Bhavnagar Municipal Corporation ... vs Jeevanbhai Keshubhai Chauhan
2023 Latest Caselaw 5895 Guj

                                                                                 NEUTRAL CITATION




       C/LPA/385/2023                             ORDER DATED: 11/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 385 of 2023

            In R/SPECIAL CIVIL APPLICATION NO. 19893 of 2018

                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                In R/LETTERS PATENT APPEAL NO. 385 of 2023
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     BHAVNAGAR MUNICIPAL CORPORATION THROUGH MUNICIPAL
                       COMMISSIONER
                           Versus
               JEEVANBHAI KESHUBHAI CHAUHAN
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
MS. KHUSHBU D CHHAYA(8093) for the Respondent(s) No. 1
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 CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
       SUNITA AGARWAL
       and
       HONOURABLE MR. JUSTICE N.V.ANJARIA

                              Date : 11/08/2023

                               ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. Challenging the judgment and order dated

03.02.2023 passed by the learned Single Judge in Special

Civil Application No. 19893 of 2018, Mr. H.S. Munshaw,

learned counsel for the appellant submits that the directions

issued by the Labour Court for absorption of the respondent -

workman on a Class-III Post and grant him consequential

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benefits including arrears till the date of retirement i.e.

30.06.2015, was illegal and arbitrary.

2. The attention of the Court is invited to the order

dated 23.04.2002, whereby the respondent - workman has

been absorbed by granting permanency on the post of Sipai

(Supervisor of Safai Kamdar) on the basis of seniority. A

perusal of the order dated 23.04.2002 of absorption of

respondent - workman granting permanency on the aforesaid

post indicates that he was working as Safaikarmi on daily

wage basis. The service book of the respondent - workman

at page 53-54, has also been placed before us to demonstrate

that there was an entry of the factum of permanency granted

by order dated 23.04.2002 on the post of Sipai (Supervisor).

The service book contains the signature of the respondent -

workman. The above noted facts could not be disputed by

the learned counsel Ms. Khushbu Chhaya, appearing for the

respondent.

3. It is argued by the learned counsel Mr. Munshaw for

the appellant that in any case, the respondent - workman

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who was appointed on daily wage basis on the post of

Safaikarmi and continued as such till the grant of

permanency on the post of Sipai (Supervisor) vide order

dated 23.04.2002, cannot be allowed benefit of Class-III post.

The Labour Court has erred in law in relying upon the oral

evidence of the respondent - workman to record finding that

he had worked on a class-III post. There was no challenge to

the order dated 23.04.2002 by the respondent - workman,

which was passed during the pendency of the Reference

before the Labour Court.

4. Learned counsel Ms. Khushbu Chhaya appearing for

the respondent - workman, in rebuttal, argued that the

Reference was made to seek permanency on Class-III post as

the respondent - workman had worked on the said post on

daily wage basis. During the pendency of the Reference,

order dated 23.04.2002 of granting permanency has been

passed and the dispute, thus, arose with regard to the post on

which the respondent - workman claimed permanency. The

contention is that the fact that the respondent - workman had

worked on Class-III post, had been admitted by the witness of

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the employer in the cross-examination.

5. Be that as it may, the fact remains that the claim of

the respondent - workman before the Labour Court was that

he had discharged his duties as Class-III post and thus, is

entitled for absorption against a permanent Class-III post.

However, nothing has been brought before the Labour Court,

as there is no discussion of any evidence filed by the

respondent - workman to establish his contention of having

been appointed or worked against Class-III post.

6. As noted above, there was no challenge to the order

dated 23.04.2002, whereby permanency was granted to the

respondent - workman on class-IV post of Sipai (Supervisor).

There is no challenge to the entry of the service book which

was prepared on 29.04.2002. Service book bears the

signature of the respondent - workman.

7. In the said scenario, we are of the considered

opinion that the Labour Court has erred in law in granting

benefit of permanency to the respondent - workman from the

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date of making of the Reference i.e. 24.05.2000 till the date

of superannuation i.e. 30.06.2015. We may further record

that when the matter was presented before the learned

Single Judge, it was noted in the judgment impugned that the

retirement age in the cadre of the Clerk was 58 years and the

Tribunal has granted benefits uptill the age of 60 years

considering the retirement of the respondent - workman in

the cadre of Safai Kamdar.

8. While finding infirmity in the award dated

04.04.2018 passed by the Presiding Officer, Industrial

Tribunal, Bhavnagar in Reference (I.T.) No. 79 of 2000, we

find that the respondent - workman has rightly been

permitted to work on the post of Safai Kamdar - Sipai

(Supervisor) upto the age of 60 years, till the age of his

retirement i.e. 30.06.2015. It is submitted by the learned

counsel for the appellant that all benefits of the post of Sipai

(Supervisor) till the date of superannuation i.e. 30.06.2015

have already been extended to the respondent - workman. It

is submitted that whatever benefits are admissible to the post

of Sipai (Supervisor) have been extended to the respondent -

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workman. However, this fact could not be ascertained by the

learned counsel appearing for the respondent - workman.

9. As we have reached at the conclusion that the

respondent - workman could not get benefits of

regularisation / permanency on class-III post and that he was

absorbed on a Class-IV post of Safaikamdar, retirement of

age of which admittedly is 60 years, we modify the order

passed by the learned Single Judge.

10. While setting aside the order passed by the Labour

Court, we DISPOSE OF the instant Appeal, by holding that

the respondent - workman is entitled for the benefits to the

post of Sipai (Supervisor) from the date of absorption, i.e.

23.04.2002 on a permanent post till the date of

superannuation i.e. 30.06.2015. All benefits admissible to the

said post, if not paid, it would be open for the respondent -

workman to approach the competent authority raising his

grievances which shall be dealt with in accordance with law

as expeditiously as possible.

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11. In view of the disposal of the Appeal, Civil

Application/s would not survive and disposed of, accordingly.

Interim relief, if any, stands vacated forthwith.

(SUNITA AGARWAL, CJ )

(N.V.ANJARIA, J) AMAR SINGH