JUNAGADH NAGARPALIKA Vs. JETHVA DILIPBHAI HIRABHAI

JUDGEMENT

(1.) In the present petition, the Award passed by the Industrial Tribunal, Rajkot in Reference (ITR) No. 118 of 1991 dated 4th February, 1999 is under challenge. In the said Award, 14 workmen are made permanent with effect from 1st January, 1995. The Industrial Tribunal has further directed that the period from 1st January, 1995 till the date of Award ie., 4th February, 1999 has to be treated as notional as these 14 workmen are entitled to relevant pay scale from the date of the Award.

(2.) Mr. Jayant Patel, learned advocate for the petitioner-Junagadh Nagarpalika [hereinafter referred to as, `petitioner-Nagarpalika'] submitted that the financial condition of the petitioner-Nagarpalika is week and petitioner-Nagarpalika is unable to pay even the regular salary to its existing employees. He further submitted that such a direction of the Tribunal runs contrary to the set-up of Nagarpalika because such a set up is sanctioned by the Director of Municipality and if these fourteen workmen are made permanent then set up to that extent is required to be increased and that cannot be done without the permission and sanction of the Director of Municipalities. He also submitted that petitioner is receiving grant from the State Government in respect to the wages of only permanent workmen whose posts are sanctioned by the Director of Municipalities, and therefore, if these fourteen workmen are made permanent and if they are included in the set-up then the petitioner will not get the grant for wages of these fourteen workmen. He further submitted that the District Collector, Junagadh has also issued directions against the petitioner to control the administrative expenses and not to confirm or make permanent any employee who is working on daily wages. Therefore, Mr. Patel submitted that the said direction of the Industrial Tribunal is having financial burden upon the petitioner-Nagarpalika and the State Government will not take responsibility of the wages of such workmen because they are not included in the set-up of the Nagarpalika.

(3.) An industrial dispute was raised by the Union in respect to 23 workmen by an order dated 23th April, 1995. The Union submitted statement of claim in support of their demand. The case of Union before the Tribunal was that these workmen were continuously in service since many years in different branches of the petitioner and they are performing the work of permanent nature and inspite of that fact, the benefit of permanency has not been granted by the petitioner-Nagarpalika. It was also submitted by the Union that in similar and identical cases wherein employees those who have completed 240 days continuous service they all are made permanent and some of the juniors are also made permanent and senior employees have remained without the benefit of permanency. The statement of claim was filed vide Exh. 6 by the Union and the written statement was submitted by the petitioner-Nagarpalika vide Exh. 9. Thereafter, on behalf of the Union one Madhubhai Mansukhbhai was examined vide Exh. 32 and another witness Shri Gulmohamed Lal Mohammed was examined vide Exh. 38. In the evidence, it comes on record that many juniors were made permanent and these concerned workmen were working since 1985 as Safai Kamdars. It has also come on record that these all workmen were continuously in service from the date of their joining and there was no break in their service. It is also proved in evidence that they are performing permanent nature of work. The petitioner-Nagarpalika has examined its Chief Officer Shri Dhiraj Kanjibhai Parikh vide Exh. 48. He had deposed before the Tribunal that out of 23 workmen, in all 9 workmen were made permanent by the petitioner. He also admitted in his evidence that the date of joining in service which has been mentioned by the concerned workmen is correct and from the date of joining service, they are performing their duties continuously. He also admitted that there is no difference in respect to the nature of work between permanent employee and daily rated employees. He also admitted that there are many more persons working in the Nagarpalika beyond the set-up and for that petitioner is not receiving any grant from the State Government and because of non-receipt of grant, such workmen are not made permanent by the petitioner Nagarpalika. He also admitted that petitioner is having muster pay register in respect to these concerned workmen. Before the Industrial Tribunal vide Exh. 15, the petitioner has made an application to the effect that out of 23 workmen, 9 have already been made permanent, and therefore, in case of such 9 workmen, their appointment orders were produced on record vide Exh. 18 to 24, and thereafter, the Union has also produced appointment orders in respect to their workmen vide Exh. 25 to 30. The names of said workmen were given by the Union before the Tribunal, and therefore, the present dispute has been limited to only 14 workmen. Thereafter, the Industrial Tribunal has considered the evidence on record and relied upon one decision of the Apex Court in the matter of State of Haryana v. Pyaresingh, reported in 1992 (4) SCC 118. Considering the decision of the Apex Court, the Industrial Tribunal has observed that these workmen are working continuously since more than 12 to 15 years without any break and in respect to their work, no objection is ever raised by the petitioner and even there is no objection about the educational qualification, and therefore, considering these fact, the Industrial Tribunal has come to the conclusion that looking to the observations made by the Apex Court in case of Re : Pyaresingh, these workmen are entitled to permanency. The contention of the petitioner in respect to limited set-up has been examined by the Tribunal and come to the conclusion that such limitation of set-up as per the Corporation Act cannot come in the way of the Tribunal while passing the Award of permanency. The Tribunal has also examined the financial situation of the petitioner and the petitioner has produced before the Tribunal the balance-sheet and pointed out that the financial position is weak. Considering all these aspects, the Industrial Tribunal has come to the conclusion that these 14 workmen are entitle to the benefit of permanency with effect from 1st January, 1995. However, considering the weak financial position of the petitioner-Nagarpalika, the Industrial Tribunal has rightly not granted any benefit from 1.1.1995 to 4.2.1999 and this period has been treated and considered to be a notional period and the actual benefit of regular salary as a permenent employee has been granted only with effect from 4th February, 1999.