1. Heard learned advocate Mr.R.C.Kakkad for the petitioner Municipality in all these three petitions, learned advocate Mr.Khusbu Chhaya for the workmen respondents in Special Civil Application No.16152 of 2018, learned advocate Mr.A.K.Clerk for the workmen respondents in Special Civil Application No.18283 of 2018 and learned advocate Mr.Samir Gohil for the workmen respondents of Special Civil Application No.18282 of 2018.
2. By way of all these three petitions, the petitioner has prayed for quashing and setting aside the award passed by the Labour Court No.1, Junagadh in various References on various dates, the details of which are stated as under:
2.1 In Special Civil Application No.16152 of 2018, the Labour Court No.1, Junagadh had vide order dated 16.11.2016 partly allowed the Reference (Demand) No.19 of 2001.
2.2 In Special Civil Application No.18282 of 2018, the Labour Court No.1, Junagadh had vide order dated 02.01.2017 partly allowed the Reference (Demand) No.10 of 2004.
2.3 In Special Civil Application No.18283 of 2019, the Labour Court No.1, Junagadh had vide order dated 05.08.2017 partly allowed the Reference (Demand) No.57 of 2001.
2.4 Vide all these three awards the Labour Court No.1, Junagadh partly allowed the References preferred by the respondents workmen and granted them the benefits of regularisation with effect from 09.04.2013 on the various posts that the workmen were holding and were working since number of years. However, effect of regularisation though was given from 09.04.2013, it was given notionally till the date of the award.
3. The brief facts of the cases giving rise of filing of all these three petitions are as under:
3.1 Special Civil Application No.16152 of 2018 is preferred against the award dated 16.11.2016 in Demand (Reference) No.19 of 2001 which was preferred by four workmen out of which one workman viz. Chandrika Danabhai Vadher has expired during the pendency of litigation and her legal heirs were brought on record subsequently. Remaining three persons viz. Kamabhai Arjanbhai Vadher, Bharatbhai Nanjibhai Vadher and Arvindbhai Mangabhai Beradia preferred the aforesaid Reference and by stating that they are working as Sweeper in the petitioner Municipality since long and since they are working for more than 240 days and their work is of permanent nature,, they may be regularised.
3.2 In Special Civil Application No.18282 of 2018, the petitioner has challenged the award dated 02.01.2017 in respect of Reference (Demand) No.10 of 2004 preferred by three persons viz. Bharatbhai Bijalbhai Parmar, Ranjeetbhai Pragjibhai Solanki and Husenbhai Ismailbhai Mer wherein they stated that they were working under present petitioner since long and continuously and yet they have been paid minimum wages only with a view to deprive them of benefits of permanent employee and therefore they may be regularised.
3.3 In Special Civil Application No.18283 of 2018, the petitioner has challenged the award dated 05.08.2017 passed by the Labour Court No.1, Junagadh in respect of Reference (Demand) No.57 of 2001 preferred by six persons initially, however, thereafter in respect of other workmen withdrawal pursis were presented before the Labour Court and one Bhupatbhai Jetabhai Sisodiya had expired during the pendency of the Reference. Therefore the aforesaid Reference was confined only to Umeshkumar Gopalbhai Sikotra and hence the same was considered in respect of him only. In the claim statement, the said employee had submitted that though he was performing duty of Octroi Clerk since 30.04.2001, on abolition of post of Octori the persons performing duty of Octroi Guard were asked to perform duty of Clerk and accordingly he was also performing duty of Clerk though posts of Junior Clerk is there in regular set-up and the workman is performing duty as Junior Clerk he has not been regularised and hence prayed for regularisation.
3.4 Though all those three Reference were independently heard by Labour Court, Junagadh, and were partly allowed by passing separate orders on various dates, however, the common factor in respect of all those three References were that all the three References were partly allowed and the respondents workmen were granted benefits of regularisation from 09.04.2013 notionally but effect of regularisation was given from the date of award in each of the respective Reference.
3.5 Being aggrieved by and feeling dissatisfied with the aforesaid awards, the petitioner Talala Municipality has challenged the same by way of three separate petitions and since nature of relief granted in respect of all three awards were identical, all the three matters were heard together.
3.6 With the consent of parties, the matters were heard finally, hence Rule. Learned advocate Mr.Clerk, learned advocate Mr.Gohil and learned advocate Ms.Chhaya waive service of notice of Rule on behalf of respective respondents workmen, in each of petition respectively.
4.1 Learned advocate Mr.Kakkad vehemently submitted that all the respondents workmen were appointed as daily wager by the then Sarpanch of Gram Panchayat as at the time when the respondents workmen were assigned work as Rojamdar, the Municipality was not there and it was Talala Gram Panchayat. He submitted that the initial entry of the respondent workmen was back-door entry as no procedures prescribed under the Rules were followed. According to learned advocate Mr.Kakkad before filling up of any post as per Panchayat Act, 2003 necessary permission was required to be taken by the Gram Panchayat which was not taken at the relevant point of time and, therefore, respondent workmen can be said to be back-door entrance and hence they are not entitled for any regularisation as their initial appointment was not in consonance with the Rules of appointment. At the time of their appointment, no advertisement was published or no other procedure was followed by Municipality and hence their entry being back-door entry, they are not eligible and entitled for regularisation.
4.2 Learned advocate Mr.Kakkad also submitted that at the relevant point of time there was no sanction post and the set-up was sanctioned only in the year 2013 and, therefore, at the relevant point of time there were no sanctioned post and yet respondents were used to work as daily wager and hence they have no right of seeking regularisation. He submitted that the regularisation can be ordered only in case if there are sanctioned posts available and by keeping those posts vacant, the workmen were asked to perform duty which were identical to the duty that a person holding the sanctioned post performs.
4.3 In the instant case, the set-up was sanctioned only in the year 2013 whereas Reference was preferred in the year 2001 and 2004 for regularisation on the ground that they have completed 240 days as daily wager and, therefore, Labour Court has committed an error by regularising the services of the respondents workmen.
4.4 Learned advocate Mr.Kakkad assailed the aforesaid award on the ground of delay also by stating that it is only in the year 2001 and 2004 that the Reference for regularisation was preferred, however, learned advocate Mr.Kakkad could not point out by relying upon any material or judgment that what can be said to be reasonable time for preferring the Reference before the Labour Court to claim regularisation and what could be the reasonable period after which if any application for regularisation is preferred the same can be thrown out by considering it as time barred application.
4.5 Learned advocate Mr.Kakkad also prayed that let the Rule be issued and matter may be adjourned sine die, as the Hon’ble Supreme Court has just recently referred the matter in case of Oil and Natural Gas Corporation vs. Krishan Gopal and others rendered in Civil Appeal No.1878 of 2016 and allied matters to the appropriate Court wherein the question of regularising by the Labour Court is considered and, therefore, until that Reference is decided, this Court may not proceed with the present petition.
4.6 In support of the aforesaid say, he relied upon the decision dated 07.02.2020 of the Hon’ble Supreme Court in the case of Oil and Natural Gas Corporation vs. Krishan Gopal and others rendered in Civil Appeal No.1878 of 2016 and allied matters. Further, learned advocate Mr.Kakkad tried to point out from each of the Reference that it is an admitted position that the appointment of each of the respondent workman was a back-door entry and hence they are not entitled for regularisation.
4.7 Except the aforesaid submissions, no submissions were made by learned advocate Mr.Kakkad.
5.1 Learned advocates Mr.A.K.Clerk, Mr.Gohil and Ms.Chhaya vehemently opposed the petition and at the outset submitted that the matter may not be adjourned sine die and may be decided today itself for the reason that though the award is of the year 2016-17 whereby respondents workmen have been granted benefits of regularisation by the Labour Court, the same has not been implemented till today after lapse of more than five years. It was pointed out by learned advocate Mr.A.K.Clerk that in the aforesaid decision reported in the case of Oil and Natural Gas Corporation vs. Krishan Gopal and others (supra), the Hon’ble Supreme Court has referred the matter to the Appropriate Bench only for the purpose of three issues mentioned in para:24 of the said decision.
5.2 By pointing out the aforesaid aspect, learned advocate Mr.Clerk pointed out to the Court that para:23 of the very judgment refers to about the preposition which would emerge upon analyzing various decisions considered by the same Bench in the same judgment and submitted that the issues in question relate to regularisation by taking into consideration unfair labour practice which has been proved beyond doubt before the Labour Court and, therefore, the issue involved in this petition would not require the matter to be admitted and to wait untill the Reference is decided.
5.3 Thereafter, learned advocate Mr.Clerk, learned advocate Mr.Gohil and learned advocate Ms.Chhaya took this Court through the evidence recorded by the Labour Court in detail and pointed out that in each of the petition, officer of the petitioner Municipality viz. Ashokkumar Mansukhbhai Pathak was examined and during his cross-examination, in each of the award he has categorically admitted that from 09.04.2013 now there is a sanctioned set-up in the petitioner municipality out of sanctioned posts only 45 posts are filled up by Municipality and remaining posts are still lying vacant. It was also pointed out by learned advocate appearing for the respondents workmen that in the cross-examination said Ashokbhai Pathak has categorically admitted the fact that the case of each of the respondent workman has been recommended by very Municipality earlier for the purpose of regularisation to the concerned higher authority. It was further pointed out from cross-examination of aforesaid employee that the nature of work performed by workmen is identical to the work that is to be performed by permanent employee and though sanctioned posts are lying vacant, no attempt has been made to fill-up aforesaid posts which would mean to depriving the respondents workmen of equal treatment and pay package as in absence of their being any advertisement to fill-up sanctioned post, respondents workmen were forced to work in the minimum daily wages and thereby they were denied the pay-scale which they would otherwise entitle to as permanent employee.
5.4 Therefore, considering the aforesaid aspect, Labour Court categorically held that this would amount to unfair labour practice and considering that aspect, the Labour Court had granted order of regularisation from the date on which set-up was sanctioned by the Government i.e. dated 09.04.2013 and even benefit of regularisation were directed to be given notionally from 09.04.2013 till the date of award and actual benefits were directed to be given only from the date of award, which would otherwise also wash-out entire past service of the respondent workmen. Considering their length of service as well as considering the fact that References were preferred in the year 2001 and 2004 and the services rendered by respondent workmen even prior thereto, the award passed by the Labour Court is absolutely just, legal and proper and the same may not be interfered with.
5.5 Learned advocate Mr.Clerk relied upon the judgment in the case of Harinandan Prasad and others vs. Employer, In-charge to the Management of Food Corporation of India and others reported in 2014(7) SCC 190 and by relying upon para:39 of the said judgment submitted that even the Hon’ble Supreme Court, in that judgment, has held that direction of regularisation can be granted by Labour keeping in mind the violation of Article 14 of the Constitution of India. It is only if no direction which would violate Article 14 of the Constitution of India, in that case only, the order of regularisation is impermissible as per aforesaid judgment.
5.6 Learned advocate Mr.Clerk further submitted that in respect of the same municipality when the same municipality was enjoying status of Talala Gram Panchayat, 17 persons preferred Reference for regularisation that was considered by the Labour Court, Junagadh in Reference (Demand) No.10 of 2001 vide order dated 27.01.2003 and while partly allowing the aforesaid Reference, Labour Court directed Gram Panchayat to treat 23 workmen to be continuous in service since the day of their entry and allot them alternative work on the day they completed 240 days and to treat them as permanent employee.
5.6 Learned advocate Mr.Clerk submitted that aforesaid award was challenged by the Gram Panchayat by Special Civil Application No.12035 of 2003 and ultimately Panchayat failed as the petition preferred by Panchayat was dismissed vide order dated 27th and 28th September, 2012 by the learned Single Judge of this Court. The aforesaid decision was further carried in appeal by the Panchayat by preferring Letters Patent Appeal No.1103 of 2013, however, vide order dated 06.03.2014, even the Letters Patent Appeal also was dismissed. Even that order was also carried before the Hon’ble Supreme Court by Panchayat by preferring Special Leave to Appeal (Civil) No.9741 of 2014 and Special Leave Petition preferred by the Panchayat was dismissed vide order dated 14.07.2014 which shows that award by the Labour Court was confirmed not only by this Court but has been confirmed upto Hon’ble Supreme Court whereby 23 employees were directed to be regularised. It was also submitted that ultimately out of those 23 employees, 17 were regularised and absorbed in regular set-up of Panchayat and Reference has been made in each of impugned wards which are subject matter of challenge by each of these three petition.
5.7 Learned advocate Mr.Clerk further pointed out that the present petitioner itself through its Chief Officer has sent proposal dtd.16.09.2015 to the State Government to regularise services of the workmen of 9 persons including the respondents workmen in Special Civil Application No.18283 of 2018.
6.1 Learned advocate Mr.Samir Gohil appearing for the respondent workman in Special Civil Application No.18282 of 2018 relied upon the decision of the Hon’ble Supreme Court in Civil Appeal No.3209 and 3210 of 2015 dtd.27.03.2015 in case of Umrala Gram Panchayat vs. Secretary, Municipal Employees Union and others and by relying upon the said judgment he pointed out that in almost similar set of facts, the Hon’ble Supreme Court dismissed the appeal preferred by Gram Panchayat and a direction was issued to treat the services of the concerned workmen as permanent employees after five years of the initial appointment as daily wager workman till their age of superannuation.
6.2 He submitted that while dismissing the aforesaid Appeal, Hon’ble the Supreme Court considered submissions in respect of unsound financial unsound condition of the Panchayat and ultimately observed that that has not resulted in the discontinuance of activity of the Panchayat even wages were also paid to employees regularly and, therefore, in absence of there being any material about the financial condition of the Panchayat, the claim of unsound financial position of Panchayat was rejected outrightly by the Hon’ble Supreme Court and therefore even that aspect also if canvassed by the Municipality the same may not be considered in absence of there being any material to justify the same.
7. Learned advocate Ms.Khusbu Chhaya appearing for the workmen in Special Civil Application No.16153 of 2018 made submissions in line with the submissions made by learned advocate Mr.Clerk and learned advocate Mr.Gohil and prayed for dismissal of all these three petitions.
8. Except above submissions, no other submissions are made nor any judgments were relied upon by learned advocate for the parties.
9. I have considered the submissions made by learned advocates for the parties, perused the record as well as judgments relied upon by learned advocates for the respective parties.
9.1 First of all, I may deal with submission of learned advocate Mr.Kakkad to defer the hearing of the matter and to adjourn it sine die for the reason that vide decision dated 07.02.2020 in the case of Oil and Natural Gas Corporation vs. Krishan Gopal and others (supra), the Hon’ble Supreme Court has, after considering various judgments and more particularly the judgment in the case of Oil and Natural Gas Corporation vs. Petroleum Coal Labour Union reported in 2015 (6) SCC 494 [LQ/SC/2015/611] [‘PCLU’, for short ] has formed an opinion that the judgment of Oil and Natural Gas Corporation vs. Petroleum Coal Labour Union [PCLU] needs reconsideration and ultimately the matter was placed before the Hon’ble the Chief Justice of Hon’ble Supreme Court of India to consider the placing of matter before appropriate Bench.
9.1.1 Learned advocate Mr.Clerk drew attention of this Court to paras:23 and 24 of the decision dated 07.02.2020 relied upon by learned advocate Mr.Kakkad in the case of Oil and Natural Gas Corporation vs. Krishan Gopal and others (supra) and submitted that legal position is very clear as can be seen from para:23 of the said decision, as the Hon’ble Supreme Court has requested the for placing matter before appropriate bench only for limited purpose, which is stated in para:24. In view of that, I deem it appropriate to reproduce paras:23, 24 and 25 of the said judgment.
“23. The following propositions would emerge upon analyzing the above decisions:
(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution;
(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exit 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;
(iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service;
(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and
(v) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen.
24. The decision in PCLU needs to be revisited in order to set the position in law which it adopts in conformity with the principles emerging from the earlier line of precedent. More specifically, the areas on which PCLU needs reconsideration are:
(i) The interpretation placed on the provisions of clause 2(ii) of the Certified Standing Orders;
(ii) The meaning and content of an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act; and
(iii) The limitations, if any, on the power of the Labour and Industrial Courts to order regularisation in the absence of sanctioned posts. The decision in PCLU would, in our view, require reconsideration in view of the above decisions of this Court and for the reasons which we have noted above.
25. We accordingly request the Registry to place the proceedings before the Hon’ble Chief Justice of India so as to enable His Lordship to consider placing this batch of appeals before an appropriate Bench.”
9.1.2 A perusal of the aforesaid paras would indicate that in para:23, the Hon’ble Supreme Court, after analyzing various judgments, has come to conclusion about prepositions, which would emerge upon analyzing the decision which was cited before the Hon’ble Supreme Court while rendering decision in case of Oil and Natural Gas Corporation vs. Krishan Gopal and others (supra) and it is only for limited purpose that the matter was requested to be placed before Appropriate Bench. The three questions for which matter was referred to in respect of Oil and Natural Gas Corporation vs. Petroleum Coal Labour Union [PCLU] Judgment are specifically stated in paras:24, which is already reproduced hereinabove. One of them for which the decision in the case of Oil and Natural Gas Corporation vs. Petroleum Coal Labour Union [PCLU] was required reconsideration was meaning and contents of unfair labour practice under Section 2(ra) read with Item 10 of the Fifth Scheduled of ID Act.
9.1.3 Considering the fact that in para:23, and more particularly by considering Point Nos.2, 4 and 5, the Hon’ble Supreme Court summarized the prepositions which would emerge upon analyzing decisions canvassed before the Hon’ble Supreme Court.
9.2 In the instant case also, it is alleged that petitioners have indulged in unfair labour practice by not filling up permanent posts even though such posts were available by continuing to employee/workman as temporary or daily wages and when the similarly situated employees have already been regularised by virtue of Reference of the Labour Court, which was initially challenged by way of Special Civil Application No.12035 of 2003 and subsequently the has been confirmed upto Hon’ble Supreme Court, I am of the opinion that the case on hand would fall within the prepositions that were framed up based upon the analysis of various judgments and as it is only the judgment in the case of Oil and Natural Gas Corporation vs. Petroleum Coal Labour Union [PCLU] in respect of only three areas, which were referred to Appropriate Bench, I do not deem it appropriate to adjourn the matter sine die till the Hon’ble Supreme Court decides the Reference as the subject matter of these petitions and what has been referred to are absolutely different and, therefore, matters are heard on merits and submissions made by learned advocates for the parties are considered.
9.3 Coming back to the main controversy, having learned advocates for the respective parties and on perusal of the record, I have found that even one Mr.Ashok Mansukhlal Pathak, who was examined who was holding position of Head Clerk has specifically admitted the fact that nature of work that the present respondents workmen are performing are of permanent nature and they are performing their duties, which are identical to that of persons from the regular set-up are performing and that the name of each of workman was sent with recommendation for regularisation to the higher authority and, therefore, once there is clear-cut admission by the employee of the Municipality, who was examined on behalf of Municipality, in absence of any material which may provide any reason to take contrary view, I do not see any reason to interfere with the findings of the Labour Court.
9.4 Further, Labour Court has taken into consideration all the aspects canvassed before it and has assigned cogent reasons based on evidence which was led before the Labour Court by way of cross-examination of workmen as well as representative of the petitioner municipality.
9.5 Further, as far as the submission of learned advocate Mr.Kakkad about back-door entry of the respondents workmen is concerned, even the respondent workman or advocates appearing on their behalf could not dispute about the fact that initial appointment was without any advertisement or interview. However, subsequently they served for quite long duration. In the meantime, the Gram Panchayat was converted into Municipality and with effect from 09.04.2013 even the sanctioned set-up was also approved. After the set-up was sanctioned thereafter also out of 71 sanctioned posts, only 45 posts were filled up by the Municipality as can be seen from affidavit filed by Municipality in Special Civil Application No.16152 of 2018 and still there are 22 posts lying vacant. Considering the fact that there are 22 posts lying vacant and the Municipality could not prove by leading evidence that nature of work performed by respondent workman is different than the work that has to be performed by permanent employee, and when after leading evidence the Labour Court has categorically arrived at finding that action of the petitioner Municipality would amount to unfair labour practice and taking note of aforesaid unfair labour practice when the order of regualarisation has been passed keeping in mind the fact that there are sanctioned posts which have remained unfilled and the petitioners are performing duties which are otherwise meant to be performed by permanent employees and when out of few total workmen, the case of few workmen is already positively considered by Municipality and recommended for regularisation. When there is finding of the Labour Court that treatment meted out to the workmen by the Municipality amounts to unfair labour practice and based upon that finding, the order of regularisation is passed, I do not see any reason to interfere with the findings of the Labour Court.
10. In view of above discussion, all these petitions are required to be dismissed and the same are dismissed accordingly. Rule is discharged. No order as to costs.
