w w w . L a w y e r S e r v i c e s . i n



Director District Rural Deve. Agency & Another v/s Kishorkumar D. Tank & Others


Company & Directors' Information:- U T AGENCY PVT. LTD. [Active] CIN = U45203WB1991PTC052617

Company & Directors' Information:- S K H AGENCY PRIVATE LIMITED [Active] CIN = U52390TG2013PTC085384

Company & Directors' Information:- O M AGENCY PRIVATE LIMITED [Active] CIN = U52321TN1961PTC004668

Company & Directors' Information:- S M AGENCY PVT LTD [Active] CIN = U51109WB1964PTC026129

Company & Directors' Information:- G R AGENCY LTD [Strike Off] CIN = U51109WB1951PLC019409

Company & Directors' Information:- S N Q S AGENCY PRIVATE LIMITED [Active] CIN = U52110TZ1999PTC008761

Company & Directors' Information:- A & N AGENCY PRIVATE LIMITED [Under Process of Striking Off] CIN = U51909TN2003PTC052088

Company & Directors' Information:- A E AGENCY PRIVATE LIMITED [Active] CIN = U65993TN2000PTC044931

Company & Directors' Information:- S R W AGENCY PRIVATE LIMITED [Active] CIN = U52190WB2011PTC160006

Company & Directors' Information:- K L AGENCY PRIVATE LIMITED [Strike Off] CIN = U74899DL1992PTC050493

Company & Directors' Information:- S B T AGENCY PVT LTD [Strike Off] CIN = U51103WB1965PTC026347

Company & Directors' Information:- S B M AGENCY PRIVATE LIMITED [Active] CIN = U51504TN2004PTC052953

Company & Directors' Information:- M P S AGENCY PVT LTD [Active] CIN = U51109WB1998PTC088149

Company & Directors' Information:- A. G. AGENCY PRIVATE LIMITED [Strike Off] CIN = U51109DL2008PTC186212

Company & Directors' Information:- S N AGENCY PVT LTD [Strike Off] CIN = U66010WB1989PTC047981

Company & Directors' Information:- V AND S AGENCY PRIVATE LTD. [Strike Off] CIN = U74999DL1986PTC025148

    Letters Patent Appeal No. 1093 of 2013 in Special Civil Application No. 1834 of 2005

    Decided On, 25 January 2018

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE M.R. SHAH & THE HONOURABLE MR. JUSTICE BIREN VAISHNAV

    For the Appellants: G.M. Amin, Sheeja G. Nayar, Advocates. For the Respondents: R2 & R5, C.P. Chaniyara, Advocate.



Judgment Text

Biren Vaishnav, J.

Oral:

1. The present Letters Patent Appeal has been filed by the appellant, who was the original petitioner before the Learned Single Judge. Being aggrieved by the Award of the Industrial Tribunal passed in Reference (I.T.) No. 66 of 1991 dated 30.08.2004, by which the respondents were directed to be regularised in service on completion of five years in service and were directed to be paid regular benefits with arrears with effect from 1.1.1995, resulted in the appellant in filing such a petition which was partly allowed by the learned Single Judge vide judgement and order dated 07.03.2013.

2. Facts in brief are as under:

2.1 Ten part time workers, engaged by the District Rural Development Agency, Junagadh - the appellant herein - original petitioner approached the Industrial Tribunal, Rajkot. They raised an Industrial Dispute which was referred to the Tribunal. The Reference was to the effect that such ten employees engaged by the agency be made permanent and be given benefits akin to permanent employees.

2.2 A statement of claim was filed at Exh.5, before the Industrial Tribunal raising a demand that the ten workmen were engaged with the Agency for the past several years i.e. from the period 1983 to 1987 and therefore had completed 5 years or more in service. It was their case that having been engaged to do regular work which was perennial with the agency over a long period of time, regularising them and paying them regular pay amounted to unfair labour practice.

2.3 The appellant filed its response before the Industrial Tribunal, Rajkot at Exh.8, stating that the agency was receiving grant from the Government to implement the rural programmes of the Government and 10% of such grant was spent on the establishment expenses. The workmen before the Tribunal were only engaged on a part-time basis, on the regular establishment. They carried out miscellaneous work of cleaning, delivering post etc., which work was a work of permanent nature. They were just engaged without any process and looking to the fact that the agency was getting grant for implementation of the projects for the Rural Development, the agency was required to grant them benefits of permanency.

2.4 After considering various decisions of the Supreme Court cited by the respective parties, the Industrial Tribunal came to the conclusion that the workmen before the Tribunal were engaged for the past several years and the agency, in extending the benefits of permanency was committing unfair labour practice and therefore by the Award dated 30.08.2004, the Tribunal directed the appellant - agency to regularise the services of the respondents from the date they completed five years and further directed that the monetary benefits akin to regular employees at the rate of 50% arrears be paid to them with effect from 1.1.1995.

2.5 This Award passed by the Industrial Tribunal, Rajkot was challenged by the appellant before the learned Single Judge. Similar contentions as raised before the Tribunal were raised before the learned Single Judge. It was contended by the appellant's advocate before the learned Single Judge that the respondents were only part time employees engaged for the purpose of implementation of the directions of the State and the Central Government and carry out miscellaneous work namely to open office, cleaning of office and looking after postal work. As the posts are sanctioned posts, the respondents were engaged as daily wagers. According to the original petitioner - appellant herein, the Tribunal committed an error granting the benefit of regularisation when the respondents were engaged through a regular selection process and were appointed as such on sanctioned posts.

2.6 Considering the submissions of the advocate for the employer, the learned Single Judge, by the impugned judgement upheld the award holding that there was a relationship of employer-employee and that since the respondents had worked for last many years regularisation that was ordered was just and proper. The learned Single Judge, however, quashed the directions of the Tribunal to pay 50% arrears from 1.1.1995. The rest of the award was maintained with a substituted direction that the benefits of the award shall be given from 1.09.2004. The original petitioner, therefore, is in appeal before this Court.

3. Shri G.M. Amin, learned advocate for the appellant contended that the learned Single Judge ought to have confirmed the award of the Industrial Tribunal directing regularisation. According to Shri Amin, when admittedly the respondents were appointed through a regular selection process and were engaged on sanctioned posts but were daily wagers, there was no right to claim regularisation. It was submitted that merely because the respondents had worked for many years, that by itself, would entitle the respondents to claim regularisation on the sanctioned posts. In support of his submissions, Shri Amin has relied on a decision of the Hon'ble Supreme Court in the case of Hari Nandan Prasad v. Employer I/R. to Management of FCI and another reported in (2014) 7 SCC 190. He has also relied on a decision of the Division Bench of this Court rendered in the case of Vrajlal Bachubhai Khachariya v. State of Gujarat in Letters Patent Appeal No. 1284 of 2016 in Special Civil Application No. 10667 of 2012.

4. On the other hand, Shri C.P. Chaniyara, learned advocate appearing on behalf of the respondents supported the findings of the learned Single Judge and submitted that there was nothing wrong with the directions issued by the learned Single Judge while confirming the award of the Tribunal. He submitted that on the contrary, the learned Single Judge had taken care to see that the financial burden on the agency is restricted as the award of the Tribunal granting benefits from 1.1.1995 was modified and made applicable from 1.09.2004. The Industrial Tribunal, in Shri Chaniyara's submission, had appropriately, considering that the respondents had worked for many years as daily wagers granted the benefit of regularisation.

5. Having considered the submissions of the respective parties, what needs to be appreciated is that it was the specific case of the appellant agency that it was only implementing the programmes on rural upliftment on behalf of the State and/or the Central Government. Grants were given to such agency and 10% of such grant was utilised for engaging daily wagers for miscellaneous work of cleaning office, sorting of posts etc. The appointments were admittedly made on sanctioned posts as was the case of the employer. No evidence to the contrary was produced by the respondents to contest the employer's claim that the appointments were on sanctioned posts or the engagement was on a part-time basis. The respondents had failed to show any evidence to substantiate their claim that they were part time but were engaged regularly on a full time basis.

6. The finding of the Tribunal, therefore, that the workmen deserved the benefit of permanency as they had worked for five years and that arrears of such benefits be paid was contrary to the evidence on record. Moreover, such a relief of regularisation could have been granted in view of the settled proposition of law that the Industrial Tribunals or Labour Courts could grant relief of the benefit of regularisation to such employees engaged on a part time basis, appointed through a regular selection process and also on the sanctioned set up.

7. Further, the Hon'ble Supreme Court has time and again held that when there are posts available, in the absence of any unfair labour practice, the Labour Court would give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. In this regard, it would be relevant to reproduce the observations made by the Hon'ble Supreme Court in the case of Hari Nandan Prasad v. Employer I/R. to Management of FCI and another reported in (2014) 7 SCC 190 which read as under:

"39. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to Article 14 of the Constitution. Further, such a direction would be given when the concerned worker does meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non-regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Article 14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Article 14, rather than violating this constitutional provision."

8. Shri Amin has also relied on a decision rendered by this Court in the case of Vrajlal Bachubhai Khachariya v. State of Gujarat in Letters Patent Appeal No. 1284 of 2016 in Special Civil Application No. 10667 of 2012. It will be in the fitness of things to reproduce the extract of the observations and findings arrived at by this Court in the case of Vrajlal Khachariya (supra) which read as under:

8.1. At the outset it is required to be noted that both the original workmen were as such appointed and working as Clerk as daily wagers. They completed hardly 2 to 3 years as daily wagers. They raised an industrial dispute and claimed the regularization/permanency on their completing 240 days. That was the only dispute which was referred to the Reference Court. After having held that even the appointments of the original workmen as daily wager Clerk were after following due procedure of selection and/or recruitment, their appointments were hit by Article 14 of the Constitution of India and therefore, following the decision of the Hon'ble Supreme Court in the case of Umadevi (Supra), their claim for regularization/permanency has been rejected and the same has been confirmed by the learned Single Judge by the impugned common judgment and order.

8.2. Nothing is on record and as such it is the case on behalf of the appellants that their appointments were after following due procedure of recruitment/selection process. Nothing is on record that any applications were invited and thereafter after holding recruitment process they were appointed as daily wagers. However, Shri Joshi, learned Advocate appearing on behalf of the appellant of LPA No. 1284/2016 has submitted that having once appointed de hors the recruitment process without following the recruitment process and/or selection process, the Nagarpalika cannot be permitted to take the benefit of their own wrong. However, it is required to be noted that in the present case it is a question of taking the benefit by the Nagarpalika of its own wrong. What is required to be considered is the claim of the original workman of regularization/permanency on their completing 240 days as daily wagers. Having found that their appointments were done after following the due procedure of recruitment/selection process, their appointments can be said to be violative of Article 14 of the Constitution of India, following the decision of the Hon'ble Supreme Court in the case of Umadevi (Supra), the learned Single Judge as well as the learned Industrial Tribunal have rightly rejected the petitions/references and have rightly refused the regularization/permanency on the workmen completing 240 days as daily wagers. We are in complete agreement with the view taken by the learned Single Judge as well as the Industrial Tribunal.

8.3. Now, so far as the submissions made by Shri Joshi, learned Advocate appearing on behalf of the original workman that the decision of the Hon'ble Supreme Court in the case of Umadevi (Supra) shall come in the way of the Industrial Tribunal in granting the relief of regularization is concerned, at the outset it is required to be noted that as such the Hon'ble Supreme Court in para 34 has specifically observed and held that the Labour Court is to keep in mind that there should be any direction of regularization if this offends the provisions of Article 14 of the Constitution on which the judgment in Umadevi (Supra) is primarily founded. It is further observed by the Hon'ble Supreme Court while considering with another decision of the Hon'ble Supreme Court in the case of State of Maharashtra v. R.S. Bhonde reported in (2005) 6 SCC 751 that even the Labour Court/Industrial Court can grant certain reliefs having regard to the statutory powers conferred upon the Labour Court/Industrial Tribunal, which include the reliefs of giving the status of permanency to the contract employees, such statutory power does get denuded by the judgment in Umadevi (Supra). However, such a power is to be exercised only when it is found that the employer has indulged in unfair labour practice by filling up permanent posts even when available and continuing to employ workers on temporary/daily-wage basis and taking the same work from them and making them do some purpose which was being performed by the regular workers but paying them much less wages. It is specifically observed that it is only when a particular practice is found to be unfair labour practice and it necessitates giving direction under Section 30 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (as being considered in that case). In para 39 the Hon'ble Supreme Court has again reiterated that even if there are posts available, in absence of any unfair labour practice the Labour Court would give direction for regularization only because a worker has continued as daily-wage worker/ad hoc/temporary worker for number of years. In para 39, it is specifically observed and held as under:

"34. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to Article 14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non-regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Article 14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Article 14, rather than violating this constitutional provision."

8.4. Thus, considering the aforesaid decision of the Hon'ble Supreme Court when the initial appointments as daily wagers are violative of Article 14, merely because the workman has worked for number of years and their appointments can be said to be back door entry, their services are not required to be regularized and that the Labour Court/Industiral Tribunal would not be justified in passing the order of regularization and/or permanency. As observed hereinabove in the present case the dispute which was referred to the Industrial Tribunal was that whether on completion of 240 days the workmen are entitled to the regularization and/or permanency or not. Under the circumstances, even otherwise the aforesaid decision in the case of Hari Nandan Prasad (Supra) shall not be applicable to the case on hand. The case would squarely fall within the four corners of the decision Hon'ble Supreme C

Please Login To View The Full Judgment!

ourt in the case of Umadevi (Supra). No error has been committed by the learned Single Judge in dismissing the petition and confirming the awards passed by the learned Industrial Tribunal rejecting the references and rejecting the claim of regularization/permanency." 9. Thus, from the above what is borne out is that when there are posts available, in the absence of any unfair labour practice, the Labour Court ought not to have given direction for regularization only because a worker has continued as daily wage/adhoc/temporary worker for number of years. Merely because the workman has worked for a number of years his services are not required to be regularized and that the Labour Court/Industrial Tribunal would not be justified in passing the order of regularization and/or permanency, more particularly when the appointment is by way of back door entry. The respondents had failed to show that they were engaged regularly on a full time basis. It is also required to be borne in mind that in the present case, no evidence to the contrary was produced by the respondents to contest the employer's claim that the appointments were not on sanctioned posts or that the engagement was on a part-time basis. There can be no comparison of a regular service of permanent nature to a short term daily-wage employment. Thus, we are of the view that the learned Single Judge erred in upholding the award passed by the Labour Court holding that there was a relationship of employer-employee and that since the respondents had worked for last many years regularisation that was ordered was just and proper. 10. For the foregoing reasons, the impugned judgement and order passed by the learned Single Judge as well as the award passed by the Industrial Tribunal in Reference (I.T.) No. 66 of 1991 dated 30.08.2004 are quashed and set aside. Appeal is accordingly allowed. No costs.
O R