Gujarat High Court

Akhmabhai Somabhai Vagadiya vs Department Of Forest on 22 February, 2023

Bench: Nikhil S. Kariel

       C/SCA/2856/2023                              ORDER DATED: 22/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2856 of 2023
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 2857 of 2023
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 2858 of 2023
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 2859 of 2023
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 2860 of 2023
==========================================================
                         AKHMABHAI SOMABHAI VAGADIYA
                                    Versus
                            DEPARTMENT OF FOREST
==========================================================
Appearance:
MR CHINTAN N DESAI(9940) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR ADITYA PATHAK, AGP for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                               Date : 22/02/2023

                             COMMON ORAL ORDER

1. Heard learned Advocate Mr. Chintan N. Desai on behalf of the

petitioners and learned AGP Mr. Aditya Pathak on behalf of the

respondent-State.

2. By way of these petitions, the petitioners challenge decision of the

respondents dated 18.06.2015, whereby the petitioners have been denied the

benefit of policy of the State Government vide Government Resolution

dated 17.10.1988 and furthermore the petitioners have been terminated

from service.

C/SCA/2856/2023 ORDER DATED: 22/02/2023

3. It would appear that the present petitioners had approached this

Court initially by preferring Special Civil Application No. 3895 of 2015 and

other allied matters, inter alia seeking benefit of the Government Resolution

dated 17.10.1988 and whereas a learned Co-ordinate Bench of this Court

vide judgment dated 23.03.2015 had inter alia directed the respondents to

examine the cases of the petitioners individually and if the petitioners were

found eligible, then the benefit of the Government Resolution dated

17.10.1988 should be extended to the petitioners. The exercise was directed

to be completed within a period of four months from the date of the

receipt of a copy of order. It appears that the impugned order is the order

in compliance of the said decision of this Court and whereas in addition to

holding that the petitioners would not be entitled to benefit of the

Government Resolution dated 17.10.1988, the respondents have also

terminated the services of the petitioners.

4. Learned Advocate Mr. Desai for the petitioners would submit that as

such, the petitioners had worked for approximately 15 years with the

respondents and of the said 15 years, as per a Chart which is a summary of

the attendant sheet of the petitioners, the petitioners would have worked for

more than 240 days between 10 to 12 years. Learned Advocate would

submit that a perusal of the Chart would reveal that the holidays etc. which

have to be included in the days to be counted as days of actual service have

C/SCA/2856/2023 ORDER DATED: 22/02/2023

not been included. Learned Advocate also relies, in this context, upon the

decision of the Hon'ble Apex Court in case of Workmen of American

Express International Banking Corporation Vs. Management of American

Express International Banking Corporation, reported in (1985) 4 SCC 71.

4.1 Learned Advocate Mr. Desai would further submit that upon the fact

of the petitioners having worked for more than 240 days for around 10

years being clear, while the petitioners would be entitled for the benefit of

the Government Resolution dated 17.10.1988, on the other hand, the

termination order also would be required to be set aside.

4.2 Learned Advocate Mr. Desai would further submit that though the

order of termination and rejecting the claim for benefit of the Government

Resolution dated 17.10.1988, is dated 18.06.2015, learned Advocate would

submit that any conditions as may be deemed appropriate may be imposed

by this Court, to balance the equities and whereas learned Advocate would

request this Court to direct the respondent authorities to grant benefit of

the Government Resolution dated 17.10.1988 and also request this Court to

quash and set aside the order of termination.

5. As against the same, these petitions are vehemently objected to by

learned AGP Mr. Pathak on behalf of the respondent-State, who would

submit that the petitioners having not challenged the impugned order for

C/SCA/2856/2023 ORDER DATED: 22/02/2023

approximately 08 years, have lost their rights to claim for benefit of the

Government Resolution dated 17.10.1988 and also to challenge the order of

termination. Learned AGP would further submit that the case of the

petitioners has been appropriately considered by the respondents authorities

by relying upon the Government Resolution dated 17.10.1988 read with

Government Resolution dated 15.09.2014.

6. Heard learned Advocate for the respective parties.

7. In the considered opinion of this Court, while the State could

legitimately oppose the stand of the petitioners insofar as the aspect of

termination is concerned, more particularly on the ground of delay, but in

the considered opinion of this Court, insofar as the benefits of the

Government Resolution dated 17.10.1988 are concerned, irrespective of the

fact that vide the impugned order the petitioners' services have been

terminated, yet the benefits that had accrued in favour of the petitioners till

the date of termination, could not be denied to the petitioners on the

ground of the petitioners challenging the said order belatedly. At the most

in the considered opinion of this Court, appropriate orders, to balance the

equities could be passed. Even otherwise in the considered opinion of this

Court, as submitted by learned Advocate for the petitioners, the only reason

for termination as appearing in the impugned order being the observation

C/SCA/2856/2023 ORDER DATED: 22/02/2023

that the petitioners have not worked for more than 240 days for 05 years

and whereas since it prima facie appears that the petitioners would have

worked at least for 10 years where they would have worked for more than

240 days, therefore if the finding which had led to the termination, would

require correction, then automatically/consequentially, the order of

termination also may be required to be interfered with.

8. Having regard to the above observations, in the considered opinion

of this Court, the ends of justice would be met, if the petitioners are

relegated to the respondents authorities and whereas the respondent

authorities may be directed to consider the case of the petitioners as

directed by this Court. Having regard to the same, the following directions

are passed :

(i) The petitioners to submit a detail representation, if required by

relying the judgments of this Court or the Hon'ble Apex Court, with

regard to grant of benefit of the Government Resolution dated

17.10.1988 upto the date of termination i.e. 18.06.2015, more

particularly the petitioners, may make appropriate representation and

contend that the petitioners would have indeed worked for more than

240 days for approximately more than 10 years.

 C/SCA/2856/2023                                  ORDER DATED: 22/02/2023




 (ii)    Such representation shall be preferred within a period of 15

 days from the date of receipt of this order.

(iii) Upon such representation being received, the respondents

authorities shall consider and decide the same within a period of 08

weeks from the date of receipt of the same.

(vi) In case the respondents authorities came to a conclusion that

the petitioners would be entitled to benefit of the Government

Resolution dated 17.10.1988 upto the date of termination i.e.

18.06.2015, then the respondents shall make appropriate payments

within a period of 06 weeks thereafter.

(v) It is clarified that the petitioners shall not be entitled for any

interest from the date of the order of termination i.e. 18.06.2015 till

the actual payment i.e. within 06 weeks from the date of the decision.

(vi) In case the respondents authorities come to a conclusion that

the petitioners were indeed entitled to benefit of the Government

Resolution dated 17.10.1988, more particularly if the authorities come

to a conclusion that the petitioners had worked for more than 240