Gujarat High Court
Iqbal Hussein Abdulmiya Sheikh vs District Panchayat on 9 June, 2021
Bench: B.N. Karia
C/LPA/414/2011 JUDGMENT DATED: 09/06/2021
IQBAL HUSSEIN ABDULMIYA SHEIKH Versus DISTRICT PANCHAYAT & 2 other(s)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 414 of 2011
In R/SPECIAL CIVIL APPLICATION NO. 2239 of 1993
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 414 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed --
to see the judgment ?
2 To be referred to the Reporter or not ? --
3 Whether their Lordships wish to see the fair copy --
of the judgment ?
4 Whether this case involves a substantial question --
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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IQBAL HUSSEIN ABDULMIYA SHEIKH
Versus
(1) DISTRICT PANCHAYAT, SABARKANTHA
(2) TALUKA PANCHAYAT, MEGHRAJ
(3) TALUKA DEVELOPMENT OFFICER, MEGHRAJ
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Appearance:
MR NIRAD D BUCH(4000) for the Appellant(s) No. 1
MR. MAYUR V DHOTARE(7019) for the Appellant(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
NOTICE SERVED(4) for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
Date : 09/06/2021
ORAL JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
C/LPA/414/2011 JUDGMENT DATED: 09/06/2021
IQBAL HUSSEIN ABDULMIYA SHEIKH Versus DISTRICT PANCHAYAT & 2 other(s)
1. Civil Application (For Bringing Heirs) No. 1 of 2021 is
allowed. Since Appellant Mr. Iqbal Hussein Abdulmiya Sheikh has
expired on 05.12.2020, legal representatives are taken on record.
2. The Appellant Iqbal Hussein Abdulmiya Sheikh had
approached this Court aggrieved by the order of learned Single
Judge passed on 13.04.2010 whereby learned Single Judge was
pleased to reject the Special Civil Application (Writ Petition) No.
2293 of 1993 following the judgment of Hon'ble Supreme Court in
case of Secretary, State of Karnataka & Ors. v. Umadevi & Ors,
(2006)4 S.C.C. Page 1. The petitioner/appellant is now represented
by his Legal representatives ie., his widow Shabina Banu Iqbal
Hussein Abdulmiyan Sheikh; son Mohammed Irfan Iqbal Hussein
Sheikh; daughter Shajidabanu Iqbal Hussein Sheikh, his son
Mohammed Yunus Iqbal Hussein Sheikh.
3. The Appellant/Petitioner was initially appointed as Daily
Wager in Class-IV Peon by the respondent - Taluka Panchayat, Ta:
Meghraj, District: Sabarkantha in the year 1985 and till 1993, he was
allowed to work as Peon-cum-Daily Wager Driver in the Respondent
- Taluka Panchayat. The details of his working, as given in the reply
filed by the Respondent-Taluka Panchayat before the learned Single
Judge, are quoted below:
C/LPA/414/2011 JUDGMENT DATED: 09/06/2021
IQBAL HUSSEIN ABDULMIYA SHEIKH Versus DISTRICT PANCHAYAT & 2 other(s)
"That the petitioner has not come with clean hands before this
Honourable court and has tried falsely to show that he is in service
from 1985 with one break only, while the reality is the otherwise.
That the petitioner was asked to work as a daily wager throughout
the period narrated by him and in fact also he was never given any
status of a regular and permanent employee. That he has worked on
different occasions (1) from dt. 21.2.1985 to April 1985 as a Peon as
one Keshaji Sukhaji Ninama Naik retired, and (2) From dt.
1.5.1985 to 30.06.1985 as a Peon, as one Y.A. Pandya went on leave,
and (3) from dt. 2.6.1985 to 21.11.1985 as a Peon as one Kalaji
Jethaji Rathod, Naik, expired and (4) from dt. 22.11.1985 to
22.12.1985 as one Shankar Nagaji, Peon, went on leave and (5) from
November 1989 to March 1990 as daily wager driver and on Jeep
No. 5255 as regular driver A.A. Shaikh was appointed and (5) from
November 1989 to March 1990 as daily wager driver A.A. Shaikh
was appointed and (6) from April 1990 to December 1991 as a daily
wager drivers, on Jeep No. G-3 as regular driver Shri A.M. Mansuri
was appointed and (7) from 16.1.1992 to 30.6.1992 as daily wager
driver on Jeep No. 5255 as a regular driver A.A. Shaikh went on
leave and (8) from July 1992 to March 1993 as a daily wager driver
on Jeep No. G-3 as regular driver S.A. Mansuri was transferred.
Thus the petitioner has worked on purely daily wager basis and was
never given the status and appointment of a permanent employee.
Whenever regular staff was transferred or went on leave or expired
C/LPA/414/2011 JUDGMENT DATED: 09/06/2021
IQBAL HUSSEIN ABDULMIYA SHEIKH Versus DISTRICT PANCHAYAT & 2 other(s)
or in other events, the petitioner was given daily wages duties
subject to the sanction of the District authorities.
4. Since in the year 1993, the Petitioner/Appellant was sought to
be terminated from the services, he approached this Court by way of
Special Civil Application No. 2239 of 1993, in which, an interim
order was granted by Learned Single Judge (Hon'ble Mr. Justice C.
K. Thakker, J.) on 16.03.1993 directing the Status-quo to be
maintained.
"Notice returnable on March 31, 1993.
Status-quo as on today to be maintained till then.
D.S. Permitted"
5. The Petitioner/Appellant, thereafter, continued in the service as
Driver on the vehicle of the Respondent - Taluka Panchayat till 2019
for long number of years and finally, he was terminated from his
service vide order dated 17.10.2019, which is produced as Annexure-
"C" with the Restoration Application filed by the
Appellant/Petitioner.
6. The present Letters Patent Appeal No. 414 of 2011 filed against
the order of Learned Single Judge passed in Special Civil Application
No. 2239 of 1993, unfortunately came to be dismissed for default of
appearance of the then Learned Counsel for the Appellant/Petitioner
C/LPA/414/2011 JUDGMENT DATED: 09/06/2021
IQBAL HUSSEIN ABDULMIYA SHEIKH Versus DISTRICT PANCHAYAT & 2 other(s)
twice but on both the occasions, the Coordinate Bench of this Court
restored the said Letters Patent Appeal and said orders were passed
in Misc. Civil Application No. 1 of 2019 on 04.10.2019 and in Misc.
Civil Application No. 2 of 2019 on 27.01.2020 and that is how the
present Appeal was heard by us today.
7. Learned Counsel Mr. Nirad D. Buch now appearing for the
Appellant/Petitioner substituted the earlier Learned Counsel
submitted before us that it is indeed unfortunate that the
Appellant/Petitioner Iqbal Hussein Abdulmiya Sheikh though he
served the respondent - Taluka Panchayat for long number of years
as Peon-cum-Driver, passed away from this world without getting an
order of regularization, though such a prayer was made in the Special
Civil Application No.2239 of 1993, which unfortunately came to be
dismissed by Learned Single Judge vide order dated 13.04.2010.
8. He submitted that though as such regularization of the service
may not have been granted but since by the Year-2019, when the
formal termination order passed by the Respondent - Taluka
Panchayat, he had almost served for about 30 years, the Respondent
- Taluka Panchayat, his case ought to have been favourably
considered by the Respondent - Taluka Panchayat as regular
employee on the vacant post of Driver. He has drawn our attention
to the Certificate issued by Taluka Development Officer, Meghraj
C/LPA/414/2011 JUDGMENT DATED: 09/06/2021
IQBAL HUSSEIN ABDULMIYA SHEIKH Versus DISTRICT PANCHAYAT & 2 other(s)
that a post of Driver is sanctioned for the said Taluka Panchayat
since 30.06.1992 and he submitted even that post was lying vacant on
the date of termination of the original Appellant/Petitioner. He,
therefore, submitted that even though the Appellant/Petitioner has
now expired instead of treating the said Petitioner/Appellant as
regular employee of the Respondent - Taluka Panchayat, a fair and
reasonable cash compensation may be awarded in favour of the Legal
Representatives of the deceased Appellant/Petitioner for his long
number of years of service.
9. Per contra, Learned Counsel Mr. H. S. Munshaw for the
Respondent - Taluka Panchayat submitted that since the
Appellant/Petitioner worked only as Daily Wager or Part Time
employee as per the requirements of the said Taluka Panchayat from
time to time, when the regular Peon or Driver was not available and
no evidence was produced by the Appellant/Petitioner that he had
served continuously for more than 240 days in the year preceding his
termination year 1993, he is not entitled for any regularization. He
relied upon the judgments of Hon'ble Supreme Court in case of Nand
Kumar versus State of Bihar and Others, reported in (2014) 5
Supreme Court Cases 300 and State of Karnataka and Others versus
G.V. Chandrashekhar, reported in (2009) 4 Supreme Court Cases
342.
C/LPA/414/2011 JUDGMENT DATED: 09/06/2021
IQBAL HUSSEIN ABDULMIYA SHEIKH Versus DISTRICT PANCHAYAT & 2 other(s)
10. He also submitted that after 1993, the Appellant/Petitioner was
continued in the service as Driver of the Respondent -Taluka
Panchayat only under the Interim Order of this Court and even
though a long period up to 2019, he is not entitled to regularization
or to be treated as regular employee of the Respondent - Taluka
Panchayat in view of the law laid down by the Hon'ble Supreme
Court.
11. Having heard the Learned Counsels for the parties, we are of
the opinion that though strictly speaking in the Year- 1993, when the
Appellant/Petitioner approached this Court seeking regularization, he
was not entitled to any regularization as he had served admittedly
only as a Part Time/ Daily Wager from 1985 to 1993 for about
8(Eight) years in view of the law laid down by the Hon'ble Supreme
Court in Uma Devi's case and in the afore cited judgments, but the
fact also remains that from 1993 to 2019 almost for 25 years, he has
served the Respondent ever largely under the interim order of the
Court. Before dismissal of Special Civil Application No. 2239 of
1993, the petitioner continued in the service of the Respondent -
Taluka Panchayat as Driver and there was also a post of Driver
available with the Respondent - Taluka Panchayat. In these
circumstances for a long period of service of the Appellant/Petitioner
with the Respondent - Taluka Panchayat, almost 30 years, we cannot
C/LPA/414/2011 JUDGMENT DATED: 09/06/2021
IQBAL HUSSEIN ABDULMIYA SHEIKH Versus DISTRICT PANCHAYAT & 2 other(s)
deny that even the law laid down by the Hon'ble Supreme Court,
where an exception for cases of persons, not illegally appointed and
who had served for more than 10 years could be considered for
regularization, could have been applied to the Appellant/ Petitioner
had he lived long enough, but unfortunately, the Appellant/Petitioner
has expired on 05.12.2020, before any such relief in the form of
regularization or reinstatement could be granted by this Court.
12. Therefore, the only option now left is to grant some suitable
relief to the Legal Representatives of the Appellant that is to award
some monetary compensation. In the present case in view of the 30
years long period of service of the Appellant/Petitioner rendered to
the Respondent - Taluka Panchayat, we consider, in the facts and
circumstances of the case and looking to the nature of post of Driver
which he held for more than about 25 years and before which he was
serving almost as a leave reserve on the post of Peon who were on
leave or as Driver. A lumpsum compensation of Rs. 5.05 Lakhs
would meet the ends of justice to dispose of the present Letters Patent
Appeal. Therefore, without deciding the present Letters Patent
Appeal on merits as such or without interfering with the termination
order also, we dispose of the present Letters Patent Appeal with the
direction to the Respondent - Taluka Panchayat to pay the
compensation of Rs. 5.05 Lakhs (Rupees Five Lakhs Five Thousand
C/LPA/414/2011 JUDGMENT DATED: 09/06/2021
IQBAL HUSSEIN ABDULMIYA SHEIKH Versus DISTRICT PANCHAYAT & 2 other(s)
Only), by way of cheques in favour of three Legal Representatives of
the deceased Appellant/Petitioner to the extent indicated below.
13. The widow of the Appellant/Petitioner - Shabina Banu Iqbal
Hussein Abdulmiyan Sheikh may be given 50(Fifty) percentage of the
aforesaid compensation namely Rs. 2.50 Lakhs and the remaining
three Legal Representatives namely (1) Mohammed Irfan Iqbal
Hussein Sheikh (Son); (2) Shajidabanu Iqbal Hussein
Sheikh(Daughter) and (3) Mohammed Yunus Iqbal Hussein Sheikh
(Son) may get 1/3rd (One Third) each of the remaining 50(Fifty)
percentage amount of compensation i.e., Rs. 85,000/- each.
14. The said compensation to the Legal Representatives shall be
paid within a period of 3(Three) months from today and the
Compliance Report of the same will be produced before this court
with reference to this case within the next period of 4(Four) weeks
i.e., on or before the end of 31st October 2021.
Letters Patent Appeal is accordingly disposed of. No costs.
(DR. VINEET KOTHARI,J)
(B.N. KARIA, J)
K. S. DARJI
