Bindul Dipakbhai Antani vs The Chief Officer
2022 Latest Caselaw 2201 Guj

      C/SCA/339/2008                                JUDGMENT DATED: 24/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 339 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.S. SUPEHIA                                     Sd/-

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                               NO

2     To be referred to the Reporter or not ?                             NO

3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                   NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                 NO
      of India or any order made thereunder ?

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                       BINDUL DIPAKBHAI ANTANI & 10 other(s)
                                     Versus
                          THE CHIEF OFFICER & 3 other(s)
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Appearance:
ADVOCATE NOTICE SERVED for the Petitioner(s) No. 10
MR NIKUNT K RAVAL(5558) for the Petitioner(s) No. 1,11,2,3,4,5,7,8,9
UNSERVED EXPIRED (N) for the Petitioner(s) No. 6
APPEARANCE DELETED for the Respondent(s) No. 4
MR ROHAN SHAH, AGP for the Respondent(s) No. 2,3
MR BY MANKAD(440) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 4
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 24/02/2022
                      ORAL JUDGMENT

1. Pursuant to the order dated 16.02.2002 passed by this Court, Mr.Jigar Dave, Chief Officer, is present before this Court and an affidavit is also filed in the matter.

2. In the present writ petition, the petitioners have prayed for

C/SCA/339/2008 JUDGMENT DATED: 24/02/2022

quashing and setting aside the order dated 07.01.2008 passed by the respondent no.1.

3. By the aforesaid order, the request of the petitioners for making them regular employees, the orders passed by in their favour regularizing their service has been withdrawn in view of the withdrawal of Civil Suit No.79/99 on 24.06.2006. Learned advocate Mr.Nikunt Raval has submitted that the petitioners as on today are still working under the respondent-Municipality. The said fact is not denied by the learned advocate Mr.B.Y.Mankad. Learned advocate Mr.Raval has submitted that no opportunity of hearing was granted to the petitioners before passing the impugned order.

4. Learned advocate Mr.Raval has submitted that by the award dated 17.04.2006 passed in Reference (IT) No.219 of 2003, the Industrial Tribunal, Rajkot had allowed the reference of the petitioners and they were ordered to be regularized from the date of award. He has submitted that since the resolution passed by the respondent-Municipality being No.139 dated 22.01.1999 regularizing the service of the petitioners was suspended by the Collector, the petitioners had instituted Regular Civil Suit No.79/99 challenging such resolution. It is submitted by him that after the award was passed in their favour, the said civil suit was withdrawn and withdrawal of the said suit cannot be construed adverse to the present petitioners since they are working from so many years under the respondent-Nagarpalika. He has submitted that the award has become final initially since the writ petition challenging the same as well as Letter Patents Appeal has been dismised by the Division Bench and hence, the benefits arising from the award dated 17.04.2006 may be conferred to the petitioners.

C/SCA/339/2008 JUDGMENT DATED: 24/02/2022

5. Learned advocate Mr.Mankad, while placing reliance on the affidavit, has submitted that the seniority list of all the employees working under the respondent-Municipality have been prepared, which include the present petitioners also. It is submitted by him that since the petitioners had withdrawn the civil suit, the impugned order was passed recalling the permanent status conferred upon the petitioners. Thus, he has submitted that the order of the Collector, which was challenged before the Civil Court, by filing Regular Civil Suit No.79/99, has been subsequently withdrawn and hence, the petitioners cannot be conferred the permanent status.

6. I have heard the learned advocates appearing for the respective parties.

7. The facts, as narrated hereinabove, are not in dispute. All the petitioners were appointed by the respondent-Municipality in the year 1999. As on today, they are still working as such in the respondent- Municipality. It appears that, the respondent-Municipality passed a resolution dated 22.01.1999 being Resolution No.139 to give appointment to 14 persons including 11 petitioners, who are working as a daily wagers in the Municipality on vacant post. By the order dated 10.03.1999, the Collector, while exercising powers under Section 250 of the Gujarat Municipalities Act, 1963, cancelled the resolution and directed the Municipality to put all the employees on the status as prevailing on 22.01.1999. The petitioners challenged the aforesaid resolution by filing Regular Civil Suit No.79/99 in the Court of Civil Judge, Sub Division Magistrate, Bhuj and obtained stay on the order passed by the Collector. It appears that the petitioners also raised an

C/SCA/339/2008 JUDGMENT DATED: 24/02/2022

industrial dispute subsequently in the year 2003, which culminated into Reference (IT) No.219 of 2003. The petitioners claimed for regularizing their service. By the award dated 17.04.2006, the Industrial Tribunal, Rajkot, directed the respondent-Municipality to make them regular from the date of the award i.e. from 17.04.2006. It appears that the aforesaid award was challenged by the petitioners in Special Civil Application No.12684 of 2006 and by the order dated 31.07.2006, the writ petition was disposed of as it has been filing at premature stage. The aforesaid order was challenged before the Division Bench in Letters Patent Appeal No.1034 of 2006 and by the judgment dated 11.09.2007, the Division Bench disposed of the Letters Patent Appeal and the writ petition being Special Civil Application No.12684 of 2006 was restored to its original file. It is pertinent to note that the award was challenged by the other employees of the respndent-Nagarpalika, but was not challenged by the Nagarpalika.

8. It appears that, thereafter all the petitioners have entered into a compromise and the compromise dated 31.01.2019 reveals that the present petitioners have no objection and the petitioners of Special Civil Application No.12684 of 2006 do not challenge the award passed in favour of the present petitioners of the present petition and they are agreeable if the petitioners of Special Civil Application No.12684 of 2006 are placed above of the petitioners of the present petitions. By the order of even date, the said writ petition is disposed of as withdrawn.

9. Thus, the aforesaid award has become final and when the aforesaid award was passed, the petitioners withdrew Regular Civil Suit No.79/99. The respondent-Municipality passed the impugned order dated 07.01.2008 revoking their benefit of regularization in view of the

C/SCA/339/2008 JUDGMENT DATED: 24/02/2022

withdrawal of the Regular Civil Suit No.79/99 on 24.06.2006. The respondent-Nagarpalika never challenged the award and has accepted the same.

10. In the considered opinion of this Court, the impugned order dated 07.01.2008 was uncalled for since the award dated 17.04.2006 has already become final and the withdrawal of the civil suit would make no difference on the award dated 17.04.2006 passed by the Industrial Tribunal, Rajkot in Reference (IT) No.219 of 2003. It is also not in dispute that all the petitioners, including the petitioners of Special Civil Application No.12684 of 2006, are satisfactorily rendering their service in the respondent-Municipality.

11. Thus, the impugned order dated 07.01.2008 passed by the respondent no.1 is hereby quashed and set aside. The respondent- Municipality is directed to confer the benefits of the award dated 17.04.2006 passed in Reference (IT) No.219 of 2003. The respondent- Municipality shall also accordingly fixed the seniority of both set of petitioners as per the compromise dated 31.01.2019 and grant the benefits.

12. Since the award is of 2004 and the petitioners are waiting fruits of such award, the respondent-Municipality shall pass appropriate orders within a period of two months and grant the benefits arising from the award dated 17.04.2006.

13. The present petitions are allowed. Rule is made absolute.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK