Dharmendra Mohanbhai Rathod vs Valiya Gram Panchayat on 2 July, 2018

[Cites 1, Cited by 0]

Gujarat High Court

Dharmendra Mohanbhai Rathod vs Valiya Gram Panchayat on 2 July, 2018

Equivalent citations: AIRONLINE 2018 GUJ 122

Bench: K.M.Thaker

         C/SCA/7214/2015                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7214 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE K.M.THAKER

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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 ?

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                     DHARMENDRA MOHANBHAI RATHOD
                                 Versus
                        VALIYA GRAM PANCHAYAT
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Appearance:
MS HARSHAL N PANDYA(3141) for the PETITIONER(s) No. 1
MR HS MUNSHAW(495) for the RESPONDENT(s) No. 1,3
MR PARITOSH CALLA(2972) for the RESPONDENT(s) No. 4
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1,2,3,4
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    CORAM: HONOURABLE MR.JUSTICE K.M.THAKER

                               Date : 02/07/2018
                               ORAL JUDGMENT

1. Heard learned advocate for the petitioner and learned advocate for respondent.

2. In present petition, the Original claimant Page 1 of 21 C/SCA/7214/2015 JUDGMENT before the learned Labour Court ( in Reference No.271/2013) has challenged award dated 23.2.2015 passed by learned Labour Court at Bharuch in Reference (T) No.271/2013 whereby the learned Labour Court rejected the reference.

3. It has emerged from the submissions by learned advocate for petitioner and respondents that the learned Labour Court rejected the Reference on the premise that Gram Panchayat who appointed the petitioner had no authority to appoint an employee ( present petitioner) and that therefore the petitioner's appointment was abinitio illegal and unauthorised and that therefore even though the claimant established breach of Section 25F (at the time when his service came to be discontinued), any relief in favour of a person whose appointment is ab initio illegal cannot be granted.

4. Against the said conclusion, the original claimant has taken out present petition and it is claimed that the learned Labour Court not only Page 2 of 21 C/SCA/7214/2015 JUDGMENT failed to take into account the relevant documents which were available on record but also failed to take into account relevant provisions under Gujarat Panchayat Services (Appointing Authority) Rules, 1996 and/ or misconstrued the provisions under the Panchayat Act and the said Rules. The petitioner ( i.e. respondent claimant) has also contended that the said erroneous construction of relevant provisions and the error of not taking into account relevant Rules and the documents which were available on record, led the learned Court to incorrect decision.

5. The learned advocate for respondent tried to oppose the submission by learned advocate for the petitioner, however he could not make much headway so far as relevant provisions are concerned. He, therefore, submitted that even if the Court holds that the decision by learned Labour Court is erroneous then also the matter may have to be reconsidered by the learned Labour Court because other relevant aspect, more Page 3 of 21 C/SCA/7214/2015 JUDGMENT particularly the aspects related to the termination and claimant's allegations with regard to termination, alleged breach of statutory provisions etc. will have to be reconsidered and both sides will have to lead relevant and necessary evidence on that count. According to learned advocate for respondents the parties will have to lead evidence even with regard to aspect related to final relief and about claimant's gainful employment.

6. So as to appreciate above mentioned aspects it is relevant to take into account factual backdrop. So as to support his submission, the petitioner has narrated below mentioned facts:

"2.1 The petitioner respectfully states that petitioner was appointed as Office Clerk on 28.4.1989 in Valiya Gram Panchayat. The petitioner respectfully states that on 14.7.1972, permission was granted to Res. No.1 Gram Panchayat to fill up total 5 posts including 1 post of Office Clerk, by the authorities of the State Government. Thus, petitioner was appointed by Gram Panchayat on a sanctioned post vide resolution dated 28.4.1989. A copy of the said resolution dated 28.4.1989 is annexed herewith and marked as AnnexureB to this petition. Though service of the petitioner was part time, he was performing his duty full time and therefore, earlier resolution dated 28.4.1989 came to be modified vide resolution dated 25.10.1989, Page 4 of 21 C/SCA/7214/2015 JUDGMENT whereby minimum wages was decided to be granted to the petitioner. A copy of the said resolution dated 25.10.1989 is annexed herewith and marked as AnnexureC to this petition.

2.2 The petitioner respectfully states that from the date of appointment, petitioner had served honestly, sincerely and uninterrupted, another resolution came to be passed by Valiay Gram Panchayat on 29.6.1996 appointing the petitioner on the post of Recovery Clerk and decided to pay Rs.950/ as basic pay. Consequential order dated 1.7.1996 was also passed by Sarpanch granting pay scale of Rs.9501500. Copies of said resolution dated 29.6.1996 and order dated 1.7.1996 are annexed herewith and marked as AnnexureD to this petition. 2.3 The petitioner respectfully states that Res. No.1 had written letter dated 20.11.1998 to the Taluka Development Officer seeking approval of appointment of petitioner. A copy of the said order dated is annexed herewith and marked as Annexure to this petition. A copy of the said letter dated 20.11.1998 is annexed herewith and marked as AnnexureE to this petition. The petitioner respectfully states that in response to above letter, Res. No.2 had, on the basis of letter of District Development Officer, intimated to Gram Panchayat that Gram Panchayat is authorized to make appointment on local cadres and in veiw of sanction given by the Development Commissioner, Gram Panchayat can certainly give appointment on the post of Officer Clerk and no sanction/ approval of District Development Officer is required for that. A copy of the said communication dated 8.2.1999 is annexed herewith and marked as AnnexureF to this petition. Thereafter, audit was done and no objection was raised about appointment of petitioner.

2.4 The petitioner respectfully states that petitioner had worked for these many years without any complaint and to the satisfaction of the authorities. Despite the fact that petitioner had been working since 1989 satisfactorily, District Development Officer had instructed Taluka Development Officer on 27.8.2012 to instruct Gram Panchayat to terminate the service of petitioner as same being irregular and dehors the provisions of Government resolution/ circulars. While stating so, District Development Officer had not taken into consideration earlier letter written by him to the effect that Gram Panchayat is authorities to fill up Page 5 of 21 C/SCA/7214/2015 JUDGMENT local cadre and no permission is required. A copy of letter dated 27.8.2012 is annexed herewith and marked as AnnexureG to this petition. 2.5 The petitioner respectfully states that in view of instructions given by District Development Officer, Taluka Development Officer had in turn instructed Gram Panchayat on 30.08.2012 to pass resolution terminating the service of petitioner immediately and report back within five days. A copy of instruction dated 30.8.2012 is annexed herewith and marked as AnnexureH to this petition. 2.6 The petitioner respectfully states that in view of instructions received, Gram Panchayat had terminated the service of the petitioner on 3.9.2012 illegal, without following due process of law and also in violation of principles of natural justice. A copy of the said order dated 3.9.2012 is annexed herewith and marked as AnnexureI to this petition. 2.7 The petitioner respectfully states that being aggrieved by the action of the respondent authorities terminating the service of the petitioner, he preferred a petition being Special Civil Application No.11954 of 2012, which came to be withdrawn on 5.9.2012 with a view to file fresh petition. A copy of the said order dated 5.9.2012 dated is annexed herewith and marked as AnnexureJ to this petition. The petitioner respectfully states that thereafter, petitioner had filed fresh petition being Special Civil Application No.12175 of 2012. It is respectfully stated that upon issuance of notice District Development Officer had appeared and filed reply. It is respectfully stated that on 27.2.2013, the said petition came to be disposed of as withdrawn with a view to approach the Gram Panchayat. A copy of the said order dated 27.2.2013 is annexed herewith and marked as AnnexureK to this petition.

2.8 The petitioner respectfully states that petitioner had approached and made representation considering the fact that petitioner had rendered more than 22 years of service satisfactorily, resolution came to be passed in General Meeting on 30.3.2013 reinstating petitioner to his original post. Consequential order was also passed on 30.3.2013. Copies of resolution and order dated 30.3.2013 are annexed herewith and marked as AnnexureL to this petition. Petitioner resumed his duty on 1.4.2013.

2.9 The petitioner respectfully states that after months of resumption of duty by petitioner, on Page 6 of 21 C/SCA/7214/2015 JUDGMENT 1.8.2013, Taluka Development Officer passed an order not granting approval to the resolution No.4/8 passed by Gram Panchayat reinstating service in petitioner and cancelled the resolution permanently. A copy of the said order dated 1.8.2013 is annexed herewith and marked as AnnexureM to this petition. The petitioner respectfully states that in view of the order dated 1.8.2013, Gram Panchayat, Valiya had cancelled appointment of petitioner and terminated him from service again without following due process of law and without giving opportunity of hearing. A copy of the said order dated 5.8.2013 is annexed herewith and marked a AnnexureN to this Petition."

7. From the said details it emerges that according to petitioner, he came to be appointed as office Clerk in Valiya Gram Panchayat on 28.4.1989.

7.1 It appears that in August, 2012 the District Development Officer, vide its communication dated 27.8.2012 directed th Gram Panchayat to discontinue service of present petitioner. The said direction was forwarded by communication dated 30.8.2012 by the Taluka Development Officer.

7.2 It has also emerged from the record that in view of the said 2 orders/ direction vide communication dated 27.8.2012 and 30.8.2012, from the District Development Officer and Taluka Page 7 of 21 C/SCA/7214/2015 JUDGMENT Development Officer respectively, the Panchayat passed Resolution / Order dated 3.9.2012 and terminated service of present petitioner. 7.3 After the Gram Panchayat terminated petitioner's service, the petitioner filed, and withdrew, 2 petitions i.e. SCA No.11954 of 2012 and SCA No.12175 of 2012. In this context, learned advocate for petitioner submitted that after passing the order dated 3.9.2012 the Panchayat reinstated the petitioner and then in view of and in pursuance of order dated 1.8.2013 by Taluka Development Officer, the Panchayat again terminated present petitioner's service vide order dated 5.8.2013.

7.4 In this background, the petitioner raised industrial dispute which came to be referred to learned Labour Court at Bharuch and learned Labour Court registered the dispute as Reference No.271/ 2013 wherein the leaned Labour Court passed impugned award.

7.5 The learned Labour Court adjudicated the said reference, as mentioned above, on the premise Page 8 of 21 C/SCA/7214/2015 JUDGMENT that the petitioner's appointment was abinitio illegal, learned Labour Court rejected the Reference.

8. To oppose the petition, the respondent has filed reply affidavit wherein it is averred and stated that:

"3 The Respondent No.1 submits that the averments and allegations made by the petitioner are thoroughly baseless and far from truth and as such the correct facts are altogether different. The Respondent No.1 submits that the Development Commissioner, Gujarat State, Gandhinagar had granted permission through order dated 14.07.1972 sanctioning the strength of in all 4 "Naka Karkoons"

and one Office Clerk for the administration of Valiay Gram Panchayat and the terms and conditions and a copy of the said order is annexed herewith and marked as AnnexureA. It is submitted that the said sanctioned posts are to be filled up after following recruitment procedure or atleast calling the names from the employment market and permitting the eligible candidates to compete. It is submitted that the Government of Gujarat through its Panchayat Department has issued a Circular dated 25/08/1983 laying down that the District Development Office of the concerned District has to examined the requirement of the Gram Panchayat and thereafter the posts should be filled up through District Panchayat Service Selection Committee from the selected candidates. It is stated that through the said Circular it is laid down that the Gram Panchayats have no power to make recruitment and if at all any such appointments are made, then the same are without its competence and required to be quashed and set aside and a copy of said Circular is annexed herewith and marked as AnnexureB. It is submitted that subsequently another Circular dated 18/09/2006 is issued by the Government of Gujarat through its Panchayat Rural Housing & Rural Development Page 9 of 21 C/SCA/7214/2015 JUDGMENT Department laying down that the recruitment in local authorities are to be made through regular recruitment procedure by Gujarat Panchayat Service Selection Board or District Panchayat Service Selection Committee, bu the Gram Panchayat level the appointments are made without any authority and illegal and therefore, necessary actions be taken and a copy of said Circular is annexed herewith and marked as AnnexureC. In view of the Resolutions and Circulars, it is crystal clear that the Gram Panchayats have no authority to make recruitment, but in the present case as admitted by the petitioner, he was appointed as a parttimer by the then elected Body of Valiya Gram Panchayat through a Resolution dated 28/04/1989 without seeking any prior approval from Taluka Development Officer or District Development Officer or any other higher authority and following due procedure of recruitment. It is stated that simply by ways of passing a Resolution in its Board Meeting dated 28/04/1989, the petitioner herein was appointed as Parttimer purely on temporary and adhoc basis as an Office Clerk and a copy of said Resolution is annexed herewith and markes as AnnexureD. In other words, the said appointment was nothing but illegal, unjust, arbitrary and contrary to the policy of the Government of Gujarat and therefore, as such bad in law. It is submitted that subsequent Resolution dated 25/10/1989 passed by the Body of Gram Panchayat in it general meeting held on 25/10/1989 was also contrary to the policy of the Government of Gujarat and therefore, untenable in an eye of law. Similarly subsequent Resolutions granting further benefits were also without any authorty. The Respondent No.1 was paying salary to the petitioner from its own funds.

4. The Respondent No.1 submits that as soon as the said irregularities came to the notice of District Development Officer, Bharuch District Panchayat, he directed the Taluka Development Officer, Valiay Taluka Panchayat to take prompt actions in the subject matter as the appointment was irregular and illegal and contrary to the policy of the Government of Gujarat and pursuant to the instructions dated 27/08/2012, the employment of the petitioner herein was ordered to be terminated by Project Officer and Taluka Development Officer, Valiya Taluka Panchayat through order dated 30/08/2012 addressed to the Respondent No.1. It is submitted that accordingly appointment of the petitioner was brought to an end Page 10 of 21 C/SCA/7214/2015 JUDGMENT with effect from 03/09/2012 and copies of said correspondence as well as order dated 03/09/2012 passed by the Respondent No.1 herein are already a part of the petition. It is stated that the said orders are reasoned one and after careful consideration of the facts as well as the policy of the Government of Gujarat."

From the said reply it comes out that the respondent opposed petitioner's claim mainly on the ground that the appointment was without approval by DDO.

9. The petitioner contended that in July, 1972 the Competent Authority had granted permission to the Gram Panchayat to fill up 5 posts including one post of Office Clerk and it was in pursuance of such sanction that resolution dated 28.4.1989 came to be passed and the Panchayat appointed the petitioner.

10. On strength of the said submission it is claimed and alleged that the petitioner's appointment was pursuant to the sanction granted by the competent authority to fill up the posts, the petitioner initially came to be engaged on Page 11 of 21 C/SCA/7214/2015 JUDGMENT Parttime basis. The petitioner has also alleged that though he was appointed on part time basis, he actually performed duties full time and that he worked continuously and regularly without any break. It is also claimed that subsequently in 1996 respondent Panchayat appointed the petitioner as Recovery Clerk. To support the said submissions, the petitioner has relied on the Resolution dated 28.4.1989, Resolution dated 25.10.1989 and Resolution dated 29.6.1997.

11. From the material on record it has also emerged that the salary of the petitioner was paid from the funds of Gram Panchayat.

12. On that basis it is also claimed that in light of such facts connected to petitioner's appointment there was no requirement to seek sanction or approval.

13. It is further claimed that despite such position when, in 1998, the Audit remarks instructed the Panchayat to seek approval in Page 12 of 21 C/SCA/7214/2015 JUDGMENT relation to the petitioner's appointment, the Panchayat sought approval, vide its communication dated 20.11.1998.

14. The learned Labour Court held that the appointment was illegal on the premise that the Gram Panchayat does not have authority to appoint an employee and that the authority to permit appointment and sanction/ approve the appointment vests with District Development Officer. 14.1 In this context, learned advocate for petitioner relied on communication dated 8.9.1999 under which the Planning Officer clarified the issue and informed the Gram Panchayat that in respect of the posts sanctioned by the Commissioner, the Gram Panchayat is competent and authorised to appoint employee and any further permission or sanction/ approval by District Development Officer would not be necessary.

15. The said clarification was given by Planning Officer vide its communication dated 8.2.1999 and the Panchayat had relied on the said instruction Page 13 of 21 C/SCA/7214/2015 JUDGMENT and clarification by the Planning Officer while engaging/ continuing present petitioner.

16. Learned advocate for the petitioner would submit that while deciding the reference, learned Labour Court failed to take into account the said communication dated 8.2.1999 and its effect. On reading the award it comes out that the said communication and its effect are not considered by the learned Court.

17. Learned advocate for the petitioner also placed reliance on the provisions under Section 227 read with Section 274 of the Panchayat Act and the Rules framed under the said Act i.e. Gujarat Panchayat Services (Appointing Authority) Rules, 1996. She, in particular, placed reliance on Entry No.14 in the table (referred to under Rule (2) of said Rules of 1996) and submitted that in light of the said provisions the Panchayat can appoint employees and the permission for approval/ sanction of Taluka Page 14 of 21 C/SCA/7214/2015 JUDGMENT Development Officer would not be necessary.

18. Learned advocate for the petitioner also submitted that like the document dated 8.2.1999 the learned Labour Court has also failed to take into account Section 227 and Section 274 of the Panchayat act and relevant provisions in above mentioned Rules. On reading the award it comes out that the said provision and their effect are not considered. The said errorsnonconsideration of said provisions and communication dated 8.2.1999, have led the learned Court to erroneous conclusion and decision.

19. When the award challenging present petition is examined, then it emerges from the award, more particularly from Para1o to 15 wherein it contains the discussion by learned Labour Court and the reasons recorded by learned Labour Court, it comes out that there is substance in the submission by learned advocate for petitioner inasmuch as though above mentioned document, more Page 15 of 21 C/SCA/7214/2015 JUDGMENT particularly communication dated 8.2.1999 was on record, learned Labour Court has not made any reference of the said document and any discussion with regard to the said communication and its effect so far as the petitioner's appointment by Gram Panchayat are concerned. Likewise, learned Labour Court has also not taken into account the provisions under 227 and 274 of the Panchayat Act and/ or the Rules of 1996 and relevant provisions under the said Rules.

20. If the learned Labour Court, after taking into account the said document and the said provisions, had reached to the conclusion that the appointment is illegal then the matter would stand on different footing. However, the conclusion which is arrived at by the learned Labour Court is reached without considering the said document and the above mentioned provisions and their effect. Thus, the conclusion arrived in total disregard to documents on record and the provisions which have relevance and Page 16 of 21 C/SCA/7214/2015 JUDGMENT applicability, is erroneous and cannot be sustained.

21. Besides this, learned Labour Court also appears to have recorded observation that the petitioner did not complete service of 240 days. 21.1 In this context, it appears that learned Labour Court seems to have taken into account very small tenure of petitioner's service for deciding as to whether the claimant had completed 240 days of service or not.

21.2 It appears that for the said purpose, learned Labour Court took into account the petitioner's service for the period from 1.4.2013 to 5.8.2013 however learned Labour Court appears to have ignored the service rendered by the petitioner after having been appointed vide order dated 28.4.1989.

22. The learned Labour Court failed to take into account the effect of the subsequent Resolution namely Resolution dated 25.10.1989 and Resolution Page 17 of 21 C/SCA/7214/2015 JUDGMENT datd 29.6.1996 passed by the Panchayat.

23. According to the petitioner, while arriving at the conclusion on the issue as to whether the petitioner had worked for 240 days during tenure of his service,more particularly in preceding 12 months, learned Labour Court ought to have taken into account entire tenure of service rendered by the petitioner and that there was no justification for restricting the consideration to the period from1.4.2013 to 5.8.2013. It is claimed that the learned Labour Court restricted the consideration to the petitioner's service rendered during period from April, 2013 to August, 2013 on the premise that service earlier rendered was ab initio illegal and therefore it cannot be considered. While examining the issue whether the petitioner's appointment was illegal it is pertinent that the learned Labour Court decided the issue about the petitioner's appointment without considering relevant documents and relevant provisions and therefore Page 18 of 21 C/SCA/7214/2015 JUDGMENT the said conclusion itself is erroneous and unsustainable. Thus, other conclusion by learned Labour Court which is based on or which rests on said erroneous conclusion cannot be sustained. Therefore the decision to exclude entire tenure of petitioner's service and to take into account only that period of service which the petitioner rendered from April, 2013 to August, 2013 and to ignore the service rendered from 1989 for deciding as to whether the petitioner worked for 240 days or not cannot be sustained because the said decision is based on the premise that service rendered prior to 2013 was on account of illegal appointment (however that conclusion is found to be unsustainable).

24. Foregoing discussion has brought out that the award passed by learned Labour Court is passed in disregard to relevant provision under the Panchayat Act and Rules of 1996 as well a the documents placed on record. Since the said material and provision have been ignored, the Page 19 of 21 C/SCA/7214/2015 JUDGMENT conclusion and findings recorded by learned Labour Court are also erroneous. The said errors, cummulatively, have vitiated the award. The award therefore deserves to be set aside and the matter deserves reconsideration by learned Labour Court.

25. At this stage it is necessary to clarify that the material necessary to decide all relevant issues involved in the case are not available on record of present petition. Further, from the record it appears that even before learned Labour Court there is no evidence which would enable the learned Labour Court to decide the issue about final relief. Under the circumstances, it is not possible to finally decide the petition at this stage and there is no option but to remand the reference case to learned Labour Court for fresh consideration. Therefore, following order is passed:

(a) The impugned award dated 23.2.2015 in Reference No. 271 of 2013 is set aside.

(b) The said reference case is remanded to the Page 20 of 21 C/SCA/7214/2015 JUDGMENT learned Labour Court for fresh decision.

(c) Learned Labour Court shall grant opportunity to both sides to lead fresh evidences ( oral as well as documentary) which the parties consider necessary for addressing the issue involved in the case.

(d) The Learned Labour Court will pass fresh order after considering entire evidence available on record and after taking into account rival submission and relevant provisions having bearing on the subject matter of the dispute.

(e) In view of the fact that the petitioner is prosecuting the dispute related to his termination since 2013, it would be in fitness of things that learned Labour Court should endeavour to decide the reference case as expeditiously as possible and preferably within 10 months.

With aforesaid directions, the petition is disposed of. Orders accordingly.

(K.M.THAKER, J) saj Page 21 of 21

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