Chief Officer vs Gujarat Pradesh Municipal ...
2022 Latest Caselaw 4356 Guj

     C/LPA/727/2016                                     ORDER DATED: 25/04/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 727 of 2016
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 12916 of 2015
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                     CHIEF OFFICER
                         Versus
GUJARAT PRADESH MUNICIPAL EMPLOYEES MAHA SANG & 1 other(s)
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Appearance:
MR DEEP D VYAS(3869) for the Appellant(s) No. 1
MR BHAVESH D HAJARE(5515) for the Respondent(s) No. 1
MR TIRTHRAJ PANDYA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                          Date : 25/04/2022
                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the order dated 4.11.2015 passed by the learned Single Judge in Special Civil Application no.12916 of 2015, the appellant-Municipality has preferred this appeal under Clause 15 of the Letters Patent.

2. Following facts emerge from the record of the appeal:-

2.1 That, two workmen, named, Ahmed Dadubhai Shama and Pravinbhai Tejabhai Solanki were working as Cleaner and Khalasi with the appellant- Municipality. Those two workmen raised a dispute to the respondent no.1-Union for being promoted to the post of Driver on the basis of

C/LPA/727/2016 ORDER DATED: 25/04/2022

seniority of their original post of Cleaner and Khalasi respectively. As the record unfolds, Pravinbhai Tejabhai Solanki joined services of the appellant - Municipality on 14.8.1981 on daily wage basis and was made permanent in 1982 in the pay grade of Rs.750-

940. Similarly, Ahmed Dadubhai Shama joined the services of the appellant - Municipality on 17.10.1981 as the Cleaner on daily wage basis and was made permanent in 1982. As the promotion was not given to both of them based on their seniority in the post of their entry in the services of the appellant, Reference came to be filed, as aforesaid. Plethora of evidences were adduced before the Tribunal and more particularly, seniority list at Exh.26, necessary orders of permanency and other orders as well as the driving licenses of both the employees. Oral evidence was also adduced below Exh.33, whereby Arunaben Danabhai Solanki was examined by the appellant. It has come on record that 9 posts in the set up were earmarked for the Driver and it has also come in evidence that in fact, the appellant- Municipality took work of Driver from both the employees by paying just 10% special pay, instead of promoting them to the post of Driver and paying them the scale of the Driver.

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2.2 The Tribunal, by the impugned judgment and award dated 23.1.2015, allowed the Reference partly and directed the appellant-Municipality to appoint both Pravinbhai Tejabhai Solanki and Ahmed Dadubhai Shama in the cadre of Driver from the date on which such post of Driver felt vacant and to also pay salary and benefits to both of them from the date of filing of the Reference till they are appointed as Driver as per the award.

2.3 The said award came to be challenged by the appellant-Municipality by filing a Writ Petition being Special Civil Application no.12916 of 2015, which came to be partly allowed, whereby the order in Reference came to be modified to the extent that the concerned workmen shall be considered having been appointed on the posts of Driver from 3.7.2004, except that the judgment and award passed by the Labour Court came to be confirmed and being aggrieved by the same, the present appeal is filed.

3. Heard Mr. Deep Vyas, learned advocate for the appellant - Municipality, Mr. Bhavesh Hajare, learned advocate for the respondent no.1-Union and Mr. Tirthraj Pandya, learned Assistant Government Pleader for the respondent no.2.

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4. Mr. Deep Vyas, learned advocate for the appellant - Municipality contended that the direction issued by the learned Single Judge is de hors the Rules and has arbitrarily fixed the date to be 3.7.2004. It is also contended by Mr. Vyas that as ad-hoc employees, the workmen have no right for the post of Driver and the same can be filled in only by following the mandatory procedure of selection. Mr. Vyas submitted that if the impugned order is to be implemented, Ahmed Dadubhai Shama would be required to pay a sum of Rs.1,68,516/-, whereas, Pravinbhai Tejabhai Solanki would be required to pay an amount of Rs.1,17,577/-. According to Mr. Vyas, such amount would be payable considering the implementation of 4th Pay Commission, 5th Pay Commission and 6th Pay Commission. Mr. Vyas submitted that both the workmen have received good amount towards pension and gratuity as well as leave encashment and therefore, they are not entitled to any further payment. Mr. Vyas further contended that Ahmed Dadubhai Shama has expired in 2017 and Pravinbhai Tejabhai Solanki has reached the age of superannuation and on that ground also, it was contended by Mr. Vyas that no leniency is required to be shown to the workmen who were not selected on the post of Driver, but were only asked to work as Driver, that too, on

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payment of 10% special pay and allowance for the Driver. On the aforesaid grounds, Mr. Vyas contended that the impugned order deserves to be quashed and set aside by allowing the appeal.

5. Per contra, Mr. Bhavesh Hajare, learned advocate for respondent no.1-Union has opposed the appeal. Mr. Hajare contended that after appreciation of the evidence on record, the Labour Court has issued an appropriate direction and the same has been, on the contrary, modified by the learned Single Judge and the effect of the award is now limited from 3.7.2004. Mr. Hajare contended that the appellant - Municipality has, as such without promoting the workmen, taken work as Driver and has not promoted the workmen based upon the seniority list which was placed on record before the Labour Court at Exh.26. Mr. Hajare contended that the financial condition of the Municipality is non-germane to the legitimate dues of the workmen. Mr. Hajare therefore contended that the appeal, being merit-less, deserves to be dismissed.

6. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

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7. Upon considering the submissions made, it emerges that though two workmen were appointed in the cadre of Cleaner and Khalasi, in fact, the appellant has taken work as Driver. The facts which have been proved before the Labour Court indicate that such arrangement was not for a temporary period, but it is almost permanent in nature and merely by paying 10% as a special pay, would on the contrary constitute exploitation of the workmen. The demand raised by two workmen through Union have been found to be genuine based upon the appreciation of plethora of evidence on record and such finding of fact does not require to be reappreciated or revisited by this Court in exercise of its appellate jurisdiction. The financial crunch of the appellant - Municipality cannot be a defence not to implement the order, which is legal and proper. However, it deserves to be noted that one of the workman - Ahmed Dadubhai Shama has expired in 2017 and the other employee - Pravinbhai Tejabhai Solanki has also reached the age of superannuation and therefore, formal promotion to the post of Driver would not be necessary. Even considering the financial position of the appellant - Municipality, this Court is of the opinion that both the workmen should be paid some

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lumpsum compensation/amount in lieu of their promotion as in fact, though not formally promoted to the post of Driver, both the workmen have actually worked as Driver, which is proved before the Labour Court.

8. In such circumstances, we provide that in lieu of promotion, what is now required to be paid to the workmen/heirs of the workmen is the difference of pay as per the chart submitted by Mr. Vyas, learned advocate for the appellant. In case of Ahmed Dadubhai Shama, the amount of difference comes to Rs.1,68,516/- and in case of Pravinbhai Tejabhai Solanki, the amount comes to Rs.1,17,577/-. In such circumstances, we deem it fit to quantify the difference at Rs.1,00,000/- each i.e. the heirs of Ahmed Dadubhai Shama shall be paid a lumpsum amount of Rs.1,00,000/- towards the difference and similarly, Pravinbhai Tejabhai Solanki shall be paid a lumpsum amount of Rs.1,00,000/- towards the difference within a period of two months from today. Considering the financial condition of the appellant-Municipality, we hereby direct the appellant-Municipality to pay Rs.50,000/- each to both the workmen i.e. heirs of Ahmed Dadubhai Shama and Pravinbhai Tejabhai Solanki by 31.05.2022 and remaining 50% of the amount shall be paid by 30.06.2022.

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The respondent no.1 - Union is directed to provide the Bank details of the heirs of Ahmed Dadubhai Shama as well as the Bank details of Pravinbhai Tejabhai Solanki and the amount, as provided in this order, shall be paid by the appellant through RTGS in the name of heirs of Ahmed Dadubhai Shama and in the name of Pravinbhai Tejabhai Solanki after due verification. Rest of the order remains as it is.

9. It is clarified that this order is passed in peculiar facts and circumstances of this case and the same may not be treated as precedent.

10. The appeal is disposed of in the aforesaid terms. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) Maulik