Bhagwanbhai Motibhai Malivad vs State Of Gujarat
2022 Latest Caselaw 1074 Guj

     C/SCA/15845/2020                              JUDGMENT DATED: 02/02/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15845 of 2020

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 ?                          YES

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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                        BHAGWANBHAI MOTIBHAI MALIVAD
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR HARDIK MEHTA, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 2,3,5
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      Date : 02/02/2022
                      ORAL JUDGMENT

1. The present writ petition has been filed seeking directions on the respondents to confer the benefits flowing from the Government Resolutions dated 17.10.1988 and 15.09.2014 and accordingly grant him retirement benefits.

2. At the outset, learned advocate Mr.Dipak Dave appearing for the petitioner has submitted that the issue is squarely covered by catena of judgments of the Division Bench as well as this Court. He has placed reliance on the order dated 18.06.2018 passed in Letters Patent Appeal No.1268 of 2017, order dated 05.08.2021 passed in Special Civil

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Application No.5211 of 2020, decision of the Supreme Court in the case of Nandkishore Shravan Ahirrao vs. Kosan Industries (P) Ltd, AIR SC 1776 and judgment dated 13.09.2021 passed in Special Civil Application No.15074 of 2020. He has also placed reliance on the judgment of the Apex Court in the case of State of Gujarat & Ors. vs. PWD Employees Union & Ors., (2013) 12 SCC 417 and in the case of The State of Gujarat vs. PWD And Forest Employees Union & Ors., 2019 (3) SCALE 642

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

3.1. The petitioner was appointed as a daily wager with effect from 01.04.1974 in the office of the respondent no.4. He was terminated from service on 01.04.1996, which constrained him to raise an industrial dispute. The said dispute culminated in Reference (LCJ) No.406 of 1999. The Labour Court, Godhra, vide its award dated 21.07.2009 set aside the termination of the petitioner and directed the respondent to reinstate him in service with 20% back wages. It is pertinent to note that no direction with regard to continuity of service was recorded in the order. The respondent challenged the said award in the writ petition being Special Civil Application No.7983 of 2010, which was dismissed by the order dated 27.01.2014 passed in Special Civil Application No.7983 of 2010.

3.2. The petitioner reached the age of superannuation on 30.11.2012 since he was not paid the gratuity, he filed proceedings before the Controlling Authority under the payment of Gratuity Act. The Controlling Authority by the order dated 24.03.2014 directed the respondents to pay gratuity considering his 22 years of service with 10% interest. The petitioner preferred appeal against the said order, which was allowed by the Appellate Authority vide order dated 27.08.2014, whereby the amount was enhanced from Rs.12,936/- to Rs.83,293/- on the basis of 24 years of service.

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3.3. It is the case of the petitioner that he is entitled to the benefits arising from the Government Resolution dated 17.10.1988 and the Resolution dated 15.09.2014, however, the same has not been conferred upon the petitioner on the ground that the petitioner has not rendered continuous service as he has not completed 240 days.

4. Learned advocate Mr.Dipak Dave appearing for the petitioner has submitted that even if the Labour Court has not observed with regard to continuity of service, once the reinstatement is ordered, the employee is deemed to be treated in service from the date of termination till his reinstatement or his retirement. He has submitted that the law is well settled on this issue and the judgments, as narrated hereinabove, will cover the issue.

4.1. Learned advocate Mr.Dave has further submitted that the applicability of the Government Resolution dated 17.10.1988 and the resolution dated 15.09.2014 to the petitioner, is not in dispute however the only issue is with regard to treating his service continuous in view of the award passed by the Labour Court. Thus, he has submitted that the respondents may be directed to confer the benefits flowing from the aforesaid resolutions and pay the pension, leave encashment etc., considering his service from 1974 till his retirement.

4.2. Learned advocate Mr.Dave has also placed reliance on the judgment of the Supreme Court in the case of Gurpreet Singh vs State Of Punjab And Ors, (2002) 9 SCC 492. He has also placed reliance on the judgment dated 28.12.2018 passed in Letters Patent Appeal No.1567 of 2018 and allied matters and has submitted that the benefits, as ordered by the Division Bench, may also be paid to the present petitioner.

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5. Per contra, learned AGP Mr.Hardik Mehta appearing for the respondents, while placing reliance on the affidavit filed by the respondent authorities, has submitted that the writ petition is required to be rejected on the ground of delay as the petitioner has filed the same almost after a period of 8 years claiming the benefit after his retirement. He has submitted that since the petitioner has not worked for 240 days from the years 1973 to 1975 and 2011 to 2013 and his service is not ordered to be continuous by the Labour Court, hence he is not entitled to the benefits flowing from the Government Resolutions dated 17.10.1988 and 15.09.2014.

6. I have heard the learned advocates appearing for the respective parties.

7. The facts, as narrated hereinabove, are not in dispute. The termination of the petitioner was subject matter of challenge before the Labour Court. He was terminated on 01.04.1996 and pursuant to the award passed by the Labour Court and confirmed by this Court, he was reinstated on 06.04.2011 and he reached the superannuation on 30.11.2012. The Labour Court in the award dated 21.07.2009 passed in Reference (LCJ) No.406 of 1999 has directed the respondents to reinstate the petitioner in service with 20% back wages, however, no observation with regard to granting or denying continuity of service was made.

8. At this stage, it would be apposite to refer to the decision of the Supreme Court in the case of Gurpreet Singh (supra), wherein it has been observed 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

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cannot be sustained and we set aside the 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."

Thus, the Supreme Court has enunciated that the continuity of service cannot be denied to the workman if he is directed to be reinstated in service on setting aside the order of termination.

9. The Supreme Court in the case of Nandkishore Shravan Ahirrao (supra) has also reiterated the principle of law. The same is 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. "

Thus, it is well settled proposition of law that once the reinstatement as awarded by the Labour Court, the continuity of service would follow as a matter of course. Thus, the entire service from the date of termination till he was reinstated in service i.e. from 01.04.1996 to 06.04.2011 is required to be treated as continuous.

10. The issue with regard to denying the benefit flowing from the Government Resolution dated 17.10.1988 on the ground of non- completion of 240 days in similar facts is required to be considered in view of the observations made by the Division Bench in the order dated 18.06.2018 passed in Letters Patent Appeal No.1268 of 2017. The Division Bench has observed thus:-

"5. Thus, the upshot of the aforesaid facts and discussion is that the present respondent - workman is denied the benefits flowing from the Government Resolution dated 17.10.1988 only on the ground that he had not completed 240 days in a year and his "continuity of service", as granted by the Labour Court vide award dated 23.07.2007 and confirmed by this court, cannot be considered. The stand taken by the present appellants that the respondent -

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workman is not entitled to the benefits of the Government Resolution dated 17.10.1988 deserves to be deprecated. Once it has been established by this court that the respondent-workman is reinstated in service with continuity of service, the workman would be entitled to get the benefits flowing from the Government Resolution dated 17.10.1988, and such benefits cannot be denied to the respondent-workman only on the ground that he has not worked for 240 days. He was forced to live without work because of his illegal termination. The appellants cannot' take benefit of their illegal action. The termination of the respondent - workman was found to be illegal and contrary to the provisions of the Industrial Disputes Act, 1947. The effect of continuity of service is to be conferred from the year 1996, when he was appointed as a daily wager. The impugned order dated 15.04.2016 is blissfully silent about denying the benefits of the Government Resolution dated 17.10.1988 to the workmen who have been reinstated with continuity of service. The Government Resolutions dated 17.10.1988 and 01.05.1991 envisage grant of benefits of pay fixation, pension, etc. to the daily wagers, who have completed certain number of years of service."

11. The Division Bench, while examining the provisions of the Government Resolution dated 17.10.1988 has held that once the termination of the respondent-workman is found to be illegal and contrary to the provisions of the Industrial Disputes Act, 1947 (for short "the ID Act"), the effect of continuity of service is required to be conferred and the benefits of the Government Resolution dated 17.10.1988 cannot be denied to him on the premise that he has not worked or completed 240 days. The workman was compelled to remain out of service because of his illegal termination and such illegal action on being set aside, the respondents cannot deny the benefits flowing from the Government Resolution dated 17.10.1988 on the ground that the petitioner has not completed 240 days and there is no continuity of service. Such contention or submission raised by the respondent is required to be rejected at the outset in view of the fact that the termination of the petitioner has been declared illegal.

12. So far as the contention raised with regard to delay by the respondents in approaching this Court is concerned, the same also does not merit acceptance since it was the respondents, who were required to confer the benefits arising from the Government Resolution dated

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17.10.1988 and accordingly, he should have been paid all the retirement benefits including pension, leave encashment etc., to the petitioner. However, after the retirement of the petitioner in the year 2012, nothing was paid to him, which constrained him to file application claiming gratuity before the Controlling Authority. The said proceedings culminated vide order dated 27.08.2014 passed by the Appellate Authority directing the respondents to confer the benefit of gratuity of Rs.83,293/- on the basis of 24 years of service. Even after passing of such order against the respondents, they did not grant the petitioner any benefit of pension, which constrained him to file the captioned writ petition. The respondent cannot take shelter under the pretext of delay for denying the benefits of pension flowing from the Government Resolution dated 17.10.1988 and the Government Resolution dated 15.09.2014. Non- payment of pension is a recurring cause and the workman has to suffer every day only for the non-payment of retirement benefits to him and hence, the writ petition cannot be thrown out on the ground of delay.

13. It appears that after issuance of the Government Resolution dated 15.09.2014, there were subsequent proceedings with regard to its clarification and ultimately, the Apex Court in the case of PWD And Forest Employees Union & Ors. (supra) has clarified the aforesaid resolution and the Supreme Court has ordered to confer the benefits to the employees of the respondent-Department. After the judgment passed by the Supreme Court in the case of PWD And Forest Employees Union & Ors. (supra), the respondent-Department passed Government Resolution dated 21.06.2019 clarifying the Government Resolution dated 17.10.1988 and also the Government Resolution dated 15.09.2014.

14. It is not in dispute that the Government Resolutions dated 17.10.1988 and 15.09.2014 were under scrutiny by the Apex Court in the

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case of PWD And Forest Employees Union & Ors. (supra). The Supreme Court has held that the workmen, who complete 5, 10 and 15 years of service, are required to be placed in regular pay-scale and accordingly, they are also required to confer the pensionary benefits. The dispute with regard to applicability of the aforesaid resolutions to the daily wagers working in the various departments of the State of Gujarat, is no more res integra. Thus, the respondents are directed to confer the benefits arising from the Government Resolution dated 17.10.1988 read with Government Resolution dated 15.09.2014, which would be applicable to the petitioner's case and accordingly, he shall be conferred all the benefits, including the pension and retirement benefits, which he would be entitled as per the judgment of the Supreme Court in the case of PWD And Forest Employees Union & Ors. (supra).

15. The respondents are also directed to confer the six benefits such as Public holidays, Transport allowance, Leave Encashment, counting service for purpose of pension, medical allowance and group insurance as ordered by the Division Bench in the judgment dated 28.12.2018 passed in Letters Patent Appeal No.1567 of 2018. In a recent decision of the Division Bench in case of Arjanbhai Virabhai Bambhania vs State of Gujarat, rendered in Letters Patent Appeal No.6241 of 2020 vide order date 27.08.2021 the Division Bench, after considering array of judgments, has held thus:

"4 We have considered the submissions. The argument advanced by Shri Trivedi today is a day late and a dollar short. May be if such argument had been advanced at an appropriate time, the Court would have examined in that light. But reopening the whole issue today would result into severe discrimination and would be very unjust to the present group of employees who are engaged prior to the employees in the case of Atul C. Soni (supra) which was carried upto the Supreme Court. The learned Single Judge has examined this aspect of the matter in great detail and has referred to the relevant judgments which has resulted into grant of the benefits on the grounds of equality and parity, rather the present employees are holding better case than the case of the employees in case of Atul C. Soni (supra). We may also note here that in the case of Mahendrakumar Bhagvandas (supra), the issue regarding permanency and regularization was considered and the judgment went upto the Supreme Court to be affirmed not once but

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twice. Paragraph 7 and its sub-paragraphs, 8, 9 and 10 of the judgment of the learned Single Judge contain detailed discussion on this aspect. The same are reproduced hereunder:

"7. This takes to the relief for extension of benefits of (i) Transport Allowance; (ii) Travelling Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encashment and (v) Leave Travel Concession on the basis of Resolution dated 17th October, 1988. it is the case of the petition- ers that though the said benefits are not expressly mentioned in the Resolution dated 17th Oc- tober, 1988, they are part of the permanency benefits which are available under the Resolution and when these benefits are available to homogeneous class of permanent employees, the peti- tioners should also be granted the same.

7.1 This issue cannot be said to be res integra in view of decision in Mahendrakumar Bhag- vandas (supra). Those were the petitioners who were dailyrated employees, regularise in ser- vice under the Resolution dated 17th October, 1988 and all benefits as regular government servants were extended to them except the leave encashment, leave travel concession, etc. They had approached this Court with grievance that by not extending the said benefits, the au - thorities had discriminated them, as though they were accorded permanency benefits, it was minus of the aforesaid benefits of encashment of leave, travelling allowance, etc., even as these benefits were part and parcels of permanency status.

7.1.1 In Mahendrakumar Bhagvandas (supra), the Division Bench confirmed the judgment of the learned Single Judge, noted the submissions on behalf of the State authorities thus,

"2. Learned AGP reiterated the argument that even as workmen concerned were entitled to, and were in fact granted most of the benefits at par with regular employees of the State, in terms of Government Resolution dated 17.10.1988, some of the benefits such as encashment of leave, leave travel assistance, travelling alllowance, uniform allowance etc. were denied to them on the basis that they were not fullfledged duly recruited government servants. Learned AGP relied upon subsequent government resolution dated 18.7.1994, whereby it was sought to be clarified that the word 'permanent' in G.R. dated 17.10.1988 was meant to convey job secu- rity but it was not meant to be understood to make daily rated employees regular employees on the set up and establishment of respective departments. It was fairly conceded that entitle - ment of the employees concerned was wholly dependent upon reading and interpretation of G.R. dated 17.10.1988."

7.1.2 The Division Bench thereafter considered the object, applicability and scope of Govern - ment Circular dated 17th October, 1988 and further noted the clauses in the subsequent Reso- lution dated 18th July, 1994. It was thereafter observed in paragraph 5 to hold as under.

"5. ... ... ... subsequent G.R. dated 18.7.1994 is expressly superseding the instructions con- tained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent ser- vice are already accorded to the employees concerned in terms of G.R. dated 17.10.1988. Un- der such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the re- maining few benefits. Once the employees concerned were, in fact, treated for all purposes as permanent employees in terms of G.R. dated 17.10.1988, any discrimination or denial of ben- efits for a segment of such employees, who were subsequently re-branded as "daily wager" (rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be coun- tenanced in the face of Articles 14 and 16 of the Constitution. Nor can the State Government legally take away the rights conferred and benefits, already accorded to the employees con- cerned by or under a subsequent government resolution, which expressly supersedes earlier in- structions and not earlier G.R. dated 17.10.1988 by which the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 years would be made permanent under G.R. dated 17.10.1988 but subsequently re- branded and treated as a daily wager. The submission of learned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and that they were at best "permanent daily wage employees", is contradic- tory and has no backing of any legal provision or precedent. ... ... ..."

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7.2 On behalf of respondent No.1 State, affidavit-inreply was filed through the Under Secre- tary, Narmada Water Resource, Water Supply and Kalpsar Department in which it was ac- cepted that Special Leave Petition Nos.29108-29114 of 2014 was disposed of by the Apex Court and the question of granting benefits to the dailywagers of respondent No.2 Board at- tained finality and that the entitlement of the petitioners for grant of benefits concerned is within the purview of respondent No.2 Gujarat Water Supply and Sewerage Board. However, respondent No.1 expressed objection to the grant of the prayer in respect of extending the ben- efit of various allowances such as Transport Allowance, Leave Encashment, Leave Travel Concession, etc., by submitting that the issue with regard to grant of these benefits to daily- wagers is pending in Letters Patent Appeal (Stamp) Nos.1134 of 2017 and 1271 of 2017. Dealing with the said aspect of pendency of said Letters Patent Appeals, no orders are passed in the said Letters Patent Appeals.

7.3 Not only that and in in any view, the employees involved in the said Letters Patent Ap- peals are the employees of the Departments of the Government whereas the present petitioners are the employees of respondent No.2 Board. They are identically placed with other similarly situated employees of the same Board who are granted the benefits claimed in the petition. Therefore, since the petitioners belonged to the homogeneous class, they are entitled to the same benefit and same treatment. As far as the entitlement of this class of employees working under the respondent No.2 Board, the issue can be said to have already been considered and decided.

7.4 There is yet another reason as to why the petitioners herein could not be denied the equal treatment in respect of payment of the allowances of transport allowance, travelling al- lowance, etc. Subsequent to the orders of the Supreme Court in Special Leave to Appeal (Civil) Nos.29108-29114 of 2014 mentioned above, similarly placed batch of employees were granted the benefits by the respondent Board by passing Office Order No.59 of 2016 dated 02nd September, 2016 in which, along with granting of benefits of 6th Pay Commission, the Board also accorded benefits of the allowances mentioned hereinabove. A reference is made to this office order in paragraph 5.4 in Anand Bhausaheb Pawar (supra). Therefore, as far as the Board's employees are concerned and all those other similarly situated, these benefits to be extended to them as flowing from the status of permanency which they may acquire by getting benefit of Resolution dated 17th October, 1988.

8. The issues in the controversy and claims of and relief prayed for by the petitioners operate interactively. The decision in Atul C. Soni (supra) was also based on the Division Bench deci- sion in Mahendrakumar Bhagvandas (supra).

8.1 It is to be further noticed that the decision in Mahendrakumar Bhagvandas (supra) was challenged before the Supreme Court by filing Special Leave Petition (Civil) Nos.19970- 19975 of 2012 which came to be dismissed by order dated 09th November, 2012. Thereafter the review applications came to be filed by the State being Nos.35043-35048 of 2012 and the said review applications were also dismissed on 14th May, 2015. Therefore, the decision in Mahendrakumar Bhagvandas (supra) having attained finality upto the stage of the Apex Court, stands to operate to apply to the present petitioners and all other similarly situated employees for the purpose of their claim to be granted the allowances in question as part of permanency benefits.

9. In the above view, class of the daily-wagers to which the petitioners herein belonged, have to be held entitled to the relief prayed in paragraph 33(C) and the benefits of (i) Transport Al- lowance; (ii) Travelling Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encash- ment and (v) Leave Travel Concession are required to be extended to them in the same lines as they are extended to the permanent employees since these petitioners are also treated as permanent on the basis of Resolution dated 17th October, 1988.

9.1 The view taken as above stand solidified by subsequent decisions on the aspect. In Vallab- hbhai Chhotabhai Chauhan v. State of Gujarat being Special Civil Application No.1945 of 2014, the petitioner therein was a retired daily-wager who prayed that he was entitled for en- cashment of privilege leave. The petitioner was appointed as daily-wager and was granted benefit of permanency under Resolution dated 17th October, 1988. Learned Single Judge re- lied on Mahendrakumar Bhagvandas (supra) and allowed the petition holding that the peti-

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tioner was entitled to the encashment of privilege leave to the extent of 300 days. This deci - sion in Vallabhbhai Chhotabhai Chauhan (supra) was confirmed by the Division Bench in Let- ters Patent Appeal No.1310 of 2015 decided on 30th October, 2015.

9.2 Referring to the decision of Division Bench in State of Gujarat v. Mahendrakumar Bhag- vandas (supra), it was observed in the aforementioned judgment dated 30th October, 2015 as under.

"6. When the decision of the Division Bench of this Court, which has been relied upon by the learned Single Judge is not interfered with by the Apex Court in the afore referred proceedings of SLP and the review is also dismissed, in our view, it cannot be said that the learned Single Judge had committed any error in exercise of the power, which may call for interference in the present appeal. Further, when the SLP is also dismissed against the above referred decision of the Division Bench of this Court in the case of State of Gujarat (supra) and the review applica - tion is also subsequently dismissed, such would be a further more ground not to interfere with the order of the learned Single Judge."

9.3 The same question came to be dealt with by another Division Bench of this Court in Gu - jarat Water Supply and Sewerage Board v. Jorubhai Jijibhai Dabhi being Letters Patent Ap- peal No.457 of 2016 wherein also the original petitioner had claimed benefit of leave encash- ment upon his retirement. Learned Single Judge allowed the petition, against which Letters Patent Appeal No.457 of 2016 was preferred. The Division Bench relied on Mahendrakumar Bhagvandas (supra) and confirmed the decision of the learned Single Judge by dismissing the appeal.

10. The aforesaid facts and the principles of law highlighted, render the inaction on part of the respondent authorities (a) in not extending the benefits of 6th Pay Commission to the petition - ers; (b) in not merging 50% Dearness Allowance in the basic salary with effect from 01st April, 2004 and (c) in not granting the benefits of allowances (i) Transport Allowance; (ii) Travelling Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encashment and (v) Leave Travel Concession as part of permanency benefits though the benefit of permanency is granted to the petitioners under Resolution dated 17th October, 1988, as violative of petition- ers' rights under Article 14 read with Article 16 of the Constitution. This discrimination has to be finally smothered by granting the relief."

Thus, the law on the issue raised in the writ petition is well settled by catena of decisions of this Court. The petitioner is entitled to five benefits as stated hereinabove.

16. Appropriate orders fixing and payment of retirement benefits as narrated hereinabove shall be passed within a period of two months from the date of receipt of the writ of this judgment. It is clarified that, if the aforesaid benefits are not paid within the time stipulated by this Court, it shall carry interest 9% per annum from the date of retirement till the payment of such benefits.

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

Sd/-

(A. S. SUPEHIA, J) ABHISHEK/76