IMPORTANT POINT
A petitioner must disclose all material facts; failure to do so can result in dismissal of claims and costs imposed.

JUDGMENT :

M. K. Thakker, J.

1. This petition is filed under Article 226 and 227 of the Constitution of India challenging the judgment and order passed by the learned Presiding Officer, labour Court Mehsana dated 09.08.2024 in Recovery (C-2) Application No 4 of 2014 whereby, the claim of the present petitioner came to be rejected with regard to granting the benefit of regular pay scale from 1985 to 2007.

1.1. It is the case of the present petitioner that opetitioner was appointed as badli worker on daily wage basis on the post of driver from 11.06.1981 and has completed 240 days in each year therefore, respondent-Corporation has started to deduct the Provident Fund from his salary from 16.02.1985. Despite various representations made with regard to granting regular pay scale and the benefit of 5th Pay Commission as well as 6th Pay Commission, those representation went in vain and ultimately, the petitioner retired on attaining the age of superannuation on 30.06.2011. Immediately, thereafter, on 07.12.2011an application was made before the learned Controlling Authority for getting the benefit of gratuity which was withheld by the respondent-Corporation after his superannuation. Learned Controlling Authority, vide order dated 21.06.2012, allowed the application directing the present respondent-Corporation to pay the amount of gratuity, difference of gratuity of Rs.52,257/- at 10% interest which was complied by the present respondent by making payment of amount of gratuity along with interest. Thereafter, application was preferred under section (33-C-2) before learned Presiding Officer, learned Labour Court, Mehsana being Recovery Application No.4 of 2014 claiming certain benefits from the year 1985 to 2007 i.e the period for which he worked as badli work which came to be rejected by the learned Labour Court which is the subject matter of challenge before this Court.

2. Heard learned advocate Mr.Parekh for the petitioner and learned advocate Mr.Hardik Rawal for the respondent.

2.1. Learned advocate Mr.Parekh submits that learned Controlling Authority has considered the service of the present petitioner as a continuous service for the period of 26 years and therefore, the difference of the amount which was ordered to be paid was complied by the present respondent thereby they had accepted the order and thereafter, learned Labour Court has rejected the application under section (33-C-2) disputing the same aspect by holding that petitioner is not entitled for the benefits which are claimed considering the period as continuity of service. Learned advocate Mr.Parekh further submits that his Provident Fund was deducted from the year 1985 and during the cross-examination it is admitted by the witness of the respondent-Corporation that only on completion of 240 days Provident Fund would be deducted, however, learned Labour Court has held contrary and came to the conclusion that petitioner has not completed 180 days therefore, he is not entitled for the benefits which are claimed. Learned advocate Mr.Parekh submits that learned Labour Court has committed error in holding that there was no pre-existing right arising and same was recognized by the Corporation by ignoring the fact that learned Controlling Authority has already held in favour of the present petitioner by counting total period of service as continuity of service and therefore, learned Labour Court has committed error in rejecting the claim of present petitioner. Learned advocate Mr.Parekh submits that as per Clause 20 of the settlement he would be entitled for all the benefits which are claimed on completion of 180 days however learned labour Court without referring the terms of the settlement has dismissed to the application and therefore, same is required to be interfered with and the impugned order is required to be set aside.

2.2. Per Contra learned advocate Mr.Hardik Rawal appearing for the respondent-Corporation has submitted that previously dispute was raised before the learn