Modhwadiya Ramde Jivabhai vs State Of Gujarat
2021 Latest Caselaw 16214 Guj

     C/SCA/15450/2019                             ORDER DATED: 14/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15450 of 2019

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                        MODHWADIYA RAMDE JIVABHAI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MS ASHLESHA M PATEL(6127) for the Petitioner(s) No. 1,2,3
MR RONAK RAWAL, AGP for the Respondent(s) No. 1,2
MR DG CHAUHAN(218) for the Respondent(s) No. 3,5
NOTICE SERVED(4) for the Respondent(s) No. 4
RONAK D CHAUHAN(7709) for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 14/10/2021

                               ORAL ORDER

1. Rule. Learned Assistant Government Pleader waives service of rule on behalf of respondent- State.

2. The petitioners are serving under the respondent- Board. They are praying for the benefit of implementation of Government Resolution dated 17.10.1988 and grant the benefits flowing from the said resolution. The benefits of 6 th Pay Commission and merger of 50% of Dearness Allowance in basic salary is also prayed.

3. All the petitioners were appointed as the daily wagers (Linemen) under the respondent-Board. However, it appears that their services were terminated which was the subject matter of challenge before the Labour Court by filing references. By the different awards, the Labour Court had directed the respondent Board to reinstate the petitioners on

C/SCA/15450/2019 ORDER DATED: 14/10/2021

their original posts. It is not in dispute that such awards have become final and the petitioners are also reinstated in service.

4. Learned advocate appearing for the petitioners has submitted that the issue is squarely covered by the judgment of this Court. One of the recent judgments, on which she has placed reliance passed is by the Division Bench dated 27.08.2021 passed in Civil Application No. 3910 of 2019 in Letters Patent Appeal No. 3522 of 2019.

5. Mr. Munshaw, learned advocate appearing for the respondent-Board has submitted that the case of each of the petitioner is required to be examined whether they are entitled to the benefits of Government Resolution dated 17.10.1988 or not and subsequently the other benefits, such as fixation of pay dearness allowance are required to be confirmed after such verification.

6. I have heard learned advocates appearing for the respective parties. The facts are not in dispute that the petitioners are working under the respondent-Board. After their termination, they are reinstated in service.

7. The Division Bench in the judgement dated 11.07.2018 passed in Letters Patent Appeal No.174 of 2017 (in the case of State Of Gujarat and Ors. vs. Govindbhai Ukabhai Parmar), while examining a similar issue, has observed thus:

"8. The undisputed fact in the present appeal is that the

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respondent-workman was terminated from the service in the Year-1988 and his termination was quashed and set aside by the award dated 12.01.2007. The Labour Court had directed the present appellants to reinstate the present respondent-workman without backwages on his original post, however, no specific reference was made re- garding continuity of service. The Apex Court in the case of Gurpreet Singh (Supra) has specifically observed that once the termination is set-aside, the workman will be en- titled for continuity of service since the same is not fresh appointment, but it is a case of reinstatement. Accord- ingly, the workman was reinstated by the order dated 06.10.2008 on his original post, and thereafter, also, it is undisputed fact he was conferred the benefit of regular pay-scale till he retired on 13.11.2013 after rendering 5 years of service.

9. It is no more res-integra that, as per Resolution dated 17.10.1988, the workman would be entitled to pension and other retirement benefits after completion of 10 years of service. In present case, the termination of the work- man is found to be illegal and he was reinstated in service and was also paid regular pay scale. Thus, he was forced to remain unemployed for the interregnum period. The Labour Court, after examining the documents on record, has given a specific finding that the workman had worked for 12 years before his termination and he had also com- pleted 240 days service. Thereafter, he was reinstatement on 06.10.2008 and till his retirement on 30.11.2013, he had completed 5 years. The learned Single Judge has al- lowed the writ petition and has only directed the Pension Fixation Authority to pass appropriate orders of fixation in accordance with law and it is further directed to forward the papers in that regard to the Pension Sanctioning Au- thority, who after receipt of the same, shall pass appropri- ate orders. The learned single judge has only given a di- rection to the appellants to pass appropriate orders to fix the pension in accordance with law. ... ... ..."

8. Thus, even if the Labour Court does not pass any order with regard the continuity of service, but directs reinstatement, the employer cannot deny the continuity of service. The Division Bench has placed reliance on the judgement of the Apex Court in case of Gurpreet Singh vs. State of Punjab & Ors. 2003 SCC (L&S) 20. Once the continuity of service is granted, the daily wagers are entitled to the benefits flowing from the Government Resolution

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dated 17.10.1988 after completion of 5, 10 and 15 years of service. The Supreme Court of India in the case of State of Gujarat vs. PWD Union Employees, (2013) 12 SCC 417 and 2019 3 scale 642, has already clarified the implementation of Government Resolution dated 17.10.1988 to the daily wagers working in the various departments of the State of Gujarat.

9. The Division Bench, after survey of various judgments, in the decision dated 27.08.2021 passed in Civil Application No.3910 of 2019 in Letters Patent Appeal No.3522 of 2019 and allied matters has held that the daily wagers are entitled to the benefits of the Government Resolution dated 17.10.1988 and also benefits like encashment of leave, travelling allowance, dearness allowance & uniform allowance etc. Thus, the law is well settled proposition of law that the daily wagers are entitled to benefit of regular pay- scale and other benefits, which are paid to regular employees, but as per the provisions of the Government Resolution dated 17.10.1988. Hence, the respondents are directed to grant the benefits flowing from the Government Resolution dated 17.10.1988 to the present petitioners. The Division Bench has also issued directions to grant the benefits of 6th Pay Commission to the daily wagers and also 50% Dearness Allowance in the basic salary with effect from 01.04.2004. The respondents are also hereby directed to examine the case of each of the petitioner for grant of the benefits of 6th Pay Commission and also Dearness Allowance after they are conferred the benefits flowing from the

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Government Resolution dated 17.10.1988. Necessary orders with regard to the fixing of pay and necessary benefits shall be passed within a period of three months from the date of receipt of order of this Court. Rule is made absolute.

(A. S. SUPEHIA, J) SALIM/