K.A. Puj, J.
1. This group of five Letters Patent Appeals and two Special Civil Applications is in respect of same subject matter and hence they are being disposed of by this common Judgment. All these Letters Patent Appeals are arising out of the common judgment and order passed by the learned Single Judge on 25-1-2001. The appellants No. 1 and 2, in all these Letters Patent Appeals, are Halvad Nagarpalika and its Chief Officer, who were the original-respondents in the Special Civil Applications. Letters Patent Appeals No. 99 to 101 of 2003 had come up for hearing on 1-4-2003, and this Court has admitted the said appeals and stayed the order of the learned Single Judge. The order regarding interim relief in the nature of staying the order of learned Single Judge was passed in Civil Applications No. 7569, 7647 and 7567 of 2002. Letters Patent Appeal No. 1202 and 1203 of 2002 and Civil Applications No. 27 of 2003 as well as 7568 of 2002 had come up for hearing before the Division Bench, comprising of Hon'ble Mr. Justice B.J. Shethna and Hon'ble Mr. Justice A.L. Dave, on 2-4-2003 and the order regarding admission was passed and matters were ordered to be heard along with Letters Patent Appeals No. 99, 100 and 101 of 2003. The Civil Applications were also ordered to be heard along with the main Letters Patent Appeals. That is how these two Letters Patent Appeals are also placed before us for final disposal. As far as Special Civil Applications No. 9130 and 9547 of 2002 are concerned, they were placed for hearing before the learned Single Judge on 5-2-2003 and the learned Single Judge [Coram: Ravi R. Tripathi, J.] has thought it fit to place the said two matters before the Division Bench for hearing as the Division Bench was seized with the Letters Patent Appeals. That is how these two Special Civil Applications are also placed before us for final disposal.
2. As far as the Letters Patent Appeals No. 1202 and 1203 of 2002 as well as Letters Patent Appeals No. 99, 100 and 101 of 2003 are concerned, the appellants, namely Halvad Nagarpalika and its Chief Officer have challenged the order of the learned Single Judge of this Court passed on 25.1.2001 directing the present appellants to reinstate forthwith the petitioners in their respective petitions, as daily wagers keeping the option open for the present appellants to take necessary steps for retrenchment of the said petitioners who are respondents in the present appeals in accordance with law. It was also recorded by the learned Single Judge that these respondents who were the original-petitioners waived their right to receive monetary benefits for the period commencing from their termination till the date of the judgment of the learned Single Judge.
3. As far as Special Civil Applications No. 9130 of 2002 and 9547 of 2002 are concerned the former is filed by the Nagarpalika and the latter is filed by the daily wagers. The petitioners in S.C.A. No. 9130 of 2002 have prayed for quashing and setting aside of the order dated 10-1-2002 passed by the Presiding Officer, Labour Court, Surendranagar in Reference (LCD) No. 6 of 2001. Petitioners in S.C.A. No. 9547 of 2002 have prayed for directing not to make any change in their service conditions.
4. In all these Letters Patent Appeals, the case of the appellant Nagarpalika is that the respondents were daily wagers who were working as Class III and Class IV workmen under the appellant Nagarpalika and on an apprehension of termination of their service, they had filed the Special Civil Applications before this Court and sought the relief against the Nagarpalika that their services would not be terminated without following due process of law. During the pendency of these petitions before the learned Single Judge, the petitioners were relieved from service and hence they have moved an amendment making a prayer for reinstatement in the service. These petitions were allowed by the learned Single Judge on 25-1-2001 by common judgment and order directing the present appellants to reinstate them forthwith as daily wagers. It is the say of the appellants that the present respondents original-petitioners in their respective petitions were working as daily wagers in the different departments and hence their services were liable to be terminated at any time. It was further stated that the Deputy Director of Nagarpalika and Director of Municipalities who are impleaded as respondents in the present appeals have not sanctioned any additional posts in the appellant Nagarpalika and therefore as and when need was there, the appellant Nagarpalika has appointed the present respondents - original-petitioners as daily wagers. It was further stated that the learned Single Judge has not taken into consideration the vital aspect of the matter that by reinstating and engaging permanently the original-petitioners, in the appellant Nagarpalika, there would be additional financial burden on the Nagarpalika despite the fact that Nagarpalika had no funds to do the welfare activities for the people of Halvad Village. It was further stated that the petitions filed by the original-petitioners were not maintainable as the petitioners were daily wagers and there was relationship of employee and employer and the remedy was available to the petitioners to approach the Labour Court under the Industrial Disputes Act.
5. The say of the present respondents original-petitioners in these Letters Patent Appeals is that the work of the appellant Nagarpalika was of a permanent nature and the Nagarpalika had not appointed any permanent staff for the said permanent nature of work and the respondent - original-petitioners had been exploited by not granting them permanency in the service and by terminating their services without following due process of law and the same was nothing but unfair labour practice. It was further contended by them that the persons junior to them were retained in the service and hence discriminatory treatment was given to the present respondents - original-petitioners. During the pendency of the said petition before the learned Single Judge, Deputy Director of Nagarpalika has passed an order on 8.9.2000 by virtue of which the original-petitioners were rendered jobless and it was therefore contended that the provisions of Section 25F of the Industrial Disputes Act were not followed before terminating the services of the original-petitioners.
6. After considering the facts and circumstances of the case and the submissions of both the parties, the learned Single Judge has taken the view that the services of the petitioners were brought to an end without following legal procedure and hence the learned Single Judge has passed the order directing the present appellants to reinstate forthwith the original-petitioners as daily wagers.
7. It is this order which is under challenge in the present Letters Patent Appeals before us.
8. In Special Civil Application No. 9130 of 2002, the petitioner is Halvad Nagarpalika and it has challenged the order of the Labour Court passed on 10.1.2002 in Reference (LCD) No. 6 of 2001 whereby the Labour Court has directed that the concerned workers should be made permanent with effect from January 1, 2003 and they should be given all the benefits as permanent employees and even with respect to the persons for whom there was no Reference, should also be given benefits of permanent employees as per seniority as and when there would be vacancies and they should also be given all the benefits. The learned Single Judge has admitted the said petition and granted ad-interim relief till appropriate orders are passed by the Division Bench.
9. In Special Civil Application No. 9547 of 2002, the petitioner, namely Yogesh Lalbhaishankar Thakkar has prayed before this Court a writ of mandamus seeking order or direction to hold that the intention of the respondent Nagarpalika in that petition to retrench the petitioner without following procedure laid down in Section 25N of ID Act was illegal, unjust and contrary to law and violative of Articles 14, 16 and 21 of the Constitution of India. The said petitioner has also prayed for the direction not to make any change in service conditions except in accordance with law. The learned Single Judge has also granted the ad-interim relief in this matter till the appropriate order is passed by the Division Bench.
10. Heard Mr. DD Vyas, the learned Senior Advocate appearing for the appellants in all these Letters Patent Appeals as well as for the petitioner in Special Civil Application No. 9130 of 2002 and for the respondent in Special Civil Application No. 9547 of 2002. Mr. KR Koshti, the learned advocate is appearing on behalf of the respondents - original-petitioners in all these Letters Patent Appeals as well as on behalf of the respondent in Special Civil Application No. 9130 of 2002 and on behalf of the petitioner in Special Civil Application No. 9547 of 2002. Mrs. Manisha Lavkumar, the learned Assistant Government Pleader is appearing in all these Letters Patent Appeals as well as Special Civil Applications on behalf of the Deputy Director of Nagarpalika as well as Director of Municipalities.
11. Mr. D.D. Vyas, learned Senior Advocate appearing for the Nagarpalika in all these matters, submits that the present appellants - original-petitioners were daily wagers and their services were liable to be terminated at any time. Their appointment was only for a temporary period and they have no vested right in the employment. He has further submitted that as and when the work was there, their services were required. The directions given by the learned Single Judge, with regard to their reinstatement as daily wagers is not in accordance with the provisions of law and the said directions are also contrary to the judicial pronouncements on the subject. The original-petitioners' challenge to the termination order passed by the appellant Nagarpalika is also not sustainable in view of the fact that in the case of the daily wagers the provisions contained in Section 25F of the Industrial Disputes Act are not required to be complied with. In this connection, Mr. Vyas has relied on the decision of the Hon'ble Supreme Court, in the case of State of Himachal Pradesh vs. Suresh Kumar Verma and another - AIR 1996 SC 1565, wherein it is held that the appointment on daily wages cannot be a conduit pipe for regular appointments which would be a back-door entry, detrimental to the efficiency of service and would breed seeds of nepotism and corruption. It is equally settled law that even for Class IV employees recruitment according to rules is a precondition.
12. Mr. Vyas has further relied on the decision of the Hon'ble Supreme Court in the case of Himanshu v. State of Bihar & Others - (1997) 4 SCC 391, wherein the main grievance of the petitioners was that termination of the services was in violation of Section 25F of the Industrial Disputes Act, 1947. The Hon'ble Supreme Court has observed that the persons, whose services were terminated, were not appointed to the posts in accordance with the rules but were engaged on the basis of need of work. They were temporary employees working on daily wages and in those circumstances, their disengagement from service could not be construed to be a retrenchment under the Industrial Disputes Act. It was further held by the Hon'ble Supreme Court that the concept of retrenchment therefore cannot be stretched to such an extent as to cover the said employees. While negativing the contention of the petitioners in that case that the termination of their services was arbitrary, the Hon'ble Supreme Curt has held that they were only daily-wage employees and had no right to the posts and hence their disengagement was not arbitrary.
13. On the basis of the above judgments, Mr. Vyas, the learned advocate appearing for the Nagarpalika has strongly contended that the order of the learned Single Judge which is challenged in the Letters Patent Appeal and the order of the Labour Court which is challenged in the Special Civil Application are required to be quashed and set aside as the respective petitioners being daily-wagers cannot be reinstated permanently nor their termination of services can be challenged on the ground that the provisions of Section 25F of the Industrial Disputes Act are not complied with.
14. Mrs. Manisha Lavkumar, the learned AGP appearing for the Deputy Director of Nagarpalika/Director of Municipalities, in all these matters, has submitted that the appellant Nagarpalika had not complied with the direction given by the office of the Collector. She has further submitted that in violation of settled policy of the Government, the Nagarpalika has engaged daily-wagers in excess of the requisite numbers and therefore the Collector has instructed the Nagarpalika to remove forthwith all these excess daily-wagers appointed in violation of the policy of the Government. She has further submitted that the Collector has exercised the power under Section 260 of the Gujarat Municipalities Act, 1963 in accordance with law and any direction or order to continue the excess daily wagers as such would create economic liability on the shoulder of the Government. In support of her submissions, she relied on the decision of the Hon'ble Supreme Court in the case of Ahmedabad Municipal Corporation vs. Virendra Kumar Jayantibhai Patel - AIR 1997 SC 3002 wherein it is held that there is no room for sympathy or equity in the matter of such appointment specially where the recruitment in service is governed b the statutory rules. Once the consideration of equity in the face of statutory rules is accepted then eligible and qualified persons would be sufferers as they would not get any chance to be considered for appointment. The result would be that persons lesser in merit would get preference in the matter of appointment merely on the ground of equity and compassion. It is, therefore, not safe to bend the arms of law only for adjusting equity.
15. Mrs. Manisha Lavkumar has further relied on the decision of the Hon'ble Supreme Court in the case of Municipal Corporation, Bilaspur And Another v. Veer Singh Rajput And Others - (1998) 9 SCC 258, wherein it is held that 'Candidates who are sought to be regularised may be neither sponsored by the employment exchange nor appointed after issuing a proper advertisement calling for applications. 'In short, it may be a back-door entry. A direction to regularise such appointments would only result in encouragement to such unhealthy practices.' While referring to the earlier Judgment of the Hon'ble Supreme Court in the case of Satyanarayan Sharma v. National Mineral Development Corporation Ltd., - (1994) 4 SCC 163, wherein the HOn'ble Supreme Court has declined regularisation in a case where there were no vacancies and work was not available in the department. The Hon'ble Supreme Court has further observed that in the case before it, there was no material indicating that the work was not available. The appointments, however, were irregular and made on political considerations. There were clear Government directions for reduction of establishment expenditure and prohibition on the filling of vacant posts or creating new posts including regularisation of daily-waged employees. The Hon'ble Supreme Court has, therefore, taken the view that the order of High Court regularisation of such employees was not warranted and it was in the teeth of these administrative directions and could not be sustained.
16. On the basis of the aforesaid judgment and the submissions, Mrs. Manisha Lavkumar has urged before us that the order of the learned Single Judge directing the appellant Nagarpalika to reinstate the original-petitioners as daily wagers is not proper and justified and in any case since the said directions are adversely affecting the Government policy of not encouraging the appointment of daily-waged employees beyond their requisite criteria, the said order is required to be quashed and set aside.
17. Mr. KR Koshti, learned advocate appearing for the daily waged employees in all these matters has submitted that the order passed by the learned Single Judge should not be interfered with by this Court while exercising its appellate jurisdiction under Clause 15 of the Letters Patent. He has further submitted that because of the administrative exigencies the daily waged employees were engaged and they have worked continuously for more than 240 days in a year. It was further submitted that without taking the help or assistance of the daily-waged employees, it was not possible for the appellant Nagarpalika to perform its duties under the Gujarat Municipalities Act, 1963. It was further submitted that looking to the area and population of the appellant Nagarpalika, it was absolutely necessary to increase the sanctioned strength of each cadre and since the same was not done since 1961 the appellant Nagarpalika was appointing the daily wage employees. He has further submitted that the order passed by the Deputy Director of Nagarpalika on 18-9-2000 directing the appellant Nagarpalika to terminate the services of the petitioners was absolutely unjust, unlawful and contrary to the provisions of the ID Act as pursuant to the said order the appellant Nagarpalika has terminated the services of the daily-waged employees without following the procedure laid down in Section 25F of the Act. He has further submitted that the authorities cited by the learned advocate appearing for the appellant as well as by the learned AGP appearing for the Deputy Director of Nagarpalika as well as the Director of Municipalities are not relevant nor they were applicable to the facts of the present case and hence all these Letters Patent Appeals filed by the appellant Nagarpalika as well as the Special Civil Application No. 9130 of 2002 are required to be dismissed and the Special Civil Application No. 9547 of 2002 filed by the daily waged employees is required to be allowed with costs.
18. We have dispassionately and in great length heard the learned advocates as well as the learned AGP appearing for the respective parties. We have also gone through the record and proceedings of all these Letters Patent Appeals as well as Special Civil Applications, and we have also considered the authorities relied upon by the respective parties. Having regard to the facts and circumstances of the case and looking to the entire factual profile of the matter in the light of the settled legal position propounded before us, we are of the view that the learned Single Judge is not right in giving directions to the appellant Nagarpalika to reinstate the daily-waged employees in their respective positions giving liberty to the appellant Nagarpalika to retrench them after following the due procedure as laid down under Section 25F of the Industrial Disputes Act. We are also of the view that the Labour Court is not justified in allowing the Reference and directing that the concerned worker should be made permanent with effect from January 1, 2002 and they should be given all the benefits as permanent employees. The Labour Court has exceeded its jurisdiction while giving directions with regard to the persons for whom there was no Reference to the effect that they should also be given benefits of permanent employees as per seniority as and when there would be vacancies and they should also be given all the benefits. It is an admitted position that all these persons were appointed or engaged as daily-wagers without following any legal procedure. It is also an admitted position that their names had not been received from any Employment Exchange or they were not appointed after inviting applications in pursuance of public advertisement. They were appointed only because of the administrative exigencies at the relevant time. When their appointments were made without following due procedure of statutory rules or the recruitment policy, it is immaterial as to whether they have completed the service of 240 days in a year or not. As observed earlier, the Hon'ble Supreme Court has held that the provisions of Section 25F cannot be invoked in the case of daily-waged employees whose appointments are without following the due procedure laid down in statutory rules or recruitment policies. When there is no permanent sanctioned posts, no direction can be given to the authorities to absorb the daily-waged employees by creating new posts. It is the common phenomenon in the case of the Nagarpalika or Municipalities or Government Corporations where such appointments are made on the basis of political considerations, the parties may be changed from time to time and the party in power recruits their own persons initially as daily-waged employees and thereafter by seeking an order of the Court they want to absorb such employees on the permanent establishment. Time and again, such practice is deprecated by the Courts and the Hon'ble Supreme Court has discouraged this practice in so many words in the abovereferred Judgment. The Panchayats, Nagarpalikas, Municipalities and/or Government Corporations as well as Government establishments are facing severe financial crisis only because of overhead which may be required for the time being but to make them permanent would definitely affect adversely the financial substratum of the respective organisation. We are of the view that the Court should not be a party to such illegal or irregular appointments by allowing the persons so appointed at the cost of the public exchequer. This Court is mindful of the fact that by not approving or confirming the appointments of such daily-wagers, it would be very difficult for them to survive and the question of their livelihood would definitely arise and in appropriate cases their interests are required to be protected. Keeping this fact in mind, the Hon'ble Supreme Court has rightly observed in the case of Municipal Corporation, Bhilaspur (Supra) that, if casual workers or daily-waged or daily-rated workers are now being appointed by the appellant Corporation, in fairness to the respondents whose services were terminated on the principle of 'Last-cum-First Go', they should be considered for appointment on daily wages in preference to others by waiving the age bar (if necessary if they are otherwise qualified and eligible for the post).
19. We also conclude this judgment by observing that if the appellant Nagarpalika wants to engage any casual worker or daily-rated worker, the appellant Nagarpalika should consider the cases of this daily-rated employees whose services were terminated by the Nagarpalika, for future appointment as and when the necessity so arises and in that eventuality, the appellant Nagarpalika should also give preference to these persons by waiving the age bar (if necessary) if they are otherwise qualified and eligible for the post.
20. Subject to the aforesaid directions, all these Letters Patent Appeals are allowed. The order passed by the learned Single Judge, which is under challenge in these Letters Patent Appeals, is hereby quashed and set aside. The Special Civil Application No. 9130 of 2002 is also allowed and the order passed by the Labour Court is hereby quashed and set aside. The Special Civil Application No. 9547 of 2002 is dismissed. All these Letters Patent Appeals stand disposed of with no order as to costs.
21. Rule is made absolute in Special Civil Application No. 9130 of 2002. Rule is discharged in Special Civil Application No. 9547 of 2002. In view of the order passed in the main matters, the concerned Civil Applications No. 27 of 2003, 7568 of 2002, 7569 of 2002, 7647 of 2002 and 7567 of 2002 shall stand disposed of.
Further Order:
1. After pronouncement of the Judgment, Mr. Koshti, the learned advocate for respondent workmen, has submitted that in order to avail the remedial measure before the higher forum, the common order and judgment pronounced today in this group of matters is required to be stayed for ten weeks.
2. Mr. Nagesh Sood, learned Assistant Government Pleader, has objected this submission of Mr. Koshti. He submits that it is not a fit and proper case for staying the implementation of the judgment pronounced today.
3. After considering the fact that the respondent-workmen have been working since about two years and since they are desirous of availing further remedy against our judgment, we are of the view that this aspect deserves consideration. Therefore, considering the aforesaid aspects and the overall picture emerging from the record of the present case, we direct that the implementation of the directions, contained in the Judgment pronounced today, shall remain stayed for a period of eights weeks from today.