Dinesh Samatbhai Ribadiya vs State Of Gujarat
2022 Latest Caselaw 9035 Guj

     C/SCA/4120/2022                             JUDGMENT DATED: 12/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4120 of 2022


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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                       DINESH SAMATBHAI RIBADIYA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
KRISHNAN M GHAVARIYA(8133) for the Petitioner(s) No. 1
MR. SOAHAM JOSHI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 12/10/2022

                            ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Soaham Joshi, learned AGP, waives service of Rule on behalf of the respondent no.1.

C/SCA/4120/2022 JUDGMENT DATED: 12/10/2022

2. In this petition under Article 226 of the Constitution of India, the case of the petitioner is that the benefits flowing from the Government Resolution dated 17.10.1988 should be granted to the petitioner from his initial date of appointment. In nutshell, the case of the petitioner is that the petitioner was appointed in the year 1992. His services came to be terminated in March 1999. An award was passed by the Labour Court on 15.10.2008. The award of the Labour Court directed that the petitioner be reinstated in service without back-wages. When the award was challenged by the employer, the petition failed. The case of the petitioner is that though the award specifically did not mention continuity of service, settled it is by several decisions of this Court, which has been relied upon by the learned counsel for the petitioner of the Division Bench in LPA No.174 of 2017 and also a recent decision of the Division Bench in LPA No.1132 of 2018 dated 23.11.2021.

3. The Court while considering the decision in case of Gurpreet Singh v. State of Punjab reported in (2002) 9 SCC 492 held as under:

"6. In Gurpreet Singh v. State of Punjab and

C/SCA/4120/2022 JUDGMENT DATED: 12/10/2022

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,

"... ... ... 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

C/SCA/4120/2022 JUDGMENT DATED: 12/10/2022

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.

4. The petition is allowed. The respondents are directed to consider the case of the petitioner for benefits of the resolution dated 17.10.1988 on the basis of the Labour Court having granted continuity of service. Therefore, for the purpose of granting of benefits of 17.10.1988 resolution, the case of the petitioner shall be considered from his initial date of appointment for the purposes of extending the benefits of such resolution. This exercise shall be completed within a period of twelve weeks from the date of receipt of copy of this order. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(BIREN VAISHNAV, J) BIMAL