Bhavnagar Municipal Corporation vs Rupaben Valjibhai Sambad
2022 Latest Caselaw 9251 Guj

      C/SCA/21676/2017                             JUDGMENT DATED: 19/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 21676 of 2017

FOR APPROVAL AND SIGNATURE:

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

2      To be referred to the Reporter or not ?                          NO

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

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

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              BHAVNAGAR MUNICIPAL CORPORATION & 1 other(s)
                                Versus
                  RUPABEN VALJIBHAI SAMBAD & 3 other(s)
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1,2
DELETED for the Respondent(s) No. 1
MR. G.M. JOSHI, SENIOR ADVOCATE with IG JOSHI(8726) for the
Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 19/10/2022
                               ORAL JUDGMENT

[1] Rule. Learned advocate Mr. I.G.Joshi waives service of notice of rule on behalf of respondent No.2.

[2] This petition under Article 226 of the Constitution of India is filed by the petitioners, challenging the award of the Industrial Tribunal, Bhavnagar dated 28.02.2017 in Reference

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(IT) No.67 of 2002.

[3] The petitioners before the Court is Bhavnagar Municipal Corporation and Nagar Prathmik Shikshahn Samiti, the employers. The respondent Nos.1 to 3 are the workmen, claiming to be full time peon with the petitioners. Out of three respondents, respondent No.1 has been deleted by order dated 20.08.2019 on the basis of submission made that respondent No.1 had filed a withdrawal purshis on 20.10.2011 before the Industrial Tribunal itself. The respondent No.2 is represented by learned senior advocate Mr. G.M.Joshi with learned advocate Mr.I.G. Joshi, whereas respondent No.3 is not represented.

[4] By the impugned award in favour of the respondents, the Industrial Tribunal has directed that the respondent No.2 and respondent No.3 to absorb as full time peon from 18.08.1987 and to fix their salary in the pay scale received by regular peon from the aforesaid date and to calculate the eligible salary, benefits and the amount of difference of salary paid to the regular employees towards the service from the date of regularizing them till the date of their retirement and the entire amount to be paid by the petitioners to the respondent Nos.2 and 3 within 30 days. It is ordered to consider the joining date of respondent No.2 as 17.08.1979 and the joining date of the respondent No.3 as 01.08.1977 for calculating their retirement benefits such as pension, gratuity etc.

[5] Learned advocate for the petitioners has challenged the Industrial Tribunal's award on the ground that at the relevant time, the respondents were provided work purely on temporary

C/SCA/21676/2017 JUDGMENT DATED: 19/10/2022

and ad-hoc basis and that too by the Administrative Officer of Nagar Prathmik Shikshahn Samiti, on part time basis and therefore, have never worked as permanently appointed employees against the sanctioned post of peon. It is submitted that the State of Gujarat has not provided any grant for Class- IV employees of Nagar Prathmik Shikshahn Samiti and therefore, the Bhavnagar Municipal Corporation is to borne all the expenses of such employees. It is submitted that the regularization of the respondents it not a matter of Right, but only such regularization can be made by following the policy applicable and adopted by the employer. The respondents have filed this reference at the fag end of their career and throughout their career, have not made any claim for treating them as full time employees of the petitioners. It is lastly submitted that appointment of the respondents on the part time wages is also without following the procedure for recruitment and hence, cannot claim regularization or appointment as full time employees.

[6] As against this, learned Senior advocate Mr. G.M.Joshi appearing for the respondents has drawn attention of this Court to the Resolution the petitioner No.1 of 1987 for treating the respondents as full time employees, considering the requirement for such full time employees and pursuant thereto on 19.06.1990, the order of appointment was passed, wherein the pay-scale of the respondents was also specified. Learned senior advocate submitted that from the evidence placed on record before the Industrial Tribunal, the Industrial Tribunal has discussed that the entire evidence to come a conclusion that the respondents were given appointment against the pay-

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scale and therefore, are entitled to such pay-scale. Learned senior advocate though submitted that the direction given by the Industrial Tribunal to treat the respondents as full time peon w.e.f 18.07.1987, may not be in accordance with the record of the case and therefore, has consented that the claim of the respondents be considered w.e.f. their appointment. However, has submitted that such consent is given in anticipation of the petitioners not challenging the order before the higher forum or else such consent may stand withdrawn.

[7] Heard learned advocates for the parties and perused the documents placed on record. The respondents were duly engaged as part time employees in the year 1977 and 1979, wherein respondent No.2 was appointed on 17.09.1979 and respondent No.3 was appointed on 01.08.1977. The direction by the Industrial Tribunal is to treat the respondents as full time peon and granting permanency in the pay scale which is given to the other peons till the date of retirement. The issue with regards to the full time peon of permanent post was also a subject matter of the resolution passed by the standing committee being a Resolution No.246 dated 14.09.1987, wherein it was resolved, to prepare the seniority list of part time peons and by following the seniority scrupulously, sanctioned 15 full time peons' posts and as per the seniority, the respondents were given the appointment as full time peon. This order was passed on 19.06.1990, wherein categorically appointment is of full time peons with pay-scale of Rs.196-3-

232. Both these documents are placed at Annexure-D and Annexure-E respectively and were also part of the record before the Industrial Tribunal and therefore, finding given by

C/SCA/21676/2017 JUDGMENT DATED: 19/10/2022

the Industrial Tribunal with regards to the permanency of full time peon of the respondents cannot be interfered. However, the error is committed by the Industrial Tribunal to the extent of treating the respondents as full time peon w.e.f. 18.08.1987 which is the date of the resolution, whereas the process was undertaken after the resolution and appointment was made w.e.f. 19.06.1990.

[8] Therefore, on account of such factual error which has crept in, the Court is of the view to modify the award to the limited extent that the respondents would be treated as full time peons with permanency from the date of their respective appointment dated 19.06.1990.

[9] With the aforesaid, the petition stands allowed to the aforesaid extent. Direct service is permitted.

(A.Y. KOGJE, J) SIDDHARTH