NEUTRAL CITATION
C/SCA/5986/2020 ORDER DATED: 16/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5986 of 2020
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LABHUBEN DAYALJIBHAI SOLANKI - SINCE DECEASED
Versus
CHIEF OFFICER, JUNAGADH MUNICIPAL CORPORATION
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Appearance:
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1,1.1
MR DIGANT B KAKKAD(6523) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 16/10/2023
ORAL ORDER
1. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:
"A. Quashing and setting aside the award dated 12.10.2018 passed by the Tribunal, Rajkot in Ref (I.T.) Case No. 210/2012 qua denial of consequential benefits from the date of reference and further directing the respondent to pay all consequential benefits from the date of reference including arrears with 9% interest to the petitioner from the date of filing reference before the Tribunal.
B. During the pendency and final disposal the respondent may be Page 1 of 9 Downloaded on : Fri Oct 20 20:35:15 IST 2023 NEUTRAL CITATION C/SCA/5986/2020 ORDER DATED: 16/10/2023 undefined directed to do pay fixation of petitioner as regular employee from the date of filing reference and pay her 50% arrears of pay from that date.
C. To grant such other and further relief as may be deemed fit and proper."
2. Brief facts of the case are as under: 2.1 The petitioner joined service as daily wager in Garden Department of the respondent-Municipal Corporation on 19.05.1980. The service of the petitioner was terminated in the year 1982, she filed a reference before the Labour Court being Ref. Case No. 8/1990 where she succeeded and was reinstated in service with continuity of service.
2.2 She worked in the respondent- Corporation till the age of superannuation on 16.05.2013.
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NEUTRAL CITATION C/SCA/5986/2020 ORDER DATED: 16/10/2023 undefined During her service tenure, the petitioner filed Ref. (I.T) No. 210/2012 for regularization before the Industrial Tribunal, Rajkot who, by award dated 12.10.2018 partly allowed the reference holding the petitioner entitled to be regular employee from the date of reference. However, the period from the date of reference till the date of superannuation was ordered to be treated as notional.
2.3 The aggrieved petitioner approached this Court by way of present petition challenging the aforesaid award qua treating the period from date of reference as notional and denial of consequential benefits.
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3. Learned advocate Mr. Samir Gohil at the outset submitted that this Court, by order dated 16.07.2019 in Special Civil Application No. 7704/2019 preferred by the respondent- Municipal Corporation, challenging the same award has dismissed such petition. It was however, submitted that the Labour Court could not have awarded the notional pay to the workman as the workman has rendered services of more than 33 years till the date of superannuation.
4. It was further submitted that only because the Labour Court took 16 years for deciding the reference, the workman should not suffer and the benefit of regular pay scale ought to have been given so as to give financial assistance to the legal Page 4 of 9 Downloaded on : Fri Oct 20 20:35:15 IST 2023 NEUTRAL CITATION C/SCA/5986/2020 ORDER DATED: 16/10/2023 undefined heirs of the deceased workman who has expired during the pendency of this petition. Reliance was placed on the decision of the Apex Court in case of Umrala Gram Panchayat vs. Secretary, Municipal Employees Union reported in 2015 (12) SCC 774 wherein the Apex Court, after considering the length of service of the workman for more than five years, granted the benefit of permanency till attaining the age of superannuation for the purpose of granting terminal benefits and the employer was directed to pay the regular pay scale as per the revised pay scale fixed to the post of permanent Safai Kamdar in the said case. It was therefore submitted that the Tribunal also ought to have granted same benefit to the deceased workman.
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5. Having heard learned advocate for the petitioner, when the impugned order already stands confirmed by the Judgement and Award dated 16.07.2019 wherein it is held as under, no interference can be made in the impugned Judgement and Award passed by the Labour Court:
"9. Heard learned advocate Mr. Digant Kakkad for the petitioner. It was submitted that the Industrial Tribunal failed to consider the fact that the respondent no.1 workman did not work from 1981 to 1994 till he was reinstated pursuant to judgment and award passed by the Tribunal in the year 1994 and it was therefore, contended that the respondent no.1 is not entitled to benefits of permanent employee. It was further submitted that as per the law laid down by Supreme Court in case of Secretary, State of Karnataka and others v. Umadevi and others reported in 2006 (4) SCC 1, the Tribunal ought not to have passed the order of giving benefits of permanent employee to the Page 6 of 9 Downloaded on : Fri Oct 20 20:35:15 IST 2023 NEUTRAL CITATION C/SCA/5986/2020 ORDER DATED: 16/10/2023 undefined respondent no.1 as the respondent no.1 was employed as a daily wager. Learned advocate also submitted that by giving the benefit of permanent employee to respondent no.1 would cause prejudice to other employees and workmen of the petitioner Corporation who are senior to the respondent no.1 and are discharging the duty on daily wage basis. It was submitted that the implementation of the order passed by the Tribunal would cause heavy financial burden upon the petitioner Corporation.
10. Having considered the
submissions made by the
learned advocate for the
petitioner and having gone through
the impugned judgment and award passed by the Tribunal and having gone through the material on record, it appears that the petitioner Corporation did not give benefit of permanent employee to the respondent no.1 inspite of there being a continuous service rendered by respondent no.1 from 1980 to 2013. By the impugned judgment and award dated 13th November, 1994, respondent no.1 was reinstated in service with continuity and Page 7 of 9 Downloaded on : Fri Oct 20 20:35:15 IST 2023 NEUTRAL CITATION C/SCA/5986/2020 ORDER DATED: 16/10/2023 undefined therefore, the contention raised on behalf of the petitioner that respondent did not work for 12 years is not tenable. Moreover, the Tribunal has given findings of fact that 9 persons of the garden department were given benefit of permanent employee prior to 2016 and as such the petitioner ought to have been given benefit of permanent employee to respondent no.1 taking into consideration the long period of service of 33 years. Reliance placed by the learned advocate for the petitioner on decision in case of Umadevi and others(supra) would also not come into play in view of observations made by the Supreme Court in the said judgment that if an employee renders service of more than 10 years, then the establishment is required to give benefits of permanency to such employee.
11. In view of the foregoing reasons, it cannot be said that the Tribunal has erred in giving the benefit of permanent employee to the respondent no.1 workman and that too on notional basis so as to enable the respondent no.1 to get retiral benefits as that of a permanent employee. Therefore, no interference is called for in Page 8 of 9 Downloaded on : Fri Oct 20 20:35:15 IST 2023 NEUTRAL CITATION C/SCA/5986/2020 ORDER DATED: 16/10/2023 undefined exercise of powers under Article 227 of the Constitution of India."
6. In view of the above findings, when the impugned Judgement and Award is confirmed, no interference is called for so far as the aspect of granting of notional pay to the deceased workman is concerned. The petition is accordingly dismissed.
(BHARGAV D. KARIA, J) JYOTI V. JANI Page 9 of 9 Downloaded on : Fri Oct 20 20:35:15 IST 2023