KAMUBEN JAVERBHAI GOHEL vs STATE OF GUJARAT
- Court
- Gujarat High Court
C/SCA/8129/2026 (GJHC240415282026) JUDGMENT DATED: 03/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8129 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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Approved for Reporting Yes No
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KAMUBEN JAVERBHAI GOHEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. SANDIP A. KAPADIYA(17911) for the Petitioner(s) No. 1
MS. AGNEYA MANKAD, AGP for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 03/09/2026
ORAL JUDGMENT
1) Rule. Learned AGP waives service of notice of rule for and
on behalf of respondents.
2) By way filing present petition under Article 226 of the
Constitution of India, as well as under Section 8 of the Payment
of Gratuity Act, 1972 and Rule 18 of the Payment of Gratuity
Rules, 1973, the petitioner has prayed for issuance of appropriate
directions to Respondent Nos. 2 and 3 to recover an amount of
Rs.6,04,976/- along with interest at the rate of 10% from
01.12.2023, in terms of the Recovery Certificate issued by the
competent authority.
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3) Learned advocate Mr. Chintan Gandhi, appearing for
learned advocate Mr. Sandip Kapadia for the petitioner,
submitted that the petitioner was working with Damnagar
Nagarpalika since the year 1982 as a 'Safai Kamdar' and
superannuated from service on 30.11.2023. It is submitted that
after her retirement, Damnagar Nagarpalika paid an amount of
Rs.4,68,909/- towards gratuity to the petitioner. However, there
was a shortfall in the amount of gratuity payable to her.
Therefore, the petitioner preferred an application before the
Controlling Authority under the Payment of Gratuity Act seeking
the remaining amount of Rs.6,05,920.35/- along with interest at
the rate of 10% with effect from 01.12.2023.
3.1) After considering and appreciating the documents placed
on record, The Controlling Authority under the Payment of
Gratuity Act, Amreli, allowed the said application and held that
the petitioner was entitled to an additional amount of gratuity of
Rs.6,04,976/- along with interest at the rate of 10% from
01.12.2023.
3.2) Being aggrieved by and dissatisfied with the aforesaid
order, Damnagar Nagarpalika preferred an appeal before the
Appellate Authority. The said appeal came to be rejected vide
order dated 31.01.2026. Learned advocate for the petitioner
submitted that despite the orders passed by the Controlling
Authority and the Appellate Authority, the amount payable to
the petitioner has not been paid. Therefore, the petitioner
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approached the Controlling Authority for recovery of the
amount. Pursuant thereto, the Controlling Authority issued a
Recovery Certificate dated 04.09.2025 for recovery of the
amount of Rs.6,04,976/- along with interest at the rate of 10%
from 01.12.2023.
3.3) It is further submitted that the said Recovery Certificate
was forwarded to the office of Respondent No.2 – Collector,
who, in turn, forwarded the same to Respondent No.3 –
Mamlatdar and Taluka Executive Magistrate, Lathi, Amreli, for
recovery of the amount from Damnagar Nagarpalika. It is further
submitted that Respondent No.3 thereafter issued a notice to
Damnagar Nagarpalika under Section 152 of the Bombay Land
Revenue Code, calling upon the Nagarpalika to comply with the
recovery proceedings. However, despite the aforesaid
proceedings, the amount payable to the petitioner has not been
recovered till date.
3.4) Learned advocate for the petitioner, therefore, submitted
that there is no further action on the part of Respondent Nos. 2
and 3 for recovery of the amount in terms of the Recovery
Certificate and therefore, the petitioner is constrained to
approach this Court by way of the present petition.
3.5) Learned advocate for the petitioner further submitted that
once the Recovery Certificate has been issued by the Controlling
Authority, the proceedings for recovery are required to be
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undertaken by the concerned revenue authorities in accordance
with law. It is submitted that at this stage, the issue is between
the petitioner and the concerned revenue authorities for
execution of the Recovery Certificate and, therefore, Damnagar
Nagarpalika has not been joined as a party respondent in the
present proceedings.
3.6) In support of his submissions, learned advocate for the
petitioner has placed reliance upon the decision of this Court in
the case of Manager V.J. Auto Engineering Works vs. Sherkhan
Ahmedkhan Khokhar, reported in 2003(3) AIJEL-HC 207334.
3.7) Learned advocate Mr. Gandhi has further submitted that in
fact, during the interregnum period, a number of
correspondences were made at the instance of the petitioner
with the Mamlatdar, Lathi, however, all such efforts have gone in
vain and therefore, the petitioner is constrained to approach this
Court by way filing the present petition.
4) Learned AGP Ms. Agneya Mankad, appearing for the
respondents – State authorities, submitted that pursuant to the
Recovery Certificate issued at the instance of the Controlling
Authority, the Collector, Amreli, had, in turn, forwarded the said
Recovery Certificate to the office of the Mamlatdar with a
request to recover the said amount from Damnagar Nagarpalika.
Pursuant thereto, a notice was issued by the Mamlatdar, Lathi,
under Sections 152, 155 and 158 of the Bombay Land Revenue
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Code for recovery of the said amount from the Nagarpalika. In
turn, the Nagarpalika had requested for some more time and
sincere efforts have been made at the instance of the
respondents to recover the said amount. However, due to certain
unavoidable circumstances, the respondents could not recover
the said amount within the stipulated time frame. Considering
the aforesaid circumstances, appropriate orders may be passed.
5) Heard learned advocates for the respective parties and
having gone through the records and proceedings.
6) Before adverting to the issue involved in the present
petition, at this juncture, I would like to rely upon and refer to
the observations made by the Coordinate Bench of this Court in
the aforesaid decision, more particularly paragraph 10 thereof,
which reads as under:
“10. It is pertinent to note that this Court has directed the District
Collector, Baroda to make effective recovery as per the recovery
certificate which is at page 19 & 20 dated 3rd July, 2000 to recover
the said amount as mentioned in Recovery Certificate from the
respondent Nos. 1 to 3 present applicants within two months from
the date of receiving the copy of this order. Thus, it is clear that the
petition which has been filed by the respondent workman only
against inaction on the part of the District Collector, Baroda. There is
no need for this Court to enter into merits of the matter when there
is clear inaction on the part of the statutory authority under
challenge. It is to be reminded that this Court having powers to issue
writ of mandamus even without calling such statutory authority
when this Court satisfy that there is inaction on the part of the
statutory authority which is under statutory obligation to implement
the recovery certificate issued by the labour court. Therefore, this
Court has not issued any notice to any of the party including the
District Collector concerned. For that, in my opinion, there is nothing
wrong while straightaway issuing directions on the statutory
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authority as per the recovery certificate which is mandate of the
labour court to implement the recovery certificate within some
reasonable time. Therefore, this Court has passed the order on 21st
April, 2003 in absence of the respondent-applicants herein as there
was no need to issue any notice to the applicants since this Court had
not examined the merits of the matter. Even considering the prayer
made by the original petitioner workman in the main petition, to
direct the respondent authority to recover the amount of
Rs.1,43,893.00 ps as per the recovery certificate issued by the Labour
Court, Kalol. Therefore, as per the main prayer in the main petition,
the applicants herein were the formal parties and the main prayer
was sought against the respondent authority - Collector concerned
and therefore, the applicants herein have no locus to resist or
request this Court to recall and/or review the order passed by this
Court on 21.4.2003. If the applicants had any grievance, they would
have certainly remained present in the recovery application
proceedings preferred by the workman but the applicants have
chosen not to remain present before the labour court concerned at
the relevant time in said proceedings preferred by the workman. It is
also necessary to note that the lethargic approach of the present
applicants and tactics not to give effect of any of the orders passed
by the labour court by adopting such practice which ultimately
amounts to misuse and abuse of process of Court by merely filing
such applications admittedly time barred after delay of four to five
years and this delay itself suggests that such intentional gross delay
may not be condoned by the court. Therefore, according to my
opinion, this Court has rightly passed the order with direction to the
Collector to implement these two recovery certificates annexed on
page 19 & 20 of the main petition, within two months. Now if this
Court considers the agony of the workman, it clearly transpires that
the workman came to be terminated on 2nd June, 1988 and by now,
15 years have passed and the workman is without reinstatement or
any financial benefits which he is able to establish after long
litigation but on the other hand, the employer is happily enjoying the
process of Court and made efforts to remain silent upto 2001 despite
of the fact that no order has been passed by the labour court
concerned in favour of the employer either in the Reference or even
in the recovery application. Not to take cognizance of the authority
and the order passed by the labour court as if what will happen
ultimately and at the most, the employer can approach the Court by
way of an application and the concerned Court will consider the
same and thereby they will delay the matter to create a situation
and circumstances to an extent just to delay the matter and
ultimately, to see that the workman must surrender the terms of the
employer and comes forward across the table for a settlement as per
the desire of the employer. This is nothing but a practice and tactic
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adopted by the present applicants to see that the workman may not
be able to get complete result of the proceedings which has been
decided by the competent Court long back in the year 1992, 1996
and 1997. It also transpires that this is clear case of misuse and
abuse of process of Court to file such application with prayer to
recall or modify the order passed by this Court on 21st April, 2003.
Therefore, in my opinion, such type of efforts made by the applicants
only in the guise of pendency of such application which is apparently
time barred for more than four to five years. Such applications were
filed for the sake of defence to show on record that some
proceedings are pending initiated by the employer. But fact remains
that the workman who remained out of job since 1988 despite of
having award in his favour from 13th November, 1992 and the orders
in recovery applications dated 6th December, 1996 and 12th
December, 1997 but till this date he is not able to receive any single
pie from the applicants and even not able to get reinstatement.
Therefore, it is pertinent to note that this is nothing but some lacuna
in the implementing law and procedure under the relevant Act either
in the Industrial Disputes Act, 1947 and Industrial Disputes [Gujarat]
Rules, 1966. The appropriate authority is the Labour Court and the
High Court is not entertaining the Contempt Petition only on the
ground that workman having alternative remedy to file recovery
application if award is not implemented by the employer. When
recovery application is filed and ultimately, if any order is passed in
the recovery application and the same is not being implemented by
the employer, then the workman is remained without any remedy
except with remedy to approach the labour court with request to
issue recovery certificate. It is second stage of award passed by the
labour court. In third stage, after issuance of the recovery certificate
in favour of the Collector, but if the Collector concerned is not
implementing such recovery certificate within reasonable time, then
the workman shall have to approach this Court seeking directions on
the Collector concerned so that he can implement the recovery
certificate while recovering the amount from the employer as
mentioned in the recovery certificate. Therefore, at the third stage,
this Court has to direct the authority concerned to implement the
recovery certificate within some reasonable time. In the instant case,
this Court, at the third stage discussed above, has directed the
Collector concerned to take effective steps within two months. But
at this stage also, the present application is filed by the employer
with a view to see that delay condonation application which are
pending, some orders may be passed by this Court directing the
labour court concerned to expedite the hearing of such grossly
belated applications pending before the Labour Court. However, if
the prayer made in the present application is entertained, it would
amount to encouraging the employer and giving them a handle for
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fresh round of litigation against the workman. Therefore, this Court
is not inclined to accept the prayer made by the applicants, nor
inclined to encourage such belated litigation preferred by the
employer with a view to avoid implementation of the award when
four to five years have already passed from the date of order passed
by the labour court concerned. The application is filed in the year
2001 but prior thereto, on 7th March, 2000 the labour court has
passed the order granting recovery certificate in favour of the
District Collector, Baroda but it is surprising that the concerned
Collector has also set tight over the matter for more than one year
and as such, not made any efforts giving a chance and / or
opportunity to the applicants to move such applications before the
labour court concerned in the year 2001. This Court fails to
understand as to why the Collector has not implemented the
recovery certificate within one year which has given cause to the
employer to file such belated applications before the labour court.
That is how, the workman who is able to get the result in his favour
after a period of atleast four to five years in the Reference
proceedings, then he is not able to get final result in such
proceedings because of some lacuna for effective implementation of
such award and the order passed by the labour court. Therefore, it is
necessary to note that the State Government should amend the Law
similar to the West Bengal State Rules, and the A.P. State Rules
where the labour Courts are having powers to execute the order like
decree of the Civil Court in case of the award in question is not being
implemented by the employer. No such powers have been conferred
under the State Law under the Industrial Disputes [ Gujarat ] Rules,
1966 and therefore, in my opinion, such powers should be conferred
on the Labour Court and the labour court should be made competent
to entertain the execution applications in case the award in question
is not being implemented by the employer within time prescribed by
the labour court. Therefore, this is really an important issue which
requires immediate attention of the State Government to amend the
Rules giving powers to the labour court for execution so that the
workman should not suffer and the management will not be able to
easily avoid implementation of the award / orders passed by the
labour court concerned.”
6.1) Having considered the submissions advanced by learned
advocate for the petitioner and having gone through the material
placed on record, it emerges that the petitioner has already
succeeded before the Controlling Authority under the Payment
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of Gratuity Act. The order passed by the Controlling Authority
directing payment of the additional amount of gratuity has also
been followed by the Appellate Authority by rejecting the appeal
preferred by Damnagar Nagarpalika. It further emerges from the
record that the Controlling Authority has already issued the
Recovery Certificate dated 04.09.2025 and the same has been
forwarded to the concerned revenue authorities for recovery.
Despite the aforesaid proceedings, the amount payable to the
petitioner has not been recovered.
6.2) It is also found from the record that in fact, during the
interregnum period, with the sole intent of recovering the
amount mentioned in the Recovery Certificate, the petitioner
herein has made a number of correspondences with the office of
the Mamlatdar, Lathi, however, no fruitful result has been
derived therefrom till date, which has ultimately led the
petitioner to file the present petition. It is brought to the notice
of this Court that a copy of the Recovery Certificate had already
been forwarded to the Collector, Amreli, who, in turn, had
forwarded the papers to the office of the Mamlatdar, Lathi, to do
the needful in the matter. It is further revealed from the record
that, during the interregnum period, notices were issued under
the provisions of Sections 152, 155 and 158 of the Bombay Land
Revenue Code, however, the Nagarpalika did not pay the said
amount to the Mamlatdar, Lathi.
6.3) On the strength of the above-stated totality of the facts of
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the matter, I am of the opinion that the concerned authorities are
required to take necessary steps for giving effect to the Recovery
Certificate issued by the Controlling Authority. In view of the
aforesaid discussion and in view of the settled legal position
referred to hereinabove, the present petition deserves to be
allowed.
7) Therefore, the present petition succeeds and is allowed .
Respondent Nos. 2 and 3 are directed to take necessary steps for
recovery of the amount of Rs.6,04,976/- along with interest at
the rate of 10% from 01.12.2023, in accordance with the
Recovery Certificate dated 04.09.2025 issued by the Controlling
Authority under the Payment of Gratuity Act, Amreli. The
aforesaid exercise shall be completed and the amount so
recovered shall be deposited before the Controlling Authority
under the Payment of Gratuity Act, Amreli, within a period of
eight weeks from the date of receipt of a copy of this order. Rule
is made absolute to the aforesaid extent.
(DIVYESH A. JOSHI,J)
GARVITA
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