LAKHUBEN VASHRAM CHAUHAN V. THE MUNICIPAL COMMISSIONER

SCA/22120/2019

AI Insights

Lakhuben Vashram Chauhan, the petitioner, sought relief from the High Court of Gujarat to enforce the respondent-Corporation's policy for regularizing daily wagers after completing 5 years and 900 days of service. The petitioner, having worked since June 1998 and faced termination which was later deemed illegal by the Labour Court, argued for regularization based on the Corporation's own policy. The court, referencing the Supreme Court's decisions, found that the petitioner should first approach the Corporation with a representation before considering further legal action.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 726178 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 29-01-2020
• Assessment Year: misc
• Other Referred Cases: GENPACT INDIA PVT. LTD. VS. DY. COMMISSIONER OF INCOME TAX & ANOTHER, WHIRLPOOL CORPORATION VS. REGISTRAR OF TRADE MARKS, MUMBAI, & OTHERS
• Laws Referred To: Article 226 of the Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Assessee Lawyers: P C CHAUDHARI
• Keywords: Backwages; Continuity of service; Regularization; Superannuation; Writ of Mandamus; Dailywager; Pensionery benefits

Judgement Text

"C/SCA/22120/2019 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 22120 of 2019 ========================================================= LAKHUBEN VASHRAM CHAUHAN Versus THE MUNICIPAL COMMISSIONER ========================================================== Appearance: MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1 for the Respondent(s) No. 1,2 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 29/01/2020 ORAL ORDER 1. The petitioner is before this Court, seeking following reliefs: “13. … (a) YOUR LORDSHIP may be pleased to issue writ of mandamus, or any other writ, order or direction, directing the respondent Corporation to grant the benefits of the their own policy in favour of the petitioner and on completion of 5 years and 900 days service, the services of the petitioner should regularize and the petitioner should be paid all arrears of different wages at par with similarly situated employees. (b) YOUR LORDSHIP may be pleased to issue writ of mandamus, or any other writ, order of direction, directing the respondent Corporation to grant the benefits of their own policy in favour of the petitioner and on completion of 5 years and 900 days service, the service of the petitioner as per the award deemed to be continuous one and YOUR LORDSHIP be further pleased to direct the Respondent corporation to pay the pensionery benefits from initiate date of joining along with the arrear from the date of retirement along with 12% interest thereon; (c) Pending admission, hearing and final disposal of present petition, YOUR LORDSHIP be pleased to direct the respondent Corporation to calculate the amount and to deposit the same before this Hon’ble Court as well direct the respondent to start paying the regular pension; Page 1 of 3 C/SCA/22120/2019 ORDER (d) ... ” 2. The petitioner was working with the Road Department of the Respondent-Corporation since June, 1998, as a dailywager. His services came to be terminated on the ground of non-availability of the work, which was challenged by him by way of Reference (T) No. 939 of 2008. The Reference came to be allowed on 25.04.2016, whereby, the respondent-Corporation was directed to reinstate the petitioner on his original post with continuity of service and 20% backwages. 3. The petitioner, since, has attained the age of superannuation on 07.12.2014, the question of reinstatement on his original post does not arise. However, he has come before this Court, seeking the implementation of the policy of the Respondent-Corporation that the dailywagers working with it, if, completes 5 years and 900 days of service, they are to be regularized. 4. It is the case of the petitioner that he has completed 5 years and 900 days between the years 1998 to 2002, and therefore, he is entitled for regularization, on completion of 5 years and 900 days’ service. It is also urged that he had applied before the Corporation on 04.03.2005, but, he was denied the same on the ground that he has not completed 5 years. 5. According to the petitioner, the Labour Court concerned, while deciding the Reference, found that the termination of the petitioner was illegal and he is entitled for reinstatement, he is, now, seeking regularization, as per the policy of the respondent-Corporation. 6. This Court has heard the learned Advocate, Mr. Chaudhary, for the petitioner and according to him, this petition is preferred under Page 2 of 3 C/SCA/22120/2019 ORDER Article 226 of the Constitution of India, as the petitioner has already completed 5 years and 900 days, as per the policy of the respondent- Corporation, and therefore, a request is made to issue a writ of mandamus or any other writ. Moreover, the petitioner, since, has already attained the age of superannuation, it would take long time, if, once again, the petitioner is relegated to the alternative remedy of approaching the Labour Court concerned. 7. At this stage, reference need to be made to the decision of the Apex Court rendered in case of ‘GENPACT INDIA PVT. LTD. VS. DY. COMMISSIONER OF INCOME TAX & ANOTHER’, 2019 (16) SCALE 667. Considering the availability of the alternative remedy and also bearing in mind the decision of the Apex Court in ‘WHIRLPOOL CORPORATION VS. REGISTRAR OF TRADE MARKS, MUMBAI, & OTHERS’, (1998) 8 SCC 1, this Court notices that the case of the petitioner does not fall within any of the exceptions carved out in the said decision. This Court, therefore, deems it appropriate to PERMIT the petitioner to approach the respondent-Corporation by way of a representation, which shall be decided by it within a period of TWELVE WEEKS from the date of receipt of a copy of this order. If, the outcome aggrieves the petitioner, he shall be at LIBERTY to avail the alternative remedy. 8. Resultantly, without entering into the merits of the matter, this petition is being DISPOSED OFF, accordingly. (SONIA GOKANI, J) UMESH/- Page 3 of 3 "