BHUPENDRA KUMAR CHIMANBHAI KACHIYA PATELversusDIVISIONAL CONTROLLER GSRTC NADIAD

                        [2018] 3 S.C.R. 567                               567


   BHUPENDRA KUMAR CHIMANBHAI KACHIYA PATEL                               A
                                  v.
         DIVISIONAL CONTROLLER GSRTC NADIAD
                   (Civil Appeal No. 2546 of 2018)
                          MARCH 07, 2018                                  B
  [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 Road
Transport Corporation as “Badali Kamdars” – Settlement between
                                                                          C
Union of the workers and Corporation to resolve several issues in
relation to service conditions of the employees – cl.20 of the
Settlement, dealt with the placement and absorption of the “Badali
Kamdars” in the permanent cadre of conductor and grant of time
scale to such workers –Hundreds of “Badali Kamdars” who were
found eligible and fulfilled the conditions in terms of cl.20 of the      D
settlement were absorbed in the services as permanent employees
on the post of conductor and were accordingly given the time scale
on the expiry of completion of 180 days in the cadre – Dispute
between these employees and the Corporation as to from which
date the benefit to make them permanent and the benefit of time
                                                                          E
scale should be granted to such “Badali Kamdars” – Industrial
Tribunal answered the reference in favour of the employees – High
Court set aside the award of Industrial Tribunal –Held: Settlement
once arrived at between the employer and the employees as provided
in s.18 is binding on the employer and the employees – It is not in
dispute that the Corporation and the Union of workers entered into        F
the settlement – Corporation followed the procedure provided in
cl.20 while granting the employees their permanent cadre and the
time scale of conductor– There is no basis for the appellants to
claim the aforesaid benefit on their completing 180 days of the
service from the date of their initial appointment as “Badali
                                                                          G
Kamdars” as against on the expiry of 180 days from the date when
they were absorbed in the permanent cadre – Appellants neither
challenged the settlement nor its applicability – Settlement is binding
on both parties in terms of s.18.

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                                   567
568            SUPREME COURT REPORTS                      [2018] 3 S.C.R.


A           Dismissing the appeals, the Court
            HELD: 1.1 Settlement once arrived at between the
      employer and the employees as provided in Section 18 of the
      Industrial Disputes Act, 1947, is binding on the employer and
      the employees. It is not in dispute that, the Corporation and the
B     Union of the workers of the Corporation had entered into the
      settlement in respect of various issues in relation to their service
      conditions. One such issue was in relation to the absorption of
      Badali Kamdars in the permanent cadre of the Corporation.
      Clause 20 provides the manner in which it was to be given effect
      to by the parties. [Paras 25, 26] [572-F-H]
C
            1.2 It is not in dispute that the Corporation followed the
      procedure provided in clause 20 while granting the employees
      their permanent cadre and the time scale of conductor. In other
      words, all eligible “Badali Kamdars” were absorbed in the set
      up and accordingly granted benefit in terms of the procedure
D     prescribed in clause 20 of the Settlement. [Para 28] [574-A]
            1.3 There is no basis for the appellants (employees) to claim
      the benefit from the date of their initial appointment as “Badali
      Kamdar”. Indeed, there is neither any factual foundation nor any
      legal foundation to claim such benefit. The appellants neither
E     challenged the settlement nor its applicability. In other words,
      the legality or/and binding nature of settlement was never
      questioned in these proceedings. In this view of the matter, the
      settlement is binding on both parties in terms of Section 18 of
      the Act. The concept of “Badli Kamdar” is statutorily recognized
F     under the Act. Explanation to Section 25C defines the term “Badli
      Kamdar”. [Paras 30, 33 and 34] [574-D-G; 575-A]
            1.4 The appellants referred extensively to the evidence
      led by the parties to support their submission. The evidence
      cannot be appreciated in the appeals filed under Article 136 of
G     the Constitution. It is more so when the Single Judge and Division
      Bench did not agree with the factual findings of the Tribunal and
      rightly reversed those findings. It is binding on this Court.
      [Paras 38 and 39] [575-E-F]


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 BHUPENDRA KUMAR CHIMANBHAI KACHIYA PATEL v. DIVISIONAL                          569
              CONTROLLER GSRTC NADIAD


      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2546                        A
of 2018.
      From the Judgment and Order dated 28.06.2016 of the High Court
of Gujarat at Ahmedabad in LPA No. 550 of 2016
                                    WITH
       Civil Appeal Nos. 2594-2597, 2556-2592, 2547-2555 of 2018.                B

       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
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       ABHAY MANOHAR SAPRE, J. 1. Leave granted.
       2. These appeals are filed against the final judgments and orders
passed by the High Court of Gujarat at Ahmedabad dated 28.06.2016 in
L.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,           D
1264-1278, 1281-1282, 1284, 1286, 1288, 1291-1296, 1298/2014, dated
21.06.2016 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 Bench
of the High Court dismissed the appeals filed by the appellants herein
and upheld the orders passed by the Single Judge of the High Court.
        3. In order to appreciate the issues involved in these appeals, it is    E
necessary to set out the facts in detail. The facts and the legal issues
arising in all these appeals are similar in nature except the date of their
initial appointment and absorption, which vary from case to case in the
service of the respondent.
      4. For the sake of convenience, the facts mentioned in Reference           F
I.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, whose
name appears at page 18 of the SLP paper book joined the services of
the respondent-Gujarat State Road Transport Corporation (hereinafter             G
referred to as “the Corporation) on 04.06.1999 as “Badali Kamdar” at
Mangrol Depot of Junagadh Section. He was employed as a daily wager.
      6. On 21.12.1989, the Corporation and the Union of the workers
entered into a settlement to resolve several issues in relation to the service
conditions of the employees working in the Corporation.                          H
570            SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A            7. Clause 20 of the Settlement, which is relevant for the disposal
      of these appeals, deals with the placement and absorption of the “Badali
      Kamdar” in the permanent cadre of conductor and grant of time scale
      to such workers. It provides a procedure as to how, when and in what
      manner, the services of a “Badali Kamdar” shall be regularized and
      absorbed in a particular time scale.
B
            8. In terms of clause 20 of the settlement dated 21.12.1989, the
      Corporation considered the case of the appellant when the vacancy
      occurred in the permanent cadre on the post of Conductor and accordingly
      he was absorbed as permanent employee in the services of the
C     Corporation on 27.08.2008 as Conductor. He was given the time scale
      with 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. The
      cases of these “Badali Kamdars” were also considered with a view to
D     find out as to whether they fulfill the conditions set out in clause 20 for
      making them permanent in the set up of the Corporation as and when
      permanent vacancy arose in the cadre of the Conductor. Those who
      were found eligible and fulfilled the conditions were absorbed in the
      services as permanent employees on the post of conductor and were
      accordingly given the time scale on the expiry of completion of 180 days
E     in the cadre. They were accordingly made permanent in terms of the
      procedure prescribed in clause 20 of the Settlement.
            10. This led to dispute between these employees and the
      Corporation. The dispute was essentially as to from which date this
      benefit, namely, to make them permanent and the benefit of time scale
F
      should be granted to such “Badali Kamdars”.

             11. According to the employee (appellant), he was entitled to
      claim this benefit on his completing 180 days of the service from the
      date of his initial joining of the service as “Badali Kamdar”, i.e.,
G     04.06.1999 and not from the date of absorption whereas according to
      the Corporation, the appellant and all employees alike the appellant were
      rightly granted the benefit on the expiry of 180 days from the date when
      they were absorbed in the permanent cadre, i.e., as in the
      case of the appellant from 27.08.2008 as provided in clause 20
      of the Settlement.
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BHUPENDRA KUMAR CHIMANBHAI KACHIYA PATEL v. DIVISIONAL                           571
  CONTROLLER GSRTC NADIAD [ABHAY MANOHAR SAPRE, J.]


       12. This issue was accordingly referred to the Industrial Tribunal,       A
Rajkot at the instance of the appellant under Section 10 of the Industrial
Dispute Act (hereinafter referred to as “the Act”). Several such
references were made to the Industrial Tribunal at the instance of similarly
situated employees.

       13. By award dated 08.08.2013 (Annexure-P-12), the Industrial             B
Tribunal answered the reference in favour of the employees and
accordingly granted them benefit, which the employees had claimed. In
other words, the Industrial Tribunal held that the appellant (employee) is
entitled to claim the permanent absorption in his service in the time scale
as Conductor with effect from the completion of his 180 days of service          C
period from the date of his initial joining, i.e., 04.06.1999. The Corporation
was accordingly asked to pay all consequential benefits from such date.
In substance, the Industrial Tribunal rejected the stand taken by the
Corporation.

       14. The Corporation felt aggrieved and filed writ petition in the         D
High Court of Gujarat at Ahmadabad. The Single Judge of the High
Court, by order dated 18.09.2014, allowed the writ petition and set aside
the award of the Industrial Tribunal. The Single Judge accepted the
stand taken by the Corporation and accordingly upheld their action in
granting the benefit to the employee (appellant) from 27.08.2008 as
provided in clause 20 of the Settlement.                                         E

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

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

        17. Mr. Colin Gonsalves learned senior counsel appearing for the         G
appellants(employees) while assailing the legality and correctness of the
impugned orders contended that the reasoning and the conclusion arrived
at by the Industrial Tribunal was just, proper and legal and hence it should
not have been interfered with by the High Court (Single Judge and Division
Bench).                                                                          H
572             SUPREME COURT REPORTS                            [2018] 3 S.C.R.


A            18. Learned counsel urged that the findings of the Industrial Tribunal
      were based on proper appreciation of evidence adduced by the parties
      and hence such findings could not be faulted with. Learned counsel took
      us through the evidence to show that the findings recorded by the Industrial
      Tribunal deserve to be upheld as against the findings of Single Judge and
      Division Bench.
B
             19. Learned counsel placed reliance on some judicial orders passed
      in 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 in
C     the light of these judicial orders, the similar order should be passed in
      these appeals also.
            21. In reply, Mr. Tushar Mehta, learned Additional Solicitor General,
      appearing for the respondent supported the impugned judgment and
      contended that the concurrent findings of the High Court (Single Judge
D     and Division Bench) deserve to be upheld.
             22. Placing reliance on clause 20 of the settlement, learned ASG
      contended that the action taken by the Corporation is in conformity with
      the requirements of Clause 20 and hence deserves to be upheld.
E            23. Having heard the learned counsel for the parties and on perusal
      of the record of the case, we find no merit in the appeals.
             24. As rightly argued by the learned ASG, the issue in question
      has to be decided in the light of clause 20 of the Settlement.

F           25. One cannot dispute the legal proposition that the settlement
      once arrived at between the employer and the employees as provided in
      Section 18 of the Act, it is binding on the employer and the employees.
             26. It is not in dispute that on 21.12.1989, the Corporation and the
      Union of the workers of the Corporation has entered into the settlement
G     in respect of various issues in relation to their service conditions. One
      such issue was in relation to the absorption of Badali Kamdars in the
      permanent cadre of the Corporation. Clause 20 provides the manner in
      which it is to be given effect to by the parties.

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BHUPENDRA KUMAR CHIMANBHAI KACHIYA PATEL v. DIVISIONAL                 573
  CONTROLLER GSRTC NADIAD [ABHAY MANOHAR SAPRE, J.]


    27. Clause 20 of the Settlement dated 21.12.1989 reads as under:   A
    “In reference to the representation made to delete the
    provision of the section 29 of the settlement dated 23/11/
    1984 and implement the provision of section 43 of the
    settlement dated 22/10/1964 it is determined that after
    preparing the Division wise list of the selected employees         B
    they will be given temporary/daily wager appointment
    against the permanent posts in the division/unit, and if such
    appointed temporary/daily wager has worked continuously
    for 180 days including the weekly holiday/paid holiday and
    authorize leave then they will be taken on time scale. This
                                                                       C
    provision will not be applicable to the employees on work
    charge working in the Civil Engineering Department and
    such appointed temporary/daily wager has worked
    continuously for 180 days including the weekly holiday/paid
    holiday and authorized leave then they will be taken in time
    scale and they will be entitled to all benefits available to       D
    time scale employees. The absence due to authorized leave
    for the above purpose will not be considered break and
    these days will not be considered for 180 days service.
    As per permission of S.T.T. 1981, if the recruitment of the
    staff has been done as a temporary or badli kamdar then            E
    after completion of their 180 days of service on the
    permitted vacancies they would be taken on time scale
    serially.
    Such workers will be granted all benefits as per the Rules
    along with the notional increment with effect from 1.8.87          F
    and there will not be any recoveries made from them nor
    there will be any arrears paid.
    The workmen taken into service are not required during
    the monsoon, therefore they can be retrenched as per the
    requirement and after the monsoon if their services are            G
    required then again as per seniority they will be taken in
    time scale. If there is any permanent post vacant then the
    appointment of the administrative staff will be made on time
    scale.”

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574             SUPREME COURT REPORTS                               [2018] 3 S.C.R.


A            28. It is not in dispute that the Corporation has followed the
      procedure provided in clause 20 while granting the employees their
      permanent cadre and the time scale of conductor. In other words, all
      eligible “Badali Kamdars” were absorbed in the set up and accordingly
      granted benefit in terms of the procedure prescribed in clause 20 of the
      Settlement.
B
             29. It is also clear from the undisputed facts that firstly, the appellant
      (employee concerned) was appointed as “Badali Kamdar” in the set up
      of Corporation on 04.06.1999; Secondly, clear vacancy arose in the
      permanent cadre of Conductor in and around 27.08.2008; Thirdly, as per
      the seniority list of the “Badali Kamdars”, the appellant was accordingly
C     absorbed in the permanent cadre at the time scale with effect from
      27.08.2008 on completion of 180 days of his service in the cadre and, as
      a consequence thereof, was given all the benefits of the said post from
      the said date; and lastly, since then the appellant and all employees alike
      him are continuing on their respective post.
D           30. In our considered opinion, in the light of what we have held
      above, there is no basis for the appellants (employees) to claim the
      aforesaid benefit from the date of their initial appointment as “Badali
      Kamdar”. Indeed, there is neither any factual foundation nor any legal
      foundation to claim such benefit.
E           31. Learned counsel for the appellants was also not able to show
      any document, such as any term/condition in the appointment letter or in
      the settlement or any Rule/Regulation framed by the Corporation
      recognizing such right in appellants’ favour to enable them to claim such
      benefit from the date of their initial appointment.
F            32. Clause 20 of the Settlement is the only clause which recognizes
      the appellant’s right for consideration of his case on individual basis and
      to grant him the benefit subject to his fulfilling conditions specified therein
      which, in appellant’s case, were found satisfied and accordingly, he was
      granted the benefit along with each such employees.
G            33. It is pertinent to mention that the appellants neither challenged
      the settlement nor its applicability. In other words, the legality or/and
      binding nature of settlement dated 21.12.1989 was never questioned in
      these proceedings. In this view of the matter, the settlement is binding
      on both parties in terms of Section 18 of the Act.
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BHUPENDRA KUMAR CHIMANBHAI KACHIYA PATEL v. DIVISIONAL                           575
  CONTROLLER GSRTC NADIAD [ABHAY MANOHAR SAPRE, J.]


        34. The concept of “Badli Kamdar” is statutorily recognized under        A
the Act. Explanation to Section 25C defines the term “Badli Kamdar”.
The appellant never questioned his status as “Badli Kamdar”. Indeed, it
is due to the status of “Badli Kamdar”, which he enjoyed for few years
in the service of Corporation, he got the benefit of absorption in permanent
cadre.
                                                                                 B
        35. So far as the reliance placed by the learned counsel for the
appellants on some previous judicial orders are concerned, in our view,
they are of no help to the appellants inasmuch as those orders turned on
the 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 dated
27.01.2000 passed in SCA No. 393/2000 page 45 of Paper Book), and                C
lastly, one case was based on clause 49 of 1956 settlement and clause
19 of 1985 settlement.
       36. In substance, in our view, those orders did not directly deal
with the issues, which are the subject matter of these appeals and, even
if, they deal with the issue in question, as urged by the learned counsel,       D
then also, in our view, those cases turned on their own facts.
       37. In this view of the matter, those orders were rightly not relied
on by the High Court and we find no good ground to take different view
and accordingly reject this submission.
                                                                                 E
       38. Mr. Colin Gondsalves, learned senior counsel for the appellants
then referred extensively to the evidence led by the parties to support
his submission.
       39. We are afraid we cannot appreciate the evidence in the appeals
filed under Article 136 of the Constitution. It is more so when the Single       F
Judge and Division Bench did not agree with the factual findings of the
Tribunal and rightly reversed those findings. It is binding on this Court.
      40. In the light of the foregoing discussion, we find no merit in the
appeals which thus fail and are accordingly dismissed.
                                                                                 G
Divya Pandey                                                Appeals dismissed.




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