Ahmedabad
Municipal Corporation Vs. Virendra Kumar Jayantibhai Patel [1997] INSC 610 (23
July 1997)
SUJATA
V. MANOHAR, V.N. KHARE
ACT:
HEADNOTE:
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 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 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 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.
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