Gujarat High Court
Savshibhai Jivabhai Chauhan vs State Of Gujarat on 14 February, 2022
Bench: Biren Vaishnav
C/SCA/389/2020 ORDER DATED: 14/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 389 of 2020
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 389 of 2020
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SAVSHIBHAI JIVABHAI CHAUHAN
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 14/02/2022
COMMON ORAL ORDER
1. Since the issue involved in the main petition is
covered by the decisions rendered by this Court,
Civil Application for fixing date of hearing is
allowed and with the consent of learned advocates
for the respective parties, the main matter is taken
up for hearing today.
2. RULE returnable forthwith. Learned AGP
Mr.Kurven Desai waives service of Rule on behalf of
the respondents.
3. In this petition under Article 226 of the Constitution
of India, the prayer of the petitioner is to direct the
respondents to grant the benefits of the resolution
dated 17.10.1988 to the petitioner from initial date
of joining considering the fact that by virtue of the
award of the Labour Court dated 29.08.2009,
C/SCA/389/2020 ORDER DATED: 14/02/2022
reinstatement was granted with continuity of
service, in the award made though not have
specifically mentioned the word "continuity".
4. Mr.P.C.Chaudhary learned counsel for the petitioner
would draw the attention of this court to a decision
rendered by the coordinate bench of this Court in
Special Civil Application Nos.13095 of 2016 and
2192 of 2017, wherein considering several decisions
of this Court including the decision of the Supreme
Court, the Court in Special Civil Application
Nos.13095 of 2016 held as under:
"5. In Vasantika R. Dalia Vs. Baroda Municipal
Corporation [1998(2) LLJ 172], this Court was
posed to interpret the judgment and award of the
Labour Court which granted the relief of
reinstatement to the workmen. The relief of back-
wages was denied and the relief of continuity of
service was not denied specifically and that in the
relief of reinstatement granted, the word
'continuity' was not mentioned.
5.1 The Court observed to lay down that "It
may be straightaway observed that once the relief
of reinstatement is granted, the continuity of
service is a direct consequence rather inherent in
the relief of this nature". It was held that when
the relief of reinstatement was granted and the
continuity of service was not specifically denied,
the workman has to be relegated to the same
position as was held by it at the time of
termination. When the order of termination was
found to be void, the petitioner, it was held, would
be entitled to hold the relief of reinstatement with
continuity where there was no mention of specific
C/SCA/389/2020 ORDER DATED: 14/02/2022
denial to such continuity.
5.2 The Supreme Court in Gurpreet Singh Vs.
State of Punjab and others [2002 (92) FLR 838],
held that once the plaintiff was directed to be
reinstated in service upon setting aside of the
order of termination, continuity of service could
not be denied. The Court observed that the case
was not of fresh appointment but it was one of
reinstatement and that being the position, it was
observed that the High Court was in error in
denying the continuity of service.
6. Thus and therefore, even though the judgment
and award of the Labour Court had not expressly
granted the continuity, at the same time it did not
deny the continuity in any expressed terms. The
grant of continuity would have to be read with the
order of reinstatement. The petitioner would be
entitled to be treated continuous in service upon
reinstatement. Resultantly, the petitioner would
be entitled to be granted the benefits of resolution
dated 17.10.1988 accordingly by reckoning his
services C/SCA/13095/2016 ORDER the Supreme
Court in Gurpreet Singh (supra), the concept of
continuity could not be distinguished for the
purpose of granting any other service benefits.
Learned Assistant Government Pleader made a
failed attempt to submit that the continuity for the
purpose of granting benefits under resolution
dated 17.10.1988 may be treated differently. Any
such distinction would be artificial distinction.
once the labour court granted the reinstatement
and the continuity was not expressly denied, the
continuity benefit could be said to be deemed to
have been granted and by deeming fiction the
services of the petitioners should have to be
treated as continuous upon their reinstatement.
6.2 Not only that the averments in the petition
remained undisputed that other similarly situated
employees shri Pravinbhai Madhavbhai, shri
Manubhai Govindbhai and shri Maheboob
C/SCA/389/2020 ORDER DATED: 14/02/2022
Husainbhai in whose favour also there was
judgment and award of the labour court in similar
way, they were shown to have extended the
benefits of resolution dated 17.10.1988 by passing
order dated 29.5.2009 by the authorities. The
petitioners are liable to be treated with parity for
the purpose of extension of benefits in question.
6.3 The petitioners cannot be treated differently
once the similarly placed employees were
extended the benefits of resolution dated
17.10.1988 by considering their services as
continuous after the reinstatement is effected
pursuant to labour court's judgment and award.
In the above view, the denial of continuity of
service to the petitioner would stand only for
breach of Article 14 of the Constitution.
7. As a result of the above discussion, the petition
deserves to be allowed. The respondents are
directed to confer and grant the benefits to the
petitioner under resolution dated 17.10.1988 of
the State Government by reckoning the services
of the petitioner from the initial date of his joining
and depending upon the completion of requisite
number of years to confer the corresponding
benefits under the said resolution. The services of
the petitioner shall be treated as continuous with
effect from the initiate date of joining till the date
of reinstatement and notional benefits would be
calculated and granted for the period from the
date of reinstatement onwards. The arrears which
may arise and become payable by virtue of this
order from onwards the date of reinstatement
shall be paid by the authorities to the petitioner
within a period of ten weeks from the date of
receipt of the present order."
5. In the latter decision of the Division Bench of this
Court in case of Secretary v. Rajendrasinh
Hamirsinh Parmar rendered in LPA No.1527 of
C/SCA/389/2020 ORDER DATED: 14/02/2022
2019 relying on the decision of the Supreme Court
in case of Nandkishore Shravan Ahirrao v. Kosan
Industries Private Limited [2020 LLR 813]
confirmed the decision of the learned Single Judge.
6. Accordingly, the petition is allowed. The
respondents are directed to confer and grant the
benefits to the petitioner under resolution dated
17.10.1988 of the State Government by reckoning
the services of the petitioner from the initial date of
his joining and depending upon the completion of
requisite number of years to confer the
corresponding benefits under the said resolution.
The services of the petitioner shall be treated as
continuous with effect from the initial date of joining
till the date of reinstatement and notional benefits
would be calculated and granted for the period from
the date of reinstatement onwards. The arrears
which may arise and become payable by virtue of
this order from onwards the date of reinstatement
shall be paid by the authorities to the petitioner
within a period of ten weeks from the date of receipt
of the present order.
7. The petition is allowed in the aforesaid terms. Rule
is made absolute accordingly.
(BIREN VAISHNAV, J)
ANKIT SHAH
