Abhesingh Gabesingh Baria vs State Of Gujarat
2022 Latest Caselaw 5362 Guj

      C/SCA/1516/2019                             JUDGMENT DATED: 22/06/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 1516 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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                        ABHESINGH GABESINGH BARIA
                                  Versus
                        STATE OF GUJARAT & 2 other(s)
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Appearance:
MR RAVI B SHAH(5346) for the Petitioner(s) No. 1
MR KURVEN DESAI, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1,
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 2,3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 22/06/2022

                              ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai, learned AGP appearing for respondent State and Mr. Hamesh Naidu, learned advocate appearing for respondents no. 2 and 3 waive service of notice of rule.

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2. By way of this petition, the petitioner has prayed for a writ of mandamus and or direction that the order/letter dated 11.10.2018 by the respondent no. 3 be quashed and set aside by which the stand of the respondent no. 3 is that the petitioner is not entitled to the allotment of GPF number.

3. Facts in brief would indicate that the petitioner was engaged with effect from 05.09.1988 by the respondents Sardar Sarovar Narmada Nigam Limited. On his termination, he approached the Labour Court by filing a reference. The Labour Court vide award dated 30.11.1998 directed reinstatement of the petitioner with backwages from 11.01.1991. The award of the Labour Court granting reinstatement was challenged before this court by filing Special Civil Application No. 1375 of 1999. By order dated 19.07.2005, the Court partly allowed the petition whereby the award granting reinstatement was confirmed whereas the award of backwages was set aside.

3.1 Pursuant to the order of this court, the petitioner resumed his service on 05.09.2005. Request was made by the petitioner that he be allotted GPF number as he had completed more than 20 years of service. The stand of the respondents was that since at the time of reinstatement no prior permission of the government was taken, there was no question of allotting GPF number to the petitioner.

3.2 The petitioner then filed Special Civil Application No. 19277 of 2015 for a direction to quash and set aside the letters dated 19.02.2014 and 23.12.2013 denying allotment of GPF number to the petitioner. To justify the relief, as is evident from the order passed by this court on

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02.04.2018, the case of the petitioner was that once the award of the Labour Court was that of reinstatement with continuity of service and backwages and only the award qua backwages was modified, the petitioner was entitled to benefit of GPF. At the relevant point of time, the respondents had filed a reply wherein it was categorically stated that only in the year 2012 the petitioner made a representation for allocation of GPF after having been reinstated in the year 2005. After extensively noting the objections of the respondents, the court issued the following directions:

"12. In that view of the matter and also having regard to the factual backdrop and the relief prayed for in paragraph No.10(b) of the petition, it appears that present petition cane be disposed of at this stage with following directions:

(a) The competent authority shall take up the case of the petitioner and shall reconsider the petitioner's claim for being member of GPF, i.e. (i) for allotment of GPF number and (ii) for the benefit of government resolution dated 17.10.1988 and (iii) the claim for membership under applicable pension scheme.

(b) The competent authority of the respondents shall grant opportunity of hearing to the petitioner after serving notice.

(c) If the petitioner desires to file written

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submissions, he may submit such representation to the competent authority, at the time of personal hearing.

(d) Thereafter, the competent authority shall pass appropriate order as regards the aforesaid claim of the petitioner.

(e) The competent authority shall pass reasoned and speaking order which shall be conveyed to the petitioner.

                        (f) The       process          should      be     completed            as
                        expeditiously as           possible and preferably                     by
                        15.7.2018.

With the aforesaid clarifications, directions and observations, the petition is disposed of. Notice is discharged."

3.3 It is in this context that the impugned communication dated 11.10.2018 has been passed.

4. Mr. Kurven Desai, learned AGP would fall back upon the affidavit-in-reply filed by the Deputy Director of Pension and Provident Fund and submit that the petitioner was an employee of respondent no. 2. He was terminated and thereafter reinstated in service and the petitioner resumed his service on 05.09.2005 with respondent no. 2. He submitted that the petitioner never raised any dispute with regard to issuance of GPF

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number till 2012. Once the petitioner has been granted the benefit of resolution dated 17.10.1988, beyond the said benefit further benefits cannot be granted as per Mr. Desai. He submitted that the petitioner is not entitled to the benefit of being given GPF number essentially because reinstatement was post 01.04.2005.

5. Mr. Hamesh Naidu, learned advocate appearing for respondent Nigam would support the impugned order dated 11.10.2018 and submit that no interference is called for in the present petition.

6. In support of the case of the petitioner, learned advocate for the petitioner has relied on oral orders passed by this court in Special Civil Application No. 15885 of 2018 dated 15.12.2021 and order dated 09.02.2022 passed in Special Civil Application No. 14304 of 2019.

7. Needless to say that when once the award of the Labour Court granting benefit of continuity of service on reinstatement was confirmed and only the award of backwages was quashed by this court, the reinstatement of the petitioner would relate back to his initial date of appointment prior to his termination from service on 10.01.1991. Time and again this court has held that once reinstatement has been confirmed, the same would be from the initial date of appointment of the workman.

7.1 In the case of Pravinbhai Kantilal Vachhani vs. State of Gujarat decided by this court in Special Civil Application No. 8155 of 2019 on 03.03.2022, this court has held as under:

"9. Reading para 14 categorically indicates that the earlier pension scheme continues to enure to the benefits of those who enter service before 01.04.2005. Admittedly, the case of

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the petitioners is governed by the observations made by the Supreme Court as referred to herein above and having entered service prior to the cut off of date of 01.04.2005, the petitioners are entitled to the benefits of the earliest GPF scheme."

8. In view of the above, since the initial date of appointment of the petitioner has to be considered prior to 01.04.2005 and not his date of reinstatement, the impugned communication is required to be quashed and set aside.

9. Accordingly, the impugned communication dated 11.10.2018 is hereby quashed and set aside. The respondents are directed to allot GPF number to the petitioner and pay terminal benefits as if the petitioner was governed by the Old Pension Scheme and not that of the scheme post 01.04.2005. Petition is allowed accordingly. Rule is made absolute. Direct service is permitted.

(BIREN VAISHNAV, J) DIVYA