Gujarat High Court
Labhuben Dayaljibhai Solanki - ... vs Chief Officer, Junagadh ... on 16 October, 2023
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/5986/2020 ORDER DATED: 16/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5986 of 2020
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LABHUBEN DAYALJIBHAI SOLANKI - SINCE DECEASED
Versus
CHIEF OFFICER, JUNAGADH MUNICIPAL CORPORATION
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Appearance:
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1,1.1
MR DIGANT B KAKKAD(6523) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 16/10/2023
ORAL ORDER
1. By this petition under Article 227 of
the Constitution of India, the petitioner
has prayed for the following reliefs:
"A. Quashing and setting aside the
award dated 12.10.2018 passed by
the Tribunal, Rajkot in Ref (I.T.)
Case No. 210/2012 qua denial of
consequential benefits from the
date of reference and further
directing the respondent to pay all
consequential benefits from the
date of reference including arrears
with 9% interest to the petitioner
from the date of filing reference
before the Tribunal.
B. During the pendency and final
disposal the respondent may be
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C/SCA/5986/2020 ORDER DATED: 16/10/2023
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directed to do pay fixation of
petitioner as regular employee from
the date of filing reference and
pay her 50% arrears of pay from
that date.
C. To grant such other and further
relief as may be deemed fit and
proper."
2. Brief facts of the case are as under:
2.1 The petitioner joined service as
daily wager in Garden Department of the
respondent-Municipal Corporation on
19.05.1980. The service of the petitioner
was terminated in the year 1982, she filed
a reference before the Labour Court being
Ref. Case No. 8/1990 where she succeeded
and was reinstated in service with
continuity of service.
2.2 She worked in the respondent-
Corporation till the age of superannuation
on 16.05.2013.
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During her service tenure, the petitioner
filed Ref. (I.T) No. 210/2012 for
regularization before the Industrial
Tribunal, Rajkot who, by award dated
12.10.2018 partly allowed the reference
holding the petitioner entitled to be
regular employee from the date of
reference. However, the period from the
date of reference till the date of
superannuation was ordered to be treated
as notional.
2.3 The aggrieved petitioner
approached this Court by way of present
petition challenging the aforesaid award
qua treating the period from date of
reference as notional and denial of
consequential benefits.
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3. Learned advocate Mr. Samir Gohil at
the outset submitted that this Court, by
order dated 16.07.2019 in Special Civil
Application No. 7704/2019 preferred by the
respondent- Municipal Corporation,
challenging the same award has dismissed
such petition. It was however, submitted
that the Labour Court could not have
awarded the notional pay to the workman as
the workman has rendered services of more
than 33 years till the date of
superannuation.
4. It was further submitted that only
because the Labour Court took 16 years for
deciding the reference, the workman should
not suffer and the benefit of regular pay
scale ought to have been given so as to
give financial assistance to the legal
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heirs of the deceased workman who has
expired during the pendency of this
petition. Reliance was placed on the
decision of the Apex Court in case of
Umrala Gram Panchayat vs. Secretary,
Municipal Employees Union reported in 2015
(12) SCC 774 wherein the Apex Court, after
considering the length of service of the
workman for more than five years, granted
the benefit of permanency till attaining
the age of superannuation for the purpose
of granting terminal benefits and the
employer was directed to pay the regular
pay scale as per the revised pay scale
fixed to the post of permanent Safai
Kamdar in the said case. It was therefore
submitted that the Tribunal also ought to
have granted same benefit to the deceased
workman.
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5. Having heard learned advocate for the
petitioner, when the impugned order
already stands confirmed by the Judgement
and Award dated 16.07.2019 wherein it is
held as under, no interference can be made
in the impugned Judgement and Award passed
by the Labour Court:
"9. Heard learned advocate
Mr. Digant Kakkad for the
petitioner. It was submitted that
the Industrial Tribunal failed to
consider the fact that the
respondent no.1 workman did
not work from 1981 to 1994
till he was reinstated pursuant
to judgment and award passed by the
Tribunal in the year 1994 and it was
therefore, contended that the
respondent no.1 is not
entitled to benefits of
permanent employee. It was further
submitted that as per the law laid
down by Supreme Court in case of
Secretary, State of Karnataka and
others v. Umadevi and others
reported in 2006 (4) SCC 1, the
Tribunal ought not to have passed
the order of giving benefits of
permanent employee to the
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respondent no.1 as the
respondent no.1 was employed
as a daily wager. Learned
advocate also submitted that by
giving the benefit of permanent
employee to respondent no.1
would cause prejudice to
other employees and workmen of the
petitioner Corporation who are
senior to the respondent no.1 and
are discharging the duty on
daily wage basis. It was
submitted that the
implementation of the order passed
by the Tribunal would cause heavy
financial burden upon the
petitioner Corporation.
10. Having considered the
submissions made by the
learned advocate for the
petitioner and having gone through
the impugned judgment and award
passed by the Tribunal and having
gone through the material on record,
it appears that the
petitioner Corporation did not
give benefit of permanent
employee to the respondent
no.1 inspite of there being a
continuous service rendered by
respondent no.1 from 1980 to
2013. By the impugned judgment
and award dated 13th November,
1994, respondent no.1 was reinstated
in service with continuity and
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therefore, the contention raised
on behalf of the petitioner
that respondent did not work for 12
years is not tenable. Moreover, the
Tribunal has given findings of fact
that 9 persons of the garden
department were given benefit of
permanent employee prior to 2016
and as such the petitioner ought
to have been given benefit of
permanent employee to respondent
no.1 taking into consideration the
long period of service of 33 years.
Reliance placed by the learned
advocate for the petitioner on
decision in case of Umadevi and
others(supra) would also not come
into play in view of observations
made by the Supreme Court in the
said judgment that if an employee
renders service of more than 10
years, then the establishment is
required to give benefits of
permanency to such employee.
11. In view of the foregoing
reasons, it cannot be said that
the Tribunal has erred in
giving the benefit of permanent
employee to the respondent no.1
workman and that too on notional
basis so as to enable the
respondent no.1 to get retiral
benefits as that of a
permanent employee. Therefore, no
interference is called for in
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exercise of powers under Article
227 of the Constitution of India."
6. In view of the above findings, when
the impugned Judgement and Award is
confirmed, no interference is called for
so far as the aspect of granting of
notional pay to the deceased workman is
concerned. The petition is accordingly
dismissed.
(BHARGAV D. KARIA, J)
JYOTI V. JANI
