Gujarat High Court

Girishbhai Dayabhai Dave vs Chief Officer Of Jetpur Navagadh ... on 8 July, 2022

Bench: Biren Vaishnav

     C/SCA/3639/2019                               JUDGMENT DATED: 08/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3639 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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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                    GIRISHBHAI DAYABHAI DAVE
                             Versus
    CHIEF OFFICER OF JETPUR NAVAGADH NAGARPALIKA & 2 other(s)
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Appearance:
MR NIRAV C SANGHAVI(5950) for the Petitioner(s) No. 1
MR. SHATISH DESAI, ADVOCATE FOR MR BHAVESH P TRIVEDI(2731) for
the Respondent(s) No. 1
MR RR TRIVEDI(941) for the Respondent(s) No. 1
MR. KURVEN DESAI, AGP, for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 08/07/2022

                             ORAL JUDGMENT

1 Rule returnable. With consent of learned advocates appearing for

the respective parties, the matter is taken up for final hearing today.

       C/SCA/3639/2019                                JUDGMENT DATED: 08/07/2022



2        By way of this petition under Article 226 of the Constitution of

India, the petitioner, Girishbhai Dayabhai Dave, has prayed for a

direction that the order passed by the respondent No.3 dated 20.11.2018,

by which, the proposal of the Jetpur Navagadh Nagarpalika, respondent

No.1, has been rejected, be quashed and set aside.

3 Facts in brief would indicate that the petitioner had raised an

industrial dispute before the Industrial Tribunal, Rajkot, being Reference

(IT) No. 61 of 1996 for regularization of service.

3.1 The Tribunal, on 09.04.2014, passed an order directing that the

petitioner be regularized. However, the Tribunal was of the opinion that

the period from 01.01.2002 to 01.01.2012, may be treated as notional for

the purposes of pay fixation and from 01.01.2012 to the date of the

award, the petitioner would be entitled to 25% of the backwages.

3.2 The award of the Labour Court was challenged by the Jetpur

Navagadh Nagarpalika by filing Special Civil Application No. 9870 of

2014. This Court, by an order dated 09.07.2014 dismissed the petition of

the Nagarpalika confirming the award of the Industrial Tribunal. As a

result of the dismissal of the petition and confirmation of the award of the

Tribunal, the Jetpur Navagadh Nagarpalika on 24.04.2015 passed an

order in accordance with the directions of the Industrial Tribunal and of

C/SCA/3639/2019 JUDGMENT DATED: 08/07/2022

the High Court that the petitioner would be entitled to the benefits of the

5th Pay Commission and the pay fixation be done accordingly and so also

for the 6th Pay Commission benefits.

3.3 Since the benefits were not paid to the petitioner, he approached

this Court by filing Special Civil Application No. 19057 of 2015. That

petition too was disposed of by this Court on 11.12.2015 on an assurance

given by the Municipality that they would comply with the order of the

Industrial Tribunal.

3.4 A proposal was accordingly forwarded to the State for

implementation of the Tribunal's award so confirmed by the High Court.

The State, by the impugned order after referring to the history of the

litigation that the petitioner had undertaken, opined that the petitioner was

not recruited in accordance with the recruitment rules framed under the

Gujarat Municipalities Act, 1963, and set out reasons for not accepting

the proposal of the Nagarpalika for regularization.

4 Mr.Nirav Sanghavi, learned counsel for the petitioner, would argue

that it is not open for the State to interpret the orders of the Industrial

Tribunal so confirmed by the High Court and held that the petitioner is

not qualified or that he is not appointed in accordance with the

recruitment rules when a specific challenge to his regularization had

C/SCA/3639/2019 JUDGMENT DATED: 08/07/2022

failed.

5 Mr.Kurven Desai, learned Assistant Government Pleader,

supporting the order of the State would submit that when the petitioner

was found to be not qualified in accordance with the recruitment rules

and not in consonance with the Jetpur Navagadh Nagarpalika

Recruitment Rules of 2007, particularly Rule 18(4) thereof and in light of

the decision in the case of State of Karnataka vs. Uma Devi., reported in

2006 (4) SCC 1, the petitioner is not entitled to the benefits of

regularization.

6 Perusal of the order impugned indicates that the State has virtually

set at naught the award of the Industrial Tribunal so confirmed by this

Court by its order dated 22.07.2014. If the order of 22.07.2014 is read,

the Court specifically recorded a positive finding which had emerged

from the record of the Tribunal's award that the petitioner was initially

appointed as a daily wager-Gardener from the year 1986. However, when

regular selection process was undertaken and even when interview call

letter was issued to the petitioner on 04.12.1989, which was on record at

exh.8 of the Tribunal's award, the appointment was made vide order

dated 04.11.1991. The Court held that under the circumstances, it could

not be said that the respondent was a daily wager. Further, it was

observed by the Court that the petitioner-employer, could not have denied

C/SCA/3639/2019 JUDGMENT DATED: 08/07/2022

the benefits to the petitioner which was otherwise available to the

permanent employees. The order dated 22.07.2014 reads as under:

"1. Heard Ms.Kruti M.Shah, learned advocate for the petitioner.

2. Challenge in this petition is made to the award dated 09.04.2014, passed by the Industrial Tribunal, Rajkot in Reference (IT) No.61 of 1996, whereby the respondent No.2 - Girishbhai Dahyabhai Dave is ordered to be treated as permanent employee on the post of Gardener, with effect from 01.01.2002. However, the period prior to 01.01.2012 is ordered to be treated as notional and the actual benefits is ordered to be paid from 01.01.2012.

3. Learned advocate for the petitioner has vehemently submitted that, the Tribunal had overstepped its jurisdiction by ordering the permanency of the respondent, since he was not regularly appointed and no confirmation was ever effected by the employer. It is submitted that the Industrial Tribunal, under these circumstances, ought not to have been passed such directions. It is submitted that the impugned award be interfered with.

4. Having heard learned advocate for the petitioner and having gone through the material on record, this Court finds that, the undisputed facts as emerging from the record, as reflected in the impugned award itself, are that, the respondent was initially appointed as a daily wager Gardener from the year 1986, however, regular selection process was undertaken and even interview call letter was issued to the respondent by the petitioner on 04.12.1989, which had come on record at Exh.8, and pursuant thereto, the appointment was made vide order dated 04.11.1992, Exh.9. Under these circumstances, it could not be said that respondent was a daily wager. On the face of these facts, the petitioner employer could not have denied the benefits to the respondent, which are otherwise available to the permanent employees. The respondent had moved the Industrial Tribunal in the year 1996 and the said Reference remained pending for all these years. Even these years, during which the matter remained pending with the Industrial Tribunal. The benefit is not given, even for the said period. Under these circumstances, on merits, no interference is required, and in the petition filed by the employer, the notional period upto to 01.01.2012 can not be altered, to his detriment.