Savarkundla Municipality Versus Vs Ishmailbhai Hasambhai Jhankhra & Anr.

A.S. Supehia, J

1. ADMIT. Learned advocate Mr. I. G. Joshi, waives service of notice of admission on behalf of the respondent No.1.

2. The present appeal filed under Clause 15 of the Letters Patent, 1865 is directed against the common oral order dated 12.10.2023 passed by the learned Single Judge rejecting the writ petition filed by the appellant - Savarkundla Municipality assailing the award dated 30.07.2018 passed by the Industrial Tribunal, Bhavnagar (for short, “the Tribunal”) in Reference (IT) No.99 of 1999 directing the appellant – Municipality to absorb two Fitters, one Mr.Ismail Hasambhai Jhankhra and Mr.Mehbobbhai Musabhai Jhankhra on the regular posts. The Reference (IT) No.99 of 1999 was partly allowed and they were directed to be made regular and for the intervening period, the Tribunal has directed that the period shall be treated as notional and no arrears are granted. So far as the date of appointment as Fitter is concerned; (i) Mr.Ismail Hasambhai Jhankhra is appointed on 28.04.1995 and (ii) Mr.Mehbobbhai Musabhai Jhankhra is appointed on 28.04.1997. The same are not disputed.

3. The workmen, who are engaged as Fitter in the Water Works Department of the Municipality, raised a demand of regularization, which culminated into reference proceedings. The same was assailed by the appellant – Municipality by way of filing the captioned writ petition. The learned Single Judge has pleased to reject the same and the said rejection has given cause to file the present Letters Patent Appeal.

4. At the outset, learned advocate Mr. D. P. Sanchela, appearing for the appellant – Municipality has submitted that the Tribunal fell in error in ordering regularization of the workmen since no sanctioned post was available. He has submitted that in fact, there are various orders passed by the Tribunal, which are not in line with each other. It is submitted that the Tribunal as well as the learned Single Judge fell in error in not considering the Resolution dated 01.06.2010 passed by the Urban Housing Department, wherein it was stated that henceforth, no Valvemen / Pumpmen / Fitters like the present respondent-workmen are required to be engaged in the Water Works Department.

5. Learned advocate Mr.Sanchela, appearing for the appellant – Municipality has also placed reliance on the setup, which was produced before the Tribunal at Exh.21 and also the affidavit filed by the Savarkundla Municipality contending that no post of Valveman or Fitter is sanctioned by the Nagarpalika and hence, it is urged that the order passed by the learned Single Judge confirming the award passed by the Tribunal may be set aside. In support of his submissions, learned advocate Mr.Sanchela has placed reliance on the judgment of the Supreme Court in the case of Vibhuti Shankar Pandey Vs. State of Madhya Pradesh and others, 2023 (3) SCC 639.

6. Per contra, learned senior advocate Mr. G. M. Joshi, appearing for the respondent – workmen has submitted that all these contentions were raised before the Coordinate Bench, by the very same Municipality and the Coordinate Bench, after considering the evidence on record, which was similar in nature, has ultimately rejected the Letters Patent Appeals being Letters Patent Appeal No. No.973 of 2023 and allied matters vide judgment and order dated 23.01.2024, which was assailed before the Supreme Court by filing SLP (C) No.1606 of 2024 and the same has been rejected by the Supreme Court vide order dated 23.01.2024. It is submitted by the learned senior advocate that in the present case, the workmen are appointed in the years 1995 and 1997 and they continued in the Water Works Department by the Municipality and hence, as held by the Coordinate Bench in the order dated 23.01.2024 in the case of very same Municipality, such engagement for all these years would amount to unfair labour practice. It is submitted that the Coordinate Bench, after considering array of the judgments, has rejected the Letters Patent Appeal and since the present workmen are juniors and appointed earlier to those workmen, the present appeal may be rejected.

7. We have heard the learned advocates appearing for the respective parties.

8. The facts, which are established from the pleadings, are that two workmen, as named hereinabove, were appointed in the Water Works Department in the years 1995 and 1997. They raised the demand in the year 1999 claiming regularization, which has been allowed by the Industrial Tribunal vide award dated 30.07.2018 passed in Reference (IT) No.99 of 1999.

9. At this stage, we have noticed that the Coordinate Bench, while dealing with the self-same issue in the case of similar workmen/employees and colleagues of the respondents, while dealing with the similar contentions raised by the Savarkundla Municipality has rejected the Letters Patent Appeal, challenging the awards, as confirmed by the learned Single Judges of this Court.

10. The details of such workmen, who were before the Co-ordinate Bench, who are appointed in the Water Works Department as Valvemen / Pumpmen / Fitters is as under : -

11. The Coordinate Bench, vide order dated 23.01.2024 passed in Letters Patent Appeal No.973 of 2023 and allied matters, after examining the similar evidence and submissions advanced by the Nagarpalika, has recorded thus : -

“3.4 The Industrial Tribunal examined the workman (Exh. 13). The workman was cross-examined by the first party employer. On behalf of the first party employer, witness named Harendrakumar Dhirajlal Joshi (Exh. 25) was examined, whom the workman cross-examined. The said Harendrakumar Dhirajlal Joshi deposed in common in all the reference cases. On the basis of the evidence and material on record, the Industrial Tribunal concluded that the witness of the first party employer had pleaded ignorance about the manner in which the workman was taken in service. He accepted that some of the workmen were regularised pursuant to the award of the Labour Court.

3.5. It was undisputedly submitted and could be elicited from the evidence that there were 40 to 42 water bores managed by the Municipality to supply water to the inhabitants of the town, which was the function and duty of the Municipality under the law. The findings in that regard was recorded by the Industrial Tribunal on the basis of the evidence of witness of the first party employer (Exh. 25). It was also revealed from his evidence that the work of valveman was to be of continuous nature for 24 hours. The water was supplied to the different areas of the town which was managed by the persons-workmen posted as valveman or pumpman etc., whose nomenclature was different but posted at bores.

3.6 A copy of the set-up of the Municipality was also available with the Industrial Tribunal (Exh. 23). Also before the Industrial Tribunal was the resolution of the Municipality itself (Exh. 20). They revealed that the one post against every pump was sanctioned and accordingly, the persons were recruited and retained on the post of valveman. Those factual details went to show that there were sufficient number of pumps for which workmen were employed and that the work of supply of water from bore was of permanent nature.

3.7 The findings recorded by the Tribunal in each case were that the workman held the post of valveman for more that 15 to 18 years in each case. They continued as daily rated workman. The work was available and the post was also shown to be available in the set-up. Regarding availability of posts, a finding of fact came to be recorded by the Industrial Tribunal in judgment and award, which was revisited with by learned single Judge to reiterate and confirm the findings.

4. It was attempted in vain by learned advocate for the municipality that in the set-up of municipality, the posts were not available. In each of the cases, the Industrial Tribunal has considered the evidence regarding set-up.

4.1 xxx….

4.2 Therefore, in all cases, the Tribunal has recorded categorical finding that the posts of valveman was available or at least equivalent post was available in the set-up of the municipality to be utilised for giving the appointment on regular post to the workman. It was recorded that the post of valveman was recognised with different nomenclatures and that all were equivalent posts, where the valveman were posted on duty.

4.3 Even otherwise, it is to be observed that keeping the workman in service giving them meager wages on daily rate basis had indeed no sanctity in law. It was the duty and obligation on the part of the Municipality to seek sanctioned set-up from the competent higher authority to have the posts of Valveman to accommodate the workman concerned to grant them the permanency benefits, when work performed by them was of perennial nature.

5. Keeping the workmen on daily rated basis for unduly long by paying them lower wages and not getting the posts sanctioned at the same time, would amount to adopting unfair labour practice

5.1 Section 25T of the Industrial Disputes Act 1947 contains prohibition against the employers resorting to unfair labour practice. It says that, “no employer or workman or trade union, whether registered under the Trade Unions Act 1926 or not, shall commit any unfair labour practice.” The expression unfair labour practice is defined in 2(ra) of the Industrial Disputes Act to mean any of the practices specified in the Fifth Schedule. When the Fifth Schedule of the Industrial Disputes Act is seen, it enlists one of the unfair labour practices in item No.10 to be thus, “To 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”

5.2 When the employer avoids to fill up the permanent posts even when posts are available and continues to employ workers on temporary or daily wage basis taking the same work from them, which is done by the regular workers and pays meager wages, it is a case of unfair labour practice. It is an exploitative conduct where the employer keeps his employees poorly paid unbearably long. Unfair labour practice is exploitation of workmen. This situation entitles the workman to be absorbed as permanent employee casting obligation in law on the employer. In view of facts and the factual findings recorded in para 5.1 hereinabove, such situation is obtained in the present case.

5.3 In Hari Nandan Prasad and Another vs. Employer I/ R to Management of Food Corporation of India and Another [(2014) 7 SCC 190], the Supreme Court emphasised the fine balancing of the rights of the employer employee in the matter of regularisation of the employees and granting temporary employees the benefit of permanency. Referring to some of its own the decisions, the Supreme Court observed that it was dependent on the facts of each case as to whether the order of regularisation is necessitated to advance justice to the daily rated workman or such benefit is to be denied where giving of such direction would infringe upon the employer’s rights.

5.3.1 The decisions in Maharashtra SRTC vs. Casteribe Rajya P. Karmchari Sanghatana [(2009) 8 SCC 556] and U.P.Power Corporation Ltd. vs. Bijli Mazdoor Sangh and Others [(2007) 5 SCC 755] were considered by the court in Hari Nandan Prasad (supra). Upon harmonised reading of these two decisions, it was stated that even where the posts are available, in absence of any unfair labour practice, the Labour Court cannot give direction for regularisation only on the ground of long service rendered by daily rated workman.

5.3.2 In Hari Nandan Prasad (supra), the Supreme Court, however, clarified that wherever the Labour Court or Tribunal have statutory power to grant relief to the workman it would include power to grant the relief of accruing status of permanency to the contractual employee or daily rated employee. It was in terms stated that where the employer is found to have indulged into any unfair labour practice, as defined in Industrial Disputes Act, the relief of regularisation could be extended.

5.3.3 The Supreme Court in Hari Nandan Prasad (supra) observed that in such set of facts, if regulariastion is not granted, it would even offend and violate the equality clause under Article 14 of the Constitution,

“However, whenever it is found that similarly situated workmen are regularised by the employer itself under some scheme or otherwise and the workmen in question who have approached the Industrial/Labour Court are on a par with them, direction of regularisation in such cases may be legally justified, otherwise, non-regularisation 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 achieved the equality by upholding Article 14 of the Constitution, rather than violating this constitutional provision.” (para 39)

5.4 The Supreme Court pertinently observed in Regional Manager, State Bank of India vs. Raja Ram [(2004) 8 SCC 164] as under,

“In other words, before an action can be termed as an unfair labour practice it would be necessary for the Labour Court to come to a conclusion that the badlis, casuals and temporary workmen had been continued for years as badlis, casuals or temporary workmen, with the object of depriving them of the status and privileges of permanent workmen. To this has been added the judicial gloss that artificial breaks in the service of such workmen would not allow the employer to avoid a charge of unfair labour practice. However, it is the continuity of service of workmen over a period of years which is frowned upon. (para 9)

5.4.1 The Apex Court proceeded to state,

“Besides, it needs to be emphasised that for the practice to amount to unfair labour practice it must be found that the workman had been retained on a casual or temporary basis with the object of depriving the workman of the status and privileges of a permanent workman. There is no such finding in this case. Therefore, Item 10 in List I of the Fifth Schedule to the Act cannot be said to apply at all to the respondent's case and the Labour Court erred in coming to the conclusion that the respondent was, in the circumstances, likely to acquire the status of a permanent employee.” (para 9)

5.4.2 The decision in Raja Ram (supra), was followed in Regional Manager, State Bank of India vs. Rakesh Kumar Tewari (2006) 1 SCC 530.

5.5 In Oil and Natural Gas Corporation (supra), the Supreme Court extensively referred to the law on the issue and after eloboratly discussing the law, the following propositions were laid down,

“(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 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; (emphasis supplied)

(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.” (emphasis supplied) (para 34)

5.6 The test laid down in Raja Ram (supra) and Rakesh Kumar Tewari (supra) are satisfied in the facts of the present case. It could be emphatically said that the case of the workmen falls within the corners of observations and directions of the Supreme Court in Oil and Natural Gas Corporation (supra), to be classified for grant of relief of regularisation, as the vice of unfair labour practice on part of the employer is established.

5.7 In similar set of facts, yet another decision of the Co-ordinate Bench of this Court in Jamjodhpur Nagarpalika versus Sunil Punjabhai Dhakecha in R/Letters Patent Appeal No. 200 Of 2023 in R/Special Civil Application No. 18202 Of 2017 decided on 25.07.2023 deserves to be noticed. The following paragraph was observed and held,

“7. ….., it is evident from the perusal of the material on record, as also the findings given by the Labour Court and the learned Single Judge that the appellant Nagarpalika had indulged in unfair labour practice by continuing the respondent workman on temporary basis, though posts in the permanent set up were available. The act of appellant Nagarpalika in continuing the respondent workman on temporary basis on lower wages despite discharge of the same duties as that of a permanent employee in the permanent establishment is nothing but amounts to unfair labour practice. It is evident that the appellant Nagarpalika had continued the respondent workman for years together with the object of depriving him of the benefits payable to a permanent workman, though he was discharging the same duty as that of a permanent employee. No explanation could be offered by the appellant Nagarpalika either before the Labour Court or before the learned Single Judge or in this appeal as to why the respondent workman was continued on temporary basis on the post of Pipeline Repairer when the vacant post of Pipeline Repairer in the permanent establishment was available. No such record of permanent set up of appellant Nagarpalika was placed before the Labour Court and the findings recorded by the Labour Court that the witness or the appellant Nagarpalika admitted that there was a permanent set up but the detail thereof was not made available, could not be assailed by the learned counsel for the appellant Nagarpalika.”

5.8 The evidence regarding the set up shows that the posts in the set up were available and vacant. It is to be noted that in the present case, specific finding is recorded by the Industrial Tribunal and reiterated by learned single Judge that the treatment meted out to the workmen was unfair labour practice. The ratio of decisions of the Supreme court in Hari Nandan Pradad (supra), Raja Ram (supra), which the Supreme Court finally laying down the parameters in Oil and Natural Gas Corporation (supra), are applicable to the facts obtaining in the present case.

5.9 While the factual and legal merits clearly discussed with elaboration as above, it is to be noted that in similar set of facts and circumstances, yet in another decision, the Division Bench of this court in Savarkundala Municipality vs. Shantilal Ambaliya, which was Letters Patent Appeal No. 1437 of 2022 decided on 27.10.2023, dealt with the issue dismissing the appeal. Learned advocates for the parties stated that the said judgment was carried before the Supreme Court in Special Leave to Appeal No. 976 of 2024, which Special Leave to Appeal came to be dismissed on 16.1.2024.”

12. The Coordinate Bench has considered the engagement or employment of the similarly situated workmen in the Water Works Department, it is held that such employment would amount to unfair labour practice and is defined in Section 2(ra) of the Industrial Disputes Act, 1947 (the I.D. Act). The Coordinate Bench has also considered Section 25T of the I.D. Act, which prohibits the employers resorting to unfair labour practice. Similar contention with regard to the non-availability of setup was also raised by the Municipality before the Coordinate Bench and the same was also dealt with. Unquestionably, in the present case the respondent workmen are juniors to those workmen / Valvemen / Pumpmen / Fitters, who are before the Coordinate Bench and in whose favour the Industrial Tribunal has passed the award of regularizing their services. The appellant – Savarkundla Municipality assailed the order passed by the Coordinate bench by filing SLP (C) No.1606 of 2024, the Supreme Court has rejected the same by passing the following order dated 23.01.2024: -

“We find no ground to interfere with the impugned order passed by the High Court. The Special Leave Petition is, accordingly, dismissed.

Pending interlocutory application(s), if any, is/are disposed of.

13. A contention has been raised by the Municipality that due to various awards passed by the Industrial Tribunal, a dicey situation is being faced by it in ordering regularization since the juniors are regularized whereas the seniors are still waiting to be regularized.

14. The Municipality has no option but to implement the award, as confirmed by this Court. The benefit of regularization, as directed by the Industrial Tribunal and as confirmed by this Court, has to be extend to the workmen, who have approached the Court of Law, and there exists a judgment and order in their favour. There are various awards, which are confirmed by this Court, so far as the issue relating to regularization of the employees of the Water Works Department is concerned. It is the Municipality, which has created such a situation, wherein the issue of regularization of workmen, has resulted into heart burning. The appellant – Municipality, being the model Employer, has to take interest in resolving the issue and this Court cannot delve into such issue, which is not considered by the Industrial Tribunal or before the Coordinate Bench. The appellant – Municipality cannot shirk from its liability of implementing the awards and the orders passed by this Court by contending that the seniors are left out and the juniors are regularized in view of the directions issued by the Industrial Tribunal. From the tenor of the litigation, which this Court has been confronted, we find that the issue of regularization of the persons engaged in the Water Works Department has been not dealt with by the Officers of the Municipality, in the manner in which, the same should have been dealt with by pointing out the correct and true facts.

15. The Coordinate Bench as well as the Industrial Tribunal has considered the evidence on record, which was presented before it and the Municipality was afforded full opportunity to present its case with appropriate evidence.

16. In wake of their remissness in adducing the evidence by stating the appropriate facts, neither the Industrial Tribunal nor this Court can be blamed for the mess, which has been created by the appellant – Savarkundla Municipality. The appellant - Municipality has even failed before the Supreme Court and the findings recorded by the Industrial Tribunal and as confirmed Coordinate Bench have been upheld. Hence, we cannot take any contrary view, which has been expressed by the Coordinate Bench, in wake of the fact that the judgment and order passed by the Coordinate Bench confirming self-same award, has not been interfered with by the Supreme Court in the SLP filed by the appellant - Municipality.

17. For the foregoing reasons and analysis, the present appeal fails. The same stands dismissed accordingly.

18. As a sequel, the connected civil application does not survive and the same is disposed of accordingly.