Babubhai Popatbhai Halvadiya vs State Of Gujarat
2022 Latest Caselaw 5434 Guj

       C/SCA/9287/2022                               ORDER DATED: 24/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9287 of 2022

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                         BABUBHAI POPATBHAI HALVADIYA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 3
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1,2,4
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 24/06/2022

                                 ORAL ORDER

1. Heard Mr. P.C. Chaudhari, learned advocate appearing for the petitioners and Mr. Soaham Joshi, learned AGP for the respondent State.

2. Rule returnable forthwith. Learned AGP Mr. Soaham Joshi 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 petitioners is to direct the respondents to grant the benefits of the resolution dated 17.10.1988 to the petitioners from initial date of joining considering the fact that by virtue of the award of the Labour Court dated 26.12.2006, reinstatement was granted with continuity of service, in the award made though not have specifically mentioned the word "continuity".

4. Mr. P.C. Chaudhari, learned counsel for the petitioners would draw the attention of this court to a decision rendered by the coordinate bench

C/SCA/9287/2022 ORDER DATED: 24/06/2022

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 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

C/SCA/9287/2022 ORDER DATED: 24/06/2022

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 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

C/SCA/9287/2022 ORDER DATED: 24/06/2022

order."

4. In the later decision of the Division Bench of this Court in case of Secretary v. Rajendrasinh Hamirsinh Parmar rendered in LPA No.1527 of 2019 relying on the decision of the Supreme Court in case of Nandkishore Shravan Ahirrao v. Kosan Industries Private Limited [2020 LLR 813], the Division Bench confirmed the decision of the learned Single Judge. Accordingly, the present petitioners also deserve to be given the same benefit and therefore the petition is required to be allowed.

5. Accordingly, the petition is allowed. The respondents are directed to confer and grant the benefits to the petitioners under resolution dated 17.10.1988 of the State Government by reckoning the services of the petitioners 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 petitioners 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 petitioners within a period of twelve weeks from the date of receipt of the present order. Rule is made absolute accordingly.

(BIREN VAISHNAV, J) DIVYA