SCA/4290/1991 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4290 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= GUJARAT ELECTRICITY BOARD - Petitioner(s) Versus WORKMAN EMPLOYEED BY G E B & 1 - Respondent(s) ========================================================= Appearance : MS LILU K BHAYA for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 08/05/2008 ORAL JUDGMENT 1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for an SCA/4290/1991 2/6 JUDGMENT appropriate writ, order or direction, quashing and setting aside the order passed by the Industrial Tribunal, Ahmedabad, dated 5.3.1991 passed in Reference (IT) No.275/85 directing the petitioner to pay to the workman all the benefits of Senior Assistant on the assumption that the post of Senior Assistant/Clerk was sanctioned in the stores at Unjha and thereby to pay the concerned workman charge allowance for the period from 1976 to 1986 at 10% of the presumptive pay of the post of Senior Assistant during the said period in addition to his normal duties as Assistant Store Keeper. 2. Respondent herein raised an industrial dispute before the Industrial Tribunal at Ahmedabad which was numbered as Reference (IT) No.275 of 1985 claiming the charge allowance at the rate of 10% for the period between 1976 to 1986 of the post of Senior Assistant by submitting that though the post of Senior Assistant was sanctioned at Unjha, and though they were appointed as Assistant Store Keeper, but they were discharging the functions of Senior Assistant also in addition to his normal duty as Assistant Store Keeper. 3. The Industrial Tribunal, Ahmedabad by impugned judgment and award dated 5.3.1991 partly allowed the said SCA/4290/1991 3/6 JUDGMENT reference by directing the petitioner to pay charge allowance to the respondent-workman for the period between 1976 to 1986 at 10% of the presumptive pay of the post of Senior Assistant for having discharging the function of Senior Assistant. 4. Being aggrieved and dissatisfied with the impugned judgment and award passed by the Industrial Tribunal, Ahmedabad, dated 5.3.1991 passed in Reference (IT) No.275 of 1985, the petitioner has preferred present Special Civil Application under Articles 226 and 227 of the Constitution of India. 5. Ms.Lilu Bhaya, learned advocate for the petitioner has submitted that the Tribunal has not properly appreciated and considered the Service Regulation No.116 under which the charge allowance is payable only when an employee is called upon to hold one or more independent posts in addition to his own duties. It is submitted that in the present case the respondent-workman was never called upon to hold one or more independent post. In fact there was no post of Senior Assistant/ Clerk in the Division at Unjha and, therefore, there was no question of the respondent-workman being called upon SCA/4290/1991 4/6 JUDGMENT to hold the post of Senior Assistant in addition to his own duties as Assistant Store Keeper. It is further submitted by her that the Tribunal has materially erred in assuming that the post of Senior Assistant/Clerk was sanctioned with effect from the date of creation of Siddhpur Divisional Store at Unjha. It is submitted that, as such, no post of Senior Assistant/Clerk was sanctioned with effect from the date of creation of Siddhpur Divisional Store at Unjha. It is further submitted that the Tribunal has materially erred in holding that there are reasons to believe that the work of the post of Senior Assistant/Clerk was discharged by the respondent over and above his normal duties as Junior Assistant. Therefore, it is requested to allow the present Special Civil Application. 6. Though served nobody appears on behalf of the respondents. 7. Heard Ms.Lilu Bhaya, learned advocate appearing on behalf of the petitioner and having gone through the impugned judgment and award passed by the Industrial Tribunal, it appears that there was no post of Senior Assistant/Clerk was sanctioned with effect from the date of creation of Siddhpur Divisional Store at Unjha. Under the SCA/4290/1991 5/6 JUDGMENT circumstances, when there was no post of Senior Assistant/Clerk at Siddhpur Divisional Store at Unjha, there was no question of giving any additional charge of Senior Assistant/Clerk to the respondent-workman. It appears that the Tribunal has also not properly considered or dealt with the Service Regulation No.116 which was with respect to charge allowance payable to the workman. As per Service Regulation No.116, the charge allowance is payable only when an employee is called upon to hold one or more independent posts in addition to his own duties. For the purpose of giving additional charge of Senior Assistant/Clerk over and above and/or in addition to the work of Assistant Store Keeper, what is required is that there must be a sanctioned post. As stated above, it appears that there was not a sanctioned post of Senior Assistant/Clerk in the Siddhpur Divisional Store at Unjha. Under the circumstances, the Tribunal has materially erred in allowing the reference by making the petitioner to pay 10% charge allowance of Senior Assistant/Clerk. 8. For the reasons stated above, the petition succeeds. The impugned judgment and award passed by the Industrial Tribunal, Ahmedabad dated 5.3.1991 passed in Reference (IT) No.275/85 is hereby quashed and set aside. Rule is made SCA/4290/1991 6/6 JUDGMENT absolute accordingly. There shall be no order as to costs. ( M.R. SHAH, J. ) syed/