Jetpur Navagadh Municipality V. Saurashtra Employees Union

LPA/1143/2018

AI Insights

The case revolves around the Jetpur Navagadh Municipality's appeal against the regularization of 18 sweepers, represented by the Saurashtra Employees Union, who had been employed for over two decades. The Industrial Tribunal had earlier ruled in favor of the sweepers, directing their regularization and equal pay as per permanent employees. The Municipality challenged this decision in the High Court, which upheld the Tribunal's award, citing consistent evidence of the sweepers' long-term employment and the nature of their work as permanent. The High Court's decision was influenced by similar precedents and the lack of substantial evidence from the Municipality to overturn the Tribunal's findings.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 821196 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 28-03-2019
• Assessment Year: misc
• Other Referred Cases: Maharashtra State Road Transport Corporation and Others versus Casteribe Rajya Parivahan Karmachari Sangathan, U. P. Income Tax Department Contingent Paid Staff Welfare Association versus Union Of India, Delhi Municipal Employees Ekta Union versus P.L. Singh and Others, Secretary, State Of Karnataka versus Umadevi and Ors
• Result in Favour of: Respondent
• Court: HIGH COURT
• Department Lawyers: ANAND GOGIA; B B GOGIA; MUSKAN GOGIA
• Assessee Lawyers: BHAVESH TRIVEDI; R R TRIVEDI
• Keywords: Industrial Tribunal; Letters Patent Appeal; Regularization; Unfair labor practice; Permanent workman

Judgement Text

"C/LPA/1143/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/LETTERS PATENT APPEAL NO. 1143 of 2018 In R/SPECIAL CIVIL APPLICATION NO. 18811 of 2016 With CIVIL APPLICATION (FOR STAY) NO. 2 of 2018 In R/LETTERS PATENT APPEAL NO. 1143 of 2018 ========================================================== JETPUR NAVAGADH MUNICIPALITY Versus SAURASHTRA EMPLOYEES UNION ========================================================== Appearance: MR BHAVESH P TRIVEDI(2731) for the Appellant(s) No. 1 MR RR TRIVEDI(941) for the Appellant(s) No. 1 for the Respondent(s) No. 2 MR ANAND B GOGIA(5849) for the Respondent(s) No. 1 MR BB GOGIA(5851) for the Respondent(s) No. 1 MS MUSKAN A GOGIA(6624) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE BIREN VAISHNAV Date : 28/03/2019 ORAL ORDER (PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV) 1. The present appeal arises out of a common oral order dated 06.02.2018 passed by the learned Single Judge. By the oral order under challenge, the learned Single Judge dismissed the petitions filed by the appellant – Nagarpalika and confirmed the common award dated 26.02.2016 passed by the learned Industrial Tribunal, Rajkot in Reference (IT) Nos. 23/1995, 35/1996, 218/1997, 262/1997, 263/1997 and 41/2000. Page 1 of 9 C/LPA/1143/2018 ORDER 2. The facts in brief are that 18 Rojamdar Sweepers, working with the Nagarpalika for more than 20 years, approached the Industrial Tribunal, Rajkot. References were raised as to whether the Sweepers were entitled to regularization and benefits of regular pay-scale. The references were answered in favor of the claimants – Sweepers, which was a subject matter of challenge before the learned Single Judge, who confirmed such awards. 3. The common oral order dated 06.02.2018 was subject matter of challenge in Letters Patent Appeals No. 634 of 2019 and allied matters which was filed by the Municipality challenging the common award dated 26.02.2016. This Court vide order dated 15.03.2019 passed in Letters Patent Appeals No. 634 of 2019 and allied matters has after considering the submissions made by learned advocates for the respective parties dismissed the appeals. The relevant portion of the said order reads as under: “4. Having considered the judgement of the learned Single Judge and having perused the award of the Industrial Tribunal, it is wrong for the learned counsel to state that the learned Single Judge has based the judgement on the earlier petitions. Perusal of Para 7 of the judgement under challenge would reveal that the learned Single Judge has noticed relevant facts to confirm the award. “ 7. It is necessary to note, at the outset, that: (a) The concerned claimants have been working with the Nagarpalika since more than 15-20 years; (b) They have undergone process of adjudication before the learned Industrial Tribunal; (c) Before the learned Industrial Tribunal, the claimants established, by appropriate evidence, Page 2 of 9 C/LPA/1143/2018 ORDER justification for their claim, i.e. regularisation in service and their claim for status of permanent workman; (d) After taking into account all contentions of the contesting parties and the evidence placed on record by the claimants and the Nagarpalika, the learned Industrial Tribunal reached to the conclusion that the demand by the claimants is justified; (e) Therefore, the learned Industrial Tribunal passed direction to regularise service of the claimants and also directed the Nagarpalika to confer status of permanent workman to the claimants who have been in service with the Nagarpalika since about 20 years. 8. Any material to demonstrate that the findings and conclusions recorded by the learned Industrial Tribunal are contrary to the evidence on record and/or that the learned Industrial Tribunal has ignored the evidence placed on record by the Nagarpalika or that the findings and conclusions recorded by the learned Industrial Tribunal are not based on evidence and are perverse or that the findings recorded by the learned Industrial Tribunal are not supported by cogent reasons, is not available on record. The petitioner Nagarpalika has failed to establish that the conclusions and findings recorded by the learned Industrial Tribunal are perverse.” 5. Even otherwise, having carefully seen the findings arrived at by the Industrial Tribunal, we find the following glaring facts which lead us to conclude that there was no error of law or fact committed by the Industrial Tribunal in passing the Award. 5.1 The dispute that was referred to the Industrial Tribunal, Rajkot was whether the 18 sweepers working with the Nagarpalika were entitled to being regularized and required to be given the benefit of pay and pay scale akin to the sweepers working with the Government. There were several references which were consolidated by the Page 3 of 9 C/LPA/1143/2018 ORDER Industrial Court, Rajkot. Reference No. 23/95 was taken as the lead Reference and facts there under were discussed, where the workman had filed a Statement Of Claim that the 18 Sweepers were working for several years since 1979/1980. That the Nagarpalika is paying regular grades of pay to its employees including Dearness Allowance. The claimants are being paid Rs.32.90 per day whereas they are entitled to the benefit of equal pay for equal work. 5.2 The Nagarpalika filed its reply to the Statement Of Claim at Exh.3. That the Sweepers are working as Rojamdars. The Nagarpalika denied that they have been working after 1984. The Nagarpalika denied that the sweepers were working on sanctioned posts and doing the work of permanent nature. The statement that the workmen had completed 240 days in a year was also denied. The case of the Nagarpalika in the written statement was that the claimants were not recruited after following a regular recruitment procedure and they were employees/workmen who were back door entrants and therefore not entitled to the benefit of regularization. It was further contended by the Nagarpalika that their establishment expenditure was 56.20% and the financial condition of the Nagarpalika was not sound. 5.3 After filing of the Statement Of Claim and the Written Statement, the Industrial Tribunal passed an Order at Exh.6 for production of documents by the Nagarpalika. Affidavits in lieu of oral evidence were filed at Exh. 12 by Sanjaybhai Vaghela, Narmadaben Arjanbhai at Exh.15 and Khodidas Solanki at Exh.20. At Exh.31, the Municipality produced approximately 57 documentary evidences and they were exhibited as Exhibits 87 to 143. Such documents included a compendium of various recruitment rules, Advertisements, Resolutions of the Board and the General Body, Seniority lists, details of Sanctioned Set Up and details of dates of appointments of the claimants with their dates of birth. Further, additional 9 documents were produced which were exhibited as Exhs. 144 to 152. Other documents produced were also Page 4 of 9 C/LPA/1143/2018 ORDER exhibited as Exhs. 153 to 183 such as wage slips and attendance cards. One Kanubhai Devjibhai Sitapara was examined on behalf of the Nagarpalika at Exh.38. 5.4 The Industrial Tribunal, after sifting through these evidences and after considering various judgements of the Apex Court in context of the Labour Courts to issue directions for regularization and the issue of unfair labour practice found that in case of the same Nagarpalika, an award was passed which was confirmed by the High Court by its judgement dated 29/11/2012 in Special Civil Application No. 5794/2012. Further, an award dated 9/4/2014 passed against the Nagarpalika was confirmed in a decision rendered in Special Civil Application No. 9870/2014. 5.5 The Industrial Tribunal considered the judgments of the Supreme Court extensively in the following cases: a) Maharashtra State Road Transport Corporation and Others versus Casteribe Rajya Parivahan Karmachari Sangathan [2009 LLJ 286] b) U. P. Income Tax Department Contingent Paid Staff Welfare Association versus Union Of India [AIR 1988 SC 517] c) Delhi Municipal Employees Ekta Union versus P.L. Singh and Others [AIR 1988 SC 519] d) Secretary, State Of Karnataka versus Umadevi and Ors [2006 SCLJ 1937] and several others and arrived at cogent findings. 5.6 One Harshadkumar Chotalal Tatamiya was examined at Exh. 190 on behalf of the employer. He produced the seniority list of the claimants dated 1/4/2014, where the names of the claimants figured much lower in the list. The deponent contended that if the claimants were to be regularized then the establishment expense would go over the stipulated ceiling limit of 48% and that the claimants were not possessing the requisite qualification. He admitted in the cross examination that he had no personal knowledge of the Page 5 of 9 C/LPA/1143/2018 ORDER claimants’ recruitment which were made prior to 1994. In other words, the witness was not aware of the manner and the method in which the claimants were recruited. The witness in his cross examination further stated that the nature of work that the claimants as sweepers were undertaking was of a permanent nature and that though they were carrying out the same work they were not being paid the pay that was paid to the regularly selected employees. 5.7 The Industrial Tribunal on basis of this evidence held that it was evident and admitted from the testimony of this witness that the claimants were carrying out work of a permanent nature carried out by permanent employees and were not paid pay equal to the regular employees and therefore the Nagarpalika was indulging in unfair labour practice. The Industrial Tribunal further noticed that this witness had admitted that the population in the Nagarpalika and the income had increased though no new set up was sanctioned after 1994. 5.8 What has further been elicited from the evidence of this witness is that the educational qualification for appointment of a sweeper is 4th Std pass as per recruitment rules of 2007 and therefore the recruitment qualification when the claimants were appointed was not Std.4 pass. It was further borne out that the claimants of an earlier award who were regularized pursuant to such award could have been junior to the present claimants and on the assessment of the evidence of this witness together with the seniority list, it was found that in the list some of the claimants were found to be higher in the seniority list and therefore admittedly senior. 5.9 The Tribunal then went on to assess the documentary evidence that was placed before it. Recruitment Rules of 2007 were produced at Exh.87. The appointments of the claimants were made much prior to coming into force of the Recruitment Rules, 2007. Since the appointments were made prior to the framing of these Rules, it Page 6 of 9 C/LPA/1143/2018 ORDER cannot be said by the Nagarpalika that the claimants were not appointed in accordance with the modalities under Articles 14 and 16 of the Constitution Of India, as the appointment could not be said to be contrary to Rules because the appointments were made before the Rules itself came into force. The advertisement that appeared in the daily newspaper Jai Hind in 1988 suggested that the claimants who were appointed did have qualifications as per the advertisement which was produced at Exh.90. Moreover, on appreciation of a document at Exh.128 which was the regulations of the Mandal, it was recorded that the claimants at the relevant time were only required to possess the acumen of being able to carry out sweeping work which the claimants were said to have been possessing. Attendance registers were produced at Exh. 47 and wage slips which evidenced that the claimants were working with the Nagarpalika continuously and without break. 6. Based on this set of evidences, the Industrial Tribunal came to the conclusion that the claimants were carrying out work which was of a permanent nature, that they were recruited in accordance with the Recruitment Rules and their engagement was not intermittent but continuous based on the evidence of employer. To the defence raised by the Nagarpalika that they were not financially sound, the Industrial Tribunal assessed the circular dated 22/1/2004 and other documents and found that there were 181 sanctioned posts and taking into consideration a 20% cut, the number of posts would come to 153. There were 55 vacant posts. Financial figures of the Nagarpalika showed that the 2011-2012 income of the Nagarpalika was Rs.1283.53 lakhs and the establishment expenses were Rs 375.40 lakhs. Therefore, the percentage expense of 29.25% whereas for the year 2012-13 against the income of Rs.1226.15 lakhs, the expense was Rs.397.61 lakhs which showed the establishment expense to be 32.43%. For the financial year 2014, the income was Rs.1456.62 lakhs and the expense was Rs.638.26 lakhs which was 43.82%. Admittedly, therefore the set up expense was below the ceiling limit of 48%. Based Page 7 of 9 C/LPA/1143/2018 ORDER on such evidences and discussion as above, the Industrial Tribunal issued directions for regularization which were a subject matter of challenge before the learned Single Judge. 7. The learned Single Judge based on the appreciation of the findings of the Tribunal and considering the fact that beneficiaries of similar awards were of the same Nagarpalika dismissed the petitions. 8. Having considered extensively the findings arrived at the Industrial Tribunal which we have discussed hereinabove in detail, it is evident that a finding of fact was arrived at by the Industrial Tribunal that: a) The claimants were working since more than 20 years with the Nagarpalika. b) They possessed the qualifications for being recruited as Sweepers. c) Recruitment was undertaken in consonance with the spirit envisaged under Articles 14 and 16 and therefore they could be said to be back-door entrants. d) The advertisement of 1988 stipulated that they must be fit to be able to carry out duties of a sweeper and it was not disputed that they were so fit. e) That there were vacant sanctioned posts and by regularizing the claimants the expense would not exceed 48% ceiling limit. 9. Based on such finding of facts arrived at by the Industrial Tribunal, so confirmed by the learned Single Judge, we see no reason to interfere with the orders under challenge. The appeals are accordingly dismissed. Civil Applications for stay are also disposed off.” 4. Accordingly, the order dated 15.03.2019 passed in the Letters Patent Appeal No. 634 of 2019 and allied matters Page 8 of 9 C/LPA/1143/2018 ORDER upholding the reasonings of the learned Single Judge in confirming the finding of fact arrived at by the Industrial Tribunal shall govern the present appeal. The appeal bereft of merit therefore deserves to be dismissed. 5. In view of the above, appeal is dismissed. Civil Application also stands rejected accordingly. (ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) DIVYA Page 9 of 9 "