Gujarat High Court
Municipal Commissioner vs Vijay V Gohel on 18 February, 2021
Bench: Vineet Kothari, Gita Gopi
C/LPA/759/2016 JUDGMENT DT. 18/02/2021
MUNICIPAL COMMISSIONER V. VIJAY V. GOHEL
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/LETTERSPATENTAPPEALNO. 759 of 2016
In
R/SPECIALCIVILAPPLICATIONNO. 12371of 2006
With
CIVILAPPLICATION(FORSTAY) NO. 2 of 2016
In
R/LETTERSPATENTAPPEALNO. 759 of 2016
FORAPPROVALANDSIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MUNICIPAL COMMISSIONER
Versus
VIJAY V GOHEL & 2 other(s)
==============================================================================
Appearance:
MRHS MUNSHAW(495)for the Appellant(s)No. 1
MRTR MISHRA(483)for the Respondent(s)No. 1,2,3
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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
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C/LPA/759/2016 JUDGMENT DT. 18/02/2021
MUNICIPAL COMMISSIONER V. VIJAY V. GOHEL
HONOURABLE MS. JUSTICE GITA GOPI
Date: 18/02/2021
ORALJUDGMENT
( PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. This intra-Court appeal is filed by the Appellant - Bhavnagar
Municipal Corporation aggrieved by the order dated 09.12.2015 by which
the Writ Petition filed by the Appellant - Municipal Corporation was
rejected by the learned Single Judge. The Writ Petition was directed
against the judgment and award of the Industrial Tribunal at
Bhavnagar in Reference (IT) No.68 of 2002 dated 30.06.2005.
2. The learned Single Judge has dismissed the petition of the
Appellant - Municipal Corporation with the following observations:-
"12. The petitioner has failed to demonstrate and establish any
manifest or palpable and apparent error in the finding recorded in
the award.
12.1 The petitioner has also failed to establish that learned
tribunal has not taken into account or ignored any evidence
available on record or that the findings and conclusions are
perverse.
12.2 It also appears from the award that learned tribunal has
considered all aspects related to the demand of the respondent and
the case of the petitioner Mahanagar Palika and after taking into
account the documents available on record the learned tribunal
passed the award.
12.3 The conclusion recorded by learned tribunal are based on
C/LPA/759/2016 JUDGMENT DT. 18/02/2021
MUNICIPAL COMMISSIONER V. VIJAY V. GOHEL
the document available on record of the reference and they are not
contrary to the documents placed on record by the Mahanagar
Palika before learned tribunal. The findings recorded by the
learned tribunal and reasons in support thereof cannot be said to
be perverse or contrary or baseless and unjustified.
12.5 Learned tribunal has recorded sufficient and cogent
evidence in support of its findings and conclusions.
12.5 It is also demonstrated that the findings and conclusion are
based on evidence on record and that the contention with regard
to the qualification which is raised at the time of hearing of
present petition was never raised before learned tribunal and as
such the same is not required to be considered more particularly,
because any evidence to support and justify such contention was
not placed on record before tribunal and is not placed even on
the record of present petition.
Therefore, the petition deserves to be rejected and is
accordingly rejected. Rule is discharged. "
3. The learned Industrial Tribunal, by its impugned order dated
30.06.2005, had upheld the grant of the Pay-scales to the Respondents -
workmen in the cadre of Clerk-cum-Compounder and Pharmacists and
their promotions from time to time. The relevant part of that Award of the
learned Industrial Tribunal is also quoted below for ready reference:-
"આ રેફરેન્સ મં જૂર કરવામાં આવે છે, આ કામના પ્રથમ પક્ષકાર બીજ
પક્ષકાર સંબંિધિત કામદાર શ્રી િવજય વી. ગોહિહિલ, શ્રી મુકેશ ડી. ગોહિહિલ,
શ્રી જગદીશ આર. અગ્રાવતને તેમની નોહકરીમાં દાખલ થયા તારીખ ૧૯-
૦૧-૯૦ ની અસરથી ક્લાકર્ક કમ કમ્પાઉન્ડરને મળવાપાત્ર પગાર ધિોહરણ
ર. ૧૨૦૦-૪૦-૨૦૪૦નોહ ગ્રેડ િફક્સ કરી, પાંચમા પગાર પં ચના પે
C/LPA/759/2016 JUDGMENT DT. 18/02/2021
MUNICIPAL COMMISSIONER V. VIJAY V. GOHEL
િરવીઝન મુજબ મળવાપાત્ર ર. ૪૦૦૦-૧૦૦-૬૦૦૦ નોહ ગ્રેડ િફક્સેશન કરી
મળવાપાત્ર તમામ લાભોહ દાખલ તારીખથી એરીયસર્ક સિહિત ચૂકવી
આપવા પ્રથમ પક્ષકારને હિુકમ કરવામાં આવે છે, પ્રથમ પક્ષકારે બીજ
પક્ષકારને આ રેફરેન્સના ખચર્ક પેટે ર. ૫૦૦/- ચૂકવી આપવા હિુકમ
કરવામાં આવે છે."
4. The learned counsel for the Appellant - Municipal Corporation Mr.
H.S. Munshaw submitted that the Pay-scales awarded to these workmen
were not in accordance with the qualifications required for such Posts and
the higher Pay-scales demanded by these workmen could not have been
given to them, as the prescribed qualifications were not satisfied by these
workmen. He sought to rely upon certain documents and prescription of
qualifications for the said submission made before us.
5. On the other hand, Mr. T.R. Mishra, learned counsel for the
Respondents - workmen, submitted that no such case was made out by
the Appellant - Municipal Corporation before the learned Industrial
Tribunal in the first instance and the learned Industrial Tribunal has,
therefore, rightly passed the Award in favour of the Respondents -
workmen. Therefore, the learned Single Judge was justified in rejecting
the petition filed by the Appellant - Municipal Corporation. The said
issue was never raised before the learned Industrial Tribunal. He also
submitted that approximately 30 years have passed since the grant of Pay-
scales to the Respondents - workmen in the year 1990 when one of them
has already retired and the other two are on the verge of retirement and
therefore, at this stage, a revision of the Pay-scales, according to the
qualifications, as prayed for by the Appellant - Municipal Corporation,
cannot be allowed to upset the said Pay-scales given to the Respondents -
workmen, as per the Award of the learned Industrial Tribunal.
6. Having heard the learned counsels for the parties, we are of the
C/LPA/759/2016 JUDGMENT DT. 18/02/2021
MUNICIPAL COMMISSIONER V. VIJAY V. GOHEL
opinion that the issues sought to be raised by the Appellant - Municipal
Corporation at this stage is too late in the day for the Appellant -
Employer. If the relevant documents, in the form of prescription of
qualification and award of Pay-scales, according to the Respondents -
workmen, were not established before the learned Industrial Tribunal in
the first instance, the learned Single Judge, in our opinion, was justified
in rejecting the said case on the part of the Appellant - Municipal
Corporation for being at a belated stage. The learned Industrial Tribunal
has also observed that the relevant Service Rules were also not placed
before it in this regard. The said question, therefore, was not allowed to
be raised by the learned Single Judge and also now, it cannot be permitted
to be raised before this Court in the present intra-Court appeal, as we
cannot permit a new case to be set up by the Appellant - Municipal
Corporation at this stage.
7. We are also of the opinion that a remand at this stage to the learned
Industrial Tribunal will also not serve any useful purpose on account of
sheer lapse of a long period of 30 years also. We were also informed by
learned counsel Mr. T.R. Mishra that one of the Respondent - Workmen,
Mr. Jagdish R. Agravat, has already retired from the service about two
years ago and that the other two Respondents - Workmen, namely, Mr.
Vijay V. Gohel and Mr. Mukesh D. Gohel, are also on the verge of
retirement in months. Therefore, we are of the opinion that the issues now
sought to be raised by the Appellant - Municipal Corporation cannot be
permitted to be raised at this belated stage.
8. However, since the issues otherwise could have been raised before
the learned Industrial Tribunal, in an appropriate manner at the relevant
point of time, we make it clear that confirming the Award in the present
case and the order of the learned Single Judge will not form a precedent
against the Appellant - Municipal Corporation and in appropriate cases,
C/LPA/759/2016 JUDGMENT DT. 18/02/2021
MUNICIPAL COMMISSIONER V. VIJAY V. GOHEL
the Appellant - Municipal Corporation may be permitted to take the stand
in accordance with law in other cases.
9. With these observations, the Appeal is disposed of. No costs.
( DR. VINEET KOTHARI, J )
( GITA GOPI, J )
PRAVIN KARUNAN
