Gujarat High Court
Bantva Municipality vs Ambrish Prithviraj Rathod & Anr on 3 February, 2016
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/14768/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14768 of 2015
With
SPECIAL CIVIL APPLICATION NO. 14855 of 2015
==========================================================
BANTVA MUNICIPALITY ....Petitioner
Versus
AMBRISH PRITHVIRAJ RATHOD & ANR. ....Respondents
==========================================================
Appearance:
MR DEEPAK P SANCHELA, ADVOCATE for the Municipality
MR TR MISHRA, ADVOCATE for the Workman
Respondent No.2 is served
==========================================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 03/02/2016
ORAL ORDER
1. Challenge in these two petitions is made by both the sides to the award passed by the Industrial Tribunal, Rajkot in Reference (IT) No.57 of 2005 dated 22.05.2015. By the impugned award, the Tribunal has directed that the concerned workman be treated to be in regular employment as the Clerk from 31.05.1996, with all consequential benefits, including the consideration of the revision of pay as adopted by the Municipality qua other employees. The Tribunal has, however, directed the entire period upto the date of award i.e. 22.05.2015 as notional and the workman is not entitled to any arrears till the date of the award. The employer Municipality has challenged the impugned award in Special Civil Application No.14768 of 2015, contending that the regularisation ought not to have been awarded. The workman has challenged the impugned award in Special Civil Application No.14855 of 2015, contending that the grant Page 1 of 7 HC-NIC Page 1 of 7 Created On Tue Feb 09 01:07:24 IST 2016 C/SCA/14768/2015 ORDER of benefits notionally is arbitrary and discriminatory and that arrears ought to have been granted to the workman. It is this award, which is being examined by this Court in these two petitions, at the instance of the contesting parties.
2. Rule.
3. Mr. Deepak Sanchela, learned advocate for the Municipality - employer has submitted that, the workman was not appointed after following due procedure and therefore no relief could have been granted to him, much less grant of regular pay-scale to him. It is submitted that the workman was discontinued in the year 1998 and he had not completed even three years of service, the aspect which is not considered by the Tribunal. It is submitted that the Tribunal, at the best, could have awarded some compensation in favour of the workman. In support of this contention, reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Vice-Chancellor, Lucknow University versus Akhilesh Kumar Khare reported in 2015 Law Suit (SC) 838. It is submitted that the petition filed by the Municipality be allowed and the petition filed by the workman be dismissed.
4. On the other hand, Mr. T.R.Mishra, learned advocate for the workman has submitted that the Tribunal has recorded finding to the effect that, this was the case of victimisation of the workman. Learned advocate for the respondent has also taken this Court through the material on record to point out that the similarly situated persons, even persons on the weaker footing are also granted regular pay-scale by the Municipality on its own. It is pointed out that, this aspect is reflected by the Tribunal in the impugned order and therefore Page 2 of 7 HC-NIC Page 2 of 7 Created On Tue Feb 09 01:07:24 IST 2016 C/SCA/14768/2015 ORDER denial of arrears, is arbitrary and discriminatory and actual arrears should have been granted to the workman. It is submitted that the petition filed by the Municipality be dismissed and the impugned award be modified in favour of the workman to the extent that the workman is entitled to all consequential benefits including arrears from the effective date of relief i.e. 31.05.1996 and not from the date of the award i.e. 22.05.2015.
5. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under.
5.1 The concerned workman was initially appointed by the Municipality. His service was discontinued. The same was challenged by the workman before the Labour Court, Junagadh in Reference (LCJ) No.242 of 1998. The Labour Court had granted reinstatement, with continuity of service, with 25% back wages vide award dated 26.11.2002. The said award was challenged by the Municipality before this Court in Special Civil Application No.5836 of 2003. The said petition was dismissed by this Court vide order dated 07.05.2003. Thereafter the workman was reinstated in service.
5.2 Even after the order of this Court, an undertaking was taken from the workman that he has agreed to forgo his back wages, as ordered by the Labour Court, as confirmed by this Court. The workman was arm twisted to that extent, which is not the subject matter before this Court at this stage, but the fact remains that, that is how the service of the workman is continuous from 01.09.1995. That aspect has attained finality.
Page 3 of 7HC-NIC Page 3 of 7 Created On Tue Feb 09 01:07:24 IST 2016 C/SCA/14768/2015 ORDER 5.3 It has also come on record that the persons junior to this workman are already regularised by the Municipality. The Office Orders to that effect are also on record. During the course of hearing, one very serious aspect has come to the notice, which is reflected in this order, only to the extent necessary. In Special Civil Application No.14885 of 2015, [at page-64] rojkam of the Municipality dated 20.01.2001 is on record, wherein it is reflected that the service of two persons viz., Vasant Bhagwanji Wadher and Rohit Hardas Wadher, be regularised. Consequential Office Order is passed on 20.01.2001 granting regular pay-scale w.e.f. 01.04.2000. At the relevant time, the reference was pending before the Tribunal qua those persons. The said dispute was indicated to have been settled accordingly. Purshis were given by the Municipality through the President and an order was invited from the Tribunal which the Tribunal passed on 29.04.2000 / 04.05.2000 [at page 62-63]. The said order was ostensibly challenged before this Court in Special Civil Application No.6814 of 2002. The matter was remanded back by this Court vide order dated 13.12.2005 with a direction that the reference be adjudicated within a period of nine months. Learned advocate for the Municipality states that said matter is still pending with the Tribunal. It has also come on record that the pay-scale granted by the Municipality to those juniors is continuing even now. In the proposal sent to the Collector for regularisation of service, the juniors are shown to be senior to this workman. In this factual background, the Tribunal has recorded finding that this workman is being victimized. There is material in support of this finding even before this Court, and this Court finds that the Tribunal has not committed any error in arriving at the conclusion that this workman is victimized by Page 4 of 7 HC-NIC Page 4 of 7 Created On Tue Feb 09 01:07:24 IST 2016 C/SCA/14768/2015 ORDER the Municipality.
5.4 In view of above finding, if the submissions made by the Municipality are considered at this stage, the case of the Municipality is that this workman was appointed without following due procedure. On being asked as to whether any procedure was followed in case of other employees, then that answer is 'no'. Thus it is further fortified that, the pick and choose policy is adopted by the Municipality to the detriment of this workman. Independently also, keeping in view the observations made by Hon'ble the Supreme Court of India in the case of Bhartiya Seva Samaj Trust versus Yogeshbhai Ambalal Patel reported in (2012) 9 SCC 310, the employer can not be permitted to take advantage of his own wrong. In view of this, the contentions of the Municipality are rejected.
5.5 It is noted that, on behalf of the Municipality, reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Vice-chancellor, Lucknow University Lucknow (supra). In this regard, it is noted that, in the said decision, the fact situation was that when the Court of law is considering the controversy as to whether the termination of service of the workman was legal or not, and if the Court comes to the conclusion that the termination was illegal, then the question may crop up as to whether reinstatement should be granted or compensation should be awarded. In a given case, the Court may come to the conclusion that instead of granting reinstatement, the workman should be granted compensation. But the present one is not such case, since that aspect has already attained finality before this Court way back in the year 2003. The decision of Hon'ble the Supreme Court of India in Page 5 of 7 HC-NIC Page 5 of 7 Created On Tue Feb 09 01:07:24 IST 2016 C/SCA/14768/2015 ORDER the case of Vice-chancellor, Lucknow University Lucknow (supra) therefore will not take the case of the Municipality any further. Therefore this argument will also not take the case of the Municipality any further.
5.6 For the reasons recorded above, this Court finds that no interference is required in the impugned award, so far challenge thereto at the hands of the Municipality is concerned.
5.7 The question still remains as to whether, in this case, the denial of arrears is justified or not. In the facts noted above, this Court finds that, when this workman agitated that he is not paid his due wages, which otherwise is given to the persons even junior to him, the Tribunal should not have allowed that illegality to be perpetuated. Granting notional benefits, in these facts, is not doing justice to this workman. In these glaring facts, the Tribunal should not have denied arrears to the workman. The Tribunal has considered the period from 31.05.1996 to 22.05.2015 as notional. From record it transpires that the Municipality, on its own had conferred actual benefit to the persons named above from 01.04.2000. It has continued also. There is no reason to deny at least that benefit to this workman. For these reasons, it needs to be ordered that this workman shall be entitled to arrears from 01.04.2000. The period from 31.05.1996 to 31.03.2000 shall be treated to be notional on the line, as ordered by the Tribunal, but the impugned award needs to be modified to the extent that the period from 01.04.2000 to 22.05.2015 shall not be notional, but the workman shall be paid actual arrears for this period. The workman shall be paid his regular salary from Page 6 of 7 HC-NIC Page 6 of 7 Created On Tue Feb 09 01:07:24 IST 2016 C/SCA/14768/2015 ORDER 01.03.2016 on this line and the arrears shall be paid within a period of three months from today.
6. For the reasons recorded above, the following order is passed.
6.1 The petition filed by the employer Municipality being Special Civil Application No.14768 of 2015 is dismissed. Rule is discharged in Special Civil Application No.14768 of 2015. No order as to costs.
6.2 The petition filed by the workman being Special Civil Application No.14855 of 2015 is partly allowed. The impugned award of the Tribunal is partially modified in favour of the workman to the extent that, this workman shall be entitled to arrears from 01.04.2000. The period from 31.05.1996 to 31.03.2000 shall be treated to be notional on the line, as ordered by the Tribunal, but the impugned award is modified to the extent that the period from 01.04.2000 to 22.05.2015 shall not be notional, but the workman shall be paid actual arrears for this period. It is ordered that, the workman shall be paid his regular salary from 01.03.2016 on this line and the arrears shall be paid within a period of three months from today. Rule is made absolute to this extent in Special Civil Application No.14855 of 2015. No order as to costs.
(PARESH UPADHYAY, J.) mhdave/68-69 Page 7 of 7 HC-NIC Page 7 of 7 Created On Tue Feb 09 01:07:24 IST 2016