Rematben Wd/O Maheboobsha ... vs State Of Gujarat
2022 Latest Caselaw 7581 Guj

     C/SCA/1051/2020                             JUDGMENT DATED: 06/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1051 of 2020


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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            REMATBEN WD/O MAHEBOOBSHA BACHUSHA FAKIR
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR NILESH M SHAH(780) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 06/09/2022

                            ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Kurven Desai

learned AGP waives service of notice of Rule on

behalf of the respondent State.

C/SCA/1051/2020 JUDGMENT DATED: 06/09/2022

2. With the consent of learned advocates for the

respective parties, the petition is taken up for

final hearing.

3. It is not in dispute that a co-employee and

beneficiary of an identical award passed by the

Labour Court, the Court passed the order in

Special Civil Application No.21328 of 2019 dated

22.02.2022.

4. Mr.Kurven Desai learned AGP objects to the

same order being passed in light of the fact that

the husband of the petitioner died on 23.12.2014

and therefore there is a delay of more than eight

years in claiming the benefit.

5. An identical order passed in similar matter being

Special Civil Application No.21328 of 2019 dated

22.02.2022 reads as under:

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"1. Rule returnable forthwith. Ms. Surbhi Bhati, learned AGP waives service of notice of rule on behalf of respondent State.

2. The petitioner herein has prayed to direct the respondents to give the benefit of resolution dated 17.10.1988 to the petitioner being legal heir of the deceased Hushensha Bachusha Fakir with effect from 01.10.1988 notionally upto 12.09.2006 including revision of pay and to give difference of salary from 13.09.2006 to 27.04.2008 including revision of pay.

3. The facts need not be reiterated in the present petition in view of the fact that in context of the same award where the present petitioner was also a beneficiary, this court vide oral judgement dated 14.02.2022 has held as under:

"3 The case of the petitioner is that the petitioner joined service in the year 1982. He was subsequently terminated. On raising an industrial dispute, the Labour Court by an award dated 12.09.2006 directed reinstatement without backwages.

Contention of Mr.Nilesh Shah, learned counsel, is that in absence of specific denial of continuity, the same has to be read into the award of the Labour Court. Accordingly, he press the the benefits of the Resolution dated 17.10.1988 except those of Leave Encashment on the basis of his 38 years of continuous service rendered from the date of appointment till the date of retirement i.e. 31.03.2021 be

C/SCA/1051/2020 JUDGMENT DATED: 06/09/2022

granted. 4 This Court in Special Civil Application No. 389 of 2020 of even date has held as under:

"1 Since the issue involved in the main petition is covered by the decisions rendered by this Court, Civil Application for fixing date of hearing is allowed and with the consent of learned advocates for the respective parties, the main matter is taken up for hearing today.

1. RULE returnable forthwith. Learned AGP Mr.Kurven Desai waives service of Rule on behalf of the respondents.

2. In this petition under Article 226 of the Constitution of India, the prayer of the petitioner is to direct the respondents to grant the benefits of the resolution dated 17.10.1988 to the petitioner from initial date of joining considering the fact that by virtue of the award of the Labour Court dated 29.08.2009, reinstatement was granted with continuity of service, in the award made though not have specifically mentioned the word "continuity".

3. Mr.P.C.Chaudhary learned counsel for the petitioner would draw the attention of this court to a decision rendered by the coordinate bench of this Court

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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

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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

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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 petitioner would be entitled to be granted the benefits of resolution dated 17.10.1988 accordingly by reckoning his services 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

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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.

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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 order."

4. In the latter decision of

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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] confirmed the decision of the learned Single Judge.

5. Accordingly, the petition is 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 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.

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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 order.

6. The petition is allowed in the aforesaid terms. Rule is made absolute accordingly."

5 Accordingly, the petition is allowed. The respondents are directed to extend the benefits of the Resolution dated 17.10.1988 except the benefit of leave encashment to the petitioner 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 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 petitioner within a period of ten weeks from the date of receipt of the

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present order. Rule is made absolute to the aforesaid extent."

4. In view of the above, the present petition also deserves to be allowed in the same terms.

5. Accordingly, the respondents are directed to extend the benefits of the Resolution dated 17.10.1988 except leave encashment to the petitioner by reckoning the services of the deceased 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 deceased employee 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 petitioner within a period of ten weeks from the date of receipt of the present order. So far as the issue of leave encashment is concerned, it shall be open for the petitioner to agitate the same as and when the SLP pending before the Apex Court is decided.

6. Petition is accordingly allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted."

6. In view of the above order passed, the

respondents are accordingly directed to extend

the benefits of the Resolution dated 17.10.1988

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except leave encashment to the petitioner by

reckoning the services of the deceased 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 deceased

employee 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 petitioner within a period of ten weeks from

the date of receipt of the present order. So far

as the issue of leave encashment is concerned, it

shall be open for the petitioner to agitate the

same as and when the SLP pending before the

C/SCA/1051/2020 JUDGMENT DATED: 06/09/2022

Apex Court is decided.

7. Petition is accordingly allowed. Rule is made

absolute to the aforesaid extent. Direct service

is permitted.

(BIREN VAISHNAV, J) ANKIT SHAH