Gujarat High Court
Jetpur Navagadh Municipality, Thro ... vs Kishorbhai Kadvabhai Kondolia Thro ... on 4 July, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/4291/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4291 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
JETPUR NAVAGADH MUNICIPALITY, THRO CHIEF OFFICER
BHARATKUMAR PRAVINCHANDRA VYAS
Versus
KISHORBHAI KADVABHAI KONDOLIA THRO SAURASHTRA EMPLOYEES
UNION
Appearance:
MR BHAVESH P TRIVEDI(2731) for the PETITIONER(s) No. 1
MR RR TRIVEDI(941) for the PETITIONER(s) No. 1
MR NIRAV C SANGHAVI(5950) for the RESPONDENT(s) No. 1
MR PARITOSH CALLA(2972) for the RESPONDENT(s) No. 2
RULE SERVED(64) for the RESPONDENT(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 04/07/2018
ORAL JUDGMENT
Heard Mr. Trivedi, learned advocate for the petitioner and Mr. Sanghavi, learned advocate for the respondent.
2. In present petition, the petitioner - Jetpur Page 1 Downloaded on : Sat Mar 07 12:25:09 IST 2020 C/SCA/4291/2015 JUDGMENT Navagadh Municipality has challenged award dated 15.12.2014 passed by learned Tribunal at Rajkot in Reference (IT) No.44 of 2001 whereby the learned Tribunal directed present petitioner to grant minimum pay scale attached to the post to which the respondent herein came to be employed. The learned Tribunal has clarified that the respondent shall be entitled for such pay scale on par with regular employees working on the same post with effect from the date he came to be appointed, however, for the interregnum, i.e. the period from the date of appointment (the date of entitlement determined by the learned Tribunal) to the date of award shall be considered notional and actual salary in the regular pay scale, after such fixation, shall be payable from the date of award.
Feeling aggrieved by the said direction, the petitioner municipality has taken out present petition.
3. So far as factual background is concerned, it has emerged from the record that somewhere in 2001, present respondent raised demand/dispute that though he has been working as regular and permanent employee on the post of wireman, regular pay scale is not granted to him and that therefore, from the date when he completed one year in service (after having joined the service Page 2 Downloaded on : Sat Mar 07 12:25:09 IST 2020 C/SCA/4291/2015 JUDGMENT in March 1989), he should be considered regular and permanent employee and benefit of regular pay scale should be granted to him.
3.1 Appropriate government referred the said dispute for adjudication to learned Tribunal vide its order of reference dated 13.3.2001.
3.2 In his statement of claim, the claimant claimed that he is employed on the post of wireman. He also alleged that post of wireman is a sanctioned and permanent post on the establishment and he has been working on the said post since March 1989 and that he is working as regular and permanent employee and discharging duties on par with other regular and permanent employees employed on the said post, however, he is denied benefit of regular pay scale and instead, the municipality is paying daily wage at Rs.75.50 to him. The claimant demanded that he should be granted parity in pay scale and other benefits with regular and permanent employees.
3.3 The municipality opposed the reference and said demand. In its reply, the municipality denied the statement of claim. The municipality raised contention on the ground that the claimant was not employed after following regular procedure for selection and that therefore, Page 3 Downloaded on : Sat Mar 07 12:25:09 IST 2020 C/SCA/4291/2015 JUDGMENT benefit claimed by the claimant should not be granted to him. It was also claimed that since the claimant is not regularly appointed, he is not entitled for benefit of regular pay scale. The municipality, however, could not dispute or deny the fact that the claimant has been working on post of wireman since 1989. The municipality tried to contend that the claimant had not worked for 240 days in any year. The municipality raised plea of weak financial position and that it has many employees working with it on daily wage basis. On such premise, the demand by the claimant was opposed by the municipality.
3.4 After considering evidence of both sides and after considering rival contentions, learned Tribunal passed the award with above mentioned directions. The municipality felt aggrieved by the said award, hence, present petition.
4. Mr. Trivedi, learned advocate for the petitioner municipality vehemently opposed the award and submitted that the learned Tribunal failed to appreciate that the demand was raised by irregularly appointed person and that therefore, such demand should not be granted. Mr. Trivedi, learned advocate for the petitioner municipality contended that initially, the respondent claimant was engaged as an apprentice.
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He submitted that after completion of specified period of apprenticeship, he was relieved. Mr. Trivedi, learned advocate, however, fairly accepted that subsequently, the respondent herein came to be again employed by the municipality as wireman in 1992. He reiterated the contentions raised by the municipality through its reply before the learned Tribunal and submitted that the learned Tribunal failed to appreciate said submissions. He contended that the award is erroneous and the learned Tribunal has committed error in granting benefit of pay scale to the respondent herein and further error is committed by granting effect of such benefit from the date the respondent claimant came to be appointed. He submitted that the financial position of the municipality is weak and that therefore, having regard to said fact also, the award should be set aside.
So far as claimant's allegation that he is working with the municipality since 1989 is concerned, Mr. Trivedi, learned advocate for the petitioner municipality clarified that in 1989, the claimant was engaged as an apprentice under Apprenticeship Act and he had to undergo apprenticeship (training) as contemplated under the Act in the trade of wireman and that therefore, the claimant cannot claim benefit of the period of apprenticeship. He also clarified Page 5 Downloaded on : Sat Mar 07 12:25:09 IST 2020 C/SCA/4291/2015 JUDGMENT that the claimant came to be employed by the municipality in 1992.
5. Mr. Sanghvi, learned advocate for the respondent claimant submitted that the respondent herein is engaged against a vacant post. He submitted that even as of now, the post is vacant and on such post, claimant is working since 1989 and he is regularly and continuously discharging all duties and functions on par with other regular and permanent employees. He further submitted that in view of the fact that the claimant is engaged on vacant post of wireman and also in view of the fact that the work which he is discharging is of permanent nature and that the claimant has worked for more than 20 years with the municipality,in the same capacity, the learned Tribunal's direction granting benefit of regular pay scale on par with the regular employees is just and proper and there is no justification to deny such benefit to the claimant. He submitted that except the contention that the claimant is engaged without following prescribed procedure, any substantial ground for opposing said benefit is not made out by the municipality.
6. I have considered rival submissions and material available on record as well as the Page 6 Downloaded on : Sat Mar 07 12:25:09 IST 2020 C/SCA/4291/2015 JUDGMENT reasons recorded by learned Tribunal in the award.
7. The facts involved in this case are, broadly stated, not in dispute. From the clarification by Mr. Trivedi, learned counsel, as regards the period of apprenticeship and subsequent employment of the claimant, it has emerged as undisputed position that actually the claimant came to be employed in the category of wireman in 1992. The claimant's case that he has been working with the petitioner municipality as its employee since March 1989 therefore, cannot be accepted. The claimant's service as municipality's employee can be considered from 1992 and not from 1989.
7.1 It is necessary to note, at this stage, that the petitioner municipality could not dispute or deny the fact that there is vacancy against the post of wireman. It is also not in dispute that the work of wireman is of permanent nature and there is permanent sanctioned post (wireman) on the establishment of the municipality and the said post is vacant and the claimant is working on the said post since 1992.
Besides this, the learned Tribunal has, after examining the evidence placed on record by both sides, recorded finding of fact that there is a Page 7 Downloaded on : Sat Mar 07 12:25:09 IST 2020 C/SCA/4291/2015 JUDGMENT sanctioned post of wireman on the establishment of the municipality and the claimant is working against the said sanctioned and vacant post.
8. So far as municipality's objection against the claimant's demand on the ground that his appointment is irregular, is concerned, it would be appropriate to take into account the observations by Hon'ble Apex Court in case of Bhartiya Seva Samaj Trust through President & Anr. v. Yogeshbhai Ambalal Patel & Anr. [(2012) 9 SCC 310] wherein Hon'ble Apex Court observed, inter alia, that:-
"28. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim 'allegans suam turpitudinem non est audiendus'. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong. (Vide: G. S. Lamba and Ors. v. Union of India and Ors., AIR 1985 SC 1019; Narender Chadha and Ors. v. Union of India and Ors., AIR 1986 SC 638; Molly Joseph alias Nish v. George Sebastian alias Joy, AIR 1997 SC 109 : (1996 AIR SCW 4267); Ashok Kapil v. Sona Ullah (1996) 6 SCC 342 : (1996 AIR SCW 3180); and T. Srinivasan v. T. Varalakshmi (Mrs.), AIR 1999 SC 595 : (1998 AIR SCW 3885)). This concept is also explained by the legal maxims ' Commodum ex injuria sua nemo habere debet '; and ' nullus commodum capere potest de injuria sua propria '. (See also: Eureka Forbes Ltd. v. Allahabad Bank and Ors. (2010) 6 SCC 193 : (AIR 2011 SC (Civ) 2538 : 2010 AIR SCW 3429); and Inderjit Singh Grewal v. State of Punjab and Anr. (2011) 12 SCC 588 : (2011 AIR SCW 6259))."
(emphasis supplied)
9. In present case, it has emerged that the respondent claimant came to be engaged on a post which is sanctioned post and the said post is vacant. Even if it is assumed that the municipality had not followed the procedure while engaging the petitioner against the permanent Page 8 Downloaded on : Sat Mar 07 12:25:09 IST 2020 C/SCA/4291/2015 JUDGMENT post which was vacant at the relevant time and which is still vacant, then also, in light of above observations by Hon'ble Apex Court, the petitioner municipality cannot take advantage of its own error or wrong. The municipality, for whatever reasons, at the relevant time, did not follow the procedure while it engaged the claimant against the permanent post which was (and it is still) vacant . Having done so, when the claimant raised demand, for benefit of regular pay scale, it would not lie, after taking-availing his service for almost 9 years (by now it is almost 25 years service rendered by the claimant) in the mouth of the municipality to contend that the said benefit should not be granted to the claimant because it (municipality) preferred to not follow the procedure for recruitment when it engaged the claimant.
10. In this context, it is also relevant to note that the very claimant had already taken training (apprenticeship) with the petitioner municipality. It is apparent and clear that having regard to the performance of the claimant during the apprenticeship period, the municipality considered it appropriate to engage the claimant as its employee on existing vacancy on the post of wireman. Be that as it may, the fact remains that the municipality employed the Page 9 Downloaded on : Sat Mar 07 12:25:09 IST 2020 C/SCA/4291/2015 JUDGMENT concerned workman as its employees upon completion of apprenticeship training and that therefore also, the municipality is not justified in raising objection against the claimant's demand on the ground that his appointment was irregular.
Even otherwise, after having availed service of claimant for almost 25 years (from 1992-2018) and almost 9 years' service when the claimant raised the demand such objection does not lie in the mouth of the municipality. The municipality continued him in service, for so many years, against existing vacancy on sanctioned post.
It is also necessary to note that while rejecting the contention and objection by the municipality and while granting benefit to the claimant, the learned Tribunal has elaborately discussed the effect of the evidence on record as well as the substance of rival contentions. The learned Tribunal has also taken into account the decision by Hon'ble Apex Court in case of Cooperative Central Bank v. Industrial Tribunal [AIR 1970 SC 245], in case of Maharashtra State Road Transport Corporation & Anr. v. Casteribe Rajya P. Karmachari Sangathana [2009 (III) CLR 262] and decision by High Court in Special Civil Application No.2416 of 2011 dated 28.3.2012.
Besides this, when the observations by
Hon'ble Apex Court in case of Umrala Gram
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Panchayat v. Secretary Municipal Employees Union & Ors. [2015 II CLR 57] is taken into account, it emerges that the findings and conclusion recorded by learned Tribunal cannot be faulted.
11. On the basis of material available on record, the learned Tribunal has recorded specific findings that:
[a] the duty and function which the claimant performs and discharges are of permanent and perennial nature;
[b] he is engaged against existing vacancy sanctioned post of wireman;
[c] that the claimant is performing and discharging duties on regular, continuous and permanent basis since 1992;
[d] that during every year, the claimant has worked for more than 240 days.
The petitioner failed to show anything from the record which would demonstrate that the said findings are incorrect or contrary to evidence on record or perverse.
With such findings, learned Tribunal reached to the conclusion that all factors necessary to grant benefit of regular pay scale exists in present case and that therefore, the demand of the claimant cannot be denied.
Having reached such conclusion, learned Tribunal accepted the demand of the claimant i.e. Page 11 Downloaded on : Sat Mar 07 12:25:09 IST 2020 C/SCA/4291/2015 JUDGMENT for benefit of regular pay scale.
In light of the facts of present case and foregoing discussion, it has emerged that the said decision by learned Tribunal cannot be faulted.
12. However, so far as the direction as regards effective date (for granting the benefit) and direction granting notional effect are concerned, necessitate certain modifications, inasmuch as the learned Tribunal appears to have proceeded on the premise that the claimant worked with effect from 1989, whereas the claimant came to be engaged in 1992.
Another aspect which also needs to be taken into account is that the claimant raised the demand in 2001, whereas the learned Tribunal has granted benefit with effect from the date when the claimant joined the service.
Having regard to overall facts and circumstances of the case, the said directions deserve to be partly set aside and modified.
13. Therefore, while confirming the decision of the learned Tribunal viz. that the petitioner is entitled for benefit of regular pay scale and he should be granted pay scale for the post of wireman, the directions by learned Tribunal to grant effect of the said benefit are partly set Page 12 Downloaded on : Sat Mar 07 12:25:09 IST 2020 C/SCA/4291/2015 JUDGMENT aside and modified and it is clarified that the claimant shall be granted the pay scale of the post of wireman with effect from the date when he raised dispute i.e. from 2001. However, he will not be entitled for arrears upto the date of the award i.e. December 2014. The salary shall be adjusted and fixed by the municipality as on date of award by placing the petitioner at minimum level (first stage) in the pay scale of wireman as on 1st April, 2001 and appropriate fixation shall be made as on 1.1.2015. The period from March-April 2001 to December 2014 shall be considered notional and the claimant shall be entitled for the actual benefit/payable as per regular pay scale (of the post of wireman) and difference of salary w.e.f. 1.1.2015.
13.1 So far as payment of arrears from 1.1.2015 till June 2018 is concerned, the municipality shall endeavour to make the payment as early as possible and preferably within six months.
With aforesaid clarifications and direction, present petition stands disposed of. Rule is made absolute to aforesaid extent. Orders accordingly.
Sd/-
(K.M.THAKER, J) KAUSHIK D. CHAUHAN Page 13 Downloaded on : Sat Mar 07 12:25:09 IST 2020