Bhuj Municipality vs Suleman Hussain Bakali
2023 Latest Caselaw 2201 Guj

     C/SCA/11298/2018                             ORDER DATED: 13/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 11298 of 2018
                                 With
           R/SPECIAL CIVIL APPLICATION NO. 20526 of 2017
                                 With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
   NO. 1 of 2018 In R/SPECIAL CIVIL APPLICATION NO. 20526 of 2017
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                           BHUJ MUNICIPALITY
                                 Versus
                    SULEMAN HUSSAIN BAKALI & 1 other(s)
==========================================================
Appearance:
MR BY MANKAD(440) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR PH PATHAK(665) for the Respondent(s) No. 1
MR ROHANKUMAR RAVAL, AGP for respondent No.1 IN SCA
NO.20526/2017 and CA NO.1/2018
==========================================================

 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                              Date : 13/03/2023

ORAL ORDER

IN R/SPECIAL CIVIL APPLICATION NO. 11298 of 2018

1. The present Special Civil Application is filed praying for the following reliefs:-

"(a) that this Hon'ble Court be pleased to issue a writ of Mandamus and or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned orders dated 4/10/2010 in Recovery Application No.28 of 1997; order Dt. 31/01/2017 in I. D. Misc. Application No.18/12 and order dated 22/7/2016 in Recovery Application No.1/16 passed by Resp. No.2, the Labour Court at Bhuj;

(b) that pending hearing and final disposal of this Special Civil Application the execution and implementation of the impugned orders dated

C/SCA/11298/2018 ORDER DATED: 13/03/2023

4/10/2010 in Recovery Application No. 28 of 1997; order Dt. 31/01/2017 in I. D. Misc. Application No.18/12 and order dated 22/7/2016 in Recovery Application No.1/16 passed by Resp. No.2, the Labour Court at Bhuj may please be stayed;

(c) any other appropriate order or orders be passed in the special and peculiar facts and circumstances of this case."

2. The factual matrix in the present case is as follows :-

2.1 That the respondent workman was working with the petitioner Municipality as a driver from 01.02.1982. The respondent workmen preferred an application before the learned Labour Court for recovery of the difference of pay between the posts of driver and labourer because the respondent workman was appointed as a driver and was performing his duty as a driver, but he was being paid the salary as a labourer. He therefore claimed the difference of pay along with other benefits of the post of driver from the date of his appointment with 18% interest from 01.02.1982 till the payment is made.

2.2 Notice came to be issued to the petitioner Municipality. In response, the petitioner Municipality appeared through its advocate and filed their reply contending that the application of the workman is false, fabricated and all the other contentions were denied. It was contended that the applicant workman is not entitled to any relief as prayed for and the recovery application be dismissed with costs. In support of his case, the respondent workman produced documentary evidence as well as examined himself by way of oral evidence. In support of their case, the petitioner Municipality did not produce any oral

C/SCA/11298/2018 ORDER DATED: 13/03/2023

or documentary evidence in the said recovery application.

2.3 By the impugned order dated 04.10.2010, the learned Labour Court was pleased to direct the petitioner Municipality to pay the amount of difference of arrears of pay, D.A. etc. between the pay of driver and labourer with effect from 01.02.1982 till he is given regular pay of driver along with interest at the rate of 12% per annum.

2.4 It appears that similar orders came to be passed in case of other three similarly situated workmen. All these orders along with impugned order dated 04.10.2010 came to be challenged by the petitioner Municipality by way of preferring Special Civil Application Nos.15422 of 2010, 15423 of 2010, 15424 of 2010 and 15425 of 2010. By common judgment dated 21.03.2011 passed in Special Civil Application No.15422 of 2010 and other allied matters, this Court disposed of all the petitions directing the petitioner Municipality to file appropriate application under Rule 26A of the Industrial Disputes Rules. Accordingly, the petitioner Municipality preferred an application under Rule 26A of the Industrial Disputes Rules seeking recall of impugned order dated 04.10.2010. The said application was filed along with delay condonation application. The learned Labour Court dismissed the application for condonation of delay.

3. Learned advocate Mr. B. Y. Mankad appearing on behalf of the petitioner Municipality submits that in the present case, there is no adjudication with respect to the amount of difference of arrears of pay, D.A. etc. to be paid to the respondent workman in the impugned order. He further submits

C/SCA/11298/2018 ORDER DATED: 13/03/2023

that the learned Labour Court has accepted the amount claimed by the respondent workman without any adjudication as to whether he was entitled to the said amount as claimed. He submits that even otherwise, the impugned order dated 04.10.2010 has to be adjudicated on merits as the challenge to the same was dismissed on the ground of delay. He therefore submits that in absence of any adjudication as to the entitlement of the respondent workman as well as difference in the amount, the present Special Civil Application be allowed and the impugned order be set aside.

4. Per contra, learned advocate Mr. P. H. Pathak appearing with learned advocate Ms. Reena Kamani for the respondent workman submits that the petitioner Municipality preferred the Special Civil Applications against the similarly placed other three workmen who had been granted the benefits by the learned Labour Court. He submits that these three Special Civil Applications have been dismissed and the orders have also been accepted and implemented by the petitioner Municipality in the cases which were earlier rejected by common order dated 21.03.2011 directing the petitioner Municipality to prefer an application under Rule 26A. Learned advocate for the respondent workman also submits that in Recovery Application No.1 of 2016, the respondent workman gave the calculation for the amount which has been accepted and therefore, the learned Labour Court has rightly come to the conclusion that he is entitled to the amount of Rs.2 Lacs along with interest at the rate of 12% per annum till the date of actual payment. He therefore submits that present Special Civil Application be dismissed and no interference is called for in the impugned

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order.

5. Heard learned advocates for the respective parties and perused the documents on record.

6. In the present case, it is not disputed that there were three other similarly situated workmen who were working as a driver and were being paid the salary as a labourer. Further, all these workmen including the petitioner had approached the learned Labour Court, Bhuj for recovery of the amount of difference of arrears of pay, D.A. etc. between the pay of driver and labourer. All these workmen were appointed as a driver and were performing their duties as a driver, however they were being paid the salary as a labourer.

7. The petitioner Municipality challenged the impugned order dated 04.10.2010 along with the orders passed in the cases of similarly placed other three workmen by filing Special Civil Application Nos.15422 of 2010, 15423 of 2010, 15424 of 2010 and 15425 of 2010. In the present case, Special Civil Application No.15425 of 2010 was filed. It is not disputed that these four petitions were disposed of directing the petitioner Municipality to prefer an application under Rule 26A of the Industrial Disputes Rules. It is also not disputed that in case of other three similarly situated workmen, the amount has been paid and the orders have been complied with.

8. This Court is of the opinion that the present respondent workman cannot be discriminated as the orders with respect to the payment of difference of pay have been complied with in case of other three similarly situated workmen. In the

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present case, the case has been prolonged since the impugned order was passed on 04.10.2010. Even after 12 years, the respondent workman in the present case is unable to get the benefit of the recovery certificate. The conduct of the petitioner Municipality also shows that they have not contested the proceedings by way of producing any cogent or documentary evidence on record disputing the claim of the respondent workman.

9. In view of the aforesaid observations, this Court is not inclined to exercise its discretion under Articles 226 and 227 of the Constitution of India in favour of the petitioner. The petition is devoid of merits and the same is accordingly dismissed.

10. This Court, by order dated 26.07.2018, had directed the petitioner Municipality to deposit the entire amount as mentioned in the recovery certificate in this Court, which has been deposited in this Court on 07.08.2018 and the said amount is lying with the Registry. The respondent workman is permitted to withdraw the same along with interest accrued on it, if any. The Registry is directed to pay the said amount to the respondent workman after due verification and following due procedure upon an application being made by the respondent workman.

ORAL ORDER IN R/SPECIAL CIVIL APPLICATION NO. 20526 of 2017

In view of the order passed in Special Civil Application No.11298 of 2018, the same is disposed of in said terms accordingly.

C/SCA/11298/2018 ORDER DATED: 13/03/2023

ORDER IN CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT) NO. 1 of 2018.

In view of the order passed in Special Civil Application No.11298 of 2018, the same is disposed of accordingly.

(ANIRUDDHA P. MAYEE, J.)

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