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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MAUNA M. BHATT, J.
Savarkundla Municipality Through Chief Officer (Girishbhai Ratabhai Sariaya) – Appellant
Versus
Babubhai Bagwanbhai Parmar & Ors. – Respondents
R/Special Civil Application No. 7085 of 2022
Decided on : 16-04-2024
Regularisation - Industrial Dispute - Gujarat Municipalities Act - [SUMMARY]
Fact of the Case:
The Municipality filed a petition challenging an award of Industrial Tribunal directing the regularisation of a workman from the date of joining with benefits such as salary grade, seniority, promotion, gratuity, and other retirement benefits. The Municipality argued that there were no sanctioned posts available for regularisation and the initial appointment of the workman was a backdoor entry.
Finding of the Court:
The Court found that the issue of regularisation was already settled in previous proceedings and confirmed that the workman was entitled to regularisation benefits. The Court also noted that the Municipality failed to prove the absence of sanctioned posts for regularisation.
Issues: The main issue was the regularisation of the workman and the availability of sanctioned posts for regularisation.
Ratio Decidendi: The Court relied on previous decisions and held that unfair labour practices by the employer, such as not filling permanent posts when available, entitle the workman to be absorbed as a permanent employee. The Court also emphasized the obligation of the employer to seek sanctioned set-up to accommodate the workman for regularisation.
Final Decision: The Court dismissed the petition and confirmed the award of the Labour Court, discharging the rule.
JUDGMENT :
1. Rule. Mr.Jeet Rajyaguru, learned advocate waives service of Rule on behalf of respondent – workman and Mr.Mayank Chavda, learned AGP waives service of Rule on behalf of respondent No.3.
2. Municipality as petitioner has filed this petition challenging an award of Industrial Tribunal dated 29.11.2021, in Reference (IT) No.25 of 2009 wherein, the petitioner was directed to grant benefit of regularisation to the respondent- workman from 01.06.2003 (date of joining). Benefits such as salary grade and other benefits of seniority, promotion, gratuity and other retirement benefits shall be awarded from 01.06.2003. The period, from the date of joining till the date of award, is to be considered as notional.
3. Facts, in brief, as referred in the petition, are as under: The respondent-workman was working as Driver with Municipality from 01.06.2003 as Daily wager. For his regularisation, he raised dispute before Industrial Tribunal registered as Reference (IT) No.25 of 2009. Upon adjudication, Reference came to be allowed in favour of the respondent- workman and the petitioner was directed to grant benefit of regularisation to the respondent-workman from 01.06.2003 (date of joining). Benefits such as salary grade and other benefits of seniority, promotion, gratuity and other retirement benefits shall be awarded from 01.06.2003. The period, from the date of joining till the date of award, is to be considered as notional. Aggrieved by the directions, the present petition is filed.
4. Heard Mr.Vivek Bhamare, learned advocate for the petitioner and learned advocate for the respondent- workman.
5. Mr.Vivek Bhamare, learned advocate for the petitioner- municipality has submitted that award of the Industrial Tribunal is erroneous because it has ignored the provisions of Gujarat Municipalities Act. There is no work available with the Municipality and therefore, question of regularisation would not arise. Most importantly, there are no sanctioned post available on which, the respondent can be regularised and regularisation of the workman would amount to creation of post, which is not permissible under law. Further, initial appointment of respondent- workman was backdoor entry and Municipality is to recruit their employees after following recruitment process, which was not done in the present case and therefore, they are not entitled for regularisation.
6. On the other hand, learned advocate for respondent- workman submitted that the issue under consideration is no more res-integra in view of decision of this Court in Special Civil Application No.19334 of 2017 and allied matters. Special Civil Application No.19334 of 2017 and allied matters was subject matter of appeal in Letters Patent Appeal No.1398 of 2022 and other connected matters, wherein the appeals filed by the petitioner- Municipality were rejected. Even Special Leave to Appeal (civil) No. 1606 of 2024 by the petitioner- Municipality was dismissed vide order dated 23.01.2024.
6.1 Learned Advocate submitted that against the common order dated 25.03.2022, in Special Civil Application 19336 of 2017, one more Letters Patent Appeal No.1438 of 2022 was preferred and the same was dismissed confirming the order dated 25.03.2022. Thus, the order dated was confirmed in both the Letters Patent Appeal No. 1398 of 2022 and Letters Patent Appeal No. 1438 of 2022. In one another order in Special Leave to Appeal (C) No 1261 of 2024, the Hon’ble Apex Court, permitted to prefer review before this Court. The Misc. Civil Application (for review) No.757 of 2024 was filed and was also dismissed. Thus, since the order in Special Civil Application No.19334 of 2017 and allied matters, is confirmed till Hon’ble Supreme Court, the award of the Labour Court deserves no interference and the petition may be rejected.
7. Considered the submissions and decisions relied upon. Submission of Learned Advocate for the respondent-workman that the issue involved in this petition was subject matter of proceedings before
Unfair labour practices by the employer, failure to fill permanent posts when available, and the obligation of the employer to seek sanctioned set-up for regularisation.
The Court upheld the entitlement of a workman to regularisation based on previous decisions and the principles of unfair labour practice.
Unfair labour practices entitle a workman to be absorbed as a permanent employee, and the failure to provide sanctioned posts does not absolve the employer from its obligations.
The central legal point established in the judgment is the obligation of the employer to absorb workmen as permanent employees when posts are available, based on the principles of unfair labor practi....
The main legal point established in the judgment is that the failure of an employer to fill permanent posts, while continuing to employ workers on a temporary or daily wage basis, constitutes unfair ....
The duty of the employer to seek sanctioned set-up to accommodate workmen for permanency benefits when the work performed is of a perennial nature.
The obligation of the employer to absorb workmen as permanent employees when unfair labour practices are identified, and the duty of the employer to seek sanctioned set-up to accommodate workmen for ....
Unfair labour practices entitle workers to be absorbed as permanent employees when the employer avoids filling permanent posts and continues to employ workers on temporary or daily wage basis.
The obligation of the employer to fill permanent posts and the unfair labor practices involved in keeping employees on temporary or daily wage basis entitles the workman to be absorbed as a permanent....
Unfair labour practice entitles the workman to be absorbed as a permanent employee when the employer avoids filling permanent posts and continues to employ workers on temporary or daily wage basis.
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