IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 12159 of 1993 with SPECIAL CIVIL APPLICATION No 12160 of 1993 with SPECIAL CIVIL APPLICATION NO.9027 of 1994;8758 of 1999, 8759 of 1999; 2058 of 2000; 11947 of 2002; 11941 of 2002; For Approval and Signature: HON'BLE MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- DIST AGRICULTURE OFFICER Versus JUNAGADH JILLA MAZDOOR SANGH,RAJKOT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 12159 of 1993 MR HARIN P RAVAL for Petitioner No. 1 MR HS MUNSHAW for Petitioner No. 1 MRS DT SHAH for Respondent No. 1 2. Special Civil Application No. 12160 of 1993 MR HARIN P RAVAL for Petitioner No. 1 MRS DT SHAH for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE H.K.RATHOD Date of decision: 27/11/2003 ORAL JUDGEMENT Heard learned advocate Mr.H.S.Munshaw on behalf of District Panchayat, Junagadh, learned Government Pleader Mr.A.D.Oza, learned Assistant Government Pleader Mr.M.R.Mangday appearing on behalf of State of Gujarat and learned advocate Mrs.D.T.Shah on behalf of respondent workmen. This group of all the petitions, wherein award passed by the Industrial Tribunal, Rajkot is challenged and all the petitions are arising from the award in question challenged by the District Panchayat as well as the State of Gujarat and therefore, all petitions are disposed of by this common judgment. 2. The District Panchayat as well as the Director of Agriculture Department has challenged the award passed by the Industrial Tribunal, Rajkot in Reference I.T.R.Nos.267 of 1988 and 268 of 1988 dated 13th October 1992, wherein Industrial Tribunal, Rajkot has granted the benefit of permanency in favour of 10 workmen on the basis of Government Resolution dated 17th October 1988 and Industrial Tribunal has also granted the arrears and difference of salary being a permanent employees with effect from 15th November 1988. 3. When the petitions are admitted on that occasion it is necessary that elaborated arguments were advanced by the learned senior advocate Mr.P.M.Raval at the relevant time before this Court, challenging the award in question and after considering the detailed submissions made by the learned senior advocate Mr.Raval, this Court has passed an interim order on 3rd October 1994 (Coram: Mr.H.L.Gokhale, J). The interim order is relevant and therefore, quoted as under :- "1 Heard Mr.P.M.Raval, Senior advocate with Mr.Munshaw for Junagadh District Panchayat, Mr.Rathod for Director of Agriculture and Mrs.D.T.Shah for the workmen. 2 Special Civil Application No.12159 and 12160 of 1993 are filed by the District Agriculture Officer, Junagadh, seeking to challenge the common award by the Industrial Tribunal, at Rajkot, in Reference (ITR) No.267 of 1988 and 268 of 1988, dated 13th October 1992. The first Reference, namely, 267 of 1988 seeks permanency to 9 workmen, namely, (1) Laxman Bhojabhai Kargadia, (2) Renmal Bhaya, (3) Dana Arjan, (4) Arjan Deva, (5) Natha Vallabhbhai, (6) Masriji Vaghji, (7) Rana Khima, (8) Ram Aga Jabu and (9) Petha Bhurabhai. The second reference seeks the similar benefits for one Prabhashakner Mansing Kalaiya. The submission of the workmen before the Tribunal was that they have put in 10 to 20 years of service and as per the circular of the Public Works Department of the State of Gujarat dated 17th October, 1988, a certain scheme with respect to regularization has been sanctioned by the State Government and in their view, they are entitled to similar benefits. These ten persons are working in the Seeds Farm run by the petitioner District Panchayat. Amongst others. It is the submission of the petitioner District Panchayat that the Industrial Tribunal had erred in holding that the work of development of seeds plant requires continuous process. It is their submission that these persons are seasonal in service and they cannot be given the benefits of the said resolution. 3. Special Civil Application No.5285 of 1994 is a counter petition on behalf of the same workmen, challenging the same award, since in their view, the Tribunal ought to have directed that they be made permanent after completion of one year of service, when they had completed 240 days of continuous work. The Tribunal had granted this benefit after completion of 10 years of continuous service and after working for 240 days for the purpose of Section 25-B of the Industrial Disputes Act, 1942, and those ten years to be found out as on 15.11.1988. The workmen are unhappy with this part of the award and, hence, they have filed the aforesaid Special Civil Application. 4. Special Civil Application No.9027 of 1994 is filed by the Director of Agriculture, who is an officer of the State Government, challenging the same award, in as much as, under an understanding arrived at between the State Government and the District Panchayat, as recorded in the State Government Resolution of 26th May 1971, in case the District Panchayat suffers losses, 50% of those losses are to be borne by the State Government. The State Government apprehends that the burden of this award will come on it and, therefore, the State Government has filed the said Special Civil Application. 5. All these petitions raise important question of law and have, therefore, got to be admitted. Hence, Rule. 6. 'As far as the interim arrangement is concerned, Mr.P.M.Raval, learned senior Advocate for the District Panchayat with Mr.Munshaw, brought to my notice the State Government resolution dated 7th December, 1989 and submitted that, although the said resolution of the Agricultural Department is concerning some 197 employees, at the highest, the workmen concerned of the Seeds Farm could have been compared with those 197 employees and granted the benefits under that resolution and not under the Resolution dated 17.10.1988, which is of the Public Works Department'. Nothing prevented the District Panchayat from placing this relevant data before the Industrial Tribunal and the objection in this behalf of Mrs.Shah is well taken. Be that as it may, since the said resolution is brought to my notice, I cannot brush it aside and as an interim measure, it will be taken into consideration. The copy of the said resolution is tendered by Mr. Raval on record and is taken on record and marked as Annexure "X" . 7. The following are the effects of the award :- (1) Those employees who have completed 10 years of service as on 15.11.1988, subject to completing 240 days as per Section 25-B of the Industrial Disputes Act, will be regularized on permanent basis: (2) They will be paid such pay and allowances as are available and given to permanent employees posted and serving as Peons: (3) On occurrence of vacancy in the set up, they will be absorbed without prejudice to the seniority of the employees as on 15.11.1988: (4) Difference of pay and allowances that would be payable between 15.11.1988 and 31.03.1992 to be credited to the General Provident Fund Account or Conributory Provident Fund Account as the case may be: (5) The arrears from 01.04.1992 onwards until the publication of the award to be paid within four months from the publication of the award: (6) The tenure of service as from the date of joining until 15.11.1988 to be considered as notional service for pension and gratuity and like benefits; and (7) Cost of Rs.2,000/- This operative part of the award shall stand stayed till the hearing and disposal of the petitions. Instead of that, the following arrangement will run as an interim arrangement :- (1) All the ten employees concerned will be fitted into the appropriate grade as per the Agricultural Department Resolution dated 7th December 1989; (2) They shall be so fitted immediately and the salary or October 1994 shall be paid in accordance with the said fitment; (3) The arrears of the employees concerned for the period 01.04.1992 onwards until the end of September 1994 will be calculated on the basis of the aforesaid circular dated 7th December 1989 by the end of November 1994. However, the Junagadh District Panchayat shall pay an amount of Rs.5,000/- when the salary for the month of October 1994 is paid, which shall be paid on or before 2nd November 1994. The said amount will be a part of the aforesaid amount of arrears. 50 percent of the remaining amount will be paid by the end of January 1995 and the remaining amount by the end of March 1995; (4) As far as the difference of pay and allowances that would be payable between 15.11.1988 and 31.03.1992 concerned, as referred in the award of the Tribunal, the District Panchayat shall calculate the amount as payable under the circular of 9th December 1989 and keep those calculations ready along with other calculations by the end of November 1994. they will also make both these calculations available to the advocate of the workmen. In the event the workmen succeed finally, they will be entitled to the said amount with interest which is presently not being directed to be credited to the General Provident Fund Account or Contributory Provident Fund Account; and (5) As referred earlier, 50 percent losses suffered by the District Panchayat in the running of the Seed Farm are to be borne by the State Government. The District Panchayat will be at liberty to represent to the State Government to claim 50 percent of those amounts if they so deem it fit and the Government is expected to consider the representation expeditiously and in the true spirit of the arrangement and not raising any technicality. At the same time, the District Panchayat will not stop the payment to the workmen concerned on the ground that any such representation is pending with the Government. 8. The aforesaid order is being passed without prejudice to the right and contentions of all the parties. Liberty to the parties to apply in case there is any failure to comply or in case of difficulty. 9. The petitions to be placed for final hearing on 12th December 1994". 4. From the date of interim order dated 3rd October 1994, the respondents 10 workmen were working with the District Panchayat in Agriculture Farm and during the pendency of this group of petitions, certain workmen were retired and therefore, could have the retirement benefits and other benefits flowing from the award. Some of the petitions are filed by the workmen, whose relief is based on the award passed by the Industrial Tribunal in question. The number of Special Civil Applications, Special Civil Application No.11941 of 2002, Special Civil Application No.50 of 1995, Special Civil Application No.8759 of 1999, Special Civil Application No.11947 of 2002, Special Civil Application No.2058 of 2000, Special Civil Application No.8758 of 1999, these are also pending matters alongwith this group of petitions, wherein certain benefits being claimed including the 5th Pay Commission and pensionary as well gratuity benefits from the District Panchayat. These petitions are also in group of these petitions and are decided by this Court in common judgment. In this group of matters also working workmen have filed these petitions. Learned advocate Mrs.D.T.Shah, appearing on behalf of the workmen and learned advocate Mr.H.S.Munshaw, appearing on behalf of District Panchayat and learned Assistant Government Pleader Mr.M.R.Mangday, appearing on behalf of Director of Agriculture Department. 5. Learned advocate Mr.H.S.Munshaw has raised contentions before this Court. First contention raised by learned advocate Mr.Munshaw is that they are not the owner of agriculture farm, but they are only maintaining the farm, means they are managing the affairs of agriculture farm. No doubt, he has made clear that concerned workmen were engaged by District Panchayat, Junagadh. He also submitted that it is not the liability of the District Panchayat, Junagadh, but in reality it is the liability of State of Gujarat. However, he also agree to that, because of Government Resolution dated 26th May 1971, the liability has been determined by the State of Gujarat and District Panchayat in respect to agriculture farm about 50:50%. That facts has been mentioned by this Court in its interim order. Mr.Munshaw also submitted that the Government resolution dated 17th October 1988 is not applicable to the workmen concerned. He also submitted that these are the seasonal workmen and not the permanent workmen. Thus, all workmen are of back door entry and not appointed after following due process of selection. He also submitted that there is no vacant post available in Agriculture Farm and therefore, Tribunal has committed error in passing such award. He also submitted that award passed by the Tribunal is bad, because State Government is not joined as party before the Tribunal. Therefore, he submitted that ultimately, it is a burden upon the State of Gujarat and not upon the District Panchayat, Junagadh, because the District Panchayat, Junagadh is not an owner of agriculture farm. He also submitted that there are various types of farms, agriculture farm, seeds farm and seasonal farm. Therefore, he submitted that after the references have been referred for adjudication to the Tribunal by the State Government, detailed reply has been filed by the District Panchayat, Junagadh before the Tribunal and contention has been raised to the effect, which referred by the Tribunal in paragraph 7, page 14. The contention, which has been raised by District Panchayat before the Tribunal that there is no evidence produced by the workmen that they were on permanent posts against their work. District Panchayat has not recruited the workmen under the provisions of Gujarat Panchayat Act and Service Rules. There is no set up of permanent nature exists for these workmen and District Panchayat relied upon the decision of this Court reported 28(2) GLR, page 1308 and 1299. Relying upon these two decisions, District Panchayat has raised contention before the Tribunal that workmen were not entitled to be made permanent and similar to the District Panchayat, Junagadh, other Panchayats also run seeds farm, but nowhere employees are employed permanent and that such posts are not sanctioned by the Government. Mr.Munshaw has also raised an important question that whatever observations made by the Tribunal are not based upon any record. He also submitted that there is no clear cut finding based on legal evidence. He also submitted that there is no discussion by the Tribunal and therefore, according to him mere observation of the Tribunal is without base of any legal finding. The finding given by the Tribunal is perverse. He also raised contention that Agriculture Department is not an industry within the meaning of Section 2(J) of the Industrial Dispute Act, 1947. He also submitted that no permanent posts are available in agriculture farm and recruitment rules were not followed at the time of engagement of workmen. But, he admitted that workmen have been engaged by the District Panchayat and not by the State Government. He again emphasised that ultimately, burden is upon the State Government and not on District Panchayat. It is also important to note one admission of Mr.Munshaw before this Court in respect to two resolutions dated 17th October 1988 and another is 7th December 1989. He fairly submitted that both the Government resolutions are issued by different departments, but in respect to benefits available to the concerned workmen, practically both the Government resolutions are same. However, for the purpose of benefits accrued from the resolution, he made it clear that 7th December 1989 Government resolution is meant for only 197 workmen and not meant for these workmen. He also relied upon the various decisions of this Court that an employee, which has been appointed through back door entry are not have to be regularized and therefore, he completed his submission to the effect that entire award is bad, illegal, finding given by the Tribunal is perverse and contrary to law and therefore, the same is required to be set aside. Except that as referred above, learned advocate Mr.Munshaw has not made any other submission. 6. Learned Assistant Government Pleader Mr.Mangday, appearing on behalf of Director of Agriculture Department, being respondent as well as petitioner in respect to Special Civil Application No.9027 of 1994 has adopted fully all the submissions made by learned advocate Mr.Munshaw, who is appearing on behalf of District Panchayat, Junagadh. Over and above, learned Assistant Government Pleader submitted that before the Tribunal State Government was not a party. Therefore, direction given by the Tribunal is not binding to the State of Gujarat. He also submitted that actual dispute, which was raised by the workmen is not for implementation of Government resolution dated 17th October 1988 and therefore, the direction, which has been ultimately given by the Tribunal is beyond the scope of terms of references referred for adjudication by the State Government. At this occasion one question was asked to the learned Assistant Government Pleader by the Court that whether Tribunal has given any direction against the State Government in the award in question, the answer is no. 7. Learned advocate Mrs.D.T.Shah, appearing on behalf of the respondent workmen has submitted that Industrial Tribunal has rightly passed an award and regularized the services of 10 workmen, those who put on at the relevant time some 10 to 30 continuous years of service. She submitted that alongwith the statement of claim, annexures have been produced before the Tribunal by the Union in that annexures name of the workman concerned in the reference, date of joining and total years of service put up by the workman has been specifically mentioned. These annexures or statements of the detail of the workman being a part of statement of claim. Therefore, she submitted that at the time of filing reply, the details, which has been placed on record by the Union being statement has not been disputed by the District Panchayat and therefore, it has been relied by the Tribunal rightly about the length of service and continuity of service of each workman. She submitted that Agriculture Department is not an industry that contention was not raised by the District Panchayat, Junagadh before the Tribunal. She also emphasised that once the contention is not raised before the Tribunal, then it is not open to the District Panchayat to raise such contention before this Court first time. She also submitted that in entire award the Tribunal has given finding on the basis of the evidence on record and even on the basis of undisputed facts between the parties. She submitted that whatever the observation made by the Tribunal relying on record and undisputed facts must have to be prevailed rather than submissions made by the advocate concerned before this Court. She also submitted that the observation made by the Tribunal, if it is wrong, contrary to the record, then why at the relevant time District Panchayat has not approached to the Industrial Tribunal, Rajkot, pointing out the fact that the said observations are contrary to record. No such objections were raised, no such application was filed at the relevant time by the District Panchayat and now to raise dispute that being an after thought and therefore, Court cannot entertain such contention raised by District Panchayat, Junagadh. She also submitted that workman, whether it has been entered by back door entry or regular after all that back door entry was given by the department with open eyes. Why the department has kept the back door open so anyone can enter. Not only that, but back door entry has been maintained by atleast about 10 to 30 years by the District Panchayat and all of a sudden to raise contention about the back door entry cannot be entertained by this Court. She also submitted that these are the workmen, those who are working with agriculture farm in posts of peons and watchmen and not performing any kind of seasonal work. Therefore, they are permanent employees, working since 10 to 30 years with the District Panchayat, Junagadh and not getting proper salary and that is how the Industrial dispute has been raised by the Union on behalf of the workmen. She also submitted that Industrial Tribunal under the provision of Industrial Dispute Act, 1947 having very vide jurisdiction. Even Tribunal can change the existing condition of service and even impose new condition of service for that limits of Civil Court is not applicable to the Industrial Tribunal. She also submitted that really Industrial Tribunals are of trapping of Court and really since those are not the Civil Court therefore, they can change the condition of service, even impose a new condition of service. Therefore, Tribunal has rightly passed an order, granting the benefits in favour of the workmen for that Tribunal has not committed any error and therefore, having this Court limited jurisdiction according to her submission, this Court may not interfere with the award passed by the Tribunal. 8. I have considered the submissions made by all the three learned advocates. It is necessary to note certain observations, which has been made by the Tribunal while passing award, which is as under :- "6. Based on the evidence on record, learned counsel Shri Dave urged that all the workers have been doing the work of same nature as permanent workers are doing since they have been working for last more than 10 to 30 years on principle of equal pay for equal work, they must be conferred right of being made permanent. 8. The evidence on record reveals that these workers have been working on such farm which are run by Jilla Panchayat, and there is as a matter of fact no denial of the fact that these workers have been working, since last more than 10 to 30 years and that they have been attending cultivation, weeding, cutting and channelizing water etc, and working as watchmen. 11. By statutory industrial law, no provision is made for creation of permanency, though by following certain procedure and conferring benefits compatible with social justice, protection is rendered to worker, on continuity of service for 240 days or more, statutory protection is given in the nature of restrain, on removal or retrenchment. With it, right for equal pay for equal work is modulated to security of permanency of tenure as laid down in the case of Daily rated Casual Labour Employees Union P&T Dept. Vs. Union of India, 1986, S.C.C., 637 and the Dharwar District P.W.D. Literate Daily wages Employees Asso. Vs. State of Kerala, AIR, 1990 (SC) 883 and followed by our High Court in case of C.D.Chauhan Vs. Reserve Bank of India, XXXII GLR, 1192. When the plea of the present workers is considered on the basis of oral evidence since it is proved and undisputed fact that they have been service continuously for more than 10 to 30 years, and who have been performing same duties as other permanent employees, who work as peon or chowkidars and like, it is just to conclude that they have acquired a right of permanency and be conferred. 13. I am conscious of the decision of the Supreme Court in the case of Delhi Development Horticulture Employees Union Vs. Delhi Administration, AIR, 1992(SC) 789. It may firstly be stated that the aforesaid two judgments of Supreme Court regarding regularization and right of equal pay for equal work still stand good law, which have been followed as Rule of law in the aforesaid case of C.D.Chauhan (Supra). It is true that the Supreme Court and so followed by our own High Court in the case of Dinesh S.Parmar V/s. State 33 GLR 608, has desired that the Courts do take Judicial notice and caution that by circumventing the provision of law, employment is given by mode other than that employment exchange, and that it be checked and stopped, the case of the present workers in fact, falls