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2020 DIGILAW 394 (GUJ)

Savabhai Lalabhai Patel v. Patan Municipality

2020-03-03

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : ASHUTOSH J. SHASTRI, J. 1. This group of petitions arises out of the similar issue of law and the facts and hence, as per the request of learned advocates appearing for the respective parties, same is being taken up for final disposal by treating Special Civil Application No. 22332 of 2005 as a lead matter. 2. The background of facts which has given rise to the present proceedings is that so far as Special Civil Application No. 22332 of 2005 is concerned, the petitioner was appointed as a Driver with respondent Patan Municipality on 26.5.1988 and was discharging the said duties. The date of birth of the petitioner is 1.6.1950 and as such has completed 55 years of age. Resultantly, the Municipality passed an order on 31.10.2005 making the petitioner to retire compulsorily from service with immediate effect by paying one month salary as notice pay by cheque No. 478823 dated 31.10.2005. According to the petitioner, he was discharging his duties with utmost honesty and sincerity and has been compulsorily retired de hors the Recruitment Rules which have been approved and framed by the Municipality in exercise of power under Section 271(1) of the Gujarat Municipalities Act, 1963. According to the petitioner, the very Municipality has fixed the age of compulsory retirement as 58 years and even otherwise without any reason, no employee can be retired compulsorily who attains 55 years of age and therefore, at two stages, the Municipality has committed an illegality; one, that the petitioner was made to retire on completion of the age of 55 years instead of 58 years and secondly, an order has been passed without assigning any reason and additionally, instead of three months’ salary, only one month’s salary has been paid. Raising the grievance against such action, the petitioner approached this court for seeking the following reliefs:- “(A) This Hon’ble Court may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 31st October 2005 passed by the respondent Municipality (Annexure-A) and further be pleased to direct the respondent to reinstate the petitioner in service with all consequential and incidental benefits; (B) This Hon’ble Court may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction declaring the powers of the Municipality to compulsorily retire an employee on attaining the age of 55 Years without assigning reasons as envisaged in Rule 5 of the Rules as null and void; (C) Pending admission, hearing and final disposal of the present petition, this Hon’ble Court may be pleased to stay further implementation, execution and operation of the order dated 31st October 2005 compulsorily retiring the petitioner and further be pleased to direct the respondent to permit the petitioner to discharge his duties forthwith or be pleased to direct the respondent to maintain status ante; (D) …........” 3. Since the Rule empowering the Municipality to pass the order of compulsory retirement itself is, according to the petitioner, ultra vires and bad in law, the same is challenged by way of the aforementioned petition. Resultantly, the petitions are placed before the Division Bench of this Court. Identical circumstances exist in respect of other petitions connected with the present lead matter and as such, the facts in detail are not narrated. But, in substance, the main relief prayed in all the petitions is the same which is prayed in the lead matter. 4. The petitions appear to have been kept pending for quite some time and now, they have come up for consideration before us, in which learned advocate, Mr. B.P. Gupta has represented all the petitioners, whereas learned advocate Ms. Khyati P. Hathi has represented the respondent Patan Municipality in some of the cases and in some cases, learned senior advocate Mr. S.N. Shelat, assisted by learned advocate Mr. Shivang Shah, has represented the very same Municipality. 5. Learned advocate Mr. B.P. Gupta has represented all the petitioners, whereas learned advocate Ms. Khyati P. Hathi has represented the respondent Patan Municipality in some of the cases and in some cases, learned senior advocate Mr. S.N. Shelat, assisted by learned advocate Mr. Shivang Shah, has represented the very same Municipality. 5. Learned advocate Mr. B.P. Gupta appearing on behalf of the petitioners has vehemently contended that while making all the petitioners compulsorily retired from services, the Municipality has not observed its own Rules which are framed in exercise of the power under Section 271 of the Gujarat Municipalities Act. It has been contended that to make compulsory retirement of an employee, a specific contingency is required, which, in the present case, is completely missing. Mr. Gupta has also mentioned before us that Rules 3 and 5 are no-doubt empowering the Municipality to exercise the power of compulsory retirement. But, some conditions are stipulated, which have not been observed. According to him, not only before attaining the prescribed age, an order is passed to compulsory retire, but serious irregularity is committed in not assigning the reasons and in absence of any justification, since the very exercise of power is vitiated, the reliefs prayed for deserve to be granted. 6. Additionally, Mr. Gupta has submitted that even if the Rules are permitting the Municipality, the said Rules have got effect of giving discriminatory treatment amongst the employees of the Municipality and since the very Rule permitting to retire is irrational, arbitrary and de hors the mandate of the Constitution, the same deserves to be declared as ultra vires. It has further been submitted that here is a case in which, under the guise of Rules, an action is initiated at a premature stage and therefore, the action not only reflects a malafide intent but also arbitrariness. By referring to a decision in the case of P.K. Soni related to the Panchayat employees, a contention is raised that the status of the employees of the Panchayat/Municipality are akin to the employees of the State authority and therefore, the Rules which are framed by the State Government touching to the service conditions are also to be made applicable to the class of employees serving in Municipality and as such, compulsory retirement fixing the age of 55 years is absolutely impermissible, which action is required to be set at naught. Additionally, it has been submitted that prior to taking action, neither opportunity of hearing was given to the petitioners almost in all the petitions nor any reasons have been assigned and this is nothing but a clear example of violation of the principles of natural justice. Resultantly, the reliefs prayed for deserve to be granted in the interest of justice. 7. Mr. Gupta has then relied upon the decisions delivered by the Apex Court in the case of Ramesh Kumar Vs. Union of India reported in 2015(0) AIJEL SC 56841, in the case of Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in (2007)7 SCC 689 and the order of this Court dated 24.9.2008 passed in Special Civil Application No.11865 of 2008 and submitted that since the authority has taken an irrational action against the petitioners and the Rules are framed not in para-materia to the Rules framed by the Government with regard to their employees’ service conditions, the reliefs which are prayed for deserve to be granted. Mr. Gupta has pressed all these contentions with regard to each of the matters and then has requested to grant the reliefs accordingly. No other submissions have been made. 8. To meet with the stand taken by learned advocate appearing on behalf of the petitioners, learned advocate Ms. Khyati Hathi appearing for Patan Municipality has submitted that these Rules under which the order is passed are approved by the State Government and as such, without joining the State Government, when petition is submitted, same is not maintainable. Apart from that, there is an alternative remedy available to all these petitioners and as such also, the petition is not entertainable. Ms. Hathi has submitted that Rule 5 empowers the Municipality to retire any employee on completion of 55 years of age, though normally the prescribed age of retirement is 58 years and therefore, it cannot be said that any arbitrariness is shown by the authority. It has further been contended that the General Body of the Municipality did pass a resolution No.185 on 17.12.2003, resolving to retire total 32 employees, who completed 55 years of age, as there was no work and there was a dire necessity to reduce the strength since the establishment expenditure was required to be maintained below 45% as per the mandate of the State authority through the Director of Municipality. Therefore, the said decision was taken in the best interest of the Municipality and in consonance with the directives of the Government to maintain the establishment expenditure. It has categorically been denied that no pick and choose method is adopted and the Municipality has bonafidely taken a measure in the best interest of the Municipality. It has been assured before the Court that if the petitioners are aggrieved by the fact that there is no strict compliance of the Rules about non-payment of three months’ salary, then the Municipality is ready and willing to pay three months’ salary to each of the petitioners to obviate such technicality. It has categorically been reiterated that the decision of compulsory retirement is taken in the best interest of the Municipality. 9. Additionally, learned senior counsel Mr. S.N. Shelat appearing on behalf of the Municipality has vehemently contended that there is hardly any case made out by the petitioners to interfere with the decision. On the contrary, it has been submitted that all these petitioners were kept away about the fact that the Municipality has passed resolutions in the month of December 2003 and on 30.10.2005 and as such, it is not correct that the Nagar Palika has acted without assigning any reasons. There is no power unfettered and unbridled with the Municipality, which can be said to be ultra vires. On the contrary, these Rules framed by the Municipality have been approved by the State authority. A categorical stand taken by learned senior counsel Mr. Shelat representing the Municipality in some of the matters from further affidavit-in-reply, affirmed on 2.1.2006, is that these petitioners on reaching the age of 55 years were compulsorily retired some of them have accepted all retiral benefits payable to them and some of the employees were continued on account of some settlements having taken place at the High Court level way back in 1997and 1998 pursuant to the award passed by the Labour Court. It has further been submitted that the petitioners cannot make a grievance as against the Safai Kamdars and Class-IV employees who were otherwise protected either by the settlement or by the stay order granted in different cases against the Municipality. It has further been submitted that the petitioners cannot make a grievance as against the Safai Kamdars and Class-IV employees who were otherwise protected either by the settlement or by the stay order granted in different cases against the Municipality. But, once the power is vested with the Municipality and such power is approved by the State authority, it is not open for the petitioners to compare their cases with other employees who are at present continued not because of the age but because of the awards/settlements. Mr. Shelat has further submitted that the Municipality, being a statutory body, aided by the State authority, is under an obligation to follow the instructions and directions issued by the Director of Municipalities and the State Government from time to time in the matter of sanctioned set-up. On account of abolition of the Octroi, number of employees were required to be continued as per the instruction of the State Government and the Municipality is also required to take stringent measures to reduce the establishment expenditure and as such, keeping in mind the said facts, if such action is taken, same cannot be branded as arbitrary or malafide but is in consonance with the Rules framed therein. Mr. Shelat has submitted that no-doubt, incidental submission is made with regard to the Rule being declared as ultra vires but there appears to be no concrete challenge supported by valid pleadings and therefore, in absence of any proper pleadings, such challenge to the Rule deserves to be not entertainable. It has been categorically submitted that out of 31 employees, 17 employees have already accepted the order of compulsory retirement, having realized the situation, and some 13 employees have rushed to the Court with a view to continue in the service in spite of the Rule authorizing the Municipality to retire and as such, Mr. Shelat has submitted that keeping this very circumstance in mind, even there is no interim protection granted by this Court and as such, since by efflux of this much time, there is hardly any relief possible to be granted in favour of the petitioners. Accordingly, Mr. Shelat has requested the Court to dismiss the petitions. 10. Learned senior counsel, Mr. Shelat has submitted that keeping this very circumstance in mind, even there is no interim protection granted by this Court and as such, since by efflux of this much time, there is hardly any relief possible to be granted in favour of the petitioners. Accordingly, Mr. Shelat has requested the Court to dismiss the petitions. 10. Learned senior counsel, Mr. Shelat has further submitted that in fact, there is no need to entertain the petitions in view of this peculiar background since the decision is taken in the best interest of the Municipality. Be that as it may, even if there is some grievance left out in view of the earlier affidavit filed by the Municipality, at the best, the petitioners are entitled to have two months’ salary, for which, since readiness has been shown on oath, the Municipality is today also ready to pay the said salary of two months. Learned senior counsel has submitted that reading of the petitions would clearly indicate that no proper pleadings which are required for assailing the Rule are mentioned therein and as such, on the basis of such laconic pleadings, challenge to the Rule may not be accepted. Resultantly, the petitions being devoid of merit, deserve to be dismissed. 11. Having heard learned advocates appearing for the respective parties and having gone through the material on record, it appears prima facie to this Court that these petitioners have been made to compulsorily retire way back in and around 2005-2006 and throughout, there seems to be no interim protection envisaged to them. Even the docket-sheet also evidently makes it clear that there is hardly any interest shown by the petitioners in challenging the action of the Municipality over the period so vigorously and as such, these petitioners are out of services right from the year 2005-06. 12. Additionally, it is also reflected from the record and pleadings that these persons whose employment was subjected to certain basic conditions and if these conditions which are reflecting on page 52 onwards are looked into, they would indicate that their service can be put to an end by giving one month salary as the same is based upon a contract. It appears that discontinuing their service on account of compulsory retirement does not seem to be a penal measure. It appears that discontinuing their service on account of compulsory retirement does not seem to be a penal measure. Considering this circumstance also, it appears prima facie to this Court that with a view to bring the establishment expenditure below 45%, such a measure is taken by the Municipality against the petitioners, which cannot be said to be arbitrary or malafide in any manner. 13. Further, it appears to this Court that Rules which are framed in exercise of the powers under Section 271 of the Gujarat Municipalities Act are the Rules framed well within the competence and which have also been approved by the State authorities and as such, resultant effect is that the Municipality is competent enough to take measure of compulsory retirement. Proviso to Rule 5 reflecting on page 4 indicates that this kind of action can be taken by the Municipality against an employee, when an employee reaches the age of 55 years. The only drawback appears to be that instead of three months, one month’s salary has been paid. But, learned counsel appearing on behalf of the petitioners has not been able to make out any case as to whether one month’s salary as contained in the appointment order is to be paid or three months’ salary to be paid. In absence of canvassing the said point, without going much into that aspect, we may observe that the stand taken by the Municipality in the affidavit filed by the Chief Officer, affirmed on 15.12.2005, deserves consideration. The said affidavit, reflecting on page 24 of the petition compilation, states that even if strict compliance is to taken in aid, then Municipality can be directed to pay two months’ salary in addition to one month’s salary as agreed and for that, during the course of hearing, one of the learned advocates appearing on behalf of the Municipality has shown readiness and willingness to pay two months' salary to these petitioners, so as to set right the controversy which is prevailing since long as said stand does not appear to have been resisted. 14. 14. Having perused the further stand of the Municipality put forth through learned senior counsel Shri S.N. Shelat by inviting our attention to some of the documents attached with further affidavit-in- reply, reflecting on page 56 of the petition compilation, it appears that the said data which has been provided, indicates clearly that the action has been initiated keeping in mind the financial structure of the Municipality and to minimize the establishment expenditure. Since we deem it proper to consider this stand of the Municipality, we reproduce such averments made on oath by the Municipality hereunder:- “3. With reference to para 4, I say it is not true that the Nagar Palika has employed 50 employees after passing resolution on 31st December 2005. I say in all only 30 employees discharging different types of statutory duties and essential services required to run the administration of the Nagar Palika were required to be appointed purely on contract basis and on fixed salary that to for a limited period upto 31st March 2006 or 30th June 2006. I say that the employees so appointed are either drivers, bore operators or labourers/Safai Kamdars who have agreed to work on a fixed salary purely on temporary adhoc basis for a limited period. For instance, Patel Dilip Gangaram is appointed as a Driver at a salary of Rs.3000/- per month upto 31st March 2006 on heavy JCB Type vehicle of the value of Rs.18.00 lacs while the other drivers are appointed on a fixed salary of Rs.2500/- per month in order to run the every day used vehicles of Nagar Palika. I say that these appointments were made for meeting with the exigencies and urgent needs and as per the direction of the State Government issued in recent circulars which provide, inter alia, that appointments to Class III can be made only on contract basis and appointments of Class IV can be made only on a daily wage basis and for a limited period of 3 to 6 months. I crave leave to refer to and rely upon those circulars at the time of hearing of the petition. I say that the following financial aspects of the matter will show that Municipality has tried to reduce its liabilities. (i) The Nagar Palika is indebted at present to the tune of Rs.32 to 34 crores payable to GEB, Water Supply Sewerage Board and to other creditors. I say that the following financial aspects of the matter will show that Municipality has tried to reduce its liabilities. (i) The Nagar Palika is indebted at present to the tune of Rs.32 to 34 crores payable to GEB, Water Supply Sewerage Board and to other creditors. (ii) The Nagar Palika is saving Rs.3.00 lac per month which it was paying to the employees who were already relieved at the age of 55 years and has further saved Rs.1,24,740/- per month by relieving the present petitioners (13 in nos.), the Nagar Palika has reduced monthly pay bill of Rs.4.20lacs by resorting to Rule 5. (iii) By appointing drivers, bore operators, labourers, etc on a fixed remuneration, the Nagar Palika will incur expenses of Rs.1,64,000/- per month only with no future financial liability as per terms of their appointments. Accordingly, the main object of reducing the expenses in present and future is maintained. I crave leave to produce the statement of pay bill giving details of the employees appointed on contract basis and daily wagers at Annexure-II. I say that the labourers and Safai Kamdars are appointed on daily wage of Rs.97 to 98 per day as per the requirement. I say accordingly, in place of petitioners who were earning monthly salary of Rs.7000 to Rs.10000/- each, the Nagar Palika has engaged persons for Rs.1800 to 2500/- per month. I deny that there is any modus operandi of the Nagar Palika in selecting the persons as alleged in this para. I say, so far as the persons who are continued in service are concerned, I have already stated that these employees are continued either because of the binding settlement as per Award of the Labour Court approved by the High Court made as far back in 1997-98 while some of them are continued because of interim court orders and that they are otherwise continued in service because they have not reached to the age of 55 years as has happened in the case of the petitioners.” 15. Keeping in view the aforesaid circumstances and the situation of the Nagar Palika, we are satisfied with the submission that the measures appear to have been taken to keep the establishment expenditure under control and to maintain the interest of the Municipality. 16. Keeping in view the aforesaid circumstances and the situation of the Nagar Palika, we are satisfied with the submission that the measures appear to have been taken to keep the establishment expenditure under control and to maintain the interest of the Municipality. 16. Insofar as challenge to the Rule is concerned, precisely Rule 5, we are not impressed by the submission made by learned counsel for the petitioners about its ultra viresness. We found no proper pleading at the first instance in the petitions and apart from that, comparison which is tried to be made is also not germane in view of the fact that under the provisions of the Gujarat Municipalities Act, every Municipality is given power under Section 271 to frame its own Rules keeping in view the status and affairs of the Municipality and these Rules are always subjected to approval of the State Government and as such, it is not open for the petitioners to insist for applying the service conditions of the State Government, otherwise there will not be any sanctity in entrusting the power to frame the Rules in the Municipality by virtue of Section 271. That being the situation, there is hardly any case made out by the petitioners to challenge the validity of Rule 5. Apart from that, once having accepted the service conditions and once the power entrusted with the Municipality is validly exercised and is in consonance with the interest of the Municipality, the challenge to the Rule does not appear to have been so succinctly established and fails in the considered opinion of this Court. The object of enacting the Gujarat Municipalities Act, 1963 is to consolidate and amend the law relating to the Municipalities in the State of Gujarat so as to give them wider powers in the management of the ministerial affairs and as such, keeping in view this object of entrusting the wider power in respect of its management, Section 271 of the Municipalities Act has specifically entrusted a function in Municipality to make/frame the Rules which may not be inconsistent with the Act and the Rules made by the State authority. A bare reading of Section 271 of the Municipalities Act, is giving specific power to make Rules with regard to mode of appointment and conditions of services of the Municipal servants and as such also, a conjoint reading of this entire provision of Section 271 clearly establishes that the averments with regard to challenge to the same are completely missing and as such, there is no considerable force at all in the challenge to the Rules made in the petitions and as such, we are not inclined to accept the said submission. 17. So far as the judgments which are relied upon are altogether on different facts and circumstances and as such, we are unable to apply the same as a straitjacket formula. While going through the decisions cited by learned counsel in detail, we reminded ourselves with the proposition of law laid down by the Apex Court on the issue of precedent, which postulates that if the facts are different, even one additional fact would make a world of difference in applying the ratio. That being the principle, we are afraid to apply these decisions which were pressed into service in a peculiar background of the present case. Hence, the said decisions are of no avail to the petitioners. As a result of this, no case is made out by the petitioners. 18. Additionally, we have also been posted with the facts that this very Rule, viz. Rule 5, was under challenge in past in the form of Special Civil Application No.11865 of 2008 filed by some of the employees, in which learned Single Judge by order dated 24.9.2008 has categorically not accepted the challenge to the action of compulsory retirement and the said decision is not disturbed even by the Division Bench of this Court and as such, simply because a leverage is kept open by the Court in past to challenge the validity of Rule 5, same ipso facto is not permitting the petitioners to casually bring the challenge in the present group of petitions. Hence, in absence of any proper pleadings and in absence of any submissions in respect of ultra-viresness, we are unable to consider the reliefs prayed for in the petitions with regard to it. As a result of this, there is hardly any case made out to entertain the challenge. 19. Hence, in absence of any proper pleadings and in absence of any submissions in respect of ultra-viresness, we are unable to consider the reliefs prayed for in the petitions with regard to it. As a result of this, there is hardly any case made out to entertain the challenge. 19. In view of the aforesaid situation and in view of the facts and circumstances prevailing on record, we are of the considered opinion that no case is made out by the petitioners. Except the fact that since the Municipality has shown readiness and willingness to pay two months’ salary to each of the petitioners in addition to one month’s salary, which has been already granted, we allow the petitions in part with following directions, which would meet the ends of justice:- (1) Present petitions are partly allowed by directing the respondent Municipality to pay two months’ salary additionally to each of the petitioners within a period of FOUR WEEKS from the date of receipt of the writ of this Court by issuing account payee cheques in the names of the petitioners. In case some of the petitioners have expired, the benefit may be extended to their legal heirs within the same time as allowed above. 20. With the aforesaid directions, the present petitions are allowed in part with no order as to costs.