Amarsinhbhai Kanjibhai Rathod vs State Of Gujarat
2024 Latest Caselaw 96 Guj

Gujarat High Court

Amarsinhbhai Kanjibhai Rathod vs State Of Gujarat on 4 January, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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     C/SCA/1177/2022                               ORDER DATED: 04/01/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 1177 of 2022
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                       AMARSINHBHAI KANJIBHAI RATHOD
                                   Versus
                         STATE OF GUJARAT & 3 other(s)
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Appearance:
MR NILESH M SHAH(780) for the Petitioner(s) No. 1
MR AYAAN PATEL, ASST.GOVERNMENT PLEADER for the Respondent(s)
No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
                  Date : 04/01/2024
                   ORAL ORDER

1. Heard learned advocate Mr.Nilesh Shah on behalf of the

petitioner and learned Assistant Government Pleader

Mr.Ayaan Patel on behalf of the respondent - State.

2. Issue Rule returnable forthwith. Learned AGP waives

service of rule on behalf of the respondent - State.

3. Considering the submissions made by learned advocate

Mr.Shah, it would appear that the late wife of the present

petitioner along with six other persons who were working as

daily rated employees with the respondent no.3 had been

terminated from service and had preferred a reference case

before the learned Labour Court being Reference (LCS)

No.83/2001. The learned Labour Court vide award dated

12.01.2007 had directed the workmen to be reinstated

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without the benefit of backwages.

3.1. It would appear that the said award had been challenged

by the State before this Court by preferring Special Civil

Application No.17885/2007 and whereas, the said petition had

been rejected by this Court. It would appear that

subsequently, the respondent no.3 passed an order dated

07.11.2012 treating the wife of the present petitioner and

other workmen as fresh appointees without any reference to

their past service from 1996 to 2007.

3.2. It would appear that one of the coworkers who was also

a party before the learned Labour Court and in whose favour

order dated 07.11.2012 had been passed, had approached this

Court challenging the same and also for grant of other

benefits under Government Resolution dated 17.10.1988. It

would appear that the learned Coordinate Bench vide order

dated 15.09.2022 in Special Civil Application No.10343/2020

preferred by the co-employee referred to hereinabove, had

directed the respondents to confer and grant benefit under

Government Resolution dated 17.10.1988 by reckoning

services of the petitioners therein from the date of initial

appointment. The learned coordinate Bench had also directed

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the respondents to confer corresponding benefits upon

completion of requisite number of years to the petitioner

therein and whereas, the services of the petitioner was

directed to be treated as continuous from the date of initial

joining till the date of reinstatement and notional benefits and

pensionary benefits would be calculated and granted from the

period of reinstatement onwards.

4. Learned AGP Mr.Ayaan Patel would not be able to

submit as to the said order being set aside by the superior

Court.

5. Having regard to the same, the relevant observations of

order dated 15.09.2022 rendered in Special Civil

Application No.10343/2020 are reproduced hereinbelow for

benefit:-

"2. The prayer in this petition is to direct the respondents to grant the benefits of the resolution dated 17.10.1988 to the petitioner from his initial date of joining service and fix the pensionary benefits of the petitioner accordingly.

3. The case of the petitioner is that he was working as a daily wager since 1976. His services were terminated with effect from 01.01.1988. That was a subject matter of challenge before the Labour Court by way of Reference (LCS) No. 83 of 2001. The Labour Court by an award dated 12.01.2007 reinstated the petitioner without expressly stating

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that it was with continuity of service. The petitioner was reinstated on 06.10.2008. By an order dated 07.11.2012, the petitioner was treated as a fresh appointee from 29.08.2007 and his past service from 1996 to 2007 was not considered when he retired in 2018.

4. Mr. Nilesh M Shah, learned advocate for the petitioner would also rely on an order passed by this court in Special Civil Application No. 389 of 2020 on 14.02.2022.

5. Mr. Soaham Joshi, learned AGP would submit that the petition is grossly belated inasmuch the order of 07.11.2012 was very much in the knowledge of the petitioner and the petitioner has filed this petition 7 years thereafter.

6. Considering the decision of this court in Special Civil Application No. 389 of 2020 dated 14.02.2022 wherein this court has held as under, the petition deserves to be allowed:

"3. In this petition under Article 226 of the Constitution of India, the prayer of the petitioner is to direct the respondents to grant the benefits of the resolution dated 17.10.1988 to the petitioner from initial date of joining considering the fact that by virtue of the award of the Labour Court dated 29.08.2009, reinstatement was granted with continuity of service, in the award made though not have specifically mentioned the word "continuity".

4. Mr.P.C.Chaudhary learned counsel for the petitioner would draw the attention of this court to a decision rendered by the coordinate bench of this Court in Special Civil Application Nos.13095 of 2016 and 2192 of 2017, wherein considering several decisions of this Court including the decision of the Supreme Court, the Court in Special Civil Application Nos.13095 of 2016 held as under:

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"5. In Vasantika R. Dalia Vs. Baroda Municipal Corporation [1998(2) LLJ 172], this Court was posed to interpret the judgment and award of the Labour Court which granted the relief of reinstatement to the workmen. The relief of backwages was denied and the relief of continuity of service was not denied specifically and that in the relief of reinstatement granted, the word 'continuity' was not mentioned.

5.1 The Court observed to lay down that "It may be straightaway observed that once the relief of reinstatement is granted, the continuity of service is a direct consequence rather inherent in the relief of this nature". It was held that when the relief of reinstatement was granted and the continuity of service was not specifically denied, the workman has to be relegated to the same position as was held by it at the time of termination. When the order of termination was found to be void, the petitioner, it was held, would be entitled to hold the relief of reinstatement with continuity where there was no mention of specific denial to such continuity.

5.2 The Supreme Court in Gurpreet Singh Vs. State of Punjab and others [2002 (92) FLR 838], held that once the plaintiff was directed to be reinstated in service upon setting aside of the order of termination, continuity of service could not be denied. The Court observed that the case was not of fresh appointment but it was one of reinstatement and that being the position, it was observed that the High Court was in error in denying the continuity of service.

6. Thus and therefore, even though the judgment and award of the Labour Court had not expressly granted the continuity, at the

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same time it did not deny the continuity in any expressed terms. The grant of continuity would have to be read with the order of reinstatement. The petitioner would be entitled to be treated continuous in service upon reinstatement. Resultantly, the petitioner would be entitled to be granted the benefits of resolution dated 17.10.1988 accordingly by reckoning his services C/SCA/13095/2016 ORDER the Supreme Court in Gurpreet Singh (supra), the concept of continuity could not be distinguished for the purpose of granting any other service benefits. Learned Assistant Government Pleader made a failed attempt to submit that the continuity for the purpose of granting benefits under resolution dated 17.10.1988 may be treated differently. Any such distinction would be artificial distinction. once the labour court granted the reinstatement and the continuity was not expressly denied, the continuity benefit could be said to be deemed to have been granted and by deeming fiction the services of the petitioners should have to be treated as continuous upon their reinstatement.

6.2 Not only that the averments in the petition remained undisputed that other similarly situated employees shri Pravinbhai Madhavbhai, shri Manubhai Govindbhai and shri Maheboob Husainbhai in whose favour also there was judgment and award of the labour court in similar way, they were shown to have extended the benefits of resolution dated 17.10.1988 by passing order dated 29.5.2009 by the authorities. The petitioners are liable to be treated with parity for the purpose of extension of benefits in question.

6.3 The petitioners cannot be treated differently once the similarly placed employees were extended the benefits of

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resolution dated 17.10.1988 by considering their services as continuous after the reinstatement is effected pursuant to labour court's judgment and award. In the above view, the denial of continuity of service to the petitioner would stand only for breach of Article 14 of the Constitution.

7. As a result of the above discussion, the petition deserves to be allowed. The respondents are directed to confer and grant the benefits to the petitioner under resolution dated 17.10.1988 of the State Government by reckoning the services of the petitioner from the initial date of his joining and depending upon the completion of requisite number of years to confer the corresponding benefits under the said resolution. The services of the petitioner shall be treated as continuous with effect from the initiate date of joining till the date of reinstatement and notional benefits would be calculated and granted for the period from the date of reinstatement onwards. The arrears which may arise and become payable by virtue of this order from onwards the date of reinstatement shall be paid by the authorities to the petitioner within a period of ten weeks from the date of receipt of the present order."

5. In the latter decision of the Division Bench of this Court in case of Secretary v. Rajendrasinh Hamirsinh Parmar rendered in LPA No.1527 of 2019 relying on the decision of the Supreme Court in case of Nandkishore Shravan Ahirrao v. Kosan Industries Private Limited [2020 LLR 813] confirmed the decision of the learned Single Judge.

6. Accordingly, the petition is allowed. The respondents are directed to confer and grant the benefits to the petitioner under resolution dated 17.10.1988 of the State Government by

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reckoning the services of the petitioner from the initial date of his joining and depending upon the completion of requisite number of years to confer the corresponding benefits under the said resolution. The services of the petitioner shall be treated as continuous with effect from the initial date of joining till the date of reinstatement and notional benefits would be calculated and granted for the period from the date of reinstatement onwards. The arrears which may arise and become payable by virtue of this order from onwards the date of reinstatement shall be paid by the authorities to the petitioner within a period of ten weeks from the date of receipt of the present order.

7. The petition is allowed in the aforesaid terms. Rule is made absolute accordingly."

7. Accordingly, the petition is allowed. The respondents are directed to confer and grant the benefits to the petitioner under resolution dated 17.10.1988 of the State Government by reckoning the services of the petitioner from the initial date of his joining and depending upon the completion of requisite number of years to confer the corresponding benefits under the said resolution. The services of the petitioner shall be treated as continuous with effect from the initial date of joining till the date of reinstatement and notional benefits and pensionary benefits would be calculated and granted for the period from the date of reinstatement onwards. The arrears which may arise and become payable by virtue of this order from the date of reinstatement shall be paid by the authorities to the petitioner within a period of ten weeks from the date of receipt of the present order."

6. Since there is no difference between the late wife of the

petitioner and the petitioner before this Court in the earlier

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order, the same benefit as granted to the petitioner therein

deserves to be granted to the petitioner herein. Hence, the

respondents are directed to confer and grant benefit to the

petitioner as available under Government Resolution dated

17.10.1988 by reckoning the services of the late wife of the

petitioner from the initial date of her joining and depending

upon completion of requisite number of years, to confer the

corresponding benefits under the said resolution.

6.1. It is further clarified that the services of the petitioner

shall be treated to be continuous w.e.f the initial date of

joining till the date of reinstatement and whereas, the period

from termination to reinstatement shall be calculated for

notional grant of benefits and whereas, the pensionary

benefits would be granted and calculated from the date of

reinstatement till the date of demise of the wife of the

petitioner. The arrears which would be payable to the

petitioner by virtue of the above exercise shall be paid within

a period of ten weeks from the date of receipt of this order.

7. With these observations and directions, the present

petition stands disposed of as allowed.

(NIKHIL S. KARIEL,J) Bhoomi