Avinash Ravjibhai Mecwan vs Anand Municipality Through Chief ...
2023 Latest Caselaw 236 Guj

      C/MCA/2386/2017                             ORDER DATED: 10/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/MISC. CIVIL APPLICATION NO.         2386 of 2017

       In R/SPECIAL CIVIL APPLICATION NO. 11548 of 2005
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                    AVINASH RAVJIBHAI MECWAN
                             Versus
     ANAND MUNICIPALITY THROUGH CHIEF OFFICER & 2 other(s)
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Appearance:
DR BALRAM D JAIN(3146) for the Applicant(s) No. 1
NOTICE NOT RECD BACK for the Opponent(s) No. 1,2
RC JANI & ASSOCIATE(6436) for the Opponent(s) No. 3
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
           and
           HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                             Date : 10/01/2023

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr. Balram Jain for the applicant and learned advocate Mr. Vishrut Jani for R.C. Jani and Associates for the respondent Anand Municipality, through Chief Officer.

2. The present proceeding of Misc. Civil Application under the Contempt of Court Act came to be filed seeking compliance of the original direction of learned Single Judge in judgment dated 07.02.2013 in Special Civil Application No. 11548 of 2005. The said petition was directed against the judgement and award of the Labour Court dated 04.09.2004 whereby the reference of the workman-respondent herein came to be partly allowed and the petitioner Nagarpalika

C/MCA/2386/2017 ORDER DATED: 10/01/2023

was directed to reinstate the respondent on original post with continuity of service and grant 25% backwages.

3. The following directions came to be issued by the learned Single Judge while allowing the petition partly,

"The impugned award qua back wages is quashed and set aside. The award qua reinstatement with continuity of service is confirmed. If the respondent is not reinstated, the petitioner is directed to reinstate the respondent workman within a period of one month from today. The award of the Labour Court is modified accordingly."

3.1 Thus, the backwages part was set aside and the direction regarding reinstatement and continuity in service was sustained.

3.2 Letters Patent Appeal No. 250 of 2013 against the aforesaid order of the learned Single Judge came to be dismissed by judgment dated 23.06.2014. The Supreme Court dismissed the Special Leave Petition also. It appears that earlier, contempt proceeding being Misc. Civil Application No. 1352 of 2015 was initiated by the present petitioner. It resulted into following order, "1. Shri. R.C. Jani, learned Counsel appearing on behalf of the R.C. Jani Associates for Respondent Nos.1 and 3, states under the instructions of Shri. Shamjibhai Koyabhai Garval, Chief Officer, Anand Municipality, that the cheques for the admissible amount totaling to Rs.4,32,291/- have been handed over to Shri. B.D. Jain, learned Advocate for the petitioner, who in turn handed over the same to the

C/MCA/2386/2017 ORDER DATED: 10/01/2023

petitioner, who is present in the Court, and he, further, submitted that the requisite proposal for regularization of the petitioner would be made to the concerned Competent Authority on, or before, 2ND MARCH, 2016. The petitioner may lodge his claim before the Chief Officer, Anand Municipality, in case, if, according to his understanding, the aforesaid amount is less than the amount admissible with proper justification for seeking higher amount. In that eventuality, the Chief Officer, Anand Municipality, will look into it and reply to the petitioner within a period of ONE WEEK from the receipt of such a communication and if the claim is admissible, according to the Chief Officer, then pay the said difference within ONE WEEK, thereafter.

2. Shri. Jain, learned Advocate for the Petitioner, under the Instructions of the petitioner, who is present in the Court, seeks permission to withdraw this petition with a liberty to file a fresh contempt petition in case of difficulty or non-compliance of the aforesaid statement.

3. Permission, sought for, is granted. This petition stands disposed of as WITHDRAWN. Notice is discharged. No order as to costs."

3.3 The amount arising out of continuity of service was paid for which there is no dispute.

4. While in the present proceedings, by filing reply affidavit, it was inter alia contended on behalf of the Municipality that the application was filed belatedly after 4 years. It was pointed out that the Town Planning Department of the Municipality whereunder the workman was previously engaged has been discontinued. In place of the Town Planning

C/MCA/2386/2017 ORDER DATED: 10/01/2023

Department, Anand-Vallabhvidhyanagar-Karamsad Urban Development Authority combining three different authorities came into existence. Notification in that regard was issued on 28.08.2012. This evidences the creation of Anand-Vallabhvidhyanagar- Karamsad Urban Development Authority in place of erstwhile Town Planning Department in the Municipality.

4.1 It is at the stage of earlier contempt proceedings mentioned hereinabove itself, steps were taken by the municipality in compliance of the directions and the workman was reinstated. It was stated in the affidavit dated 02.03.2016 filed in Civil Application No. 1809 of 2016, it was stated thus, "when the applicant came to join his duty on 24.02.2016 and he was immediately taken on job."

4.2 This aspect becomes admitted when not disputed by disputed by workman himself who in his rejoinder affidavit in the very proceedings stated thus (extracting from para 2 of the rejoinder),

"When I went to join my duty on 24/2/2016, the Chief Officer accepted my application but refused to take me as a clerk in town planning department today it is known as Anand Area Development Authority."

5. The order regarding payment of benefits was already complied with. The part of the order regarding reinstatement was also complied with by the

C/MCA/2386/2017 ORDER DATED: 10/01/2023

respondent Municipality. However, under the pretext that reinstatement ought to have been only in the Town Planning Department, the workman did not continue his duties though once joined the duties. Admittedly, the Town Planning Department no more exists. In that view, the workman was reinstated by the Municipality in the appropriate department.

5.1 The factum of reinstatement of the applicant was recorded in order dated 21.12.2018 passed by the Divsion Bench in Civil Application No.1 of 2016 in in Misc. Civil Application No. 1352 of 2015.

6. In above facts obtained on record and not disputed, no contempt, much less intentional or willful contempt is committed by the respondent Nagarpalika or the Chief Officer thereof.

Proceedings of contempt are hereby closed.                                    Notice is
discharged.             D.S. permitted.

7.     At      this          stage,      learned           advocate            for        the
applicant          stated       that     the    applicant            is     paralytic.
Learned       advocate           for     the     respondent             Municipality

stated that in view of the physical condition of the applicant, the Municipality will ensure that job suitable to the applicant is offered.

(N.V.ANJARIA, J)

(NIRAL R. MEHTA,J) BIJOY B. PILLAI