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SCA/11039/2010 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11039 of 2010
with
CIVIL
APPLICATION No. 10614 of 2010
In
SPECIAL
CIVIL APPLICATION No. 11039 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
GUJARAT
STATE ELECTRICITY CORPORATION LTD (GSECL) - Petitioner(s)
Versus
BIJLI
MAJDOOR PANCHAYAT - Respondent(s)
=========================================
Appearance
:
MR PREMAL R
JOSHI for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 16/09/2010
ORAL
JUDGMENT
1. By
way of this petition under Article 227 of the Constitution of India,
petitioner Gujarat State Electricity Corporation Limited has
preferred the present Special Civil Application for an appropriate
writ, direction or order quashing and setting aside the impugned
judgment and award dated 21.01.2010 passed by the learned Presiding
Officer, Industrial Tribunal, Surat in Reference (IT) No.136/1999, by
which the Tribunal has allowed the said reference directing the
petitioner to give all consequential benefits to the respondent of
Senior Assistant with effect from 07.07.1983.
2. The
brief facts leading to the present Special Civil Application in
nut-shell are as under:
2.1 That
respondent was appointed as NMR workman as Junior Assistant, however,
right from day one, work of Senior Assistant was taken from him and
therefore, he raised industrial dispute to give all benefits of
Senior Assistant to him with effect from 07.07.1983 and the said
dispute was referred to the Industrial Tribunal, Surat which was
numbered as Reference (IT) No.136/1999. That it was specifically the
case on behalf of the respondent that though he was appointed as
Junior Assistant on paper, however, work of Senior Assistant was
taken from him right from very beginning and therefore, it was
submitted that he is entitled to all the benefits of Senior
Assistant. It was also the case on behalf of the respondent that
time and again even the concerned department under which he was
working recommended the case of the respondent to the higher
authority to give all benefits of Senior Assistant to the respondent
as in fact the respondent is performing all the duties of a Senior
Assistant.
2.2 The
reference was resisted by the petitioner by submitting that as such
the appointment of the respondent was on the post of Junior Assistant
and at the relevant time as there was a stay by the Court, he could
not have been given appointment as a Senior Assistant. It was
further case on behalf of the petitioner that as the post of Senior
Assistant is a promotional post and therefore also, the respondent
cannot be appointed and/or promoted to the post of Senior Assistant
automatically.
2.3 On
appreciation of evidence and considering the deposition of the
witnesses, more particularly, the witness namely Rajeshbhai M. Gamit,
Deputy General Manager, who was examined on behalf of the petitioner
at Exh.15, who specifically admitted that the respondent was
performing duties as Senior Assistant right from the very beginning
i.e. 07.07.1983 and that he is entitled to benefits of Senior
Assistant right from 07.07.1983, the learned Tribunal by impugned
judgment and award allowed the said reference by directing the
petitioner to give all benefits to the respondent as a Senior
Assistant with effect from 07.07.1983. Being aggrieved and
dissatisfied with the judgment and award passed by the Industrial
Tribunal, petitioner has preferred the present Special Civil
Application under Article 227 of the Constitution of India. By way
Civil Application, petitioner wants to produce certain documents on
record which were admittedly not before the learned Tribunal. By
additional evidence, the petitioner wants to make out a new case and
submit that concerned department were already informed in 1998 that
the respondent cannot be appointed as a Senior Assistant as the said
post is a promotional post. Admittedly, the said documents are not
produced on record before the Tribunal and the same are being
produced for the first time before this Court, however, the same
shall be dealt with hereinafter.
3. Shri
Premal Joshi, learned advocate appearing on behalf of the petitioner
has vehemently submitted that Industrial Tribunal has materially
erred in allowing the reference by directing the petitioner to give
all consequential benefits to the respondent of a Senior Assistant.
It is submitted that the post of Senior Assistant is a promotional
post and therefore, the Tribunal ought not to have directed the
petitioner to consider and continue the respondent as a Senior
Assistant. It is further submitted that in fact due to the stay
granted by the Civil Court, the respondent could not have been
appointed as a Senior Assistant and therefore also, the learned
Tribunal has committed a grave error in directing the petitioner to
grant all consequential benefits to the respondent of the post of
Senior Assistant. Relying upon some documents produced along with
the Civil Application and one communication of year 1983, Shri Joshi,
learned advocate appearing on behalf of the petitioner has submitted
that as such the higher authority had already communicated to the
concerned department under which the respondent was working, that he
cannot be appointed on the post of Senior Assistant as the said post
is a promotional post. Shri Joshi, learned advocate appearing on
behalf of the petitioner has also submitted that even the dispute was
raised belatedly. Therefore, it is requested to allow the present
Special Civil Application.
4. Heard
Shri Joshi, learned advocate appearing on behalf of the petitioner.
It is true that respondent was appointed in the year 1983 as Junior
Assistant. However, it is not in dispute and cannot be disputed and
even admitted in the cross-examination by the witness who was
examined on behalf of the petitioner that right from the very
beginning, the respondent was performing the duties as a Senior
Assistant and all throughout till date he was performing the duties
as a Senior Assistant. In the cross-examination, it is specifically
admitted by the said witness that respondent is entitled to all the
benefits of Senior Assistant since 07.07.1983 i.e. from the inception
of his appointment. It is also specifically admitted by the said
witness that the case of the respondent was recommended to the higher
authorities, however, there is no reply from the higher authority.
Now, by way of Civil Application, the petitioner wants to produce the
documents of 1998 to show that the higher authority has already
communicated to the concerned department rejecting the claim of the
respondent on the post of Senior Assistant. When in the
cross-examination, it was the specific case on behalf of the witness
who was cross-examined on behalf of the petitioner that on
recommendation, there was no reply by the higher authority how the
petitioner can be permitted to produce the documents which will be
just contrary to the deposition of the witness who was examined on
behalf of the petitioner. As stated herein above, the concerned
witness of the Company had specifically stated that there was no
reply by the higher authority on the recommendation send by the
department. Be that as it may, the fact remains that and as admitted
by the witness who was examined on behalf of the petitioner Company
that the respondent was performing the duties as a Senior Assistant
right from his first appointment dated 07.07.1983 and is entitled to
all the benefits of a Senior Assistant from 07.07.1983. It is to be
noted and it appears that because of the some order granted by the
Civil Court, the respondent was not actually appointed and/or issued
the appointment order as a Senior Assistant and was issued the
appointment order of a Junior Assistant though right from the
beginning he was assigned the duties of a Senior Assistant and he
worked as a Senior Assistant. Considering the aforesaid facts and
circumstances, it cannot be said that the Tribunal has committed any
error in directing the petitioner to grant all other benefits and
consequential benefits to the respondent of the post of Senior
Assistant right from 07.07.1983 i.e. from the date on which he was
performing the duties as a Senior Assistant, which calls for
interference of this Court while exercising powers under Article 227
of the Constitution of India.
Now,
so far as the contention on behalf of the petitioner that the dispute
was raised belatedly is concerned, it is to be noted that when the
reference was made, the petitioner did not challenge the same. Even
otherwise even considering the evidence on record, the respondent was
agitating before the appropriate authority for considering his case
and granting the benefit of Senior Assistant and in fact as admitted
by the witness who was examined on behalf of the petitioner, the
petitioner was making demands before the department and in fact his
case was even recommended by the department from time to time to the
higher authority and there is an admission on the part of the
petitioner that respondent is entitled to the benefit of Senior
Assistant right from 07.07.1983. Under the circumstances, even if
there is a delay, it cannot defeat the rightful claim of the
respondent which is even admitted by the company.
5. In
view of the above and for the reasons stated above, petition deserves
to be dismissed and is, accordingly, dismissed. So far as Civil
Application is concerned, petitioner is permitted to produce on
record the Circular No.446 only, which was referred by the Industrial
Tribunal and is not permitted to produce on record other documents
which were admittedly not before the Tribunal and if they are
permitted to brought on record, it is likely to cause serious
prejudice to the respondent and to get out of the cross-examination
of the concerned witness who was examined on behalf of the petitioner
and by which the petitioner wants to make out altogether a new case
of rejecting the claim of the respondent earlier, which was not the
case of the petitioner before the Industrial Tribunal. Hence, Civil
Application No.10614/2010 is partly allowed to the aforesaid extent
permitting the petitioner to produce Circular No.446 on record only.
(M.R.
Shah, J.)
*menon
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