Gujarat High Court
Amrutben Govindbhai Parmar vs State Of Gujarat on 20 January, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18006 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
Yes
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AMRUTBEN GOVINDBHAI PARMAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR NILESH M SHAH(780) for the Petitioner(s) No. 1
MR SANJAY UDHWANI ASSISTANT GOVERNMENT PLEADER for
the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
SERVED BY RPAD (N) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 20/01/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Nilesh M. Shah appearing for the petitioner and learned Assistant Government Pleader Mr. Sanjay Udhwani appearing for the respondent - State.
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2. With the consent of learned advocates appearing for the respective parties, the matter was taken up for final hearing. Hence, RULE. Learned Assistant Government Pleader Mr. Sanjay Udhwani waives the service of rule on behalf of the respondent - State.
3. By way of this petition, the petitioner has prayed for quashing and setting aside the impugned order dated 2.5.2012 passed by the respondent No.2 to the extent of not granting benefits of G.R. dated 17.10.1988 with effect from 1.10.1988 notionally with revised pay scale up to 8.1.2007 and has further prayed for a direction to the respondents to give difference of salary with revised pay scale from 9.1.2007 to 28.2.2022.
4. The petitioner has further prayed for quashing and setting aside the order dated 9.10.2023 passed by Executive Engineer, Road and Building Department, Surendranagar whereby the petitioners written representation was rejected.
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5. Brief facts of the petition as stated by learned advocate Mr. Shah can be summarized as under :-
5.1 The petitioner was employed by respondent No.3 as a daily wager labourer since 1979 and according to the petitioner, since then, she was working continuously. The service of the petitioner along with a co-employee was orally terminated by the respondent No.3 from 1.1.1991 which was subject matter of challenge by way of Reference (LCS) No. 82 of 2001 whereby the Labour Court, Surendranagar vide award dated 8.1.2007 partly allowed the reference and directed respondents No.2 and 3 to reinstate the petitioner and co-employee to the original post without back wages. Against the aforesaid award dated 8.1.2007, the respondents No.2 and 3 filed Special Civil Application No.15685 of 2007 which was dismissed by this Court vide order dated 3.8.2007. Pursuant thereto ultimately the petitioner was reinstated on 5.1.2009 vide order dated 31.12.2008. Thereafter, the petitioner Page 3 of 14 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025 NEUTRAL CITATION C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025 undefined remained in service and ultimately, retired on 28.2.2022 on account of superannuation. However, the petitioner was though granted the benefits of Government Resolution dated 17.10.1988, the same was granted only with effect from 17.1.2012, considering the petitioner's date of appointment as 18.1.2007 and the past services of the petitioner was not considered by the respondents for granting him benefits of Government Resolution dated 17.10.1988 and now, upon superannuation, for computing retiral benefits and that is how the petition is preferred.
6. Upon retirement, the petitioner was handed over a cheque of Rs.1,90,523/- only, towards gratuity for 15 years and despite the petitioner's correspondence with the respondents except for an amount of Rs.2,30,480/- paid by the respondents towards leave encasement, no other amounts were paid to the petitioner despite the petitioner's claiming her entitlement over the Page 4 of 14 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025 NEUTRAL CITATION C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025 undefined same by counting her service from 1.10.1988 and as the same was not considered and the same would wipe out the petitioner's past service prior to her reinstatement, the present petition is preferred.
7. Learned advocate Mr. Nilesh M. Shah appearing for the petitioner submitted that the identically situated co-employee viz. Champaben Ukabhai Parmar preferred a petition being Special Civil Application No. 10343 of 2020 before this Court claiming similar benefits and the said petition was allowed by the Co-ordinate Bench vide order dated 15.9.2022 and therefore, as the aforesaid order dated 15.9.2022 has become final in respect of co-employee and the same has been complied with in respect of co-
employee, the petitioner is also required to be granted similar benefits.
8. Learned Assistant Government Pleader Mr. Sanjay Udhwani appearing for the respondent - State though vehemently opposed the petition could not Page 5 of 14 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025 NEUTRAL CITATION C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025 undefined point out from the record that the order dated 15.9.2022 has not become final which is passed in respect of co-employee viz. Champaben Ukabhai Parmar in Special Civil Application No. 10343 of 2020 or that there is any decision by this Court or the Hon'ble Apex Court which would support the case of the respondents that the respondents action of wiping out petitioner's past service before reinstatement has rightly not been taken into consideration while computing petitioners retiral benefits.
9. From the record, learned Assistant Government Pleader Mr. Sanjay Udhwani also could not dispute the fact that the petitioner's claim about pensionery benefits and recognition of past service is not covered by the decision of Champaben Upabhai Parmar (Supra) who happens to be the co-employee of the petitioner. Though learned Assistant Government Pleader Mr. Sanjay Udhwani heavily relied on the affidavit-in-reply filed by the respondents, the same could not point out anything contrary, which may compel Page 6 of 14 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025 NEUTRAL CITATION C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025 undefined the Court to take a different view.
10. In the above background I have considered the submissions made by learned advocates appearing for the respective parties. On perusal of decision of co-employee viz. Champaben Ukabhai Parmar (Supra) dated 15.9.2022, I have found that in case of co-employee Champaben Ukabhai Parmar, even a contention of delay also was raised. However, the Co-ordinate Bench of this Court by relying upon the decision of this Court in Special Civil Application No. 389 of 2020 dated 14.2.2022 allowed the petition. In the above decision, the Co-ordinate Bench of this Court observed as under from paragraph Nos.
6 and 7 as under :-
"6. Considering the decision of this court in Special Civil Application No. 389 of 2020 dated 14.02.2022 wherein this court has held as under, the petition deserves to be allowed:
"3. In this petition under Article 226 of the Constitution of India, the prayer of the petitioner is to direct the respondents to grant the benefits of the resolution dated 17.10.1988 to the petitioner from initial date of joining considering the fact that by virtue of Page 7 of 14 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025 NEUTRAL CITATION C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025 undefined the award of the Labour Court dated 29.08.2009, reinstatement was granted with continuity of service, in the award made though not have specifically mentioned the word "continuity".
4. Mr.P.C.Chaudhary learned counsel for the petitioner would draw the attention of this court to a decision rendered by the coordinate bench of this Court in Special Civil Application Nos.13095 of 2016 and 2192 of 2017, wherein considering several decisions of this Court including the decision of the Supreme Court, the Court in Special Civil Application Nos.13095 of 2016 held as under:
"5. In Vasantika R. Dalia Vs. Baroda Municipal Corporation [1998(2) LLJ 172], this Court was posed to interpret the judgment and award of the Labour Court which granted the relief of reinstatement to the workmen. The relief of backwages was denied and the relief of continuity of service was not denied specifically and that in the relief of reinstatement granted, the word 'continuity' was not mentioned.
5.1 The Court observed to lay down that "It may be straightaway observed that once the relief of reinstatement is granted, the continuity of service is a direct consequence rather inherent in the relief of this nature". It was held that when the relief of reinstatement was granted and the continuity of service was not specifically denied, the workman has to be relegated to the same position as was held by it at the time of termination. When the order of Page 8 of 14 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025 NEUTRAL CITATION C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025 undefined termination was found to be void, the petitioner, it was held, would be entitled to hold the relief of reinstatement with continuity where there was no mention of specific denial to such continuity.
5.2 The Supreme Court in Gurpreet Singh Vs. State of Punjab and others [2002 (92) FLR 838], held that once the plaintiff was directed to be reinstated in service upon setting aside of the order of termination, continuity of service could not be denied. The Court observed that the case was not of fresh appointment but it was one of reinstatement and that being the position, it was observed that the High Court was in error in denying the continuity of service.
6. Thus and therefore, even though the judgment and award of the Labour Court had not expressly granted the continuity, at the same time it did not deny the continuity in any expressed terms. The grant of continuity would have to be read with the order of reinstatement. The petitioner would be entitled to be treated continuous in service upon reinstatement. Resultantly, the petitioner would be entitled to be granted the benefits of resolution dated 17.10.1988 accordingly by reckoning his services C/SCA/13095/2016 ORDER the Supreme Court in Gurpreet Singh (supra), the concept of continuity could not be distinguished for the purpose of granting any other service benefits. Learned Assistant Government Pleader made a failed attempt to submit that the continuity for the purpose of Page 9 of 14 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025 NEUTRAL CITATION C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025 undefined granting benefits under resolution dated 17.10.1988 may be treated differently. Any such distinction would be artificial distinction. once the labour court granted the reinstatement and the continuity was not expressly denied, the continuity benefit could be said to be deemed to have been granted and by deeming fiction the services of the petitioners should have to be treated as continuous upon their reinstatement.
6.2 Not only that the averments in the petition remained undisputed that other similarly situated employees shri Pravinbhai Madhavbhai, shri Manubhai Govindbhai and shri Maheboob Husainbhai in whose favour also there was judgment and award of the labour court in similar way, they were shown to have extended the benefits of resolution dated 17.10.1988 by passing order dated 29.5.2009 by the authorities. The petitioners are liable to be treated with parity for the purpose of extension of benefits in question. 6.3 The petitioners cannot be treated differently once the similarly placed employees were extended the benefits of resolution dated 17.10.1988 by considering their services as continuous after the reinstatement is effected pursuant to labour court's judgment and award. In the above view, the denial of continuity of service to the petitioner would stand only for breach of Article 14 of the Constitution.
7. As a result of the above discussion, the petition deserves to be allowed. The respondents are Page 10 of 14 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025 NEUTRAL CITATION C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025 undefined directed to confer and grant the benefits to the petitioner under resolution dated 17.10.1988 of the State Government by reckoning the services of the petitioner from the initial date of his joining and depending upon the completion of requisite number of years to confer the corresponding benefits under the said resolution. The services of the petitioner shall be treated as continuous with effect from the initiate date of joining till the date of reinstatement and notional benefits would be calculated and granted for the period from the date of reinstatement onwards. The arrears which may arise and become payable by virtue of this order from onwards the date of reinstatement shall be paid by the authorities to the petitioner within a period of ten weeks from the date of receipt of the present order."
5. In the latter decision of the Division Bench of this Court in case of Secretary v. Rajendrasinh Hamirsinh Parmar rendered in LPA No.1527 of 2019 relying on the decision of the Supreme Court in case of Nandkishore Shravan Ahirrao v. Kosan Industries Private Limited [2020 LLR 813] confirmed the decision of the learned Single Judge.
6. Accordingly, the petition is allowed. The respondents are directed to confer and grant the benefits to the petitioner under resolution dated 17.10.1988 of the State Government by reckoning the services of the petitioner from the initial date of his joining and depending upon the completion of requisite number of years to confer the Page 11 of 14 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025 NEUTRAL CITATION C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025 undefined corresponding benefits under the said resolution. The services of the petitioner shall be treated as continuous with effect from the initial date of joining till the date of reinstatement and notional benefits would be calculated and granted for the period from the date of reinstatement onwards. The arrears which may arise and become payable by virtue of this order from onwards the date of reinstatement shall be paid by the authorities to the petitioner within a period of ten weeks from the date of receipt of the present order.
7. The petition is allowed in the aforesaid terms. Rule is made absolute accordingly."
7. Accordingly, the petition is allowed. The respondents are directed to confer and grant the benefits to the petitioner under resolution dated 17.10.1988 of the State Government by reckoning the services of the petitioner from the initial date of his joining and depending upon the completion of requisite number of years to confer the corresponding benefits under the said resolution. The services of the petitioner shall be treated as continuous with effect from the initial date of joining till the date of reinstatement and notional benefits and pensionary benefits would be calculated and granted for the period from the date of reinstatement onwards. The arrears which may arise and become payable by virtue of this order from the date of reinstatement shall be paid by the authorities to the petitioner within a period of ten weeks from the date of receipt of the present order"
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11. In view of the fact that it could not be pointed out from the record that the case of the petitioner is not identical to that of Champaben Ukabhai Parmar (Supra) or that the aforesaid decision in case of Champaben Ukabhai Parmar (Supra) does not cover the issue which the petitioner has agitated before this Court, I have no option but to follow the decision in case of Champaben Ukabhai Parmar (Supra) whereby in similar facts of the case, the Co-ordinate Bench of this Court had directed the respondents to recognize the services of the petitioner from her initial date of joining and upon completion of requisite number of years to confer the corresponding benefits of Government Resolution dated 17.10.1988. Accordingly, present petition is allowed. Respondents are directed consider the petitioners initial date of joining with effect from 1.10.1988, to confer the benefits to the petitioner with effect from 1.10.1988 and to recalculate the petitioner's entitlement of salary and accordingly, refix the salary and pay Page 13 of 14 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025 NEUTRAL CITATION C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025 undefined the retiral benefits to the petitioner and to revive the consequential benefits as per the entitlement of the petitioner as early as possible but in any case not later than twelve weeks from the date of receipt of the order.
Such benefits would be granted to the petitioner notionally and in case if, the benefits are not passed on to the petitioner within a period of twelve weeks from the receipt of the order, the same shall incur an interest at the rate of 6% per annuam.
12. With the aforesaid observations and direction, petition is allowed. Rule made absolute. No order as to costs.
(NIRZAR S. DESAI,J) Pallavi Page 14 of 14 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025