also of the Supreme
Court in State of Rajasthan vs. Daya Lal & Ors.
[(2011) 2 SCC 429], was cited to highlight that while
exercising the powers under Article 226 of the
Constitution, the directions for regularisation could
not be given.
5. It was entirely erroneous and misleading to
suggest that the Industrial Tribunal while
considering the claim of regularisation by the
workmen was not to consider the decision of the
Supreme Court in Rathod Labhu Bechar (supra). What
is laid down therein was not only law of land but it
dealt with the very issue of regularisation of the
daily rated workman working under the same appellant
University. The Supreme Court framed a scheme for
regularisation.
5.1 It could also be pointed out from the record
that in the terms of reference for regularisation,
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one of the supportive aspect and contention was
seeking the benefit of the said decision. The
affidavit of Kaliben Ranabhai Mori (exhibit 9) before
the Industrial Tribunal in Reference (IT) No. 153 of
2003 (copy at page 224-226 of the record of the
appeal) indicated that there was an express and
unequivocal demand by the workman seeking benefit of
the said decision in Rathod Labhu Bechar (supra).
5.2 Although it was submitted by learned advocate
for the University that pursuant to the decision of
the Supreme Court framing scheme for regularisation
for the daily rated workman of the University, as
many as and more than 890 workmen have been
regularised, the abovenamed four employees could not
be said to have acquired eligibility to be governed
under the Scheme. Therefore, it was suggested that
learned Single Judge has committed error in not
denying the benefit to the said four workmen.
5.3 In Rathod Labhu Bechar (supra), the Supreme
Court had an occasion to deal with the issue of
regularisation of those employees serving for long
period in the University and the impropriety of not
regularising such workmen kept on daily rated basis
and exploited them since years together. It was the
view taken by the Supreme Court that the daily rated
workmen ought to have been absorbed in accordance
with the rules and if necessary, by relaxing
qualifications and creating necessary number of
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posts. It was observed that the fact of long
experience of the daily rated labourers without any
complaint could constitute a ground for relaxing the
qualification for appointment.
5.4 It was noticed that the appellant University had
been engaging very large number of daily rated
labourers for various activities. They comprised of
unskilled, semi skilled, skilled and field labourers
of different categories and included working as
Plumbers, carpenters, sweepers, pump operators,
helpers, masons, etc., whose appointments were made
in the exigencies and they have continued for long
years.
5.5 In paragraph 10, the scheme was proposed by the
Supreme Court,
"We heard learned counsel for the parties at
length and considered the objections of the
respondents with respect to the proposed scheme
for the regularisation of daily rated workers.
The proposed scheme is reproduced below:
SCHEME FOR REGULARISATION OF DAILY RATED LABOURS
OF THE GUJARAT AGRICULTURAL UNIVERSITY.
1. Daily-wager workers, whether skilled, semi-
skilled or unskilled, who have completed 10
years or more of continuous service with a
minimum of 240 days in each calendar year as on
31.12.1999, shall be regularised as regular
employees with effect from 1.1.2000 and shall be
put in the time scale of pay applicable to the
corresponding lowest grade in the University
subject to the following terms and conditions:
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(a) The daily rated employees shall be eligible
and must possess the prescribed qualifications
for the post at the time of their appointment on
daily rated basis.
(b) Daily-wager employees shall be regularised
in a phased manner to the extent of available
regular sanctioned posts/vacancies on the date
of regularisation and on the basis of seniority-
cum-suitability including physical fitness.
(c) The work and conduct of such employees
should have been of over all good category and
satisfactory and no disciplinary proceedings are
pending against them.
(d) The regularisation will be against the
posts/ vacancies of the relevant categories
only.
2. Daily workers, whether skilled semi- skilled
or unskilled, who have completed 10 years of
continuous service with a minimum of 240 days in
each calendar year as on 31.12.1999 but could
not be regularised shall be treated as monthly
rated employees w.e.f. 1.1.2000 in the fixed pay
without allowances as per the following formula:
Prepared by University:
Daily rate Fixed pay = prescribed by 26+ Rs.500
the Government fromtime to time for
skilled,semi-skilled, unskilled workers as the
case may be They would be entitled to an annual
increment of Rs. 15/-, Rs. 20/- and Rs. 25/-
respectively for unskilled, semi-skilled and
skilled workers till their services are
regularised as per para-1.
3. Daily-wager whether skilled, semi-skilled or
unskilled who have not completed 10 years of
service with a minimum of 240 days in each
calendar year shall be paid daily wage at the
rates prescribed by the Government of Gujarat
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from time to time for daily wager employees
falling in Class III and Class IV.
4. The seniority of the daily rates Class III
and IV employees so regularised vis-à-vis Class
III and IV employees appointed on regular basis
shall be determined w.e.f. 1.1.2000. The inter
se seniority of such daily rate Class III & IV
employees shall be determined in accordance with
the date of joining the post on daily rated
basis. If the date of joining the post(s), on
daily rated basis by such daily rated employees
was the same, then the elder employee shall rank
senior to an employee younger in age. If the
date of joining of the directly recruited
regular employees and the date of regularised
employees as per this scheme is the same, the
direct recruit shall be senior.
6. Appreciated in light of the facts of the present
case, to apply the benefit of regularisation as per
the decision of the Supreme Court in Rathod Labhu
Bechar (supra), learned Single Judge pertinently
noticed that the workmen had been engaged for more
than 25-30 years. This fact could not be disputed by
the University that these four workmen have worked
for long decades. The statement produced by the
University itself indicates that Kailashben Natwarlal
Pandya has put in 38 years of service, Kaliben
Ranabhai Mori has been working since 29 years, while
one of the workman Devbalaben Arjanbhai Jethwa has
retired, the other remaining workman Maganbhai
Ramjibhai Rathod has also put in more than 25 years,
it was stated. The court fails to appreciate that
eventhough the opportunity was granted, the
University placed the facts of service only of
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Kailashben and Kaliben and not of all the workmen,
where too the said workman showed to be in service
for 38 years and continuing.
6.1 Be as it may. Even the details of service of
Kailashben and Kaliben-two of the workmen, thus
indicated that they have worked very long. The
statement sought to be relied on from the reply to
the Statement of Claim that the workmen had not
complete 10 years of continuous service indicated
only the fact situation as existed on the date of
filing of the reply to the Written Statement. As on
date, there is no gainsaying that the workmen have
put in service as daily rated labourers for almost
three decades. It is trite that continuing the daily
rated workers in the same status for long period such
as three decades has to be viewed as practicing
unfair labour practice and exploiting the labourers
by statutory body like appellant University.
6.2 The adoption of unfair labour practice by the
employer has to be both eschewed and deprecated.
Under the Industrial Disputes Act, 1947, section
2(ra) defines 'unfair labour practice' to mean any of
the practice specified in the Fifth Schedule.
Referring to Fifth Scheduled at item no.10, 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 is treated as unfair labour
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practise.
6.3 In Oil and Natural Gas Corporation vs. Krishan
Gopal and Ors. [2020 SCC Online SC 150], the Supreme
Court inter alia held that the statutory power is
available to the Labour Courts and Industrial
Tribunals to grant relief to workmen including the
status of permanency continues to exist in
circumstances where the employer has indulged into
unfair labour practice. In paragraph 34, one of the
propositions laid down was thus,
"The statutory power of the Labour Court or
Industrial Court to grant relief to workmen
including the status of permanency continues to
exist in circumstances where the employer has
indulged in an unfair labour practice by not
filling up permanent posts even though such
posts are available and by continuing to employ
workmen as temporary or daily wage employees
despite their performing the same work as
regular workmen on lower wages"
6.4 What clinches the issue is the evidence and
material available before the Industrial Tribunal on
the basis of which the Tribunal came to the
conclusion that all the workmen including the above
four had completed 240 days of continuous service to
be entitled to the benefit of regularisation. In
para 8.4 of the judgment and award, the Industrial
Tribunal has considered the documents at exhibit 48,
48/1 and it is recorded on the basis of the said
document and other factual aspects produced before
the Tribunal that workman Kaliben worked for 256 days
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in the year 1994 whereas as Kailashben worked in
2002, 244 days. It was therefore recorded that
Kaliben who entered service as daily rated labourer
on 23.06.1993 completed 240 immediately in the next
year. It was recorded by the Tribunal that the said
factum of presence was established by the documents
produced by the first party employer-the University.
6.5 The above were the finding of facts recorded by
the Tribunal leading to grant of the benefit of
regularisation on the basis of the decision of the
Supreme Court. It is these findings of facts, which
are confirmed by learned Single Judge, noticing
further that the workmen have been working as daily
rated labourers since more than 25-30 years. The
benefit of regularisation under the scheme of
decision of the Supreme Court in Rathod Labhu Bechar
(supra), could be legitimately extended to the
disputed four workmen also.
6.6 Learned Single Judge could not be said to have
been committed any error in dismissing the petitions
filed by the University to confirm the benefits to
the workmen. The judgment and order of learned
Single Judge and the extension of benefit of
regularisation to hold all the workmen including
above four is eminently just, proper and legal. No
interference is called for in Letters Patent
jurisdiction of this Court.
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7. All the Letters Patent Appeals are dismissed
with cost of Rs. 3,000/- each, to be paid by the
University to each of the four workmen.
All the connected Civil Applications also stand
disposed of in view of the dismissal of the main
appeals.
(N.V.ANJARIA, J)
(D. M. DESAI,J)
BIJOY B. PILLAI
