भारत सरकार / Government of India
सरकारी राजपत्र
OFFICIAL GAZETTE
संघ प्रदेश दादरा एवं नगर हवेली तथा दमण एवं दीव प्रशासन
U.T. ADMINISTRATION OF DADRA AND NAGAR HAVELI AND
DAMAN AND DIU
श्रेणी - २
SERIES - II
प्राधिकरण द्वारा प्रकाशित / PUBLISHED BY AUHTORITY
Daman 31st December, 2021 10 Pausa, 1943 (Saka) No. : 45
UT Administration of Dadra & Nagar Haveli and Daman & Diu,
Department of Labour & Employment
Daman
No. LE/LI/DMM/Fact-4(7)/2010/2021/611 Dated : 23/12/2021
Subject : Publication of Award in IDR in the Official Gazette.
The Award dated 01.12.2021 issued by the Hon'ble Presiding Officer, Industrial Tribunal, Daman in IDR No. 19/2012 in the matter of – (i) The Executive Engineer, PWD, Daman (ii) Executive Engineer, Electricity Department, Daman V/s Employees of Public Work Department and Electricity Department is hereby published in the Official Gazette of this U.T. Administration of Dadra & Nagar Haveli and Daman & Diu for general information.
Sd/– (J. B. Chauhan) Labour Inspector DamanSERIES – II No. 45 THE GAZETTE OF DNH & DD Page 2 Ref. (IDA) No. 19 of 2012(A) UTDD010005062012 Filed on : 20.06.2012 Decided on : 01.12.2021 Period : Y M D 09 05 16
Exhibit No : 41
BEFORE THE INDUSTRIAL TRIBUNAL, DAMAN
(Presided over by P.K.Sharma)
Reference (IDA) No. 19 of 2012
Party No. 1
(i). The Executive Engineer of Public Work Department.
(ii). The Executive Engineer of Executive Engineer Electricity Department.
AND
Party No. 2
Employees of Public Work Department and Electricity Department.
THE MATTER OF REFERENCE UNDER THE INDUSTRIAL DISPUTES ACT, 1947
Appearances : Shri S. S. Bhatt Adv., for Party No. 1.
Shri P. C. Chaudhary Adv., for Party No. 2.
A W A R D
(Passed on 01.12.2021)
1) This reference is received from Joint Secretary (Lab & Emp.), Daman vide his order dated 15/05/2012.
2) Brief facts of the case are as under :
The employees (472 employees working in different categories) of Party No.1 raised dispute regarding permanency and regularization. The dispute was referred for conciliation. The conciliation failed. The report of conciliation officer shows that the Party No.1 was not interested in settling the dispute and had stated before the conciliation officer that the services of the employees will be regularized as per rules and regulations of Government of India on the basis of vacancy and seniority.
Thereafter this reference is made.
3) It is the case of Party No.2 (Employees) that they are employed by the Executive Engineer, Department of Electricity and P.W.D., Administration of Daman and Diu. The employees have rendered service from 2 years to 48 years but they are not made permanent and are not being paid wages at par with permanent workmen. The opponent ought to have paid wages on the principle of "Equal Pay For Equal Work". It is further contended that, though the employees are working sinceSERIES – II No. 45 THE GAZETTE OF DNH & DD Page 3 Ref. (IDA) No. 19 of 2012(A) long, they are engaged as daily wagers, badlis and casual workers in order to deprive them the status and privilege of permanent workmen. As such, the Party No.1 is engaged in Unfair Labour Practice under Item No.10 of 5th Schedule of Industrial Dispute Act.
4) The employees further contend that they are getting wages of Rs.6,000/- to Rs.7,500/- per month whereas permanent workmen are getting salary of about Rs.14,000/- per month or more. Thus, the employees contend that though they are discharging same nature of duties as those of permanent workmen, they are discriminated. They are working as Pump Operator, Laborer, Plumber, Car- Painter, Electrician, Mistries, Wireman, Drivers, Fitters, Cooks, Helpers, Sweepers, Cleaners, Majdurs etc. It is contended that many posts are lying vacant in the establishment of Party No.1 still the workmen are not made permanent. They have rendered continuous service for more than 240 days and hence they are entitled for permanency and regularization. The employees have further contended that they have sought information regarding Recruitment Rules of Party No.1. However the Party No.1 has communicated that there are no Rule and Regulation regarding Recruitment. Hence the employees contend that their recruitment was following due process of law and is made by competent authority.
5) The employees contend that if it is presumed that no enough number of posts are available for regularization of the employees then this Tribunal can direct the Party No.1 to create posts. They have further contended that, once it is proved that the employees are working for the years together, then the Party No.1 ought to have made representation to the Government for creation of posts. However it has not made any correspondence for creation of posts and hence the Party No.1 cannot take the advantage of its own wrong and cannot deny the permanency and regularization to the employees.
6) On these grounds the employees have prayed for declaration that the Party No.1 is engaged in Unfair Labour Practice under section 2(RA) of the I.D. Act read with Item No.10 of 5th Schedule to the Act. The employees have also sought direction to the party No.1 to make the employees (Whose name are mentioned in Annexure-A of the statement of claim) permanent after completion of 240 days or after completion of 1 year, as the case may be, and to pay all the benefits of permanency to them from the date of making them permanent.
7) The Party No.1, though allowed to adduce evidence by my predecessor, has not filed reply. At the time of argument, I have invited the attention of Government Pleader Shri. G. G. Purohit to the fact that there is no reply of Party No.1. However he stated that the case may be continued as it is. As such, it is a poorly fought case by the Party No.1.
8) Following points arise for my determination, to which, my findings are as follows for the reasons next following :
| Sr. No. | Point | Findings |
| 1. | Whether the Second Party is entitled to be made permanent? | No. Only one employee is entitled. |
R E A S O N S
As to Point No.1
9) The Party No.2 has examined 3 employees namely Amitkumar Oza at Exh.20, Chimanbhai Patel at Exh.21 and Haresh Patel at Exh.22. Their affidavits of chief-examination and cross- examination is literally the same. They have deposed that they are getting wages at the rate ofSERIES – II No. 45 THE GAZETTE OF DNH & DD Page 4 Ref. (IDA) No. 19 of 2012(A) Rs.293/- per day. The employees have rendered services from 5 years to 40 years. The permanent employees are receiving salary as per 7th Pay commission. There is no distinguishing feature in the work carried out by them and the permanent employees of the Party No.1. They further deposed that concerned workman whose names are mentioned at Annexure-A attached with statement of claims are working on different posts like Labourers, Carpenters, Electrician, Drivers, Sweepers, Cleaners etc. It is also deposed that there are vacant posts lying in the establishment. There are also perennial nature work available in the Department. There is requirement of so many posts considering the population increase in today's scenario in the Daman area. Admittedly, all the concerned workmen are working throughout month for all days. All workmen are also acquiring the qualifications for the said posts on which they are working. All these employees have been appointed by the competent authority after following due process of recruitment. All the employees, admittedly, have satisfied the definition of continuity of service as contemplated under provisions of the Industrial Disputes Act. However, only with a view to deprive benefits of permanency, no positive steps have been taken by the opponent-Department to regularize services of the concerned-workmen.
10) They have further deposed that if there are no vacant posts then the Party No.1 should make arrangement through the appropriate Government for creation of posts. However the Party No.1 is not doing that exercise. They contend that this Tribunal has inherent power to direct the Party No. 1 to grant regularization along with Equal Pay For Equal Work to the employees. They further deposed that the Party No.1 has not disputed that the employees have completed 240 days of continuous service which shows that perennial work is available with the Party No.1 and in such situation, the case of applicants for regularization along with receiving Equal Pay for Equal Work is justified.
11) In cross-examination for the Party No.1, all these witnesses have admitted that appointment order was not issued to them. They denied that beside Public Holidays, they are being given break twice a month. A suggestion is admitted by them that the employees who are made permanent are paid salary as per 6th and 7th pay commission and as they are temporary workers, they are not getting salary as per 6th and 7th pay commission. They have denied their knowledge that there were permanent posts of the workers on which they were working.
12) The Party No.l/Employer has examined its in-charge Executive Engineer namely Pankaj Patel. However I have already stated that the Party No.1 has not filed reply and the Government Pleader has not shown any interest in getting the defect supplied. It is cardinal principle of Law of Evidence that when there is no pleading, there cannot be any proof. The Party No.1, in absence of its pleadings, should not have been allowed to adduce the evidence putting forth its case. I do not intend to carry that mistake further by considering the evidence adduced by the Party No.1 without pleading. Hence I am keeping the evidence of Party No.1 out of consideration.
13) Heard Advocate for Second Party/Employees. He has also filed written notes of argument Exh.31 and Exh.34. The Advocate for the First Party/Employer has filed written notes of argument Exh.33. He has not advanced oral argument.
14) Advocate for the Second Party/Employees has argued that the witness of the First Party has admitted that each employee has completed 240 days of continuous service. He has placed his reliance on scheme for grant of temporary status and regularization of casual labourers adopted by Ministry of Personnel, Public Grievances, Government of India which came into effect 01/09/1993.
He also relied on a letter dated 10/05/2016 issued by the Ministry of Finance, Government of India for regularization of the casual labourers who are not covered by the scheme of 01/09/1993. In this letter, it is mentioned that Hon'ble Supreme Court's Judgment dated 10/04/2006 in Secretary, State of Karnataka and Ors. V/s. Umadevi states that the employees who were engaged against sanctioned posts may be given temporary status andSERIES – II No. 45 THE GAZETTE OF DNH & DD Page 5 Ref. (IDA) No. 19 of 2012(A) subsequently they may be regularized, subject to fulfillment of conditions laid down in the scheme of 01/09/1993. The letter directed that cut-off date should be the date of judgment in Umadevi case for considering the cases of casual labourers who are not covered under the scheme of 01/09/1993.
15) The Advocate for the employees has further argued that the Industrial Court can grant regularization. He argued that the witness of the First Party/Employer has deposed that he is empowered to appoint daily wagers. Hence, the recruitment may be irregular but not illegal. He further argued that recruitment rules were sought from the First Party under the Right to Information Act. However the First Party has informed that there are no recruitment rules for Nominal Muster Role (NMR) employees.
16) In the written notes of argument, it is argued that it is not the case of the First Party that the employees are appointed as a back door entry or their appointments are illegal. Though they are working since so many years, they are not granted the benefits of regularization. As such, the First Party has adopted Unfair Labour Practice as specified in Schedule-V (clause 10) of the Industrial Dispute Act. It is argued that at present, the strength of permanent employees of the First Party is 40 to 50 employees whereas the daily wagers and temporary employees are about 300 and this fact suggests that there is permanent work available. It is contended that joining, designation and salaries of the employees mentioned in Annexure-A is admitted by the First Party/Employer. The witness of the First Party has also admitted that the department requires more than 240 daily wagers. Thus, it is contended by the Second Party that the cross-examination of the witness of the First Party reveals that there is permanent work available with the First Party.
17) The Advocate for the Second Party has relied on the decision in MSRTC V/s. Casteribe Rajya P. Karmachari Sanghtana, 2009-III CLR 262. In this case, it was held that the observations in Umadevi's case, 2006-II CLR 261 SC cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under section 30 of MRTU & PULP Act, once Unfair Labour Practice on the part of employer under Item-6 of Schedule-4 is established. This was with the reference to the question of non-observance of recruitment rules as an obstacle in the way of regularization.
18) The Advocate for the employees has also relied on the decision in Durgapur Casual Workers' Union V/s. Food Corporation of India, 2015(4)LLN563(SC). In this case there was no plea of the employer that initial appointments of workmen were in violation of Article-14 and 16 of Constitution of India. The Hon'ble Supreme Court held that it was not open to the Court, particularly in absence of any such plea taken by corporation before Tribunal, to come to a finding of fact that initial appointments of workmen were in violation of Article-14 and 16 of Constitution of India.
19) The Advocate for the Second Party has also relied on the decision in Umrala Gram Panchayat V/s. Secretary, Municipal Employees Union, 2015(2)LLN 313 SC to substantiate the contention that the Court has power to direct creation of posts.
20) On the other hand, the Advocate for the First Party has submitted in the written notes of argument Exh.33 that Muster Roll Staff can be employed on jobs of purely casual labour and for short duration and they have to be engaged only for seasonal works or for original works done by the department and to the barest minimum wage as notified by the Central Government from time to time.
Therefore, the present employees are not regular Government Employees but appointed on day-to-day basis and as such, no illegal act is committed by the First Party. It is argued that the witnesses of the Second Party have admitted that they were appointed as Muster Roll Staff. It is argued that the department has completed legal procedure for appointment of workers and has taken care that no prejudice would be caused to any permanent or temporary worker.
SERIES – II No. 45 THE GAZETTE OF DNH & DD Page 6 Ref. (IDA) No. 19 of 2012(A)21) Annexure-A contains the names of employees who have raised the demand of conferring permanency. They were in all 472 employees stated to be working in different posts. The witnesses of the Second Party have admitted that they were provided employment as per the C.P.W.D. Manual as Muster Roll Staff. The First Party has produced a list showing the number of Muster Roll Staff as on 01/11/2016 which shows that now there are 261 Muster Roll Staff. A certified copy of C.P.W.D. Manual is also filed which lays down that Muster Roll Staff can be employed on job on purely casual nature and for a very short duration. It should be engaged only for seasonal works or original works done departmentally and to the barest minimum on a wage notified by the Central Government from time to time. They are not regular Government servants and are in the nature of day-to-day employees.
22) As regards the scheme i.e. Casual Labourers (Grant of Temporary Status and Regularization) scheme of Government Of India, 1993, (filed below the list Exh.17.) the benefit of which is sought to be taken by the Advocate for the Second Party, this scheme came into force 01/09/1993. Clause-4(1) of that scheme recites that the temporary status would be conferred on all casual labourers who are in employment on the date of issue of the O.M. and who have rendered a continuous service of at least one year, which means that they must have been engaged for the period of at least 240 days.
Document No.2 below the list Exh.17 is O.M. dated 06/06/2002 which recites that for the benefit of that scheme, the labourer should have been in the employment on 01/09/1993 and it was not an ongoing scheme. Exh.29 is the seniority list of Nominal Muster Roll employees. All those appointments are after the cut-off date of the regularization scheme of 1993. As it was only one time scheme, Second Party is not entitled for its benefit.
23) The judgment of the Hon'ble Supreme Court in MSRTC and another V/s. Casteribe Rajya P. Casteribe Karmachari Sanghatana (SUPRA) lays down when benefit of permanency can be conferred and when benefit of permanency cannot be conferred. In this judgment, the applicability of judgment in Umadevi's case was also discussed. The Hon'ble Supreme Court held that in Umadevi's case, the powers of Hon'ble Supreme Courts and the Hon'ble High Courts were discussed in which it was held that if the initial appointment is not by following the due procedure, the permanency cannot be conferred. In MSRTC and another V/s. Casteribe Rajya P. Casteribe Karmachari Sanghatana (Supra) the Hon'ble Supreme Court held that the judgment in Umadevi does not denude the powers of Industrial Courts and Labour Courts of their statutory power under section 30 r/w section 32 of MRTU & PULP Act to order permanency of the workers who have been victim of Unfair Labour Practice on the part of the employer under item-6 of Schedule-IV when the posts on which they have been working exist.
24) It may be that the daily wagers and casuals might be working since years together. However for conferring permanency, an exception is carved out by the Hon'ble Supreme Court in MSRTC and another V/s. Casteribe Rajya P.Casteribe Karmachari Saghatana that there must be sanctioned vacant posts. In paragraph 31 of the judgment, the Hon'ble Supreme Court has observed,
"Thus, there is no doubt that creation of posts is not within the domain of judicial functions
which obviously pertains to the executive. It is also true that the status of permanency cannot be
granted by the Courts where no such posts exist and that, executive functions and powers with regard
to the creation of posts cannot be arrogated by the courts."
25) At bar, the Advocate for the Second Party has submitted that sanctioned posts in the establishment of first party are only 30. First Party has submitted a chart showing sanctioned permanent posts. It reveals that there are 30 sanctioned posts (inclusive of all categories). Out of which, at present, 12 posts are vacant. I have already mentioned that originally there were 472 employees who claimed permanency.
SERIES – II No. 45 THE GAZETTE OF DNH & DD Page 7 Ref. (IDA) No. 19 of 2012(A)26) The Advocate for the Second Party has submitted that the Court has power to create posts. To substantiate this contention, he has relied on Umrala Gram Panchayat V/s. Secretary, Municipal Employees Union (Supra). I have thoroughly gone through that judgment of Hon'ble Supreme Court. This related to permanency of employees of Gram Panchayat as Safai Kamgars. In para 11 of that judgment, it is observed that there was no restriction for recruitment of workmen in Panchayat's setup as there was evidence to show that by making a proposal, the District Panchayat had increased the work force in the establishment of the Gram Panchayat. Hence, the contention of the Gram Panchayat that there was only limited number of permanent vacancies was held not tenable in law.
Besides that, the Court also held that the financial position of the Panchayat was not so unsound and there would be no difficulty for Panchayat to bear extra costs for the payment of wages and salaries to the concerned workmen if they are made permanent. Those observations have come in view of the fact that there was no restriction for recruitment of the workmen in the Panchayat setup and the District Panchayat had increased the workforce of Gram Panchayat. The dispute in the case in hand pertains to the public works department where there is the need of sanctioning of the posts by the executive/concern department. Thus, so far as the present case is concerned, the ratio laid down in MSRTC and another V/s. Casteribe Rajya P. Casteribe Karmachari Sanghatana would still be applicable and the conferment of permanency would be subject to the availability of sanctioned posts.
27) The First Party has filed a consolidated chart of the sanctioned posts and vacant posts of (i) work charged (permanent) (ii) work charged (temporary), (iii) monthly one day break staff and NMR workers as on 01/11/2016. It reveals that the monthly one day break staff and Nominal Muster Roll workers are on the post of "Belder". There is only one sanctioned permanent post of "Belder". It is to be noted that there are other posts also like supervisor, work mistry, mali, driver etc. However, for permanency, it is to be granted in the same posts which is being held by the daily wager/casual. As stated earlier, there is only one post of "Belder". Thus in my opinion, only one employee would be entitled to be conferred permanency on the post of "Beldar". For want of sanctioned posts, other employees cannot be granted permanency. Hence I answer this issue accordingly.
28) The Advocate for the Second Party has also argued that the Second Party/Employees are entitled for equal pay for equal work. I have held that the employees, except one, are not entitled for conferment of permanency for want of sanctioned posts. It is to be noted that the Court cannot travel beyond the question referred to it. In this case, the order of reference passed by Joint Secretary (Lab.
& Emp.), Daman recites that the question of regularization and permanency of service (falling in item No.7 of Schedule-III) of the Industrial Dispute Act is referred for the decision of this Court. The question of "Equal Pay for Equal Work" is not referred for decision of this Court. That dispute falls in item No.1 of the Third Schedule to the Act. Further, in the statement of claim also, the prayer is only of permanency and benefits arising therefrom. Be that as it may, as that dispute is not referred for decision of this Court, the Court cannot enquire into the question whether the works done by the employees is equivalent with the regular employees in time and quality.
29) I have held that, as only one post of "Beldar" is lying vacant, only one of the applicant would be entitled for conferment of permanency. In my opinion, the same should be given to him from the date of filing of reference. The seniority list is of 2016 and at present, the Court is at a loss to know which employee is the seniormost. As such, it would be befitting the situation to direct the First Party to confer permanency on the senior most of the employees at present. Hence the order.
SERIES – II No. 45 THE GAZETTE OF DNH & DD Page 8 Ref. (IDA) No. 19 of 2012(A)A W A R D
Reference is answered as follows.
1) The First Party shall confer benefit of permanency on one vacant post of "Beldar" to the senior most employee amongst Second Party from the date filing of the reference and give monitory benefits to him since that date.
2) The other employees are not entitled to be conferred permanency and regularization.
3) The copy of award be sent to the Joint Secretary (Lab & Emp.), Daman for publication.
Place Date
: :
Daman 01.12.2021
Sd/– [ P. K. Sharma] Industrial Tribunal, Daman.
***
SERIES – II No. 45 THE GAZETTE OF DNH & DD Page 9Administration of
Dadra and Nagar Haveli, U.T,
Department of Land Acquisition,
Silvassa.
No. LAQ/Horizontal Curve/Road/PWD-II/31/2020/114/2021/Part-II/438/REV(S)/2021 Date: 23/12/2021
N O T I C E
WHEREAS, vide Preliminary Notification No. LAQ/Horizontal Curve/Road/PWD- II/31/2020/332/2020 dated 10.12.2020, it was Notified under section 11 of the Right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, that the land described in the schedule hereto (thereafter referred to as the said land/lands) were needed or likely to be needed for the public purpose, namely for the purpose of Improvement of Horizontal Curve on Silvassa-Naroli road between Ch. 7/8 to 8/0 near village Dhapsa;
AND WHEREAS, a report was submitted to the Appropriate Government i.e. Hon'ble Administrator, Dadra & Nagar Haveli and Daman & Diu to proceed with acquisition process and the same has been approved by the Appropriate Government i.e. Administrator of Daman & Diu and Dadra & Nagar Haveli;
AND WHEREAS, vide Declaration No. LAQ/Horizontal Curve/Road/PWD-II/31/2020/209 dated 01.06.2021, it was declared under the provision of Section 19 of the Land Acquisition and Rehabilitation Act that the said lands are required for the public purpose, and namely for the purpose of Improvement of Horizontal Curve on Silvassa-Naroli road between Ch. 7/8 to 8/0 near village Dhapsa;
AND WHEREAS, in connection with acquisition of land admeasuring 1135 sq.mtrs. for Improvement of Horizontal Curve on Silvassa-Naroli road between Ch. 7/8 to 8/0 near village Dhapsa, the Administration of Dadra and Nagar Haveli intends to take possession of land, the particulars of which are given in the declaration u/s 19(1) of the Right to Fair compensation & Transparency in land Acquisition Rehabilitation and Resettlement (RFCTLARR) Act, 2013;
AND WHEREAS, under section 21 of the RFCTLARR Act, 2013, the Government intends to take possession of the land in 30 days from the date of issue of this Notice, and claims to compensations and rehabilitation and resettlement for all interests in the land, has to be submitted to the collector for disposal within 30 days from the date of issue of this Notice;
The details compensation on the land acquisition as per the Annexure- I is enclosed herewith AND WHEREAS, under sub section (1) & (2) of Section 22 of the said Act, the Collector may also require any such person to make or deliver to him a statement containing the name of every other person possessing any interest in the land or any part thereof as co-proprietor, mortgage, tenant or otherwise, and of the nature of such interest, and of the rents and profits, if any received or receivable on account thereof for three years next preceding the date of statement, every personSERIES – II No. 45 THE GAZETTE OF DNH & DD Page 10 required to make or deliver a statement under this section shall be deemed to be legally bound to do so within the meaning of section 175 and 176 of the Indian Penal Code (45 of 1860);
NOW THEREFORE, to facilitate causation of the above requirements, public notice is hereby served under section 21 of the RFCTLARR Act, 2013 that all persons having interest in the said land to appear personally or by agent or advocate before the collector, Dadra and Nagar Haveli on 21/01/2022 and to state in writing and signed by the party of his agent, the following:
a) The nature of their respective interest in their land;
b) The amount and particulars of their claims to compensation for such interest;
c) Their objection if any to the measurements made and marked on the referred area.
Please take notice that as provided under sub section 22 of the aforesaid Act, every person required to make or deliver a statement under this section shall be deemed to be legally bound to do so within the meaning of section 175 and 178 of the Indian Penal Code (45 of 1860).
Sd/-
(Dr. Rakesh Minhas) Collector Dadra and Nagar Haveli SERIES – II No. 45 THE GAZETTE OF DNH & DD Page 11