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2018 DIGILAW 393 (GUJ)

MANIKBEN MANSUKH PARMAR v. CHIEF GENERAL MANAGER

2018-02-05

A.Y.KOGJE, M.R.SHAH

body2018
JUDGMENT : M.R. SHAH, J. 1. RULE. Learned Advocate Mr.Vishrut Jani waives service of notice of Rule on behalf of the respondents. 2. In the facts and circumstances of the case, the petition is taken up for final hearing today. 3. Being aggrieved and dissatisfied by the impugned judgment and order passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad dated 29.06.2016 passed in Original Application No.123 of 2012, by which the learned Tribunal rejected the said application preferred by the petitioner herein-original applicant-widow of deceased Mansukh Parmar seeking status of regular “mazdoor” for her deceased husband with effect from the date he is said to have become eligible, the original applicant has preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India. 4. The facts leading to the present Special Civil Application in nutshell are as under:- 4.1 That husband of the original applicant was appointed as part-time Waterman-cum-sweeper vide order dated 12.07.1990 under the respondent No.3 herein. That thereafter, he was granted the temporary status with effect from 08.04.1994 vide order dated 03.06.2003. According to the applicant, her husband was required to be granted status of regular “mazdoor” with effect from 2001 on his completing 10 years as per the scheme framed by the respondents. The husband of the applicant died in the year 2012. After his death, the applicant, being widow of the deceased employee, approached the learned Tribunal for the aforesaid relief. As there was delay in approaching the Tribunal, Misc.Application No.115 of 2012 was preferred requesting to condone the delay. Learned Tribunal allowed the said application and condoned the delay. However, thereafter, learned Tribunal has rejected the said Original Application by observing that as per the decision of the Hon’ble Supreme Court in case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors., reported in (2006) 4 SCC, 1, deceased employee cannot claim any relief of regularization. Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned Tribunal rejecting the application, the original applicant has preferred the present Special Civil Application. 5. Ms.Rina Kamani, learned Advocate appearing for the petitioner has vehemently submitted that the learned Tribunal has materially erred in dismissing the application and not granting regularization of her husband, which otherwise her husband was entitled to as per the scheme framed by the respondents. 5. Ms.Rina Kamani, learned Advocate appearing for the petitioner has vehemently submitted that the learned Tribunal has materially erred in dismissing the application and not granting regularization of her husband, which otherwise her husband was entitled to as per the scheme framed by the respondents. 5.1 It is further submitted that as such, except observing that as per the decision of the Hon’ble Supreme Court in case of Umadevi (supra), deceased employee cannot claim any relief of regularization, no other reasons have been assigned. It is submitted that the learned Tribunal has not at all considered the fact that the scheme of regularization was framed by the respondents and that juniors to the deceased employee were granted status of regular “mazdoor”. It is submitted that therefore, when the entitlement was not in dispute and the deceased employee was required to be conferred status of regular “mazdoor” as per the scheme framed by the respondents, the learned Tribunal has materially erred in dismissing the application. 5. Shri Vishrut Jani, learned Advocate appearing for the respondents has opposed the present petition and has supported the impugned judgment and order passed by the learned Tribunal. He has submitted that as such, the petitioner is not entitled to any relief on the ground of delay, laches and also on the ground of limitation. It is submitted that as such, cause of action in the present case has arisen in the year 2004 and thereafter, the applicant approached learned Tribunal in the year 2012. It is submitted that therefore, on the aforesaid ground alone, the petitioner is not entitled to the relief as claimed in the application. It is submitted that therefore, learned Tribunal has not committed any error in dismissing the Original Application and refusing to grant relief of regularization as regular “mazdoor” to the deceased employee. 6. To the aforesaid objection, Ms.Rina Kamani, learned Advocate appearing for the petitioner has submitted that as such, the learned Tribunal has condoned the delay while allowing Misc.Application No.115 of 2012 and the said order has attained finality. It is submitted that therefore, it is now not open for the respondents to contend that the petitioner shall not be entitled to the relief on the ground of delay, laches and limitation. 6.1 Relying upon the decision of the Hon’ble Supreme Court in case of Union of India & Ors. Vs. It is submitted that therefore, it is now not open for the respondents to contend that the petitioner shall not be entitled to the relief on the ground of delay, laches and limitation. 6.1 Relying upon the decision of the Hon’ble Supreme Court in case of Union of India & Ors. Vs. Tarsem Singh, reported in (2008) 8 SCC, 648, it is submitted that even otherwise, considering the fact that not conferring status of regular “mazdoor” to the deceased employee can be said to be a continuing wrong causing continuing injury, the relief can be molded and the husband of the petitioner can be granted the benefit of conferring status of regular “mazdoor”, by restricting the monetary benefits to last three years from the date of filing of the application before the learned Tribunal. 7. Heard learned Advocates appearing for the respective parties at length. 8. At the outset, it is required to be noted that it is not in dispute that on completion of 10 years as a temporary employee, as per the scheme of the respondents, an employee, who has worked for 10 years in the temporary status, he is required to be conferred the status of regular “mazdoor”. Therefore, entitlement of the conferment of the status to the deceased employee as regular “mazdoor” on completion of 10 years as temporary employee is not in dispute and that the same is not disputed. Learned Tribunal has rejected the Original Application solely on the ground that as per the decision of the Hon’ble Supreme Court in case of Umadevi (supra), claim of a deceased employee of regularization is not required to be granted. However, it is required to be noted that learned Tribunal has not properly appreciated the fact that as such, the petitioner was claiming the status of regular “mazdoor” for her husband as per the scheme and policy framed by the respondents. It is also not in dispute that the juniors to the husband of the petitioner were granted status of regular “mazdoor”. Under the circumstances, learned Tribunal has materially erred in dismissing the Original Application and not granting the relief of the status of regular “mazdoor”. It is also not in dispute that the juniors to the husband of the petitioner were granted status of regular “mazdoor”. Under the circumstances, learned Tribunal has materially erred in dismissing the Original Application and not granting the relief of the status of regular “mazdoor”. So far as submission on behalf of the respondents that the petitioner shall not be entitled to any relief on the ground of delay, laches and/or limitation is concerned, it is required to be noted that as such, learned Tribunal, while allowing Misc.Application NO.115 of 2012, has specifically condoned the delay and the said order has attained finality. Therefore, it is not open for the respondents now to contend that the petitioner is not entitled to any relief on the ground of delay, laches and/or limitation. At the same time, considering decision of the Hon’ble Supreme Court in case of Tarsem Singh (supra), relief can be molded and restricted to last three years from the date of filing of the application before the learned Tribunal, as it can be said to be a case of continuing wrong, causing continuing injury. At the cost of repetition, it is observed that entitlement of conferment of the status of regular “mazdoor” to the deceased employee is not in dispute as on completion of 10 years as a temporary employee, such a temporary employee is required to be conferred the status of regular “mazdoor”. 9. In view of the above and for the reasons stated hereinabove, the petition succeeds in part. Impugned judgment and order passed by the learned Tribunal rejecting Original Application No.123 of 2012 is hereby quashed and set aside. The respondents are directed to consider case of the husband of the petitioner-deceased employee for grant of status of regular “mazdoor” as per the scheme and policy of the respondents and to consider the case from the date on which his juniors were conferred the status of regular “mazdoor”, including all consequential benefits which may be available even to the petitioner being widow of the deceased employee. However, it is directed that the deceased employee shall be entitled to the monetary benefits only for the last three years preceding the date of filing of Original Application before the learned Tribunal. The aforesaid exercise shall be completed within a period of six weeks from the date of receipt of the present order. Rule is made absolute. However, it is directed that the deceased employee shall be entitled to the monetary benefits only for the last three years preceding the date of filing of Original Application before the learned Tribunal. The aforesaid exercise shall be completed within a period of six weeks from the date of receipt of the present order. Rule is made absolute. No order as to costs.