Full Judgment Text
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PETITIONER:
AHMEDABAD MUNICIPAL CORPORATION
Vs.
RESPONDENT:
VIRENDRA KUMAR JAYANTIBHAI PATEL(WITH S.L.P.(C) NO. 2317/199
DATE OF JUDGMENT: 23/07/1997
BENCH:
SUJATA V. MANOHAR, V.N. KHARE
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
V.N.KHARE, J.
The appellant (hereinafter referred to as the
Corporation) is established and constituted under the Bombay
Municipal Corporation Act, 1949 (hereinafter referred to as
the Act). One of the duties assigned to the Corporation
under the Act is to provide medical service to the residents
of the Corporation. For that purpose, the Corporation has
set up four dental clinics. The dentists attending the said
clinics are the Corporation’s employees recruited through
the positive act of selection as provided under the
statutory rules framed in that regard. Whenever any doctor
of the Corporation is on leave, the Corporation takes the
services of private doctors only with a view that Patients
may not be inconvenienced. Such doctors in lieu of their
services are paid their free on daily basis. The respondent
herein is a dental surgeon who was carrui‘ng on his private
practice from private clinics. Since early seventies the
Corporation had been taking the services of the respondent
for treating the patients whenever the Corporation’s dental
surgeons were on legve. In the year 1984 the Corporation
decided to fill the vacant posts of dental surgeons in its
clinics, and for that purpose issued an advertisement
inviting applications from qualified dental surgeons for
appointments to the said posts. The respondent amongst
others, also, applied in response to the said advertisement.
However, the respondent was not selected by the Selection
Committee constituted for that purpose. On being
unsuccessful in the said selection, the respondent raised a
dispute claiming himself to be a permanent dental surgeon in
the staff of the Corporation. This dispute was referred to
the Industrial Tribunal, Gujarat under Section 10 of the
Industrial Disputes Act for adjudication being reference No.
(IT) 858 of 1984.
The case of the Union which sponsored the cause of the
respondent was that since the respondent has put in 1034
days of service between 1978 and 1982 and as such in view of
the award rendered by industrial Tribunal in Case No. 179 of
1975 and the circulars issued in pursuance thereof, the
respondent is entitled to be made permanent in the service
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of the Corporation. The Corporation submitted before the
Tribunal that the respondent was not a workman covered under
the award given in Case no. 179 of 1975 and further the
benefit arising out of the award given in reference No. 179
of 1975 and the circulars issued in pursuance thereof,
cannot be extended to the respondent as they are not
applicable to the case of the respondent. However, the
tribunal relying upon the aforesaid award and the circulars
issued by the Corporation held that the respondent is
entitled to be made permanent in the staff of the
Corporation. Aggrieved, the Corporation challenged the said
award in the High Court of Gujarat by means of a petition
under Article 226 of the Constitution. The High Court
dismissed the petition being of the opinion that the
tribunal after appreciating the evidence on record has
recorded a finding that the respondent employee is a
workman, having served for a requisite number of years, thus
entitled to the benefits of a permanent employee.
Aggrieved, the appellant has come up in appeal before this
Court.
The first question that arises for consideration in
this appeal is as to whether the finding of the tribunal
that the respondent is a workman entitled to a permanent
stays in the service of the Corporation is based upon
relevant materials. Materials relied upon by the tribunal
in recording the aforesaid finding are, the award rendered
in Ref No. 179 of 1975 and various circulars issued by the
Corporation in pursuance thereof. In order to answer the
aforesaid question, it is necessary to refer the award of
the tribunal and the circulars issued by the Corporation.
The award dated June 30, 1978 given by the Industrial
Tribunal, Gujarat in the reference IT No. 179 of 1975
related to the permanency of daily rated workmen in
different sections of the Engineering Department of the
Corporation. By the said award, the tribunal had prescribed
a formula for determining the question of permanency of
daily rated workmen in the Engineering Department.
Thereafter, successive circulars were issued which
considered the proposal to make permanent the daily rated
workmen of different sections of Engg. Deptt., on the basis
of the formula laid down by the tribunal. The first
circular dated 30.6.78 issued by the Corporation was for
making permanent the daily rated workmen who have performed
the duties for five years or more in different sections of
Engineering Department. This circular makes it clear that
the policy of making a daily rated workman it clear that the
policy of making a daily rated workman as permanent was
applied only to the Engineering Department of the
Corporation. The circular dated October 4, 1980 again was
issued with reference to the award given in IT Reference No.
179 of 1975, Standing Committee Resolution No. 2846 dated
6.12.78 and Municipal Corporation Resolution No. 969 dated
29.12.78 directing the department to make the staff
permanent who have put in a requisite number of days in the
service of the Corporation. By the Subsequent circular
dated 26.8.82 it was clarified by the Corporation that only
the daily rated workmen of the Engineering Department, daily
wager Majdoor and employees in the equivalent pay scale came
within the ambit of the policy to make permanent such the
daily rated workmen who have served the length of time
prescribed by the award. Thereafter the Corporation
approved the above proposal, and the Chief Accountant issued
a circular dated 1.9.1982 with an amendment vide circular
dated 12.10.1982 was by way of an amendment to circular
dated 1.9.1982 which clearly related to the daily rated
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workmen of the Engineering Department. The circular No. 44
dated 16.8.84 further relied upon by the tribunal contained
prospective policy which was to be followed in future in the
matter of making daily rated workmen in the Corporation as
permanent. The award and the circulars referred to above do
not show that they related to the case of the respondent who
had been visiting the dental clinic run by the Corporation
on daily fee basis for treating patients. Once it is found
that the award and the circulars referred to above relied
upon by the tribunal were not applicable in the case of the
respondent, can it be held by the High Court that the
finding of fact recorded by the tribunal that the respondent
is a workman entitled to be absorbed as a permanent dental
surgeon in the service of the Corporation is a finding of
fact based on appreciation of evidence.
High Courts under Article 226 of the Constitution are
entitled to issue directions, writs and orders for
correcting the record of the inferior courts or the
tribunal. It is true that the High Court while exercising
its jurisdiction under Article 226 of the Constitution,
cannot convert itself into a court of appeal and assess the
sufficiency or adequacy of the evidence in support of the
finding of fact reached by the competent courts or the
tribunals, but this, however, does not debar the High Court
from its power to enquire whether there is any evidence in
support of a finding recorded by the inferior court of
tribunal. It is well established that there is a difference
between a finding based on sufficiency or adequacy of
evidence and a finding based on no evidence. If the finding
of fact recorded by the tribunal is based on no evidence,
such a finding would suffer from error of law apparent on
the face of record. As noticed earlier that award of the
tribunal and circulars issued in pursuance thereof by the
Corporation were not applicable to the case of the
respondent and if these materials are excluded, the finding
of the tribunal that the respondent is a workman entitled to
remnant status in the service of the Corporation is rendered
without any evidence and exposed to the vice of error
apparent on face of record. We are, therefore of opinion
that the High Court fell in error in dismissing the Writ
Petition holding that finding of fact recorded by the
tribunal does not call for interference.
The second reasoning give by the tribunal in issuing
direction to the Corporation for absorbing the respondent in
its permanent service which was not touched upon by the High
Court is that the case of the respondent requires
sympathetic consideration, as presumably the respondent has
been visiting the Corporation’s Clinic since early
seventies, remains to be considered. As noticed earlier,
the recruitment of the doctors in the clinic run by the
Corporation is made in accordance with the statutory rules
and by no other method. Under the rules the vacancies are
advertised for inviting applications from eligible
candidates. After the applications are received the
Selection Committee is constituted to select the candidates
for appointment in the Corporation’s clinic. Only after the
candidates are selected they are taken in the service. It
is also noticed earlier that respondent appeared before the
Selection Committee but was not selected. Under such
circumstances, there is no room for sympathy or equity in
the matter of such appointment specially where the
recruitment in service is governed by the statutory rules.
If the reasoning given by the tribunal is accepted, the
statutory recruitment rules would become nugatory or otiose
and the department can favour any person or appoint any
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person without following procedure provided in the
recruitment rules which would lead to nepotism and
arbitrariness. Once the consideration of equity in the face
of statutory rules is accepted then eligible and qualified
persons would be sufferers as they would not get any cache
to be considered for appointment. The result would be that
persons lesser in merit would get preference in the matter
of appointment merely on the ground of equity and
compassion. It is therefore not safe to bend the arms of
law only for adjusting equity. We, therefore, find that the
reasoning given by the tribunal that sympathy demands the
absorption of the respondent in the service of the
Corporation suffers from error of law.
For the foregoing reasons the award dated June 15, 1989
and the judgment of the High Court dated October 9, 1989 are
set aside. The appeal is allowed, but there shall be no
order as to costs.
Before we part with this judgment, we would like to
observe that, counsel for the Corporation has stated that in
the event this appeal is allowed, the Corporation shall not
recover any salary paid to the respondent for rendering
services in pursuance of the award of the tribunal. We
order accordingly.
In view of the above, S.L.P(C) No. 2317/1991 stands
dismissed.