Shanabhai Somabhai Khant vs State Of Gujarat
2025 Latest Caselaw 3117 Guj

Gujarat High Court

Shanabhai Somabhai Khant vs State Of Gujarat on 17 February, 2025

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                          C/SCA/14930/2020                                    JUDGMENT DATED: 17/02/2025

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                              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                               R/SPECIAL CIVIL APPLICATION NO. 14930 of 2020

                     FOR APPROVAL AND SIGNATURE:

                     HONOURABLE MR.JUSTICE D.N.RAY
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                                 Approved for Reporting                No    Yes
                                                                       ✔
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                                     SHANABHAI SOMABHAI KHANT
                                                 Versus
                                       STATE OF GUJARAT & ORS.
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                     Appearance:
                     MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
                     MR. AAKASH GUPTA, AGP for the Respondent(s) No. 1
                     MS. AGNEYA B. MANKAD for MR UM SHASTRI(830) for the
                     Respondent(s) No. 3
                     NOTICE SERVED for the Respondent(s) No. 2
                     ===================================================

                       CORAM:HONOURABLE MR.JUSTICE D.N.RAY

                                                       Date : 17/02/2025

                                                       ORAL JUDGMENT

1. Heard Mr. Dipak R. Dave, learned advocate on behalf of the petitioner, Ms. Agneya B. Mankad, learned advocate for Mr. U.M. Shastri, learned advocate on behalf of the respondent no.3 and Mr. Aakash Gupta, learned Assistant Government Pleader on behalf of the respondent no.1 - State.

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2. RULE, returnable forthwith. Ms. Agneya B. Mankad, learned advocate for Mr. U.M. Shastri, learned advocate and Mr. Aakash Gupta, learned Assistant Government Pleader waives service of Rule on behalf of the respondent no.3 and respondent no.1-State respectively. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing, as the issue involved is very short.

3. The sum and substance of the case as discernible from the petition is as under:

"The petitioner who has entered the services in the year 1983 is still treated as daily-wager. Several employees who have entered the service after the petitioner have been granted the benefit of Government Resolution dated 17.10.1988 by the respondents. The claim of the petitioner is totally ignored on the ground that petitioner remained out of service for all these years."

3.1. It is the specific case of the petitioner that, by way of an award dated 28.09.2017 passed in Reference (T) No. 639 of 1999 by the Labour Court, Godhra, the petitioner was directed reinstatement with 25% back-wages. Thereafter, upon a challenge by the respondents to the said order of reinstatement, this Court by order dated 04.09.2019 in Special Civil Application No. 22021 of 2017 passed the following order:

"10. However, looking to the fact that the petitioner is a public body, Mr.Dipak R. Dave, learned advocate for the respondent has fairly conceded that he would let go the 25% backwages i.e. awarded by the labour Court.

11. In view of the aforesaid, the petition is partly allowed. The

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award as far as reinstatement and continuity of service is not disturbed. The award in so far as backwages is set aside."

3.2. Accordingly, it can be seen that the reinstatement and the continuity of service of the petitioner is not in question as on date.

4.1. In this background, Mr. Dave, learned advocate submits that the government resolution dated 17.10.1988 must be squarely applied in the petitioner's favour and there is no reason whatsoever, for the respondents not to extend the benefits of the said government resolution to the Petitioner.

4.2. The relevant extracts of the said government resolution has been quoted in the decision of the Hon'ble Apex Court in the case of the State of Gujarat v/s. Public Works Department and Forest Employees Union and Others reported in (2019) 15 SCC 248 at Paragraph-3 (Pg.251-SCC) as under:

"(i) They are entitled to daily wages as per the prevailing daily wages. If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays.

(ii) Daily wagers and semi-skilled workers who have service of more than five years and less than 10 years are entitled for fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leaves in addition to 14 miscellaneous leaves, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and deduction of provident fund.

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(iii) Daily wagers and semi-skilled workers who have service of more than ten years but less than 15 years are entitled to get minimum pay scale on a par with skilled workers along with dearness allowance as per prevailing standard, for his working days. Moreover, such daily wagers will get two optional leaves in addition to 14 miscellaneous leaves, Sunday leave and national festival holidays. He/She will be eligible for getting medical allowance and deduction of provident fund.

(iv) Daily wagers and semi-skilled workers who have service of more than 15 years will be considered as permanent worker and such semi-skilled workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get the benefit as per the prevailing rules of gratuity, retired (sic retiral) salary, general provident fund. Moreover, they will get two optional leaves in addition to 14 miscellaneous leaves, 30 days' earned leave, 20 days' half-pay leave, Sunday leave and national festival holidays. The daily-wage workers and semi-skilled workers who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly."

4.3. Paragraph-16 of the said judgment is quoted herein- below for ready reference:

"16. Insofar as exception (iv) mentioned by the appellant is concerned, there appears to be some merit therein. For counting the number of years for giving benefit to the workers in terms of judgment dated July 09, 2013, only those years would be taken into consideration wherein these workers had worked for 240 days or more in a year i.e. in consonance with the GR dated October 17, 1988. Furthermore, there is no direction in the judgment of this Court to the effect that the period of service of 240 days' in a year should be only in the initial year and not thereafter. In fact, when the learned Senior Counsel for the respondents were confronted with the aforesaid position, they conceded to this position."

4.4. In the order dated 18.06.2018 passed by the Hon'ble

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Division Bench of this Court in Letters Patent Appeal No. 1268 of 2017 in Special Civil Application No. 7713 of 2016, it has been held 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 respondent-workman 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 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."

4.5. In view of the aforesaid position in law, Mr. Dave, learned advocate submits that the petitioner ought to have been granted continuity of service and been treated as a permanent employee, after completion of 10 years of services, i.e. from 1993 and all consequential benefits of a permanent employee including

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the regular pay scale should have been granted to the petitioner from 1993, following clause-4 of the government resolution dated 17.10.1998 as quoted above.

5. Ms. Agneya B. Mankad, learned advocate for Mr. U.M. Shastri, learned advocate on behalf of the respondent no.3 does not dispute the said position in law.

6. Consequently, the Petition succeeds and the petitioner is held to be entitled to fixation of pay in the pay scale applicable to permanent employees, taking into consideration his length of service from 1983. The respondents are directed to grant all consequential benefits to the petitioner, as per the government resolution dated 17.10.1988, within a period of 12 (twelve) weeks from the date of the receipt of the order of this Court.

Direct service is permitted. Rule is made absolute. No order as to costs.

(D.N.RAY,J) Pradhyuman