C/MCA/1494/2022 ORDER DATED: 28/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 1494 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 5712 of 2018
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CHHOTABHAI OGHABHAI MAKWANA
Versus
KRUPESHKUMAR JAGDISHBHAI PATEL, CHIEF OFFICE
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Appearance:
MR RAJESH P MANKAD(2637) for the Applicant(s) No. 1
NOTICE SERVED for the Opponent(s) No. 2
SIDDHANT R SHAH(8722) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 28/02/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr.Rajesh Mankad for the applicant and learned advocate Mr.Siddhant Shah for the respondent - Municipality.
2. The Reference of the workman came to be allowed by the Labour Court, Bhavnagar as per its judgment and award dated 21.11.2017. The labour court directed the first party employer-the respondent herein to treat the applicant workman as permanent employee in Class IV post with effect from 1.7.2004. Further direction was issued by the labour court to fix the pay of the applicant and also to give the increment while fixing the pay.
2.1 At the same time, it was provided and directed that all the benefits available till the date of award shall be treated as notionally available.
Page 1 of 6 Downloaded on : Tue Mar 07 20:30:43 IST 2023C/MCA/1494/2022 ORDER DATED: 28/02/2023 Therefore, the applicant was not paid any arrears for such period.
3. The aforesaid judgment and award was challenged by the Municipality by filling Special Civil Application No. 5712 of 2018 before this court. Learned single Judge disposed of the said petition as per order dated 12.7.2022.
3.1 Relevant paragraph Nos. 12, 13 and 13.1 are reproduced hereinbelow, "12. In view of aforesaid, the Court is not inclined to interfere with the decision of the Labour Court, however, it is deemed proper to observe that in the operative part of the order, the use of word "permanency" may be out of place, as the claim of the respondent- workman through out the proceedings before the Labour Court had been for grant of salary and benefits, as is given to the other employees of Class-IV workman with the petitioner-establishment, as it is established before the Labour Court that the establishment had adopted unfair labour practice by taking work from the respondent-workman of a permanent nature and that similar work was being taken from the another employee, who was receiving a pay-scale.
13. In view of aforesaid, except for modifying the award to the extent of use of work "permanency" and instead the respondent workman is held to be entitled to the salary, as is available to Class-IV employee and the benefits available to the Class-IV from the date of award, as is awarded by the Labour Court in the order.
13.1 Considering the number of years that has passed in between and also considering the fact that the respondent workman is still in service, it would be proper to direct the petitioner to calculate and pay the benefits available to the respondent-workman as per the award within a period of 3(three) months from the date of receipt of writ of this Court."
3.2 Learned single Judge therefore did not approve the grant of permanency to the workman. The award of the labour court was modified in that regard, however, the applicant workman was held Page 2 of 6 Downloaded on : Tue Mar 07 20:30:43 IST 2023 C/MCA/1494/2022 ORDER DATED: 28/02/2023 entitled to salary payable to class IV employees and all other consequential benefits arising thereby from the date of the award. It was directed that the amount payable to the applicant shall be calculated and paid within specified time.
4. It was for the aforesaid directions of learned single Judge about payment of salary and consequential benefits, that the present Misc. Civil Application came to be filed invoking jurisdiction of this court under the Contempt of Courts Act, 1971. Notice was issued on 6.1.2023.
4.1 On 21.2.2022, the following order came to be passed, "Learned advocate Mr. Siddhant Shah files affidavit-in-reply on behalf of Nagarpalika, in which it is inter alia stated that though the Nagarpalika is willing to comply with the directions brought under contempt, it is for want of fund with the Nagarpalika that the impediment has occurred in compliance.
Learned advocate drew attention of the court to the communication dated 20.2.2023, addressed to the Regional Commissioner of Municipalities by the Nagarpalika seeking additional grant so that the payment of salary arrears to the applicant could be made in compliance of the directions of the court. The said affidavit is taken on record.
Learned advocate seeks time to file further affidavit to state more specifically about the modalities by which the Nagarpalika proposes to comply with the directions brought under contempt."
4.2 In response to the present application alleging contempt, respondent- Municipality Officer of the municipality filed affidavit-in- reply dated 20.2.2023. Therein, it was inter alia stated that there was no intention on the part of the Chief Officer or any other officer of Municipality to disobey the directions of the court and that Municipality Page 3 of 6 Downloaded on : Tue Mar 07 20:30:43 IST 2023 C/MCA/1494/2022 ORDER DATED: 28/02/2023 and all officers of Municipality take the orders of the court with highest regard.
4.3 It was, however, submitted that Municipality was not able to immediately comply with the directions inasmuch as the Municipality was in financial crises. It was stated that Municipality would take necessary steps to secure the funds for the purpose of compliance of the order to pay the benefits to the applicant.
4.4 As reflected in aforesaid order dated 21/2/2023, the Municipality has addressed communication to the Regional Commissioner of Municipalities whereby it has sought for additional grant for the purpose of making payment of salary and arrears to the applicant
5. Today, additional affidavit is filed on behalf of the Chief Officer of the respondent No.1 - Municipality dated 24.2.2023, in continuation of the earlier affidavit and in light of the order passed by the Court. The said affidavit-in-reply is taken on record.
5.1 Following is stated on oath in the additional affidavit by the Chief Officer, extracting from Para.3 of the affidavit, "3. ... in view of the order passed by this Hon'ble Court on 21.3.2023 the action plan for complying with the order passed by Ld. Single Judge is as below:
a. I state that, immediately from 1.3.2023 Nagarpalika will start the salary and benefits of applicant herein in parity with class IV employee working in Nagarpalika at present.
b. I state that, so far as arrears from 21.11.2017 till 28.2023 of Rs.3,84,211/- is concerned it will be paid to applicant in installment system because of paucity of the funds with Page 4 of 6 Downloaded on : Tue Mar 07 20:30:43 IST 2023 C/MCA/1494/2022 ORDER DATED: 28/02/2023 Nagarpalika.
c. I state that, Nagarpalika will require 10 equal installment of Rs.38,421.1/- for making payment of the arrears as per the order passed by Ld. Single Judge.
d. I state that, in between if Nagarpalika will receive the funds from Commissioner of Municipalities or from Director of Municipalities the outstanding amount of arrears will be paid within immediate effect."
5.2 As per the above affidavit, the Municipality has committed to pay the arrears from 21.11.2017 till 28.2.2023 by installments of Rs. 38,421.10/-. Learned advocate, however, fairly conceded to submit that in the aforesaid calculation of the installments to be paid towards the arrears of salary, the amounts payable in respect of months of November, 2022 December, 2022 as well as of January and February, 2023 have been inadvertently missed out. Learned advocate, however, hastened to add that the said payment will be differently treated to be made to the applicant and that the said part shall also be complied with.
6. In view of what is stated in the affidavit and steps taken by the Municipality to comply with the directions of learned single Judge to secure the arrears of salary for the applicant, by arranging for 10 equal installments as above, it could be said that Chief Officer of Municipality has not committed any willful or deliberate contempt of the directions of the court in any manner. Nor it could be said that the Municipality is not inclined to obey the orders and directions of the court.
6.1 As far as the amount of salary payable to the applicant in respect of the above four months, November and December, 2022 as well as of January and February, 2023, which are not included in the aforesaid installments in the affidavit, it is hereby directed that Municipality shall Page 5 of 6 Downloaded on : Tue Mar 07 20:30:43 IST 2023 C/MCA/1494/2022 ORDER DATED: 28/02/2023 clear the arrears of salary towards the said four months within six months from today in appropriate manner.
7. Contempt proceedings are closed in view of the above facts, developments, statement on oath as well as the directions issued hereinabove. Subject to above, notice is discharged.
(N.V.ANJARIA, J) (NIRAL R. MEHTA,J) C.M. JOSHI Page 6 of 6 Downloaded on : Tue Mar 07 20:30:43 IST 2023