1. Heard learned advocate for the parties.
2. The petitioner, first party employer – Nagar Panchayat in Reference (IT) No.725 of 1984 (Old Reference (IT) No.468 of 1984) of the Industrial Tribunal, Rajkot has approached this Court under Articles 226 and 227 of the Constitution of India challenging the award and order dated 28/08/2001 passed by the Industrial Tribunal, whereunder the petitioner is directed to accord to the respondentworkman, the pay scale of Rs.440800 that is the payscale of Panchayat Secretary and grant him all admissible allowances based thereupon within two months from the publication of the award.
3. The facts in brief leading to filing of this petition as could be gathered from the petition deserves to be set out as under :
3.1 The petitioner is a Nagar Panchayat and accordingly governed by the provision of Panchayat Act. The concerned workman whose heirs are there in the record of the petition, with other workmen were constrained to raise industrial dispute for their respective demands, out of which the demand for the workman in whose favour the award was ultimately passed was settled and therefore, it was undertaken for adjudication and in respect of other workmen, the reference was not gone into as the settlement was brought about. The demand so far as the respondentworkman was concerned was pertaining to the claim of the workman to hold and be appointed as Secretary, as the then incumbent of the post had retired since 1st August, 1979 and he claim to have hold charge of the post since then. The appointment to the post is governed by the Recruitment Rules known as “The Gujarat Nagar Panchayats Secretaries (Recruitment, Training and Conditions of Service) Rules, 1988 and the said procedure was admittedly not followed in respect of the respondentworkman and he was merely called upon to hold charge of the post by making him entitled to draw the charge allowances. This contention was taken, but it was not accepted and ultimately the Court passed an award in his favour on 28th August, 2001. Hence, the said award is a subject matter of challenge before this Court under Articles 226 and 227 of the Constitution of India.
4. Learned advocate for the petitioner has invited this Court's attention to the provision of the aforesaid Recruitment Rules and contended that the appointing authority is the District Development Officer and admittedly the District Development Officer is not a party in the proceedings. The direction in absence of the competent party, issued by the tribunal is no avail to the workman. Merely holding of the charge of the post in itself would not be sufficient for appointing the workman to the post and as the elaborate recruitment procedure was not followed and admittedly the charge was held, the same would not be sufficient for the workman to be entitled to receive the benefits of appointment and grade.
5. Learned advocate for the respondentworkman, whose heirs are on record submitted that the nonjoinder of the District Development Officer may not be a fatal error on the part of the workman. The tribunal has elaborately discussed the entitlement and rights of the workman for receiving the grade, scale and wages on that basis and therefore, the Court may not interfere with the same in exercise of the jurisdiction under Articles 226 as well as 227 of the Constitution of India.
6. This Court is of the considered view that this petition is required to be allowed for the following reasons.
(i) The post of Secretary is governed by the Recruitment Rules, which have been referred to hereinabove and admittedly there was no procedure followed for making appointment of the incumbent namely the workman and therefore, mere holding of charge for the post would itself not be treated as conferring any right upon the workman to be appointed on the post especially when the appointment and recruitment is governed by the statutory Recruitment Rules, which were in existence and governing the field. The tribunal unfortunately has not adverted to this aspect at all and therefore, in my view the tribunal has exercised jurisdiction, which is inherently not vested in the tribunal and the award is vitiated and therefore, the same is required to be quashed and set aside. Learned Counsel for the respondentworkman is not justified in submitting that the award does not require any interference, as the petition is filed under Article 227 of Constitution of India.
7. The Court is of the view that the tribunal could not have straight way ordered placement of the workman, which in other words amounts to appointing workman and when the recruitment procedure and recruitment rules are not adverted, this being a fatal error or rather exercising jurisdiction, which is not vesting in the tribunal, the award is vitiated and therefore, it cannot be sustained under Articles 227 or 226 of Constitution of India.
8. The petition is therefore, required to be allowed and accordingly it is allowed. Rule is made absolute. However, there should be no order as to costs.
[S.R.BRAHMBHATT, J.] Rathod...