Gujarat High Court
The Commissioner vs Vaghabhai Jodhabhai Jograna on 24 January, 2025
NEUTRAL CITATION
C/SCA/880/2025 JUDGMENT DATED: 24/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 880 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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THE COMMISSIONER
Versus
VAGHABHAI JODHABHAI JOGRANA
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Appearance:
MS SEJAL K MANDAVIA(436) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 24/01/2025
ORAL JUDGMENT
1. This petition is filed challenging the award passed by learned Industrial Tribunal, Bhavnagar dated 30.09.2024 in Reference I.T. No.15 of 2022 whereby the reference filed by the respondent came to be allowed and the direction was issued upon the present petitioner to regularize the service of the respondent as a temporary watchman with effect from 06.12.2003 and as a permanent watchman with effect from Page 1 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 23:13:27 IST 2025 NEUTRAL CITATION C/SCA/880/2025 JUDGMENT DATED: 24/01/2025 undefined 06.12.2008. It is further ordered that the period from the date of reference to the date of making respondent as a permanent should be treated as notional and the retirement benefits like pension, gratuity and other benefits be given with effect from his date of appointment.
2. Heard learned advocate Ms. Sejal K. Mandavia for the petitioner.
2.1. Learned advocate Ms. Mandavia submits that the petitioner was appointed on 25.07.1998 as a Watchman cum Gardner and was terminated on 06.12.1998. The said termination was challenged before learned Tribunal by way of filing the Reference being L.C.B. No.228 of 2004 which was allowed in favour of the respondent by granting the relief of 20% back wages continuity of services all consequential benefits along with relief of reinstatement. The application made by the respondent that if he is reinstated pursuant to the award passed by learned Tribunal then he is ready to forego the 20% back wages which was awarded by learned Court. The petitioner - Nagarpalika has given fresh appointment order to the petitioner on 04.02.2009 after taking the undertaking from the present respondent. As per the terms of service on completion of 5 years, he was given Page 2 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 23:13:27 IST 2025 NEUTRAL CITATION C/SCA/880/2025 JUDGMENT DATED: 24/01/2025 undefined the status of temporary employee in the year 2014 and the regular employee on the completion of the 10 years in the year 2019. In the year 2022, the dispute raised before learned Commissioner stating that as per the award passed in favour of the present respondent in Reference L.C.B. No.228 of 2004, he is entitled for the continuity of service and status of the temporary watchman from 06.12.2003 and regular watchman from 06.12.2008, however, the petitioner - authority has not granted the same and therefore, the dispute was referred to learned Industrial Tribunal which was numbered as Reference I.T. No.15 of 2022. Learned Reference Court, after considering the statement of claim, written statement and the evidence adduced by both the parties, has allowed the reference in favour of the respondent - employee by granting the benefit as claimed by the respondent. Learned advocate Ms. Mandavia submits that the reference was filed in delay as after fresh appointment which was made in the year 2009, the dispute was raised in the year 2022. It is further submitted by learned advocate Ms. Mandavia that when he was given the fresh appointment, status of temporary employee and the permanent employee given in the year 2019, No objections were raised, however, after taking all Page 3 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 23:13:27 IST 2025 NEUTRAL CITATION C/SCA/880/2025 JUDGMENT DATED: 24/01/2025 undefined the benefits, it was not open for the respondent to claim the benefits as per the award passed by learned Tribunal. Learned advocate Mr. Mandavia further submits that pursuant to the undertaking wherein he has forgo all the benefits, fresh the appointment was made, however, subsequently, the respondent has reopened the issue which was closed pursuant to his own undertaking. Learned advocate Ms. Mandavia submits that as he has given undertaking voluntarily, it was not open to the respondent to back out from the undertaking and claiming the relief which was granted by learned Reference Court. Learned advocate Ms. Mandavia submits that learned Tribunal has also not considered the submission made by the present petitioner and awarded the reference in favour of the respondent. Therefore, the same is deserved to be set aside and the petition is required to be allowed.
3. Having considered the submissions made by learned advocate Ms. Mandavia and having gone through the reasons, it emerges that the reference being No. L.C.B. Case No.228 of 2004 was awarded in favour of the present petitioner challenging the order of termination wherein learned Reference Court has granted the relief of reinstatement the continuity of service from Page 4 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 23:13:27 IST 2025 NEUTRAL CITATION C/SCA/880/2025 JUDGMENT DATED: 24/01/2025 undefined 06.12.1998 with 20% back wages and all consequential benefits. Admittedly, this order was not challenged before the higher forum by the petitioner authority and he had complied with the order by reinstating the respondent. However, instead of reinstating, the fresh appointment was given relying on the undertaking. The said undertaking is neither part of the record before learned Tribunal nor before this Court. The order of fresh appointment passed on 04.02.2009 if one would refer then Condition No.2(4), it suggests that the panel advocate has opined that if the respondent would forego the benefit of 20% back wages and all consequential benefits which was granted by learned Reference Court along with undertaking then his case can be considered. The respondent was badly needed employment and therefore, undertaking was given waiving the right to claim the benefit granted by learned Court of 20% back wages as well as all consequential benefits. Fresh appointment order does not suggest that the respondent has forgo his right of continuity of service which was awarded by learned Reference Court. Be that as it may, it was not open for the petitioner - employer to take the disadvantage of the situation of the employer and to overreach the award passed by learned Page 5 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 23:13:27 IST 2025 NEUTRAL CITATION C/SCA/880/2025 JUDGMENT DATED: 24/01/2025 undefined Reference Court by which the relief was awarded in favour of the respondent. The respondent - workman who is unemployed since year 1998 was agreed for the forego his rights of claiming of back wages and consequential benefits in the year 2009 which is after 11 years termination of his service. The contention raised by the petitioner that at the time of fresh appointment which was given in the year 2009, the status of the temporary employee which was given in the year 2014 and the benefit which was granted of regular employee in the year 2019 no objections were raised by the respondent - employee, if one examines from the angle of the workman then it would emerge that the workman who is unemployed would not get any chance to lose his job because if he does so, there are not many jobs waiting for him, therefore, not taking the objection would not deprive from the benefit which was granted by learned Court below for all time to come, as there was no any undertaking produced before learned Labour Court or before this Court and the reference of the undertaking made in the fresh appointment order dated 02.04.2009 suggest that he waives his right qua 20% benefits and other consequential benefits, In that view of the matter, it cannot be said that he would not be entitled to get benefit of continuity of Page 6 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 23:13:27 IST 2025 NEUTRAL CITATION C/SCA/880/2025 JUDGMENT DATED: 24/01/2025 undefined service which was granted by learned Reference Court in Reference I.T. No.15 of 2022.
4. Considering all the circumstances, this Court does not find any infirmity in the impugned judgment and therefore, present petition being devoid of merits and deserved to be dismissed.
5. Resultantly, present petition is dismissed.
(M. K. THAKKER,J) Vikramsinh Amarsinh Page 7 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 23:13:27 IST 2025