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Gujarat High Court
Judgename :S.D.Shah
NARMADAPRASAD SHIVPRASAD MISHRA - Appellant
Versus
AHMEDABAD MUNICIPAL CORPORATION - Respondent
S.C.A. 4167 of 1988
Decided On : 03/04/1994
Labour law – Constitution of India, 1950 – Articles 226 and 227 – Industrial Dispute Act – B. I. R. Act, 1946 – Section 78 r/w 79 – Payment of Gratuity Act, 1972 – Employment and Service matter – Agreement – Retrenchment compensation – Validity of – Petitioner mill had entered into an agreement as per Annexure-A page 22 with representative union – It is an admitted position that parties are governed by the provisions of B. I. R. Act to the extent to which there are provisions in it. As a part of agreement arrived at between the management and union, on 4-5-1976 respondent was to be sent home because the third shift was closed and the plant in which he was working as mukadam was also to be closed – Held, however, when they decided the quantum of retrenchment compensation in total disregard of the provisions of Industrial Disputes Act, obviously, that could not have been done – Had it been in keeping with the Industrial disputes Act and if the agreement was challenged, one could have understood real position – Agreement, thus being not challenged, case relied upon by Mr. Bhatt is not applicable to the facts of the present case – That opportunity is available to petitioner before the Labour Court and instead of questioning the assertions made by the respondent in his deposition, though on oath, petitoner company could have led oral and documentary evidence to make out a case that the amount was in keeping with the record as to payment of wages particularly to the respondent – That having not been done and reliance having been placed by the Trial court on the said clause 3 of the agreement page 24, obviously Trial Court had no hesitation in coming to the conclusion on the basis of the materials before it that said amount Rs. 110. 00 is not in keeping with the provisions of law because it is far less than what the respondent would have got looking to the salary as stated by him on oath – Admittedly, best possible evidence was available with the petitoner company and yet it has chosen to keep it back. At this stage, therefore, they cannot be also relied upon – Petition is dismissed.
( 1 ) * * * *
( 2 ) IN this group of petitions, the petitioners have challenged the action of respondents in cancelling the select list for the post of Pagi, prepared as back as 4th of February, 1987, pursuant to advertisement dated 7th of September, 1983. The petitioners are the candidates, who applied for being considered and appointed for the post of Pagi. It appears that Ahmedabad City Primary Education Committee issued an advertisement in the Newspaper on 7th of September, 1983 inviting applications from eligible candidates for the post of Pagi. The petitioners applied for such post and they were called for interview and ultimately a list of selected candidates was prepared. It is described as "select list of candidates for the post of Pagi". The list was of 193 candidates. It is signed by the then Chairman of the municipal School Board, Ahmedabad.
( 3 ) IT is required to be noted that pursuant to the aforesaid advertisement, 2172 candidates applied and they were interviewed and after extensive process of selection, select list of 193 candidates was prepared. It appears that the said select list was approved by Staff Selection Committee on 4th of February, 1987 vide its Resolution no. 234. Such resolution was passed by the Committee on 4th of February, 1987.
( 4 ) IT appears that, before any appointment could be given to the selected candidates, a Civil Suit was filed being Civil Suit No. 1859 of 1987 in the City civil Court at Ahmedabad. In such a suit, serious allegations were made against the process of selection. Initially on 18th of April, 1987, the learned Chamber judge of the City Civil Court directed the respondent-Corporation to maintain status quo which status quo was continued upto 11th of May, 1987. Because of such order of status quo, no appointment from the select list could be made.
( 5 ) AT this stage, it is also required to be mentioned that in such Civil Suit, reply to the application for temporary injunction was filed by the defendants, i. e. , Ahmedabad Municipal Corporation and the Municipal School Board and in such written statement, the case of the Corporation was that the select list prepared by it, was legal and valid and that the same was prepared in accordance with the rules and procedures prescribed. It was their case in such written statement that they were not in a position to make any appointment from the said select list because of the order of status quo granted by the City Civil Court and that they should be permitted to make appointment.
( 6 ) HOWEVER, it appears that in the aforesaid Civil Suit a Pursis was filed at exhibit-61 by the Ahmedabad Municipal Corporation. As per the said Pursis, it was declared that defendants Nos. 2 and 3 have decided to cancel the waiting list of pagies and decided not to implement such list. It was also declared that said defendants reserved their right to prepare fresh select list as and when found necessary. In view of the aforesaid Pursis filed by defendants Nos. 2 and 3 in the said suit on 16th of March, 1988, Chamber Judge of the City Civil Court disposed of Exhibit-5 application for temporary injunction. It is thus clear that from 16th of march, 1988, no injunction operated, but, at the same time, it was made clear by ahmedabad Municipal Corporation and the Municipal School Board that the aforesaid select list dated 4th of February, 1987 stood cancelled. Immediately thereafter two of these petitions came to be filed in this Court being Spl. C. A. No. 4167 of 1988 and 6449 of 1988. The petitioners of these petitions having inter alia prayed for writ of mandamus directing the respondents to appoint the petitioners as pagies in the existing vacancies and they have further prayed for appropriate writ to quash and set aside the action of the respondent in cancelling the select list already prepared. They have also prayed for appropriate direction restraining the respondent from filling the post of Pagies from any other source.
( 7 ) THE third petit
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