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Gujarat High Court · body

2016 DIGILAW 297 (GUJ)

Laxmanbhai Mohanbhai v. Lakhtar Gram Panchayat

2016-02-08

K.M.THAKER

body2016
ORDER : K.M. Thaker, J. 1. Heard Mr. Sanat Pandya, learned advocate for Ms. R.V. Acharya, learned advocate for the applicant and Mr. Gateshaniya, learned advocate for the opponent. 2. The applicant herein is the original respondent in Special Civil Application No. 2833 of 2008 and present opponent is original petitioner. 3. Feeling aggrieved by the award dated 04.04.2007, passed by learned Labour Court, Surendranagar, in Reference I.D. Complaint No. 8/01, present opponent filed captioned petition i.e. Special Civil Application No. 2833 of 2008. By the said award dated 04.04.2007, the learned Labour Court directed present opponent to reinstate present applicant on his original post with continuity of service and 50% backwages. 4. The captioned petition against the said order is pending for final hearing. Vide order dated 13.05.2008, while admitting the petition, the Court granted interim relief on condition to comply the requirement under Section 17B of the Industrial Disputes Act, 1947. 5. It appears that after some time, the employer i.e. present opponent opted to reinstate the respondent i.e. present applicant instead of paying last drawn wages. Accordingly, the applicant-original respondent is reengaged by the Petitioner-Panchayat i.e. present opponent, during pendency of the petition and subject to final outcome of the petition. 6. After the applicant i.e. original respondent came to be reinstated, he has taken out present application on the allegations that (a) opponent i.e. original petitioner is not paying salary for weekly off (i.e. on Sunday) and (b) that the opponent-original petitioner is directing the applicant to perform duties of different nature i.e. other than the work and duty of Bore operator, inasmuch as he is asked to perform the work of Electrician. With the said allegations, the applicant-original respondent has taken out present application and prayed, inter alia, that:-- "9(B) That this Hon'ble Court be pleased to direct the opponent herein to pay the salary to the applicant for Sundays and further to mark his presence on any valid register: (C) That this Hon'ble Court be pleased to direct the opponent to pay the outstanding salary of 2 months to the applicant and further to take work from the applicant as a Bore Operator only:" 7. In the facts and circumstances of the case, this application does not deserve to be entertained at this stage. 8. In the facts and circumstances of the case, this application does not deserve to be entertained at this stage. 8. It is necessary to mention that the applicant herein i.e. original respondent in the petition raised industrial dispute on the allegation that his service is illegally and arbitrarily terminated. The said dispute/reference was opposed by present opponent i.e. original petitioner. In its reply before the learned Labour Court, while opposing the reference and allegation by present applicant, the petitioner Panchayat asserted that the applicant herein was engaged on ad-hoc and fixed tenure basis. He was engaged on fixed salary and since it was found that he was irregular and in disciplined in performance of his duties, he was terminated on expiry of the tenure for which he was engaged. 9. After adjudicating the dispute, the learned Labour Court passed above mentioned award dated 04.04.2007. 10. It is also necessary to mention that during the proceedings of reference before the learned Labour Court (wherein award dated 04.04.2007 came to be passed) substantial dispute with regard to nature of duties performed and/or required to be performed by the applicant herein was raised. 11. The said aspect demonstrate that the dispute with regard to the nature of duties to be performed by the respondent has been contentious issue between present applicant and present opponent. 12. Having regard to the fact that from the award, it prima-facie appears that according to Petitioner-Panchayat, the respondent was engaged on ad-hoc and temporary basis and that he was engaged without following procedure of selection and recruitment and he was not engaged on any particular vacancy on any particular sanctioned post and that he was engaged to perform miscellaneous and diverse work as may be required. 13. Even in present application, the opponent-original petitioner Panchayat has filed affidavit. In the reply affidavit, the panchayat has asserted that:-- "4. In reply of para 5 it is denied that the Sarpanch on his own whims and fences without passing any resolution had made chances in the condition of appointment of the applicant and asked him to work on the post of electrician. I say and submit that the gram panchayat can take other work like street light repairing from the applicant and also there is condition in the appointment letter dated 25.09.1989. 5. I say and submit that the gram panchayat can take other work like street light repairing from the applicant and also there is condition in the appointment letter dated 25.09.1989. 5. It is further stated that during the pendency of the petition between parties, the gram panchayat had given letter dated 22.01.2014 to the applicant and he was ordered to work as daily wager on wage of Rs. 218/- per day. It is stated above appointment letter was received by the applicant on 28.01.2014. It is stated that in above letter also there was condition to work water supply and other related works and also to work of street light repairing if need to do so." 14. In this view of the matter, so far as issue related to nature of work which the applicant is asked or obliged to perform, any direction cannot be passed at this stage having regard to the allegations by the applicant and the facts asserted by the Petitioner-Panchayat in its affidavit and also in view of the aspects which have emerged from the award impugned in the petition. 15. It is necessary to keep in focus that the applicant herein is reengaged by the petitioner in view of the interim order and by way of interim arrangement until the petition is finally disposed of. Further, he is reengaged subject to result of the petition. 16. It is also necessary to note that the appointment letter issued by the Panchayat gives out that the applicant herein is obliged to perform all works related to Pump house as well as the maintenance of main valve and light repairing i.e. street light and other lights maintained/operated by the Panchayat. 17. In this view of the matter, at interim stage, the allegations made and grievance raised by the applicant cannot be entertained in this application. 18. If the applicant has any dispute with regard to nature of dispute which he has to perform in view of his appointment, the applicant may raise appropriate substantive dispute before the appropriate forum and get the dispute adjudicated. 19. The dispute and allegations raised by the applicant would require adjudication with regard to the disputed facts. 20. So far as applicants claim for payment of wages for Sunday is concerned, the Petitioner-Panchayat has clarified the said aspect in its reply affidavit. It is averred and asserted by the Panchayat that:-- "6. 19. The dispute and allegations raised by the applicant would require adjudication with regard to the disputed facts. 20. So far as applicants claim for payment of wages for Sunday is concerned, the Petitioner-Panchayat has clarified the said aspect in its reply affidavit. It is averred and asserted by the Panchayat that:-- "6. It is stated that the present applicant is not given work on Sunday and he was instructed to give the key of room of equipments and machineries of water supply at evening every Saturday and to take the key on Monday working day from the concerned officer of Panchayat. However, the applicant was not complying the same and he had used to lock hows own lock and make inconvenience to Gram Panchayat on discharging duty of water supply to villagers. It is stated that the applicant was give notice dated 22.09.2014 by the opponent in connection with such wrongful act of applicant. 7. In reply of para 6, it is stated that the opponent is not aware about any litigations between the applicant and his brother. It is denied that the Sarpanch is having close relationship with brother of the petitioner. It is also denied that the petitioner is mentally and physically harassed by the Sarpanch by issuing false notice. It is also denied that the petitioner has not been paid his salary from last 2 months. It is submitted that present petition is not maintainable. It is stated that the applicant is misbehaving with the staff of Gram Panchayat and also he is committing default in discharging his duty and also committed the act against the interest of Gram Panchayat and public at large. It is stated frequently the motor pump of water supply was damaged due to negligence act of the applicant and the opponent panchayat had suffered huge loss. It is stated that the applicant was given notice dated 14.08.2015 due to his negligent act and default in discharging his duty even the applicant was not complying the instruction and order of the officer of Gram Panchayat. It is stated that the applicant was given notice dated 14.08.2015 due to his negligent act and default in discharging his duty even the applicant was not complying the instruction and order of the officer of Gram Panchayat. It is further stated that thereafter on 16.10.2015 the applicant was also given another notice as he was not sincerely discharging his duty but intentionally he was persistently committed default and it was not in the interest of Panchayat as well as public at large to give the work to the applicant in water supply and therefore he was ordered to work for street light repairing." 21. From the details mentioned by the Petitioner-Panchayat in its reply affidavit, more particularly in Paragraph Nos. 5 to 7 that the applicant herein was engaged and he is presently engaged on daily wage basis and he is not called upon to work for any Sunday. 22. Under the circumstances, the applicant herein has to establish his right to claim wages for the days on which he is not called upon to work. The claim raised by the applicant in present application, can be decided necessitated only after adjudication, which cannot be entertained in Civil Application filed during the pendency of the main petition. 23. The applicant may take out appropriate proceedings to establish his right for wages and to prove allegation that though entitled he is not paid full wages as required by law. 24. The said issue also involves questions of facts which would necessitate evidence by both the sides. Under the circumstances, the application does not deserve to be entertained. With the aforesaid reasons, clarifications and observations, present application is disposed of. Rule is discharged.