Executive Engineer, Roads And ... vs Mahendra P Trivedi
2021 Latest Caselaw 9873 Guj

      C/SCA/9624/2021                                 ORDER DATED: 29/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 9624 of 2021

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           EXECUTIVE ENGINEER, ROADS AND BLDG. DIVISION
                             Versus
                       MAHENDRA P TRIVEDI
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 29/07/2021

                                 ORAL ORDER

1. The present writ petition has been filed seeking a direction for quashing and setting aside the order dated 15.07.2019 passed by the Industrial Tribunal, Jamnagar in Reference [IT] No.63 of 2016, directing the petitioners to grant the benefits flowing from Government Resolution dated 17.10.1988 issued by the Roads and Building Department of the Government of Gujarat.

2. Learned advocate for the petitioner employers has submitted that the workman-Govindbhai Haribhai Solanki had not actually worked between 1989 and 2006 and he attained the age of superannuation on completion of 60 years in the year 2009 and thus, he had hardly worked for 3 years is not entitled to get the benefit of Government Resolution dated 17.10.1988. Another workman-Javalben Palaben Kantaria was reinstated in the year 2006 pursuant to the order of this Court and retired on 17.01.2016 on attaining the age of superannuation and she had put only 9 years and therefore

C/SCA/9624/2021 ORDER DATED: 29/07/2021

she would not be entitled to the benefit of above Government Resolution.

3. Learned advocate Mr. Munshaw for the petitioners has submitted that the respondent was offered work as a daily wager - Watchman at the Rest House situated at Jam Kalyanpur in the month of March, 1988 without following due procedure of recruitment purely on temporary and ad hoc basis depending upon the availability of work and fund.

3.1 It is further submitted that the respondent herein approached Labour Court at Jamnagar, by way of filing Reference (LCJ) No.20 of 2001 praying for reinstatement with continuity and back wages but the same was dismissed on 28.02.2008. It is stated that the said award was challenged by way of filing Special Civil Application No.5721 of 2011 after more than 3 years before this Court. It is submitted that this Court allowed Special Civil Application No.5721 of 2011 vide a judgment dated 6/7.09.2011 and directed to reinstate the respondent with continuity of service as well as 25% back wages, pursuant to which the respondent was reinstated on 09.03.2012 as daily wage Watchman in accordance with the Judgment. It is submitted that, therefore, under no circumstances such period can be counted for grant of benefit flowing from Government Resolution dated 17.10.1988 issued by Government of Gujarat, through its Roads and Building Department.

3.2 It is further submitted that even otherwise it is well settled law that actual working of 240 days per year is required for counting number of working year for the benefit flowing

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from G.R. dated 17.10.1988 issued by Government of Gujarat, through its Roads and Building Department. Reliance is placed upon the judgment of the Supreme Court in the case of State of Gujarat Vs. Public Works Department and Forest Employees Union & Ors; (2019) 15 SCC 248. Thus, it is submitted that the respondent workman was terminated from the service.

4. The petitioners have contended that since the respondent workman had not actually worked and not completed 240 days, he would not be entitled for the benefits of the Government Resolution dated 17.10.1988 as per the judgment of the Supreme Court referred to in the case of PWD Employees (Supra). The Court has also examined the award of the Labour Court and the judgment of the Supreme Court in case of PWD Employees (supra) is also perused. The Supreme Court, in the aforenoted case, after threadbare examination of the Government Resolution dated 17.10.1988, has prescribed its implementation in the case of workmen, who have rendered 5, 10, 15 years of service. In the present case, the workman would be entitled to the benefits of Government Resolution dated 17.10.1988 since he was kept out of employment due to illegal termination. A threadbare perusal of the judgment of the Supreme Court reveals that the Supreme Court has not actually dealt with the issue which is raised in the present petition. At this stage, it would be apposite to refer to the order of 27.03.2018 passed in Letters Patent Appeal No.553 of 2017. While dealing with the identical facts, the Division Bench has held thus:

"However, according to learned advocate for the employer who argued the case before learned Single Judge, workman- Govindbhai Haribhai Solanki had not actually worked between

C/SCA/9624/2021 ORDER DATED: 29/07/2021

1989 and 2006 and attained the age of superannuation on completion of 60 years in the year 2009 and thus, he had hardly worked for 3 years and not entitled to get the benefit of Government Resolution dated 17.10.1988. Another workman- Javalben Palaben Kantaria, she was reinstated in the year 2006 pursuant to the order of this Court and retired on 17.1.2016 on attaining the age of superannuation and had put only 9 years and therefore she also would not be entitled to the benefit of above Government Resolution. Various other contentions were raised based on the scheme of Government Resolution dated 17.10.1988 that it was a policy decision and a self-contained mechanism worked out to grant certain benefits to daily rated/causal workers and cannot have any nexus with provisions of Industrial Dispute Act. However, learned Single Judge based on decision of the Apex Court to which reference was made in para 7 of the judgement and material on record as emerged in the writ petition and interpretation put forth of Government Resolution dated 17.10.1988 in all such cases, the significance of expression "continuity of service" was considered and ultimately held that if the contention of learned advocate for the employer about actual length of service rendered by the workman is considered provisions contained in Government Resolution as well as Section 25B of I.D.Act, 1947 referred to therein will be nugatory. At the same time benefits awarded by the Labour Court of Government Resolution dated 17.10.1988 to the workman was modified and held that the workman would be entitled to the benefits under Government Resolution dated 17.10.1988 by treating them in continuous service from the initial date of their appointment till the date of superannuation with a rider that for the period for which back-wages were denied to them, workmen would be entitled to receive only notional benefits under G.R. Dated 17.10.1988."

5. In the present case also it is not disputed that vide judgment dated 6/7.09.2011 passed in Special Civil Application

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No.5721 of 2011, this Court has confirmed the order of the Labour Court for reinstatement and continuity of the service and accordingly the respondent No.1 was reinstated with continuity. Because of the illegal termination of the workman, he was forcefully kept out of the service and when he was reinstated with continuity of the service pursuant to the order of this Court, the petitioners cannot contend that he would not be entitled for the benefits of the resolution dated 17.10.1988 as he has not actually worked for 240 days.

6. Thus, the issue is no more res integra. The writ petition accordingly fails and is rejected.

(A. S. SUPEHIA, J) MAYA S. CHAUHAN