The Secretary vs Divisional Controller
2023 Latest Caselaw 2923 Guj

     C/LPA/877/2015                                JUDGMENT DATED: 13/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 877 of 2015

             In R/SPECIAL CIVIL APPLICATION NO. 6864 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
==========================================================

1    Whether Reporters of Local Papers may be allowed                    NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                             NO

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 ?

==========================================================
                               THE SECRETARY
                                    Versus
                      DIVISIONAL CONTROLLER, & 1 other(s)
==========================================================
Appearance:
MR GK RATHOD(2386) for the Appellant(s) No. 1
MR MUKESH H RATHOD(2432) for the Appellant(s) No. 1
MR HEMANG M SHAH(5399) for the Respondent(s) No. 1
MR PARITOSH CALLA(2972) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
          and
          HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                               Date : 13/04/2023



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      C/LPA/877/2015                                JUDGMENT DATED: 13/04/2023




                         ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

1. This appeal is filed under Clause 15 of the Letters

Patent by the appellant- original respondent No.1 in which

the appellant has challenged the order dated 18.09.2014

passed by the the learned Single Judge of this Court.

2. Heard Mr.G.K. Rathod, learned advocate for the

appellant and Mr.Shalin Mehta, learned Senior Advocate

assisted by Mr.Hemang Shah, learned advocate for the

respondent No.1-original petitioner.

3. The learned advocate for the appellant submits that

the appellant was appointed as casual labour with effect

from 29.10.1979 with the present respondent- original

petitioner. The appellant was working since long and the

benefit of settlement arrived at between the parties were not

extended to him, and therefore, he raised an industrial

dispute before the Industrial Tribunal, Rajkot being

Reference (IT) No.181 of 1998. It is further submitted that

the Tribunal passed an award dated 26.07.2010 whereby

C/LPA/877/2015 JUDGMENT DATED: 13/04/2023

the Reference was allowed and the Tribunal directed the

present respondent-Corporation to give the benefit of Clause

20 of the settlement and to take the appellant on time scale

from the date of completion of 180 days as per the record of

the respondent-Corporation.

4. The learned advocate further submits that the present

respondent-Corporation, therefore, filed the captioned

petition before this Court and the learned Single Judge

allowed the said petition vide order dated 18.09.2014 and

thereby the award passed by the Tribunal has been quashed

and set aside. The appellant has, therefore, preferred the

present appeal.

5. The learned advocate for the appellant has tried to

distinguish the case of the appellant from the other case

upon which the reliance is placed by the learned Single

Judge. It is submitted that the facts of Special Civil

Application No.11717 of 2014 and allied matters are

different. In spite of that, while relying upon the order

C/LPA/877/2015 JUDGMENT DATED: 13/04/2023

passed in the said batch of petitions, the learned Single

Judge has passed the impugned order. The learned

advocate for the appellant, thereafter, submits that the

petitioner was appointed with the respondent-Corporation

in the year 1979 and thereafter, he retired in the year 2018

and the appellant though is entitled to get the benefit of the

circular dated 27.06.1991 issued by the respondent-

Corporation, even such benefits are not extended to the

present appellant. The learned advocate has, therefore,

urged that an appropriate direction be issued to the

respondent-Corporation to grant benefit as per the aforesaid

circular and the impugned order passed by the learned

Single Judge be quashed and set aside by allowing the

present appeal.

6. On the other hand, Mr.Shalin Mehta, learned Senior

Advocate assisted by Mr.Hemang Shah, learned advocate for

respondent No.1 submits that while passing the impugned

order, the learned Single Judge has placed reliance upon

the order dated 18.09.2014 passed in Special Civil

C/LPA/877/2015 JUDGMENT DATED: 13/04/2023

Application No.11717 of 2014 and allied matters. It is

submitted that the facts of the present case are similar. It is

further submitted that the aforesaid order dated 18.09.2014

passed in Special Civil Application No.11717 of 2014 was

challenged before the Division Bench of this Court by filing

Letters Patent Appeal No.1282 of 2014 and allied matters

and the Division Bench of this Court dismissed the Letters

Patent Appeal filed by the concerned appellants vide order

dated 04.07.2017. Copy of the aforesaid order passed by the

Division Bench of this Court is placed on record for perusal

of this Court. Learned Senior Advocate has, therefore, urged

that when the Division Bench has confirmed the order

passed in Special Civil Application No.11717 of 2014 and

allied matters, the present appeal may not be entertained. It

is further contended that the issue before the Industrial

Tribunal was with regard to grant of benefits as per the

Clause 20 of the Settlement and not with regard to the

circular dated 27.06.1991 and the said aspect is not

considered by the Tribunal as well as learned Single Judge,

and therefore, the Court may not consider the said

C/LPA/877/2015 JUDGMENT DATED: 13/04/2023

submission in the present appeal. He has therefore, urged

that this appeal be dismissed.

7. We have perused the documents which are placed on

record and we have also considered the submissions

canvassed by the learned advocates for the respective

parties. It is not in dispute that the grievance of the present

appellant before the Tribunal was with regard to non-

granting of benefits as per Clause 20 of the Settlement

arrived at between the parties and to put the appellant on

the time scale on completion of 180 days of service. The

Tribunal has passed an award relying upon Clause 20 of the

Settlement and directed the respondent-Corporation that on

completion of 180 days of service, the appellant be placed

on time scale. However, the learned Single Judge has

decided the similar issue in Special Civil Application

No.11717 of 2014 and allied matters. Copy of the order

passed by the learned Single Judge is also placed on the

record. It is pertinent to note that at this stage, against the

said order passed by the learned Single Judge, the

C/LPA/877/2015 JUDGMENT DATED: 13/04/2023

concerned pary preferred Letter Patent Appeal 1284 of 2014

and allied matters and the Division Bench of this Court

dismissed the appeal vide order dated 04.07.2017. The facts

of the present case are similar, and therefore, we are of the

view that the issue involved in the present appeal is covered

by the aforesaid decision.

8. With regard to the request made by the learned

counsel for the appellant that the appellant is entitled to get

benefit of circular dated 27.06.1991 issued by the

respondent-Corporation is concerned, we are of the view

that the same was not the issue before the Tribunal or

before the learned Single Judge, and therefore, in the

present appeal, we are not inclined to make any observation

with regard to the said prayer made by the appellant in the

present appeal. Thus, we are also not inclined to consider

the said issue in the present appeal. However, it is open for

the appellant to make a representation to the respondent-

Corporation for the same. As and when such representation

is made, it is open for the respondent -Corporation to

C/LPA/877/2015 JUDGMENT DATED: 13/04/2023

consider such representation in accordance with law.

9. Looking to the aforesaid facts and circumstances of the

present case, we are of the view that the learned Single

Judge has not committed any error while passing the

impugned order, and therefore, no interference is required.

Accordingly this appeal is dismissed.

Sd/-

(VIPUL M. PANCHOLI, J)

Sd/-

(HASMUKH D. SUTHAR,J) ALI