Neeta P Jadeja vs Ahmedabad Municipal Corporation
2021 Latest Caselaw 16805 Guj

     C/SCA/10116/2012                                            JUDGMENT DATED: 26/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 10116 of 2012

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                                                  Sd/-
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                                            NO

2     To be referred to the Reporter or not ?                                          NO

3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                                NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                              NO
      of India or any order made thereunder ?

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                         NEETA P JADEJA
                              Versus
             AHMEDABAD MUNICIPAL CORPORATION & 1 other(s)
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
MR PARITOSH CALLA(2972) for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                    Date : 26/10/2021
                                    ORAL JUDGMENT

1. The present writ petition has been filed seeking the following

prayers:-

"8(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned award passed in Reference (IT) No.43/2009 dated 13-3-2012 in sofar as the said award denies arrears of wages from 1-1-1998 till the date of award dated 13- 32012 as the same is illegal, perverse and contrary to record;

(B) Direct the respondent to grant all the benefits like incremental benefits for the service rendered by the petitioner, Sick Leave, Privilege Leave and other benefits which the permanent staff are entitled to with arrears at the rate of 12% per annum."

C/SCA/10116/2012 JUDGMENT DATED: 26/10/2021

2. The brief facts of the case are as under:-

2.1. The petitioner, who is working as a Staff Nurse since 1991 in

L.G.Hospital, has raised industrial dispute, which was registered as

Reference (LCA) No.406/1997, against illegal and arbitrary termination

of services of the petitioner. The reference was allowed and an order was

passed on 30.12.1997 directing reinstatement of the petitioner with

continuity of service and all benefits. The petitioner was thereafter

reinstated vide order dated 27.12.1999. Before reinstating the respondent

as well as the petitioner filed petition being Special Civil Application

No.9291 of 1998 and the respondent-Corporation filed Special Civil

Application No.3608 of 1998 before the High Court, which were allowed

on 16.06.2005 by this Court. Thereafter, the order passed by this Court

was not complied with and therefore, the petitioner approached the

Industrial Tribunal, Ahmedabad by raising a charter of Demand through

union. The reference was adjudicated upon by the Industrial Tribunal and

the Tribunal passed order on 13.03.2012, which was published in the

Gazette on 26.04.2012 denying the arrears of payment of wages for the

intervening period and the Industrial Tribunal directed that the petitioner

should be treated as permanent Staff Nurse from 01.01.1998 and the

period from 01.01.1998 till the date of award will be treated as notional,

in other words, no payment to be made to the petitioner. In other words

the Tribunal denied all the benefits of arrears from 01.01.1998 till

C/SCA/10116/2012 JUDGMENT DATED: 26/10/2021

13.03.2012. Being aggrieved by the impugned order and judgment, the

petitioner has approached this Court.

3. Learned advocate Mr.T.R.Mishra appearing for the petitioner has

submitted that the final direction passed by the Industrial Tribunal are in

fact contrary to the findings recorded therein. He has submitted that the

entire findings are recorded in favour of the petitioner, however by

issuing final directions, the petitioner is paid notional benefits, which is

not permissible in view of the directions issued by this Court in the order

dated 16.06.2005 passed in Special Civil Application No.9291 of 1998.

Thus, he has submitted that the final direction issued by the Industrial

Tribunal, may be modified and the respondents may be directed to pay

the actual benefits instead of notional.

4. In response to the aforesaid submission, learned advocate

Mr.H.S.Munshaw, while placing reliance on the affidavit, has submitted

that no interference is required in the award passed by the Tribunal as the

same is implemented and an amount of Rs.99,476/- is paid on 14.08.2012

towards the difference in salary and even the benefit of higher pay-scale

is also released in favour of the petitioner. It is submitted that the

petitioner has been granted the benefit and regular permanent staff Nurse

with effect from 01.01.1998 and hence, once the order of the Tribunal is

implemented, the writ petition may not be entertained.

C/SCA/10116/2012 JUDGMENT DATED: 26/10/2021

5. I have heard the learned advocates appearing for the respective

parties.

6. The facts as stated hereinabove are not in dispute. The genesis of

the present writ petition lies in the order dated 16.06.2005 passed by the

Coordinate Bench of this Court in Special Civil Application No.9291 of

1998, which was filed by the respondent-Corporation challenging the

award dated 30.12.1997 passed in Reference (LCA) No.406/1997 by the

Labour Court, Ahmedabad, wherein the petitioner had challenged the

illegal termination.

7. The Labour Court had directed the respondent-Corporation to

reinstate the petitioner with continuity in service. The same was

challenged by the respondent-Corporation by filing the aforesaid writ

petition. By the order dated 16.06.2005, the writ petitions were disposed

of by observing thus:-

"5. I have heard the learned advocates for the respective parties and have perused the relevant material on record. I am in complete agreement with the findings arrived at and reasonings given by the Labour Court. It is not in dispute that the respondent is a qualified employee and she had worked for 481 days. Therefore, in view of the provisions of Section 25-H of the Industrial Disputes Act, 1947, and the Ahmedabad Municipal Corporation being a statutory Corporation, thus ought to have followed the provisions of the Industrial Disputes Act. Thus, the Labour Court was justified in granting reinstatement. Therefore, looking to the peculiar facts and circumstances of the case, I am of the opinion that ends of justice would be met if the respondent is granted benefit of reinstatement w.e.f. 1.1.1998 for all

C/SCA/10116/2012 JUDGMENT DATED: 26/10/2021

purposes. Further since she was relieved in the year 1993, and she had made Reference in the year 1997, the Labour Court was justified in not granting back wages.

6. For the foregoing reasons, Special Civil Application No. 9291 of 1998 is allowed. The petitioner Corporation shall grant the benefits namely the benefits granted by the Labour Court w.e.f. 1.1.1998 for all purposes. It is however, clarified that all the benefits shall be paid from the date of the reinstatement, within a period of three months from the date of receipt of writ of this order and all the consequential benefits within a period of six months thereafter. Rule is made absolute to the aforesaid extent. Consequently, Special Civil Application No. 3608 of 1998 is rejected. Rule is discharged with no order as to costs."

Thus, this Court directed the respondent-Corporation to grant the

benefits to the petitioner with effect from 01.01.1998 for all purposes.

The Court had directed the respondent-Corporation to reinstate the

petitioner on the post of Staff Nurse with continuity of service, as

directed by the Labour Court.

8. It appears that, thereafter the petitioner was reinstated in service

after 1998. However, since she was not paid the actual salary of

regular/permanent Staff Nurse, she was constrained to raise the industrial

dispute, which culminated into Reference (IT) No.43/2009. By the

impugned award dated 13.03.2012, though the Industrial Tribunal has

observed everything in favour of the petitioner, in the final direction it is

stated that the petitioner would be entitled to notional benefits only

instead of actual benefits. The Industrial Tribunal has specifically

observed that the petitioner would be entitled to the actual benefits, which

is granted to the regular Staff Nurse with effect from 01.01.1998.

C/SCA/10116/2012 JUDGMENT DATED: 26/10/2021

However, by issuing final direction, the Industrial Tribunal has fallen in

error in granting such benefits notionally. The Industrial Tribunal has also

examined the record and the pay-slips of the other Staff Nurses and a

finding is given to the effect that though the petitioner was doing the

work of a regular Staff Nurse in her pay-slip she was still designated as a

daily wager. Thus, though the entire findings are recorded in favour of the

petitioner, while issuing the final direction the Industrial Tribunal has

misdirected itself in granting the benefits notionally.

9. In the considered opinion of this Court, the aforesaid directions run

contrary to the observations made by this Court in the order dated

16.06.2005 passed in Special Civil Application No.9291 of 1998. This

Court had directed the respondent-Corporation to grant the benefits as

granted by the Labour Court with effect from 01.01.1998 for all purposes.

Thus, once the directions are issued by this Court and the award is

confirmed, it was not open for the respondent-Corporation as well as for

the Industrial Tribunal to deny actual benefits of regular pay-scale, which

is granted to a regular Staff Nurse. Hence, the respondents are directed to

grant actual benefits to the petitioner to the post of Staff Nurse with effect

from 01.01.1998, which are granted to a regular Staff Nurse.

10. It is clarified that the amount, which is already paid to the

C/SCA/10116/2012 JUDGMENT DATED: 26/10/2021

petitioner shall be adjusted towards the difference in salary. The

respondents are accordingly directed to pass appropriate orders refixing

and granting the actual benefits to the petitioner of the post of Staff Nurse

within a period of two months from the date of receipt of the order of this

Court. The impugned award dated 13.03.2021 passed in Reference (IT)

No.43/2009 is set aside.

11. The present petition is allowed. Rule is made absolute.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK