Dhoraji Municipality Vs Gujarat Pradesh Municipal Karmachari Maha Sangh

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JUDGMENT

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SCA/13733/20051/7

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION No. 13733 of 2005

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For Approval and Signature:

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HONOURABLE MR.JUSTICE M.R. SHAH

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1^{Whether Reporters of Local Papers may be allowed} to see the judgment ?

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2 To be referred to the Reporter or not ?

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3^{Whether their Lordships wish to see the fair copy} of the judgment ?

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Whether this case involves a substantial question of law as to the interpretation of the 4 constitution of India, 1950 or any order made thereunder ?

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5^{Whether it is to be circulated to the civil judge} ?

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============================================================== DHORAJI MUNICIPALITY - Petitioner(s) Versus GUJARAT PRADESH MUNICIPAL KARMACHARI MAHA SANGH - Respondent(s)

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Appearance :

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MR PREMAL R JOSHIfor Petitioner No(s).: 1.
NOTICE SERVED BY DSfor Respondent No(s).: 1.

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==================================================================

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CORAM :HONOURABLE MR.JUSTICE M.R. SHAH
Date : 09/08/2005

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ORAL JUDGMENT

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This Court has issued the Notice for final
disposal. Though served, nobody appears on behalf of
the respondent. Hence, this Court has no other
alternative but to dispose of the Special Civil
Application, ex-parte, on merits.

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JUDGMENT

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SCA/13733/20052/7

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2.Rule. In this petition under Article
226/226 of the Constitution of India, the petitioner
has challenged the legality and validity of the
judgment and award passed by the Industrial Tribunal,
Rajkot dated 18th March 2005 in Reference (IT) No.
150/92 by which the Industrial Tribunal has partly
allowed the said Reference directing the petitioner
to pay pay-scale and other benefits given to a Clerk
to the respondent as if he is serving as a Clerk and
the arrears to be paid at the rate of 50 per cent
from 22nd April 1992. The Industrial Tribunal also
directed the petitioner to seek necessary
permission/approval to make the respondent workman as
Clerk from the competent authority within the period
of 3 months and to make him permanent as a Clerk and
then to pay the pay-scale and other benefits to him
as a permanent employee.

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3.It appears from the record that the
respondent workman was appointed as a Peon in the
petitioner Nagarpalika in the pay-scale of Rs. 200-
250. It appears from the record that it was the case
of the respondent workman that though he was
appointed as a Peon subsequently the work of Clerk
was taken from him since 1976 and still the
respondent was not paid the pay-scale of the Clerk
and was paid the salary in the pay-scale of the Peon;
it was an unfair labour practice and against the
principles of 'equal pay for equal work'; therefore
he raised an industrial dispute for getting the pay-

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SCA/13733/2005

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3/7

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JUDGMENT

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scale of Rs. 330-530, i.e., pay-scale of Clerk and to
make him permanent as a Clerk and to pay all arrears;
and the said Reference was referred to the Industrial
Tribunal, Rajkot being Reference (IT) No. 150/1992.
The said Reference was resisted by the petitioner
Nagarpalika. It was submitted that the respondent
workman was appointed as a Peon and thereafter the
work of Clerk was being taken from him for different
periods by giving him additional charge as and when
work of Clerk was available. It was also further
submitted that he was given the work of Clerk
temporarily at different times and therefore there is
no question of making him permanent as a Clerk more
particularly when there are other senior peons
working in the Nagarpalika, and therefore if the
respondent workman is to be appointed as a Clerk the
seniority of other employees will be affected. The
Industrial Tribunal, Rajkot, vide its judgment and
award dated 18th March 2005 partly allowed the said
Reference by granting the relief and issuing
directions which are stated hereinabove. Being
aggrieved and dissatisfied with the judgment and
award passed by the Industrial Tribunal, Rajkot,
dated 18th March 2005 in Reference (IT) No. 150/1992,
the petitioner Nagarpalika has preferred the present
Special Civil Application under Article 226/227 of
the Constitution of India.

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Shri Premal Joshi, learned advocate

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4.

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SCA/13733/2005

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4/7

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JUDGMENT

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appearing for the petitioner has submitted that the
Industrial Tribunal has misread the evidence and the
deposition of the witness on behalf of the petitioner
Nagarpalika as well as the written statement filed by
the petitioner Nagarpalika to the effect that the
petitioner Nagarpalika has admitted that the
respondent workman is serving as a Clerk. It is
further submitted that it was admitted by the
petitioner Nagarpalika that from the respondent
workman the work of Clerk was taken though not
permanently and continuously but for different
periods as and when his services as Clerk was
required, and the Industrial Tribunal has misread the
aforesaid statement on behalf of the petitioner
Nagarpalika as if the respondent workman was given
the work of Clerk continuously since 1976. It is
also further submitted that the appointment of the
respondent workman is as a Peon and for filling-up
the post of Clerk the approval of the competent
authority is required and that too after obtaining
necessary permission the said post is to be filled-in
either by way of direct recruitment and/or by way of
promotion; there were other seniors to the respondent
workman; and when the appointment of the respondent
workman was as a peon and the respondent workman was
not appointed as a Clerk the Industrial Tribunal
ought not to have passed an order directing the
petitioner to give the pay-scale of a Clerk as if the
respondent workman is appointed as a permanent Clerk.
It is also further submitted that even no direction
could have been issued by the Industrial Tribunal

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SCA/13733/20055/7

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JUDGMENT

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directing the petitioner Nagarpalika to get approval
of appointing respondent workman as permanent Clerk
and to pay all the benefits available to the
permanent Clerk. It is therefore requested to allow
the present Special Civil Application.

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5.It is not in dispute that the appointment of
respondent workman was as a Peon and that there is no
appointment of respondent workman as Clerk. It is
also true that the work of Clerk was being taken from
the respondent workman for different periods, however
not continuously. It appears from the record and the
judgment and award passed by the Industrial Tribunal
that the Tribunal has misread the written statement
and the admission on the part of the petitioner
Nagarpalika as if the respondent workman was given
the work of Clerk since 1976 continuously. The post
of Clerk is to be filled-in after obtaining necessary
permission and approval from the competent authority
either by way of direct recruitment or by way of
promotion and if the same is to be filled in by
promotion then it should be on seniority basis. It
is the case of the petitioner Nagarpalika that there
are other peons senior to the respondent workman
working in the Nagarpalika. Considering the fact
that appointment of the respondent workman was as a
Peon who was never appointed as a Clerk, merely
because the work of Clerk was being taken from him
from time to time the respondent workman is not
entitled to be appointed as a Clerk on permanent

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SCA/13733/20056/7JUDGMENT

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basis and/or he is not required to be paid the
salary/wages in the pay-scale as Clerk. At the most,
the respondent-workman is required to be paid some
extra charges or wages for the period for which he
has worked as a Clerk. Even no direction can be
issued directing the petitioner Nagarpalika to obtain
permission from the competent authority and to
appoint the respondent workman as a permanent Clerk
straightway and to give the pay-scale and other
benefits available to a permanent employee. Such a
direction is nothing but exercising the jurisdiction
not vested in it. However, it is also required to be
considered that even it is admitted by the petitioner
Nagarpalika that the work of Clerk was being taken
from the respondent workman for different periods.
Under the circumstances, the respondent workman would
be entitled to the salary/wages paid to a Clerk on
the principle of 'equal pay for equal work'.
Therefore the judgment and award passed by the
Industrial Tribunal is modified to the aforesaid
extent.

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6.For the reasons stated hereinabove, the
judgment and award passed by the Industrial Tribunal,
Rajkot dated 18th March 2005 in Reference (IT) No.
150/1992 is modified to the extent that the
respondent workman would be entitled to the wages
which were paid to other Clerks for the period for
which the work of Clerk was being taken from him.
Rest of the directions issued by the Industrial

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SCA/13733/20057/7

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JUDGMENT

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Tribunal in its aforesaid award is hereby quashed and
set aside. Rule is made absolute to the aforesaid
extent with no order as to costs.

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RMR.

Dhoraji Municipality v. Gujarat Pradesh Municipal Karmachari Maha Sangh

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Dhoraji Municipality v. Gujarat Pradesh Municipal Karmachari Maha Sangh

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