SCA/7281/1999 of PARSHOTTAMBHAI NATHALAL PATEL Vs DIVISIONAL CONTROLLER on 15 December 1999

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 madJJJJJ

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5. Whether it is to be circulated to the Civil Judge? : NO

Nos. 1 to 5 No

-------------------------------------------------------------- PARSHOTTAMBHAI NATHALAL PATEL

Versus DIVISIONAL CONTROLLER

-------------------------------------------------------------- Appearance: MR BG JANI for Petitioner MR KM PARIKH for Respondent No. 1

RULE SERVED for Respondent No. 2

-------------------------------------------------------------- CORAM : MR.JUSTICE M.C.PATEL

Date of decision: 16/12/1999

ORAL JUDGEMENT

Heard learned Advocate for the parties. With their consent the petition is finally disposed of today.

The petitioner was employed as a conductor in the service of the respondent corporation. He was dismissed from the service in departmental proceedings. The Labour Court by its judgment and award dated 5.11.1997 set aside the punishment of dismissal and ordered the petitioner to be reinstated on his original post but as a fresh appointee without backwages. The the petitioner has challenged the said award contending that he ought to have been reinstated in service with continuity of service and not as fresh appointee. The learned Advocate for the petitioner states that he does not press the challenge to the award. The respondent corporation in compliance with the said award has reinstated the said petitioner but the grievance of the petitioner is that he has been appointed as a daily wager while he is entitled to be appointed as confirmed employee. It is contended on behalf of the respondent that since the petitioner was initially appointed as daily wage conductor he was required to be appointed as daily wage conductor on his reinstatement. The learned Advocate for the petitioner relies on the order dated 16.4.1999 made by R.M.Doshit,J in Special Civil Application No.5050 of 1998 in which it was held that the reinstatement on original post necessarily means that the delinquent should be reinstated in the same post as he was holding on the date of dismissal from service and in that case since the petitioner was a confirmed employee of the corporation on the date of dismissal from service, he was ordered to be reinstated as confirmed conductor. In the present case also it is not in dispute that on the date of dismissal from service the petitioner was a confirmed employee of the corporation. He is therefore entitled to be reinstated in service as confirmed conductor but since the Labour Court directed him to be reinstated as a fresh appointee it means that his appointment as confirmed conductor will be a fresh appointment without continuity of service. The corporation shall issue necessary corrigendum to the impugned order within a period of six weeks. The corporation shall also pay difference of salary to the petitioner within a period of four weeks thereafter. Rule made absolute to the aforesaid extenly only. No order as to costs.

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m.m.bhatt