Gujarat High Court

Ramanbhai Mangalabhai Bariya vs State Of Gujarat on 13 September, 2021

Bench: A.S. Supehia

     C/SCA/15074/2020                                JUDGMENT DATED: 13/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15074 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                                     Sd/-
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                               NO

2     To be referred to the Reporter or not ?                             NO

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

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

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                        RAMANBHAI MANGALABHAI BARIYA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,2,3
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 13/09/2021
                      ORAL JUDGMENT

Leave to amend. Learned advocate Mr.Dipak Dave requests for

deletion of prayer at paragraph no. 8(A)(i).

1. Rule. Learned AGP waives service of notice of rule for the

respondent-State.

2. In the present writ petition, the petitioners have prayed the benefit

of the Government Resolution dated 17.10.1988, which is applicable to

the daily wagers of all the departments of the State Government.

C/SCA/15074/2020 JUDGMENT DATED: 13/09/2021

3. At the outset, learned advocate Mr.Dipak Dave appearing for the

petitioners has submitted that the issue is squarely covered by the catena

of decision of this Court. He has placed reliance on the judgment dated

22.10.2019 passed in Special Civil Application No.14096 of 2018 and

allied matters and also the order dated 18.06.2018 passed in Letters

Patent Appeal No.1268 of 2017 by the Division Bench. He has also

placed reliance on the judgment of the Apex Court in the case of The

State Of Gujarat vs Pwd And Forest Employees Union, (2013) 12 SCC

147, (2019) 3 SCALE 642.

4. Learned advocate Mr.Dipak Dave has submitted that the benefits

arising out of the Government Resolution dated 17.10.1988 have been

denied to the petitioners only for the reason that they have not completed

240 days in a year. He has submitted that the petitioners were constrained

to remain out of job because of the illegal termination, which was set

aside by the Labour Court, Godhra by different identical awards dated

16.02.2018 and 26.02.2018 passed in Reference (T) Nos.141, 143 and

147 of 1998, whereby the Labour Court has directed the respondent

authorities to reinstate the petitioners with continuity of service and 10%

back wages. He has submitted that since the Labour Court, Godhra has

granted continuity of service, the respondent-State cannot deny the

benefits of the Government Resolution dated 17.10.1988 merely on the

C/SCA/15074/2020 JUDGMENT DATED: 13/09/2021

ground that the petitioners have not completed 240 days. He has

submitted that issue is sqarely covered by the aforementioned judgment

and appropriate orders may be passed.

5. Per contra, learned AGP Mr.Sahil Trivedi has submitted that the

communications may not be set aside since the petitioners have not

completed 240 days in a year. He has submitted that the Government

Resolution dated 17.10.1988 mandates that the workman has to complete

240 days in a year or 5 years or 15 years of service, which would make

them entitle for the benefits as stated therein. While placing reliance on

the affidavit filed by the State, he has submitted that the benefits of the

Government Resolution dated 17.10.1988 may not confer to the present

petitioners.

6. I have heard the learned advocates appearing for the respective

parties.

7. The petitioners are claiming the benefits arising out of the

Government Resolution dated 17.10.1988. The Supreme Court in the case

of Pwd And Forest Employees Union (supra) after threadbare

examination of the Government Resolution dated 17.10.1988 has directed

that all the daily wagers working in different departments of the State of

Gujarat are entitled to the regular pay-scale as mentioned in the said

C/SCA/15074/2020 JUDGMENT DATED: 13/09/2021

resolution. It is also held that such daily wagers would also be entitled to

the other benefits such as Dearness Allowance, Leave Encashment,

Higher Pay-scale etc. after completion of 5, 10 and 15 years' of service.

However, it is incumbent upon the workman to complete 240 days of

aforementioned service in order to become eligible arising out of the

Government Resolution dated 17.10.1988 and only those workmen, who

had completed 240 days are required to be considered for extending the

benefits.

8. In the present case, it is not in dispute that the petitioners were

terminated from service in the year 1997, which was subject matter of

challenge in Reference (T) Nos.141, 143 and 147 of 1998. The Labour

Court, Godhra, by different awards, but on identical issue vide awards

dated 16.02.2018 and 26.02.2018 allowed the references in part and the

respondent authorities were directed to reinstate the petitioners in service

with continuity of service and 10% back wages. The aforesaid award was

subject matter of challenge before this Court in Special Civil Application

Nos.14096, 9433 and 9432 of 2018 and this Court vide order dated

27.10.2019 confirmed the award of the Labour Court, Godhra granting

reinstatement and continuity of service. Pursuant to the aforesaid order,

the petitioners were reinstated with continuity of service and after they

were reinstated, the benefits arising out of the Government Resolution

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dated 17.10.1988 was not conferred to such petitioners on the ground that

they have not completed 240 days in a year and hence, the present

petitioners are constrained to file the present writ petition.

9. It would be apposite to refer to the decision of the Division Bench

wherein for an analogous issue, the Division Bench has observed thus:-

5. Thus, the upshot of the aforesaid facts and discussion is that the present respondent - workman is denied the benefits flowing from the Government Resolution dated 17.10.1988 only on the ground. that he had not completed 240 days in a, year and his "continuity of service", as granted by the Labour Court vide award dated 23.07.2007 and confirmed by this court, cannot be considered. The stand taken by the present appellants that the respondent - workman is not entitled to the benefits of the Government Resolution dated 17.10.1988 deserves to be deprecated. Once it has been established by this court that the respondent -- workman is reinstated in service with continuity of service, the workman would be entitled to get the benefits flowing from the Government Resolution dated 17.10.1988,. and such benefits cannot be denied to the respondent-workman only on the ground that he has not worked for 240 days. He was forced to live without work because of his illegal termination. The appellants cannot' take benefit of their illegal action. The termination of the respondent - workman was found to be illegal and contrary to the provisions of the Industrial Disputes Act, 1947. The effect of continuity of service is to be conferred from the year 1996, when he was appointed as a daily wager. The impugned order dated 15.04.2016 is blissfully silent about denying the benefits of the Government Resolution dated 17.10.1988 to the workmen who have been reinstated with continuity of service. The Government Resolutions dated 17.10.1988 and 01.05.1991 envisage grant of benefits of pay fixation, pension, etc. to the daily wagers, who have completed certain number of years of service.

6. We are in complete agreement with the observations made by the learned Single Judge in order dated 05.05.2016 passed in Special Civil Application No.7713 of 2016.

10. Thus, in light of the aforesaid observations, for the illegal

termination, the petitioners cannot be put to loss that too after the

reinstatement has been confirmed by this Court. The petitioners are also

reinstated in service with continuity of service.

C/SCA/15074/2020 JUDGMENT DATED: 13/09/2021

11. Hence, the present petition is allowed. The respondents are directed

to grant the benefits of Government Resolution dated 17.10.1988

including the period for which they have been out of service because of

the illegal termination. It is further directed that the pay fixation for the

intervening period from the date of termination till the reinstatement shall

be treated as continues for the purpose of pay fixation and for the

counting of 240 days.