Dhoraji Municipality vs Ketankumar Gobarbhai Patel - ...
2021 Latest Caselaw 6609 Guj

      C/LPA/1888/2017                              ORDER DATED: 22/06/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 1888 of 2017

              In R/SPECIAL CIVIL APPLICATION NO. 36 of 2014

==========================================================
                    DHORAJI MUNICIPALITY
                           Versus
        KETANKUMAR GOBARBHAI PATEL - MALAVIYA & 1 other(s)
==========================================================
Appearance:
MR PREMAL R JOSHI(1327) for the Appellant(s) No. 1
MR MD RANA(694) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 22/06/2021

                              ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1 This appeal under clause 15 of the Letters Patent is at the instance of the original writ applicant of a writ application and is directed against the judgement and order passed by a learned Single Judge of this Court dated 19th December 2016 in the Special Civil Application No.36 of 2014, by which the learned Single Judge partly allowed the writ application filed by the appellant herein.

2 The facts giving rise to this appeal may be summarized as under:

3 The respondent No.1 (workman) was working with the appellant

- Nagarpalika. His services came to be terminated. The same was challenged by way of a reference before the Labour Court at Rajkot. The reference (L.C.R.) No.438 of 2009 was adjudicated, and ultimately, an

C/LPA/1888/2017 ORDER DATED: 22/06/2021

award was passed whereby the appellant - Nagarpalika was directed to reinstate the workman with continuity of service, however, without back wages.

4 The appellant herein, being dissatisfied with the award passed by the Labour Court, challenged the same before this Court by filing the Special Civil Application No.36 of 2014. The writ application came to be partly allowed. The appellant herein was successful in getting the original award modified to a certain extent. The learned Single Judge modified the award by setting aside the order of continuity of service. The learned Single Judge directed the appellant - Nagarpalika to reinstate the claimant and such reinstatement would be construed as a fresh appointment for all purposes and shall be with effect from December 2014.

5 Being aggrieved and dissatisfied with the impugned order passed by the learned Single Judge, the appellant (original writ applicant) is here before this Court with the present appeal.

6 Mr. Joshi, the learned counsel appearing for the appellant first invited our attention to the order passed by a Coordinate Bench dated 9 th November 2017, which reads thus:

"Considering the case on behalf of the appellant - Municipality, so stated before the learned Single Judge, that (i) the original workman worked with the Municipality for only one year; (ii) that the alleged termination in July, 1999 was challenged after a period of 10 years;

(iii) that the concerned workman was engaged without following the procedure prescribed by law, it is the case on behalf of the appellant - Municipality that instead of performing upon the judgment and award passed by the learned Labour Court of reinstatement, the learned Single Judge could have awarded lump sum compensation in lieu of reinstatement. In support of the above, Shri Joshi, learned advocate appearing on behalf of the appellant has heavily relied upon the

C/LPA/1888/2017 ORDER DATED: 22/06/2021

decision of the Hon'ble Supreme Court in the case of Bhavnagar Municipal Corporation and Ors Vs. Jadeja Govubha Ghhanubha and Anr reported in (2014) 16 SCC 130 as well as the order passed by the learned Single Judge in the case of Seed Certification Officer Vs. Rahevar Rajendrasinh Vadansinh reported in 2015 (1) GCD 90.

NOTICE for final disposal returnable on 30/11/2017.

Direct service is permitted."

7 According to Mr. Joshi, even while issuing notice for final disposal in the present appeal, it prima facie fell from the mind of the Coordinate Bench that instead of reinstatement, the learned Single Judge could have awarded lump sum compensation i.e. in lieu of the reinstatement. Mr. Joshi, as on date also, would submit that the Labour Court as well as the learned Single Judge committed a serious error in passing the order of reinstatement may be without any back wages. According to Mr. Joshi, the learned Single Judge ought to have quashed and set aside the entire award passed by the Labour Court. Mr. Joshi would lay much emphasis on the fact that the claimant had worked only for a period of one year and approached the Labour Court after a period of ten years from the date of termination. Mr. Joshi clarifies that from 2017, the claimant is in service with the Nagarpalika. He is working with the Water Works Department as a daily wager. Mr. Joshi seeks to rely upon two decisions of the Supreme Court, the reference of which has been made in the order passed by this Court dated 9th November 2017 referred to above.

8 We take notice of the fact that the claimant i.e. the respondent No.1 was earlier being represented by the learned counsel Mr. M. D. Rana. Mr. M. D. Rana is no more. In such circumstances, an administrative notice was issued to the respondent No.1 so that he can make necessary arrangements to engage any other advocate. However, it seems that as on date, no one is appearing on behalf of the claimant.

      C/LPA/1888/2017                                ORDER DATED: 22/06/2021




9     The learned Single Judge, in para 7 of its impugned order, has

taken note of few undisputed facts. We quote para 7 as under:

"Some facts in present case are undisputed. Therefore it would be appropriate, at the outset, to take into account undisputed facts.

(a) Even according to claimant, he worked with the municipality for only one year.

(b) When the municipality discontinued service of the claimant the municipality did not follow procedure prescribed by law under Section 25F of the Industrial Disputes Act, 1947 and Rule 81 of Industrial Disputes Gujarat Rules.

(c) Though the service of the claimant, according to his own allegation was terminated in July 1999, he raised dispute after 10 years i.e. in 2009.

(d) The claimant was engaged without following procedure prescribed by law."

10 Thereafter, in paras 9 and 9.1 respectively, the learned Single Judge took cognizance of the findings of fact recorded by the Labour Court that the Nagarpalika had not displayed the seniority list in accordance with Rule 81 and had terminated the services of the claimant without complying with Rule 81. The learned Single Judge also took cognizance of the fact recorded by the Labour Court that the claimant had completed continuous service of 240 days in accordance with Section 25B of the Industrial Disputes Act. Thus, the learned Single Judge took notice of the finding recorded by the Labour Court that the claimant's service was terminated in breach of the statutory provisions.

11 In the overall view of the matter and to balance the equities, the learned Single Judge thought fit to modify the award passed by the

C/LPA/1888/2017 ORDER DATED: 22/06/2021

Labour Court. The learned Single Judge took cognizance of the delay on the part of the claimant in raising the reference. Considering the delay, the learned Single Judge thought fit to do away with continuity of service. The learned Single Judge took the view that reinstatement of the claimant without continuity of service with effect from December 2014 would meet with the ends of justice. In such circumstances, the learned Single Judge partly allowed the writ application filed by the appellant herein.

12 While dealing with the present appeal, one has to bear in mind that a intra-Court appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior Court. The appeal inter se in a High Court from one Court to another is really an appeal from one coordinate Bench to another Coordinate Bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court nor can even the Supreme Court issue writ to a High Court. Thus, unlike an appeal, in general, an intra-Court appeal is an appeal on principle and that is why, unlike an appeal, in an ordinary sense, such as a criminal appeal, where the whole evidence on record is examined afresh by the appellate Court, what is really examined, in an intra-Court appeal, is the legality and validity of the Judgment and/or Order of the Single Judge and it can be set aside or should be set aside only when there is a patent error on the face of the record or the judgment is against the established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing such a view may be to the Division Bench, it is the view adopted by the Single Judge, which should, normally, be allowed to prevail. Hence, the impugned judgment of the learned Single Judge should not be completely ignored and this Court has to consider the

C/LPA/1888/2017 ORDER DATED: 22/06/2021

judgment and order in its proper perspective and if this Bench, sitting as an appellate Bench, is of the view that the decision has been arrived at by the learned Single Judge without any material error of fact or law, then, the judgment, in question, should be allowed to prevail.

13 We are of the view that as the claimant is in service since 2014 and that too, as a daily wager, we should not accede to the request of setting aside the impugned order passed by the learned Single Judge and consider awarding a lump sum compensation to the claimant in lieu of reinstatement.

14 The aforesaid is suggestive of the fact that the claimant, as on date, is serving as a daily wager past more than seven years. It would be too much for this Court in this appeal to now set aside the order passed by the learned Single Judge and tell the claimant to be satisfied with some lump sum compensation.

15 In the result, this appeal fails and is hereby dismissed.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) CHANDRESH