Mukesh Ramniklal Jani vs Bhavnagar Municipal Corporation
2021 Latest Caselaw 6437 Guj

     C/SCA/381/2020                                JUDGMENT DATED: 21/06/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 381 of 2020

                                  With
              R/SPECIAL CIVIL APPLICATION NO. 12457 of 2015

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE

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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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                           MUKESH RAMNIKLAL JANI
                                  Versus
                      BHAVNAGAR MUNICIPAL CORPORATION
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Appearance:
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 21/06/2021

                              ORAL JUDGMENT

1. Both the aforesaid petitions are between the same parties and the issue raised therein are interconnected. Hence, at the request of learned advocates for both the parties, both the matters are taken up for final disposal.

C/SCA/381/2020 JUDGMENT DATED: 21/06/2021

2. Special Civil Application No.12457 of 2015 is filed with a prayer that:-

"11(A) Quashing and setting aside the award passed by the Industrial Tribunal, Bhavnagar dated 14.02.2013 in Ref (I.T.) Case No.156 of 1999 qua denial of consequential benefits from March-1999 and further directing the respondent to pay all consequential benefits including arrears with 9% interest to the petitioner w.e.f. March, 1999."

3. Special Civil Application No.381 of 2020 is filed with a prayer that:-

"10(A) Directing the respondent to pay retirement benefits such as pension, gratuity and leave encashment with 9% interest from the date of retirement."

4. Special Civil Application No.381 of 2020 came to be listed before this Court and as indicated, was filed essentially for the retirement benefits like pension, gratuity and leave encashment with interest from the date of retirement.

5. At the outset, it would be necessary to refer to the affidavit-in- reply filed on behalf of respondent-Bhavnagar Municipal Corporation, wherein in Paragraph Nos.4 & 5, it is stated that the petitioner has preferred Special Civil Application No.12457 of 2015 before this Court against the award of the Tribunal and pending such application, the petitioner retired upon attaining the age of superannuation on 31.07.2019. The GPF was released on 05.10.2019. However, pension, gratuity and leave encashment is not released due to pendency of the proceedings.

6. Learned advocate for the respondent-Corporation stated that as and when pending petition is disposed of, the said grievance

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of the petitioner seeking pension, gratuity and leave encashment will be released as per dues of the petitioner within stipulated period.

7. In view of the aforesaid fact situation, it would be appropriate to deal with Special Civil Application No.12457 of 2015.

8. Learned advocate for the petitioner submitted that the petitioner is challenging only part of the award of Tribunal dated 14.02.2013, particularly, Paragraph No.3 of the operative portion of the said order to the extend that the petitioner was not entitled to receive the difference of pay between the period of March-1999 till 14th February, 2013 i.e. the period during which the reference was pending before the learned Tribunal. It was also argued that once the entitlement is of the petitioner for regularization with salary and other benefits is held in favour of the petitioner, there is no reason to deprive the petitioner of such benefit for the period during which the reference was pending before the Industrial Tribunal. It is also argued that the consideration required to by the Tribunal in the impugned award of financial burden upon the respondent-Corporation is an irrelevant consideration, more particularly, when no financial crisis were brought on record of the Tribunal.

9. As against this, learned advocate for the respondent has submitted that by assigning cogent reasons, the Tribunal has passed the impugned order and the decision of considering the period between March-1999 to February-2013 for notional benefit is justified. It is reiterated that, if the prayer of the petitioner is granted, it will increase financial burden and also set a precedent.

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10. It is submitted that even otherwise services rendered by the petitioner were not up to mark and satisfaction. It is submitted that the petitioner was placed under suspension through order dated 06.06.1994. The petitioner was, thereafter, issued a charge-sheet leveling various serious charges and performance of his duties. From a kind perusal thereof it would be clear that even the petitioner was remaining unauthorizedly absent and disobey the orders of the higher authorities and misbehaving with them. The petitioner was issued two show cause notices on 28.06.1996 as the charges levelled against him were dropped in departmental inquiry about negligence in performance of duties.

11. Having considered the rival submissions made by learned advocates for both the parties and on perusal of documentary evidence on record, with the passage of time, it appears that the services of the petitioner have been regularized as per the award of the Tribunal. The award of the Tribunal is not the subject matter of challenge by the respondent-Municipal Corporation, and therefore, appears to have been accepted by the respondent. The petitioner has also accepted the award except for the operative part of the award, which pertains to the directions to consider the period between March-1999 to the date of award i.e. 14.02.2013 be notional and not to be paid the difference in pay.

12. While passing the aforesaid award, the Tribunal has taken into consideration the financial burden that would be created in view of granting of difference in salary for the period between 1999 to 2013. The claim of the petitioner as per the statement of claim is to get the arrears of salary and other benefits as a regular employee and in support of such claim, the petitioner has cited that the other co-employees, who were junior to the petitioner have been given the salary and benefit of a regular

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employee, however, the petitioner has not produced anything on record of the Tribunal to substantiate his claim to receive difference of salary and other benefits by considering him at par with so called juniors regularized prior to the petitioner. In absence of any such quantification and leading of evidence to aforesaid extent, the Tribunal was precluded from undertaking exercise to quantify the difference of salary and other benefits claimed by the petitioner.

13. In opinion of this Court, if the petitioner is to claim any pecuniary benefit quantification then substantiation of such quantification is an exercise which the Tribunal could have undertaken. In absence of any such exercise, the Tribunal was justified in holding that the petitioner is entitled to calculate salary for the period during which the reference was pending before the Tribunal notionally. This Court does not find any reason for interfering especially on the basis of pleadings made before this Court also. The financial burden is a necessary consequence when the Tribunal awarded the petitioner to be regularized and direction to pay salary and other benefits to the petitioner as a regularized employee itself would cause financial burden upon the respondent-Corporation. This aspect cannot be a matter of dispute and it is also not the case that the amount, which otherwise, is due and payable to the petitioner was already lying with the respondent-Corporation and the Corporation was enjoying such amount. The period between 1999 to 2013 being substantial period, obviously, the respondent-Corporation would have bear the financial burden and for that purpose, no financial crisis is required to be proved before the Tribunal.

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14. For the foregoing reasons, the Court is not inclined to interfere with the award dated 14.02.2013 passed in Reference (IT) No.156 of 2019 by Industrial Tribunal, Bhavnagar. The same is therefore, confirmed. Special Civil Application No.12547 of 2015 stands dismissed. Rule is discharged.

15. Considering the claim of the petitioner for payment of retirement benefits in Special Civil Application No.381 of 2020 and affidavit in reply of the respondent-Corporation in which submissions made for this impediment of releasing the retirement benefits like pension, gratuity, leave enachment of the petitioner due to the pendency of Special Civil Application No.12457 of 2015, the said petition in this very order is appear to be disposed of. Now, it will be open for the respondent- Corporation to proceed forthwith to make the payment of the dues, as claimed by the petitioner in accordance with law.

16. Considering the pendency of the petition and the date of retirement of the petitioner, it would be appropriate to direct that the respondent-Corporation completes the exercise and release the retiremental dues in favour of the petitioner within the period of three months. It is accordingly, directed that the retiremental dues of the petitioner be released in favour of the petitioner within a period of three months from the date of receipt of writ of this order. It is directed that on account of unreasonable delay, the petitioner will be entitled to receive interest at the rate of 6% from the date of retirement of the petitioner on the retiremental dues.

17. It clarified that in case of any difficulty, the petitioner will be entitled to claim interest at the rate of 8% from the date of this order and the respondent-Corporation will entitle to recover the

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same from the officer concerned, who may be held responsible for the delay beyound the period prescribed by this Court.

18. With aforesaid, Special Civil Application No.381 of 2020 stands allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(A.Y. KOGJE, J) GIRISH