Gujarat High Court
Dhiren R Acharya vs Gujarat State Electricity Corporation ... on 24 June, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/1272/2024 ORDER DATED: 24/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1272 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 15307 of 2014
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DHIREN R ACHARYA
Versus
GUJARAT STATE ELECTRICITY CORPORATION LIMITED & ANR.
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Appearance:
MR HEMAL K ACHARYA(6021) for the Appellant(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 24/06/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal, filed under Clause 15 of the Letters
Patent, 1865, is directed against the judgment and order dated
18.04.2024 passed in Writ Petition being Special Civil
Application No.15307 of 2014, whereby the learned Single
Judge has dismissed the writ petition.
2. The writ petition was filed seeking the following prayer : -
"18. (B) Be pleased to issue a writ of certiorari or any other
appropriate writ In the nature of certiorari and or in nature of
mandamus quashing and setting aside the decision taken by the
petitioned on dated 19.11.2013 rejecting the application of the
petitioner for considering the benifit of establishment circular
nos.446 and 371 and further be pleased to direct the respondents to
give the benifit of establishment circular no.371 nd 446 to the
petitioner w.e.f.16.08.1984 and further be pleased to pay the amount
of arrears w.e.f.16.08.1984 to 11.05.1987 to the petitioner as given
to the similarly situated employees and further to direct the
respondents to make fixation of pay-scale w.e.f.16.08.1984 with the
benefit of seniority and 9% interest on arrears paid to the petitioner
from the retrospective date."
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3. Thus, the present appellant - original petitioner has
challenged the order dated 19.11.2013, whereby the
petitioner's application seeking the benefit of Establishment
Circular Nos. 446 and 371 was rejected by the respondent -
authority. The appellant has further prayed for the grant of
differential pay, i.e. arrears, for the period from 16.08.1984 to
11.05.1987.
4. The facts, as evident from the record of the writ petition,
are that the petitioner was initially appointed on 16.08.1984 as
a Store Lasker (Work-Charge). Thereafter, on 11.05.1987, he
was appointed as a Store Lasker on a supernumerary post. It is
the appellant's case that he was posted as a Junior Assistant at
the Thermal Power Station, Sikka, and was confirmed as a
Junior Assistant with the erstwhile Gujarat Electricity Board
(G.E.B.) on 16.02.1989. Subsequently, on 17.04.2001, he was
promoted to the post of Senior Assistant at the same station.
5. It appears that the appellant, along with other
employees, raised an industrial dispute seeking the benefits of
Establishment Circular No.446, which culminated into the
reference proceedings being Reference (I.T.) No. 101 of 1991.
The Industrial Tribunal, Rajkot, passed an order dated
26.07.2014, directing the respondents to extend the benefits
of Establishment Circular No.446 dated 14.02.1985 to all the
concerned employees, including the present appellant. The
Tribunal has further directed that the benefits applicable to the
Junior Assistants is granted to them by placing them in the
appropriate pay-scale, along with consequential benefits
effective from 03.03.1991, with interest at the rate of 6%.
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6. Learned advocate Mr.Hemal K. Acharya, appearing for
the appellant, has submitted that the benefits, as directed by
the Tribunal, were already disbursed during the pendency of
the reference proceedings. However, the seniority of the
appellant as a Junior Assistant has been incorrectly fixed, and
he is also entitled to all consequential benefits with
retrospective effect, in accordance with Establishment Circular
No.446 and the directions issued by the Tribunal. In brief, it is
the appellant's case that the aforesaid award has not been
fully complied with.
7. He has further contended that, on 14.06.1993, the
respondents passed an Office Order granting the benefit of the
pay scale of Rs.1240-3440/- to eight Senior Assistants, who
had been appointed as Junior Clerks. It is further submitted
that, in view of Establishment Circular No. 446, the appellant is
also entitled to the similar arrears of pay, which have not been
paid till today, despite the directions issued by the Tribunal.
8. While referring to the observations recorded by the
learned Single Judge, the learned advocate Mr.Acharya, has
submitted that the writ petition has been rejected on the
ground that the impugned decision of the year 2014 could not
be challenged after delay of 10 years by way of a writ petition.
9. Per contra, learned advocate Mr.Dipak Dave, appearing
for the respondents, has submitted that the judgment and
order passed by the learned Single Judge may not be
interfered with, as the appellant has made two attempts to
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mislead this Court by suppressing material facts. He submitted
that the appellant had earlier filed Special Civil Application
No.9307 of 2013, and in the affidavit-in-reply filed therein,
when the respondents pointed out that the appellant had
willfully suppressed the fact, that on the same cause of action,
he had already raised an industrial dispute, which culminated
into the reference being Reference (I.T.) No.101 of 1991, he
had withdrawn the said petition on the ground that he
intended to make a representation for claiming the benefits
under Establishment Circular No.446. It is further submitted
that, thereafter, the appellant filed the present writ petition
seeking similar reliefs. Learned advocate Mr.Dave, has also
pointed out that the appellant, along with other employees,
had earlier filed contempt petitions seeking enforcement of the
award passed by the Tribunal, being Misc. Civil Application
Nos.2048, 2049 and 2056 of 2006, which came to be disposed
of by order dated 01.02.2007.
10. He has further submitted that the appellant-petitioner
has also suppressed the fact that he had filed a recovery
application before the Labour Court, being Recovery
Application Nos.16 of 2005 to 25 of 2005, jointly with nine
other employees. The Labour Court, by its judgment dated
17.06.2016, dismissed the said recovery applications. It is
submitted that this material fact was also not disclosed by the
appellant in the present writ petition.
11. While referring to the contents of the affidavit-in-reply
filed by the respondents on 20.09.2024, it is submitted that all
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the benefits under Establishment Circular No.446 are already
extended to the appellant at the relevant time, following the
award passed by the Industrial Tribunal. Learned advocate Mr.
Dave has further submitted that the appellant was granted the
benefit of the First Higher Pay Scale with effect from
10.05.1996, and was subsequently absorbed in the said pay
scale as a Senior Assistant in the year 2001. Thereafter, he
was granted the Second Higher Pay Scale in 2006, and the
Third Higher Pay Scale in 2017. It is submitted that the
appellant has deliberately suppressed these material facts
from the Court, and therefore, the present appeal deserves to
be dismissed with exemplary costs.
12. We have heard the learned advocates appearing for the
respective parties.
13. The facts established from the record indicate that the
appellant served as a Senior Assistant and retired from service
in December 2019. He filed the captioned writ petition in 2014,
seeking the benefits under Establishment Circular Nos. 446
and 371, along with the pay and arrears for the period from
16.08.1984 to 11.05.1987.
14. A specific contention has been raised by Mr.Acharya, on
behalf of the appellant that the respondents have not fully
complied with the directions issued by the Tribunal vide award
dated 26.07.2004, passed in Reference (I.T.) No. 101 of 1991.
The appellant, along with eight other employees, had raised an
industrial dispute through their Union seeking the benefit of
Establishment Circular No.446. The Tribunal directed the
respondents to confer the pay-scale in accordance with the
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said circular and to grant arrears from the date of reference,
i.e., 30.03.1991, along with interest at the rate of 6%. It
appears that since the benefits, as directed by the Tribunal,
were not extended to the appellant and other similarly situated
employees, they filed contempt application being Misc. Civil
Application No.2048 of 2006 and allied matters. By an order
dated 01.02.2007, the Division Bench rejected the
applications, recording as under: -
"3. The applications must fail on following counts:-
(i) There is no allegation of total non-compliance of the order.
(ii) The non-compliance alleged is on the ground that interpretation
given to the award by the other side is not proper because the award
says that seniority is to be fixed accordingly and it should be fixed for
future promotions also.
4. In our opinion, when it comes to interpretation of an award and
where the interpretation made by the party concerned, while
implementing the award, cannot be considered as absurd or
erroneous ex facie, powers under the Contempt of Courts Act are not
required to be exercised, particularly when there is compliance of the
award in part because it cannot be said that the alleged non-
compliance is wilful. The interpretation made by the other side in
respect of preparation of seniority list and grant of promotion, in our
view, cannot be considered as an absurd or improbable one.
5. There is no dispute that the applicants have already preferred
recovery proceedings which are pending. A proceeding under Section
29 of Industrial Disputes Act for breach of award is already pending
before the Government Labour Officer (G.L.O.), Jamnagar."
15. Thus, in the contempt petitions, the Division Bench
categorically recorded that the contention regarding seniority,
as raised before the Coordinate Bench, was not found to be
proper, and there was no allegation of total non-compliance
with the order. The Coordinate Bench further observed that
there was no willful non-compliance of the Tribunal's order,
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and the interpretation adopted by the respondents with
respect to the preparation of the seniority list and the grant of
promotion could not be considered as either absurd or
improbable. The Division Bench also specifically noted that the
present appellant, along with others, had already initiated the
recovery proceedings, which are pending before the Labour
Court, Jamnagar.
16. The appellant, along with other employees, had also filed
recovery proceedings under Section 33C(1) of the Industrial
Disputes Act, 1947, by way of Recovery Application Nos. 16 of
2005 to 25 of 2005, seeking arrears and other benefits in
accordance with the award dated 16.08.1984 passed by the
Tribunal in Reference (I.T.) No. 101 of 1991.
17. By a detailed order, after considering various
communications and the orders passed by the respondents,
the Labour Court rejected the said recovery applications. It is
pertinent to note that in the said order, the Labour Court
recorded that the appellant, along with other employees, had
admitted that the respondents had revised and altered their
seniority in accordance with the award passed in Reference
(I.T.) No.101 of 1991, and the subsequent promotions, which
they were claiming in the recovery applications were based on
such seniority. While dismissing the recovery applications, the
Labour Court further opined that the award passed by the
Tribunal in Reference (I.T.) No. 101 of 1991 had been fully
complied with, and that the promotions now being claimed by
the employees were never a subject matter of the said
reference.
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18. Thus, when the matter was taken up for hearing today, a
categorical statement was made by learned advocate
Mr.Acharya, appearing for the appellant, that the appellant had
already been offered promotion at the time when the award
was passed by the Industrial Tribunal on 26.07.2004. However,
the appellant was never conferred the appropriate seniority or
granted further promotion as contemplated under Circular No.
446 and as directed by the Labour Court. This statement does
not reconcile with the prayers made in the writ petition. The
respondents in the affidavit have categorically mentioned that
all the benefits are paid, and he has also been conferred the
benefit of promotion and also the higher pay scales.
19. It is also observed by us that in the captioned writ
petition, the petitioner has not disclosed the filing of the
recovery applications by the appellant, nor the order passed
therein has been challenged. This omission amounts to a
material suppression of fact, which goes to the root of the
matter. Furthermore, although the appellant has referred to
the award dated 26.07.2004 passed in Reference (I.T.) No. 101
of 1991, the said award was not produced on record by him.
20. It is also not in dispute that prior to filing of the captioned
writ petition, the appellant had filed Special Civil Application
No.9307 of 2013 seeking the same relief. However, the said
petition was withdrawn vide order dated 26.09.2013 with a
view to file a representation. Pursuant to the said order, the
petitioner submitted a representation, which came to be
rejected by the respondents on 19.11.2013. The rejection of
the representation was thereafter challenged in the present
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writ petition. Thus, the relief which could not have been
claimed before the Tribunal in the initial proceedings, and if it
was indeed the petitioner's case that the benefits directed by
the Tribunal were not fully granted, he ought to have
challenged the order in writ petitions. Before the Coordinate
Bench, in the contempt proceedings, no statement has been
made that he was not paid the benefits as directed by the
Tribunal. The findings recorded in the recovery applications by
the Labour Court are also not challenged. On the contrary, the
appellant pursued two parallel proceedings; one by way of the
present writ petition and another through recovery
proceedings, which has been suppressed in the writ petition
before this Court. In view of the above, we are not inclined to
entertain the present appeal and the same deserves to be
rejected.
21. Accordingly, the present writ petition is rejected.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(R. T. VACHHANI, J)
MAHESH/09
