Gujarat High Court

Deceased Kashiram Nanjibhai Zapadia ... vs State Of Gujarat on 16 April, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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      C/SCA/4986/2018                            JUDGMENT DATED: 16/04/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 4986 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1      Whether Reporters of Local Papers may be allowed                No
       to see the judgment ?

2      To be referred to the Reporter or not ?                         No

3      Whether their Lordships wish to see the fair copy               No
       of the judgment ?

4      Whether this case involves a substantial question               No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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 DECEASED KASHIRAM NANJIBHAI ZAPADIA THROU HIS LEGAL HEIRS
                          & ORS.
                          Versus
                 STATE OF GUJARAT & ORS.
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Appearance:
for the Petitioner(s) No. 1
MR NILESH M SHAH(780) for the Petitioner(s) No. 1.1,1.2
MS NIDHI VYAS, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
RULE SERVED for the Respondent(s) No. 4
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                             Date : 16/04/2024
                             ORAL JUDGMENT

1. Heard learned Advocate Mr. Nilesh M. Shah for the petitioners,

learned AGP Ms. Nidhi Vyas for the respondent-State and learned

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Advocate Mr. H.S. Munshaw for the respondent Nos. 2 and 3.

2. By way of this petition, the petitioners have sought for the

following prayers :

"(20) The Petitioners therefore pray that this Hon'ble Court may be pleased :

(A) to issue writ of certiorari and/or any other writ or writs or orders or directions.

(B) to direct the Respondents to give the benefit of Resolution dt. 17-10-88, Annexure-D to the deceased Kashiram Nanjibhai with effect from 01-04-89 up to 25-02-99 notionally and 100% from 26-02-99 to 08-01-13 and to pay difference of salary from 26-

02-99 to 08-01-13 to the Petitioners.

(C) to direct the Respondents to grant retirement benefits including pension, gratuity and leave encashment of the deceased Kashiram Nanjibhai on the basis of 29 years continuous service of the deceased Kashiram Nanjibhai with 12% interest from 09-01-13 till its actual implementation to the Petitioners.

(D) during the pendency of this petition by way of interim relief to direct the Respondents to consider the notice of the Petitioner No. 1.1 Annexure-E dt. 30-11-17 for giving benefit of Resolution dt. 17-10-88, Annexure-D from 01-04-89.

(E) to grant any other relief as this Hon'ble Court may deems fit in the interest of justice.

(F) to allow this petition with costs."

3. At the outset, it is submitted by learned Advocate Mr. Shah for the

petitioners that the case of a similarly situated person had been decided

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by this Court vide decision dated 15.02.2024 in Special Civil Application

No.14664 of 2018, and whereas this Court may pass similar order in this

petition.

3.1 Learned Advocate Mr. Shah would further submit that the late

employee of the present petition as well as the petitioner of the Special

Civil Application No.14664 of 2018 had joined services with the

respondents as daily wagers in the year 1984 and whereas the late

employee of the present petition as well as the petitioner of the petition

referred to hereinabove had been terminated from service in the year

1989 and whereas the late employee and the co-employee referred to

hereinabove and other similarly situated employees had raised the dispute

which had been agitated as Reference (L.C.S.) No. 302/1992 and whereas

the same had been allowed vide award dated 25.02.1999. It is submitted

that while the learned Labour Court had granted reinstatement without

continuity of service and backwages, the late employee as well as the co-

employee had approached this Court and whereas the respondents had

also challenged the decision of the learned Labour Court before this

Court and whereas vide judgment dated 28.10.2004 in Special Civil

Application No. 5390 of 2001 by the employees and Special Civil

Application No. 9706 of 1999 by the employer had been decided. It is

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further submitted that while continuity of service had been granted in

favour of the workmen without any backwages and whereas the petition

preferred by the employer had been dismissed.

4. It appears that the said decision had been challenged by the

employer - respondent No.2 herein before the Hon'ble Apex Court by

preferring Special Leave Petitions No. 4187 of 2006 and 4192 of 2006

and whereas the petitions had been disposed of by the Hon'ble Apex

Court vide common order dated 22.01.2008. It appears that the late

employee had been reinstated in service on 06.10.2008 thereafter. It also

appears that upon reinstatement, the late employee had filed a recovery

application no. 38 of 2009, more particularly claiming grant of difference

of salary from the date of the order of the learned Labour Court till the

date when the Special Leave Petitions had been decided. It appears that

the said application had been allowed. It appears that thereafter the

petitioners had approached this Court for grant of benefit under

Government Resolution dated 17.10.1988 and whereas reliance was

placed on case of two co-employees namely Pankhuben Punjabhai and

Parvatiben Khimjibhai, and whereas in case of the co-employee, it was

contended that since there was no difference between the case of the

above referred two employees and the petitioner of Special Civil

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Application No.14664 of 2018, the benefit as made available to those

petitioners should be made available to the co-employee i.e. petitioner of

Special Civil Application No. 14664 of 2018. This Court vide decision

dated 15.02.2024 having allowed said petition and whereas to a pointed

query by this Court, learned Advocate Mr. Munshaw could not satisfy

this Court that the facts of the present petition are any difference from the

facts of the Special Civil Application No. 14664 of 2018.

5. Under such circumstances, the observations made at Paragraph

Nos. 7, 7.1 to 7.5 in the decision dated 15.02.2024 passed in Special

Civil Application No. 14664 of 2018, is relined upon and reproduced

hereinbelow for benefit:

"7. Heard learned advocates for the respective parties and perused the documents on record.

7.1. In the considered opinion of this Court, having perused the order dated 18.08.2017 and order of this Court dated 23.07.2019 i.e. in case of Pankhuben and Parvatiben - coemployees respectively and whereas after having perused the award dated 25.02.1999 in Reference (L.C.S.) No. 302/1992, it appears to this Court very clearly that there is no discernible difference between the petitioner and the co- employees and as it is, in the considered opinion of this Court, there is no reason why the respondents should not have granted the benefits accrued to the petitioner under Government Resolution dated 17.10.1988 considering the case of the petitioner from the date of his entry in service.

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7.2. In this regard, it requires to be noted that order dated 14.03.2014 whereby the petitioner has been granted the benefits states the date of entry of the petitioner in service as 16.10.2008 which appears to be the actual date of reinstatement of the petitioner more particularly upon dismissal of the SLP by the Hon'ble Apex Court. In this regard it requires mention that the learned Labour Court in the award in question inter alia notes that the petitioner appear to have joined the service in the year 1984 and whereas the learned Labour Court also holds that the termination of the petitioner in the year 1989 was illegal and whereas the learned Labour Court had directed reinstatement without any backwages or continuity.

7.3. As noted hereinabove, the said order had been modified by this Court in a petition preferred by the petitioner and others being Special Civil Application No.5390/2001 whereby this Court had deemed it appropriate vide decision dated 28.10.2004 to grant continuity. In the considered opinion of this Court, once this Court has modified the award by directing the continuity of service, the respondents could not have treated the date of entry of the petitioner in service as 16.10.2008 i.e. the date of reinstatement of the petitioner in service as per the direction of the learned Labour Court in the reference referred to hereinabove.

7.4. In the considered opinion of this Court, once continuity in service has been awarded, then the service would relate back to the actual date of entry in service or atleast from the date as in the facts of the case from the date when the petitioner was terminated from service. A later date i.e. date of reinstatement which is in compliance of an award by the learned Labour Court could, by no stretch of imagination, be treated as the date of actual entry in service. As it is, it also appears that inspite of best efforts, learned advocate Mr.Munshaw could not be able to show any discernible difference between the petitioner and the co-employee namely Pankhuben in whose case vide order dated 18.08.2017 the respondent no.3 had granted the benefit of Government Resolution dated 17.10.1988 by treating the date of entry in service as 01.04.1984 and not the date of

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reinstatement in service.

7.5. Furthermore, it would also appear that there is no difference in case of the present petitioner and the facts of the case of Parvatiben as decided by the learned Coordinate Bench of this Court vide decision dated 23.07.2019 in Special Civil Application No.12880/2018."

6. Considering the observations made by this Court in Special Civil

Application No. 14664 of 2018, more particularly since the late employee

of the present petition is identically situated to the petitioner therein, the

benefits as accorded to the petitioner therein, deserve to be granted to the

late employee, husband of the petitioner herein. Thus, considering the

observations and discussion in Special Civil Application No. 14664 of

2018, the following directions are passed :

(i) The late employee is entitled to be granted the benefits under the

Government Resolution dated 17.10.1988 from the date of actual entry in

service i.e. from 01.04.1984.

(ii) The respondents shall verify the period between 01.04.1984 till

01.04.1989 more particularly as to whether the deceased employee has

completed 240 days and whereas the respondents shall add Sundays and

Public Holidays along with the said period as per the laid laid down by

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

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International Banking Corporation vs. Management of American

Express International Banking Corporation [AIR 1986 SC 458].

(iii) The respondents shall treat the period between 01.04.1989 to

25.02.1991 as period in actual service more particularly as if the late

employee has completed 240 days in each of the intervening year.

(iv) The respondents shall thereafter consider the case of the petitioners

for grant of benefit under the Government Resolution dated 17.10.1988

more particularly counting the number of years in which the late

employee has completed 240 days.

(v) It also needs to be observed that the benefits as had been granted

to the co-employee Smt. Pankhuben Punjabhai as per the order dated

18.08.2017 counting her date of entry in service from 01.04.1984 shall be

granted to the late employee more particularly subject to the above

conditions.