Gujarat High Court
Solanki Mensibhai Laxmanbhai vs State Of Gujarat on 13 December, 2023
NEUTRAL CITATION
C/SCA/11027/2021 ORDER DATED: 13/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11027 of 2021
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SOLANKI MENSIBHAI LAXMANBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR. MUKESH T MISHRA (5900) for the Petitioner(s) No. 1
MS SUMAN MOTLA, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/12/2023
ORAL ORDER
1. This petition is filed with the following prayers:-
"15(A) Deleted as per order dated 09.08.2021.
(B) Your Lordships may kindly be pleased
to issue aWrit of Mandamus and/or any other
appropriate writ, order or direction to direct
the present respondents to extend the benefits
of Govt. Resolution dated 17.10.1988 at par
with the other co-employees working in the
same department and further be pleased to
grant all the benefits including the Pay Scale
and all other consequential benefits at par with
the other co-employees alongwith the arrears of
difference of salary alongwith the interest
@12% p.a.
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(C) Your Lordships may kindly be pleased
to hold and declare that the condition No. 1 of
the Office Order dated 25.07.2016 issued by
the present respondent No.2 which is at
Annexure-C to this petition is contrary to the
law laid down by this Hon'ble Court.
(D) Your Lordships may kindly be pleased
to direct the present respondents to pay the full
back wages to the present petitioner from the
date of the Award dated 21.06.2013 passed by
the Hon'ble Labour Court, Rajkot in Reference
(LCR) No. 23 of 2008 till the date of actual
reinstatement.
(E) Pending hearing and final disposal of
this petition, Your Lordships may kindly be
pleased to direct the present respondents to
reinstate the present petitioner on his original
post with continuity of service in pursuance to
the Award dated 21.06.2013 passed by the
Hon'ble Labour Court, Rajkot in Reference
(LCR) No. 23 of 2008.
(F) Your Lordships may kindly be pleased
to pass such other and further order which
deems to fit, just and proper in the interest of
justice."
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2. The facts in brief are as under: -
The petitioner - workman was appointed as daily-wager
in the year 1987 and he worked up to 1997. It was his case
that his services were terminated illegally in the year 1997 for
which dispute was raised before Labour Court Rajkot,
registered as Reference (LCR) No. 23 of 2008. The Labour
Court, Rajkot after hearing the parties passed an award dated
21.06.2013, directing the respondent - State to reinstate
workman with continuity of service and without backwages.
The award dated 21.06.2013 was challenged by the respondent
- State in Special Civil Application No. 5617 of 2014, and the
same was rejected vide order dated 05.05.2014. The respondent
- State thereafter reinstated workman by the order dated
25.07.2016 with certain conditions. Since the condition No. 1
of the reinstatement order dated 25.07.2016 was contrary to
the award, present petition is filed challenging the conditional
order of reinstatement dated 25.07.2016.
3. Heard learned advocate Mr. Mukesh Mishra for the
petitioner - workman and learned Assistant Government
Pleader Ms. Suman Motla for the respondent - State.
4. Learned advocate for the petitioner submitted that the
petition filed by the respondent - State challenging the award
dated 21.06.2013 was rejected by an order dated 05.05.2014
and therefore since the award of the Labour Court dated
21.06.2013 is confirmed, directions of the Labour Court are to
be complied. As directed by the Labour Court, the petitioner is
to be reinstated on his original post with continuity of service
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and therefore condition put, in the reinstatement order dated
25.07.2016 is bad in law.
4.1 Further, since by the award dated 21.06.2013, the
respondent was directed to reinstate the petitioner with
continuity of service, the service of the petitioner is required
to be considered as continuous from his initial date of
appointment as if he had never been terminated. Once the
service is continuous, according to Government Resolution
dated 17.10.1988, the respondent - State is under obligation to
extend the benefit of Government Resolution dated 17.10.1988
upon completion of 05, 10 and 15 years of service by counting
the service of the petitioner from initial date of appointment.
Referring to the conditions put, particularly condition No.1, in
the reinstatement order dated 25.07.2016, learned advocate
submitted that since the order of reinstatement is contrary to
the award, it deserves to be quashed and set aside. Further, this
issue is decided by this court in series of writ petitions and pursuant to the
directions issued by this Court, similarly situated employees
have been extended the benefit of Government Resolution
dated 17.10.1988. The said orders are placed on record at
Annexure-E at Page 102 to 166 to this petition. In support of
his submissions, he relied upon the following decisions: -
(i) Special Civil Application No. 6420 of 2017 order
dated 22.01.2019
(ii) Special Civil Application No. 7543 of 2018 order
dated 20.02.2020
(iii) Special Civil Application No. 7529 of 2018 order
dated 12.07.2019
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5. On the other hand, the fact of decision rendered by this
Court, in the above referred decisions could not be disputed by
learned Assistant Government Pleader Ms. Suman Motla for the
respondent - State.
6. Considered the submissions. It is noticed that upon
rejection of Special Civil Application No. 5617 of 2014
challenging the award dated 21.06.2013, the respondent -
State issued order dated 25.07.2016, reinstating the petitioner
with certain conditions, where one of the conditions was that
since the petitioner has been reinstated after 01.10.1988, he
would not be entitled for benefits of Government Resolution
dated 17.10.1988 and 29.11.1994. This condition incorporated
in the reinstatement order dated 25.07.2016 was subject matter
of challenge before this court, in Special Civil Application No.
6420 of 2017, Special Civil Application No. 7543 of 2018 and
Special Civil Application No. 7529 of 2018 wherein the Co-
ordinate Bench of this Court in Special Civil Application No.
6420 of 2017, held has under:-
"4. The impugned order came to
be passed with reference to order dated
17.07.2015 passed in Special Civil
Application No.13051 of 2010
aforementioned as well as the contempt
application. The authorities took a view
that the petitioners are not entitled to the
revision claimed in view of the fact that
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their appointments were on 01.10.1988
and since their appointment was after
01.10.1988, they would not be entitled to
be considered for benefits under
Resolution dated 17.10.1988 and
consequential benefits would not flow for
them.
5. In Kutch District Panchayat v.
Mangalbhai K. Rabari, being Special Civil
Application No.15670 of 2005 decided as
per judgment dated 08.10.2014, in
turn confirmed in Letters Patent
Appeal No.1381 of 2015 decided on
04.01.2016, it was observed and held in
judgment dated 08.10.2014 as under,
"7. Shri Pathak, learned counsel
for the respondent workmen
contended that the decision of
the Supreme Court as cited
herein above in case of State of
Gujarat Vs. PWD Employees Union &
Ors (supra) would have
straightway applicability to the present
case. The so called inapplicability of GR
has been answered squarely by the
Court as there are subsequent
Government Resolutions clarifying
such things. Besides this, in the
affidavit in reply at page47
Courts attention was drawn to
indicate that G.R. Dated 17/10/1988 is
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clarified and given effect to all those
who are subsequently appointed also
and that has been accepted as
policy governing such employment
thereafter.
8. Shri Pathak pointed out that
learned counsel for the petitioner
is not correct in contending that
all were employed after GR dated
17/10/1988. In fact four were
employed before that. Shri Munshaw
at this stage submitted that he never
meant all employees were employed
after the GR and statement
annexed to the employees list would
clarify the situation.
11. The Court is of the
considered view that the GR dated
17/10/1988 was no doubt containing
reference to the future
employment but the subsequent
course of action and developments as it
indicate that the Government
continued employing daily wagers,
temporary hands irrespective of those
conditions which gave rise to a
situation where litigations came
up and hence as Shri Pathak
has pointed out clarificatory GR
came to be issued and over all facts &
circumstances of the case indicate that
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the benefits of GR dated 17/10/1988
were to be extended to all, else
it would have meant to
Government employing unfair
labour practice which would have
been highly depreciable.
12. The Court is also of the
view that the decision cited at the
bar in case of State of Gujarat And
Others Vs. PWD Employees Union And
Others will have applicability to
the facts & circumstances of the
case and counsel of the
petitioners submission qua some of
the workmen were employed after GR
dated 17/10/1988 would be of no avail
as the judgment itself has answered that
contention squarely."
5.1 In PWD Employees Union
through President v. State of Gujarat,
being Special Civil Application No.4662
of 2015, this Court relied on the aforesaid
decision in Kutch District Panchayat
(supra). PWD Employees Union (supra) had
a similar set of facts wherein also the
petitioners were denied the benefits of
Resolution dated 17.10.1988 on the
ground that their appointments were
subsequent to the date of Resolution
dated 17.10.1988.
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6. In view of above position of
law, the petitioners could not have been
denied the benefit of Resolution dated
17.10.1988 on the ground that their
appointment was prior to 01.10.1988. The
benefit as would flow from the resolution
dated 17.10.1988 have to be made
available to the petitioners with all
incidents thereof. Resultantly, the
petitioners who are already in time scale
and are getting the 4th Pay Commission
would be entitled to be given the
payscales as per the 5th and 6th Pay
Commissions which are accepted by
the State Government for its
employees.
7. As a result of above discussion,
the present petition is allowed. The
impugned order, being Office Order No.2 of
2016, dated 21.04.2016, passed by the
Executive Engineer, Jamnagar Irrigation
Department, Jamnagar, is hereby set aside.
The authorities shall not deny to the
petitioners the benefit of revision of pay-
scales from 4th Pay Commission
recommendations to the 5th Pay
Commission recommendations as well as the
payscales as per the 6th Pay
Commission recommendations. Since the
petitioners are entitled to receive the
scales as revised as per the 5th and 6 th
Pay Commission recommendations as
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may be admissible for them, the
authorities are directed to pass necessary
orders and the arrears which may arise to be
paid by virtue of the present directions shall
be paid within a period of eight weeks from
the date of receipt of writ of the present
order. Rule is made absolute in the aforesaid
terms."
7. Reverting to the facts of present case, the Labour Court
by an award dated 21.06.2013, granted reinstatement on
original post with continuity and without back wages. Once
reinstatement awarded by the Labour Court has been confirmed
by this Court, the condition in the reinstatement order that
since the workman is reinstated after 1.10.1988, he would not
be entitled to the benefits of G.R. dated 17.10.1988 is beyond
the directions by the Labour Court. Moreover, the benefits of
Government Resolution dated 17.10.1988, is available to the
employees appointed even after 1.10.1988, is considered and
decided in favour of employee as referred herein above in the
decision of this Court dated 22.01.2019 in Special Civil
Application No. 6420 of 2017. Therefore, following order is
passed.
7.1 The impugned order of the Executive Engineer, Irrigation
Department Rajkot, dated 25.07.2016, is hereby quashed and
set aside.
7.2 The respondent authorities are directed to grant benefits
to the petitioner in accordance with the conditions of
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Government Resolution dated 17.10.1988. The necessary
benefits be given to the petitioner together with arrears within
a period of 8 weeks from the date of receipt of copy of the
order.
8. This petition is allowed to the aforesaid terms. Rule is
made absolute to the above terms.
Direct service is permitted.
(MAUNA M. BHATT,J)
SHRIJIT PILLAI
