Gujarat High Court

Executive Engineer vs Chandubhai Maganbhai Sodha ... on 1 April, 2022

Bench: A.Y. Kogje

     C/SCA/64/2017                               ORDER DATED: 01/04/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 64 of 2017
                                With
            CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2021
                                 In
             R/SPECIAL CIVIL APPLICATION NO. 64 of 2017

================================================================
                    EXECUTIVE ENGINEER
                          Versus
        CHANDUBHAI MAGANBHAI SODHA PARMAR & 1 other(s)
================================================================
Appearance:
MS JYOTI BHATT, AGP for the Petitioner(s) No. 1
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
================================================================

 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                           Date : 01/04/2022

                            ORAL ORDER

1. Challenge in this petition is made by the State

Authority to the award passed by the Labour Court, Nadiad in

Reference (LCN) No.24 of 2000 dated 26.02.2014. By the

impugned award, the Labour Court has awarded reinstatement of

the respondent workman, with 20% back wages.

2. Ms.Jyoti Bhatt, learned Assistant Government Pleader

has taken this Court through the material on record and has

contended that, the workman had not proved his case before the

Labour Court and no relief could have been granted to him. It is

submitted that, the Labour Court has committed error in awarding

reinstatement and in any case, this was not the case where any

back wages could have been ordered. It is submitted that the

C/SCA/64/2017 ORDER DATED: 01/04/2022

impugned award be quashed and set aside.

3. On the other hand, Mr. Yogen Pandya, learned

Advocate for the workman has submitted that, the discontinuance

of service of the workman is held to be illegal termination by the

Labour Court, for which cogent reasons are recorded and therefore

no interference be made by this Court. It is further submitted that

no interference be made in back wages either. It is submitted that

this petition be dismissed.

4. Learned Assistant Government Pleader, in rejoinder,

and without prejudice to the submission noted above, has

alternatively submitted that, in the event the reinstatement is not

interfered with by this Court, to ensure that the workman has still

not attained the age of superannuation, liberty be reserved to the

Authority to insist for any legally acceptable document from the

concerned workman regarding his date of birth, at the time of

resuming his duty.

4.1 It is further submitted that, in the event the

reinstatement is not interfered with by this Court, the continuity of

service is not automatic and in any case, in view of no adjudication

pertaining to continuity of service and / or any other similar

benefits, which otherwise are decided by the Authorities, keeping

in view the record of the concerned workman and as per the

prevalent policies, the said issue may also be appropriately kept

C/SCA/64/2017 ORDER DATED: 01/04/2022

open, so that the decision in that regard can be taken by the

Appropriate Authority, considering the service tenure and other

relevant details of the workman, as required under the relevant

policy.

5. Having heard learned advocates for the respective

parties and having gone through the material on record, this Court

finds as under:

5.1 The Labour Court has taken into consideration the

material on record and has found that, the discontinuance of

service of the workman was not legal. This Court has considered

the reasons recorded by the Labour Court and no infirmity is found

therein. The impugned award does not call for any interference so

far reinstatement is concerned. This petition needs to be dismissed

to that extent.

5.2 So far back wages are concerned, this Court finds that

considering the totality of the facts, ends of justice would meet if

the reinstatement is upheld without back wages. This petition

needs to be allowed to this extent.

5.3 So far the continuity of service is concerned, this Court

finds that when the Labour Court has awarded reinstatement with

back wages, it can not be said that continuity is not granted by the

Labour Court. However, there is substantial force in the submission

of learned Assistant Government Pleader that the effect of the

C/SCA/64/2017 ORDER DATED: 01/04/2022

impugned award would be that, with the reinstatement, the

workman may claim all consequential benefits including pay-scale

etc., citing some policy of the Government. This was not the issue

before the Labour Court, and no adjudication is made in that

regard. Under the circumstances, the impugned award needs to be

clarified in this regard to the effect that the case of the workman

shall be examined by the Authorities regarding the benefits flowing

from continuity of service, as per the policy of the Government,

keeping in view the service record of the workmen and an

appropriate order in that regard will be passed and if the workman

is aggrieved by such decision, it would be open to him to challenge

the same before appropriate forum.

5.4 So far the submission of learned Assistant Government

Pleader as noted in Para 4.1 above, this Court finds that

appropriate safeguard needs to be provided to ensure that, the

workman has still not attained the age of superannuation and

liberty needs to be reserved to the Authority to insist for any legally

acceptable document from the workman regarding his date of

birth, at the time of resuming his duty, if the Authority so wants.

5.5 Considering the totality, this Court finds that the

impugned award need not be interfered with so far reinstatement

is concerned, the same needs to be interfered with so far grant of

back wages is concerned and the same needs to be clarified with

regard to benefits flowing from continuity of service, as above.

C/SCA/64/2017 ORDER DATED: 01/04/2022

6. In identical fact situation, this Court has allowed SCA

No.17046 of 2015 by judgment and order dated 08.02.2016, which

was subject matter of challenged in LPA No.1721 of 2017 and

allied matters and the Division Bench of this Court by judgment

and order dated 12.03.2019 has dismissed such LPAs. It is

observed by the Division Bench in para-13 as under:-

"13. ..... that it is open for the State to examine the case so far as continuity of service is concerned as per the policy of the government keeping in view the service record of the workmen....."

7. For the reasons recorded above, this petition is partly

allowed. The impugned award is not interfered with, to the extent

it orders reinstatement of the workman. The impugned award is

set aside to the extent of grant of back wages. It is clarified that,

so far the continuity of service is concerned, the case of the

workman shall be examined by the Authorities regarding the

benefits flowing from continuity of service, as per the policy of the

Government, keeping in view the service record of the workmen

and an appropriate order in that regard will be passed and if the

workman is aggrieved by such decision, it would be open to him to

challenge the same before appropriate forum, which shall be

decided in accordance with law. Since the discontinuance of