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2006 Supreme(Guj) 442
2006 (3) GCD 2039 (Guj)
Hon’ble Mr. Justice H.K. Rathod
District Development Officer & Ors.
Versus
The Secretary Bharatiya Mazdoor Sangh & Anr.
Special Civil Application No. 11744 of 2006
Decided on 27/07/2006
Point in Issue :
Whether benefit accrued to workman under circular dated 26.12.1980 can be nullified on basis of subsequent circular.
Headnote:Head Note :
Service and Employment — Labour Court — Reference — Grant of permanency and benefits — Admissibility — Finding as to — Sustainability — On facts it is undisputed that post of peon was vacant at Dhara Dispensary and respondent workman was appointed as part time employee — He completed period of continuous service of three years and was covered by circular dated 26.12.1980 for grant of permanency and other benefits — He was yet not given benefit of said circular by petitioner erroneously in view of subsequent circular dated 21.08.1995 — The legal rights which had accrued in favour of workman on basis of said circular dated 26.12.1980 cannot be nullified on the basis of subsequent circular dated 21.08.1995 — Labour Court was right in considering and appreciating the aspect of the matter and in doing so no jurisdictional error has been committed by Labour Court warranting any interference — This Court cannot act as an appellate Court and cannot take another view of the matter — Constitution of India, 1950 — Article 227.
Held :
Considering the undisputed facts on record, this Court is of the view that the Labour Court has rightly granted benefits in favour of workman because at Dhasa Dispensary post of peon was found to be vacant as per the evidence of the witness for the petitioner itself from the very beginning and against that post, respondent workman was appointed as part time employee, completed continuous service of three years and covered by the circular dated 26.12.1980 and yet he was not given benefit of said circular by the petitioner and, therefore, ultimately industrial dispute was raised by the workman wherein Labour Court granted same benefit which ought to have been granted by petitioner on the basis of Government Circular dated 26.12.1980. Legal right accrued in favour of the workman on the basis of Circular dated 26.12.1980 in view of his continuous service of three years cannot be nullified on the basis of subsequent circular dated 21.08.1995 and the Labour Court was right in considering and appreciating that aspect of the matter and in doing so, no jurisdictional error has been committed by the Labour Court. Labour Court has not exceeded jurisdiction while granting benefit in favour of the workman. Mr. Shah, learned Advocate for the petitioner has not been able to point out any infirmity in the impugned award. He has also not been able to point out that the findings recorded and conclusions drawn by Labour Court are contrary to record and, therefore, according to my opinion, no interference is warranted in exercise of the powers under Article 227 of the Constitution of India because this Court cannot interfere with such findings of fact nor can it re-appreciate the evidence which was once appreciated by the Labour Court. This Court also cannot act as an appellate Court and cannot take another view in the matter. [Para 13]
Law Laid Down :
Legal rights accrued under a circular cannot be nullified by issuance of any subsequent circular.
Case Law Analysis :
Secretary, State of Karnataka vs. Umadevi & Ors., 2006 (4) SCC 1 [Para 1];; Gujarat Electricity Board vs. Gujarat Electricity Employees Union, 1993 (1) GLH 656 [Para 11];; Indian Banks Association & Workmen of Syndicate Bank & Ors.,1998 (1) LLJ 233 [Para 11];; Laxmikant Revchand Bhojwani & Anr. vs. Pratapsing Mohansingh Pardeshi, 1995 (6) SCC 576 [Para 14];; Ouseph Mathai & Ors. vs. M. Abdul Khadir, 2002 (1) SCC 319 [Para 15];; Waryam Singh vs. Amarnath, 1954 SCR 565[Para 15];; Nagendra Nath Bose. vs. Commr. of Hills Division¸1958 SCR 1240[Para 15];; R. vs. Northumber Compensation Appeal Tribunal, Ex parte Shaw, 1952 (1) All ER 122, 128 [Para 15].—Distinguished
Roshan Deen vs. Preeti Lal, 2002 (1) SCC 100 [Para 16].—Relied on
Appearance :
Mr. Pranav V. Shah, for the Petitioner(s): 1-3.
Notice served, for the Respondent (s) : 1-2.
Mr. T.R. Mishra, for the Respondent: 2,
Mr. U.T. Mishra, for the Respondent: 2,
Conclusion :
The legal rights which had accrued in favour of workman on basis of circular dated 26.12.1980 cannot be nullified on basis of subsequent circular dated 21.08.1995 — Labour Court has thus committed no jurisdictional error in granting the impugned award.
Cases Referred :
Co-operative Central Bank Limited vs. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad, AIR 1970 SC 245;; City of Mangalore & Anr. vs. M.S. Giri & Anr., 76 FJR 389;; Bhahutmal Raichand Oswal vs. Laxmibai R. Tarta, AIR 1975 SC 1297;; State of UP vs. District Jude, Unnao, 1984 (2) SCC 673 = AIR 1984 SC 1401.
Decided in Favour of :
Respondent
Petition Dismissed
H.K. Rathod, J.—Heard learned Advocate Mr. Pranav V. Shah for petitioner and Mr. T.R. Mishra for the respondent workman. In this petition under Article 227 of the Constitution of India, the petitioner DDO, District Panchayat, Bhavnagar has challenged the award made by the Labour Court Bhavnagar in Reference (LDC) No. 31 of 1998 dated 20.03.2006 wherein the Labour Court has partly allowed the reference and granted benefit of permanency after completion of the period of three years from the date of joining to respondent workman as a peon and granted difference of salary, allowance and other benefits with effect from 03.08.1998. Labour Court has also directed that the period from 02.04.1991 to 03.08.1998 should be considered as notional and respondent will not be entitled for any amount of arrears for said interim period but for the purpose of seniority, promotion, increments and retirements, full time employment from 02.04.1991 should have to be taken into account. Under the said award, Labour Court has awarded cost of Rs. 500.00. Learned Advocate Mr. Shah submitted that the Labour Court has committed error in granting benefit of permanency to the workman. He also submitted that the Government circular dated 26.12.1980 has been kept in abeyance by the Government vide Government circular dated 21.08.1995. Government circular dated 21.08.1995 has been placed on record before the Labour Court vide Exhibit-26-A but the Labour Court has not considered the same while considering the matter and has, therefore, erred in granting benefit in favour of the respondent workman contrary to the Government circular dated 21.08.1995. It was also his submission that the Labour Court has erred in not appreciating the evidence produced by the petitioner in directing the petitioner to regularise services of workman as full time employee though the respondent was not recruited under the procedure or service rules framed by the petitioner. He submitted that the respondent was working as a part time peon and no post was vacant in the set up, therefore, Labour Court has erred in granting benefits. He relied upon the decision of the Larger Bench of the Apex Court in Secretary, State of Karnataka vs. Umadevi & Ors., reported in 2006 (4) SCC page 1. Except these submissions, no other submission was made by learned Advocate Mr. Shah. Except the decision in case of Secretary, State of Karnataka vs. Umadevi & Ors. (Supra), no other decision was cited by him before this Court.
2. On the other hand, learned Advocate Mr. Mishra while opposing the petition and supporting the award in question, submitted that the Labour Court was right in appreciating the evidence on record and there is no contrary finding given by the Labour Court. According to him, the petitioner has not been able to point out as to how the findings recorded by Labour Court are perverse or contrary to the evidence on record and, therefore, this Court is having very limited jurisdiction under Article 227 of the Constitution of India and this Court cannot re-appreciate the evidence appreciated by the Labour Court. It was also his submission that this Court cannot act as an appellate authority. Learned Advocate Mr. Mishra submitted that the respondent was working from 02.04.1988. He continued in service with the petitioner but the respondent remained as part time and his services were not regularized by petitioner and, therefore, this aspect has been rightly appreciated and considered by the Labour Court and, therefore, Labour Court was right in granting benefits after appreciating the evidence of witness for petitioner. He emphasized that the witness of the petitioner Shri Pragji Ravji was examined before the Labour Court at Exhibit-24. He admits in clear terms that at present two posts in set up are vacant, one is the post of doctor and one of peon are vacant and considering the oral evidence of the witness for petitioner at Exhibit-24, Labour Court directed petitioner to regularize the se
