(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. Though this matter has been listed for admission hearing, with the consent of the learned counsel for the parties, we have taken up this appeal for final disposal at the admission stage itself.
2. We have heard Mr. H. J. Trivedi, learned counsel for the appellant and Mr. Ramnandan Singh, learned counsel appearing for the respondent. This Letters Patent Appeal has been filed challenging the judgment of learned Single Judge dated 30/09/2011, passed in Special Civil Application No. 6555 of 2011. The learned Single Judge has allowed the claim of respondent – workman as the claim of the respondent – workman was covered by a decision of Division Bench of this Court in Special Civil Application No. 6550 of 1997 with Special Civil Application Nos. 6513 of 1997 and 5167 of 1997 decided on 27/04/2000. The relevant part of the decision has been extracted by the Division Bench and the Division Bench has held in favour of the workman that the respondent – workman was discharging the same duties of Supervisor and is entitled to be given similar benefits, which are given to other similarly situated workmen. It is necessary to extract Para 2 to 5 of the judgment of the learned Single Judge and the same are reproduced as under:
“2. RULE. Learned advocate Mr.Nilesh A. Pandya waives service of rule. Learned advocate Mr.Ramnandan Singh requested that the matter may be taken up for final hearing, to which learned advocate Mr.Pandya for the Corporation has no objection. The learned advocate for the petitioner invited attention of the Court to judgement, which is produced at Annexure 'A' and submitted that the learned Member of the Industrial Tribunal No.1, Gujarat, at Vadodara has failed to appreciate the evidence led before him, more particularly, the oral evidence of one Shri Ashok V. Bhatia, examined at Exh.17 by the petitioner workman. As against that the Corporation did not think it proper to produce any oral evidence. The petitionerworkman did produce list of duties to be performed by Asami (field worker), which are narrated by the learned Member of the Industrial Tribunal in para 8 of the judgement. Para 8 is pertaining to the discussion of another witness, examined by the petitionerworkman, named, Narendrabhai Chimanlal Vyas. Both these witnesses have stated in no uncertain terms that the petitioner workman was working with them and was discharging the same duties as were discharged by them. That being so, it was the duty of the respondentCorporation to produce list of duties of Supervisor and should have brought home the fact that the petitionerworkman is not discharging those duties.
This Court is of the considered opinion that the petitionerworkman did discharge his duty of contending before the learned Member of the Industrial Tribunal that he was discharging duties as Supervisor. This Contention was corroborated by the witnesses mentioned hereinabove (exh.16 – Shri Narendrabhai Chimanlal Vyas and exh.17Shri Ashok Bhatia). Despite this the learned Member of the Industrial Tribunal, for no valid or cogent reason, held that the workman has failed to prove his duties. What is more important is that the learned Member of the Industrial Tribunal in para 10 does refer to the documents produced by the respondentCorporation vide exh.10list, in which exh.12 is the list of duties of field worker.
The learned Member of the Industrial Tribunal did not reproduce those duties in toto and only part of duties, presumably at serial no.9 is mentioned and duties mentioned at serial no.10 are mentioned in para 10, with halfhearted reference to those two items. The learned Member of the Industrial Tribunal has recorded finding that field worker is not supposed to discharge his duties of his own, but is supposed to discharge duties according to the instructions of the higher officer. This Court is unable to understand as to how come without appreciating the duties of the Supervisor on one hand, duties discharged by the petitioner workman, who is supported by his two co workers that he was discharging similar duties and they were discharging duties of supervisor could be rejected and reference could be dismissed.
3. The learned advocate for the petitioner invited attention of the Court to the judgement and order of the Division Bench of this Court [Coram: R.K. Abichandani, J. (as he then was) & D.H. Waghela, J.] in Special Civil Application No.6550 of 1997 with SCA No.6513 of 1997 with SCA No.5167 of 1997, dated 27th April 2000, and the observations made by the Division Bench in that judgement. The Division Bench has taken into consideration the facts which are set out in para 2, which are reproduced hereunder:
“2. Special Civil Application No.6513 of 1997 seeks to challenge the order of the Industrial Tribunal in Miscellaneous Application No.20 of 1994 whereby the alleged error in the original award in Reference (IT) No.563 of 1994 was sought to be rectified. Whereas the original award recorded a finding of fact that the workmen concerned were serving as 'supervisors', it ordered the petitioner to grant to the workmen the payscale of supervisors with effect from 1.6.1987. These workmen were originally employed and appointed as "asamis" and they had claimed the post of supervisor in the payscale of Rs.210270. During the pendency of the reference, the payscales of supervisors were revised to Rs.9501500 from Rs.260400. However, as the workmen had originally claimed the payscale of Rs.210270, they were granted by the petitioner the payscale of Rs.8001150. Being aggrieved by such interpretation of the award, the workmen concerned had filed Special Civil Application No.2532 of 1996 and during the pendency of that petition, also approached the Industrial Tribunal with a Miscellaneous Application seeking to rectify the alleged error in the award. The order in the said Miscellaneous Application clarified that the revised payscale of Rs.9501500 was to be paid to the workmen and this order is under challenge before this Court.”
The Division Bench, after careful consideration rejected the case of the respondentCorporation and dismissed the petition filed by the Corporation and upheld the benefits given to the petitioners of those petitions.
When this judgment is pointed out to the learned advocate for the respondent Corporation, the learned advocate submitted that there is yet another judgement of the Division Bench which has taken a contrary view. When inquired about that judgement, the learned advocate for the Corporation requested that he may be granted some time to produce the same.
The Corporation has filed affidavit in reply, affirmed on 12th July 2011. The affidavit in reply neither refers to the judgment nor produces copy thereof.
The learned advocate for the Corporation pointed out the appointment order at page 86. Unfortunately, the appointment order does not incorporate the duties of either Supervisor or that of Asami (field worker).
4. Taking into consideration the above decision dated 27.04.2000 of the Division Bench of this Court, rendered in Special Civil Application No.6550 of 1997 and other matters this Court is of the opinion that there is no reason for the Corporation to accord different treatment to similarly situated persons, more particularly when two witnesses, i.e. coworkers deposed before the learned Member of the Industrial Tribunal that the petitionerworkman was discharging the same duties.
5. This Court is of the opinion that the impugned judgement and order is untenable in law. Therefore, the same is quashed and set aside. The respondentCorporation is directed to give similar benefits which are given to other similarly situated workmen, to the petitioner workman. The respondent Corporation will be at liberty not to accord those benefits for three years, viz. 2009 to 2011, so as to take care of the delay in approaching this Court. The petition is disposed of. Rule is made absolute to the aforesaid extent. No order as to cost.”
3. The controversy involved in this case is covered by aforesaid decision of the Division Bench. Therefore, we do not find that the learned Single Judge has committed any error in quashing the order of the Labour Court and disposing of the writ petition with certain directions. We are in agreement with the view taken by the learned Single Judge. This appeal fails and is accordingly dismissed along with Civil Application.
[ V. M. Sahai, J. ] [ G. B. Shah, J. ] hiren