Shaileshbhai Mohanbhai vs Botad Nagar Palika

S.R. Brahmbhatt, J.—Heard learned advocate Shri Mishra for the Petitioner. Rule. Mrs. Kiran P. Joshi, learned advocate waives service of notice of rule for the Respondent. With the consent of the advocates for the parties, rule is fixed forthwith.

The Petitioner''s second party workman in Reference (IT) No. 84 of 1998 in the Court of Ld. Industrial Tribunal, Bhavnagar, has approached this Court under Article 226 & 227 of the Constitution of India challenging the order in award passed by the Tribunal, rejecting the reference on 27/10/2010.

This Court (Coram: S.R. Brahmbhatt, J) on 10/1/2011 issued notice for final disposal, which was made returnable on 24/1/2011. Accordingly the matter was taken up for final disposal.

It was the case of the workman before the competent forum that he had to raise industrial dispute as despite he being serving the Respondent since years he is being deprived of all the benefits attached to the post of Sweeper (Gutter). The said dispute was referred to the competent court wherein it was marked as Reference (I.T.) No. 84/1998. The terms of the reference could be set out as under:

Whether the workman deserves to be made permanent as Sweeper (Gutter) from the date of his initial appointment, and whether he deserves to be paid all the benefits admissible to the permanent employee of like holding post of drainage cleaner with arrears?

The workman had in fact pressed into service the fatum with regard to mode of employment and set-up of sanctioned post etc. The Respondent contended that the workman was employed on temporary basis and if appointment of a person in permanent nature is to be made then it is to be made strictly in accordance with relevant factors narrated in the reply. The concerned Tribunal after setting out various decisions and elaborate extraction there from came to the conclusion that the reference deserved to be rejected, accordingly rejected it vide order dated 27/10/2010.

Learned advocate Shri Mishra for the Petitioner-workman contended that the Industrial Tribunal has not appreciated the evidence on record and has gone by the general impression with regard to challenge of regularization in the local authorities. In fact the Tribunal ought to have pronounced upon the rival contentions raised by the parties by recording its clear findings. Shri Mishra therefore submitted that this Court may pass appropriate order, remanding the matter to the Tribunal.

Mrs. Kiran Joshi, learned advocate appearing for the Nagarpalika contended that the Nagarpalika is governed by the provisions of The Gujarat Municipalities Act, 1963 and hence procedures which are required to be followed for making recruitment is required to be taken into account when said prayer for regularization is made by concerned workman. However, she could not dispute the fact that the Tribunal did not frame any issue or on that point determined the issue based upon the rival submissions contained in the statement of claim as well as written submissions. She submitted that in case if the Court is inclined to accept the petition and remand the matter, then, the Court may observe that this Court has not opined upon the merits of the claim of the workman nor has the Court opined upon the grounds and points raised by the employer resisting the claim of the workman.

This Court heard learned advocates for the parties and perused the order in award impugned. The Apex Court has observed in case of Harjinder Singh Vs. Punjab State Warehousing Corporation, that the High Court while dealing with the matters arising out of the ID Act has to determine the limits and restrictions so far developed while exercising jurisdiction in the matters preferred under Article 226/227 of the Constitution of India. Viewing from that angle, it can be said that the order in award impugned does not contain specific adjudication of any issue whatsoever as no point for determination has been framed which would reflect the actual lis between the parties. Elaborately extracting the principle of law sometimes results into the real lis being over shadowed so as to render the court and the parties to grapple with the fact as to what is the decision and how their contentions have been dealt with. This being a similar case on hand, this Court without opining upon the rival contentions of the workman as well as the employer is of the view that, the order impugned is required to be quashed and set aside and the matter is to be remanded back to the concerned Tribunal, so that the concerned Tribunal may frame specific issues based upon the statement of claims and written submissions and on that issues framed, record its clear findings after permitting the parties to lead their evidence respectively. Meaning thereby, both the parties to lead their evidence and the matter will start from framing of the issues. The Tribunal shall afford enough opportunities to both the parties for putting forward their case respectively. Accordingly the impugned order in award is quashed. Quashing of the award impugned in the petition may not be construed as pronounced upon legality or validity of the claim of the workman. The Tribunal is absolutely at liberty to come to its own conclusion depending upon the rival submissions. With this observations rule is made absolute. No order as to costs.

Looking to the fact that the reference is th998, it is observed that the Tribunal shall decide the same at the earliest, preferably within four months from the date of receipt of writ of the order. Direct service permitted.