Bahadurbhai Pirubhai Rathod vs State Of Gujarat
2021 Latest Caselaw 14098 Guj

     C/SCA/14442/2019                                           JUDGMENT DATED: 15/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14442 of 2019

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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                         BAHADURBHAI PIRUBHAI RATHOD
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1,3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                    Date : 15/09/2021
                                    ORAL JUDGMENT

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

respondent-Sate.

2. In the present writ petition, the petitioner has prayed for the

following relief:-

"10(B) This Hon'ble Court may allow this Special Civil Application by issuing a writ of mandamus or any other writ in the nature of mandamus or direction or order directing the respondent authorities to release the benefits of Govt. Resolution dated 17.10.1988 considering the service of the petitioner as continuous from his initial date of appointment."

C/SCA/14442/2019 JUDGMENT DATED: 15/09/2021

3. At the outset, learned advocate Mr.Murli Devnani appearing for the

petitioner has submitted that the issue is squarely covered by the decision

of the Division Bench dated 11.07.2018 passed in Letters Patent Appeal

No.174 of 2017 and the decision of the Coordinate Bench dated

24.07.2018 passed in Special Civil Application No.2192 of 2017.

4. The facts, which are not in dispute, are that the petitioner joined

with respondents as a daily rated employee and was working as

Chowkidar in the year 1993 and since his services brought to an end with

effect from 12.04.1994, he raised an Industrial Dispute as Reference

(LCR) No.73 of 1996, before the Labour Court, Rajkot, which came to be

allowed by the award dated 03.05.2011.

5. Learned advocate Mr.Murli Devnani for the petitioner has

submitted that as the matter came to be referred to Labour Court by way

of Reference (LCR) No.73 of 1996, the same came to be partly allowed

by an Award of reinstatement without back wages to her original post

vide award dated 03.05.2011. He has submitted that immediately after

passing of order in her favour the petitioner approached Range Forest

Officer by submitting an application for her resumption report on the

basis of award passed by Labour Court in his favour on 06.06.2011 and

accordingly he was reinstated in service from 01.08.2011.

C/SCA/14442/2019 JUDGMENT DATED: 15/09/2021

6. Learned advocate Mr.Murli Devnani for the petitioner has

submitted that despite fact that Court while quashing and setting aside the

termination order passed an award of reinstatement, the respondent

authorities have failed to take into account the said aspect of continuity of

service and thereby depriving the petitioner from grant of benefit flowing

from Government Resolution dated 17.10.1988. He has submitted that

that vide order dated 16.03.2019 the petitioner has been granted the

benefit flowing from Government Resolution dated 17 10.1988. However

on going through the said order dated 16.03.2018 it clearly reveals the

fact that since date of birth of the petitioner is 18.05.1970 and since he

has joined with effect from 01.02.1993 and he has completed 5 years on

31.01.2017. Thus, he has submitted that the benefits of the Government

Resolution dated 17.10.1988 cannot be denied to the petitioner only

because the Labour Court has not observed with regard to continuity of

service.

7. Per contra, learned AGP Mr.Sahil Trivedi while placing reliance on

the affidavit, has submitted that the petitioner is not entitled to any benefit

of the Government Resolution dated 17.10.1988 as the Labour Court has

not granted the continuity of service and in order to avail the benefits of

the said resolution, there has to be continuity of service.

C/SCA/14442/2019 JUDGMENT DATED: 15/09/2021

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

parties.

9. As noted hereinabove, the award of the Labour Court dated

03.05.2011 in Reference (LCR) No.73 of 1996 has become final. By the

said award, the respondents were directed to reinstate the petitioner

without any back wages, however, the Labour Court has failed to observe

anything with regard to continuity of service. At this stage, it would be

apposite to refer to the decision of the Division Bench. The Division

Bench in a similar set of facts while examining the provisions of the

Government Resolution dated 17.10.1988 has held thus:-

"8. The undisputed fact in the present appeal is that the respondent- workman was terminated from the service in the Year-1998 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 regarding 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 entitled for continuity of service since the same is not fresh appointment, but it is a case of reinstatement. Accordingly, 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 workman 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 completed 240 days service. Thereafter, he was reinstatement on 06.10.2008 and till his retirement on 30.11.2013, he had completed

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5 years. The learned Single Judge has allowed 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 Authority, who after receipt of the same, shall pass appropriate orders. The learned single judge has only given a direction to the appellants to pass appropriate orders to fix the pension in accordance with law.

This Court does not find any illegality or infirmity in such directions of passing appropriate orders for fixing the pension."

10. The Coordinate Bench in the judgment dated 24.07.2018 passed in

Special Civil Application No.2192 of 2017 while examining analogous

facts has observed thus:-

"3. The Labour Court in its judgment and award, though directed the reinstatement of the petitioner, did not expressly confer the benefit of continuity of service, therefore, the moot question is whether the petitioner would be entitled to continuous service when the same was not expressly granted by the Labour Court while ordering reinstatement.

4. In Vasantika R. Dalia Vs. Baroda Municipal Corporation [1998 (2) LLJ 172], this Court was posed to interpret the judgment and award of the Labour Court which granted the relief of reinstatement to the workmen. The relief of back-wages was denied and the relief of continuity of service was not denied specifically and that in the relief of reinstatement granted, the word 'continuity' was not mentioned.

4.1 The Court observed to lay down that "It may be straighaway observed that once the relief of reinstatement is granted, the continuity of service is a direct consequence rather inherent in the relief of this nature." It was held that when the relief of reinstatement was granted and the continuity of service was not specifically denied, the workman has to be relegated to the same position as was held by it at the time of termination. When the order of termination was found to be void, the petitioner, it was held, would be entitled to hold the relief of reinstatement with continuity where there was no mention of specific denial to such continuity.

4.2 The Supreme Court in Gurpreet Singh Vs. State of Punjab and others [2002 (92) FLR 838], held that once the plaintiff was directed to be reinstated in service upon setting aside of the order of termination, continuity of service could not be denied. The Court observed that the case was not of fresh appointment but it was one of reinstatement and that being the position, it was observed that the

C/SCA/14442/2019 JUDGMENT DATED: 15/09/2021

High Court was in error in denying the continuity of service.

4.3 Thus and therefore, even though the judgment and award of the Labour Court had not expressly granted the continuity, at the same time it did not deny the continuity in any expressed terms. The grant of continuity would have to be read with the order of reinstatement. The petitioner would be entitled to be treated continuous in service upon reinstatement. Resultantly, the petitioner would be entitled to be granted the benefits of resolution dated 17.10.1988 accordingly by reckoning his service as continuous from the date of his initial appointment.

4.4 When the award of the Labour Court had not expressly denied the continuity is to be interpreted as per the principles of law laid down by the Suprem Court in Gurpreet Singh (supra), the concept of continuity could not be distinguished for the purpose of granting any other service benefits. Learned Assistant Government Pleader made a failed attempt to submit that the continuity for the purpose of granting benefits under resolution dated 17.10.1988 may be treated differently. Any such distinction would be artificial distinction."

11. Thus, the respondents are directed to grant the benefits of the

Government Resolution dated 17.10.1988 by treating his service as

continuous from the date of termination till reinstatement and

accordingly, confer the benefits of the Government Resolution dated

17.10.1988.

12. Appropriate orders in terms of the directions of this Court shall be

passed within a period of three months from the date of receipt of the writ

of this judgment.

13. The present petition is allowed. Rule is made absolute.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK