Gujarat High Court
Yogesh Vallabhdas Kelaiya vs Jetpur Navagadh ... on 7 April, 2014
Author: M.R.Shah
Bench: M.R. Shah
C/MCA/803/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR REVIEW) NO. 803 of 2014
In
SPECIAL CIVIL APPLICATION NO. 21932 of 2006
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YOGESH VALLABHDAS KELAIYA....Applicant(s)
Versus
JETPUR NAVAGADH MUNICIPALITY....Opponent(s)
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Appearance:
MR TR MISHRA, ADVOCATE for the Applicant(s) No. 1
MR UMESH TRIVEDI for MR RR TRIVEDI, ADVOCATE for the Opponent
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 07/04/2014
ORAL ORDER
1.00. Present application has been preferred by the applicant herein - original respondent to recall and review the judgement and order dated 21/1/2014 passed in Special Civil Application No. 21932 of 2006 and to direct the respondent to continue the applicant on his original post of Clerk.
2.00. At the outset, it is required to be noted that feeling aggrieved and dissatisfied with the judgement and award dated 17/4/2006 passed by the learned Presiding Officer, Labour Court, Rajkot in Reference (LCR) No.650 of 1991, by which, the learned Labour Court directed the respondent Municipality to reinstate the applicant workman to his original post with continuity of service but without back wages, the respondent Municipality preferred Special Civil Application No. Page 1 of 7 C/MCA/803/2014 ORDER 21932 of 2006 before this Court and considering the fact that the applicant workman worked as "Naka Clerk" on purely temporary basis on the fixed salary of Rs.850/- per month and that too for the period from 5/4/1989 to 27/12/1990 only and considering the fact that the post of Naka Clerk was abolished, due to abolition of octori and considering the decision of the Hon'ble Supreme Court in the case of Senior Superintendent Telegraph, Bhopal Versus Santosh Kumal Seal and Others, reported in (2010) 6 SCC 773 as well as in the case of Jagbir Singh Versus Haryana State Agriculture Marketing Board and Another, reported in (2009) 5 SCC 327, and after hearing the learned advocates appearing on behalf of the respective parties, this Court partly allowed the aforesaid Special Civil Application and quashed and set aside the judgement and award passed by the learned Labour Court and in lieu of reinstatement and continuity of service, awarded lump-sum compensation of Rs.30,000/- to the applicant workman. That thereafter the present application has been preferred by the applicant workman to recall / review the aforesaid judgement and order passed by this Court.
3.00. Mr.T.R. Mishra, learned advocate appearing on behalf of the applicant has vehemently submitted that as such at the time of hearing of the main Special Civil Application, it was not brought to the notice of this Court that in fact the applicant is in service and he was reinstated. It is submitted that if the continuity of service is taken into consideration, the applicant has put in 24 years of service. The learned advocate appearing on behalf of the applicant has submitted that if the order dated 21/1/2014 is implemented, in that case, the applicant would be relieved from service. It is submitted that if Page 2 of 7 C/MCA/803/2014 ORDER it would have been pointed out before this Court that the applicant has been reinstated in service and even working, this Court would not have passed the impugned order and would not have maintained the order of reinstatement.
3.01. Mr.Mishra, learned advocate appearing on behalf of the applicant has submitted that the learned Single Judge vide order dated 18/3/2013 in Misc.Civil Application No. 801 of 2014, in the case of similarly situated employee - Paresh Kantilal Parmar has allowed the said review application and has recalled the order passed in Special Civil Application No. 23086 of 2006. Therefore, it is requested to recall the order passed in Special Civil Application No. 21932 of 2006.
4.00. Present application is opposed by Mr.Umesh Trivedi, learned advocate appearing for Mr.R.R. Trivedi, learned advocate on behalf of the respondent - Municipality. It is submitted that as such the judgement and order dated 21/1/2014 passed by this Court in Special Civil Application No. 21932 of 2006 has been passed after giving fullest opportunity to the learned advocates appearing on behalf of the respective parties and after considering the submissions made by the learned advocates appearing on behalf of respective parties. It is submitted that as such there is no error apparent on the fact of the record and therefore, the judgement and order passed by this Court in Special Civil Application No. 21932 of 2006 dated 21/1/2014 is not required to be recalled and/or reviewed. It is submitted that considering the fact that the applicant who was serving as a Naka Clerk on temporary basis basis on the fixed salary of Rs.850/- per month and has served only from 5/4/1989 to 27/12/1990 and Page 3 of 7 C/MCA/803/2014 ORDER thereafter as his services were not required, he was not called for duty, considering the decisions of the Hon'ble Supreme Court in the case of Senior Superintendent Telegraph, Bhopal (supra) as well as Jagbir Singh (supra), this Court has partly allowed the aforesaid Special Civil Application and has quashed and set aside the award passed by the Labour Court of reinstatement and continuity of service and in lieu of reinstatement and continuity of service, this Court directed the respondent Municipality to pay a lump-sum compensation of Rs.30,000/- to the applicant workman. Therefore, it cannot be said that this Court has committed any error and/or illegality.
4.01. Now, so far as the contention on behalf of the applicant that if the continuity is considered, it can be said that he has put service of 24 years, it is submitted that the same is factually incorrect. It is submitted that as such the applicant worked as Naka Clerk on temporary basis for the period from 5/4/1989 to 27/12/1990 only and thereafter, during the pendency of the Reference, the applicant was not in service. It is submitted that only after the judgement and award was passed by the Labour Court in the year 2006 and during the pendency of the Special Civil Application No. 21932 of 2006, to avoid any salary to be paid under section 17B of the ID Act, when the applicant was reinstated in service in lieu of section 17B of the ID Act wages to be paid idle, the applicant cannot get benefit of such reinstatement. It is submitted that as such the aforesaid reinstatement in lieu of section 17B would always be subject to ultimate outcome of the proceedings and during the pendency of the main Special Civil Application. Therefore, it is requested to dismiss the present application.
Page 4 of 7 C/MCA/803/2014 ORDER5.00. Heard the learned advocates appearing on behalf of the respective parties at length.
5.01. At the outset, it is required to be noted that present application has been preferred by the applicant to recall and review the judgement and order dated 21/1/2014 passed by this Court in Special Civil Application No. 21932 of 2006. However, it is required to be noted that the aforesaid judgement and order has been passed by this Court after giving fullest opportunity to the learned advocates appearing on behalf of the respective parties, more particularly learned advocate appearing on behalf of the applicant - workman and the aforesaid Special Civil Application has been disposed of by this Court on merits and by detailed speaking order, this Court has partly allowed the said Special Civil Application preferred by the respondent Municipality and has awarded lump-sum compensation in lieu of reinstatement and continuity of service and therefore, as such there is no error on the face of the record and therefore, the same is not required to be recalled and/or reviewed by this Court.
5.02. At the outset, it is required to be noted that on merits and after considering the fact that the applicant workman has worked as Naka Clerk on temporary basis on the fixed salary of Rs.850/- per month and worked only for the period from 5/4/1989 to 27/12/1990 and there is no post of Naka Clerk due to abolition of octroi and as the service of the applicant was not required, he came to be relieved considering the decisions of the Hon'ble Supreme Court in the case of Senior Superintendent Telegraph, Bhopal (supra) as well as Jagbir Singh (supra), this Court, by giving cogent Page 5 of 7 C/MCA/803/2014 ORDER reasons set aside the judgement and award passed by the labour court of reinstatement and continuity of service and in lieu thereof, has awarded lump-sum compensation to the applicant work. Under the circumstances, as such no case is made out to recall the judgement and order passed by this Court.
5.03. Now, so far as the contention on behalf of the applicant workman that at the time when this Court passed the order, the applicant was already reinstated in service and if continuity in service is considered, his service can be said to be of 24 years and reliance placed upon the order passed by the learned Single Judge dated 18/3/2013 in Misc.Civil Application No. 801 of 2014 is concerned, it is required to be noted that it cannot be said that the applicant has put in service of 24 years, as contended. Initially the applicant had worked as Naka Clerk for the period from 5/4/1989 to 27/12/1990 and thereafter during the pendency of the reference till 2006, he was not in service and after the judgement and order passed by the Labour Court, during the pendency of the Special Civil Application, to avoid any idle wages to be paid under section 17B of the ID Act, the applicant was reinstated in service. The aforesaid reinstatement was in lieu of section 17B of the ID Act and during the pendency of the Special Civil Application only and therefore, the applicant cannot be permitted to get benefit of such reinstatement. Under the circumstances, even if the aforesaid would have been pointed out, it would not have made any difference in the ultimate decision of this Court.
5.04. Now, so far as the reliance placed upon the decision Page 6 of 7 C/MCA/803/2014 ORDER of order dated 18/3/2013 in Misc.Civil Application No. 801 of 2014 in the case of Paresh Kantilal Parmar is concerned, considering the said order, it appears that the learned Single Judge has specifically observed that the said order is required to be passed because the applicant - original respondent, who was present in the court stated that he did not know anything in the matter when the matter was taken up for hearing on 18/2/2014 and therefore, as such, on facts, the said order would not be of any assistance to the applicant.
5.05. In any case, there is no error apparent on the face of the record and therefore, the judgement and order passed by this Court in Special Civil Application No. 21932 of 2006 dated 21/1/2014 is not required to be recalled and/or reviewed.
6.00. In view of the above and for the reasons stated above, present application fails and the same deserves to be dismissed and is accordingly dismissed. Notice is discharged. Interim relief granted earlier stands vacated forthwith. No costs.
Sd/-
(M.R.SHAH, J.) Rafik.
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