Gujarat High Court
Vishnuji Sursingji Thakore vs State Of Gujarat on 27 January, 2022
Bench: Biren Vaishnav
C/SCA/66/2019 JUDGMENT DATED: 27/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 66 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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VISHNUJI SURSINGJI THAKORE
Versus
STATE OF GUJARAT
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP (1) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 27/01/2022
ORAL JUDGMENT
1. Heard Mr.M.T.Mishra learned advocate for the
petitioner and Mr.Kurven Desai learned AGP for the
State.
2. Draft amendment is granted. To be carried out
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forthwith.
3. RULE returnable forthwith. Mr.Kurven Desai
learned AGP waives service of notice of Rule on
behalf of the respondent State.
4. With the consent of learned advocates for the
respective parties, the petition is taken up for final
hearing.
5. In this petition under Article 226 of the Constitution
of India, the prayer of the petitioner is to set aside
the orders dated 18.03.2013 and 28.09.2018
respectively. The challenge to these petitions arises
in the background of following facts.
6. The case of the petitioner is that he was initially
appointed in the year 1987 as Auto-Cleaner in the
pay scale of Rs.750/-. The services of the petitioner
came to be illegally terminated and therefore the
petitioner raised an industrial dispute which was
registered as Reference (LCA) No.2086 of 1995. By
an award dated 29.12.2004, the Labour Court
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directed that the petitioner be reinstated with 50%
of back-wages. Upon a challenge before this Court
in Special Civil Application No.16329 of 2005, the
petition was partly allowed on 07.08.2012 and the
award was only modified to the extent of back-
wages. By an order dated 28.09.2018, the benefits
of Government Resolution dated 17.10.1988 was
extended to the petitioner on completion of five
years from 04.03.2013, the date on which, the
petitioner was reinstated pursuant to the award in
question. The order of reinstatement recorded that
the period from 14.03.1995 to 03.03.2013 shall be
treated as absence.
7. Mr.M.T.Mishra learned counsel for the petitioner
would submit that having been allowed to be
reinstated in service and the order of termination
being set aside, continuity of service ought to have
been read into the order of Labour Court and the
benefits of the resolution dated 17.10.1988 ought to
have been granted to the petitioner from the date of
his initial appointment. In support of his
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submissions that even when the award of the Labour
Court is silent from the aspect of reinstatement, that
has to be read into the award is based on several
decisions of this Court.
8. Mr.Mishra would rely on a decision of the Division
Bench dated 23.11.2012 rendered in case of Heirs
of Decd. Dhirubhai Lavabhai Suvagiya and
others v. Range Forest Officer rendered in
Letters Patent Appeal No.1132 of 2018. Mr.Mishra
would submit that in the aforesaid judgment, the
Division Bench of this Court has relied upon
decisions of the Supreme Court. Paras 4 to 7 of the
said judgment read as under:
"4. In course of hearing, learned advocate for the
appellants submitted that he would not press
challenge in respect of reduction of back wages.
Even otherwise, learned Single Judge reduced the
back wages to modify the award applying the
facts and exercising his discretion in that respect.
The grant of back wages is discretionary which
exercise has undertaken by learned Single Judge
and we, in Letters Patent Appeal, would not, in
any case, substitute our view. Therefore, when
part of the direction of learned Single Judge
modifying the award of the Labour Court in
respect of grant of back wages is not interfered
with.
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4.1 The third aspect which was really interjected
by learned Single Judge was about grant of
continuity. The Labour Court in its judgment and
award granted continuity of service to all the
workmen. The direction to grant continuity of
service came to be set aside by learned Single
Judge. He reasoned in paragraph No.18 that, "In
view of the persons who were engaged without
following procedure prescribed by law and who
had not completed service of more than 4 to 5
years before they were relieved and that the
persons who were engaged on adhoc and daily
wage basis, the order directing the employer to
treat their service continues for entire duration
cannot be sustained.".
5. The direction of reinstatement of the workmen
issued by the Labour Court and confirmed by the
learned Single Judge was confined on the finding
that there was a breach of Sections 25F, 25G and
25H of the Industrial Disputes Act. It is trite
principle that reinstatement when granted, in all
ordinary circumstances, would accompany with
grant of continuity of service. The reasoning that
services of the workmen were only of four to five
years or that they were the persons engaged in
the ad hoc capacity, were not the valid or
germane reasons in eye of law to set aside the
benefit of continuity of service granted to them by
the Labour Court.
6. In Gurpreet Singh v. State of Punjab and
Haryana [(2002) 9 SCC 492], while the appellate
court had directed reinstatement of the employee,
the claim for arrears of salary was denied and it
was further provided that the plaintiff would not
be entitled to get the benefit of continuity of his
service. The Supreme Court stated that once the
plaintiff was directed to be reinstated in service
upon setting aside the order of termination,
continuity of service could not have been denied.
The Supreme Court proceeded to observe,
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" ... ... ... 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 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." (Para 3)
6.1 Also in Nandkishore Shravan Ahirrao v. Kosan
Industries (P) Ltd. [AIR 2020 SC 1776], the
proposition of law was reiterated. In that case,
the Labour Court had not specifically denied the
continuity of service. The Supreme Court
observed that the appellant would be entitled to
continuity of service. It was stated in paragraph
No.7 "Ex facie, the Labour Court having awarded
reinstatement to the appellant, continuity of
service would follow as a matter of law.".
7. In view of above, the direction of the learned
Single Judge in impugned order setting aside the
benefit of continuity granted to the appellants
workmen is not sustained. The benefit of
continuity accorded by the Labour Court would
hold to the benefit of the appellants and all the
consequential benefits to the appellants which
may become payable by virtue of the judgment
and award of the Labour Court would be together
with continuity of service."
9. Emphasis is made by Mr.Mishra on the observations
of the Division Bench that when there is an award of
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reinstatement, continuity of service would follow as
a matter of law. Decision in case of Nandkishore
Shravan Ahirrao v. Kosan Industries (P) Ltd.
[AIR 2020 SC 1776] is also relied upon and
paragraphs 6 to 8 are referred to. Reliance is also
placed on the decision in case of Gurpreet Singh v.
State of Punjab and Haryana [(2002) 9 SCC
492].
10. Mr.Mishra would also rely upon the Division Bench
decision of this Court in Letters Patent Appeal
No.485 of 2017 dated 20.07.2021. It was relied
upon by the coordinate bench of this Court while
dealing with an order in case of Hamirbhai
Meghabhai Gohil v. State of Gujarat passed in
Special Civil Application No.21123 of 2018 on
03.01.2022. Paragraphs 11 to 20 of this order read
as under:
"11. The facts, as narrated hereinabove, are not in
dispute. The Labour Court vide award dated
29.03.2007 while examining the case of the
present petitioner and the co-employee namely
Danabhai Kalabhai in Reference (LCS) No.184
of 2000 has directed the respondent authorities
to reinstate him on his original post. However,
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it appears that no directions were issued with
regard to continuity of service. Shri Danabhai
Kalabhai had approached this Court by filing
Special Civil Application No.18154 of 2015
claiming the same relief as claimed by the
present petitioner since he was denied the
benefit flowing from the Government
Resolution dated 17.10.1988. A similar
contention was raised, which is raised in the
present petition that since the Labour Court
did not observe with regard to continuity of
service, the benefit of the Government
Resolution dated 17.10.1988 cannot be
extended to the petitioner. The Coordinate
Bench of this Court after survey of judgments
of the Apex Court has held that once the
Labour Court has directed reinstatement, the
same would include continuity of service.
12. Finally, the Coordinate Bench of this Court in
the case of Shri Dananbhai Kalabhai vide order
dated 22.12.2016 has observed thus:-
15. Resultantly, the petitioner is ENTITLED to
the benefits claimed for by him, more
particularly, the benefits flowing from the
Government Resolution dated 17.10.1988,
treating his service to be CONTINUOUS.
He shall be given all other benefits
including consequential benefits from
01.10.1988 to 29.03.2007. DISPOSED OF,
accordingly.
13. The judgment dated 22.12.2016 was subject
matter of challenge before the Division Bench
in Letters Patent Appeal No.485 of 2017. The
Division Bench by the order dated 20.07.2021
rejected the appeal by observing thus:-
"6. We do not find substance in both the
aforesaid submissions of the learned
counsel appearing for the appellants. So
far as the aspect of delay is concerned, a
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Coordinate Bench of this Court in an order
passed in a Review Application being
Misc. Civil Application No.1 of 2017 in
Letters Patent Appeal No.906 of 2016
decided on 01.05.2018 has observed in
paragraphs 19 and 20 as under:
"19. Keeping in view the aforesaid decisions,
if the facts of the present case are
examined, it transpires that the
applicant workman had worked with the
respondent authorities during the
period between November, 1987 to
November, 1999. On 30.11.1999, his
services came to be terminated.
Thereafter, demand notice was issued
by the applicant - workman on
26.02.2013. When the reply was not
given, applicant filed a complaint before
the Assistant Labour Commissioner,
Bhavnagar and thereafter dispute was
referred to the Labour Court,
Bhavnagar. It is not in dispute that the
present respondents did not challenge
the order of making reference to the
Labour Court by filing appropriate
proceedings before the appropriate
Court. It is true that there was a delay
of 14 years in raising the dispute.
However, from the record, it is revealed
that dispute was existed as after
terminating the services of the
applicant, his juniors were continued
and even thereafter new workers were
employed by the respondents. Thus, the
dispute was alive.
20. Learned advocate Mr. Trivedi is right in
submitting that if the respondents were
aggrieved by the factum of delay in
making reference, it was for them to
challenge the order of making reference
by the competent authority when the
same was made to the Labour Court.
Thus, when the order of making
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reference was not challenged by the
respondents, said aspect is also
required to be considered while
deciding the issue involved in the
matter."
7. So far as the second submission as
regards continuity of service is
concerned, we referred to an order
passed by a Coordinate Bench of this
Court in Letters Patent Appeal No.1527
of 2019 decided on 23.06.2021 wherein
the Court has observed as under:
"5. On the other hand, Mr.Chaudhari,
learned advocate for the respondent
has taken us through different orders
passed by this Court in similar facts
and circumstances, and has heavily
relied upon decision of Honourable
Supreme Court in the case of
Nandkishore Shravan Ahirrao v.
Kosan Industries Private Limited
[2020 LLR 813]. He would submit
that the Honourable Supreme Court
has held therein that once a person is
reinstated, continuity of service
would follow as a matter of law and,
therefore, the learned Single Judge
has committed no error in allowing
the petition. He would, therefore,
submit that the appeal be dismissed.
6. We have heard learned advocates
appearing for the parties. We have
also gone through the judgment and
award dated 8.11.2016 passed by the
Labour Court, Surendranagar,
whereby the workman is reinstated
but continuity of service is not
granted to him and we find that it is
erroneous. In case of Gurpreet Singh
(supra), which has been relied upon
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by learned Single Judge, it has been
specifically held by Honourable
Supreme Court that reinstatement in
service would follow continuity of
service. In the case of Nandkishore
Shravan Ahirrao (Supra), it is held 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."
7. Similar is the ratio laid down by
Honourable Supreme Court in the
case of Gurpreet Singh (supra).
Hence, the case is squarely covered
under the above decisions of the
Apex court. Hence, the appeal is
meritless and accordingly, appeal is
dismissed. Interim relief, if any,
stands vacated. In view of above
order, Civil Application would not
survive and the same is disposed of."
14. Thus, the directions issued by this Court in the
case of coemployee Shri Danabhai Kalabhai, who
was the party to the Reference (LCS) No.184 of
2000 have become final and accordingly, the
petitioner, whose reference is decided with the
common award along with Shri Danabhai Kalabhai,
cannot be denied the benefits, which are conferred
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to Shri Danabhai Kalabhai.
15. In the order dated 18.06.2018 passed in Letters
Patent Appeal No.1268 of 2017, while dealing with
the same issue, the Division Bench has held thus:-
5.Thus, the upshot of the aforesaid. facts and
discussion is that the present respondent -
workman is dented. 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
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
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completed certain number of years of service.
16. In the order dated 27.03.2018, the Division
Bench, while examining the similar issue in Letters
Patent Appeal No.553 of 2017 and allied appeals,
has held thus:-
3. However, according to learned advocate for
the employer who argued the case before
learned Single Judge, workman Govindbhai
Haribhai Solanki had not actually worked
between 1989 and 2006 and attained the age of
superannuation on completion of 60 years in
the year 2009 and thus, he had hardly worked
for 3 years and not entitled to get the benefit of
Government Resolution dated 17.10.1988.
Another workman Javalben Palaben Kantaria,
she was reinstated in the year 2006 pursuant to
the order of this Court and retired on
17.1.2016 on attaining the age of
superannuation and had put only 9 years and
therefore she also would not be entitled to the
benefit of above Government Resolution.
Various other contentions were raised based on
the scheme of Government Resolution dated
17.10.1988 that it was a policy decision and a
self-contained mechanism worked out to grant
certain benefits to daily rated/causal workers
and cannot have any nexus with provisions of
Industrial Dispute Act. However, learned Single
Judge based on decision of the Apex Court to
which reference was made in para 7 of the
judgement and material on record as emerged
in the writ petition and interpretation put forth
of Government Resolution dated 17.10.1988 in
all such cases, the significance of expression
"continuity of service" was considered and
ultimately held that if the contention of learned
advocate for the employer about actual length
of service rendered by the workman is
considered provisions contained in Government
Resolution as well as Section 25B of I.D.Act,
1947 referred to therein will be nugatory. At
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the same time benefits awarded by the Labour
Court of Government Resolution dated
17.10.1988 to the workman was modified and
held that the workman would be entitled to the
benefits under Government Resolution dated
17.10.1988 by treating them in continuous
service from the initial date of their
appointment till the date of superannuation
with a rider that for the period for which
backwages were denied to them, workmen
would be entitled to receive only notional
benefits under G.R. Dated 17.10.1988.
4. The above conclusion of learned Single
Judge based on various orders passed by this
Court and interpretation put forth in such
decision it cannot be said that period of service
namely length of service of each of the
workman is to be considered from the date of
the award for conferring benefits under
G.R.dated 17.10.1988.
17. Thus, there is a constant view taken by the
Division Benches, which are subsequent to the
judgment dated 12.07.2016 passed in Letters Patent
Appeal No.492 of 2016, on which the reliance is
placed by the respondents that once the Labour
Court orders reinstatement, continuity to such
employee cannot be denied merely because the
Labour Court has failed to record the expression
"continuity of service".
18. Even otherwise, the case of the petitioner is
similarly situated to the co-employee, Shri Danabhai
Kalabhai, in whose case the orders passed by this
Court have become final where the identical prayers
made seeking the benefit of the Government
Resolution 17.10.1988 from 01.10.1988 to
29.03.2007 have been granted by this Court the only
difference is that Shri Danabhai Kalabhai is still in
service, whereas the present petitioner has retired
after rendering 39 years of service on 30.06.2017.
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19. The Supreme Court in the case of Gurpreet
Singh vs. State of Punjab & Ors., (2002) 9 SCC 492
has also held that once the termination is set aside,
the employee cannot be denied continuity of service
once reinstatement is directed. The Apex Court has
held 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 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."
20. Accordingly, the present petition is allowed. The
respondents are directed to confer the benefits
flowing from the Government Resolution dated
17.10.1988 with effect from the petitioner will be
entitled to such from 01.10.1988 notionally up to
29.03.2007 and thereafter, the respondents are
directed to give difference of salary from 30.03.2007
to 30.06.2017 and pay arrears accordingly. The
respondents are also directed to grant retirement
benefits like pension, gratuity and leave encashment
to the petitioner as per the law enunciated by the
Supreme Court in the case of P.W.D, Employees
Union and Others (supra)."
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11. Reliance is also placed on a decision in case of
Shivuben Ambabhai Vasani v. State of Gujarat
passed in Special Civil Application No.14297 of
2019. The relevant paragraphs read as under:
"8. I have heard the learned
advocates appearing for the
respective parties.
9. As noted hereinabove, the award
of the Labour Court dated
30.10.2012 in Reference (LCR)
No.219 of 2001 has become final. By
the said award, the respondents
were directed to reinstate the
petitioner without any back wages,
however, the Labour Court has
failed to observe anything with
regard to continuity of service. At
this stage, it would be apposite to
refer to the decision of the Division
Bench. The Division Bench in a
similar set of facts while examining
the provisions of the Government
Resolution dated 17.10.1988 has
held thus:-
"8. The
undisputed fact in
the present
appeal is that the
respondent-
workman was
terminated from
the service in the
Year-1998 and his
termination was
quashed and set
aside by the
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award dated
12.01.2007. The
Labour Court had
directed the
present
appellants to
reinstate the
present
respondent-
workman without
backwages on his
original post,
however, no
specific reference
was made
regarding
continuity of
service. The Apex
Court in the case
of Gurpreet Singh
(Supra) has
specifically
observed that
once the
termination is set-
aside, the
workman will be
entitled for
continuity of
service since the
same is not fresh
appointment, but
it is a case of
reinstatement.
Accordingly, the
workman was
reinstated by the
order dated
06.10.2008 on his
original post, and
thereafter, also, it
is undisputed fact
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he was conferred
the benefit of
regular pay-scale
till he retired on
13.11.2013 after
rendering 5 years
of service.
9. It is no more
res-integra that,
as per Resolution
dated 17.10.1988,
the workman
would be entitled
to pension and
other retirement
benefits after
completion of 10
years of service.
In present case,
the termination of
the workman is
found to be illegal
and he was
reinstated in
service and was
also paid regular
pay scale. Thus,
he was forced to
remain
unemployed for
the interregnum
period. The
Labour Court,
after examining
the documents on
record, has given
a specific finding
that the workman
had worked for 12
years before his
termination and
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he had also
completed 240
days service.
Thereafter, he
was
reinstatement on
06.10.2008 and
till his retirement
on 30.11.2013, he
had completed 5
years. The
learned Single
Judge has allowed
the writ petition
and has only
directed the
Pension Fixation
Authority to pass
appropriate
orders of fixation
in accordance
with law and it is
further directed
to forward the
papers in that
regard to the
Pension
Sanctioning
Authority, who
after receipt of
the same, shall
pass appropriate
orders. The
learned single
judge has only
given a direction
to the appellants
to pass
appropriate
orders to fix the
pension in
accordance with
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law. This Court
does not find any
illegality or
infirmity in such
directions of
passing
appropriate
orders for fixing
the pension."
10. The Coordinate Bench in the
judgment dated 24.07.2018 passed
in Special Civil Application No.2192
of 2017 while examining analogous
facts has observed thus:-
"3. The Labour Court in its judgment
and award, though directed the
reinstatement of the petitioner, did
not expressly confer the benefit of
continuity of service, therefore, the
moot question is whether the
petitioner would be entitled to
continuous service when the same
was not expressly granted by the
Labour Court while ordering
reinstatement.
4. 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.
4.1 The Court observed to lay down
that "It may be straighaway
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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
denial to such continuity.
4.2 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.
4.3 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
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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 service as continuous
from the date of his initial
appointment. 4.4 When the award of
the Labour Court had not expressly
denied the continuity is to be
interpreted as per the principles of
law laid down by 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."
11. Thus, the respondents are
directed to grant the benefits of the
Government Resolution dated
17.10.1988 by treating his service as
continuous from the date of
termination till reinstatement and
accordingly, confer the benefits of
the Government Resolution dated
17.10.1988."
12. Taking into consideration all the decisions referred
to herein above, the common thread has been
decided by this Court is that when there is an award
C/SCA/66/2019 JUDGMENT DATED: 27/01/2022
of reinstatement by the Labour Court, the award has
to be construed to be an award granting continuity
of service unless otherwise expressly denied. That is
the position of law as held by the Supreme Court in
case of Nandkishore Shravan Ahirrao (supra)
referred to by the Division Bench in case of Heirs of
Decd. Dhirubhai Lavabhai Suvagiya (supra).
13. Even the decision of this Court in case of
Hamirbhai Meghabhai Gohil (supra) it has been
extensively reproduced above would indicate that
based on an award of the Labour Court unless there
is an express denial of continuity of service once the
termination is set aside, continuity of service has to
be read into the order of Labour Court.
14. Accordingly the petition is allowed. The respondents
are directed to confer the benefits flowing from the
resolution dated 17.10.1988 to the petitioner with
effect from 01.10.1988 to 31.01.2005 notionally and
thereafter the respondents are directed to give
salary from 01.02.2005 to the actual date of
C/SCA/66/2019 JUDGMENT DATED: 27/01/2022
reinstatement treating the entire period of service
from the initial date of appointment as continuous.
Necessary orders shall be passed in terms of the
directions issued by this Court within a period of
three months from the date of receipt of copy of this
order.
Rule is made absolute. Direct service is permitted.
(BIREN VAISHNAV, J)
ANKIT SHAH
