Gujarat High Court
Bhagvanjibhai Premjibhai ... vs Deputy Executive Engineer on 5 August, 2021
Bench: A.S. Supehia
C/SCA/5222/2020 ORDER DATED: 05/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5222 of 2020
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BHAGVANJIBHAI PREMJIBHAI SANKHAVARA
Versus
DEPUTY EXECUTIVE ENGINEER
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Appearance:
MR BHAVIN H ANADKAT(6009) for the Petitioner(s) No. 1
MR YOGEN N PANDYA(5766) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 05/08/2021
ORAL ORDER
Rule. Learned AGP waives service of notice of rule for the respondent-
State.
1. The present writ petition has been filed seeking the following prayers:-
"8(A). Your Lordships may be pleased to issue a writ in nature of mandamus/
certiorary and/or any other appropriate writ, order or direction quashing and
setting aside the impugned order dated 24.10.2019 passed by the learned
Presiding Officer, Labour Court No.1, Jamnagar, in Reference (LCJ) Case
No.55 of 2016 being illegal, unjust, arbitrary and against the provisions of
law qua the backwages and continuity of service;
(B) Your Lordships may be pleased to direct the respondents to pay the full
backwages to the petitioner with continuity of service."
2. Learned advocate Mr.Yogen Pandya appearing for the petitioner has
submitted that in fact while passing the award dated 24.10.2019, the Labour
Court has committed an error in issuing final direction to the effect that the
petitioner shall be reinstated without any back wages and without continuity of
service in terms of the award dated 18.08.2018 passed in Reference (LCJ)
Nos.96/2008 to 99/2008, 78/2009, 79/2009, 81/2009 and 82/2009, since the
award on which the reliance is placed dated 18.08.2018, no such directions are
issued therein. He has submitted that once the termination of the petitioner has
been found to be illegal and he is directed to be reinstated in service, the
C/SCA/5222/2020 ORDER DATED: 05/08/2021
continuity of service would follow as a necessary corollary. He has submitted
that once the Labour Court has passed the award in terms of the award dated
18.08.2018, Reference (LCJ) No.96/2008 and allied references, the same
directions are required to be issued. He has submitted that in fact in the award
dated 18.08.2018, the Labour Court has directed the respondent authorities to
reinstate the workman on his original post. He has submitted that the
reinstatement would definitely mean the same would carry continuity of service
as per the decision of the Supreme Court in the case of Gurpreet Singh vs State
Of Punjab And Ors, (2002) 9 SCC 492. Thus, he has submitted that the
impugned award may be modified accordingly.
3. In response to the aforesaid submission, learned AGP for the respondent
authorities has submitted that the impugned award may not be modified since
the petitioner is required to be reinstated without continuity of service and
without back wages.
4. I have heard the learned advocates appearing for the respective parties.
5. By the impugned award, the Presiding Officer, while placing reliance on
the award dated 18.08.2018 passed in Reference (LCJ) Case No.96/2008 and
allied references has directed the respondent authorities to reinstate the
petitioner in service without back wages and without continuity of service. It is
specifically observed by the Labour Court that the said reference is passed in
the same terms as the award dated 18.08.2018 passed in Reference (LCJ) Case
No.96/2008, however, a perusal of the award dated 18.08.2018 distinctly
reveals that the Labour Court has directed the respondent authorities to
reinstate the workman on his original post without back wages. Thus, the
Labour Court while passing the impugned award in terms of the award dated
18.08.2018 passed in Reference (LCJ) Case No.96/2008 has misdirected itself
as the Labour Court in the said award has not anywhere directed that the
workman is to be reinstated without back wages and continuity of service.
6. Thus, the impugned award appears to have been passed being ignorant
C/SCA/5222/2020 ORDER DATED: 05/08/2021
of the actual directions issued in the award dated 18.08.2018 in Reference
(LCJ) No.96/2008 and allied reference and hence, the award has to be modified
accordingly. At this stage, it would be apposite to refer to the decision of the
Supreme Court in the case of Gurpreet Singh (supra), wherein it has been
observed thus:-
"3. Having heard the learned counsel for the parties and on examining
the materials on record, we fail to understand how the continuity of
service could be denied once the plaintiff is directed to be reinstated in
service on setting aside the order of termination. It is not a case of fresh
appointment, but it is a case of reinstatement. That being the position,
direction of the High Court that the plaintiff will not get continuity of
service cannot be sustained and we set aside the part of the impugned
order. So far as the arrears of salary is concerned, we see no infirmity
with the direction which was given by the lower appellate court taking
into account the facts and circumstances including the fact that the suit
was filed after a considerable length of time. That part of the decree
denying the arrears of salary stands affirmed and this appeal stands
allowed in part to the extent indicated above.
7. Thus, the Supreme Court has enunciated that the continuity of service
cannot be denied to the workman if he is directed to be reinstated in service on
setting aside the order of termination.
8. Thus, in light of the aforesaid judgment of the Apex Court, the
respondents are directed to reinstate the petitioner on his original post with
continuity of service without back wages. The impugned award dated
24.10.2019 passed in Reference (LCJ) No.55 of 2016 is modified to the extent
that the workman shall be reinstated with continuity of service, but without
back wages.
9. The present writ petition is allowed. Rule is made absolute to the
aforesaid extent.
(A. S. SUPEHIA, J)
ABHISHEK
