भारत सरकार / Government of India

Daman 31^st 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

Daman

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 प्रकाधित / PUBLISHED BY AUHTORITY

SERIES – 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)

This reference is received from Joint Secretary (Lab & Emp.), Daman vide his order dated

15/05/2012.

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.

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 since

SERIES – 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 5^th Schedule of Industrial Dispute Act.

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.

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.

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 5^th 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.

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.

Following points arise for my determination, to which, my findings are as follows for the

reasons next following :

Sr. No.

Point

Findings

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

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 of

SERIES – 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 7^th 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 6^th and 7^th pay commission and as they are temporary workers, they are not getting

salary as per 6^th and 7^th 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 and

SERIES – 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

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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

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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

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Ref. (IDA) No. 19 of 2012(A)

A W A R D

Reference is answered as follows.

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.

The other employees are not entitled to be conferred permanency and regularization.

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 9

Administration 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 person

SERIES – 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