IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4987 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- BHAVNAGAR MUNICIPAL CORPORATION Versus BATUK KESHAVBHAI MAKWANA -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4987 of 2001 MR HS MUNSHAW for Petitioner No. 1 MR GK RATHOD for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 17/04/2003 ORAL JUDGEMENT #. By filing this petition, the petitioner - Corporation has challenged the award passed by the Industrial Tribunal, Bhavnagar dated 28.11.1999 by which the Tribunal has allowed the reference of the workman and it is ordered that the workman - Batuk Keshavbhai Makwana should be treated to have been confirmed as Clerk on completion of 240 days from 1.7.1989. It is also ordered by the Tribunal that the said workman should be given the benefit of pay and all other consequential benefits and arrears of such salary etc. to be paid in cash from 1.1.1998 and so far as the period after completing 240 days from 1.7.1989 upto 31.12.1997 is concerned, for the said period, the concerned workman will be given notional benefit of pay etc. #. Mr.Munshaw submitted that the Tribunal should not have issued such directions, as, by the impugned award, the respondent workman has been given the benefit of confirmation of Clerk even from the date earlier than the reference date. He submitted that for the earlier period, the workman was serving as the Sweeper and not as a Clerk, and, therefore, no benefit of confirmation can be given from completing 240 days from 1.7.1989 and at the most the said benefit can be availed only from the date of making the reference and not from the earlier period. In this behalf, he has relied upon the decision of this Court rendered in Letters Patent Appeal No.1753 of 1999 and other cognate matters, wherein it is observed as under.: "The Tribunal has not at all considered this aspect and has merely stated that benefit shall stand extended on completion of 180 days of work in a year. The Tribunal ought to have seen that the benefit can be extended from the date of demand only. In a given case, the benefit may not be extended as prayed for. In the instant case, it appears that some of the workmen are claiming from 1983, 1984, 1986, 1988, 1989 and onwards. If they were entitled to get the benefit, they ought to have moved the appropriate forum in time. However, it would be just and proper, in our opinion, to grant benefit from the date of demand and not earlier. The award shall stand modified accordingly. Appeals stand allowed. Mr.Patel, for respondents, was not able to point out as to how demand can be granted from the date earlier than the demand. 3. Mr.Lakhani appearing for the appellants submitted that the benefits which are required to be extended to the respondents-workmen shall be extended within a reasonable period, viz. a period of six weeks from today." #. Mr.Munshaw also submitted that, at the relevant time, there was no vacancy even in the cadre of Sweeper and the concerned workman was working as the daily rated sweeper. On behalf of the concerned workman, it is stated that he is agreeable to get the benefit of such confirmation on the post of Clerk with effect from 1.1.2001 and he is ready to forgo the prayer for confirmation from the earlier date, which is granted by the Tribunal. Copy of the letter addressed by the concerned workman is also given to Mr.Munshaw, who is appearing for the Corporation. In my view, the suggestion of the concerned workman is reasonable, as, he is willing to give up his demand for confirmation from the date of making the reference and he is agreed to accept the said benefit of confirmation as Clerk from 1.1.2001. Mr.Munshaw submitted that, in principle, this suggestion cannot be said to be unreasonable or against the interest of the Corporation. #. Considering the facts and circumstances of the case, therefore, following order is passed. The award of the Tribunal is modified to the extent that the Corporation is directed to give the benefit of confirmation to the concerned workman, i.e. confirmation as Junior Clerk in the Corporation with effect from 1.1.2001. The Corporation is also directed to give the benefit to the said workman on the basis of the said aspect, i.e. having been treated to have been confirmed from 1.1.2001 and whatever benefit which is required to be paid to the concerned workman, the same should be made available within a period of six weeks from today. #. Rule is partly made absolute with no order as to costs. Writ to be sent forthwith. (P.B.Majmudar,J) (pathan)