Gujarat High Court

Ugariben Wd/O. Bachubhai ... vs State Of Gujarat on 27 September, 2021

Bench: A.S. Supehia

     C/SCA/16525/2018                                        JUDGMENT DATED: 27/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16525 of 2018

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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           UGARIBEN WD/O. BACHUBHAI AMARSHIBHAI CHAUHAN
                               Versus
                    STATE OF GUJARAT & 3 other(s)
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Appearance:
MR NILESH M SHAH(780) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1,4
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 27/09/2021
                      ORAL JUDGMENT

Draft amendment in the prayer clause is allowed. Amendment is to be carried out forthwith.

1. Rule. Learned advocates appearing for the respective respondents waives service of notice of rule.

2. By the present writ petition, the petitioner has prayed for the following relief:-

"20 (A) This Hon'ble Court may be pleased to issue a writ of certiorari and/or any other writ or writs or orders or directions.

(AA) This Hon'ble Court may be pleased to set aside judgment dt.24-10-

C/SCA/16525/2018 JUDGMENT DATED: 27/09/2021

16 passed in Recovery Application No.86/11 passed by the Labour Court Surendranagar

(B) This Hon'ble Court may be pleased to direct the Respondents to give the benefit of Resolution dated 17.10.1988, Ann-H to the petitioner as a legal heir of the deceased Bachubhai Amrashibhai with effect from 01.01.1990 notionally up to 30-05-06 and further be pleased to direct the Respondents to give difference of salary from 01-06-06 to 23-05-13.

(C) This Hon'ble Court may be pleased to direct the Respondents to grant retirement benefits including family pension, gratuity and leave encashment to the petitioner on the basis of 27 years continuous service of the deceased Bachubhai Amarshibhai with 12% interest from 24-05-13 till its actual implementation.

3. The brief facts of the case are as under:-

3.1. The deceased Bachubhai Amarshibhai was employed by the

Respondent No.3 as a daily wage labourer since 1985 and since then, he

was working continuously. However, the service of the deceased

Bachubhai Amarshibhai along with other seven co-employees had been

orally terminated by the Respondent No.3 from 27.12.1990. Hence,

deceased Bachubhai Amarshibhai and other seven co-employees had

raised an industrial dispute, which was adjudicated in Reference (LCS)

No.73/94. The Labour Court, Surendrangar by the award dated

30.05.2006, partly allowed the said reference directing Respondent Nos.2

and 3 to reinstate the deceased Bachubhai Amarshibhai and other seven

co-employees on their original post without back wages.

3.2. Thereafter, against the said award dated 30.05.2006, the

Respondent Nos.2 and 3 filed Special Civil Application No.16424, 30390

to 30396 of 2007, which had been dismissed by a common order dated

C/SCA/16525/2018 JUDGMENT DATED: 27/09/2021

19.12.2007. Thereafter, against the said common order dated 19.12.2007,

the Respondent Nos.2 and 3 had filed Letters Patent Appeal Nos.2012 to

2018 and 2020 of 2009, which had been dismissed by the order dated

22.12.2009. The deceased Bachubhai Amarshibhai had submitted an

application to the Respondent No.3 to reinstate him. Ultimately, the

Respondent No.3 reinstated the deceased Bachubhai Amarshibhai by the

order dated 16.02.2010.

3.3. The respondent No.3 had not paid wages and hence, deceased

Bachubhai Amarshibhai and other five co-employees had filed Recovery

Application No.46/09 for claiming wages for the period from 10.06.2006

to 30.06.2009 on the basis of minimum wage, which was partly allowed

by Labour Court, Surendranagar by Judgement dated 28.06.2010, against

which the deceased Bachubhai Amarshibhai and other five co-employees

had filed Special Civil Application No.920/11, which had been allowed

by judgment dated 23.03.2011 directing the respondent Nos.2 and 3 to

pay wages to the deceased Bachubhai Amarshibhai and other five co-

employees as per minimum wage and accordingly the Respondent Nos.2

and 3 had paid an amount of Rs.1,02,081/- to the deceased Bachubhai

Amarshibhai as per minimum wage for the period from 01.06.2006 to

30.06.2009.

C/SCA/16525/2018 JUDGMENT DATED: 27/09/2021

3.4. Thereafter, the respondent Nos.1 to 3 had not granted the benefits

of the Government Resolution dated 17.10.1988, hence deceased

Bachubhai Amarshibhai had filed Recovery Application No.86/11 for

claiming wages for the period from 01.02.2010 to 31.10.2011 on the basis

of Government Resolution dated 17.10.1988. During the pendency of the

said application, Bachubhai Amarshibhai passed away on 23.05.2013,

hence as a legal heir of the deceased Bachubhai Amarshibhai, the

petitioner has been joined in the said application, which had been

dismissed by the Labour Court, Surendranagar by the judgment dated

24.10.2016 by observing that the petitioner has not produced any material

to show that she is entitled for the benefits of Dearness Allowance, house

rent, medical allowance etc.

4. Learned advocate Mr.Nilesh Shah appearing for the petitioner has

submitted that after reinstatement from 16.02.2010, deceased Bachubhai

Amarshibhai has continuously worked under the Respondent No.3 and

the petitioner has requested the Respondent Nos.2 and 3 to give the

benefit of Government Resolution dated 17.10.1988, since he had by the

time completed more than 27 years service. However, the Respondents

Nos.2 and 3 have not considered her request and therefore, the petitioner,

through her advocate has given a notice to the Respondent Nos.1, 2 and 3

by Registered Post A.D. on 02.07.2018, which has been received by them

C/SCA/16525/2018 JUDGMENT DATED: 27/09/2021

on 07.07.2018 however the Respondent Nos.1 to 3 have neither given the

benefit of Government Resolution dated 17.10.1988 nor have given reply

to the Petitioner till today.

5. Learned advocate Mr.Nilesh Shah for the petitioner has submitted

that the respondent nos.1 to 3 have not implemented the Government

Resolution dated 17.10.1988 and have conferred the benefits to the daily

wagers, who have continued their service for 5 years, but however, the

deceased husband of the applicant Bachubhai has been denied such

benefit for the reason he has not completed 240 days. It is submitted by

him that since the Labour Court has only granted the reinstatement, but

has not observed anything with regard to continuity of service and the

benefits of the Government Resolution dated 17.10.1988 are not extended

to the husband of the petitioner. He has submitted that because of such

inaction, the petitioner is deprived of all the pension and retirement

benefits. In support of his submissions, he has placed reliance on the

decision of the Division Bench dated 23.06.2021 passed in Letters Patent

Appeal No.1527 of 2019 and the order dated 20.07.2021 passed in Letters

Patent Appeal No.485 of 2017. He has submitted that once the Labour

Court has granted reinstatement, the continuity of service has to be

granted and hence, the petitioner cannot be made to suffer because of the

illegal termination of the deceased husband. He has submitted that if there

C/SCA/16525/2018 JUDGMENT DATED: 27/09/2021

would have been not illegal termination of the deceased husband, he

would have been entitled to all the benefits from the Government

Resolution dated 17.10.1988.

6. In response to the aforesaid submissions, learned advocate for the

respondent, while placing reliance on the affidavit filed by the respondent

authority, has submitted that the benefits of the Government Resolution

dated 17.10.1988 cannot be granted to the petitioner as the deceased

husband has not put any requisite service of 5 years for the purpose of

fixation of pay. He has submitted that the benefits of the aforesaid

resolution can only be extended to those employees, who have put in

service of 5 years and since the deceased husband of the petitioner has

not put in 240 days in a year couple with the fact that the Labour Court

had not observed anything with regard to continuity of service, she is not

entitled to any benefits. In support of his submissions, he has placed

reliance on the judgment of the Coordinate Bench dated 07.08.2015

passed in Special Civil Application No.67 of 2012, which is confirmed by

the Division Bench vide judgment dated 07.06.2017 passed in Letters

Patent Appeal No.1439 of 2015. Reliance is also placed on the judgment

of the Supreme Court in the case of State of Gujarat vs. Public Works

Department and Forest Employees Union and Ors., (2019) 15 SCC 248

and the order passed in Letters Patent Appeal No.492 of 2016 and Letters

C/SCA/16525/2018 JUDGMENT DATED: 27/09/2021

Patent Appeal No.436 of 2006. Thus, he has submitted that the case of the

deceased husband of the petitioner is not governed by the Government

Resolution dated 17.10.1988 as the same requires completion of 240

days, no such benefits to the deceased husband of the petitioner can be

extended.

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

parties.

8. The petitioner has contended that since the respondent workman

had not actually worked and not completed 240 days, he would not be

entitled for the benefits of the Government Resolution dated 17.10.1988

as per the judgment of the Supreme Court referred to in the case of PWD

Employees (Supra). The Court has also examined the award of the

Labour Court and the judgment of the Supreme Court in case of PWD

Employees (supra) is also perused. The Supreme Court, in the aforenoted

case, after threadbare examination of the Government Resolution dated

17.10.1988, has prescribed its implementation in the case of workmen,

who have rendered 5, 10, 15 years of service. In the present case, the

workman would be entitled to the benefits of Government Resolution

dated 17.10.1988 since he was kept out of employment due to illegal

termination. A threadbare perusal of the judgment of the Supreme Court

reveals that the Supreme Court has not actually dealt with the issue which

C/SCA/16525/2018 JUDGMENT DATED: 27/09/2021

is raised in the present petition. At this stage, it would be apposite to refer

to the order of 27.03.2018 passed in Letters Patent Appeal No.553 of

2017. While dealing with the identical facts, the Division Bench has held

thus:

"However, according to learned advocate for the employer who argued the case before learned Single Judge, workman Govindbhai Haribhai Solanki had not actually worked between 1989 and 2006 and attained the age of superannuation on completion of 60 years in the year 2009 and thus, he had hardly worked for 3 years and not entitled to get the benefit of Government Resolution dated 17.10.1988. Another workmanJavalben Palaben Kantaria, she was reinstated in the year 2006 pursuant to the order of this Court and retired on 17.1.2016 on attaining the age of superannuation and had put only 9 years and therefore she also would not be entitled to the benefit of above Government Resolution. Various other contentions were raised based on the scheme of Government Resolution dated 17.10.1988 that it was a policy decision and a self-contained mechanism worked out to grant certain benefits to daily rated/causal workers and cannot have any nexus with provisions of Industrial Dispute Act. However, learned Single Judge based on decision of the Apex Court to which reference was made in para 7 of the judgement and material on record as emerged in the writ petition and interpretation put forth of Government Resolution dated 17.10.1988 in all such cases, the significance of expression "continuity of service" was considered and ultimately held that if the contention of learned advocate for the employer about actual length of service rendered by the workman is considered provisions contained in Government Resolution as well as Section 25B of I.D.Act, 1947 referred to therein will be nugatory. At the same time benefits awarded by the Labour Court of Government Resolution dated 17.10.1988 to the workman was modified and held that the workman would be entitled to the benefits under Government Resolution dated 17.10.1988 by treating them in continuous service from the initial date of their appointment till the date of superannuation with a rider that for the period for which back- wages were denied to them, workmen would be entitled to receive only notional benefits under G.R. Dated 17.10.1988."

9. The only issue, which is required to be considered, is before this

Court whether the service rendered by the late husband of the present

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petitioner can be considered for extending the benefits fall from the

Government Resolution dated 17.10.1988 in wake of the fact that the

Labour Court while passing the award dated 30.05.2006 in Reference

(L.C.S.) No.73/94 has not observed anything with regard to continuity of

service while ordering to reinstate him. Thus, the issue is whether the

service of the late husband of the petitioner can be said to be continues

despite the fact that the Labour Court has not observed anything while

ordering reinstatement. The issue raised in the present writ petition is not

res integra in the catena of decision of this Court on the issue. The

Division Bench in the judgment dated 23.06.2021 passed in Letters

Patent Appeal No.1527 of 2019 and the order dated 20.07.2021 passed in

Letters Patent Appeal No.485 of 2017 while considering analogous issue,

has observed thus:-

"6. We have heard learned advocates appearing for the parties. We have also gone through the judgment and award dated 8.11.2016 passed by the Labour Court, Surendranagar, whereby the workman is reinstated but continuity of service is not granted to him and we find that it is erroneous. In case of Gurpreet Singh (supra), which has been relied upon by learned Single Judge, it has been specifically held by Honourable Supreme Court that reinstatement in service would follow continuity of service. In the case of Nandkishore Shravan Ahirrao (Supra), it is 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

C/SCA/16525/2018 JUDGMENT DATED: 27/09/2021

terms of what has been observed herein-above. The appellant would be entitled to continuity of service."

7. So far as the second submission as regards continuity of service is concerned, we referred to an order passed by a Coordinate Bench of this Court in Letters Patent Appeal No.1527 of 2019 decided on 23.06.2021 wherein the Court has observed as under:

"5. On the other hand, Mr.Chaudhari, learned advocate for the respondent has taken us through different orders passed by this Court in similar facts and circumstances, and has heavily relied upon decision of Honourable Supreme Court in the case of Nandkishore Shravan Ahirrao v. Kosan Industries Private Limited [2020 LLR 813]. He would submit that the Honourable Supreme Court has held therein that once a person is reinstated, continuity of service would follow as a matter of law and, therefore, the learned Single Judge has committed no error in allowing the petition. He would, therefore, submit that the appeal be dismissed.

6. We have heard learned advocates appearing for the parties. We have also gone through the judgment and award dated 8.11.2016 passed by the Labour Court, Surendranagar, whereby the workman is reinstated but continuity of service is not granted to him and we find that it is erroneous. In case of Gurpreet Singh (supra), which has been relied upon by learned Single Judge, it has been specifically held by Honourable Supreme Court that reinstatement in service would follow continuity of service. In the case of Nandkishore Shravan Ahirrao (Supra), it is 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 herein- above. The appellant would be entitled to continuity of service." 7. Similar is the ratio laid down by Honourable Supreme Court in the case of Gurpreet Singh (supra). Hence, the case is squarely covered under the above decisions of the Apex court. Hence, the appeal is meritless and accordingly,appeal is dismissed. Interim relief, if any, stands vacated. In view of above order, Civil Application would not survive and the same is disposed of."

9.1 Thus, the Division Bench, while placing reliance on the judgment

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of the Supreme Court, has held that once the issue, as ordered while

setting aside the termination, has ordered of reinstatement, the continuity

of service cannot be denied and the case of is of not fresh appointment,

but it is a case of reinstatement. The Supreme Court in the case of

Gurpreet Singh vs. State of Punjab and Others, [2002 (92) FLR 838] has

held thus:-

3. 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 can not be sustained and we set aside that part of the impugned order. So far as the arrears of salary is concerned, we see no infirmity with the direction which was given 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.

9.2 The Division Bench has also considered a recent decision of the

Supreme Court in the case of Nandkishore Shravan Ahirrao vs. Kosan

Industries Private Limited, [2002 LLR 813].

10. Thus, in view of the ratio laid down by the Supreme Court in the

case of Gurpree Singh (supra) as well as in the case of Nandkishore

Shravan Ahirrao (supra), this Court is of the considered opinion that the

service of the deceased husband of the petitioner is required to be treated

as continuous, and as a sequel he cannot be denied the benefits arising out

C/SCA/16525/2018 JUDGMENT DATED: 27/09/2021

of the Government Resolution dated 17.10.1988. Hence, the impugned

order dated 24.10.2016, passed by Labour Court, Surendranagar in

Recovery Application No.86 of 2011 is set aside.

11. The respondents are directed to fix the pay of the late husband of

the petitioner as per the Government Resolution dated 17.10.1988 and

conferred all the benefits to the present petitioner, including the