Ahmedabad Municipal Transport Service vs Kantilal S. Vaghela

K.A. Puj, J.—The Petitioner viz. Ahmedabad Municipal Transport Service through its Transport Manager has filed this petition under Article 226 and 227 of the Constitution of India praying for quashing and seting aside the award dated 11th July, 2003 passed by the Industrial Tribunal at Ahmedabad in Reference (IT) No. 172 of 1991.

This Court has issued Rule on 23rd January 2004 and ad interim relief in terms of paragraph 7(C) was granted whereby the implementation, execution and operation of the award dated 11th July, 2003 passed by the Industrial Tribunal at Ahmedabad was stayed. The said interim relief was confirmed by the Court vide its order dated 07th July, 2004 and it was directed that the same would continue to operate till the final disposal of the petition.

Despite service of Rule, nobody appears on behalf of the Respondent.

Heard Mr. Rajesh M. Chauhan, learned advocate appearing for Mr. H.S. Munshaw, learned advocate for the Petitioner and perused the impugned award passed by the Industrial Tribunal.

It is the case of the Petitioner that the Respondent herein was employed as daily wage Cleaner with effect from 13th July, 1975 and was made permanent with effect from 01st August, 1981 as Cleaner. Initially the Respondent was appointed at Jamalpur Workshop and later on in the year 1985, he was posted at Acher Depot. The Respondent was working as Cleaner a Acher Depot also and was never worked as Painter or Assistant Painter and as such there was no paint shop at Acher Depot and no such post of Painter as well as Assistant Painter at Acher Depot. The paint shop was only at Jamalpur. The Respondent in the year 1990 approached the labour Authority with a submission that he was wrongfully continued as Cleaner and he was eligible for the benefit and pay-scale as well as allowances applicable to the post of Painter. The said Authority after considering the submissions of both the parties, concluded that there was nothing on record to show that the Respondent was ever appointed and worked as Painter. Subsequently, the Respondent approached the Industrial Tribunal at Ahmedabad by way of filing Reference (IT) No. 172 of 1991. While disposing of the said Reference, the Industrial Tribunal has partially allowed the said Reference and directed the Petitioner to pay all wages, allowances and other benefits as Painter to the Respondent with effect from 01st April, 1992.

The learned advocate appearing for the Petitioner has submitted that there is nothing on record to show that the Respondent was working as Painter at Acher Depot and as such documents produced and relied upon by the Respondent are of year 1997 onwards. He has further submitted that there is nothing on record to show that the Respondent ever worked as Painter prior to that date. He has further submitted that there was no paint shop at Acher Depot and no post of Painter as well as Assistant Painter at Acher Depot. The Respondent was only a Cleaner at Acher Depot. He has further submitted that Cleaner''s job is to clean the buses and to do miscellaneous touching work when the buses are sent for repairing and not to paint work, which is altogether a different work. He has further submitted that the Authority has considered the case of the Respondent for the post of Assistant Painter or Painter. For the first time in the year 1991 the Respondent appeared for Trade Test for the post of Painter and he failed to clear the same. Only in the year 1997 the Respondent cleared the Trade Test and accordingly, he was given the benefit of Painter. He has further submitted that the Industrial Tribunal has relied on the award of the Sole Arbitrator Mr. Barot, who has awarded that various posts including the post of Painter to be filled in by seniority and by way of giving promotion. However, this award was challenged before this Court by way of filing Special Civil Application No. 8274 of 1992 and this Court has admitted the said petition and granted stay against the award. Now it transpires that the said petition is allowed by the Court vide its order dated 08th October, 2004 by holding that the direction of the Arbitrator in its impugned award to give promotion in the workshop department on the basis of seniority alone, without conducting the Trade Test, was illegal and the same was therefore, quashed and set aside.

Mr. Chauhan further submits that the payment of monetory benefits with effect from 01st April, 1992 would heavily burden the public exchequer though the Respondent is not entitled to it. Since the Respondent has never worked as Painter upto 1997, he is not entitled for the said benefit. He has, therefore, submitted that the impugned award passed by the Industrial Tribunal be quashed and set aside and the petition be allowed.

Having heard the learned advocate appearing for the Petitioner and having considered the impugned award passed by the Industrial Tribunal, the Court is of the view that the Industrial Tribunal has committed a very serious error of law and facts in directing the Petitioner to give wages, allowances and all benefits to the Respondent as Painter with effect from 01st April, 1992. The Industrial Tribunal has in terms held in its award that the Respondent was appointed as Cleaner in the year 1975 and he was confirmed as Cleaner in the year 1981. The Industrial Tribunal has also recorded the previous service history of the Respondent. In the year 1984 Trade Test was taken wherein nine workmen have appeared. The Respondent failed in the said test. In the year 1991 again test was taken and eight persons have appeared; out of which only two persons were appointed as Painter. In the year 1997 again test was taken wherein all the four persons selected and the Respondent was also one of them. Since the Respondent has cleared the test in the year 1997, he was appointed as Assistant Painter in the year 1998 and he was given grade of Painter. Despite these facts are on record and duly recorded by the learned Presiding Officer of the Industrial Tribunal, the learned Presiding Officer has given direction that the Respondent should be given wages, allowances and all benefits with effect from 01st April, 1992. While issuing these directions, the learned Presiding Officer has referred to the award given by the Sole Arbitrator, Shri G.S. Barot, wherein it was stated that the promotion in the workshop department should be given on the basis of seniority without any Trade Test. The said award was given on 27th May, 1991 and it was published on 16th March, 1992. Based on this, the learned Presiding Officer has given direction that the Respondent should be given benefit of wages, allowances and all other benefit as Painter with effect from 01st April, 1992. However, this award was challenged before this Court in Special Civil Application No. 8274 of 1992 and the said petition came to be disposed of on 08th October, 2004. The Sole Arbitrator''s award was quashed and set aside by this Court with an observation that the promotion in the workshop department should not be given merely on the basis of seniority alone without conducting Trade test.

In the above view of the matter, the Court is of the view that the impugned award passed by the learned Presiding Officer of the Industrial Tribunal at Ahmedabad deserves to be quashed and set aside and it is accordingly quashed and set aside. This petition is accordingly allowed with no order as to cost.