Gujarat High Court
Commissioner, Bhavnagar ... vs Jagdishbhai Bhankabhai Algotar on 24 January, 2025
NEUTRAL CITATION
C/SCA/743/2025 JUDGMENT DATED: 24/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 743 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
Approved for Reporting Yes No
✔
==========================================================
COMMISSIONER, BHAVNAGAR MAHANAGARPALIKA
Versus
JAGDISHBHAI BHANKABHAI ALGOTAR
==========================================================
Appearance:
MS SEJAL K MANDAVIA(436) for the Petitioner(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 24/01/2025
ORAL JUDGMENT
1. This petition is filed challenging the award passed by
learned Industrial Tribunal, Bhavnagar dated 30.09.2024 in
Reference I.T. No.14 of 2022 whereby the reference filed by the
respondent came to be allowed and the direction was issued
upon the present petitioner to regularize the service of the
respondent as a temporary watchman with effect from
06.12.2003 and as a permanent watchman with effect from
NEUTRAL CITATION
C/SCA/743/2025 JUDGMENT DATED: 24/01/2025
undefined
06.12.2008. It is further ordered that the period from the date of
reference to the date of making respondent as a permanent
should be treated as notional and the retirement benefits like
pension, gratuity and other benefits be given with effect from his
date of appointment.
2. Heard learned advocate Ms. Sejal K. Mandavia for the
petitioner.
2.1. Learned advocate Ms. Mandavia submits that the petitioner
was appointed on 25.07.1998 as a Watchman cum Gardner and
was terminated on 06.12.1998. The said termination was
challenged before learned Tribunal by way of filing the
Reference being L.C.B. No.70 of 2000 which was allowed in
favour of the respondent by granting the relief of 20% back
wages continuity of services all consequential benefits along with
relief of reinstatement. The application made by the respondent
that if he is reinstated pursuant to the award passed by learned
Tribunal then he is ready to forego the 20% back wages which
was awarded by learned Court. The petitioner - Nagarpalika has
given fresh appointment order to the petitioner on 04.02.2009
after taking the undertaking from the present respondent. As
per the terms of service on completion of 5 years, he was given
NEUTRAL CITATION
C/SCA/743/2025 JUDGMENT DATED: 24/01/2025
undefined
the status of temporary employee in the year 2014 and the
regular employee on the completion of the 10 years in the year
2019. In the year 2022, the dispute raised before learned
Commissioner stating that as per the award passed in favour of
the present respondent in Reference L.C.B. No.70 of 2000, he is
entitled for the continuity of service and status of the temporary
watchman from 06.12.2003 and regular watchman from
06.12.2008, however, the petitioner - authority has not granted
the same and therefore, the dispute was referred to learned
Industrial Tribunal which was numbered as Reference I.T. No.14
of 2022. Learned Reference Court, after considering the
statement of claimant, written statement and the evidence
adduced by both the parties, has allowed the reference in favour
of the respondent - employee by granting the benefit as claimed
by the respondent. Learned advocate Ms. Mandavia submits that
the reference was filed in delay as after fresh appointment which
was made in the year 2009, the dispute was raised in the year
2022. It is further submitted by learned advocate Ms. Mandavia
that when he was given the fresh appointment, status of
temporary employee and the permanent employee given in the
year 2019. No objections were raised, however, after taking all
NEUTRAL CITATION
C/SCA/743/2025 JUDGMENT DATED: 24/01/2025
undefined
the benefits, it was not open for the respondent to claim the
benefits as per the award passed by learned Tribunal. Learned
advocate Mr. Mandavia further submits that pursuant to the
undertaking wherein he has forgo all the benefits, fresh the
appointment was made, however, subsequently, the respondent
has reopened the issue which was closed pursuant to his own
undertaking. Learned advocate Ms. Mandavia submits that as he
has given undertaking voluntarily, it was not open to the
respondent to back out from the undertaking and claiming the
relief which was granted by learned Reference Court. Learned
advocate Ms. Mandavia submits that learned Tribunal has also
not considered the submission made by the present petitioner
and awarded the reference in favour of the respondent.
Therefore, the same is deserved to be set aside and the petition
is required to be allowed.
3. Having considered the submissions made by learned
advocate Ms. Mandavia and having gone through the reasons, it
emerges that the reference being No. L.C.B. Case No.70 of 2000
was awarded in favour of the present petitioner challenging the
order of termination wherein learned Reference Court has
granted the relief of reinstatement the continuity of service from
NEUTRAL CITATION
C/SCA/743/2025 JUDGMENT DATED: 24/01/2025
undefined
06.12.1998 20% back wages and all consequential benefits.
Admittedly, this order was not challenged before the higher
forum by the petitioner authority and he had complied with the
order by reinstating the respondent. However, instead of
reinstating, the fresh appointment was given relying on the
undertaking. The said undertaking is neither part of the record
before learned Tribunal nor before this Court. The order of fresh
appointment passed on 04.02.2009 if one would refer then
Condition No.2(4), then it suggests that the panel advocate has
opined that if the respondent would forego the benefit of 20%
back wages and all consequential benefits which was granted by
learned Reference Court along with undertaking then his case
can be considered. The respondent was badly needed
employment and therefore, undertaking was given waiving the
right to claim the benefit granted by learned Court of 20% back
wages as well as all consequential benefits. Fresh appointment
order does not suggest that the respondent has forgo his right of
continuity of service which was awarded by learned Reference
Court. Be that as it may, it was not open for the petitioner -
employer to take the disadvantage of the situation of the
employer and to overreach the award passed by learned
NEUTRAL CITATION
C/SCA/743/2025 JUDGMENT DATED: 24/01/2025
undefined
Reference Court by which the relief was awarded in favour of the
respondent. The respondent - workman who is unemployed since
year 1998 was agreed for the forego his rights of claiming of back
wages and consequential benefits in the year 2009 which is after
11 years termination of his service. The contention raised by the
petitioner that at the time of fresh appointment which was given
in the year 2009, the status of the temporary employee which
was given in the year 2014 and the benefit which was granted of
regular employee in the year 2019 no objections were raised by
the respondent - employee, if one examines from the angle of
the workman then it would emerge that the workman who is
unemployed would not get any chance to lose his job because if
he does so, there are not many jobs waiting for him, therefore,
not taking the objection would not deprive from the benefit
which was granted by learned Court below for all time to come,
as there was no any undertaking produced before learned Labour
Court or before this Court and the reference of the undertaking
made in the fresh appointment order dated 02.04.2009 suggest
that he waives his right qua 20% benefits and other
consequential benefits. In that view of the matter, it cannot be
said that he would not be entitled to get benefit of continuity of
NEUTRAL CITATION
C/SCA/743/2025 JUDGMENT DATED: 24/01/2025
undefined
service which was granted by learned Reference Court in
Reference I.T. No.14 of 2022.
4. Considering all the circumstances, this Court does not find
any infirmity in the impugned judgment and therefore, present
petition being devoid of merits and deserved to be dismissed.
5. Resultantly, present petition is dismissed.
(M. K. THAKKER,J)
Vikramsinh Amarsinh
