Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 932 (GUJ)

Chief Officer v. Bhikhabhai Rudabhai Dabhi

2019-10-16

A.J.SHASTRI, VIKRAM NATH

body2019
ORDER : Vikram Nath, J. 1. The present appeal under Clause 15 of Letters Patent is filed by appellant - Chorwad Nagar Palika against the order dated 19.12.2018 passed by the learned Single Judge of this Court in Special Civil Application No. 2343 of 2016, whereby, the petition came to be allowed. 2. The background of facts which has given rise to present Letters Patent Appeal are that opponent No. 1 herein, who is original petitioner, had joined appellant - Nagar Palika as a Junior Clerk from 01.02.1979 and since opponent No. 1 herein as well as other similarly situated employees were not given the legitimate benefits of permanency, an industrial dispute was raised through respective Union, which was registered as Reference (I.T.) No. 529 of 1984 before the learned Industrial Tribunal, Rajkot. By way of award dated 30.07.1993, the learned Tribunal was placed to consider the grievance of the original petitioner alongwith other employees and directed to extend the benefits of permanency to those workmen before it on completion of 240 days service and such benefits of permanency were directed to be made available with effect from 01.10.1988. It is the case of opponent No. 1 herein - original petitioner that pursuant to the said award, passed by the Industrial Tribunal, the opponent No. 1 herein was treated as permanent employee and during the passage of time, the Chorward Nagar Panchayat was converted into Nagar Palika and in Nagar Palika also, the opponent No. 1 herein was treated as a permanent employee which reflects from the service book. It appears that appellant - Nagar Palika has accepted the terms of the award, as referred to above, in its General Body Meeting on 30.10.1993 and by virtue of that resolution also, the award passed by the Industrial Tribunal was accepted by Nagar Palika. 2.1. It appears that appellant - Nagar Palika has accepted the terms of the award, as referred to above, in its General Body Meeting on 30.10.1993 and by virtue of that resolution also, the award passed by the Industrial Tribunal was accepted by Nagar Palika. 2.1. The grievance of the opponent No. 1 herein remain to the effect that though the benefits of permanency were required to be extended with effect from 01.10.1988, actual benefits were not transmitted even though opponent No. 1 herein came to be promoted to the post of Head Clerk-cum-Accountant by virtue of General Body resolution of appellant - Nagar Palika dated 16.03.1996 and 13.03.1999, even the benefits of recommendation of 4th pay commission have also been granted, but the benefits flowing out of the aforesaid award of Industrial Tribunal were not extended and by that time, the opponent No. 1 herein attained the age of superannuation on 28.02.2013. 2.2. It is case of the opponent No. 1 - original petitioner that despite several representations having been made for seeking such benefits by extending pensionary benefits despite he was superannuated as a regular employee, no grievance is satisfied which has constrained the opponent No. 1 herein to submit a petition before this Court under Article 226 of the Constitution of India. 2.3. The said petition was heard at length before the learned Single Judge and after considering the submissions of both the sides and after considering the binding decision delivered by the Division Bench of this Court, being Letters Patent Appeal No. 1099 of 2016 decided on 27.01.2017, the petition came to be allowed and it is this order, which has been passed by the learned Single Judge is made the subject matter of present Letters Patent Appeal under Clause 15 of Letter Patent. 3. We have heard learned advocate Shri Dipal R. Ravaiya appearing on behalf of appellant - Nagar Palika, learned advocate Shri Murali N. Devnani representing opponent No. 1 - original petitioner and learned Assistant Government Pleader Shri Krutik Parikh representing respondent - State. 4. Learned advocate Shri Dipal R. Ravaiya appearing on behalf of appellant - Nagar Palika has vehemently contended that the learned Single Judge has not considered the submissions, which have been made by Nagar Palika and relying upon several decisions, allowed the petition. 4. Learned advocate Shri Dipal R. Ravaiya appearing on behalf of appellant - Nagar Palika has vehemently contended that the learned Single Judge has not considered the submissions, which have been made by Nagar Palika and relying upon several decisions, allowed the petition. But, there was a clear distinction between the employees, who were originally working with Panchayat and later on Panchayat converted into Nagar Palika/Municipality and that distinction has not been properly construed by learned Single Judge. It has been submitted that by virtue of conversion from Panchayat to Municipality, the employees became that of Municipality and as such the due benefits which were to be made available to the employees directly appointed by municipality are to be provided and that distinction having not been considered by the learned Single Judge an error is committed which deserves to be corrected. It has been contended that the decisions which have been relied upon are having a different factual scenario and the learned Single Judge ought not to have applied the same while passing the impugned order. It has been submitted that the opponent No. 1 herein has already been superannuated way back in the year 2013. After more than a period of three years, the petition came to be filed which aspect ought not to have been ignored by the learned Single Judge and that being so, the order impugned deserves to be corrected. 5. As against these, learned advocate Shri Murali N. Devnani appearing on behalf of the original petitioner - respondent No. 1 herein has vehemently contended that detailed order is passed by the learned Single Judge which does not call for any interference, more particularly, when the issue which was a center of controversy was already taken care of, dealt with and decided by binding decision delivered by the Division Bench of this Court, and therefore, no error can be said to have been committed by the learned Single Judge. It has been contended that here is the case in which on one hand appellant - Nagar Palika has chosen not to challenge the award which has been passed by the Industrial Tribunal, on the contrary, has accepted in a General Body Meeting, as referred to above, and having accepted such award passed by the learned Industrial Tribunal, it is not open for the appellant - Nagar Palika to deprive legitimate benefits accrued therefrom to the original petitioner, no error visibly is committed. Resultantly, the order impugned does not call for any interference. It has been submitted that on the contrary, the original petitioner - opponent No. 1 herein has been working with this very Nagar Palika right from 01.02.1979 prior to it being converted from Panchayat to Nagar Palika, such a long length of service could not be ignored by appellant- Nagar Palika and the learned Single Judge has rightly allowed the petition based upon several decisions, which are applicable. 6. Learned Assistant Government Pleader Shri Krutik Parikh appearing on behalf of the respondent - State has submitted that apparently of course, the Nagar Palika has not challenged the original award passed by the Industrial Tribunal and it is also not in dispute that due benefits which were generated from the award passed by the Industrial Tribunal have not been extended so far, and therefore, he submitted that the binding decision is considered by the learned Single Judge on the effect of conversion from Panchayat to Nagar Palika and apparently it appears that the order is just and proper. However, be that as it may, without much offering any comment, since it is the appeal of Nagar Palika, learned Assistant Government Pleader has left it discretion to the Court. 7. Having heard learned advocates appearing for the respective parties and having gone through the material on record, it is found that undisputedly the original award of the Industrial Tribunal of Reference (I.T.) No. 529 of 1984 has been accepted by the appellant - Nagar Palika in its General Body Meeting conveyed on 30.10.1993 and has chosen not to challenge, modify or correct the said award. So, once having accepted the Tribunal's award in its true spirit by passing resolution, to deprive an employee from such benefits is impermissible for the Nagar Palika. So, once having accepted the Tribunal's award in its true spirit by passing resolution, to deprive an employee from such benefits is impermissible for the Nagar Palika. Apart from that, an attempt which has been made by the learned advocate that upon conversion of appellant Panchayat into Municipality/Nagar Palika, the due benefits to an employee of Municipality are amenable, but that would not evaporate the benefits which are crystallized in favour of original petitioner by virtue of effect of award of the Industrial Tribunal. 8. However, be that as it may, the effect of conversion has also been considered by the learned Single Judge and after considering series of decisions delivered by the Apex Court and the binding decision of this Court delivered in Letters Patent Appeal No. 1099 of 2016, the learned Single Judge has exercised the discretion which is not possible to be treated as unjustified in the eye of law. The observations contained in paragraph No. 5 onwards of the order passed by the learned Single Judge are sufficient enough to construe that there is hardly any case made out by the appellant - Nagar Palika to question the order passed by the learned Single Judge. On the contrary, we are of the opinion that the directions contained in paragraph No. 6 of the impugned order are required to be observed strictly by the appellant - Nagar Palika. 9. Additionally, we have noticed that the opponent No. 1 - original petitioner has been working in this very Nagar Palika prior to its status as a Panchayat right from in the year 1979 till superannuation and as such also, this long length of service has rightly been treated by the learned Single Judge. Accordingly, no case is made out. 10. Hence, having not found any merit in appeal, we deem it proper to dismiss the same. Resultantly, present Letters Patent Appeal stands dismissed with no order as to costs. 11. In view of the order passed in the main matter, Civil Application does not survive and stands dismissed accordingly.