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Gujarat High Court · body

2017 DIGILAW 70 (GUJ)

Mantrishri v. Chaturbhai Harmanbhai Prajapati

2017-01-13

S.G.SHAH

body2017
JUDGMENT : S.G. Shah, J. 1. Heard learned advocate Ms. Mamta Vyas for the petitioners. Respondent No. 1, though duly served on three occasions - initially when petition was filed, then again in the year 2010 and thereafter again in the year 2016 pursuant to order dated 23.11.2016 for issuance of fresh notice, has failed to appear and contest the petition. I have also heard learned advocate Ms. Trisha Haribhakti for learned advocate Mrs. V.D. Nanavati for respondent No. 2 and learned AGP Mr. Swapneshwar Gautam for respondent Nos. 3 and 4 on merits. Perused the record. 2. It seems that respondent No. 1 has not filed any affidavit in reply but pursuant to directions in order dated 18.06.2010 respondent No. 1 has filed one affidavit sworn on 23.06.2010 which is at page 187. With such affidavit petitioner has annexed some documents. However, except this short affidavit no formal affidavit in reply is filed on record. It is undisputed fact that respondent No. 1 herein has retired from the service of the petitioner college w.e.f. 30.11.1989. Thereafter, respondent No. 1 has preferred one application being Application No. 125 of 1992 on 13.10.1992 before the Gujarat Affiliated Colleges Service Tribunal (herein after referred to as "the Tribunal"). The petitioner has resisted such application by filing their detail reply before the tribunal. However, the tribunal has by its order dated 13.02.2002 partly allowed the application and directed the petitioners to pay certain amount to respondent No. 1. Such decision was challenged by the petitioners in Special Civil Application No. 10016 of 2002 before this High Court. 3. By its judgment and order dated 27.01.2005, the co-ordinate bench of this High Court has as back as in the year 2005 while partly allowing the petition, rejected the claim of respondent No. 1 so far as house rent, vehicle allowance, difference of salary for the period of suspension, interest over the amount of difference of amount etc. confirmed that respondent is entitled to only sum of Rs. 2,713/- with 12% interest per annum and Rs. 2,984/- being the amount of leave travel concession. The Court has directed the petitioner to pay such amount with 12% interest. Therefore, first order of the tribunal was modified by the High Court vide judgment dated 27.01.2005 in such Special Civil Application No. 10016 of 2002. 2,713/- with 12% interest per annum and Rs. 2,984/- being the amount of leave travel concession. The Court has directed the petitioner to pay such amount with 12% interest. Therefore, first order of the tribunal was modified by the High Court vide judgment dated 27.01.2005 in such Special Civil Application No. 10016 of 2002. Therefore, now petitioners are liable to pay as per such judgment only and, thereby, respondent No. 1 is entitled to only limited amount as stated herein above. 4. However, it seems that after getting such amount, petitioner has again filed one application before the tribunal which was numbered as Application No. 40 of 2006. In such fresh application, copy of which is produced at annexure C at page 50 now respondent No. 1 has averted several grounds and prayed for as many as 13 prayers including demand of certain amount in prayer No. 9(D). However, if we peruse the prayer 9(D), one thing is clear that petitioner is claiming interest on interest though the same was not awarded by this High Court or by the tribunal, which are referred herein above. It is made clear that though High Court has rejected the claim for house rent, petitioner has again claimed for house rent so also telephone charges, audit report charges etc. Surprisingly, when such amount needs to be scrutinized, the tribunal has by its interim relief dated 28.09.2008 directed the present petitioner to pay the amount as per para 4(C) to 4(F) probably for an application for interim relief with 6% interest. Such order is at Annexure D. The perusal of such order makes it clear that practically it was first returnable date after service of notice of main application when appearance was filed by the other-side and, therefore, tribunal has recorded that when appearance is filed and when time is not sought for filing reply, it has been recorded that there is no submission by the present petitioner and, thereby, tribunal has relied upon the submission by learned advocate of the respondent No. 1 as if respondent No. 1 is entitled to entire amount while passing such interim order 4.1 Therefore, petitioner has filed a review application dated 13.09.2006 so also detail affidavit in reply before the tribunal but as submitted by learned advocate Ms. Vyas after filing such affidavit in reply on 04.10.2006 without actual hearing of the main matter, the tribunal has by its order dated 29.06.2009 partly allowed an application and by allowing the prayer as per prayer 4(c), (e) and (f) in favour of respondent No. 1 with 6% interest. Though it can be considered as typographical error since actual relief clause in main petition before the tribunal is in para 9 whereas in interim relief as well as final impugned judgment, the tribunal has recorded that prayers as per para 4(c) (e) and (f) are allowed, wherein practically there are averments only that how and why respondent No. 1 is entitled to certain amount. Whereas actual prayer clause is para 9(a) to (m). 4.2 The perusal of impugned judgment further shows that in such para 2 and 3 of such judgment practically the tribunal has simply reproduced the averments in the petition and without discussing the rights of the petitioner immediately after disclosing the factual details in para 4, the application was allowed in following manner: "I have gone through the application memo mainly paras 4 & 5 of the application and as per 4(c), (e) & (f), prayers are granted in favour of the applicant with interest of 6% and in another paragraphs which are allowed whereby the Applicant's prayer is allowed by this Tribunal is also with interest of 6% to the Applicant from such date. I hereby feel it proper to give precise direction to the Respondents management of pay all the amounts for which the Applicant is entitled to within six weeks after the receipt of this order. In view of above, I hereby also feel it proper to add that the Respondent management has to take a decision as early as possible and to pay the amount to the Applicant as he was retired from the services of the Respondent college w.e.f. 1989 and to-day we are in 2009 and even after 20 years the Applicant has to knock the door of the Court is also not proper for the Respondent college. Hence, I hereby give direction to the Respondent management to cooperate with the Applicant with full sympathy. In view of above, the matter is partly allowed and stands disposed of." 5. Hence, I hereby give direction to the Respondent management to cooperate with the Applicant with full sympathy. In view of above, the matter is partly allowed and stands disposed of." 5. Therefore, the perusal of entire record and impugned order categorically confirm that though respondent No. 1 has already agitated all his grievances as back as in the year 1992 by his application No. 125 of 1992 before the tribunal and though it was adjudicated and ultimately as per judgment dated 27.01.2005 by this High Court where it was held that respondent No. 1 is not entitled to all the claims as prayed for by the respondent No. 1; without appreciating the judgment by the High court in accordance with law almost after more than a year after the decision by the High Court, petitioner has agitated the same issue before the tribunal and unfortunately the tribunal had without considering the previous decisions between the parties by this High Court, simply by reproducing the pleadings by respondent No. 1 allowed the application partly by impugned order. 6. One more issue is glaring on record i.e. time gap, in as much as, though respondent No. 1 had retired from the service in the year 1989, he has re-agitated the issue in 2006. The law is well settled that even if there is no specific time limit for agitating the particular issue then also such issues are to be agitated in some short period and not after the five years as done by respondent No. 1. Moreover, in first round of litigation, this High Court has crystallized the rights of respondent No. 1 and, therefore, the tribunal cannot entertain the application for same relief, which was otherwise refused by the High Court. 7. Since, there is no detail affidavit in reply filed by respondent No. 1 may be because he is knowing that he has no case in this petition. However, he has filed one small affidavit for producing some documents. Perusal of such affidavit makes it clear that such affidavit is actually filed so as to support his case by filing some documents and communication and calculation sheet. However, such calculation sheet disclosed different amount of interest. In any case, it does not prove the case of respondent No. 1 precisely as claimed by him before the tribunal. Perusal of such affidavit makes it clear that such affidavit is actually filed so as to support his case by filing some documents and communication and calculation sheet. However, such calculation sheet disclosed different amount of interest. In any case, it does not prove the case of respondent No. 1 precisely as claimed by him before the tribunal. On the contrary, at least one of the communication at annexure EE (page 196) shows that, in fact, respondent No. 1 was negligent in giving receipt even after receiving the amount from the petitioner. Whereas respondent No. 1 has also annexed some communication by him to the petitioner wherein, he has claimed interest over interest which is not allowed by the High Court or by the tribunal in previous round of litigation. By letter dated 18.08.2006, annexure HH, on the contrary, petitioner has disclosed all the details of payment while forwarding the cheque to respondent No. 1 and, therefore, now there is no reason for respondent No. 1 to complain about the non payment or otherwise by the petitioner. If at all there is any genuine error in calculation, respondent No. 1 should have brought it to the notice of the petitioner, but for the amount which is not granted by the judgment and order dated 27.10.2005 in SCA No. 10016 of 2012, the petitioner is not entitled to agitate such issue repeatedly and that too again before the tribunal. 7.1 Though respondent No. 1 has remained absent before the Court it would be appropriate to refer the citation relied upon by him with his affidavit as aforesaid which is 2014 (1) GLR 664 between State v. Bhavani Industries wherein with reference to the payment of provident fund, the Single Judge of this High Court has while considering the limitation under Section 468 of the Code of Criminal Procedure confirmed that if there is default in making payment, liability does not cease from the next day and that duty cast upon the employer to make the payment under the provisions of the Act which continues so long as the payment is not made and ground of limitation under Section 468(2) of the Code of Criminal Procedure is not applicable. Even if we honour such observations and judgment, the fact remains that here is not the case of not paying the provident fund amount and more particularly when amount is fixed by the High Court by its judgment and order dated 27.10.2005, if at all there is any discrepancy in the calculation then initially respondent No. 1 has to take to the notice of the High Court. But filing of fresh application before the tribunal is certainly not justified. 8. In view of above facts and circumstances, when impugned order is not a speaking order and not assigning any reason for allowing such relief, the same cannot sustain. Respondent No. 1 is not entitled to any relief except granted earlier by judgment and order dated 27.10.2005 in Special Civil Application No. 10016 of 2012. The impugned order needs to be quashed and set aside. 8.1 In view of above facts and circumstances, application is allowed as prayed for. Order dated 29.06.2009 in Application No. 40 of 2006 by the tribunal so also interim order dated 14.09.2006 are hereby quashed and set aside. Petition is allowed to that extent. Rule is made absolute. Direct Service is permitted.