UMRALA GRAM PANCHAYAT Vs. THE SEC.MUNICIPAL EMPLOYEE UNION & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 3209-3210 of 2015, Judgment Date: Mar 27, 2015
-
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. -
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. -
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 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. -
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.
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