Lavjibhai Bhudarbhai Parghi vs State Of Gujarat
2022 Latest Caselaw 2350 Guj

     C/SCA/14041/2016                                  JUDGMENT DATED: 02/03/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14041 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                                        Sd/-
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                                 NO

2     To be referred to the Reporter or not ?                               NO

3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                     NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                   NO
      of India or any order made thereunder ?

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                        LAVJIBHAI BHUDARBHAI PARGHI
                                    Versus
                         STATE OF GUJARAT & 2 other(s)
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR NILESH M SHAH(780) for the Petitioner(s) No. 1.1,1.2,1.3,1.4
for the Respondent(s) No. 1,3
MS KRUTI M SHAH FOR MS HARSHAL N PANDYA(3141) for the
Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1,3
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                               Date : 02/03/2022
                               ORAL JUDGMENT

Since the petitioner passed away, the present writ petition is pursued by his legal heirs.

1. The present writ petition has been filed seeking the following prayers:-

9(B) Your Lordships may be pleased to issue a writ in the nature of mandamus or any other appropriate writ, order or direction and to quash and/or set aside order dated 21/12/2015 (Annexure-E) to the extent of not granting benefits of resolution dated 17/10/1988 (Annexure-G) from 01/01/1990

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(C) To direct the respondents to grant benefits of resolution dated 17/10/1988 (Annexure-E) to the petitioner from 01/01/1990 and to give difference of salary to the petitioner from 01/01/1993 as stated in para-3.6 of the petition

2. The petitioner-deceased was appointed as a Labourer-Daily Wager in the year 1985 by the respondent no.3. He was terminated on 28.02.1990, which gave rise to the industrial dispute and ultimately, culminated in Reference (LCS) No.167/1993. By the award dated 03.02.2000 passed by the Labour Court, Surendranagar, the respondents were directed to reinstate the petitioner in service with continuity of service and 20% back wages w.e.f. 01.01.1993. The said award was subject matter of challenge before this Court in a writ petition being Special Civil Application No.12902 of 2000, which was dismissed by this Court vide order dated 22.08.2007. Thereafter, the deceased-petitioner was reinstated in service by the order dated 02.11.2010. It appears that the petitioner was not paid 20% back wages and hence, he was constrained to file Recovery Application No.4/2012 before the Labour Court, which was allowed by the judgment dated 22.01.2015 by directing the respondent nos.2 and 3 to pay an amount of Rs.3,51,432/- and accordingly, the same was paid by the order dated 22.01.2015.

3. It is the case of the deceased-petitioner that he became eligible for the benefits flowing from the Government Resolution dated 17.10.1988 after completion of 5, 10 and 15 years of service, which was paid to him by counting his 5 years' service from 01.12.2010 to 30.11.2015. Such order has been passed on 21.12.2015. The petitioner through his advocate also issued a notice on 04.07.2016 for claiming the benefits flowing from the Government Resolution dated 17.10.1988 with retrospective effect, however, since nothing was done, the deceased was constrained to file the captioned writ petition.

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4. Learned advocate Mr.Nilesh Shah appearing for the petitioners has submitted that the petitioner is eligible for the benefits flowing from the Government Resolution dated 17.10.1988 after completion of his service from 1990, but in fact the respondents have granted the same illegally by counting his service after the date of reinstatement. It is submitted by him that the deceased-petitioner was appointed in the year 1985 and had completed 5 years' service on 31.12.1989 and hence, he would be entitled to the benefit from 01.01.1990 as per the Government Resolution dated 17.10.1988 since the deceased-petitioner was ordered to be reinstated with continuity of service. In support of his submissions, he has placed reliance on the judgment dated 03.01.2022 passed in Special Civil Application No.21123 of 2018. Thus, he has submitted that the impugned order may be quashed and set aside to the extent of not granting the benefits flowing from the Government Resolution dated 17.10.1988.

5. In response to the aforesaid submissions, learned advocate Ms.Kruti M. Shah has submitted that the impugned order does not require any interference since the deceased-petitioner was reinstated w.e.f. 01.12.2010 and hence, 5 years are to be continued from the year 2010 and accordingly, the benefits are conferred from 30.11.2015. She has submitted that accordingly the deceased-petitioner is given the benefit of 6th Pay Commission and placed in the pay-scale of Rs.4440-7440 and the pay-scale is also revised. Thus, she has submitted that the impugned order may not be interfered.

6. I have heard the learned advocates appearing for the respective parties.

7. From the facts, as recorded in the award dated 03.02.2000 passed

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in Reference (LCS) No.167/1993, it is established that the deceased- petitioner was appointed in the year 1985 and was terminated from service orally on 28.02.1990, which was subject matter of industrial dispute. By the award dated 03.02.2000 passed in Reference (LCS) No.167/1993, the termination of the deceased-petitioner was set aside and the respondents were directed to reinstate the petitioner in service with continuity of service and with 20% back wages from 01.01.1993. The respondent authority challenged the said award before this Court by filing Special Civil Application No.12902 of 2000, which was dismissed by the order dated 22.08.2007. Thus, the award had become final and pursuant to the aforesaid proceedings, the deceased-petitioner was reinstated by the order dated 02.11.2010. In the meantime, there were recovery proceedings, which also were held in favour of the deceased-petitioner with regard to payment of back wages.

8. By the impugned order dated 21.12.2015, the petitioner has been conferred the benefit flowing from the Government Resolution dated 17.10.1988 after completion of 5 years of service by counting his appointment dated from 01.12.2010. Thus, the respondent authorities have blatantly ignored the directions issued by the Labour Court vide award dated 03.02.2000, which was confirmed by this Court by ignoring the continuity of service. Once the award directing the reinstatement with continuity of service has become final, the respondents cannot wipe out the earlier service of the deceased-petitioner from 1985 till his date of reinstatement. The reinstatement of the petitioner cannot be treated as a fresh appointment.

9. It is not disputed that various departments of the State including the respondents, have adopted the Government Resolution dated 17.10.1988

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for conferring the benefits to the daily wagers like the deceased-petitioner after completion of 5, 10 and 15 years of service. The said resolution was subject matter of scrutiny before the Supreme Court in the case of State of Gujarat & Others vs. P.W.D. Employees Union and Others, (2013) 12 SCC 417. The Supreme Court has held that the Government Resolution dated 17.10.1988 is applicable to all the departments of Government and daily wagers employed in such departments are entitled to the benefits of pay-scale, as mentioned therein, after completion of 5, 10 and 15 years of service. Thus, the respondents have to treat the entire period from initial appointment of the deceased-petitioner till he is reinstated in service as continuous for the purpose of conferring the benefits flowing from the Government Resolution dated 17.10.1988. Such benefits cannot be denied to the deceased-petitioner only for the reason that he has not completed 240 days as he was forced to remain out of employment because of his illegal termination.

10. In the case of an employee, who was ordered reinstatement without making any observation with regard to continuity of service and while examining the issue of conferring the benefits of Government Resolution dated 17.10.1988 to such employee, the Division Bench of this Court in the judgment dated 18.06.2018 passed in Letters Patent Appeal No.268 of 2017 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

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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 completed certain number of years of service.

11. 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

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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 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 back- wages 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.

12. Thus, there is a consistent view taken by the Division Benches, 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" and as a sequel thereof, the employee is entitled to the benefits of the resolution dated 17.10.1988. The case of the petitioner stands on batter footing since in his case, the Labour Court has granted continuity of service.

13. Accordingly, the present writ petition is allowed. The impugned order dated 21.12.2015 is quashed, to the extent it denies the benefits to the deceased-petitioner by ignoring the period from initial date of appointment till his reinstatement. The respondents are directed to confer the benefits flowing from the Government Resolution dated 17.10.1988 by counting his entire service from the initial date of appointment.

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14. It is clarified that, such benefits shall be conferred as per the decision of the Supreme Court in the case of P.W.D. Employees Union and Others (supra). The respondents are directed to pay the difference of salary and arrears to the petitioners. Any benefits such as family pension etc., shall also be paid to the petitioners. It is also clarified that, the period from his date of termination till his reinstatement, shall be treated as notional for the purpose of pay fixation, family pension etc. keeping in mind the directions issued by the Labour Court in the award dated 03.02.2000.

15. Appropriate orders shall be passed within a period of two months from the date of receipt of the writ of this judgment. Rule is made absolute.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK/76