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Thursday, March 8, 2018

corporate laws - service of employees = “Badali Kamdars” = The dispute was essentially as to from which date this benefit, namely, to make them permanent and the benefit of time scale should be granted to such “Badali Kamdars” = there is no basis for the appellants (employees) to claim the aforesaid benefit from the date of their initial appointment as “Badali Kamdar”. Indeed, there is neither any factual foundation nor any legal foundation to claim such benefit. - The concept of “Badli Kamdar” is statutorily recognized under the Act. Explanation to Section 25C defines the term “Badli Kamdar”. The appellant never questioned his status as “Badli Kamdar”. Indeed, it is due to the status of “Badli Kamdar”, which he enjoyed for few years in the service of Corporation, he got the benefit of absorption in permanent cadre.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2546 OF 2018
(Arising out of S.L.P.(C) No.6105 of 2018)
(D.No.35250 of 2017)
Bhupendra Kumar Chimanbhai
Kachiya Patel ….Appellant(s)
VERSUS
Divisional Controller GSRTC
Nadiad ….Respondent(s)
WITH
CIVIL APPEAL Nos.2594-2598 OF 2018
(Arising out of S.L.P.(C) Nos. 28519-28522 of 2017)
Prakashbhai Ishwarlal Dave ….Appellant(s)
VERSUS
Divisional Controller GSRTC
Junagarh ….Respondent(s)
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WITH
CIVIL APPEAL NO. 2556-2592 OF 2018
(Arising out of S.L.P.(C) Nos.6115-6151 of 2018)
(D. No.30838 of 2017)
Ghanshyam Pratapsinh Parmar ….Appellant(s)
VERSUS
Divisional Controller GSRTC
Rajkot ….Respondent(s)
AND
CIVIL APPEAL NO.2547-2555 OF 2018
(Arising out of S.L.P.(C) No. 6106-6114 of 2018)
(D. No.30615 of 2017)
Pradhyumansinh Lakhuba Jadeja ….Appellant(s)
VERSUS
Divisional Controller GSRTC ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
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2. These appeals are filed against the final
judgments and orders passed by the High Court of
Gujarat at Ahmedabad dated 28.06.2016 in L.P.A.
No.550/2016, dated 22.08.2017 in L.P.A.
Nos.1344-1347/2017, dated 04.07.2017 in L.P.A.
Nos.1185/2014, 1199, 1252, 1254-1259, 1261,
1264-1278, 1281-1282, 1284, 1286, 1288,
1291-1296, 1298/2014, dated 21.06.2016 in L.P.A.
Nos.497-500/2016 and dated 04.07.2017 in L.P.A.
Nos.1200, 1287, 1289, 1297 and 1299/2014
whereby the Division Bench of the High Court
dismissed the appeals filed by the appellants herein
and upheld the orders passed by the Single Judge
of the High Court.
3. In order to appreciate the issues involved in
these appeals, it is necessary to set out the facts in
detail. The facts and the legal issues arising in all
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these appeals are similar in nature except the date
of their initial appointment and absorption, which
vary from case to case in the service of the
respondent.
4. For the sake of convenience, the facts
mentioned in Reference I.T. No.44/2011 (Annexure12)
of the paper book of SLP Nos. 28519-28522 of
2017 are mentioned hereinbelow.
5. Prafulbhai Hirabhai Solanki, one of the
appellants herein, whose name appears at page 18
of the SLP paper book joined the services of the
respondent-Gujarat State Road Transport
Corporation (hereinafter referred to as “the
Corporation) on 04.06.1999 as "Badali Kamdar" at
Mangrol Depot of Junagadh Section. He was
employed as a daily wager.
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6. On 21.12.1989, the Corporation and the Union
of the workers entered into a settlement to resolve
several issues in relation to the service conditions of
the employees working in the Corporation.
7. Clause 20 of the Settlement, which is relevant
for the disposal of these appeals, deals with the
placement and absorption of the “Badali Kamdar” in
the permanent cadre of conductor and grant of time
scale to such workers. It provides a procedure as to
how, when and in what manner, the services of a
“Badali Kamdar” shall be regularized and absorbed
in a particular time scale.
8. In terms of clause 20 of the settlement dated
21.12.1989, the Corporation considered the case of
the appellant when the vacancy occurred in the
permanent cadre on the post of Conductor and
accordingly he was absorbed as permanent
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employee in the services of the Corporation on
27.08.2008 as Conductor. He was given the time
scale with effect from 27.08.2008 with
consequential benefits.
9. Like the appellant, there were hundreds of
“Badali Kamdars" who were working in the set up of
Corporation at all relevant time. The cases of these
“Badali Kamdars” were also considered with a view
to find out as to whether they fulfill the conditions
set out in clause 20 for making them permanent in
the set up of the Corporation as and when
permanent vacancy arose in the cadre of the
Conductor. Those who were found eligible and
fulfilled the conditions were absorbed in the services
as permanent employees on the post of conductor
and were accordingly given the time scale on the
expiry of completion of 180 days in the cadre. They
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were accordingly made permanent in terms of the
procedure prescribed in clause 20 of the Settlement.
10. This led to dispute between these employees
and the Corporation. The dispute was essentially as
to from which date this benefit, namely, to make
them permanent and the benefit of time scale
should be granted to such “Badali Kamdars”.
11. According to the employee (appellant), he was
entitled to claim this benefit on his completing 180
days of the service from the date of his initial joining
of the service as "Badali Kamdar", i.e., 04.06.1999
and not from the date of absorption whereas
according to the Corporation, the appellant and all
employees alike the appellant were rightly granted
the benefit on the expiry of 180 days from the date
when they were absorbed in the permanent cadre,
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i.e., as in the case of the appellant from 27.08.2008
as provided in clause 20 of the Settlement.
12. This issue was accordingly referred to the
Industrial Tribunal, Rajkot at the instance of the
appellant under Section 10 of the Industrial Dispute
Act (hereinafter referred to as “the Act”). Several
such references were made to the Industrial
Tribunal at the instance of similarly situated
employees.
13. By award dated 08.08.2013 (Annexure-P-12),
the Industrial Tribunal answered the reference in
favour of the employees and accordingly granted
them benefit, which the employees had claimed. In
other words, the Industrial Tribunal held that the
appellant (employee) is entitled to claim the
permanent absorption in his service in the time
scale as Conductor with effect from the completion
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of his 180 days of service period from the date of his
initial joining, i.e., 04.06.1999. The Corporation was
accordingly asked to pay all consequential benefits
from such date. In substance, the Industrial
Tribunal rejected the stand taken by the
Corporation.
14. The Corporation felt aggrieved and filed writ
petition in the High Court of Gujarat at Ahmadabad.
The Single Judge of the High Court, by order dated
18.09.2014, allowed the writ petition and set aside
the award of the Industrial Tribunal. The Single
Judge accepted the stand taken by the Corporation
and accordingly upheld their action in granting the
benefit to the employee (appellant) from 27.08.2008
as provided in clause 20 of the Settlement.
15. The appellants (employees) felt aggrieved and
filed intra court appeals before the Division Bench.
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By impugned judgments and orders, the Division
Bench dismissed the appeals filed by the employees
and upheld the orders of the Single Judge, which
has given rise to filing of these appeals by way of
special leave by the employees in this Court.
16. Heard Mr. Colin Gonsalves, learned senior
counsel for the appellants and Mr. Tushar Mehta,
learned Additional Solicitor General for the
respondent.
17. Mr. Colin Gonsalves learned senior counsel
appearing for the appellants(employees) while
assailing the legality and correctness of the
impugned orders contended that the reasoning and
the conclusion arrived at by the Industrial Tribunal
was just, proper and legal and hence it should not
have been interfered with by the High Court (Single
Judge and Division Bench).
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18. Learned counsel urged that the findings of the
Industrial Tribunal were based on proper
appreciation of evidence adduced by the parties and
hence such findings could not be faulted with.
Learned counsel took us through the evidence to
show that the findings recorded by the Industrial
Tribunal deserve to be upheld as against the
findings of Single Judge and Division Bench.
19. Learned counsel placed reliance on some
judicial orders passed in previous litigation between
the Corporation and its employees which, according
to him, decided the issue in question in favour of
the employees.
20. Learned senior counsel for the appellants
submitted that in the light of these judicial orders,
the similar order should be passed in these appeals
also.
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21. In reply, Mr. Tushar Mehta, learned Additional
Solicitor General, appearing for the respondent
supported the impugned judgment and contended
that the concurrent findings of the High Court
(Single Judge and Division Bench) deserve to be
upheld.
22. Placing reliance on clause 20 of the settlement,
learned ASG contended that the action taken by the
Corporation is in conformity with the requirements
of Clause 20 and hence deserves to be upheld.
23. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in the appeals.
24. As rightly argued by the learned ASG, the
issue in question has to be decided in the light of
clause 20 of the Settlement.
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25. One cannot dispute the legal proposition that
the settlement once arrived at between the employer
and the employees as provided in Section 18 of the
Act, it is binding on the employer and the
employees.
26. It is not in dispute that on 21.12.1989, the
Corporation and the Union of the workers of the
Corporation has entered into the settlement in
respect of various issues in relation to their service
conditions. One such issue was in relation to the
absorption of Badali Kamdars in the permanent
cadre of the Corporation. Clause 20 provides the
manner in which it is to be given effect to by the
parties.
27. Clause 20 of the Settlement dated 21.12.1989
reads as under:
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“In reference to the representation made to
delete the provision of the section 29 of the
settlement dated 23/11/1984 and implement
the provision of section 43 of the settlement
dated 22/10/1964 it is determined that after
preparing the Division wise list of the
selected employees they will be given
temporary/daily wager appointment against
the permanent posts in the division/unit,
and if such appointed temporary/daily wager
has worked continuously for 180 days
including the weekly holiday/paid holiday
and authorize leave then they will be taken
on time scale. This provision will not be
applicable to the employees on work charge
working in the Civil Engineering Department
and such appointed temporary/daily wager
has worked continuously for 180 days
including the weekly holiday/paid holiday
and authorized leave then they will be taken
in time scale and they will be entitled to all
benefits available to time scale employees.
The absence due to authorized leave for the
above purpose will not be considered break
and these days will not be considered for 180
days service.
As per permission of S.T.T. 1981, if the
recruitment of the staff has been done as a
temporary or badli kamdar then after
completion of their 180 days of service on
the permitted vacancies they would be taken
on time scale serially.
Such workers will be granted all benefits as
per the Rules along with the notional
increment with effect from 1.8.87 and there
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will not be any recoveries made from them
nor there will be any arrears paid.
The workmen taken into service are not
required during the monsoon, therefore they
can be retrenched as per the requirement and
after the monsoon if their services are
required then again as per seniority they will
be taken in time scale. If there is any
permanent post vacant then the appointment
of the administrative staff will be made on
time scale.”
28. It is not in dispute that the Corporation has
followed the procedure provided in clause 20 while
granting the employees their permanent cadre and
the time scale of conductor. In other words, all
eligible “Badali Kamdars” were absorbed in the set
up and accordingly granted benefit in terms of the
procedure prescribed in clause 20 of the Settlement.
29. It is also clear from the undisputed facts that
firstly, the appellant (employee concerned) was
appointed as "Badali Kamdar" in the set up of
Corporation on 04.06.1999; Secondly, clear vacancy
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arose in the permanent cadre of Conductor in and
around 27.08.2008; Thirdly, as per the seniority list
of the “Badali Kamdars”, the appellant was
accordingly absorbed in the permanent cadre at the
time scale with effect from 27.08.2008 on
completion of 180 days of his service in the cadre
and, as a consequence thereof, was given all the
benefits of the said post from the said date; and
lastly, since then the appellant and all employees
alike him are continuing on their respective post.
30. In our considered opinion, in the light of what
we have held above, there is no basis for the
appellants (employees) to claim the aforesaid benefit
from the date of their initial appointment as “Badali
Kamdar”. Indeed, there is neither any factual
foundation nor any legal foundation to claim such
benefit. 
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31. Learned counsel for the appellants was also
not able to show any document, such as any
term/condition in the appointment letter or in the
settlement or any Rule/Regulation framed by the
Corporation recognizing such right in appellants’
favour to enable them to claim such benefit from
the date of their initial appointment.
32. Clause 20 of the Settlement is the only clause
which recognizes the appellant’s right for
consideration of his case on individual basis and to
grant him the benefit subject to his fulfilling
conditions specified therein which, in appellant’s
case, were found satisfied and accordingly, he was
granted the benefit along with each such employees.
33. It is pertinent to mention that the appellants
neither challenged the settlement nor its
applicability. In other words, the legality or/and
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binding nature of settlement dated 21.12.1989 was
never questioned in these proceedings. In this view
of the matter, the settlement is binding on both
parties in terms of Section 18 of the Act.
34. The concept of “Badli Kamdar” is statutorily
recognized under the Act. Explanation to Section
25C defines the term “Badli Kamdar”. The appellant
never questioned his status as “Badli Kamdar”.
Indeed, it is due to the status of “Badli Kamdar”,
which he enjoyed for few years in the service of
Corporation, he got the benefit of absorption in
permanent cadre.
35. So far as the reliance placed by the learned
counsel for the appellants on some previous judicial
orders are concerned, in our view, they are of no
help to the appellants inasmuch as those orders
turned on the facts involved in the case and
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secondly, we find that in those cases, parties did
not even lead any evidence (see Para-3 of the order
dated 27.01.2000 passed in SCA No. 393/2000
page 45 of Paper Book), and lastly, one case was
based on clause 49 of 1956 settlement and clause
19 of 1985 settlement.
36. In substance, in our view, those orders did not
directly deal with the issues, which are the subject
matter of these appeals and, even if, they deal with
the issue in question, as urged by the learned
counsel, then also, in our view, those cases turned
on their own facts.
37. In this view of the matter, those orders were
rightly not relied on by the High Court and we find
no good ground to take different view and
accordingly reject this submission.
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38. Mr. Colin Gondsalves, learned senior counsel
for the appellants then referred extensively to the
evidence led by the parties to support his
submission.
39. We are afraid we cannot appreciate the
evidence in the appeals filed under Article 136 of
the Constitution. It is more so when the Single
Judge and Division Bench did not agree with the
factual findings of the Tribunal and rightly reversed
those findings. It is binding on this Court.
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40. In the light of the foregoing discussion, we find
no merit in the appeals which thus fail and are
accordingly dismissed.
………...................................J.
[R.K. AGRAWAL]


…...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
March 07, 2018 

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