BAGSARA NAGAR PALIKA Vs. ANANTRAY N PARMAR

JUDGEMENT

(1.) Heard learned advocate Mr.Muliya for learned advocate Mr.Parthiv B. Shah appearing on behalf of the petitioner and learned advocate Ms.Sangeeta Pahwa for respondent workmen appearing on caveat. Rule. Learned advocate Ms.Sangeeta Pahwa waives service of rule on behalf of the respondents - workmen. Today, when the present petition is taken up for hearing, an affidavit-in-reply is filed on behalf of the respondents-workmen and a copy thereof has been served on the learned advocate for the petitioner.

(2.) In the present petition, the petitioner has challenged the award passed by the Industrial Tribunal, Bhavnagar dated 30th October, 2002 in the Reference [IT] No.57/94, wherein the Industrial Tribunal has directed the present petitioner to confirm 21 workmen whose names are mentioned in the operating portion of the award with effect from 1st January, 1995 and also directed to fix their pay scale and to pay them difference of salary with effect from 1st January, 1998.

(3.) Learned advocate Mr.Muliya appearing on behalf of the petitioner has submitted that all these workmen were working as workmen of the Octroi Collector Contractor and / or Ijaredar and now the system and / or practice of collection of octroi duty has been abolished and therefore, the petitioner is not able to confirm all these workmen because no work is available with the petitioner. He also submitted that the Government Circular dated 17th October, 1988 is not applicable to the petitioner. He also submitted that these workmen were recruited or employed by the petitioner without following the due procedure of law and so far as the petitioner institution is concerned, there is procedure of recruitment as per the Rules which required written examination as well as oral interview. These workmen were not appointed accordingly. It is also his submission that the financial condition of the petitioner institution is not good and therefore also, the workmen concerned cannot be given effect of the impugned award as the petitioner cannot bear the burden of granting difference of salary to the respondents - workmen. He also submitted that in the event, if the impugned award is required to be implemented by the petitioner, then again, financial condition of the petitioner will be adversely affected and therefore, he submits that the Industrial Tribunal, Bhavnagar has committed gross error in granting benefits in favour of all 21 workmen with effect from 1st January, 1995 and also with effect from 1st January, 1998 granting difference of salary in favour of the respondent workmen. He also submitted that the tribunal has committed error while not appreciating the financial condition of the petitioner which is, of course, no good and healthy and on this aspect, relevant material though produced on record by the petitioner, the same has not been taken into account by the tribunal. He also submitted that these workmen were continuing in service because of the fact that this Court has passed the interim order. It is also submitted that earlier they were employees of the Ijaredar and they were not the employees of the petitioner since the work of collection of the Octroi duty was given to the contractor. However, due to the interim order passed by this Court, these workmen remained in service and at present they are working with the petitioner. It is also contended that as such there is no relationship of employer and employee say master and servant between the petitioner and the respondents workmen and since the Government has abolished the octroi system with effect from May, 2000 and therefore, these workmen become surplus in the petitioner institution. However, the petitioner has accommodated these workmen in other department. Thus, it is submission on behalf of the petitioner institution that the tribunal has committed gross error in granting the relief in favour of the respondents workmen.