Musabhai Jumabhai Kaida vs State Of Gujarat
2021 Latest Caselaw 13553 Guj

     C/SCA/1788/2017                                      ORDER DATED: 07/09/2021



    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/SPECIAL CIVIL APPLICATION NO. 1788 of 2017
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              MUSABHAI JUMABHAI KAIDA
                          Versus
              STATE OF GUJARAT & 3 other(s)
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Appearance:
MR GAURAV K MEHTA(5227) for the Petitioner(s) No. 1
MR. ROHAN SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                    Date : 07/09/2021
                     ORAL ORDER

RULE. Learned AGP appears and waives service of notice of rule on behalf of the respondent-State.

1) The present writ petition has been filed for the following prayers;-

"B) Your Lordships may be pleased to issue appropriate writ, order or direction for quashing and setting aside the impugned correspondence/letter dated 05.02.2015 issued by the respondent No.3 and further be pleased to hold the impugned letter dated 05.02.2015 is bad at law;

C) Your Lordships may be pleased to issue appropriate direction directing the authority to consider the service of the petitioner as continuous service and further be lease to direct the authority to consider the case of the petitioner for giving benefit of G.R.dated 17/10/1988 in light of law laid down by the Hon'ble Supreme Court [2013] 10 SCC 324."

2) At the outset, learned advocate Mr. Gaurav Mehta appearing for the petitioner has submitted that the issue is squarely covered by the judgment dated 22.12.2016 passed in Special Civil Application No. 18154 of 2015.

3) The facts of the present writ petition are that the petitioner was working under the respondent No.3 as a watchman since 1983

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continuously without there being any break in services. In the year 1998, the concerned authority terminated the service of the petitioner with a view to avoid to give the benefits of Government Resolution dated 17.10.1988 and, therefore, the petitioner has filed a Reference being LC.R. No. 215 of 1999 before the Special Labour Court, Rajkot in which the Presiding Officer passed the order dated 11.08.2008, whereby the termination of the petitioner came to be held illegal and the petitioner came to be reinstated in service without back wages. In this view, the Executive Engineer, Rajkot passed the order dated 09.03.2009, whereby the petitioner came to be reinstated in service with continuity of services. However, the authority did not consider the continuity of services by informing the petitioner vide communicated dated 15..07.2014 whereby the request of the petitioner made in form of application dated 22.05.2014 to fix the the pay scale came to be rejected. The petitioner also requested the concerned authority to give the benefit of Government Resolution dated 173.10.1988 by way of the representation dated 15.12.2014. However, the said request, also came to be rejected by way of the impugned communication dated 05.02.2015.

4) Learned advocate Mr. Mehta has submitted that once the petitioner is reinstated in service, he cannot be denied the benefits of continuity of service and subsequently the benefits of Government Resolution dated 17.10.1988. He has submitted that the Supreme Court in the case of the State of Gujarat and Ors v. PWD Employees Union and Ors, etc. reported in 2013(12) SCC 417, had directed the State Government to implement the Government Resolution dated 17.10.1988 in all departments, including the present department. He has submitted that the Coordinate Bench of this Court in the order dated 05.10.2016 passed in Special Civil Application No. 377 of 2014 to Special Civil Application No. 380 of

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2014, had directed the respondent authorities to grant the benefits of Dearness Allowance, House Rent Allowance, Traveling Allowance, 5th Pay Commission recommendations, increments, etc. Thus, he has submitted that the impugned communication issued by the respondent No.3 may be quashed and set aside.

5) In response to the aforesaid submissions, learned Assistant Government Pleader has submitted that the petitioner would not be entitled to the benefits of the Government Resolution dated 17.10.1988 since the Labour Court, Rajkot while ordering the reinstatement in service vide award dated 11.08.2008, has not granted the benefits of continuity of service. Thus, he has submitted that the petitioner has not completed 240 days and hence, he would not be entitled to the benefits of Government Resolution dated 17.10.1988. Thus, the short issue raising in the writ petition is that whether the petitioner would be entitled to the benefits of Government Resolution dated 17.10.1988, in light of the award dated 09.03.2009 passed by the Labour Court, Rajkot in Reference LCR No. 254 of 2007.

6) It is not in dispute that by the aforesaid order, the Labour Court had directed the respondent authorities to reinstate the petitioner without back wages. However, there is no observations made by the Labour Court with regard to the continuity of service. By the impugned order dated 05.02.2015 the petitioner has been denied the benefits of the Government Resolution dated 17.10.1988 on the ground that since he has not completed 240 days as he was terminated from service, he would not be entitled for such benefits.

7) At this stage, it would be apposite to refer to the decision of the Coordinate Bench dated 22.12.2016 passed in Special Civil Application

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No. 18154 of 2015. The Coordinate Bench has observed thus;

" 13. The aforesaid principle has been followed by the learned Single Judge of this Court in the case of 'PRAVINKUMAR NANALAL TRIVEDI VS. AMRELI DISTRICT PANCHAYAT AND OTHERS' (Supra) and this Court held that once the reinstatement is ordered by setting aside aside the termination, it includes continuity of service. The aforesaid view taken by the learned Single Judge of this Court came to be confirmed by the Division Bench of this Court vide its order dated 03.02.2012 rendered in Letters Patent Appeal No. 89 of 2010.

14. In light of the discussion held herein above, the facts of this case needed to be reverted to. The services of the petitioner, herein, came to be terminated on 25.08.1984 and vide order passed by the Labour Court, Surendranagar, in Reference (LCS) No. 184 of 2000 dated 29.03.2007, the petitioner came to be reinstated in service without back wages. Admittedly, the respondent challenged the said order, but, at not point of time, the petitioner challenged the same. However, the challenge made to the said order by the respondent- authorities came to be rejected. Pursuant thereto, a request was made by the petitioner to recover the wages by filing Recovery Application No. 13 of 2009, claiming wages for the period from 06.04.2007 to 28.02.2009, which came to be conditionally withdrawn by a pursis on 21.02.2011, on the ground that once the Revision Application is decided, the petitioner would be at liberty to file a fresh application. Thereafter, the petitioner had also filed another application for recovery of wages being Recovery Application No. 45 of 2012, claiming wages of Rs.2,02,082.40ps/- for the period from 06.04.2007 to 30.06.2012, came to be allowed vide order dated 14.05.2014. The said sum according to the petitioner has not been paid by Respondent Nos. 3 and 4, till date. What the petitioner, at present, seeks is the benefit of the Government Resolution dated 17.10.1988 providing for continuity of service and consequential benefits. Admittedly, the petitioner has been working since the year 1979 and the termination, which was made vide order dated 25.08.1984, came to be set aside. Therefore, in wake of the above discussion, the termination of the petitioner being 'illegal termination', which came to be set aside long back, the continuity of service shall follow, even though, it is not specifically mentioned in the order of the Labour Court.

15. Resultantly, the petitioner is ENTITLED to the benefits claimed for by him, more particularly, the benefits flowing from the Government Resolution dated 17.10.1988, treating his service to be CONTINUOUS. He shall be given all other benefits including consequential benefits from 01.10.1988 to 29.03.2007. DISPOSED OF, accordingly."

8) Thus, the Coordinate Bench has observed that once the reinstatement is ordered by the concerned Court or the Tribunal, the same would be as continuity of service. The Coordinate Bench has placed

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reliance on the judgment and order of the Division Bench and the various judgments of the Supreme Court in this regard. After observing the same, the Coordinate Bench has directed the respondent authorities to grant the benefits of the Government Resolution dated 17.10.1988 treating his service as continuous. Thus, the issue raised in the writ petition is squarely covered by the said decision. Accordingly, the communication dated 05.02.2015 is hereby quashed and set aside and the respondents are directed to grant the benefits of flowing from the Government Resolution dated 17.10.1988 treating his service as continuous.

9) While granting the benefits , the respondent shall take into consideration the order dated 05.10.2016 passed in Special Civil Application No. 377 of 2014 to Special Civil Application No. 380 of 2014, whereby the Coordinate Bench of this Court has granted the benefits of Dearness Allowance, House Rent Allowance, Traveling Allowance, 5th Pay Commission recommendations, increments, etc to the daily rated employees in view of the catena of decisions of this Court as well as the judgment of Apex Court as referred therein.

10) The respondent shall carry out the entire exercise of granting the benefits to the petitioner within the period of eight weeks from the date of receipt of the order of this Court.

11) In this view of the matter, the writ petition is allowed. Rule is made absolute.

(A. S. SUPEHIA, J) VISHAL MISHRA