Madan Ramsingh Rathod vs State Of Gujarat
2022 Latest Caselaw 4390 Guj

      C/SCA/20183/2015                                 ORDER DATED: 26/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 20183 of 2015

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                          MADAN RAMSINGH RATHOD
                                   Versus
                         STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1
MR HARDIK MEHTA, AGP for the Respondent(s) No. 1
MS DHRUVI DESAI WITH MR PINAKIN M RAVAL(2495) for the
Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                                Date : 26/04/2022

                                 ORAL ORDER

1. This petition is filed under Article 226 of the Constitution of India praying for the following reliefs :

"11(A) The 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 the impugned decision on the part of respondents to deny the petitioner of the benefits of the resolution dated 17.10.1988 and treating him as daily wage employee even after completion of 26 years of services as arbitrary, illegal, unfair labour practice and violative of Articles 14, 16 and 21 of the Constitution of India and be pleased to direct the respondents to extend the benefits of resolution dated 17.10.1988 to the petitioner with all arrears of amount with 12% interest.

(B) Be pleased to declare that the respondents have adopted unfair labour practice and the petitioner is required to be treated as permanent employee with all consequential benefits.

(C) Be pleased to direct the respondents to grant revised rates of pay to the petitioner, revised from time to time and grant all arrears of amount on the basis of the revised rate with 12% interest.

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(D) Pending admission and final disposal of the petition, be pleased to direct the respondents to start paying salary to the petitioner as per the resolution dated 17.10.1988.

(E) Pending admission and final disposal of the petition, be pleased to direct the respondents to pay minimum of the scale of pay payable to Class-IV employees with permissible allowances forthwith to the petitioner.

(F) xxxxx"

2. Heard learned advocate Mr.Pathak for the petitioner, learned advocate Ms.Dhruvi Desai with learned advocate Mr.Raval for respondent no.2-Panchayat.

3. Learned advocate for the petitioner submitted that the petitioner was appointed on the post of Chokidar on 18.3.1985 and worked continuously till the date of his termination i.e. upto 1.9.1989. The services of the petitioner were terminated without following the procedure. The petitioner raised the industrial dispute which was referred to the concerned Labour Court and registered as Reference (LCK) No. 329 of 1990. The Labour Court, Kalol passed the award on 28.9.1994 and allowed the reference. The respondent no.2 was directed to reinstate the petitioner with full back wages. The respondent no.2, therefore, filed petition being Special Civil Application No.1815 of 1996 before this Court. This Court dismissed the said petition vide order dated 11.9.1996. It is submitted that the petitioner was thereafter reinstated and immediately his services were once again terminated. The petitioner once again raised the industrial dispute which was referred to the Labour Court, Kalol which was registered as Reference (LCK) No.490 of 1997. The Labour Court, after considering the evidence produced before it, passed the award dated 11.2.2002 and thereby directed the respondent no.2 to reinstate the petitioner with full back wages.

       C/SCA/20183/2015                                ORDER DATED: 26/04/2022




3.1             Learned advocate for the petitioner submitted that the

respondent no.2 thereafter challenged the said award dated 11.2.2002 by filing Special Civil Application No.6673 of 2002. This Court, vide order dated 31.1.2006, partly allowed the said petition and thereby confirmed the award with regard to the granting of reinstatement, however, the order qua back wages is quashed and set aside. The respondent no.2, thereafter, filed Letters Patent Appeal No.1184 of 2006 before the Division Bench of this Court. The Division Bench of this Court, vide order dated 19.7.2013, dismissed the said Letters Patent Appeal.

3.2 In the meantime, the petitioner was reinstated in service vide order dated 15.3.2010 and the petitioner is working with the respondent no.2.

3.3 Learned advocate Mr.Pathak would further submit that the Labour Court has not specifically denied the continuity of service and therefore the respondent no.2 was required to consider the service of the petitioner from 1985 and ought to have granted the benefits as per Government Resolution dated 17.10.1988 issued by the government. At this stage, learned advocate submits that the policy of the government applies automatically to the panchayat employees and they are at par with the government employees and therefore respondent no.2-panchayat ought to have granted the benefits of the aforesaid Government Resolution to the present petitioner by counting services from 1985. However, respondent no.2 has not given the benefit of said government resolution to the petitioner. The petitioner, therefore, filed the present petition.

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3.4             Learned advocate for the petitioner has placed reliance upon

the order dated 4.1.2016 passed by the Division Bench of this Court in Letters Patent Appeal No.1381 of 2015, more particularly, referred to the observation made by the Division Bench of this Court in paragraph 5 of the said order. In the case of Sanat Kumar Dwivedi V/s Dhar Jila Sahakari Bhoomi Vikas Bank Maryadit and Others, reported in (2001)9 SCC 402, decision rendered by the Hon'ble Supreme Court in the case of Nandkishore Shravan Ahirrao V/s Kosan Industries (P) Ltd. passed in Civil Appeal Nos.201-202 of 2020 on 10.1.2020. Learned advocate has submitted that as per the decision rendered by the Hon'ble Supreme Court, if the continuity of service is not specifically denied by the Labour Court while passing the award, the concerned workman is entitled to continuity of service. At this stage, learned advocate further submits that relying upon the aforesaid decision rendered by the Hon'ble Supreme Court, recently this Court has passed the order on 12.4.2022 in Special Civil Application No.7269 of 2011 and thereby allowed the petition filed by the concerned petitioner by observing 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. The Labour Court, therefore, urged that appropriate direction be issued to the respondent no.2 to grant the benefit of Government Resolution dated 17.10.1988 by counting the services of the petitioner from 18.3.1985.

4. On the other hand, learned advocate Ms.Desai appearing for respondent no.2 has opposed this petition. Learned advocate referred to the averments made in the affidavit-in-reply filed by respondent no.2. Learned advocate submitted that when the Labour Court has not granted continuity of service while passing the award, continuity of service cannot be given to the petitioner and therefore the petitioner is not

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entitled to get benefit of the Government Resolution dated 17.10.1988 from 18.3.1985. Learned advocate submits that the petitioner is reinstated in service on 15.3.2010 pursuant to the orders passed by the Labour Court as well as this Court. At this stage, learned advocate has also referred to the document which is placed on record at page nos.85 and 86 of the compilation. It is submitted that the petitioner was time and again informed to remain present for work. However, he did not remain present and ultimately on 15.3.2010 he was appointed. At this stage, learned advocate has placed reliance upon the order dated 12.7.2016 passed by the Division Bench of this Court in Letters Patent Appeal No.492 of 2016. Learned advocate has more particularly referred to the observations made by the Division Bench in paragraph 6. After referring to the said paragraph, it is contended that in the said case, when the concerned Labour Court had not granted any direction with regard to continuity of service, the Division Bench of this Court directed the concerned respondent to grant benefit from the date of the award passed by the Labour Court. Learned advocate, therefore, urged that in absence of direction given by the Labour Court to grant continuity of service, the petitioner is not entitled to get the benefit of Government Resolution dated 17.10.1988. Learned advocate, therefore, urged that this petition may not be entertained.

5. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the petitioner was appointed as chokidar on 18.3.1985. He had worked as such upto 1.9.1989. The services of the petitioner were terminated without following mandatory provisions contained in the Industrial Disputes Act (`ID Act' for short). Therefore, when the industrial dispute was raised by the petitioner, the matter was referred to the Labour Court.

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The Labour Court, on the basis of the evidence produced before it passed the award on 28.9.1994 and thereby direction was issued to the respondent no.2 to reinstate the petitioner with full back wages. Thereafter, the petitioner was reinstated and immediately once again his services were terminated on 11.9.1996. The petitioner once again raised the industrial dispute which was referred to the concerned Labour Court. The Labour Court thereafter passed the award on 11.2.2002 and thereby directed the respondent no.2 to reinstate the petitioner with full back wages. The respondent no.2 challenged the said award by filing petition before this Court. This Court partly allowed the petition and modified the award of the Labour Court by quashing and setting aside the direction with regard to the back wages. Thus, the award of the Labour Court with regard to reinstatement was not interfered with. Letters Patent Appeal filed by the respondent no.2 was also dismissed by this Court.

6. In the aforesaid facts and circumstances of the case, now the limited controversy which is to be decided in the present petition is with regard to the continuity of service. The petitioner has claimed that when the Labour Court has not specifically denied continuity of service while passing the award, the respondent no.2 is required to consider the continuous service of the petitioner from 18.3.1985 and therefore the petitioner is entitled to get the benefit of Government Resolution dated 17.10.1988 from the aforesaid date whereas the case of the respondent no.2 is that the Labour Court has not granted any continuity of service and therefore when the petitioner is reinstated from 15.3.2010, continuous service can be counted from the year 2010 only.

7. With a view to decide the aforesaid issue, the decisions rendered by the Hon'ble Supreme Court upon which the reliance is

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placed by learned advocate for the petitioner, are required to be referred to.

8. In the case of Sanat Kumar Dwivedi (supra), the Hon'ble Supreme Court has held in paragraphs 2 and 3 as under:

"2. The admitted facts are that the appellant was reinstated in service by order dated 12-5-1978 with a condition that he will not get any back wages. Obviously, earlier on 8-3-1976 his services were terminated but by the aforesaid order, he was reinstated without back wages. He accepted such reinstatement without back wages by his joining report, Annexure R-4 at p.106 of the paper book that he has joined his duty on 13.5.1978. By his own conduct, the appellant has accepted the correctness of the order of reinstatement without back wages. Under these circumstances, subsequent dispute raised by him regarding back wages was clearly not maintainable as held by this Court in State of Punjab v.Krishnan Niwas. In view of the settled legal position, no interference is called for. The appeal is therefore, dismissed."

9. In the case of Nandkishore Shravan Ahirrao (supra), the Hon'ble Supreme Court as observed as under:

"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 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.

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The award of the Labour Court dated 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 hereinabove. The appellant would be entitled to continuity of service."

10. At this stage, it is pertinent to note that while relying upon the decision rendered by the Hon'ble Supreme Court in the case of Nandkishor, recently this Court has passed an order on 12.4.2022 in Special Civil Application No.7269 of 2011. This Court has observed in paragraphs 6, 6.1, 6.2, 6.3, 6.3.1, 6.4, 6.5, 6.5.1 as under :

"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 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

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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 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 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".

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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 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."

11. Thus, from the aforesaid order dated 12.4.2022 passed by this Court, it is clear that when the Labour Court has not specifically denied the continuity of service, it is implicit that continuity of service is granted by the Labour Court and therefore the respondent no.2 is required to consider the continuous service of the petitioner from 18.3.1985.

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12. At this stage, it is pertinent to note that in the present case, the petitioner has worked from 18.3.1985 to 1.9.1989. Thereafter, the Labour Court passed an award on 28.9.1994. Pursuant to the said award, the petitioner was reinstated in 1996 and again his services sere terminated in 1996. Once again the Labour Court passed award by giving direction to the respondent no.2 to reinstate the petitioner. The said award was passed on 11.2.2002 and the said award was implemented by the respondent no.2 only on 15.3.2010.

13. At this stage, the order upon which the learned advocate dated 12.7.2016 passed by the Division Bench in Letters Patent Appeal No.492 of 2016 upon which learned advocate has placed reliance by learned advocate for respondent no.2, is required to be referred to. In the said order, the Division Bench of this Court has observed in paragraph 6 as under:

"6. Mainly it is the case of the appellants that in absence of specific direction for extending the benefit of continuity of service as awarded by the Labour Court, the respondent- original petitioner is not entitled to benefits of Government Resolution dated 17.10.1988. It is submitted that such benefit is conferred only for the persons, who are in actual service for more than 5 years and 10 years, but not for persons, who were out of service for one reason or the other. On the other hand it is the submission of the learned counsel for respondent no.1 that once termination is held to be illegal and the Labour Court awarded reinstatement, which is confirmed by this Court, he is entitled to the benefit of continuity of service. When this matter was listed on the last occasion, it was adjourned to enable the learned counsel for respondent no.1 to get instructions and to satisfy this Court with regard to benefit of continuity of service for the period from 15.03.1983 to 24.02.1986 and for further period from the date of award of the Labour Court, viz. 20.07.2006. On instructions it is submitted by the learned counsel for respondent no.1- original petitioner that his client is willing to accept the same provided that the benefit is given by

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modifying the order of the learned Single Judge. It is not in dispute that as per the Government Resolution dated 17.10.1988, daily wagers, who have completed 5 years of service and 10 years of service were granted certain benefits. It is also clear from the said Resolution that the persons, who continued for several years on daily wage basis and for indefinite period certain benefits were granted certain benefits on completion of 5 years and 10 years respectively. In that view of the matter, we are of the view that in absence of any directions in the award of the of Labour Court with regard to continuity of service, respondent no.1- original petitioner is not entitled to the benefits for the period for which he was actually out of service. At the same time it is not in dispute that he was initially engaged as daily wager on 15.03.1983 and he was continued as such till 24.02.1986 and further he was ordered to be reinstated by the award of the Labour Court on 20.07.2006. In that view of the matter there is no reason to deny benefit of service from 15.03.1983 to 24.02.1986 and from the date of the award of the Labour Court, viz. 20.07.2006. "

13.1. Thus, in the said case, the Division Bench of this Court has considered the services of the concerned workman for the period between 1983 to 1986 and thereafter from the date of the award of the Labour Court. However, thereafter, now the Hon'ble Supreme Court has decided the issue in the case of Nandkishore (supra) wherein the Hon'ble Supreme Court has specifically held that if the Labour Court has not specifically denied the continuity of service, the concerned workman is entitled to continuity of service and therefore now when the Hon'ble Supreme Court has decided the aforesaid issue with regard to the continuity of service, the aforesaid decision is binding to this Court.

14. Thus, in the facts and circumstances of the present case, as discussed hereinabove, this petition is partly allowed. The petitioner is entitled to get the benefit of government resolution dated 17.10.1988 by counting his services from 18.3.1985. The necessary benefits shall be

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given to the petitioner within a period of 12 weeks from the date of receipt of this order.

(VIPUL M. PANCHOLI, J) SRILATHA