Mukeshbhai Jamnadas Bosmiya vs Divisional Manager
2021 Latest Caselaw 6740 Guj

    C/LPA/478/2021                                   ORDER DATED: 23/06/2021



      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/LETTERS PATENT APPEAL NO. 478 of 2021
     In R/SPECIAL CIVIL APPLICATION NO. 15145 of 2020
===============================================
                     MUKESHBHAI JAMNADAS BOSMIYA
                                Versus
                         DIVISIONAL MANAGER
===============================================
Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR. DEVENDRA G RANA(6997) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
===============================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
      and
      HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                   Date : 23/06/2021
                     ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1.0. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 21.12.2020 passed in Special Civil Application No 15145 of 2020 by the learned Single Judge (Coram: Hon'ble Mr. Justice Umesh A Trivedi), the present intra Court appeal is filed under Clause 15 of the Letters Patent.

2.0. Heard Mr. Devendra Rana, learned advocate for the appellant. Mr. Rana, learned advocate for the appellant has taken this Court to the factual matrix arising out of this appeal and has submitted that the learned Single Judge has committed an error apparent in coming to the conclusion that as the termination in question of 1989, the same cannot be resurrected by a repeated litigation. Mr. Rana further contended that the learned Single Judge

C/LPA/478/2021 ORDER DATED: 23/06/2021

has failed to consider the ratio laid down by the Hon'ble Apex Court in the case of Tamilnadu Terminated Full Time Temporary LIC Employees Association vs. Life Insurance Corporation of India reported in (2015) 9 SCC

62. Mr. Rana further contended that the learned Single Judge has wrongly considered the aspect that as the appellant is 55 years old, his case cannot be considered by the respondent authority. Mr. Rana contended that the learned Single Judge has thus committed an error in not exercising its jurisdiction under Article 226 of the Constitution of India. Mr. Rana further contended that the learned Single Judge has not considered the submission made by the appellant and has straightway relied upon the earlier order passed in Special Civil Application No. 6226 of 2018 and has wrongly dismissed the petition. On the aforesaid grounds, it was therefore, contended by Mr. Rana that matter requires consideration.

3.0. No other and further submissions have been made by Mr. Rana, learned advocate for the appellant.

4.0. Before reverting to the submissions, it would be appropriate to refer to the case of the appellant placed before this Court in the writ petition. It was inter alia contended by the appellant that the appellant had registered his name in the Employment Exchange office, Bhavnagar, pursuant to which, appellant was offered

C/LPA/478/2021 ORDER DATED: 23/06/2021

appointment as Peon on temporary basis by the Divisional Manager, Bhavnagar on 18.07.1988. It was case of the appellant before the learned Single Judge that the services of the appellant was orally terminated on 7.10.1988 without giving any opportunity of being heard and merely by giving certificate of having worked from 18.07.1988 to 07.10.1988. Relying upon the judgment of the Hon'ble Apex Court in the case of Tamilnadu Terminated Full Time Temporary LIC Employees Association (supra), it was contended that the case of the appellant is squarely covered by the ratio laid down by the Hon'ble Apex Court and it was further asserted that the appellant is entitled for reinstatement. A reference is made to earlier order being Special Civil Application No. 6226 of 2018 wherein by an order dated 08.07.2019, the respondents were directed to consider the individual case of the petitioners therein upon their representation and consider the decision of the Hon'ble Apex Court in the case of Tamilnadu Terminated Full Time Temporary LIC Employees Association (supra). It is contended by the appellant that pursuant to the order dated 08.07.2019 passed by this Court in Special Civil Application No.6226 of 2018, the appellant made representation on 25.07.2019, which was rejected mainly on the ground that the judgment of the Hon'ble Apex Court applies in personam by order dated 25.11.2019. On the grounds set out in the petition, it was contended that writ of mandamus be issued holding the termination of the

C/LPA/478/2021 ORDER DATED: 23/06/2021

petitioner as illegal and appellant also prayed for further direction directing the respondent Corporation to reinstate the petitioner at his original post.

5.0. From the record of the petition, it clearly appears that the appellant had worked for 70 days i.e. from 18.07.1988 to 07.10.1988. The earlier writ petition being Special Civil Application No.6226 of 2018 came to be disposed of wherein the learned Single Judge was pleased to give following directions:

"7. In view of above,the petition is disposed of by issuing following directions,

(i) Each of the petitioners are at liberty to make representation to the respondent - Corporation setting out the facts of their respective case on the basis of which they claim absorption in the service of the Corporation;

(ii) Such representation may be made expeditiously. Learned advocate for the petitioners stated that petitioners would make their respective representation on or before 31.07.2019;

(iii)Upon such representation is made, the respondent - Life Insurance Corporation of the India shall act through its competent authority to consider and decide the representations which may be made by different petitioners in the context of the facts attendant to such petitioner,and in light of the decision of the Supreme Court in Tamilnadu Terminated Full Time Temporary LIC Employees Association (supra);

(iv)Necessary decision in accordance with law and on merits shall be taken by the competent authority of the respondent-Corporation within a period of four months from the date of receipt of representation;

(v) It is clarified that this Court has not expressed any opinion on the merits of the case of the petitioners for grant ability or otherwise of the prayers which may be made in the representations. It is for the competent authority of the Corporation to look into the facts of the each case and take appropriate decision.

C/LPA/478/2021 ORDER DATED: 23/06/2021

The petition stands disposed of in the aforesaid terms .Direct service is permitted."

It appears that by the impugned order dated 25.11.2019 the respondent Corporation rejected the representation against which present writ petition is preferred. The learned Single Judge by order dated 21.12.2020 observed thus:

"Perused the impugned order rejecting the representation made by the petitioners. Needless to say that, at the threshold, the Court in the first round only directed the respondents to consider the representation, however, conscious of the fact that the petitioner was temporary employee under the Life Insurance Corporation of India, a termination of 1989 cannot now sought to be resurrected by a repeated litigation under the pretext of representation being rejected which was an order invited from this Court in July 2019. The issue, therefore, of temporary employees who now has attained the age of 55 and 47 years respectively cannot now be gone into after more than 20 years.

6.0. Upon considering the fact that the appellant original petitioner has worked only for 70 days in one calendar year as a peon, even as per the judgment of the Hon'ble Apex Court in the case of Tamilnadu Terminated Full Time Temporary LIC Employees Association (supra), no case is made out by the authority. Moreover, the learned Single Judge has rightly come to the conclusion that the appellant- original petitioner is now 55 years old and that the same issue involved in the writ petition, cannot now be gone into after more than 20 years. Even considering the ratio laid down by the Hon'ble Apex Court in the case

C/LPA/478/2021 ORDER DATED: 23/06/2021

of Tamilnadu Terminated Full Time Temporary LIC Employees Association (supra), the appellant- original petitioner is not entitled for benefits which are given under the awards as held by the Hon'ble Apex Court in the said case as the appellants have not completed required number of days in service as temporary peon. In totality of the facts, we are in complete agreement with the observations made by the learned Single Judge. No case for interference is made out. Appeal being meritless, deserves to be dismissed and is hereby dismissed.

(R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) KAUSHIK J. RATHOD