Gujarat High Court
Chandrikaben Bhanulal Champaneri vs Bhavnagar District Panchayat on 18 April, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16055 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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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CHANDRIKABEN BHANULAL CHAMPANERI
Versus
BHAVNAGAR DISTRICT PANCHAYAT & ORS.
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Appearance:
MR. VISHAL P THAKKER(7079) for the Petitioner(s) No. 1
for the Respondent(s) No. 5
MR JAY TRIVEDI AGP for the Respondent(s) No. 4
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 18/04/2024
ORAL JUDGMENT
1. The petitioner has preferred present petition under
Articles 14, 19, 21 and 226 of the Constitution of India
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challenging the inaction on the part of respondents with
below mentioned relief/s:-
"9(A) YOUR LORDSHIPS be pleased to issue a writ of
mandamus, or a writ in the nature of mandamus, or any
other appropriate writ, order or direction, to the
respondents to grant the benefits of Govt. Resolution
dtd. 17.10.1988 to the petitioner, following the length of
service of the petitioner and also as per the decision of
the Hon'ble Apex Court;
(B) YOUR LORDSHIPS be pleased to issue a writ of
mandamus, or a writ in the nature of mandamus, or any
other appropriate writ, order or direction, to the
respondents to grant the benefits of Govt. Resolution
dtd. 17.10.1988 to the petitioner, following the length of
service of the petitioner and also as per the decision of
the Hon'ble Apex Court, pending the admission, hearing
and final disposal of this petition;
(C) YOUR LORDSHIPS be pleased to direct the
respondent authority to pay the difference of salary as
per the prevailing pay commission from dtd 01.04.1993,
as the services of the petitioner are eligible for benefit of
Govt. resolution dtd. 17.10.1988, on completing 10 years
of continuous service, along with interest @ 12% per
anum in the interest of justice;
(D) YOUR LORDSHIPS be pleased to direct the
respondent authority to pay the difference of salary as
per the prevailing pay commission from dtd 01.04.1993,
as the services of the petitioner are eligible for benefit of
Govt. resolution dtd. 17.10.1988, on completing 10 years
of continuous service, along with interest in the interest
@12% per anum of justice, pending the admission,
hearing and final disposal of this petition;
(E) YOUR LORDSHIPS be pleased to grant such other
and further reliefs as deemed fit in the interest of
Justice;"
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2. The short facts giving rise to present petition are that
the petitioner was appointed as rojamdar / daily wager
aaya-cum-sweeper-cum peon in 1983 with the
respondents authorities. The services of the petitioner
came to be terminated by the respondents authorities and
therefore, the petitioner has preferred Labour Court
Reference No. 367 of 1989. The said reference came to
be allowed by the Labour Court vide order dated
22.7.2003 and directed the respondents authorities to
reinstate the petitioner on her original post with
continuity of service and awarded 50% backwages.
2.1 The said award came to be challenged by the
concerned respondent before this Court by way of
preferring Special Civil Application No. 15785 of 2005
and after hearing the parties, this Court modified the
award of the Labour Court with regard to backwages.
This Court has modified the backwages from 50% to 25%.
2.2 Against the said order of this Court, the respondents
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authorities have preferred Letters Patent Appeal and the
same was dismissed for non-removal of office objections.
2.3 After completion of 10 years service, the petitioner
approached the respondents authorities to which she was
denied regularization of services as per the Government
Circular dated 17.10.1988.
2.4 In view of the above facts and against the inaction of
the respondents authorities, the petitioner has
approached this Court by way of preferring present
petition.
3. Heard Mr. Vishal P. Thakker, learned Counsel
appearing for the petitioner, Mr. Jay Trivedi, learned
Assistant Government Pleader appearing for respondent
No.4 and Mr. H.S. Munshaw, learned Counsel appearing
for the respondent Nos. 1 and 2.
4. Mr. Thakker, learned Counsel for the petitioner has
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submitted that the petitioner was reinstated in the year
2005 and he was serving for almost 32 years till the date
of her superannuation and therefore, she is entitled for
the benefits flowing from Government Circular dated
17.10.1988.
4.1 Mr. Thakker, learned Counsel for the petitioner has
further submitted that the petitioner has been ignored by
the respondents in granting the benefits of various
Government Circulars even after her services of 32 years.
He has further submitted that the petitioner is eligible for
such benefits.
4.2 In support of his submission, Mr. Thakker, learned
Counsel for the petitioner has relied upon following
decisions of Hon'ble Apex Court and this Court:-
(1) In the decision of Hon'ble Apex Court in the case
of Nandkishore Shravan Ahirrao vs. Kosan
Industries(P) Ltd reported in 2020(1) CLR 801,
the Hon'ble Court has observed as under:-
"2. The appellant was employed in the Assembly
department of the respondent. He was served with
a charge-sheet on 26 June 1992. The charge
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against the appellant was of causing disruption of
work between 1050 am and 12 noon on 17 June
1992. Following a departmental enquiry, the
appellant was dismissed from service on 26
November 1997. In pursuance of a reference made
under the Industrial Disputes Act 1947, the Labour
Court by its award dated 27 February 2008 came
to the conclusion that the findings in the enquiry
were perverse; that the order of dismissal was
harsh and granted reinstatement in service with
25% back wages for the surplus days.
3 The order of the Labour Court was questioned
before the High Court of Gujarat by the employer.
A learned Single Judge of the High Court, by a
judgment dated 5 February 2013, partly allowed
the Special Civil Application. While affirming the
order of reinstatement, the Single Judge set aside
the order for payment of 25% back wages. The
appellant then filed a Letters Patent Appeal. The
Division Bench of the High Court dismissed the
appeal on the ground that it was not maintainable.
4 Notice was issued in these proceedings on 16
October 2015. The office report indicates that the
respondent has been served. Since the respondent
has failed to appear, we have proceeded to deal
with the appeal on merits.
5 The learned Single Judge held that the Labour
Court rightly observed that the punishment which
was imposed on the appellant was harsh. It
appears that even the salary of the appellant was
deducted for the period in question during which
work was disrupted. However, the learned Single
Judge held that the payment of back wages would
not follow as a matter of course upon an award of
reinstatement. Hence, the direction for the
payment of 25% back wages was interfered with
and set aside. The Single Judge also observed that
the Labour Court has "rightly passed the judgment
and award reinstating the respondent without
continuity of service".
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6. The first grievance of the learned counsel
appearing on behalf of the appellant is that the
High Court was in error in misconstruing the
award of the Labour Court as having denied
continuity of service. We find merit in the
submission. The award of the Labour Court is in
the following terms:
"The reference of second party Nandkishor
Shravan Ahirrao, 94, Shriram Kutir, near
Chikuvadi, Post Office - Fatehnagar, Udhna,
Surat - 304220 - C/o. Bombay foods Ltd. and
Kosan Industries Ltd., Worker/Employee
Union, Surat is hereby partly allowed.
And the first party of this case is hereby
ordered that, they have to reinstate the
second party in service with 25% back-wages
for his surplus days within 30 days from the
publication of this order."
7. Ex facie, the Labour Court having awarded
reinstatement to the appellant, continuity of
service would follow as a matter of law. The award
of the Labour Court dated 27 February 2008 does
not specifically deny continuity of service. Hence
the observation of the High Court to the effect that
the Labour Court had denied continuity of service
is erroneous and would accordingly stand
corrected in terms of what has been observed
herein-above. The appellant would be entitled to
continuity of service.
8 On the question of back wages, the Labour Court
had confined the award of back wages to 25%.
Having come to the conclusion that the findings in
the disciplinary enquiry was perverse, the Labour
Court observed that it was a -matter of record that
the workman has been gainfully employed over a
part of the period after dismissal, between 3 March
1990 to 9 September 1992 with another employer.
It was in the above circumstances, that the entire
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component of back wages was not awarded to the
appellant and only 25% was awarded. The High
Court has no justification to set aside the award of
25% back wages awarded by the Labour Court
which was eminently fair and proper. The direction
of the High Court for deletion of back wages is
therefore unsustainable and is set aside.
9 We accordingly allow the appeals by directing
that while maintaining the award of reinstatement,
the appellant would be entitled to notional
continuity of service as well as the payment of 25%
back wages. Since the appellant has retired from
service during the pendency of the proceedings,
his retiral dues together with payment of 25% back
wages for the relevant period shall be computed
and paid over to the appellant within a period of
three months from the date of receipt of a certified
copy of this order."
(2) In the decision of Hon'ble Apex Court in the case
of Gurpreet Singh vs. State of Punjab and
others reported in (2002) 9 SCC 492, the Hon'ble
Court has observed as under:-
"1. Leave granted.
2. The Plaintiff is in appeal against the impugned
judgment of the High Court of Punjab & Haryana
in a second appeal.
The plaintiff's services stood terminated and he
filed the suit for declaring the order of termination
null and void. The suit was dismissed. The lower
appellate Court, however, on re-appreciation of the
materials on record, came to the conclusion that
the order passed by the D.I.G. must be held to be
illegal and consequently directed that the plaintiff
should be reinstated in service. Having directed so,
the first appellate court categorically held that the
plaintiff will not be entitled to any arrears of salary
for the period for which he has not served. The
plaintiff assailed the appellate decree by filing a
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second appeal claiming that he would be entitled
to the arrears of salary. The High Court by the
impugned order not only confirmed the decree of
the lower appellate court that the plaintiff will not
be entitled to any arrears salary, but also further
added that the plaintiff will not get his continuity of
service. The plaintiff, therefore, is in appeal before
this Court.
3. Having heard the learned counsel for the parties
and on examining the materials on record, we fail
to understand how the continuity of service could
be denied once the plaintiff is directed to be
reinstated in service on setting aside the order of
termination. It is not a case of fresh appointment,
but it is a case of reinstatement. That being the
position, direction of the High Court that the
plaintiff will not get continuity of service cannot be
sustained and we set aside the part of the
impugned order. So far as the arrears of salary is
concerned, we see no infirmity with the direction
which was given by the lower appellate court
taking into account the facts and circumstances
including the fact that the suit was filed after a
considerable length of time. That part of the
decree denying the arrears of salary stands
affirmed and this appeal stands allowed in part to
the extent indicated above."
(3) This Court in the order dated 23.11.2021 passed
in Letters Patent Appeal No.1132 of 2018 has
observed as under:-
"4. In course of hearing, learned advocate for the
appellants submitted that he would not press
challenge in respect of reduction of back wages.
Even otherwise, learned Single Judge reduced the
back wages to modify the award applying the facts
and exercising his discretion in that respect. The
grant of back wages is discretionary which
exercise has undertaken by learned Single Judge
and we, in Letters Patent Appeal, would not, in any
case, substitute our view. Therefore, when part of
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the direction of learned Single Judge modifying the
award of the Labour Court in respect of grant of
back wages is not interfered with.
4.1 The third aspect which was really interjected
by learned Single Judge was about grant of
continuity. The Labour Court in its judgment and
award granted continuity of service to all the
workmen. The direction to grant continuity of
service came to be set aside by learned Single
Judge. He reasoned in paragraph No.18 that, "In
view of the persons who were engaged without
following procedure prescribed by law and who
had not completed service of more than 4 to 5
years before they were relieved and that the
persons who were engaged on adhoc and daily
wage basis, the order directing the employer to
treat their service continues for entire duration
cannot be sustained.".
5. The direction of reinstatement of the workmen
issued by the Labour Court and confirmed by the
learned Single Judge was confined on the finding
that there was a breach of Sections 25F, 25G and
25H of the Industrial Disputes Act. It is trite
principle that reinstatement when granted, in all
ordinary circumstances, would accompany with
grant of continuity of service. The reasoning that
services of the workmen were only of four to five
years or that they were the persons engaged in the
ad hoc capacity, were not the valid or germane
reasons in eye of law to set aside the benefit of
continuity of service granted to them by the Labour
Court."
(4) This Court in the judgment and order dated
8.4.2019 passed in Special Civil Application No.1942
of 2019 has observed as under:-
"4. The reason for denial of benefit of the
Resolution dated 17.10.1988 is discernible from
the communication dated 10.03.2014 from the
office of Archaeological Department addressed to
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the President, Gujarat Labour Federation. The said
communication was in respect of the two workmen
named Baria Rameshbhai Udabhai as well as
the present petitioner, Damor Bhagvanbhai
Amrabhai. In the earlier petitions, being Special
Civil Application No.5321 of 2013 and 5322 of
2013, the case had gone in Special Leave Petition
and pursuant to the same, the order was
passed. The denial was on the ground that the
benefits under the Resolution dated 17.10.1988
would be available provided the Rojamdar had
been working prior to 01.10.1988. It was stated
that the present petitioner was working since
04.10.1991, therefore, the date being
subsequent to 01.10.1988, the petitioner would not
be entitled to the benefits of the
Resolution dated 17.10.1988.
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.respondent. Dated 17/10/1988 is clarified
and given effect to all those who are
subsequently appointed also and that
has been accepted as policy governing
such employment thereafter.
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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 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
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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.
5.2 The decision in Kutch District Panchayat
(supra), was relied on in Jayantibhai Venabhai
Patel vs. State of Gujarat, being Special Civil
Application No.6601 of 2016, decided on
31.08.2018, in which what was under challenge
was the order passed by the Commissioner,
Geology and Mines Department, who had refused
the benefits of Resolution dated 17.10.1988 to the
petitioner of the said petition on the ground that
as per the said resolution, the benefits were
available only in the case where the
employee was engaged prior to 01.10.1988. In
other words, in that case also the benefits
under Resolution dated 17.10.1988 came to be
denied on the ground that the petitioner had
started the service as dailyrated Peon after
01.10.1988, which was on 19.10.1988. The said
petition was allowed.
6. In view of the above position of law, the ground
on which the petitioner is denied the
benefits of Resolution dated 17.10.1988, cannot
sustain in eye of law as the competent
authority has refused the benefits on the
footing that the petitioner was appointed
subsequent to 01.10.1988. This cutoff date is
illegal. The employees whether employed prior to
the date of Resolution dated 17.10.1988 or
subsequently employed, are entitled in uniform
way to the benefits emanating from the said
Resolution on the basis of completion of requisite
length of their service. The petitioners could
not be denied the benefits.
7. As a result of the above discussion, the
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petitioner shall be granted the benefits of
State Government Resolution dated 17.10.1988. He
shall be treated to be permanent upon completion
of ten years of service and regular payscales shall
be extended to him. The petitioner shall further be
extended all retirement benefits after 30.06.2016,
being the date on which the petitioner
reached the age of superannuation. The
necessary benefits flowing by virtue of the
present order shall be paid to the petitioner
within a period of eight weeks from the date of
receipt of the writ of this order.
The petition stands allowed accordingly. Rule is
made absolute in the aforesaid terms."
(5) This Court in the judgment and order dated
11.10.2013 passed in Special Civil Application
No.8818 of 2009 has observed as under:-
"6. Having heard learned advocates for the
respective parties and having gone through the
material on record, this Court finds that, the
Labour Court has erred in recording reasoning
that, since at the time of initial engagement of the
petitioner, no procedure was followed, he was not
entitled to the benefit as per the policy of the
Government as contained in the Government
Resolution dated 17.10.1988. It is not in dispute
that, with a view to see that a daily wager
appointed by the Authorities of the Government
does not remain a daily wager even after years and
decades, the Government in its wisdom had
appointed a Committee headed by a Minister to
suggest measures in that regard and on the
recommendations of such Committee, after careful
consideration, it was resolved by the Government
that, a daily wager, on completion of certain years
of service, shall be paid wages at the minimum of
the pay-scale which is otherwise given to a regular
employees, and after certain years of service
thereafter, he will start earning yearly increments,
etc. It is also not in dispute that in all departments
of the Government, more particularly in Public
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Works Department (now separately known as
Roads & Building and Irrigation Department) and
also in Forest Department, because of the field
requirement, hundreds and thousands of such
persons were engaged, for whom this policy was
formulated by the Government, and further that,
even now such appointments are being made. If
the object and reason of this policy is kept in view,
the reasons recorded by the Labour Court, that
since procedure was not followed, the petitioner
cannot be extended benefits of this Resolution,
goes to the very root of the matter, to the extent of
scrapping the policy itself, since there is no
procedure which is followed at the time of
engaging such daily wagers. Under these
circumstances, the reason recorded by the Labour
Court needs to be interfered with. It also needs to
be recorded that, the benefit which is asked for by
the petitioner, and which is denied by the Labour
Court, is that benefit, which is extended to
thousands of similarly situated workmen, including
to the workmen under the administrative control of
the present respondent Authorities. Under these
circumstances, denial of the benefits of
Government Resolution dated 17.10.1988 to the
present petitioner would not only be against the
policy of the Government, but would be
discriminatory treatment to the petitioner. It also
needs to be recorded that, the view of the Labour
Court that, since at the time of engagement of the
petitioner no procedure was followed, he is not
entitled to claim benefits, can also not be
sustained, in view of the settled position of law, as
observed by Hon'ble the Supreme Court of India in
the case of Bhartiya Seva Samaj Trust (supra), that
no authority can take advantage of its own wrong,
to content that since he (the employer) had not
followed due procedure, the workman is not
entitled to any benefits. Further, as observed by
Hon'ble the Supreme Court of India in the case of
Maharashtra State Road Transport Corporation
(supra), a daily wager cannot be asked to be a daily
wager for decades. Be it noted that in the preset
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case, the petitioner is working since 24.11.1988,
and thus, by this time he has put in about 25 years
of service. Further, so far applicability of the
Government Resolution in question dated
17.10.1988 is concerned, Hon'ble the Supreme
Court of India has made it clear in the case of State
of Gujarat and Ors. vs. PWD Employees Union &
Ors. (supra), that no exception be made with
regard to the extension of benefits of the
Government Resolution dated 17.10.1988. Keeping
all these aspects in view, this Court finds that the
petitioner is entitled to get benefits of Government
Resolution dated 17.10.1988 and the denial by the
Labour Court is illegal, which needs to be set
aside."
(6) This Court in the judgment and order dated
1.8.2014 passed in Letters Patent Appeal No.463 of
2014 and allied matters has observed as under:-
"1. We have heard Mr.Nirzar S.Desai, learned
advocate appearing for the appellants and
Mr.Dipak R.Dave, learned advocate appearing for
the respondent.
2. This Letters Patent Appeal has been filed by the
appellants-original respondents challenging the
judgment dated 11.10.2013 passed by the learned
Single Judge in Special Civil Application No.8818
of 2009, by which, the learned Single Judge has
allowed the writ petition with the following
directions as contained in paragraph-7 of the
judgment which is extracted below:
"7. For the reasons recorded above, this petition is
allowed and following order is passed and
directions are given.
A. The impugned award of the Labour Court
is quashed and set aside and the petitioner is
held to be entitled to the benefits under the
Government Resolution dated 17.10.1988.
B. The respondent Authorities are directed to
extend all the benefits flowing from the
Government Resolution dated 17.10.1988 to
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the petitioner, considering 24.11.1988 as his
initial date of appointment, as a Wireman.
C. The petitioner shall be paid arrears and all
consequential benefits, within a period of
three months from today. While calculating
and making payment of the arrears, the
amount which is already paid to the petitioner
for the relevant period, shall be adjusted.
D. The petitioner is also held to be entitled for
the wages for the period during which he was
illegally kept out of service. The said period is
indicated to be from 28.12.2006 to
20.10.2008. Respondents are directed to
make payment of wages to the petitioner for
the said period as well."
4. The argument of the learned counsel for the
appellants is that the respondent-original
petitioner was engaged by the appellants-original
respondents Authority as a Wireman on
24.11.1988, whereas the benefit was to be
conferred as per the Government Resolution dated
17.10.1988 to those workmen, who were employed
prior to 01.10.1988.
5. This was not accepted by the Apex Court in the
case of Bhartiya Seva Samaj Trust and another v.
Yogeshbhai Ambalal Patel and another reported in
(2012) 9 SCC 310 and the same view has been
taken by the learned Single Judge. We have also
taken a similar view while deciding the Letters
Patent Appeal No.325 of 2013 to Letters Patent
Appeal No.330 of 2013 with Letters Patent Appeal
No.789 of 2013 by judgment dated 16.07.2014.
6. The controversy involved in this appeal squarely
covered by the decision of the Apex Court as well
as the decision of the Division Bench mentioned
above and we do not find any illegality or infirmity
in the order passed by the learned Single Judge.
This appeal is devoid of any merits and is,
accordingly, dismissed.
7. The direction given by the learned Single Judge
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in para7(C) is modified only to the extent that time
to comply with the order dated 11.10.2013 of the
learned Single Judge is extended for a period of
three months from today subject to the directions
mentioned above.
8. In view of disposal of the present Letters Patent
Appeal, Civil Application No.3642 of 2014 is also
disposed of."
(7) This Court in the order dated 18.6.2018 passed
in Letters Patent Appeal No.1268 of 2017 has
observed as under:-
"(5) Thus, the upshot of the aforesaid facts and
discussion is that the present respondent
workman is denied the benefits flowing from the
Government Resolution dated 17.10.1988 only
on the ground that he had not completed 240
days in a year and his "continuity of
service", as granted by the Labour Court
vide award dated 23.07.2007 and confirmed by this
court, cannot be considered. The stand taken by
the present appellants that the respondent
workman is not entitled to the benefits of the
Government Resolution dated 17.10.1988
deserves to be deprecated. Once it has been
established by this court that the respondent -
workman is reinstated in service with
continuity of service, the workman would be
entitled to get the benefits flowing from the
Government Resolution dated 17.10.1988, and
such benefits cannot be denied to the
respondentworkman only on the ground that he
has not worked for 240 days. He was forced to live
without work because of his illegal
termination. The appellants cannot take
benefit of their illegal action. The
termination of the respondent workman was found
to be illegal and contrary to the provisions
of the Industrial Disputes Act, 1947. The
effect of continuity of service is to be conferred
from the year 1996, when he was appointed as a
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daily wager. The impugned order dated 15.04.2016
is blissfully silent about denying the benefits of the
Government Resolution dated 17.10.1988 to
the workmen who have been reinstated with
continuity of service. The Government
Resolutions dated 17.10.1988 and 01.05.1991
envisage grant of benefits of pay fixation,
pension, etc. to the daily wagers, who have
completed certain number of years of service.
(6) We are in complete agreement with the
observations made by the learned Single
Judge in order dated 05.05.2016 passed in
Special Civil Application No.7713 of 2016.
(7) For the forgoing reasons, the Letters Patent
Appeal fails and is accordingly dismissed. The
order dated 05.05.2016 passed by the
learned Single Judge in Special Civil
Application No.7713 of 2016 shall be
complied with by the appellants. Necessary
orders granting the aforesaid benefits, as
observed by the learned Single Judge, shall be paid
to the respondent workman within a period of 03
(three) months from today."
(8) This Court in the order dated 23.6.2022 passed
in Special Civil Application No.16 of 2019 has
observed as under:-
"4 Accordingly, the petition is allowed. Taking into
consideration the decisions as referred to
hereinabove, it is held that based on the award of
the Labour Court which has to be read as having
granted continuity of service, the respondents are
directed to confer the benefits of the Resolution
dated 17.10.1988 from the initial date of
appointment of the petitioner. The period from
30.06.1988 to 03.04.2006 shall be treated as
notional. However, the benefits of the resolution
shall be given to the petitioner counting his entire
period of service from the initial date of
appointment. All consequential benefits, including
the benefits of the 6th Pay Commission which are
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granted to similarly situated employees shall be
given to the petitioner. Compliance of the order
shall be done within a period of three months from
the date of receipt of copy of this order. In view of
disposal of the main matter, connected
miscellaneous civil application and the civil
application does not survive and stands disposed
of, accordingly. Rule is made absolute to the above
extent."
4.3 Mr. Thakker, learned Counsel for the petitioner has
submitted that in view of the aforesaid decisions of
Hon'ble Apex Court and this Court, the petitioner is
entitled for the benefits flowing from Government
Circular dated 17.10.1988. He has further submitted that
the order of reinstatement was challenged by the
concerned respondent before this Court, however this
Court except modifying the backwages from 50% to 25%,
was not interfered in the order and against the said order
Letters Patent Appeal was filed however, the same was
dismissed for non-prosecution.
4.4 In view of the above, Mr. Thakker, learned Counsel
for the petitioner has submitted that the decision of the
respondents authorities denying the benefits to the
petitioner is unjust, unreasonable and arbitrary. Hence,
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he urges before the Court that present petition may be
allowed and impugned action of the respondents
authorities may be quashed and set aside and petitioner
may be granted benefits as prayed for in present petition.
5. On the other hand, Mr. Jay Trivedi, learned Assistant
Government Pleader has opposed present petition. He
has relied upon the affidavit-in-reply filed by the
concerned respondent and submitted that the petitioner
was not regularly appointed by the respondents
authorities. He has further submitted that the petitioner
was appointed on the basis of name recommended by the
Employment Exchange and even from 1985 to 2003, the
petitioner was out of job, as her service was terminated
by the respondents authorities and therefore, the
petitioner is not entitled to get benefits of Government
Circular dated 17.10.1988
6. Respondent No.5 has also filed an affidavit-in-reply
and denied the case of the petitioner in toto wherein
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respondent No.5 stated that the petitioner is not fall
within the purview of the categories of persons /
departments mentioned in the Government Circular dated
17.10.1988.
7. Mr. Jay Trivedi, learned Assistant Government Pleader
has submitted that the petitioner is employee of the
Health Department which is not fall within the purview of
the categories of departments mentioned in the
Government Circular dated 17.10.1988 and therefore, she
is not entitled to get benefits under Government Circular
dated 17.10.1988.
8. In view of the above facts, Mr. Jay Trivedi, learned
Assistant Government Pleader has submitted that the
petitioner is not entitled to get any benefits flowing from
Government Circular dated 17.10.1988 and present
petition may not be interfered with and the same may be
dismissed.
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9. I have perused the material available on record as
well as the relevant papers along with other documents
placed on record.
10. It appears from the record that the respondents
authorities has failed to consider the Government
Circular dated 17.10.1988. It is a settled legal position
that a public utility services like hospital, public health
center etc. whether run by State Government or a local
authority or individual, is covered under the provisions of
Industrial Disputes Act and also under the government
circular, which is confirmed by this Hon'ble Court as held
by Hon'ble the Apex Court in State of Gujarat and Ors.
Vs. PWD Employees Union and Ors. reported in
2013(8) SCALE 579, the Government Resolution dated
17.10.1988 is applicable to the daily wages working in all
the departments in the State of Gujarat.
11. Further against the order of the Labour Court the
concerned respondent has approached before this Court
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by way of preferring Special Civil Application No. 15785
of 2005 and after hearing the parties, this Court modified
the award of the Labour Court by reducing the
backwages from 50% to 25% and rest of the order was
not altered. The said decision also challenged in Letters
Patent Appeal by the concerned respondent which was
dismissed on the ground of non-prosecution.
12. In view of the above observations and in view of the
above cited decisions by Hon'ble Apex Court and this
Court, I am of the opinion that present petition requires
to be allowed.
13. After considering all the above aspects, this Court is
of the opinion that the petitioner is entitled to get the
benefits flowing from the Government Circular dated
17.10.1988 with a rider that during the period from 1985
to 2003, the petitioner is entitled to get 25% benefit and
thereafter, from the date of reinstatement, the petitioner
is entitled to get full benefits of the Government
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Resolution dated 17.10.1988.
14. The respondents authorities are hereby directed to
recalculate the benefits, keeping in mind the above
observation and pay all the consequential benefits flowing
from the said circular dated 17.10.1988 to the petitioner
within four months from the date of receipt of copy of the
order.
15. With aforesaid observations, present petition is
hereby allowed. Rule is made absolute to the aforesaid
extent.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
