Amreli District Panchayat Thro ... vs Vinodbhai Durlabhji Jani
2022 Latest Caselaw 8706 Guj

     C/SCA/4889/2008                                     JUDGMENT DATED: 03/10/2022




                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/SPECIAL CIVIL APPLICATION NO. 4889 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE           Sd/-
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1   Whether Reporters of Local Papers may be allowed to see    No
    the judgment ?

2     To be referred to the Reporter or not ?                                  No

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

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

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  AMRELI DISTRICT PANCHAYAT THRO DIST. DEVELOPMENT OFFICER & 2 other(s)
                                      Versus
                           VINODBHAI DURLABHJI JANI
=======================================================================
Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1,2,3
MR TR MISHRA(483) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                     Date : 03/10/2022

                                    ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of

India is filed with following prayers:-

"(b) Your Lordships be pleased to allow the present Special Civil Application by way of passing appropriate writ, order mandamus or directions or writ of certiorari quashing and setting aside impugned award dated 26.09.2007 passed by the Labour Court at Amreli in Reference (Demand) No.6 of 1999 (Annexure-B) by way of holding the same as illegal, unjust, improper, arbitrary as well as against the provisions of Industrial

C/SCA/4889/2008 JUDGMENT DATED: 03/10/2022

Disputes Act, 1947 in the interest of justice."

2. The petitioner before the Court is Amreli District

Panchayat. The ground on which the award of the Labour Court is

challenged is that the respondent-workman is not entitled to

permanency, particularly when appointment of the respondent-

workman was as a part-timer and the part-timer is not entitled to

any order of regularization or permanency.

3. Learned Advocate for the petitioner has taken this

Court through the impugned award to indicate that the

appointment of the respondent-workman was not in accordance

with the procedure prescribed and therefore also, claim to

permanency was not required to be accepted. It is further

submitted that another employee was posted in place of the

respondent and the services of the respondent were not required

and therefore, he was terminated with effect from 30.10.1986. It is

submitted that the Reference was made belatedly and therefore,

direction which is issued for treating the respondent-workman as

permanent with effect from 1980 is required to be set aside.

3.1 Learned Advocate for the petitioner submitted that

appointment of the respondent was as part-timer as the working

hours of the respondent were fixed between 07;00 am to 11;00 am

and thereafter, from 04;00 pm to 06;00 pm, which was given effect

C/SCA/4889/2008 JUDGMENT DATED: 03/10/2022

after the award of reinstatement by the Labour Court.

4. As against this, learned Advocate for the respondent-

workman submitted that though the respondent was appointed to

discharge service of 8 hours, the respondent cannot be treated to

be part-timer. It is submitted that in the earlier round of litigation,

issue of part-timer was already decided and therefore, it is not

open for the petitioner-District Panchayat to treat the respondent

as a part-timer and again re-agitate the issue.

4.1 Learned Advocate for the respondent-workman referred

to the award of the Labour Court in Reference (LCB) No.71 of 1993

dated 25.02.1995, by which the respondent was reinstated with

continuity in service. It is therefore submitted that once again,

same ground of the respondent being part-timer cannot be

accepted. Over and above this, learned Advocate for the

respondent-workman has also drawn attention to communication

dated 24.11.1980 to indicate that the appointment of the

respondent-workman was for a period of 8 hours and therefore, he

cannot be treated as part-timer.

5. Having heard learned Advocates for the parties and

having perused documents on record, it appears that the claim of

the respondent was for permanency and by impugned award dated

26.09.2007, the reference of the respondent-workman was partly

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allowed. It was ordered that the petitioner-District Panchayat the

respondent-workman shall be made permanent on the post of Peon

from the date of joining duty, i.e. 29.11.1980 and the Pay and

Allowances which are payable to the permanent Peon as well as all

the other benefits with arrears from the date of Reference, i.e.

13.04.1998 shall be paid to the concern employee. The period of

service of the respondent-workman from 29.11.1980 till 12.04.1998

shall be considered as Notional, meaning thereby the respondent-

workman will not be eligible to get any type of amount of arrears

during this period, but the date of joining shall be considered for

Seniority Promotion, Retirement benefits etc. The petitioner-

District Panchayat was directed to pay the cost of Rs. 1,500/- to the

respondent-workman and the order was directed to be complied

within 30 days.

6. The document which is placed on record along with the

affidavit in reply is communication dated 24.11.1980, which is

inter-department communication, would indicate that sanction was

given for appointment of the respondent-workman as a peon to

discharge services for a period of 8 hours. In that view of the

matter, stand of the petitioner of the respondent-workman being

part-timer cannot be accepted. Over and above, the issue was

already before the Labour Court in previous round of litigation in

the form of Reference (LCB) No.71 of 1993, wherein award was

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passed on 25.02.1995 for directing reinstatement of the

respondent-workman with continuity of service and accordingly, it

is on record that from 16.02.1996, the respondent is discharging

his services as such.

7. From the record, it appears that the respondent has

now retired with effect from 30.04.2019 and therefore, from 1996

to 2019 again, the respondent has discharges his services as peon.

According to learned Advocate for the respondent, the respondent-

workman has not been paid as per the regular pay scale, but has

been paid as daily wager and this aspect is also evident from the

communication placed on record by the respondent along with the

affidavit in reply, wherein difference has been calculated.

8. Insofar as submission of learned Advocate for the

petitioner that the respondent-workman was part-timer as his

working hours were fixed, it would be appropriate to refer to order

dated 24.11.1980, which was approving appointment of the

respondent-workman to work for a period of 8 hours and the award

of the Labour Court in the previous round of litigation in Reference

(LCB) No.71 of 1993 for reinstatement on the original post.

Therefore, action of the petitioner in thereafter changing working

hours is not in consonance with the award of the Labour Court.

8. In view of the facts and considering the chronology of

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events, where the respondent-workman was terminated on

30.10.1986, against which he filed Reference in 1993 and

thereafter the present Reference on 06.10.1999 and considering

the fact that now the respondent has retired upon attaining age of

superannuation on 30.04.2019, the Court proposes to modify the

award by awarding lump sum compensation to the tune of

Rs.4,00,000/- (rupees four lakhs). To such proposition, there does

not appear to be any strong opposition by learned Advocate for the

respondent-workman.

9. Considering the fact that the respondent has indeed

discharged his services from the date of his appointment till he was

terminated in the year 1986 and thereafter, upon award of the

Labour Court was reinstated in the year 1996 and has continued to

work as such till the date of his retirement on 30.04.2019, the

Court is of the view that the respondent is entitled to the benefits

under Government resolution dated 17.10.1988, insofar as pension

and other retirement benefits are concerned. The petitioner may

undertake the exercise of calculating and preparing the pension

papers of the respondent workman expeditiously.

10. The petition stands disposed of in aforesaid terms. Rule

is discharged. No order as to costs.

Sd/-

(A.Y. KOGJE, J) SHITOLE