Harshaben Madhusudan Jani vs State Of Gujarat
2021 Latest Caselaw 6832 Guj

     C/SCA/15549/2018                                 JUDGMENT DATED: 24/06/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15549 of 2018
                                  With
    CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2020
            In R/SPECIAL CIVIL APPLICATION NO. 15549 of 2018
                                  With
    CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 2 of 2020
            In R/SPECIAL CIVIL APPLICATION NO. 15549 of 2018

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                                 Sd/­

=============================================

1     Whether Reporters of Local Papers may be allowed to see              NO
      the judgment ?

2     To be referred to the Reporter or not ?                              NO

3     Whether their Lordships wish to see the fair copy of the             NO
      judgment ?

4     Whether this case involves a substantial question of law as          NO
      to the interpretation of the Constitution of India or any
      order made thereunder ?

=============================================
                        HARSHABEN MADHUSUDAN JANI
                                    Versus
                         STATE OF GUJARAT & 3 other(s)
=============================================
Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MR. ROHAN SHAH, AGP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3,4
=============================================

    CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 24/06/2021

                               ORAL JUDGMENT

1. RULE. Learned Assistant Government Pleader waives service of rule on

C/SCA/15549/2018 JUDGMENT DATED: 24/06/2021

behalf of the respondent­state.

2. This petition is filed under Article­226 of the Constitution of India seeking direction to set aside the Communication dated 31­08­2018 to direct the respondents to release of benefit of General Provident Fund as per the Government Resolution dated 17­10­1988.

3. The dispute essentially that the petitioner has been given the benefit of the Government Resolution dated 17­10­1988, but not giving any continuity of service, despite the order of the Labour Court in her favour which was confirmed till the Supreme Court. The dispute therefore, revolves whether to treat the petitioner to be in service with continuity or from the date on which the petitioner was reinstated.

4. The facts are that the petitioner was initially appointed as Daily Wager on 21st September, 1983, while the petitioner was on maternity leave, her services were terminated and was not permitted to resume. The petitioner filed Special Civil Application No. 9740 of 1993 against the order of termination which came to be disposed of relegating the petitioner to the alternative remedy before the Labour Court and hence Reference Case No.679 of 1997 was filed before the Labour Court, Ahmedabad, which was partly allowed on 21 st July, 2006 directing the reinstatement of the petitioner but back wages were not granted.

5. The respondent - State filed Special Civil Application No.14089 of 2007 challenging the order of the Labour Court. Special Civil Application was dismissed on 13­06­2007 confirms the order of the Labour Court. The respondent filed Special Leave Petition (Civil) No.2306 of 2008 before the Apex Court, which also came to be dismissed by order dated 3 rd November, 2008.

6. The petitioner was reinstated with effect from 1 st August, 2006 after decision of the Apex Court. It appears that though the petitioner had joined service on 21st September, 1983 and the petitioner was entitled to the benefit under Government Resolution dated 17­10­1988 after

C/SCA/15549/2018 JUDGMENT DATED: 24/06/2021

completion of 5 years of service and 10 years of service respectively. The respondent have committed an error in treating initially date of appointment of the petitioner on 1 st August, 2006 for considering the petitioner as entitled to the benefit of Government Resolution dated 17­ 10­1988.

7. Reliance is placed upon the decision of this court in case of Tribhovanbhai Jerambhai v/s. Dy. Executive Engineer, Sub­Division, R & B Deptt. & Anr. reported in 1998 (2) GLH 1, to contend that the issue for treating the initial date of appointment for the purpose of benefit in case of Ad­hoc employee was decided in favour of the employee and date of his initial appointment was directed to be treated as date relevant for the purpose of benefit and entire services to be treated as continuity.

8. Learned Advocate for the petitioner has also relied upon the decision of this Court in case of very petitioner where Special Civil Application filed by the respondent - Department came to be rejected and at that time, the Court had held that the reinstatement of the petitioner though without back wages is to be treated with continuity in service.

9. Learned Advocate has drawn attention of this Court to the decision of the Apex Court that unless the continuity in service is not specifically continued then in reinstatement in the service has to be treated to be with the continuity.

10. Learned AGP has opposed to the petition by submitting that the Labour Court while passing the order is not specifically directed the continuity in service. Therefore, the same cannot be presumed. It is also submitted that mere use of word "continuity" in the decision of the High Court while rejecting the petition of the Department can also not confer the continuity as the High Court had, at that stage, not dealt with issue with regard to the grant of continuity. The Court had only examined the correctness of the decision of the award of the Labour Court and directed the reinstatement without back wages. It is also submitted that

C/SCA/15549/2018 JUDGMENT DATED: 24/06/2021

by treating the petitioner as continuity in service without there being will require examination of record whether the petitioner can be treated as actual service and whether her services during this period could be treated to be non­compliance with Section­25F of the Industrial Disputes Act.

11. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the facts which are undisputed that the petitioner was to be reinstated without back wages by the award of the Labour Court, which was not disturbed by this Court in the petition as well as by the Apex Court. Therefore, the petitioner was reinstated. The impugned Communication dated 31­08­ 2018 was pertaining to the availability of the benefit of GPF to the petitioner as the petitioner was treated to be reinstated on 21­07­2006 and therefore, after the cut of date 01­04­2005 to be eligible for the General Provident Fund scheme. The request of the petitioner to open GPF account was therefore, rejected.

12. The award of the Labour Court dated 21­07­2006, operative portion reads as under:

: ORDER:

(1) Applicant's reference number­679/1997 is partly allowed. (2) The applicant is ordered to be reinstated at her original post in the respondent institution without back wages.

(3) There is no order as to cost.

(4) The award is to be implemented within 30 days of its publication.

13. This award is the subject matter of challenge by the respondent - State in Special Civil Application No.14089 of 2007, wherein the relevant observation made by this Court in para­11, which reads as under:

"11. The Labour Court has considered that the termination order is bad and violative of section 25F of the ID Act, 1947 and thereafter, considered aspect of back wages, whether the workman is entitled for back wages for interim period or not. Considering the delay in raising of an industrial dispute on the part of the workman, once matter has been filed by respondent before this court, labour court has not granted any amount of back wages and granted only reinstatement

C/SCA/15549/2018 JUDGMENT DATED: 24/06/2021

with continuity of service without back wages for interim period. Aforesaid observations have been made by this court after perusing the award passed by labour court and considering the submissions made by the learned AGP Mr. Shukla, therefore, according to my opinion, respondent has completed 240 days continuous service in a year by leading evidence and that evidence of the workman was not controverted by the other side namely petitioner by producing documentary evidence contrary to the evidence of workman and therefore, labour court was right in drawing an adverse inference against the petitioner that if it would have been produced by the petitioner, it would have gone against the petitioner and, that is why, it has not been produced by petitioner from its custody. According to my opinion, in the facts and circumstances of this case, labour court has not committed any error in doing so. Labour court was right in coming to the conclusion that the termination of workman was violative of section 25F of the ID Act, 1947 and, therefore, it void ab initio."

14. The Apex Court by order dated 03­11­2018 had dismissed the Special Leave Petition filed by the respondent. The Apex Court in case of Nandkishore Shravan Ahirrao v/s. Kosan Industries (P) Ltd., reported in 2020 LLR 813, the Apex Court in Para­7 held as under:

"7. Ex facie, the Labour Court having awarded reinstatement to the appellant, continuity of service would follow as a matter of law. The award of the Labour Court dated 27 February 2008 does not specifically deny continuity of service. Hence the observation of the High Court to the effect that the Labour Court had denied continuity of service is erroneous and would accordingly stand corrected in terms of what has been observed herein­above. The appellant would be entitled to continuity of service."

15. The Apex Court in case of Gurpreet Singh vs State Of Punjab reported in 2002 (92) FLR 838, the Apex Court in para­2, held as under:

"2. 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

C/SCA/15549/2018 JUDGMENT DATED: 24/06/2021

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."

16. The position of law is therefore, clear that as the petitioner has been reinstated in her original service without back wages, the continuity will have to be awarded.

17. In view of the aforesaid, the petitioner has to be given continuity from the date of her original appointment as Daily Wager on 21 st September, 1983 and as she has been appointed prior to the cut of date of 01­04­ 2005 making her entitlement to benefit of GPF, the impugned order dated 31­08­2018, is ordered to be set aside. The present petition deals with only with the prayer of the petitioner to treat the petitioner to be in service with continuity for the purpose of benefit for GPF only. The petition stands allowed to the aforesaid extent. Rule is made absolute with no order as to costs.

18. In view of the order passed in the main matter, the Civil Applications do not survive and stand disposed of accordingly.

Direct service is permitted.

Sd/­ (A.Y. KOGJE, J) PARESH SOMPURA