Gujarat State Electricity Corporation Ltd. (GSECL) vs Bijli Majdoor Panchayat

M.R. Shah, J.—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.

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.

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.

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.

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.