Gujarat High Court
Vijay Haribhai Zala vs State Of Gujarat on 16 September, 2022
Bench: Biren Vaishnav
C/SCA/14447/2021 JUDGMENT DATED: 16/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14447 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 17072 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19995 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 20001 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 1480 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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VIJAY HARIBHAI ZALA
Versus
STATE OF GUJARAT
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Appearance:
MR.KRUTARTH K PANDYA(7092) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 16/09/2022
COMMON ORAL JUDGMENT
C/SCA/14447/2021 JUDGMENT DATED: 16/09/2022
1. RULE returnable forthwith. Mr.Kurven Desai
learned AGP waives service of notice of Rule on
behalf of the respondent State.
2. With the consent of learned advocates for the
respective parties, the petition is taken up for
final hearing.
3. By way of these petitions under Article 226 of the
Constitution of India, the common issue arises is
as to whether the petitioner who are
beneficiaries of an award of the Labour Court
prior to their termination, the awards directed
reinstatement with continuity of service are
entitled to the benefits of the Government
Resolution dated 17.10.1988.
4. The dates of appointments, the date of
termination, the dates of the awards and the
C/SCA/14447/2021 JUDGMENT DATED: 16/09/2022
challenges made by the petitioners - workmen
are as under:
Vijay Sanjay Rajeshbhai Jagdishbhai Rameshbh
Haribhai Harjivan Narsibhai Laxmanbhai ai
Zala Parmar Parmar Vaghela Sagathiya
SCA NO. 14447 of 17072 of 19995 of 20001 of 1480 of
2021 2021 2021 2021 2022
Date of 18.03.2004 24.12.2003 09.12.2003 11.03.2004 09.12.2003
Appointment
Date of 30.09.2005 04.07.2004 30.09.2005 30.09.2005 30.09.2005
Termination
Date of 08.03.2016 30.05.2017 08.03.2016 08.03.2016 08.03.2016
award (Page 25) (page 24) (Page 23) (Page23) (Page 22)
Special Civil 2659 of Not 2640 of 2017 2743 of 2017 2646 of
Application 2017 preferred (Page 55) (Page 55) 2017
(Page 52) (Page 53)
Cross 18373 of Not 18373 of 18373 of 18810 of
Application 2016 preferred 2016 2016 2016
(Page 54) (Page 57) (page 56) (Page 55)
Demand -/10/2018 Not given -/10/2018 --/10/2018 --/10/2018
Notice (page 73) (page 76) (page 76) (page 72)
5. For the purposes of this order, facts of Special
Civil Application No.19995 of 2021 are
considered.
C/SCA/14447/2021 JUDGMENT DATED: 16/09/2022
6. The petitioner was engaged as a daily wager with
effect from 09.12.2003. His services were
terminated on 30.09.2005. On a challenge made
to the termination before the Labour Court, the
Labour Court by an award in Reference (T) Case
No.18 of 2006 set aside the order of termination
dated 30.09.2005 and directed reinstatement
without back-wages but with continuity of
service. The petition filed by the State viz. the
Special Civil Application No.2640 of 2017 was
dismissed. Even cross petitions at the hands of
the petitioners were dismissed.
7. Accordingly, therefore the petitioners are in
continuous service from the date of their initial
appointments by virtue of the operation of the
awards in question. Notices have been given by
the petitioners to the respondent seeking
benefits of the resolution dated 17.10.1988. No
C/SCA/14447/2021 JUDGMENT DATED: 16/09/2022
response has been received.
8. This Court in case of Balubha Ashabhai Manek
& Anr. v. Gujarat Water Supply And
Sewarage Board & others rendered in Special
Civil Application No.20894 of 2017, in
concluding paragraphs, has held as under:
"19. Highlighting the judgments of the
Hon'ble Supreme Court in the case of
Deepali Gundu Surwase (Supra) where this
Court had an occasion to trace the history of
the decisions, the reproduction was made.
The Division Bench of this Court, looking to
the relevant portion of the decision of
Deepali Gundu Surwase (Supra) held that
Section 25(B) introduces a deeming fiction
as to in what circumstances a workman
could be said to be in continuous service for
the purposes of Section 25(B). 20.
Considering the decision in the case of
Deepali Gundu Surwase (Supra), it is
evident that the Hon'ble Supreme Court in
Paragraph No.38 culled out the proposition
based on the earlier decisions and held that
when there is a wrongful termination,
reinstatement with back wages and
continuity is a normal way. The Court
specifically held that the observations made
in J.K. Synthetics Ltd. v. K.P. Agarwal
reported in 2007(2) SCC 433 that on
C/SCA/14447/2021 JUDGMENT DATED: 16/09/2022
reinstatement, the employee cannot claim
continuity of service as of right, is contrary
to the ratio of the judgments of three Judges
bench.
21. Keeping this position of law in mind, it is
explicitly clear that the petitioners are the
beneficiaries of the award of the labour
Court and implicitly the benefit of continuity
of service has to be read in such awards.
Their past services have to be treated as
services for the purposes of granting them
the benefits of Government Resolution dated
17.10.1988 and their tenure during which
they were out, cannot be taken to be their
disqualification qua denying the benefits of
Government Resolution dated 17.10.1988.
22. In view of above, both these petitions
are allowed. Rule is made absolute to the
aforesaid extent. Direct Service is
permitted."
9. In view of the above, the respondents are
directed to consider the case of the petitioners
for the benefits of Government Resolution dated
17.10.1988 and take a decision on the same
within a period of 10 weeks from the date of
receipt of copy of this order.
C/SCA/14447/2021 JUDGMENT DATED: 16/09/2022
10. In view of above, these petitions are allowed to
the aforesaid extent. Rule is made absolute to
the aforesaid extent. Direct Service is permitted.
(BIREN VAISHNAV, J)
ANKIT SHAH
