Gujarat High Court

Indra Kumar Fakiraji Bhil vs State Of Gujarat on 26 July, 2022

Bench: Biren Vaishnav

      C/SCA/3517/2022                             JUDGMENT DATED: 26/07/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 3517 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

================================================================
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 ?

================================================================
                         INDRA KUMAR FAKIRAJI BHIL
                                  Versus
                        STATE OF GUJARAT & 3 other(s)
================================================================
Appearance:
MR KRISHNAN M GHAVARIYA(8133) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2,3,4
================================================================

     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 26/07/2022

                              ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Utkarsh Sharma, learned

Assistant Government Pleader waives service of notice of

Rule for the respondents.

C/SCA/3517/2022 JUDGMENT DATED: 26/07/2022

2. With the consent of the learned advocates for the

respective parties, the petition is taken up for final hearing

today.

3. By way of this petition, under Article 226 of the

Constitution of India, the petitioner has prayed for granting

the benefits of GR dated 17.10.1988 in favour of the

petitioner.

4. The facts in brief would indicate that the petitioner was

working as a Daily Rated employee since 1989. His

services were terminated with effect from 20.09.1991. An

industrial dispute was raised and the Labour Court by an

award dated 8.4.2008 directed reinstatement with

continuity of service. Challenge to the award failed as SCA

No.8426 of 2009 was dismissed on 18.3.2010.

5. Considering the fact that the award of reinstatement was

with continuity of service and in view of the order dated

2.2.2022 passed by this Court in SCA No.7780/2019 which

reads as under, the benefits of the Resolution need to be

C/SCA/3517/2022 JUDGMENT DATED: 26/07/2022

granted.

"1. In view of the averments made in the memo of the Civil Application for fixing date of hearing, the same is allowed and the main matter is taken up for final hearing today.

2. Heard Mr.Krishnan Ghevariya learned advocate for Mr.Murli Devnani learned advocate for the petitioner and Mr.Meet Thakkar learned AGP for the respondent State.

3. The case of the petitioner is that the petitioner is entitled to the benefits of the resolution dated 17.10.1988 in view of the fact that the award of the Labour Court though silent on the aspect of continuity of service which was actually meant to have given such benefit.

4. Mr.Ghevariya would rely on the order dated 15.09.2021 passed by this Court in Special Civil Application No.14297 of 2019.

5. Mr.Meet Thakkar would rely on paragraphs 4 to 6 of the affidavit in reply filed to submit that the petitioner was employed in the year 1987- 88 in the project 'Gramya Marg Yojna' as unskilled daily wager. He was retained for the road site for this particular project only and after completion of which in the year 1988-1989, he was no more retained and therefore he is not entitled to the benefits of the resolution dated 17.10.1988. The petitioner after the order was challenged in Special Civil Application No.23927 of 2007 by respondent on a direction was reinstated in service and the same was complied with on 02.04.2013.

6. This Court while dealing with the similar

C/SCA/3517/2022 JUDGMENT DATED: 26/07/2022

issue, in Special Civil Application No.14297 of 2019, on 15.09.2021 has passed the order. The relevant paragraphs of which read as under:

"8. I have heard the learned advocates appearing for the respective parties.

9. As noted herein above, 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 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 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

C/SCA/3517/2022 JUDGMENT DATED: 26/07/2022

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 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 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.

C/SCA/3517/2022 JUDGMENT DATED: 26/07/2022

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 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

C/SCA/3517/2022 JUDGMENT DATED: 26/07/2022

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 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."

7. In view of the above, the petition is allowed. The respondents are directed to extent the benefits of resolution dated 17.10.1988 by treating his service as continuous from the date of termination till reinstatement. Such compliance shall be done within a period of six weeks from the date of receipt of copy of this order."

6. In view of above, the petition is allowed. The respondents

C/SCA/3517/2022 JUDGMENT DATED: 26/07/2022

are directed to extent the benefits of resolution dated

17.10.1988 by treating his service as continuous from the

date of termination till reinstatement. Such compliance

shall be done in accordance with law within a period of ten

weeks from the date of receipt of copy of this order.

7. However, it is made clear that while considering the issue

of granting the benefit of GR of 17.10.1988 to the

petitioner, the State shall also take into consideration the

decision of the Hon'ble Supreme Court in the case of State

of Gujarat Vs. PWD & Forest Employees Union