BHUPENDRA KUMAR CHIMANBHAI KACHIYA PATEL versus DIVISIONAL CONTROLLER GSRTC NADIAD on 7 March 2018

[2018] 3 S.C.R. 567

BHUPENDRA KUMAR CHIMANBHAI KACHIYA PATEL

v.

DIVISIONAL CONTROLLER GSRTC NADIAD

(Civil Appeal No. 2546 of 2018)

MARCH 07, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Industrial Disputes Act, 1947 – s.18 and Explanation to s.25C– Appellants-employees joined the services of respondent-State RoadTransport Corporation as “Badali Kamdars” – Settlement betweenUnion of the workers and Corporation to resolve several issues inrelation to service conditions of the employees – cl.20 of theSettlement, dealt with the placement and absorption of the “BadaliKamdars” in the permanent cadre of conductor and grant of timescale to such workers –Hundreds of “Badali Kamdars” who werefound eligible and fulfilled the conditions in terms of cl.20 of thesettlement were absorbed in the services as permanent employeeson the post of conductor and were accordingly given the time scaleon the expiry of completion of 180 days in the cadre – Disputebetween these employees and the Corporation as to from whichdate the benefit to make them permanent and the benefit of timescale should be granted to such “Badali Kamdars” – IndustrialTribunal answered the reference in favour of the employees – HighCourt set aside the award of Industrial Tribunal –Held: Settlementonce arrived at between the employer and the employees as providedin s.18 is binding on the employer and the employees – It is not indispute that the Corporation and the Union of workers entered intothe settlement – Corporation followed the procedure provided incl.20 while granting the employees their permanent cadre and thetime scale of conductor– There is no basis for the appellants toclaim the aforesaid benefit on their completing 180 days of theservice from the date of their initial appointment as “BadaliKamdars” as against on the expiry of 180 days from the date whenthey were absorbed in the permanent cadre – Appellants neitherchallenged the settlement nor its applicability – Settlement is bindingon both parties in terms of s.18.

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ADismissing the appeals, the Court

HELD: 1.1 Settlement once arrived at between theemployer and the employees as provided in Section 18 of theIndustrial Disputes Act, 1947, is binding on the employer andthe employees. It is not in dispute that, the Corporation and theBUnion of the workers of the Corporation had entered into thesettlement in respect of various issues in relation to their serviceconditions. One such issue was in relation to the absorption ofBadali Kamdars in the permanent cadre of the Corporation.Clause 20 provides the manner in which it was to be given effectto by the parties. [Paras 25, 26] [572-F-H]

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1.2 It is not in dispute that the Corporation followed theprocedure provided in clause 20 while granting the employeestheir permanent cadre and the time scale of conductor. In otherwords, all eligible “Badali Kamdars” were absorbed in the setup and accordingly granted benefit in terms of the procedureDprescribed in clause 20 of the Settlement. [Para 28] [574-A]

1.3 There is no basis for the appellants (employees) to claimthe benefit from the date of their initial appointment as “BadaliKamdar”. Indeed, there is neither any factual foundation nor anylegal foundation to claim such benefit. The appellants neitherEchallenged the settlement nor its applicability. In other words,the legality or/and binding nature of settlement was neverquestioned in these proceedings. In this view of the matter, thesettlement is binding on both parties in terms of Section 18 ofthe Act. The concept of “Badli Kamdar” is statutorily recognizedFunder the Act. Explanation to Section 25C defines the term “BadliKamdar”. [Paras 30, 33 and 34] [574-D-G; 575-A]

1.4 The appellants referred extensively to the evidenceled by the parties to support their submission. The evidencecannot be appreciated in the appeals filed under Article 136 ofGthe Constitution. It is more so when the Single Judge and DivisionBench did not agree with the factual findings of the Tribunal andrightly reversed those findings. It is binding on this Court.[Paras 38 and 39] [575-E-F]

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2546of 2018.

From the Judgment and Order dated 28.06.2016 of the High Courtof Gujarat at Ahmedabad in LPA No. 550 of 2016

WITH

Civil Appeal Nos. 2594-2597, 2556-2592, 2547-2555 of 2018.

Tushar Mehta, ASG, Colin Gonsalves, Sr. Adv., Nikhil Goel,Ms. Naveen Goel, Ashutosh Ghade, Ms. Aditi Gupta, Satya Mitra, Advs.for the appearing parties.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. These appeals are filed against the final judgments and orderspassed by the High Court of Gujarat at Ahmedabad dated 28.06.2016 inL.P.A. No.550/2016, dated 22.08.2017 in L.P.A. Nos.1344-1347/2017,dated 04.07.2017 in L.P.A. Nos.1185/2014, 1199, 1252, 1254-1259, 1261,1264-1278, 1281-1282, 1284, 1286, 1288, 1291-1296, 1298/2014, dated21.06.2016 in L.P.A. Nos.497-500/2016 and dated 04.07.2017 in L.P.A.Nos.1200, 1287, 1289, 1297 and 1299/2014 whereby the Division Benchof the High Court dismissed the appeals filed by the appellants hereinand upheld the orders passed by the Single Judge of the High Court.

3. In order to appreciate the issues involved in these appeals, it isnecessary to set out the facts in detail. The facts and the legal issuesarising in all these appeals are similar in nature except the date of theirinitial appointment and absorption, which vary from case to case in theservice of the respondent.

4. For the sake of convenience, the facts mentioned in ReferenceI.T. No.44/2011 (Annexure- 12) of the paper book of SLP Nos. 28519-28522 of 2017 are mentioned hereinbelow.

5. Prafulbhai Hirabhai Solanki, one of the appellants herein, whosename appears at page 18 of the SLP paper book joined the services ofthe respondent-Gujarat State Road Transport Corporation (hereinafterreferred to as “the Corporation) on 04.06.1999 as “Badali Kamdar” atMangrol Depot of Junagadh Section. He was employed as a daily wager.

6. On 21.12.1989, the Corporation and the Union of the workersentered into a settlement to resolve several issues in relation to the serviceconditions of the employees working in the Corporation.

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7. Clause 20 of the Settlement, which is relevant for the disposalof these appeals, deals with the placement and absorption of the “BadaliKamdar” in the permanent cadre of conductor and grant of time scaleto such workers. It provides a procedure as to how, when and in whatmanner, the services of a “Badali Kamdar” shall be regularized andabsorbed in a particular time scale.

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8. In terms of clause 20 of the settlement dated 21.12.1989, theCorporation considered the case of the appellant when the vacancyoccurred in the permanent cadre on the post of Conductor and accordinglyhe was absorbed as permanent employee in the services of theCCorporation on 27.08.2008 as Conductor. He was given the time scalewith effect from 27.08.2008 with consequential benefits.

9. Like the appellant, there were hundreds of “Badali Kamdars”who were working in the set up of Corporation at all relevant time. Thecases of these “Badali Kamdars” were also considered with a view toDfind out as to whether they fulfill the conditions set out in clause 20 formaking them permanent in the set up of the Corporation as and whenpermanent vacancy arose in the cadre of the Conductor. Those whowere found eligible and fulfilled the conditions were absorbed in theservices as permanent employees on the post of conductor and wereaccordingly given the time scale on the expiry of completion of 180 daysEin the cadre. They were accordingly made permanent in terms of theprocedure prescribed in clause 20 of the Settlement.

10. This led to dispute between these employees and theCorporation. The dispute was essentially as to from which date thisbenefit, namely, to make them permanent and the benefit of time scaleFshould be granted to such “Badali Kamdars”.

11. According to the employee (appellant), he was entitled toclaim this benefit on his completing 180 days of the service from thedate of his initial joining of the service as “Badali Kamdar”, i.e.,G04.06.1999 and not from the date of absorption whereas according tothe Corporation, the appellant and all employees alike the appellant wererightly granted the benefit on the expiry of 180 days from the date whenthey were absorbed in the permanent cadre, i.e., as in thecase of the appellant from 27.08.2008 as provided in clause 20of the Settlement.

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12. This issue was accordingly referred to the Industrial Tribunal,Rajkot at the instance of the appellant under Section 10 of the IndustrialDispute Act (hereinafter referred to as “the Act”). Several suchreferences were made to the Industrial Tribunal at the instance of similarlysituated employees.

13. By award dated 08.08.2013 (Annexure-P-12), the IndustrialTribunal answered the reference in favour of the employees andaccordingly granted them benefit, which the employees had claimed. Inother words, the Industrial Tribunal held that the appellant (employee) isentitled to claim the permanent absorption in his service in the time scaleas Conductor with effect from the completion of his 180 days of serviceperiod from the date of his initial joining, i.e., 04.06.1999. The Corporationwas accordingly asked to pay all consequential benefits from such date.In substance, the Industrial Tribunal rejected the stand taken by theCorporation.

14. The Corporation felt aggrieved and filed writ petition in theHigh Court of Gujarat at Ahmadabad. The Single Judge of the HighCourt, by order dated 18.09.2014, allowed the writ petition and set asidethe award of the Industrial Tribunal. The Single Judge accepted thestand taken by the Corporation and accordingly upheld their action ingranting the benefit to the employee (appellant) from 27.08.2008 asprovided in clause 20 of the Settlement.

15. The appellants (employees) felt aggrieved and filed intra courtappeals before the Division Bench. By impugned judgments and orders,the Division Bench dismissed the appeals filed by the employees andupheld the orders of the Single Judge, which has given rise to filing ofthese appeals by way of special leave by the employees in this Court.

16. Heard Mr. Colin Gonsalves, learned senior counsel for theappellants and Mr. Tushar Mehta, learned Additional Solicitor Generalfor the respondent.

17. Mr. Colin Gonsalves learned senior counsel appearing for theappellants(employees) while assailing the legality and correctness of theimpugned orders contended that the reasoning and the conclusion arrivedat by the Industrial Tribunal was just, proper and legal and hence it shouldnot have been interfered with by the High Court (Single Judge and DivisionBench).

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18. Learned counsel urged that the findings of the Industrial Tribunalwere based on proper appreciation of evidence adduced by the partiesand hence such findings could not be faulted with. Learned counsel tookus through the evidence to show that the findings recorded by the IndustrialTribunal deserve to be upheld as against the findings of Single Judge andDivision Bench.

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19. Learned counsel placed reliance on some judicial orders passedin previous litigation between the Corporation and its employees which,according to him, decided the issue in question in favour of the employees.

20. Learned senior counsel for the appellants submitted that inCthe light of these judicial orders, the similar order should be passed inthese appeals also.

21. In reply, Mr. Tushar Mehta, learned Additional Solicitor General,appearing for the respondent supported the impugned judgment andcontended that the concurrent findings of the High Court (Single JudgeDand Division Bench) deserve to be upheld.

22. Placing reliance on clause 20 of the settlement, learned ASGcontended that the action taken by the Corporation is in conformity withthe requirements of Clause 20 and hence deserves to be upheld.

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23. Having heard the learned counsel for the parties and on perusalof the record of the case, we find no merit in the appeals.

24. As rightly argued by the learned ASG, the issue in questionhas to be decided in the light of clause 20 of the Settlement.

25. One cannot dispute the legal proposition that the settlementonce arrived at between the employer and the employees as provided inSection 18 of the Act, it is binding on the employer and the employees.

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26. It is not in dispute that on 21.12.1989, the Corporation and theUnion of the workers of the Corporation has entered into the settlementGin respect of various issues in relation to their service conditions. Onesuch issue was in relation to the absorption of Badali Kamdars in thepermanent cadre of the Corporation. Clause 20 provides the manner inwhich it is to be given effect to by the parties.

27. Clause 20 of the Settlement dated 21.12.1989 reads as under:

“In reference to the representation made to delete theprovision of the section 29 of the settlement dated 23/11/1984 and implement the provision of section 43 of thesettlement dated 22/10/1964 it is determined that afterpreparing the Division wise list of the selected employeesthey will be given temporary/daily wager appointmentagainst the permanent posts in the division/unit, and if suchappointed temporary/daily wager has worked continuouslyfor 180 days including the weekly holiday/paid holiday andauthorize leave then they will be taken on time scale. Thisprovision will not be applicable to the employees on workcharge working in the Civil Engineering Department andsuch appointed temporary/daily wager has workedcontinuously for 180 days including the weekly holiday/paidholiday and authorized leave then they will be taken in timescale and they will be entitled to all benefits available totime scale employees. The absence due to authorized leavefor the above purpose will not be considered break andthese days will not be considered for 180 days service.

As per permission of S.T.T. 1981, if the recruitment of thestaff has been done as a temporary or badli kamdar thenafter completion of their 180 days of service on thepermitted vacancies they would be taken on time scaleserially.

Such workers will be granted all benefits as per the Rulesalong with the notional increment with effect from 1.8.87and there will not be any recoveries made from them northere will be any arrears paid.

The workmen taken into service are not required duringthe monsoon, therefore they can be retrenched as per therequirement and after the monsoon if their services arerequired then again as per seniority they will be taken intime scale. If there is any permanent post vacant then theappointment of the administrative staff will be made on timescale.”

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A28. It is not in dispute that the Corporation has followed theprocedure provided in clause 20 while granting the employees theirpermanent cadre and the time scale of conductor. In other words, alleligible “Badali Kamdars” were absorbed in the set up and accordinglygranted benefit in terms of the procedure prescribed in clause 20 of theSettlement.B

29. It is also clear from the undisputed facts that firstly, the appellant(employee concerned) was appointed as “Badali Kamdar” in the set upof Corporation on 04.06.1999; Secondly, clear vacancy arose in thepermanent cadre of Conductor in and around 27.08.2008; Thirdly, as perthe seniority list of the “Badali Kamdars”, the appellant was accordinglyabsorbed in the permanent cadre at the time scale with effect from27.08.2008 on completion of 180 days of his service in the cadre and, asa consequence thereof, was given all the benefits of the said post fromthe said date; and lastly, since then the appellant and all employees alikehim are continuing on their respective post.

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30. In our considered opinion, in the light of what we have heldabove, there is no basis for the appellants (employees) to claim theaforesaid benefit from the date of their initial appointment as “BadaliKamdar”. Indeed, there is neither any factual foundation nor any legalfoundation to claim such benefit.

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31. Learned counsel for the appellants was also not able to showany document, such as any term/condition in the appointment letter or inthe settlement or any Rule/Regulation framed by the Corporationrecognizing such right in appellants’ favour to enable them to claim suchbenefit from the date of their initial appointment.

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32. Clause 20 of the Settlement is the only clause which recognizesthe appellant’s right for consideration of his case on individual basis andto grant him the benefit subject to his fulfilling conditions specified thereinwhich, in appellant’s case, were found satisfied and accordingly, he wasgranted the benefit along with each such employees.

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33. It is pertinent to mention that the appellants neither challengedthe settlement nor its applicability. In other words, the legality or/andbinding nature of settlement dated 21.12.1989 was never questioned inthese proceedings. In this view of the matter, the settlement is bindingon both parties in terms of Section 18 of the Act.

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34. The concept of “Badli Kamdar” is statutorily recognized underthe Act. Explanation to Section 25C defines the term “Badli Kamdar”.The appellant never questioned his status as “Badli Kamdar”. Indeed, itis due to the status of “Badli Kamdar”, which he enjoyed for few yearsin the service of Corporation, he got the benefit of absorption in permanentcadre.

35. So far as the reliance placed by the learned counsel for theappellants on some previous judicial orders are concerned, in our view,they are of no help to the appellants inasmuch as those orders turned onthe facts involved in the case and secondly, we find that in those cases,parties did not even lead any evidence (see Para-3 of the order dated27.01.2000 passed in SCA No. 393/2000 page 45 of Paper Book), andlastly, one case was based on clause 49 of 1956 settlement and clause19 of 1985 settlement.

36. In substance, in our view, those orders did not directly dealwith the issues, which are the subject matter of these appeals and, evenif, they deal with the issue in question, as urged by the learned counsel,then also, in our view, those cases turned on their own facts.

37. In this view of the matter, those orders were rightly not reliedon by the High Court and we find no good ground to take different viewand accordingly reject this submission.

38. Mr. Colin Gondsalves, learned senior counsel for the appellantsthen referred extensively to the evidence led by the parties to supporthis submission.

39. We are afraid we cannot appreciate the evidence in the appealsfiled under Article 136 of the Constitution. It is more so when the SingleJudge and Division Bench did not agree with the factual findings of theTribunal and rightly reversed those findings. It is binding on this Court.

40. In the light of the foregoing discussion, we find no merit in theappeals which thus fail and are accordingly dismissed.

Divya Pandey

Appeals dismissed.

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