Letters Patent Appeal No. 1785 of 2005 in Special Civil Application No. 290 of 2003 and Civil Application No. 10395 of 2009. Case: Gujarat Mazdoor Panchayat Vs Indian Airlines Ltd.. High Court of Gujarat (India)
| Case Number | Letters Patent Appeal No. 1785 of 2005 in Special Civil Application No. 290 of 2003 and Civil Application No. 10395 of 2009 |
| Counsel | For Appellant: Mukul Sinha, Adv. and For Respondents: Mihir Joshi, Sr. Adv. assisted by Vimal Patel, Adv. |
| Judges | Bhagwati Prasad and Bankim N. Mehta, JJ. |
| Issue | Maharashtra Recognition of Trade Unions and Prevention of Unfair Labor Practices Act, 1971 - Sections 26, 27, 28, 30 and 32; Minimum Wages Act; Industrial Disputes Act, 1947 - Section 2; Constitution of India - Articles 14, 32 and 226 |
| Citation | (2010) 51 GLR 1616 |
| Judgement Date | January 22, 2010 |
| Court | High Court of Gujarat (India) |
Judgment:
Bhagwati Prasad, J.
1. The present Letters Patent Appeal has been filed by the Gujarat Mazdoor Panchayat being aggrieved by the decision of the Single Judge of this Court in Special Civil Application No. 298 of 2003 whereby the learned Single Judge of this Court has set aside the judgment and award dated 26th August, 2002 passed by the Central Industrial Tribunal, Ahmedabad in Reference (I.T.C.) No. 65 of 1998 and Reference (I.C.) No. 125 of 1999, and subsequent order dated 5th March, 2003 in Misc. Civil Application No. 2 of 2002 in Reference No. 65 of 1998 and 125 of 1999 have been quashed and set aside. While making the aforesaid order, the learned Single Judge has observed that the Tribunal, while passing the orders in question, has not appreciated the economic constraints pressed into service by the petitioner before it in ordering the regularisation of the appellant-workmen.
2. The learned Single Judge has observed that the Company being a Government Company, it was under obligation to carry out the instructions and directives issued by the Government of India from time to time. The Government of India had accepted the recommendations of Kelkar Committee, which had observed that there was dire need to accept stringent economic measures that included freezing of new recruitments at various stages if possible. In that view of the matter, the learned Single Judge did not countenance the claim of the workmen as ordered by the Tribunal.
3. The learned Single Judge has further held that regularization cannot be made the mode of appointment at all. The appointments made in violation of the recruitment rules cannot be termed as mere irregularity capable of being cured. Such irregularity was not liable to be cured by ordering regularisation. In this regard, reliance has been placed by the learned Single Judge on the decision of the Hon'ble Supreme Court in the case of National Fertilizers Ltd v. Somvir 2006 (5) SCC 493. The learned Single Judge has also taken note of the law laid down by the Apex Court in the case of Union of India v. Narendra Nath Choudhury reported in 2003 (12) SCC 49 and has observed that the Tribunal was not justified in issuing directions for reviewing its policy of manner of recruitment.
4. In the instant case, though it was a Company, but it was a Company owned by the Government of India, and therefore, it was bound by the directions issued by the Union Government. The learned Single Judge further relied on the law laid down by the Apex Court in the matter of Indian Drugs & Pharmaceutical Ltd v. Workmen reported in 2007 (1) SCC 408 and held that the temporary employee is a general category which has its sub-categories e.g. casual employees, daily-rated employees, ad hoc employees, and it is well settled that temporary employees have no rights to the post. The Courts cannot direct their continuation if they were not regularly employed. Creation of posts and vacancies is in realm of executives. The Supreme Court cannot arrogate itself the powers of executives.
5. The learned Single Judge has further observed that there was a total lack of evidence regarding the mode and way of appointments of the workman concerned and in that view of the matter, the way workmen were recruited was not clearly established before the Tribunal. The learned Single Judge has also observed that the plea of unfair practice also lacks from support of proper evidence before the Tribunal. It has also observed that in view of the law laid down by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka v. Umadevi-(3) reported in AIR 2006 SC 1806: 2006 (4) SCC 1, there was no way that the regularization could be ordered.
6. Assailing the findings of the learned Single Judge, the learned Counsel for the appellant submitted that the law laid down by Umadevi (3) (supra) cannot be made applicable in relation to industrial and Labour Courts and in this regard he has placed reliance upon a case decided by the Hon'ble Supreme Court in the case of Maharashtra State Road Transport Corporation v. Casteribe Rajya Parivahan Karmachari Sanghatana 2009...
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