2004 Supreme(Guj) 412

Gujarat High Court
Judgename :A.R.Dave, K.R.VYAS, K.S.JHAVERI
AMRELI MUNICIPALITY - Appellant
Versus
GUJARAT PRADESH MUNICIPAL EMPLOYEES UNION - Respondent
S.C.A.5746 of 1999
Decided On : 07/09/2004

Headnote:(a) Service & Employment - Service rules - Framing of - Non-inclusion of workman in the process of framing of rules is no ground for ignoring the rules which are statutory in nature - Court jurisdiction is only to ensure observance of fundamental rights, statutory provisions, rules and other instructions if any governing the conditions of service.

       Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Art. 309 of the Constitution or (in the absence of such rules) by issuing rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Arts. 14 and 16.

       In view of the fact that in the present case, the employer is a statutory body, a Municipality and the rules framed by it are required to be approved by the State Government, non-inclusion of workmen in the process of framing of rules is no ground for ignoring the rules which are statutory in nature.

       [Para 12.1.8]

       (b) Service & Employment - Daily wage employees - Seeking regularisation of their services - Court indicated guidelines in order to protect their interest.

       Even if it is held that the Labour Court/Industrial Tribunal has wide jurisdiction to alter service conditions, it can exercise such powers subject to the recruitment rules, availability of sanctioned posts and subject to the grant and limits of budgetary provisions. When there is no permanent post, no direction can be given to the authorities to absorb daily wage employees by creating new posts. It is the common phenomenon in the case of Nagarpalikas/Municipalities/Government Corporations where such appointments are made on political considerations. The parties in power may recruit their own persons as daily rated employees and thereafter by seeking orders from the Court, they want to absorb such employees on permanent establishment. Time and again, such practice is depricated in so many words in the judgments referred by Court. The Panchayats, Municipalities, Municipal Corporations or Government Corporations as well as Government establishments are facing severe financial crisis only because of such staff which may be required for the time being, but to make them permanent would definitely adversely affect the financial substratum of respective organisations and the the Courts should not be party to such illegal and irregular appointments by allowing them to be continued at the cost of public exchequer. Court is conscious of the fact that by not approving the appointments of such daily wagers, it will be very difficult for them to survive and the question of their livelihood would arise. Keeping this aspect in mind, Court also feel that in appropriate cases, their interests are required to be protected. Court accordingly gave following guidelines.

       (1)

       If casual workers or daily rated workers are not required by the Local bodies and whose services are likely to be terminated, they should be relieved on the principle of last come, first go. In the event of filling up the posts in future, those who are eligible and qualified from and amongst the relieved workmen shall be preferred by waiving the age limit.

       (2)

       If the workmen who have continued for years as temporary employees, in the event of their termination, the authorities will see that no unqualified person is appointed in their place.

       (3)

       The question of regularisation can also be considered by the authorities before terminating services provided the workers are eligible on the sanctioned posts.

       (4)

       If the posts are not sanctioned, the authorities may take such steps which are necessary in accordance with the provisions of law/rules/circulars within the budgetary provisions.

       [Para 12.1.13]

       (c) Service & Employment - Labour Court - Industrial Tribunal - Jurisdiction - Daily rated/Casual employees - Directions to make them permanent or regularise their services - Held, Labour Court or Industrial Tribunal has no jurisdiction to pass an award in favour of such employees unless there being any sanctioned setup and who had entered service without following selection process.

       Court answer the question referred to Court as under: (i) The Labour Court/Industrial Tribunal has no jurisdiction to issue direction or pass an award regularising services of employees of a Municipality or local authority without there being any `sanctioned set up and no person can be regularised if such a person had entered service without following selection process under the title of daily rated employee.

       [Para 12.1.15]

       (d) Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sec. 10-A - Award - Inconsistent with statutory provisions - It is illegal and cannot be enforced.

       [See Para 12.1.10]