Gujarat High Court
Superintending Engineer vs Tarmohmad Alarakha Baloch on 21 August, 2023
Bench: Devan M. Desai
NEUTRAL CITATION
C/LPA/648/2023 ORDER DATED: 21/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 648 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 10833 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 648 of 2023
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SUPERINTENDING ENGINEER
Versus
TARMOHMAD ALARAKHA BALOCH
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Appearance:
MR UDHWANI, AGP for the Appellant(s) No. 1,2,3
MR MUKESH H RATHOD(2432) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 21/08/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned Assistant Government Pleader Mr.Udhwani
for the appellants and learned advocate Mr.Mukesh Rathod for
the respondent.
2. It is against judgment and order dated 24.8.2022 passed
by learned single Judge that the present Letters Patent Appeal is
preferred. Learned single Judge held that the respondent-
workman would be entitled to the benefits of the State
Government Resolution dated 17.10.1988.
3. The prayer in the writ petition seeking directions against
the respondent authorities to grant the benefits of the said
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Resolution was based on the judgment and award of the labour
court, Rajkot dated 22.12.2008 passed in Reference (L.C.R)
No.481 of 2007 (Old No.140 of 2006). The labour court allowed
the reference directing the appellant - employer to reinstate the
workman on the same post, to offer the same work without any
backwages. The said judgment and award was challenged by the
State of Gujarat through Superintending Engineer by filing
Special Civil Application No.9005 of 2009, which culminated into
order dated 4.2.2013. The petition was dismissed, judgment and
award of the labour court was confirmed and the respondents
were directed to reinstate the workman. The said decision
became final and the workman came to be reinstated on
4.2.2013.
4. Seeking to assail the impugned judgment and order of
learned single Judge, whereby the benefits of Resolution dated
17.10.1988 are directed to be extended for the workman,
learned Assistant Government Pleader, firstly submitted that the
claim for benefits under Resolution dated 17.10.1988 on the
ground of continuity of service was not well founded, inasmuch
as the labour court did not expressly grant the continuity to the
workman.
4.1 The second submission urged by learned Assistant
Government Pleader for the appellant was that while the
termination of the workman was in the year 1999, he
approached the labour court in the year 2007, which was
delayed by eight years. He further submitted that the petition
was filed in the year 2021, after the judgment and award was
delivered by the labour court in the year 2008. Learned
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Assistant Government Pleader thus wanted to highlight the
aspect of delay by making above submissions.
5. The above submission would readily fall flat in view of law
laid down by the Apex Court in Nandkishore Shravan Ahirrao
Vs. Kosan Industries (P) Ltd. [AIR 2020 SC 1776], in which
it is reiterated that where the labour court has not expressly
denied the continuity benefit, the continuity would follow as a
matter of course, once the workman is reinstated. The continuity
benefit, in such circumstances, has to be deemed to have been
granted. Similar proposition is laid down by the Supreme Court
in yet another decision in Gurpreet Singh Vs. State of Punjab
& Ors. [(2002) 9 SCC 492].
5.1 The necessary corollary is that once the benefit of
continuity is required to be read into the award of reinstatement
not denying the continuity of the labour court and the said
award becoming final upon dismissal of Special Civil Application
No.9005 of 2009, the continuity benefit with all its consequential
effect would entail for the workman. Therefore, the benefits
under Resolution dated 17.10.1988 which are founded on the
continuous services rendered by the workman would be
available to the respondent.
5.2 As far as the submission about delay is concerned, this
court does not find merit, inasmuch as so far as the time gap
between the date of dismissal and the date of approaching the
labour court is concerned, the labour court has taken care of the
said aspect by denying the backwages. It is trite that delay in
approaching the labour court will be a relevant consideration in
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moulding the relief, including in respect of grant of backwages.
The yardstick is properly applied by the labour court so as not
to grant the backwages to the workman.
5.3 The submission of delayed filing of the writ petition is
misconceived. What was prayed for in the petition was the grant
of benefit of Resolution dated 17.10.1988. There is no gainsaying
that the benefits under the said Resolution is available upon
completion of the requisite number of years and continuous
services.
5.4 The submission on behalf of the respondent workman was
worthy to be countenanced that the petition was filed once the
workman became entitled to earn the continuous service from
the date of reinstatement. It could be submitted that cause of
action could be said to have been properly accrued on such date
only to seek the benefit under the Resolution.
5.5. In the above view, the challenge to the impugned judgment
and order of learned single Judge stands meritless.
6. At this stage, learned advocate for the respondent
workman submitted that though the benefit of Resolution dated
17.10.1988 is directed to be extended to the workman by
learned single Judge, there is no clarity as to from which date
the benefits would be available. He submitted that the directions
are being misconstrued to grant the benefits from the year 2022
only. Be as it may.
6.1 Looking at the directions at para 6 of the impugned
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judgment and order, it could be said that the date is not
specified by learned single Judge as to from which date the
benefits of Resolution dated 17.10.1988 would become available.
6.2 Having considered the controversy and assessing the total
facts and circumstances, this court is of the view that the
benefits should be extended to the workman available under
Resolution dated 17.10.1988 from the date of his reinstatement
that is from 4.2.2013.
6.3 With the above clarification and directions to the
respondents to grant the benefits of the Resolution dated
17.10.1988 to the workman as per the judgment and order of
learned single Judge from the aforesaid date of reinstatement
that is 4.2.2013, the present Letters Patent Appeal is dismissed.
6.4 At this stage, learned Assistant Government Pleader states
that the amount becoming payable to the workman pursuant to
the order of learned single Judge and the directions given as
above by this court shall be paid within a period of eight weeks.
It is so directed.
7. In view of dismissal of the Appeal, the Civil Application will
not survive. Accordingly, it is disposed of.
(N.V.ANJARIA, J)
(D. M. DESAI,J)
Manshi
