Gujarat High Court

Amreli Municipality vs Shantibhai Dhyabhai Jethva on 20 January, 2025

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                           C/SCA/16509/2024                                     JUDGMENT DATED: 20/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 16509 of 2024

                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 17049 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 17019 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 16559 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 16542 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 17064 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 16894 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 16943 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 16944 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 16978 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 17110 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 17126 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 17343 of 2024
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 17475 of 2024

                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MRS. JUSTICE M. K. THAKKER

                       ==========================================================

                                   Approved for Reporting                      Yes           No
                                                                                             No
                       ==========================================================
                                                     AMRELI MUNICIPALITY
                                                            Versus
                                              SHANTIBHAI DHYABHAI JETHVA & ORS.
                       ==========================================================


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                            C/SCA/16509/2024                                    JUDGMENT DATED: 20/01/2025

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                       Appearance:
                       MR DEEPAK P SANCHELA(2696) for the Petitioner(s) No. 1
                       MR N P PANDYA(11241) for the Respondent(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                            Date : 20/01/2025

                                                            ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocate Mr.Pandya

waives service of Notice on behalf of respondent No.1.

With the consent of both the parties, this matter was

heard finally.

2. The present petitions are filed challenging the impugned

awards passed by the Industrial Tribunal, Bhavnagar,

whereby, the reference filed by the employees claiming

regularization in the petitioner-Municipality for different

posts which came to be allowed and the petitioner was

directed to grant the benefit of regularization from

01.06.1999 and it was further directed that time period

from the date of appointment till filing of the reference

i.e. of the year 2016 shall be considered for the notional

benefits and the employees were held to be entitled for

all arrears from the date of filing of reference.

3. Facts needed to be discussed for the disposal of this case

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is that the respondent-workmen alongwith 57 other

Safai Kamdars (Sweeper) had filed the reference IT

No.80 of 2010 before the learned Tribunal, Bhavnagar

through Union, seeking regularization of their service on

the post of Sweeper. The reference No.80 of 2010 came

to be rejected vide order dated 11.12.2013 which

remained unchallenged and the second reference came

to be filed through different Union which was registered

as Reference IT No.136 of 2016 before the Industrial

Tribunal, Bhavnagar for the same relief of regularization

on the post of Sweeper from the date of their initial

appointment and also requested to pay all the arrears

from the date of appointment. The aforesaid Reference

was contested by petitioner-Municipality by filing

written statement. Learned Industrial Tribunal, after

considering the evidence placed by both the parties, has

allowed the Reference filed by the respondent-

employees which is subject matter of consideration

before this Court.

4. Heard learned advocate Mr.Haribhai Patel for learned

advocate Mr.Sanchela for the petitioner and learned

advocate Mr.Pandya for the respondent.

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5. Learned advocate for the petitioner submits that learned

Tribunal committed error in allowing the Reference in

favour of the employees without considering the fact

that the petitioner-Municipality is governed under the

provisions of Gujarat Municipality Act wherein, the

specific provisions with regard to fixation of staff pattern

and set up was given. Learned advocate for the

petitioner submits that the impugned order was contrary

to the direction issued by the Apex Court time and again

where the practice of back door entry has been

deprecated. Learned advocate for the petitioner submits

that the appointment of the respondent-employees were

made without following due procedure and without

verifying their educational qualification. Learned

advocate for the petitioner further submits that urban

development and urban housing department has passed

a resolution dated 01.06.2010 whereby, minimum set up

came to be fixed in respect of different class of

Municipality. In the present Municipality, the category B

was allotted. Learned advocate for the petitioner further

submits that above resolution provides that unless there

is express permission from the Commissioner of

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Municipality to fill up the post, the Municipality would

not have the power to regularize the service of the

present respondent.

5.1. Learned advocate for the petitioner submits that

learned labour court has also ignored the fact that the

respondent-employees are junior to other employees

who are working since long with the petitioner-

Municipality, neither they are possessing the requisite

qualification, however, learned Tribunal has directed to

regularize the service by keeping aside the service of the

other employees who are senior than the respondent-

workman. Learned advocate for the petitioner further

submits that the learned Tribunal has blindly accepted

the appointment date i.e. 01.06.1999 without calling for

any evidence in support thereof. Learned advocate for

the petitioner further submits that learned Tribunal has

further observed that there is no requirement to

examine whether the posts are available or not which is

contrary to the directions issued by the Apex Court.

Learned advocate for the petitioner further submits that

the reference is barred by the Principle of resjudicata as

previous reference which was filed for the similar relief

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came to be rejected and without challenging the same,

the workman has filed the second reference through

different Union.

5.2. Learned advocate for the petitioner submits that

learned Tribunal also committed error in allowing the

reference on the ground that the petitioner-Municipality

had committed unfair labour practice without framing

any issue thereof, or giving separate finding for that.

Learned advocate for the petitioner submits that the

long service itself would not render the entitlement of

the workmen for regularization when the initial

appointment itself was dehors the recruitment process.

Learned advocate for the petitioner submits that the

direction of regularization would cause unnecessary

financial burden which would ultimately burden the

public exchequer. Learned Tribunal has also committed

error by directing the petitioner-Municipality to grant

the benefit of award from the date of filing of reference

instead of from the date of award. Learned advocate for

the petitioner submits that in the public employment,

learned Tribunal would not have power to give the

directions of regularization as the same would violate

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the order 14 and 16 of the Constitution of India as well

as violate the directions issued in the case of State of

Karnataka and others Versus Uma Devi and others

reported in 2006 (4) SCC 1 by submitting the same

learned advocate Mr.Sanchela has requested to allow

this petition by setting aside the the impugned award

passed by the learned Tribunal.

5.3. Learned advocate for the petitioner has relied on the

decision rendered by this Court in the case of Vrajlal

Bachubhai Khachariya versus State of Gujarat

tendered in LPA No.1284 of 2016 and in the case of

Amreli Municipality Versus Gujarat Pradesh

Municipal Karmachari Sangh reported in 2004 (2)

GLH 692.

5.4. Learned advocate for the petitioner submits that

without considering the settle principle of law, the

directions for regularization is issued therefore, same is

required to be set aside by allowing the present petition.

Learned advocate for the petitioner submits that instead

of granting the benefit from the date of filing of the

reference, learned Tribunal has granted the same from

the date of their initial appointment.

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6. Per Contra learned advocate Mr.Pandya appearing for

the respondent has submitted that the employees are

working since 1998/1999 onwards and after serving for

25 years they have been paid minimum wages, instead of

regular salary. Learned advocate Mr.Pandya submits

that by taking the employment of the perineal nature

and by paying meager wages, petitioner-Municipality

had committed unfair labour practice and therefore, the

learned tribunal has awarded the reference in favour of

the respondent-workmen. Learned advocate Mr.Pandya

further submits that the previous reference which was

decided was not on merits, but only because of the

absence of the respondent-employee and in absence of

the evidence adduced. Learned advocate Mr.Pandya

submits that as there was not adjudication on merits,

therefore, principle of res-judicata would not apply and

therefore, the impugned award deserves to be

confirmed.

6.1. Learned advocate Mr.Pandya submits that sanctioned

vacant post was available and after considering the

sanction set up, the learned Tribunal came to the

conclusion that the service of the respondent-employees

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are required to be regularized. Learned advocate

Mr.Pandya submits that as per the admission made by

the witness of the petitioner-Municipality, 39 posts were

vacant and therefore, the reference which was awarded

in favour of the respondent-employee by granting the

benefit of regularization, benefits were granted to 14

employees. Learned advocate Mr.Pandya further

submits that by not filling the post through recruitment

process the petitioner-Municipality has exploited the

respondent-employees by paying meager wages on

performing the work of the regular employees. Learned

advocate Mr.Pandya submits that learned Industrial

Tribunal, after assigning cogent reasons has awarded

the reference in favour of the respondent-employee,

therefore, no interference is required and petition

deserves to the dismissed.

7. Considering the submissions made by the learned

advocate for the respective parties and the reasons

assigned by the learned Tribunal, it emerges from the

record that dispute was referred to the Industrial

Tribunal to decide that the respondent-employees are

entitled to be posted on the vacant post or not.

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Undisputably, the respondent-employees are working

since decades. The chart showing the date of

appointment of each employee is reproduced herein

below:-

Sr. Petition Number Name of Employee Post Joining Date No

1 SCA/16509/2024 Shantilal Dhayabhai Jethva Sweeper 01/06/1999

2 SCA/17059/2024 Himmatbhai Bhikhubhai Sweeper 31/03/1998 Mandviya

3 SCA/17019/2024 Piyushbhai Rameshbhai Chauhan Sweeper 01/06/1999

4 SCA/16559/2024 Deepakbhai Babubhai Valodara Sweeper 31/03/1998

5 SCA/16542/2024 Ashokbhai Amrishbhai Parmar Sweeper 31/03/1998

6 SCA/17064/2024 Maheshbhai Babubhai Vaghela Sweeper 01/06/1999

7 SCA/16894/2024 Rasikbhai Chaganbhai Vaghela Sweeper 01/06/1999

8 SCA/16943/2024 Baluben Manjibhai Makwana Sweeper 01/06/1999

9 SCA/16944/2024 Navinbhai Bhagwanbhai Vaghela Sweeper 28/02/1998

10 SCA/16978/2024 Prafulbhai Bhanabhai Solanki Sweeper 31/03/1998

11 SCA/17110/2024 Gauriben Kamleshbhai Parmar Sweeper 31/03/1998

12 SCA/17126/2024 Hareshbhai Dhirubhai Timaniya Sweeper 01/06/1999

13 SCA/17343/2024 Munnabhai Babubhai Chauhan Sweeper 31/03/1998

14 SCA/17475/2024 Ashokbhai Babubhai Parmar Sweeper 31/03/1998

7.1. As per the sanction set up which was placed on record

in the year 2021 before the learned Tribunal, 39 posts

were vacant, however, no procedure was followed to fill

up the same by way of regular recruitment. It is also

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undisputed that the work which was carried out by the

respondent-employees were perineal in nature and they

have been paid meager wages in comparison to the

wages paid to the regular employees. So far as the

contention with regard to the Principle of res judicata is

concerned this Court has referred to the decision

rendered in the previous Reference dated 11.12.2013,

wherein, the learned Tribunal has observed that despite

various adjournments were granted the workman has

not filed the statement of claim, oral or documentary

evidence. In absence of the workman the reference was

rejected. It is also not disputed that the said reference

was filed through the Union namely Gujarat Safai

Kamdar Mahamandal.

8. At this stage, decision rendered by the Apex Court in the

case of Chairman and Managing Director versus

General Secretary FACT Employees Association

reported in 2019 AIR SC 1870 is required to be

referred wherein, it is held that no judicial forum at the

instance of any party to the lease had jurisdiction to try

the issue again on its merits. It was barred for being

tried again by virtue of Principle of res-judicata

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contained in section 11 of the code which has also

application to the labour/industrial proceedings.

Honorable Apex Court has relied on the decision

rendered in the case of RC Tiwari versus MP State

Co-operative Marketing Federation Ltd. reported in

1997 5 SCC 125 and has held that "admittedly there is

a finding recorded by the Deputy Registrar upholding

the misconduct of the petitioner, that constitute the res

judicata. Section 11 of the CPC does not in terms apply

because it is not a court but a Tribunal, constituted

under the Societies Act is given special jurisdiction. So

the principle laid down there under mutates squarely

applies to the procedure provided under the Act. It

operates as res judicata, thus we find that High Court is

well justified in holding that labour court has no

jurisdiction to decide the dispute, once over and the

reference itself is bad in law.

9. The Apex Court in the case of Chairman and

Managing Director versus General Secretary FACT

Employees Association (supra) has also referred the

decision rendered in Pondicherry Khadi And Village

Versus P. Kulothangan And Anr. reported in 2004 1

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SCC 68 and has held that in our opinion "the appellant

has correctly contended that industrial dispute pertain

to same subject matter dealt with in earlier writ

proceedings and was barred by principle of res-judicata.

10. This Court has considered the decision rendered by the

Apex Court in the case of Virendra Bhandari Versus

Rajasthan State Road Transport Corporation

reported in 2002 (9) SCC 104 wherein, the Apex

Court has held that previous reference wherein, the

appellant does not appear inspite of notice has been

adjudicated in that manner. Thereafter, the Government,

by another order dated 20.12.1988 made a reference of

a dispute on same question on which earlier reference

had been made and the Apex Court has held that when

there is no adjudication of the matter on merits, it

cannot be said that industrial dispute does not exist. If

the dispute still exists, as is opined by the Government,

such matter can be referred under section 10 of the ID

Act, 1947 and it was certainly permissible for the

Government to have made the second reference on

which, after inquiring the matter, the Tribunal

adjudicated finally.

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11. Considering the above decisions, it is settled position of

law that if the matter is previously heard and finally

decided by the Court, then in the subsequent

proceedings, principle of res-judicata operates. Here in

the present case, undiputably the order was not on

merits but due to absence of the workman the reference

was rejected. In that event in the opinion of this Court,

the principle of res-judicata would not have applicability.

12. The next question which arise for the consideration is

that whether the sanction set up was available or not.

The set up which was produced by the learned advocate

for the petitioner for the petitioner of March, 2022

suggests that in all there were 93 posts sanctioned out

of that 54 posts were filled up and 39 posts are still

vacant. The decision which was relied by the learned

advocate for the petitioner in the case of Amreli

Municipality Versus Gujarat Pradesh Municipal

Karmachari Sangh (supra) and Vrajlal Bachubhai

Khachariya versus State of Gujarat (supra) wherein,

this Court has observed that in absence of the sanction

set up, direction to regularize the service cannot be

passed.

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13. The Apex Court in the case of Vinod Kumar and others

vs. Union of India has held that merely the workman

were not appointed after due procedure of recruitment

would not be ground for not regularizing the service as

they had worked for decades and at that point of time no

objections were raised. The relevant paragraphs are

reproduced hereinbelow:

"5.Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants in the capacities of regular employees, performing duties indistinguishable from those in permanent posts, and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the temporary and scheme-specific nature of their initial engagement. Moreover, the appellants' promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified merits a reconsideration of their employment status.

6.The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed

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and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra).

7.The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case.

Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder:

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :

(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 :

1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees

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may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one- time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."

14. This Court is of the view that having allowed workman to

work for more than three decades, employer cannot take

defence that appointment is dehors the recruitment

rules and therefore, employees does not entitle for

benefit of reinstatement.

15. In view of the above discussion, this Court did not find

any infirmity in the impugned judgment and award

passed by the learned Tribunal directing regularization

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of the services of the respondent-employees.