Harisingh M Gadhvi vs State Of Gujarat - Through ...
2022 Latest Caselaw 4118 Guj

     C/SCA/7269/2011                             JUDGMENT DATED: 12/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7269 of 2011


FOR APPROVAL AND SIGNATURE: Sd./-


HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1     Whether Reporters of Local Papers may be allowed                NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                         NO

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

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

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                       HARISINGH M GADHVI
                              Versus
         STATE OF GUJARAT - THROUGH SECRETARY & 1 other(s)
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Appearance:
MS RITA KAMANI, MR PH PATHAK(665) DECEASED LITIGANT for the
Petitioner(s) No. 1 for the Petitioner(s) No. 1.1
MR HARDIK MEHTA, GOVERNMENT PLEADER for the Respondent(s) No.
1,2
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    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                             Date : 12/04/2022

                            ORAL JUDGMENT

1. Rule. Learned AGP, Mr. Hardik Mehta, waives service of rule for the Respondents.

2. This is a petition filed under Articles 226 and 227 of the Constitution of India, seeking the

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following reliefs:

"17. ...

A. This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or certiorari or other appropriate writ, order or direction, declaring that the decision on the part of the respondent No.2 not reinstating petitioner on original post of skill employee and to deny the benefits of continuous service to the petitioner after the order of this Honourable Court and non-fixation of his pay, after reinstatement, as illegal, unjust, arbitrary and in contravention of order of this Court and direct the respondent to reinstate the petitioner on original post of skill employee and extend all the benefits of continuous service to the petitioner and pay all arrears of amount to the petitioner with 12% interest.

B. Be pleased to declare the act of the respondent not granting benefits of continuous service, as per the award of the Labour Court as unfair labour practice.

C. Be pleased to delcare that the respondent authorities have adopted unfair labour practice and mala fide withheld the benefits of continuous service to the petitioner and therefore direct the respondent to grant all the benefits of continuous service to the petitioner and pay the arrears of amount with 12% interest to the petitioner and further the respondent No.1 to recover the

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amount of the interest from the erring officer.

D. Be pleased to direct the respondent to pay special cost and compensation to the petitioner for present's litigation and for mental tension and hardship caused to the petitioner for non granting the benefits of continuous service to the petitioner by the respondents.

E. Pending admission and final disposal of the petitioner be pleased to direct the respondents to fix the seniority and pay of the petitioner by granting continuous service to the petitioner and pay the arrears of difference of salary accordingly.

C. ..."

3. Heard, learned Advocate, Ms. Rita Kamani, for learned Advocate, Mr. P.H. Pathak, appearing for the petitioner and learned AGP, Mr. Mehta, for the Respondents.

4. Learned Advocate, Ms. Kamani, submitted that the petitioner was employed as a skilled labourer by Respondent No.2 in the year 1979.

4.1 The services of the petitioner came to be terminated on 21.03.1991 and therefore, the petitioner raised an industrial dispute and the same was referred to the Labour Court, Ahmedabad, and registered as Reference (LCS) No. 77 of 1991.

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4.2 The Labour Court passed the award on 05.01.2007 and thereby, directed the Respondents to reinstate the petitioner on the original post, but, without any back-wages.

4.2.1 A copy of the award passed by the Labour Court is placed on record at Page-13 of the compilation.

4.3 It is submitted that the Respondents challenged the award of the Labour Court by filing Special Civil Application No. 17582 of 2007 and this Court rejected the same vide order dated 03.08.2007.

4.3.1 A copy of the order dated 03.08.2007 passed by this Court is produced at Page-25 of the compilation.

4.4 It was contended that, thereafter, the petitioner came to be reinstated on 19.09.2008 vide order dated 29.07.2008.

4.5 The grievance of the petitioner in the present petition is that, while granting reinstatement to the petitioner, continuity of service is not given and the benefits, which are available to the petitioner, as per the Government Resolution dated 17.10.1988, were granted from the date or reinstatement, i.e. 19.09.2008, and not from the date of his initial appointment, i.e. from the year 1979.

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4.6 Hence, the petitioner has filed the present petition.

4.7 At the outset, learned Advocate, Ms. Kamani, appearing for the petitioner, under the instructions, submitted that as the petitioner expired during the pendency of this petition, the wife of the original petitioner is not claiming the benefits of pay-scale, as per GR dated 17.10.1988, by treating the petitioner as a skilled labourer.

4.7.1 It was submitted that, since, the Labour Court has granted reinstatement to the petitioner, the continuity of service follows, automatically. Especially, when there is no specific denial to grant of continuity of service to the petitioner by the Labour Court.

4.7.2 In support of her submissions, learned Advocate, Ms. Kamani, placed reliance on a decision of the Apex Court in the case of 'SANAT KUMAR DWIVEDI VS. DHAR JILA SAHAKARI BHOOMI VIKAS, reported in (2001) 9 SCC 402. A copy of the aforesaid order is produced on record separately.

4.7.3 Learned Advocate, Ms. Kamani, also placed reliance on another decision of the Supreme Court, rendered in Civil Appeal No. 201/202 of 2020, Dated: 10.01.2020, in the case of 'NANDKISHORE SHRAVAN AHIRRAO VS. KOSAN INDUSTRIES (P) LTD.'. A copy of the

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aforesaid order is produced on record separately.

4.7.4 It was, therefore, submitted that the present petition be allowed.

5. On the other hand, learned AGP, Mr. Mehta, strongly opposed this petition and referred to the averments made in the affidavit-in-reply filed on behalf of the Respondents. A copy of the said affidavit is produced at Page-77 of the compilation.

5.1 It was submitted that the petitioner is not entitled to get any benefits, as the petitioner did not complete 240 days within the period of twelve months in the calendar year, immediately preceding the termination of his services in the year 1991.

5.2 It was, further, submitted that as the continuity of service was not given by the Labour Court, the Respondents have committed no error by denying the benefits of continuity of service to the petitioner from the year 1979.

5.3 It was, therefore, submitted that this petition may not be entertained and dismissed.

6. Having heard the learned Advocates for the parties and having perused the material on record, it emerges from the record that the services of the petitioner came to be terminated, without following the mandatory provisions of the Industrial Disputes

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Act, 1947 (in brief, 'ID Act') in the year 1991 and therefore, an industrial dispute was raised by the petitioner and the same was referred to the Labour Court, Ahmedabad. The Labour Court passed the award dated 05.01.2007, whereby, the directions were issued to the Respondents to reinstate the petitioner in service, on his original post, but, without any back- wages.

6.1 It is pertinent to note that the award dated 05.01.2007 passed by the labour Court was challenged by the Respondents before this Court by filing Special Civil Application No. 17582 of 2007. However, this Court dismissed the same vide order dated 03.08.2007. Therefore, now, it is not open to the Respondents to contend in the present petition that the petitioner had not completed 240 days' service in a calendar year, immediately preceding the termination of his services.

6.2 It is not in dispute that the Labour Court vide award dated 05.01.2007, directed the Respondents to reinstate the petitioner on his original post and thereafter, the petitioner was granted the benefits, as per the Government Resolution dated 17.10.1988 with effect from 23.01.2012, as the petitioner was reinstated in service in the year 2007 and he completed the five years' service in the year 2012.

6.3 In the case on hand, it is the case of the Respondents that, since, the Labour Court has not

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granted the continuity of service to the petitioner specifically, while passing the award dated 05.01.2007, the petitioner is not entitled for the same.

6.3.1 In view of the above submission made by the learned AGP, Mr. Mehta, for the Respondents, it would be relevant to refer to the decision of the Apex Court in the case of 'SANAT KUMAR DWIVEDI' (Supra), wherein, the Apex Court has observed as under:

"3. It is clarified that this order will not be treated to be resulting in any break in service of the appellant. He will be deprived of only the back wages. The continuity of service and all other notional benefits on that basis will be available to him. It appears that when the order of reinstatement was granted, except depriving him of back wages, it necessarily meant that the continuity of service was implicit in the reinstatement. Even condition Nos. 1 and 2 of the order of reinstatement clearly indicate that he is reinstated in service with continuity as pay scales and other benefits were also directed to be given."

6.4 In the case of 'NANDKISHORE SHRAVAN AHIRRAO' (Supra), the Apex Court observed and held as under;

"4 Notice was issued in these proceedings on 16 October 2015. The office report indicates that the

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respondent has been served. Since the respondent has failed to appear, we have proceeded to deal with the appeal on merits. 5 The learned Single Judge held that the Labour Court rightly observed that the punishment which was imposed on the appellant was harsh. It appears that even the salary of the appellant was deducted for the period in question during which work was disrupted. However, the learned Single Judge held that the payment of back wages would not follow as a matter of course upon an award of reinstatement. Hence, the direction for the payment of 25% back wages was interfered with and set aside. The Single Judge also observed that the Labour Court has "rightly passed the judgment and award reinstating the respondent without continuity of service".

CA 201-202 /2020 6 The first grievance of the learned counsel appearing on behalf of the appellant is that the High Court was in error in misconstruing the award of the Labour Court as having denied continuity of service. We find merit in the submission. The award of the Labour Court is in the following terms:

"The reference of second party Nandkishor Shravan Ahirrao, 94, Shriram Kutir, near Chikuvadi, Post Office - Fatehnagar, Udhna, Surat - 304220 - C/o. Bombay foods Ltd. and Kosan Industries Ltd., Worker/Employee Union, Surat is hereby partly allowed.

And the first party of this case is hereby ordered that, they have to reinstate the second party in service with

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25% back-wages for his surplus days within 30 days from the publication of this order." 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."

6.5 Thus, from the observations made by the Hon'ble Apex Court in the above referred decisions, it is clear that when the Labour Court has not specifically denied the continuity of service, it is implicit that the continuity of service is granted by the Labour Court.

6.5.1 In the case on hand, the Labour Court, while passing the award dated 05.01.2007, has not specifically denied the benefit of continuity of service to the petitioner and therefore, the petitioner shall be entitled to the benefits of continuity of service.

7. Resultantly, this petition is ALLOWED and the petitioner is held to be entitled to get the benefits of G.R. dated 17.10.1988 with effect from the year 1979. However, as contended by the learned

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Advocate for the petitioner, Mr. Kamani, the Petitioner will not claim pay-scale of a 'Skilled Labourer'.

7.1 The Respondents are DIRECTED to grant all the consequential benefits to the legal heirs of the petitioner by treating his services continuous from the year 1979. Such an exercise shall be completed within the period of EIGHT WEEKS from the date of receipt of a copy of this order.

Rule is made absolute to the aforesaid extent. No order as to costs.

Direct service is permitted.

Sd./-

(VIPUL M. PANCHOLI, J) UMESH/-