Gujarat High Court
Sharda Chimanbhai Lalbhai vs Dinesh Mohanbhai Prajapati on 23 August, 2022
Bench: A.Y. Kogje
C/SCA/3813/2018 JUDGMENT DATED: 23/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3813 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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SHARDA CHIMANBHAI LALBHAI
Versus
DINESH MOHANBHAI PRAJAPATI
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR.PRASHANT B SHARMA(7028) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 23/08/2022
ORAL JUDGMENT
1. RULE. Learned Advocate Mr.Prashant B.Sharma
waives service of Rule on behalf of the respondent.
2. This petition under Article 226/227 of the Constitution
of India is filed against award dated 09.03.2017 passed by the
Industrial Tribunal, Ahmedabad in Reference (IT) No.70 of 2009.
C/SCA/3813/2018 JUDGMENT DATED: 23/08/2022
By the impugned award, the Tribunal has directed the petitioner to
grant the respondent-workman differential amount in salary by
treating the respondent-workman to have worked as a Telephone
Operator in place of Ward-boy. The petitioner before this Court is
a Municipal General Hospital through its President.
3. Learned Advocate for the petitioner submitted that the
respondent was appointed as a Ward-boy, which is a Class-IV post
and has continued to work as a Ward-boy in Class-IV post.
However, in due course of administration and as interest was
expressed by the respondent, in time of necessity, the respondent
was given work of Telephone Operator, which was on certain
occasions, when either post was vacant or the appointed Telephone
Operators were on leave or unavailable.
3.1 It is submitted that only because additional work is
taken from the respondent, the respondent cannot claim salary
altogether different Class-III post. It is further submitted that the
Municipal Hospital has its own Rules for appointing employees and
in case of Telephone Operator, certain requirements are prescribed
and individuals who are fulfilling such requirements are selected
for appointment. The respondent-workman, who was already
working as a Ward-boy, has never undergone any selection
procedure.
C/SCA/3813/2018 JUDGMENT DATED: 23/08/2022
3.2 It is submitted that for the purpose of doing additional
work of a Telephone Operator, at best, the respondent can claim
charge allowance. However, such aspect is also not required to be
considered in view of circular of the Municipal Corporation dated
04.12.2003, wherein such charge allowance for doing work of
contingency was not recommended and accepted.
4. As against this, learned Advocate for the respondent-
workman, opposing the petition, submitted that the Industrial
Tribunal has taken into consideration all relevant aspects,
particularly the fact that the respondent-workman has discharged
duty as a Telephone Operator and therefore, he has to be paid the
same amount as is paid to Telephone Operator. It is submitted that
the respondent-workman has been specifically allotted duties as is
evident from the evidence on record in the form of duty-list and
specific period has been given to the respondent-workman to
attend duty as a Telephone Operator. In such situation, the
respondent-workman is entitled to claim salary equivalent to any
other Telephone Operator.
4.1 It is submitted that the petitioner-Hospital has
subsequently also issued internal advertisement for appointment to
the post of Telephone Operator from amongst those employees who
are already working with the Corporation and therefore, case of the
petitioner could also be treated as such.
C/SCA/3813/2018 JUDGMENT DATED: 23/08/2022
5. In rejoinder, learned Advocate for the petitioner-
Hospital submitted that the document, on which reliance is placed
by learned Advocate for the respondent-workman to contend
internal advertisement by which existing employees are appointed
to the post of Telephone Operator, is a subsequent development of
the year 2011 and the same was not a question before the
Industrial Tribunal. It is also submitted that work of Telephone
Operator is less physical as compared to a Ward-boy and
apparently, the respondent was more comfortable to work as a
Telephone Operator than a Ward-boy and therefore, had voluntarily
come forward for doing such work. Thereafter, having taken
advantage of the situation, cannot now claim higher pay scale.
6. Having heard learned Advocates for the parties and
having perused documents on record, it appears that the
petitioner-Hospital filed reply to the statement of claim of the
Association vide Exh-15 and facts of statement of claim of the
Association have been denied and stated that the respondent-
workman was first introduced in institute on the post of the Ward-
boy by stop gap arrangement. The respondent-workman was given
acting appointment on the post of a Ward-boy from 05.03.1999.
Accordingly, he was performing the duty in the pay scale
admissible to him. As the workman was knowing work of telephone
operator to some extent and as the work of telephone operator is
C/SCA/3813/2018 JUDGMENT DATED: 23/08/2022
an essential service in the institute, sometimes during the leave
vacancy of telephone operator, the workman was assigned work of
telephone operator as per requirement, on completely temporary
basis by stop gap arrangement. The workman has never performed
a constant and continuous duty as a telephone operator. The
workman has been performing duty as a ward boy since 1999 and
has received pay scale and benefits accordingly. It is misleading
that the workman has performed duty as telephone operator on
permanent vacant post and has been appointed from 25.09.1998.
No such entry has been made in the service book of the
respondent-workman that he has undergone training of telephone
operator and is holding qualification for the same. Designation of a
ward boy has been mentioned in the service book of the workman.
Telephone operator's post is a post of Class-III which is filled on
the basis of merit through selection procedure i.e. after giving
advertisement followed by written-oral interview. Ward boy Class-
4 to Telephone Operator Class-III is not or cannot be legally
appointed in any manner. The reference of the respondent-
workman is barred by time limit.
7. It is apparent that the claim of the respondent-
workman has worked as a Telephone Operator since 25.09.1998,
but has raised industrial dispute in the year 2009. There is no
explanation as to why the petitioner has waited for almost a period
C/SCA/3813/2018 JUDGMENT DATED: 23/08/2022
of 11 years. As and when such work was offered, there is nothing
on record to indicate that the respondent-workman has resisted
work of a Telephone Operator. It was open for the respondent to
resist the work assigned of a Telephone Operator and only
restricting his work of a Ward-boy. In the opinion of the Court, the
Industrial Tribunal has failed to consider the aspect of the
respondent-workman taking up work of a Telephone Operator in
place of a Ward-boy. This is particularly relevant as it is a matter
of common knowledge that work of a Ward-boy being more physical
than the work of a Telephone Operator and therefore, apparently,
the respondent-workman would be getting advantage of his own
choice to work as a Telephone Operator in place of a Ward-boy,
which cannot be accepted.
8. The Industrial Tribunal has failed to take into
consideration the differential aspect of appointment in Class-IV and
Class-III. The requirement of the Recruitment Rules specifies that
a Ward-boy only to be literate and there is no specification with
regard to selection process whereas in the Recruitment Rules
prescribed for office staff under Chapter-3 of the Rules, post of
Telephone Operator being Class-III, the post had prescribed
qualification of SSC pass and experience of Telephone Exchange
and such person would be eligible for selection process. This being
the most important aspect, the Industrial Tribunal ought not to
C/SCA/3813/2018 JUDGMENT DATED: 23/08/2022
have granted the pay scale of Class-III post to the respondent, who
was admittedly appointed on the post of a Ward-boy.
9. It would be necessary to observe that even from the
record in the form of office order placed before the Industrial
Tribunal, against the name of the respondent-workman, post of
Ward-boy is mentioned and insofar as performance of duty is
concerned, for particular period, duty was assigned as a Telephone
Operator, but the same is also done with regard to other Ward-
boys, who have not raised any claim.
10. From the submissions made, it appears that the
respondent, who has been granted difference in salary between the
salary of a Telephone Operator and a Ward-boy to be paid,
according to calculation made, an amount of Rs.5,42,000/-, which is
a difference in salary, will have to be paid.
11. Considering the aforesaid fact situation and in fact, as
the respondent-workman has worked as a Telephone Operator,
which is an admitted position, the Court is inclined to set aside the
award of the Industrial Tribunal. The same is accordingly set
aside. However, considering the fact that the respondent has
actually worked as a Telephone Operator, in order to do complete
justice, the Court directs the petitioner-Hospital to pay an amount
of Rs.2,00,000/- (Rupees Two Lakhs Only) instead of amount of
C/SCA/3813/2018 JUDGMENT DATED: 23/08/2022
difference in salary.
12. The petition stands allowed in the aforesaid terms.
Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(A.Y. KOGJE, J)
SHITOLE
