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Friday, March 27, 2015

safai kamdars-unfair trade practices - The appellant-Gram Panchayat was duly established under the provisions of the Gujarat Panchayat Act, 1993 (in short 'the Act'). The workmen of the Panchayat, some of whom are now deceased and are being represented by their legal heirs, were appointed to the post of safai kamdars of the appellant- Panchayat and have served for many years, varying from 18 years, 16 years, 8 years, 5 years etc. They were however, considered as daily wage workers and were therefore, not being paid benefits such as pay and allowances etc. as are being paid to the permanent safai kamdars of the appellant- Panchayat.= We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees...."" Thus, in the light of the above referred cases of this Court, it is amply clear that the judgments and orders of the High Court and the Award passed by the Labour Court are reasonable and the same have been arrived at in a just and fair manner. The reliance placed by the learned senior counsel for the appellant upon the decision of this Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors.[3], does not apply to the fact situation of the present case and the same cannot be accepted by us in the light of the cogent reasons arrived at by the courts below. In view of the reasons stated supra and in the light of the facts and circumstances of the present case, we hold that the services of the concerned workmen are permanent in nature, since they have worked for more than 240 days in a calendar year from the date of their initial appointment, which is clear from the evidence on record. Therefore, not making their services permanent by the appellant-Panchayat is erroneous and also amounts to error in law. Hence, the same cannot be allowed to sustain in law. For the reasons stated supra, we dismiss the appeals and direct the appellants to treat the services of the concerned workmen as permanent employees, after five years of their initial appointment as daily wage workmen till they attain the age of superannuation for the purpose of granting terminal benefits to them. The appellant is further directed to pay the regular pay-scale as per the revised pay scale fixed to the post of permanent safai kamdars for a total period of 15 years to the concerned workmen and the legal representatives of the deceased workmen. The same shall be implemented within six weeks from the date of receipt of copy of this judgment and compliance report of the same shall be submitted for the perusal of this Court. No Costs.

                                 REPORTABLE
           IN THE SUPREME COURT OF INDIA                           CIVIL
                           APPELLATE JURISDICTION


                     CIVIL APPEAL Nos.3209-3210 OF 2015
               (Arising Out of SLP (C) Nos.7105-7106 of 2014)


UMRALA GRAM PANCHAYAT                        ......APPELLANT

                                    Versus

THE SECRETARY, MUNICIPAL
EMPLOYEES UNION & ORS.                   ......RESPONDENTS



                               J U D G M E N T

V. GOPALA GOWDA, J.

      Delay condoned. Leave granted.
 These appeals have been filed by the appellant against the  final  judgment
and order dated 23.07.2013 passed in Letters Patent Appeal No. 551  of  2013
in Misc. Civil Application No.3071 of 2012 in Special Civil Application  No.
7082 of 1994, by the High Court  of  Judicature  of  Gujarat  at  Ahmedabad,
whereby the High Court has dismissed the same as being not maintainable  and
has upheld the judgment and order of the learned single Judge  of  the  High
Court dated 13.07.2010, passed in Special  Civil  Application  No.  7082  of
1994, which is also impugned herein, wherein the application  filed  by  the
appellant has been dismissed by the  High  Court  by  confirming  the  Award
dated 15.05.1991 passed by the Labour Court in  Reference  (LCD)  No.  6  of
1988.

 For the purpose of considering the rival legal contentions urged on  behalf
of the parties in these appeals and with a view to  find  out  whether  this
Court is required to interfere with the impugned judgment and orders of  the
High Court as well as the Award of the Labour  Court,  the  necessary  facts
are briefly stated hereunder:

    The appellant-Gram Panchayat was duly established under  the  provisions
of the Gujarat Panchayat Act, 1993 (in short 'the Act'). The workmen of  the
Panchayat, some of whom are now deceased and are being represented by  their
legal heirs, were appointed to the post of safai kamdars of  the  appellant-
Panchayat and have served for many years, varying from 18 years,  16  years,
8 years, 5 years etc. They were however, considered as  daily  wage  workers
and were therefore, not being paid benefits such as pay and allowances  etc.
as are  being  paid  to  the  permanent  safai  kamdars  of  the  appellant-
Panchayat.

 On  23.07.1987,  the  workmen  raised  an  industrial  dispute  before  the
Conciliation Officer at Bhavnagar, through the  respondent  no.1,  Municipal
Employees Union (for short "Union") stating  therein  that  after  rendering
services for a number of years, the workmen are entitled to the  benefit  of
permanency  under  the  appellant-Panchayat.  The  settlement  between   the
workmen and the appellant-Panchayat failed to resolve  amicably  during  the
conciliation proceedings and therefore, the failure report was sent  to  the
Dy. Commissioner of Labour, Ahmedabad, who referred the same to  the  Labour
Court vide Reference (LCD) No.6/88. The Labour Court by its Award held  that
the workmen are to be made permanent  employees  as  safai  kamdars  in  the
appellant-Panchayat. The Labour Court has further  directed  the  appellant-
Panchayat that the workmen  should  be  paid  wages,  allowances  and  other
monetary benefits as well for which they are legally entitled to.

 Aggrieved by the Award of the Labour Court, the  appellant-Panchayat  filed
an appeal before the single Judge of the High Court, whereby  the  same  was
dismissed and it was held that the view taken by the Labour  Court  is  just
and proper as it has assigned cogent and convincing reasons for arriving  at
the conclusion that the services of the concerned  workmen  should  be  made
permanent  as  the  other  employees  of  the  appellant.   The   appellant,
thereafter, filed an LPA before the Division Bench of the High Court,  which
was also dismissed as not  maintainable.  Hence,  these  appeals  have  been
filed by the appellant seeking to set aside the judgments and orders of  the
High Court as well as the Award passed by the Labour Court.



 It has been contended by Mr. Mahendra Anand, the learned senior counsel  on
behalf of the appellant that the workmen were not appointed on  a  permanent
basis as the rules and regulations as prescribed  under  the  provisions  of
the Act have not been followed. He  has  further  contended  that  the  High
Court has erred in upholding the Award passed by the  Labour  Court  as  the
same is illegal and there is non application of mind by  the  courts  below.
The Labour Court  has  wrongly  held  that  there  are  13  permanent  posts
available for the category in which the concerned employees are  working  as
the other three employees who are made permanent employees  have  been  made
so only because there were clear vacant  posts  available  in  the  approved
strength in the capacity in which these three employees were made  permanent
and thus, there is no  question  of  any  discrimination  or  unfair  labour
practice on the part of the appellant-Panchayat in not making the  concerned
workmen as permanent employees of the appellant.



 It has been further contended  by  the  learned  senior  counsel  that  the
concerned workmen were engaged in the services, as and when required by  the
appellant-Panchayat and it is not obligatory on the part of  the  appellant-
Panchayat to provide work to the workmen  on  a  day-to-day  basis  and  the
appellant-Panchayat has no control  over  them  as  there  is  no  employer-
employee relationship between them. It has been  further  contended  by  him
that the appellant-Panchayat has no right to make them permanent  employees.
For  making  their  services  permanent  in  the   appellant-Panchayat,   an
application has to be made before the District Panchayat,  Bhavnagar  and  a
demand has to be raised before it and the recruitment of  the  employees  of
the appellant-Panchayat is done by the Gujarat Panchayat  Service  Selection
Board and directions will be issued on its behalf.  However,  there  are  no
such directions issued in relation to the concerned workmen.

 On the other hand, it has been contended by Mr.  S.C.  Patel,  the  learned
counsel appearing on behalf  of  the  respondent-Union  that  the  concerned
workmen have been working for many years, such as  18  years,  16  years,  8
years continuously and some of them have been working for more than 5  years
in the appellant-Panchayat. They are not  paid  the  monetary  benefits  and
allowances etc. as are being paid to other permanent safai kamdars  who  are
working in the  appellant-Panchayat.  He  has  further  contended  that  the
concerned workmen are doing the same work as is being done by the  permanent
safai kamdars and they have been working for similar number of  hours,  i.e.
eight  hours  per  day  like  the  permanent  employees  of  the  appellant-
Panchayat. In spite of it,  they  are  being  monetarily  exploited  by  the
appellant-Panchayat by not being paid  regular  salary  and  other  monetary
benefits for which they are legally entitled to  but  are  being  paid  much
lesser wage, i.e. Rs.390/- per month. Therefore,  the  learned  counsel  has
contended that  the  appellant  is  practicing  unfair  labour  practice  as
defined under Section 2(ra) of the Industrial Disputes Act, 1947  (in  short
"the ID Act") as enumerated at Entry No.10 in the Fifth Schedule to  the  ID
Act. Therefore, the action of the appellant-Panchayat  is  illegal  and  the
workmen should be allowed to get permanency in the said posts.



 With reference to the  abovementioned  rival  legal  contentions  urged  on
behalf of the parties, we  have  to  examine  the  impugned  judgements  and
orders of the High Court as well as the Award passed by  the  Labour  Court,
to find out whether any substantial question of law  would  arise  in  these
appeals to exercise the appellate jurisdiction of this Court?



    On a perusal of the same, we have come to the conclusion that  the  High
Court has rightly dismissed the case of the appellant as  the  Labour  Court
has dealt with the same in detail in its reasoning portion of the  Award  in
support of its findings of fact while answering the points  of  dispute  and
the same cannot be said to be either erroneous or error in law.  In  support
of the above said conclusions arrived  at  by  us,  we  record  our  reasons
hereunder:



      It is an admitted fact that the work  which  was  being  done  by  the
concerned workmen was the same as that  of  the  permanent  workmen  of  the
appellant- Panchayat. They have also been  working  for  similar  number  of
hours, however, the discrepancy in the payment of wages/salary  between  the
permanent and the non-permanent workmen is alarming and the same has  to  be
construed as being an unfair labour practice as defined under Section  2(ra)
of the ID Act r/w Entry No.10 of the Fifth Schedule to the ID Act, which  is
prohibited under  Section  25(T)  of  the  ID  Act.  Further,  there  is  no
documentary evidence produced on record before the Labour Court which  shows
that the present workmen are working less or  for  lesser  number  of  hours
than the permanent employees of the appellant-Panchayat. Thus, on  the  face
of it, the work being done by the concerned workmen has  been  permanent  in
nature and the Labour Court as well as the  High  Court  have  come  to  the
right conclusion on the points of dispute  and  have  rightly  rejected  the
contention of the appellant-Panchayat as the same amounts to  unfair  labour
practice by the appellant-Panchayat which is prohibited under Section  25(T)
of the ID Act and it also amounts to statutory offence on the  part  of  the
appellant under Section 25(U) of the ID Act for which it  is  liable  to  be
prosecuted.



   Further, the Labour Court has rightly held that there is  no  restriction
for the recruitment of the workmen in the Panchayat's  set-up  as  there  is
evidence to show that by making  a  proposal,  the  District  Panchayat  has
increased the work force in the  establishment  of  the  appellant-Panchayat
and therefore, the contention urged by the learned senior counsel  appearing
for the appellant-Panchayat that there are only limited number of  permanent
vacancies for the workmen in the Panchayat of the appellant is  not  tenable
in law.



  Further, we have also taken note of the fact that the  financial  position
of the Panchayat is not so unsound as no activity of the Panchayat has  been
discontinued, as all the other workers of the appellant-Panchayat are  being
paid their wages regularly. Thus, there  would  be  no  difficulty  for  the
appellant-Panchayat  to  bear  the  extra  cost  for  the  payment  of   the
wages/salary and other monetary benefits to the concerned  workmen  if  they
are made permanent.



  Further, Section 25(T) of the ID Act clearly  states  that  unfair  labour
practice should not be encouraged and the same should  be  discontinued.  In
the present case, the principle "equal work, equal pay"  has  been  violated
by the appellant-Panchayat as they have been treating the concerned  workmen
unfairly and therefore, the demand raised by the respondent-Union  needs  to
be accepted. The High Court has thus, rightly not interfered with the  Award
of the Labour Court as the same is  legal  and  supported  with  cogent  and
valid reasons.



  Therefore, the learned single Judge as well as the Division Bench  of  the
High Court have exercised the power  under  Articles  226  and  227  of  the
Constitution of India and have  rightly  held  that  the  Labour  Court  has
jurisdiction to decide the industrial dispute that has been referred  to  it
by the Dy. Commissioner of Labour, Ahmedabad. Reliance has been placed  upon
the decision of this Court in the case of Maharashtra State  Road  Transport
Corporation and Anr. v. Casteribe Rajya P. Karmchari Sanghatana[1],  wherein
it has been held thus:

"32.The power given to the Industrial and Labour Courts under  Section 30 is
very wide and the affirmative action mentioned therein is inclusive and  not
exhaustive. Employing badlis, casuals or temporaries and  to  continue  them
as such for years, with the object of  depriving  them  of  the  status  and
privileges of permanent employees is an unfair labour practice on  the  part
of the employer under item  6  of  Schedule  IV.  Once  such  unfair  labour
practice on the part of the employer is established in  the  complaint,  the
Industrial and Labour Courts are empowered to issue preventive  as  well  as
positive direction to an erring employer."

   Further, reliance has been placed upon the decision of this Court in  the
case of Durgapur Casual Workers  Union  v.  Food  Corporation  of  India,[2]
wherein it has been held thus:
"19. Almost similar issue relating to unfair trade practice by employer  and
the effect of decision of Umadevi (3) in the grant of relief was  considered
by this Court in Ajaypal Singh v. Haryana Warehousing  Corporation in  Civil
Appeal No. 6327 of 2014 decided on 9th July, 2014. In the  said  case,  this
Court observed and held as follows:
20. The provisions  of  Industrial  Disputes  Act  and  the  powers  of  the
Industrial and  Labour  Courts  provided  therein  were  not  at  all  under
consideration in Umadevi's case.  The  issue  pertaining  to  unfair  labour
practice was neither the subject matter for decision nor was it  decided  in
Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for  settlement  of
industrial disputes and for certain other purposes as mentioned therein.  It
prohibits unfair labour practice on the part of  the  employer  in  engaging
employees as casual or temporary employees for a long period without  giving
them the status and privileges of permanent employees....""

  Thus, in the light of the above referred cases of this Court, it is  amply
clear that the judgments and orders of the High Court and the  Award  passed
by the Labour Court are reasonable and the same have been arrived  at  in  a
just and fair manner.



  The reliance placed by the learned senior counsel for the  appellant  upon
the decision of this Court in  Secretary,  State  of  Karnataka  &  Ors.  v.
Umadevi & Ors.[3], does not apply to the fact situation of the present  case
and the same cannot be accepted by us in the light  of  the  cogent  reasons
arrived at by the courts below.



  In view of the reasons stated supra and in the  light  of  the  facts  and
circumstances of the  present  case,  we  hold  that  the  services  of  the
concerned workmen are permanent in nature, since they have worked  for  more
than  240  days  in  a  calendar  year  from  the  date  of  their   initial
appointment, which is clear from the  evidence  on  record.  Therefore,  not
making their services permanent by the appellant-Panchayat is erroneous  and
also amounts to error in law. Hence, the same cannot be allowed  to  sustain
in law.



   For the reasons stated supra, we  dismiss  the  appeals  and  direct  the
appellants to treat the services  of  the  concerned  workmen  as  permanent
employees, after five years of  their  initial  appointment  as  daily  wage
workmen till they attain the  age  of  superannuation  for  the  purpose  of
granting terminal benefits to them.



   The appellant is further directed to pay the  regular  pay-scale  as  per
the revised pay scale fixed to the post of permanent  safai  kamdars  for  a
total  period  of  15  years  to  the  concerned  workmen  and   the   legal
representatives of the deceased  workmen.  The  same  shall  be  implemented
within six weeks from the date of receipt  of  copy  of  this  judgment  and
compliance report of the same shall be submitted for  the  perusal  of  this
Court. No Costs.






............................................................J.

                                 [V. GOPALA GOWDA]



        ..........................................................J.

                                 [C.NAGAPPAN]

            New Delhi,
            March 27, 2015



ITEM NO.1A-For Judgment     COURT NO.10               SECTION XV

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

C.A.No......./2015 @ SLP (C)  No(s). 7105-7106/2014

(Arising out of impugned final judgment and order dated 23/07/2013 in LPA
No. 551/2013,23/07/2013 in SCA No. 7082/1994,23/07/2013 in MCA No.
3071/2012,13/07/2010 in SCA No. 7082/1994 passed by the High Court Of
Gujarat At Ahmedabad)

UMRALA GRAM PANCHAYAT                              Petitioner(s)

                                VERSUS

THE SEC.MUNICIPAL EMPLOYEE UNION & ORS             Respondent(s)

Date : 27/03/2015 These petitions were called on for pronouncement of
JUDGMENT today.

For Petitioner(s)
                     Mr. Pukhrambam Ramesh Kumar,Adv.

For Respondent(s)
                     Mr. S. C. Patel,Adv.


            Hon'ble Mr. Justice V.Gopala Gowda pronounced  the  judgment  of
the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.
            Leave granted.
             The  appeals   are   dismissed   in   terms   of   the   signed
Reportable Judgment.

    (VINOD KR. JHA)                             (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Reportable judgment is placed on the file)

-----------------------
[1]
      [2] (2009) 8 SCC 556
[3]
      [4] (2014) 13 SCALE 644
[5]
      [6] (2006) 4 SCC 1

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