General Secretary vs Ahmedabad Municipal Corporation
2022 Latest Caselaw 4079 Guj

      C/SCA/3299/2018                                 ORDER DATED: 11/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO.             3299 of 2018

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                       GENERAL SECRETARY,
                             Versus
          AHMEDABAD MUNICIPAL CORPORATION & 1 other(s)
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                       Date : 11/04/2022
                           ORAL ORDER

1. This petition is filed under Articles 226 and 227 of the Constitution of India in which the petitioner has prayed that the Award dated 13.10.2017 passed by the Industrial Tribunal, Ahmedabad in Reference (IT) No. 266 of 2014 be quashed and set aside so far as denial of arrears is concerned and thereby the said award be modified.

2. Heard learned advocate Mr. P. C. Chaudhari for the petitioner and learned advocate Mr. H. S. Munshaw for respondent No.1.

3. Looking to the issue involved in the present petition, learned advocates appearing for the parties requested that the petition be decided finally at an admission stage. Hence, Rule. Learned advocate Mr. H. S. Munshaw waives service of notice of Rule for the respondent No.1.

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4. Learned advocate for the petitioner submitted that petitioner is the Union registered under the Trade Union Act and most of the employees working in the respondent Corporation are bona fide members of the petitioner Union. It is submitted that with respect to one Mukesh Chandrakant Modi, Junior Clerk working with the respondent Corporation, certain demands were raised by the petitioner Union by way of Reference bearing Reference (IT) No. 266 of 2014. It is submitted that the competent authority referred the dispute wherein the petitioner filed statement of claim before the Industrial Tribunal. Respondent also filed Written Statement before the Tribunal. Inquiry papers were also submitted before the Tribunal by the respondent. The Tribunal, after appreciating the documentary as well as oral evidence, recorded the findings that the findings recorded by the Inquiry Officer are illegal and on the basis of the presumption and assumption. The learned Tribunal has also recorded the findings that the punishment imposed by the respondent is not tenable in the eyes of law. Therefore the Tribunal has specifically recorded that as the findings recorded by the Inquiry Officer are illegal, the order of penalty of stoppage of two increments with future effect is also required to be quashed and set aside. Learned advocate Mr. Chaudhari would submit that though the aforesaid findings are recorded by the Tribunal, the Tribunal has not awarded any monetary benefits to the petitioner on the ground that the petitioner has raised the dispute after a period of 10 years.

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Learned advocate Mr. Chaudhari would contend that no doubt there is delay of 10 years in raising the dispute, however, the Tribunal ought to have awarded monetary benefits for the period from filing of the reference i.e. from the year 2014 till the date of the Award. Learned advocate, therefore, urged that to the aforesaid extent the Award passed by the Tribunal be modified and necessary benefits be granted to the petitioner. It is also contended that limitation would not be applicable to the proceedings filed before the Labour Court/Industrial Tribunal and even in case of delay in raising the dispute, the Labour Court/Industrial Tribunal is empowered to mould the relief. In support of the said contention, learned advocate Mr. Chaudhari has placed reliance upon the decision rendered by the Division Bench of this Court in the case of Dhanjibhai Bhanabhai Alias Bhanjibhai Maru, rendered in Misc. Civil Application No.1 of 2017 in Letters Patent Appeal No.906 of 2016 . Learned advocate, therefore, urged that the aforesaid Award be modified.

5. On the other hand, learned advocate Mr. Munshaw appearing for the respondent has opposed this petition. Learned advocate submitted that there was delay of more than 10 years in raising the dispute by the petitioner and therefore the Tribunal has rightly not awarded any monetary benefit to the petitioner on the ground of delay in raising the dispute. Learned advocate would further submit that the order of penalty passed by the respondent corporation is

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already implemented even before raising of the dispute and therefore the Tribunal has not committed any error while not awarding any monetary benefits to the petitioner for the delayed period. Learned advocate Mr. Munshaw has placed reliance upon the following decisions of this Court:

(1) Judgment dated 30.01.2017 passed in Special Civil Application No.1168 of 2016 and allied matter;

(2) Order dated 15.06.2017 passed in Special Civil Application No.9655 of 2016;

(3) Order dated 22.08.2017 passed in Special Civil Application No.2021 of 2017;

(4) Order dated 26.08.2016 passed in Special Civil Application No.3762 of 2015 and allied matter; and

(5) Order dated 03.07.2018 passed in Special Civil Application No.12594 of 2016.

6. Learned advocate Mr. Munshaw, therefore, urged that as the Tribunal has not committed any error while passing the impugned Award, this Court may not modify the same.

7. Learned advocate Mr. Chaudhari also contended that the respondent Corporation has not challenged the Award passed by the Tribunal and therefore it is not open for the respondent Corporation to raise the aforesaid contention.

8. Having heard the learned advocates appearing for the parties and having gone through the material

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placed on record, it transpires that certain demands were raised by the petitioner Union by way of reference bearing Reference I.T. No.266 of 2014. It appears that one Mukesh Chandrakant Modi, Jr. Clerk working with the respondent Corporation was issued charge-sheet dated 01.08.2002. Inquiry Officer was appointed and after completion of the inquiry, vide order dated 09.10.2003, the respondent imposed penalty of stoppage of two increments with permanent effect. That dispute was raised by the petitioner Union which was referred to the Tribunal in the year 2014. The Tribunal, after considering the documentary as well as oral evidence, recorded the findings that so far as demand No.1 of the petitioner with regard to illegality in appointing Inquiry Officer is concerned, the said issued is held in favour of the respondent Corporation. However, when the petitioner has challenged the perversity of the finding and punishment, the Tribunal, after considering the relevant evidence, recorded the finding that the punishment imposed by the respondent is not tenable in the eyes of law and therefore the reference is partly allowed by quashing and setting aside the order of punishment imposed by the respondent. However, the Tribunal has further observed that as the petitioner has challenged the order of penalty after a period of 10 years, he is not entitled to get the arrears. Petitioner has, therefore, challenged the impugned Award to the aforesaid extent of denial of arrears.

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9. In the case of Dhanjibhai Bhanabhai Alias Bhanjibhai Maru (supra), this Court has specifically observed that, 'if the concerned respondents were aggrieved by the factum of delay in making reference, it was for them to challenge the order of making reference by the competent authority when the same was made to the Labour Court'. In the said case, there was delay of 14 years in preferring the reference before the Labour Court and therefore while granting the relief the said aspect was required to be considered. It was also observed that in such circumstance of delay, it is open for the Court to mould the relief.

10. In the order dated 26.08.2016 passed in Special Civil Application No.3762 of 2015 and allied matter, the facts are such that the concerned workman challenged the order of punishment of the year 1991 by raising dispute in the year 2007 and therefore the concerned Tribunal rejected the reference on the ground of delay. The concerned workman, therefore, filed petition before this Court. However, in the present case, the concerned Tribunal has not rejected the claim of the petitioner on the ground of delay and on the contrary interfere with the order of penalty. The said order of the Tribunal is not challenged by the present respondent by filing petition before this Court.

10.1. In the order dated 22.08.2017 passed in Special Civil Application No.2021 of 2017, the facts

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are to the effect that the concerned Tribunal interfered with the order of punishment. In the said case the workman approached the Tribunal after a period of 14 years. When the said order of Tribunal was challenged by the employer by filing a petition before this Court, this Court quashed and set aside the order of Tribunal on the ground that the dispute raised by the workman cannot be termed as a live dispute. Similar order was also passed by this Court in Special Civil Application No.9655 of 2016 on 15.06.2017.

10.2. In Special Civil Application No.1168 of 2016, the employer challenged the award passed by the Tribunal as the Tribunal interfered with the order of punishment and while considering the said aspect, the Court observed that the Tribunal has re-appreciated the evidence by invoking Section 11A of the Industrial Disputes Act. This Court, therefore, quashed and set aside the order of Tribunal.

11. This Court is of the view that the aforesaid orders upon which reliance is placed by learned advocate for the respondent are not applicable to the facts of the present case. Once again, it is pertinent to note that the respondent has not challenged the Award passed by the Tribunal. The Tribunal has set aside the order of punishment imposed by the respondent. Further, learned advocate for the petitioner has restricted his argument by contending that the petitioner is entitled to get the

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arrears from the date of raising the dispute in the year 2014 till the award is passed by the Tribunal. Thus, petitioner has not claimed the arrears for the period between 2003 to 2014. Hence, when the Tribunal has not rejected the claim of the petitioner on the ground of delay in raising the demand/dispute and quashed and set aside the order of punishment imposed by the respondent, this Court is of the view that petitioner is entitled to get the monetary benefit/arrears from the date of raising the dispute/ demand before the Tribunal till the date of Award. Therefore, the impugned Award dated 13.10.2017 passed by the Industrial Tribunal, Ahmedabad in Reference (IT) No. 266 of 2014 is required to be modified.

12. Thus, in the facts and circumstances of the present case, the impugned Award dated 13.10.2017 passed by the Industrial Tribunal, Ahmedabad in Reference (IT) No. 266 of 2014 is hereby modified to the extent that the petitioner is entitled to get the arrears from the date of raising the demand i.e. from the year 2014 till the date of the Award i.e. 13.10.2017. However, petitioner is not entitled to claim any monetary benefit/arrears for the period between 2003 till the date of raising the demand/dispute before the Tribunal.

13. The petition is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI