Gujarat State Road And Transport ... vs Shashikant Mulchandbhai Gandhi
2022 Latest Caselaw 7845 Guj

     C/SCA/4128/2018                                JUDGMENT DATED: 13/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4128 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                   Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                            Yes

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

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

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              Gujarat State Road and Transport Corporation Gujarat
                                    Versus
              SHASHIKANT MULCHANDBHAI GANDHI & 1 other(s)
================================================================
Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MS VIDITA D JAYSWAL(6730) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 13/09/2022

                              ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of

India is filed against award dated 12.04.2017 passed by the Labour

Court, Mahesana in Reference (LCM) No.70 of 2015. The

petitioner before the Court is the employer and the respondent is

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the workman.

2. Learned Advocate for the petitioner submitted that the

respondent was appointed with the petitioner-Corporation as a

daily wager in construction branch and though he had not

completed required period of service, he filed Reference before the

Labour Court being Reference No.43 of 1995, which came to be

allowed by award dated 01.02.2000, whereby the respondent was

ordered to be reinstated at the original post.

2.1 Learned Advocate for the petitioner submitted that

pursuant to the award of the Labour Court, the petitioner did file

petition before this Court, which came to be rejected and

thereafter, the respondent was communicated with several letters

for resuming services as per the directions of the Labour Court.

2.2 It is submitted that the Labour Court had given specific

order to reinstate the respondent on his original post, which was

daily-wage workman and accordingly, only communications were

issued to the respondent to resume, but he did not resume his

services and showed adamant attitude by taking a stand that the

respondent will resume duty only if he is reinstated on the post of

peon (muster peon). Learned advocate for the petitioner-

Corporation tried to submit that the post of peon is that of a daily

wager only and therefore, by shading his adamant stand, the

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respondent ought to have resumed services and could have later on

agitated if any difference was there, but the respondent chose not

to remain present despite several reminders.

2.3 It is submitted that though there was no cause of action

for the subsequent Reference, though by creating a ground of oral

termination, subsequent Reference was raised stating that the

petitioner had orally terminated the respondent from 15.07.2015.

On such ground, another reference being Reference (LCM) No.70

of 2015 was filed.

2.4 Learned Advocate for the petitioner submitted that by

the impugned award, the Labour Court has thereafter, beyond

jurisdiction as in the previous Reference of 1995, held that the

respondent was entitled to reinstatement as a daily-wage workman.

However, in the present Reference, the Labour Court expanded

scope to hold that the reinstatement should be as a muster peon. It

is submitted that there is no evidence which the respondent was

able to point out before the Labour Court to establish his case of

appointment as a peon and in absence of any evidence, the Labour

Court has committed an error in directing reinstatement to the post

of peon.

2.5 Learned Advocate for the petitioner has taken this

Court through the subsequent affidavit filed to place on record

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several documents and submitted that it was the adamant stand

taken by the respondent that has resulted into filing of the present

Reference. Otherwise, such Reference was not at all necessary.

3. As against this, learned Advocate for the respondent-

workman submitted that the attitude of the officers of the

petitioner-Corporation since beginning has always been for

harassing the respondent and though the respondent had

succeeded till the Supreme Court, he was not allowed to resume

his duties, which was ordered by the Labour Court and confirmed

by this Court as well as the Supreme Court. It is submitted that in

effect, the award of the Labour Court in the previous Reference,

though confirmed by the higher Courts, is set to naught by the

conduct of the officers of the petitioner-Corporation. Learned

Advocate drew attention of the Court to the communications made

by the respondent immediately after the award in the first

Reference to report on duty, but the officers of the petitioner-

Corporation never allowed the respondent to resume.

3.1 She submitted that the respondent was justified in

taking a stand that the respondent was entitled to resume services

as a peon and not as a daily-wage workman for for that purpose,

several documentary evidences were placed before the Labour

Court and as Annexures, are also placed before this Court. She

referred to Annexures-P/4 and P/5, which go on to indicate that the

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respondent was a peon.

4. In rejoinder, learned Advocate for the petitioner-

Corporation submitted that the order of the Labour Court to

reinstate as a "muster pattawala" (muster peon) could not have

been passed in view of the fact that there is no post or cadre of

"muster pattawala" (muster peon) in the establishment of the

petitioner-Corporation.

4.1 It is submitted that the petitioner-Corporation has

calculated salary payable for the period between 2015 to 2018 by

considering the respondent to be on the pay scale in the cadre of

peon (Class-IV). However, as the claim of the petitioner is that the

respondent was only a daily wager, he is entitled to the amount

which is calculated by the petitioner to the tune of Rs.3,43,689/-.

5. Having heard learned Advocates for the parties and

having perused documents on record, it appears that the

respondent was working with the petitioner-Corporation since

08.01.1993. The respondent was terminated from service on

20.10.1994 and he therefore filed Reference Case No.43 of 1995,

which came to be allowed by award dated 01.02.2000. Thereafter

also, as the respondent was not reinstated on his original post and

was harassed and ultimately, again terminated from services on

28.11.2003. The respondent therefore filed Reference Case No.255

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of 2004, which came to be allowed by award dated 01.09.2007,

operative part of which reads as under:-

"Order is hereby issued to the first party organization to reinstate the second party workman as daily-wager if he comes to work which he was earlier doing as per the records of the second party organization within 30 days from the publication of this order in the Government Gazette. The first party shall not pay to the second party any compensation for the unattended days wages nor shall the service of the second party be considered continuous. No order as to costs."

6. It appears that aggrieved by the award, the the

petitioner-Corporation preferred petition before this Court being

Special Civil Application No.6560 of 2008. However, by order

dated 24.04.2008, the same came to be rejected.

7. As the respondent was ordered to be reinstated, he

approached the Divisional Director of the petitioner-Corporation

with resumption report on 07.03.2000 (page No.122/A). However,

from communication made by the respondent, it appears that the

respondent was mis-treated and in short, was not allowed to

resume his duty. It appears that on other hand, the petitioner-

Corporation started issuing communications, which are placed at

Annexure-B colly., one of such communications being dated

19.01.2001 calling upon the respondent to resume his services and

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several communications with similar tenor. The Court is of the

view that the stalemate took place as the stand of the petitioner

was to ask the respondent the respondent to resume as a daily-

wage workman whereas the stand of the respondent was that he

would resume on his original post, i.e. muster peon only. It

appears that as a result of stalemate, second Reference came to be

filed and in that Reference, the Labour Court identified the issue as

whether to treat the the respondent as a daily-wage workman or to

consider the respondent as a peon. It appears that in view of

stalemate as mentioned hereinabove, the Labour Court was

justified to enter into the question of fact to decide as to whether

the respondent was in fact a daily-wage workman or muster peon.

8. The Labour Court has referred to several evidences

which were placed on record. The attendance card which was

placed vide Exhs.14 to 19 showed post of the respondent as peon.

However, Exh.23 is the communication of Divisional Director of the

petitioner-Corporation addressed to the respondent, where post of

the respondent is shown to be a labourer. The Labour Court has

also referred to the certificate dated 16.09.1992, where also, post

of the respondent is shown to be a muster peon.

9. Over and above, what has been observed by the Labour

Court on the basis of evidence, the Court has also taken into

consideration documents placed on record, which according to the

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respondent, were also placed on record of the Labour Court and

there, it indicates that post of the respondent is shown as "m/peon"

(muster peon) (office). Over and above, certificate dated

12.02.1993 by the Divisional Office, which is placed at

AnnexureP/5, also indicates that the respondent is discharging his

duties in construction branch of ST Division as a peon.

10. In view of the aforesaid, the Court finds no reason to

interfere with the findings and award of the Labour Court. It would

be relevant to observe that in the affidavit filed by the Divisional

Controller, Mahesana Division on 21.07.2002, in para-4, the

amount due and payable towards salary of the respondent for the

period between 15.07.2015 to 01.09.2018, considering the

respondent to be in the pay scale of cadre of peon (Class-IV), is

calculated to Rs.6,30,117/-. As the respondent has now retired on

attaining age of superannuation, it would be appropriate to direct

that the amount thus calculated be paid to the respondent

expeditiously and preferably within a period of 3 months.

11. The petition stands accordingly dismissed. Rule is

discharged. Interim relief granted earlier stands vacated. No

order as to costs.

Sd/-

(A.Y. KOGJE, J) SHITOLE