Mahuva Nagarpalika vs Jivrajbhai Bhimjibhai Sankaliya

K.S. Jhaveri, J.—By way of this petition, the petitioner has prayed to quash and set aside the impugned award dated 29.06.2002 passed by the Industrial Tribunal, Bhavnagar, whereby the Industrial Tribunal has directed the petitioner to regularize the services of the respondent workman.

The short facts of the case are that the respondent workman at the relevant time was working as Kadia Karigar as daily wager with the petitioner Nagarpalika. As the respondent workman was not given permanency in spite of working for several years, he raised a dispute which was ultimately referred to Industrial Tribunal for adjudication. Before the Industrial Tribunal both the parties adduced evidence and after appreciating the material produced before it, the Industrial Tribunal allowed the reference with the aforesaid directions. Hence, this petition.

Heard learned Counsel for the respective parties and perused the documents on record. By way of passing the impugned award, the Tribunal had directed the petitioner-Nagarpalika to regularize the services of the respondent-workman. Looking to the facts of the case, it would be relevant to refer to a Full Bench decision of this Court in the case of Amreli Municipality Vs. Gujarat Pradesh Municipal Employees Union, and more particularly, on the observations made in Paras - 12.1, 12.1.13, 12.1.14 & 12.1.15, which reads as under;

12.1 After considering the decisions cited before us, the following principles emerge:

(A) No regularisation or permanency can be effected de hors the statutory provisions or the guidelines.

(B) Long service put in by the workmen itself may not be a ground to regularise services of ad hoc/temporary workmen against the sanctioned set up without following statutory procedure of recruitment. At the most, Labour Court/Industrial Tribunal can issue direction for consideration of absorption subject to availability of posts on the establishment.

(C) To avoid nepotism and corruption, no back door entry in service;

(D) Financial capacity of the local body to have additional burden is a relevant consideration to be kept in mind while ordering regularisation or absorption.

12.1.13 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 us. 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 Courts should not be party to such illegal and irregular appointments by allowing them to be continued at the cost of public exchequer. We are 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, we do feel that in appropriate cases, their interests are required to be protected. We accordingly give 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.

12.1.14 Thus, in view of the above, even if it is held that keeping daily rated/casual employees for a long duration amounts to unfair labour practice, that fact by itself, will not make them permanent and/or regularise service. While deciding such preferences for regularisation or permanency, the Labour Court/Industrial Tribunal, at the most, can pass order directing the authorities to consider their claim in the light of factors/observations stated above instead of straight away passing the orders of regularisation or granting permanency.

12.1.15 In view of the above discussion, we answer the question referred to us 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.

(ii) In view of our answer to the above question, the judgment rendered by Division Bench in the case of Kalol Municipality and Another Vs. Shantaben Kalidas and Others, is now no longer a good law in view of subsequent decisions rendered by the Apex Court and more particularly the decision in the case of N.S. Giri Vs. The Corporation of City of Mangalore and Others, The subsequent decision rendered by the Division Bench of this Court in the case of Halvad Nagarpalika and Ors. v. Jani Dipakbhai Chandravadanbhai and Ors. reported in (2003) 2 GHCJ 397 is held to be a good law. All the matters shall be placed before the concerned Courts taking up such matters for passing appropriate orders.

In the aforesaid Full Bench decision of this Court, it has been categorically held that the powers of Labour Court/Industrial Tribunal to direct regularization of services of workmen in a local authority or public body can be exercised subject to recruitment rules, availability of sanctioned posts and limits of budgetary provisions and that the Labour Court/Industrial Tribunal has no jurisdiction to direct regularization when there is no "sanctioned set-up". It has also been held therein that the services of person who is selected without following selection process cannot be regularized. Looking to the facts of the case, it is apparent that the Tribunal has committed serious error by issuing directions of regularization and hence, the matter deserves re-consideration by the Tribunal.

In view of the above, the petition is partly allowed. The impugned award passed by the Industrial Tribunal is quashed and set aside. The matter is remanded to the Industrial Tribunal concerned for consideration afresh, in view of the decision of the Full Bench of this Court, as referred to herein above. Since the Reference are of the year 1992, the Industrial Tribunal concerned shall dispose of the same, as expeditiously as possible, preferably within a period of two years from the date of receipt of writ of this order. It is made clear that this Court has not entered into the merits of the case and therefore, while considering the issue afresh, the Tribunal concerned shall not be influenced by the fact that this Court has quashed its earlier award and shall decide the same on merits, in accordance with law. In the meantime, the service conditions of the respondent workman shall not be disturbed without following due process of law.

With the above observations and directions, the petition stands disposed of. Rule is made absolute to the above extent with no order as to costs. Office is directed to send writ of this order to the Industrial Tribunal within a period of one month from today.