Gujarat High Court
Jaswant Mandabhai Sumad vs State Of Gujarat on 28 February, 2022
Bench: Biren Vaishnav
C/SCA/14612/2019 JUDGMENT DATED: 28/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14612 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 14612 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 15274 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JASWANT MANDABHAI SUMAD
Versus
STATE OF GUJARAT
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1,2,3,4
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 28/02/2022
ORAL JUDGMENT
1 Rule returnable forthwith. Mr.Kurven Desai, learned Assistant
C/SCA/14612/2019 JUDGMENT DATED: 28/02/2022
Government Pleader waives service of rule on behalf of the State-
respondent. With the consent of the learned advocates, taken up for final
hearing.
2 In both these petitions under Article 226 of the Constitution of
India, the prayer of the petitioners is that the benefits of the Resolution
dated 17.10.1988 be granted to the petitioners from the date the
petitioners completed ten years of service and counting the date of initial
appointment as the relevant date. The case of the petitioners is that they
have been working with the department since many years. Service details
of each petitioner is shown in tabular form as above.
Service Details of Petitioners of SCA No.14612 of 2019
Sr Name of workman Designation Dt of Age
No. Appointment
1 Jaswant Mandabhai Sumad Computer 12.05.2003 37
Operator
2 Vijaysinh Natubhai Ward Servant 01.01.1995 38
Chauhan
Parmar
4 Dayaben Devambhai Vala Aayaben 01.01.2019 55
Service Details of Petitioners of SCA No.15274 of 2019
Sr Name of workman Designation Dt of Age
No. Appointment
1 Dineshbhai Laxmanbhai Ward Servant 01.01.2000 40
Solanki
2 Rashida Mamadbhai Baloch Aayaben 01.01.2003 38
C/SCA/14612/2019 JUDGMENT DATED: 28/02/2022
3 Paruben Danabhai Chavda Aayaben 01.01.1983 50
2.1 Their services were terminated and on the challenge to the
termination by the petitioners before the Labour Court, the Labour Court
allowed the references and granted reinstatement with continuity of
service with 10% backwages. On a challenge before this Court by the
employer, the awards were modified, inasmuch as, the backwages were
set aside.
2.2 The case of the petitioners is that the benefits of the Resolution
dated 17.10.1988 based on the awards granting continuity of service
should be granted from the first date of appointment which are mentioned
above.
3 Mr.U.T.Mishra, learned counsel for the petitioners, would rely on
an oral order dated 18.06.2018 passed in Letters Patent Appeal No.1268
of 2017, para 5 to 7 of which read as under:
"(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 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
C/SCA/14612/2019 JUDGMENT DATED: 28/02/2022
entitled to get the benefits flowing from the Government
Resolution dated 17.10.1988, and such benefits cannot be
denied to the respondentworkman 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.
(6) We are in complete agreement with the observations
made by the learned Single Judge in order dated
05.05.2016 passed in Special Civil Application No.7713 of
2016.
(7) For the forgoing reasons, the Letters Patent Appeal fails and
is accordingly dismissed. The order dated 05.05.2016
passed by the
learned Single Judge in Special Civil Application No.7713
of 2016 shall be complied with by the appellants.
Necessary orders granting the aforesaid benefits, as
observed by the learned Single Judge, shall be paid to the
respondent workman within a period of 03 (three) months from
today."
4 In view of the aforesaid observations of the Division Bench, the
petitions are allowed. The stand of the resondents in denying the benefits
flowing from the Government Resolution dated 17.10.1988 without
considering the award having granted continuity of service is set aside.
Once it has been established that the petitioners have been reinstated with
C/SCA/14612/2019 JUDGMENT DATED: 28/02/2022
continuity of service, the benefits of the Resolution dated 17.10.1988
ought to be granted to the petitioners from their initial date of
appointment.
The respondent shall carry out the exercise of computing the
benefits to be paid within a period of 12 weeks from the date of receipt of
copy of this order. The petitions are allowed, accordingly. Rule is made
absolute to the aforesaid extent.
It is clarified that while extending the benefits of the Resolution
dated 17.10.1988, the five allowanves and leave encashment for the
present shall not be granted to the petitioners. Their case for such benefits
be considered subject to the outcome of the decision of the Hon'ble
Supreme Court in the pending Special Leave to Appeal.
In view of disposal of the main matter, civil application also stands
disposed of, accordingly.
(BIREN VAISHNAV, J)
Bimal
