Gujarat High Court
Allarakhiben Ismailbhai ... vs State Of Gujarat on 17 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16062 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
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ALLARAKHIBEN ISMAILBHAI QURESHI(DECEASED) & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for the
Petitioner(s) No. 1
MR NILESH M SHAH(780) for the Petitioner(s) No. 1.1,1.2,1.3,1.4,1.5
MS POOJA K ASHAR, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
NOTICE SERVED for the Respondent(s) No. 1,4
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CORAM:HONOURABLE MR.JUSTICE D.N.RAY
Date : 17/02/2025
ORAL JUDGMENT
1. Heard Mr. Nilesh M. Shah, learned advocate appearing for
the petitioners, Ms. Pooja K. Ashar, learned AGP appearing for
the respondent No.1 and Mr. H.S. Munshaw, learned advocate
appearing for the respondent Nos.2 and 3.
2. Rule returnable forthwith. Ms. Pooja Ashar, learned AGP
waives service of notice of rule for and on behalf of the
respondent No.1 and Mr. H.S. Munshaw, learned advocate
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appearing for the respondent Nos.2 and 3.
2.1 With the consent of learned advocates appearing for the
respective parties, the matter is taken up for final hearing as
the issue involved is brief.
3. The facts in brief are as under:
3.1 The original deceased petitioner before her death on
12.12.2024 was employed by the respondent No.3 as a daily
wage labourer since 1975. Her service was orally terminated
by the respondent No.3 on 01.04.1985. By award dated
07.08.2006, the learned Labour Court directed reinstatement
of the petitioner, however, without backwages, upon
adjudication of her reference to the learned Labour Court,
being Reference (LCS) No.43/2002.
3.2 Against the said award dated 07.08.2006, the respondent
No.3 had filed Special Civil Application No.24629 of 2006 which
came to be dismissed by judgment dated 24.01.2013, thereby
confirming the award dated 07.08.2006 passed by the learned
Labour Court. The petitioner thereafter, came to be reinstated
from 03.09.2013 and eventually superannuated on
30.09.2019.
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3.3 It is the specific case of the petitioner that the
respondent No.3 by order dated 10.08.2016 by granting the
benefits of Government Resolution dated 17.10.1988,
considering her date of reinstatement to be 09.09.2006, has
granted certain benefits which have been paid to the petitioner
by cheque on 19.05.2017. However, her past service from
1975 to 08.09.2006 had not been considered. Therefore, the
petitioner had given a notice to the respondents by RPAD on
15.11.2019 which had not been acted upon by the
respondents. Faced with the situation, the petitioner had
preferred Special Civil Application No.11390 of 2020 and this
Court by order dated 21.09.2020 directed the respondent
Nos.2 and 3 to take a decision on the grievances ventilated by
the petitioner in her notice dated 15.11.2019 "as expeditiously
as possible but not later than six weeks from the date of
receipt of the order of this Court."
3.4 The present writ petition has been filed upon the
respondents failing to adhere to this Court's order dated
21.09.2020, where, inter-alia, the following prayers have been
made:
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"(B) to quash and/or set aside Order Ann-C dt. 10-08-16 to the
extent of not granting benefit of Resolution dt.17-10-88 from 01-10-88
and to direct the Respondents to give the benefit of Resolution dt.17-
10-88, Enn-E to the Petitioner with effect from 01-10-88 notionally up
to 07-08-06 and further be pleased to direct the Respondents to give
difference of salary from 08-08-06 to 30-09-19 (with revision of pay).
(C) to direct the Respondents to grant retirement benefits like
Pension, Gratuity and Leave encashment of 300 days to the Petitioner
considering total service of 44 years continuous service with 12%
interest from 01-10-19 till its actual implementation."
4. Mr. Nilesh M. Shah, learned advocate appearing on behalf
of the petitioners has submitted that in view of the
Government Resolution dated 17.10.1988 and its
interpretation granted by the Hon'ble Supreme Court in its
judgments in the case of State of Gujarat & Others Vs. P.W.D.
Employees Union and Others reported in (2013) 12 SCC 417
and in the case of State of Gujarat Vs. PWD Employees Union
and Others reported in (2019) 3 SCC 642 as well as the
decision of this Court in Letters Patent Appeal No.174 of 2017
it is clear that once the employee is reinstated, the service has
to be considered as continuous without any break and
therefore, notionally, the pay and arrears of pay etc. have to
be calculated on such basis.
5. Mr. H.S. Munshaw, learned advocate appearing for
respondent Nos.2 and 3 specifically submitted that this Court
may not grant notional benefits from 01.10.1988 but, only
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from 07.08.2006 i.e. the date of the award for the following
reasons:
(a) The Government Resolution dated 17.10.1988 will not be
applicable to the petitioner from 01.10.1988 inasmuch as she
had filed the reference only in the year 2002.
(b) Secondly, the Government Resolution dated 17.10.1988
particularly, clause - 4 thereof specifically provides that the
petitioner must have worked 240 days in a year which, she has
not worked. Therefore, at best, the benefits of the said
Government Resolution can be given only from the date of her
reinstatement or the date of the award.
6. This Court is not in agreement with the aforesaid
submissions of Mr. H.S. Munshaw, learned advocate appearing
for the respondent Nos.2 and 3 for the following reasons:
(a) The award dated 07.08.2006 passed by the learned
Labour Court, Surendranagar, in Reference (LCS) No.43 of
2002 whereby, the learned Labour Court had granted
reinstatement in service to the petitioner without backwages,
was challenged by the respondents by filing Special Civil
Application No.24629 of 2006, which came to be dismissed on
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24.01.2013 by this Court. A perusal of the said order dated
24.01.2013 would categorically reveal that the respondent
Nos.2 and 3 had raised the exact same objections as raised in
the present petition as their main grounds of appeal.
Paragraph 3 of the said order dated 24.01.2013 of this Court is
reproduced herein below for ready reference:
"3. Learned counsel for the petitioner has contended that there is a
gross delay of about 17 years in approaching Labour Court. The
alleged reinstatement is of year 1985 and the reference was made
almost after 17 years and the documents which are produced on
record which clearly state that respondents have not worked for 240
days. In that view of the matter, he submitted that the order passed by
the Labour Court is required to be set aside."
(b) Thus, it will be seen that the very objections which are
presently being raised, formed the grounds in the dismissed
Special Civil Application No.24629 of 2006 where, this Court
had observed as under:
"6. I have heard learned counsel for the parties and
perused the record. Looking to the facts and circumstances of the
case, I am in complete agreement with the view taken by the
Labour Court vide order dated 07.08.2006. The respondent is
reinstated to original post. No backwages, no continuity nor any
benefits are granted, original status is restored. The petition being
devoid of any merits deserves to be dismissed and the same is
dismissed accordingly. Order of reinstatement will be passed within
one month. Rule discharged. No order as to costs."
7. After decision of this Court in Special Civil Application No.
24629 of 2006, which came to be decided on 24.01.2013, the
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decision of the Hon'ble Apex Court in PWD Employees Union &
others (supra) of 2013 and 2019 as well as the judgment and
order of the Division Bench of this Court in Letters Patent
Appeal No. 174 of 2017 came to be passed explaining the
Government Resolution dated 17.10.1988 to the effect that
once the employee's service is restored, then there shall be
deemed continuity of such service. Therefore, order dated
24.01.2013 particularly paragraph No.6 thereof shall now be
read as the present petitioners having been restored in
service with continuity thereof.
8. For the aforesaid reasons, the objections of Mr. H.S.
Munshaw, learned advocate appearing for the respondent
Nos.2 and 3 are devoid of merits and hence, deserve to be
rejected. It will be further seen that this Court in Special Civil
Application No.18154 of 2015 of another employee [petitioner
therein] also from the District : Surendranagar, by order dated
22.12.2016 had categorically held as under:
"14...... What the petitioner, at present, seeks is the benefit of the
Government Resolution dated 17.10.1988 providing for continuity of
service and consequential benefits. Admittedly, the petitioner has been
working since the year 1979 and the termination, which was made
vide order dated 25.08.1984, came to be set aside. Therefore, in wake
of the above discussion, the termination of the petitioner being 'illegal
termination', which came to be set aside long back, the continuity of
service shall follow, even though, it is not specifically mentioned in the
order of the Labour Court.
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15. Resultantly, the petitioner is ENTITLED to the benefits claimed
for by him, more particularly, the benefits flowing from the
Government Resolution dated 17.10.1988, treating his service to be
CONTINUOUS. He shall be given all other benefits including
consequential benefits from 01.10.1988 to 29.03.2007. DISPOSED OF,
accordingly."
9. The Letters Patent Appeal No.485 of 2017 challenging the
aforesaid order dated 22.12.2016 also came to be dismissed
by order dated 20.07.2021 in the following terms:
"6. We do not find substance in both the aforesaid submissions of
the learned counsel appearing for the appellants. So far as the aspect
of delay is concerned, a Coordinate Bench of this Court in an order
passed in a Review Application being Misc. Civil Application No.1 of
2017 in Letters Patent Appeal No.906 of 2016 decided on 01.05.2018
has observed in paragraphs 19 and 20 as under:
"19. Keeping in view the aforesaid decisions, if the facts of the
present case are examined, it transpires that the applicant
workman had worked with the respondent authorities during
the period between November, 1987 to November, 1999. On
30.11.1999, his services came to be terminated. Thereafter,
demand notice was issued by the applicant - workman on
26.02.2013. When the reply was not given, applicant filed a
complaint before the Assistant Labour Commissioner,
Bhavnagar and thereafter dispute was referred to the Labour
Court, Bhavnagar. It is not in dispute that the present
respondents did not challenge the order of making reference to
the Labour Court by filing appropriate proceedings before the
appropriate Court. It is true that there was a delay of 14 years
in raising the dispute. However, from the record, it is revealed
that dispute was existed as after terminating the services of the
applicant, his juniors were continued and even thereafter new
workers were employed by the respondents. Thus, the dispute
was alive.
20. Learned advocate Mr. Trivedi is right in submitting that if
the respondents were aggrieved by the factum of delay in
making reference, it was for them to challenge the order of
making reference by the competent authority when the same
was made to the Labour Court. Thus, when the order of making
reference was not challenged by the respondents, said aspect is
also required to be considered while deciding the issue involved
in the matter."
7. So far as the second submission as regards continuity of service
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is concerned, we referred to an order passed by a Coordinate Bench of
this Court in Letters Patent Appeal No.1527 of 2019 decided on
23.06.2021 wherein the Court has observed as under:
"5. On the other hand, Mr.Chaudhari, learned advocate for
the respondent has taken us through different orders passed by
this Court in similar facts and circumstances, and has heavily
relied upon decision of Honourable Supreme Court in the case
of Nandkishore Shravan Ahirrao v. Kosan Industries Private
Limited [2020 LLR 813]. He would submit that the Honourable
Supreme Court has held therein that once a person is
reinstated, continuity of service would follow as a matter of law
and, therefore, the learned Single Judge has committed no error
in allowing the petition. He would, therefore, submit that the
appeal be dismissed.
6. We have heard learned advocates appearing for the
parties. We have also gone through the judgment and award
dated 8.11.2016 passed by the Labour Court, Surendranagar,
whereby the workman is reinstated but continuity of service is
not granted to him and we find that it is erroneous. In case of
Gurpreet Singh (supra), which has been relied upon by learned
Single Judge, it has been specifically held by Honourable
Supreme Court that reinstatement in service would follow
continuity of service. In the case of Nandkishore Shravan
Ahirrao (Supra), it is held as under:-
"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."
7. Similar is the ratio laid down by Honourable Supreme Court in
the case of Gurpreet Singh (supra). Hence, the case is squarely
covered under the above decisions of the Apex court. Hence,
the appeal is meritless and accordingly appeal is dismissed.
Interim relief, if any, stands vacated. In view of above order,
Civil Application would not survive and the same is disposed
of."
8. In view of the aforesaid, we see no good reason to interfere with
the impugned order passed by the learned Single Judge. In the result,
this appeal fails and is hereby dismissed. Interim relief stands
vacated."
10. The Hon'ble Apex Court had dismissed the Special Leave
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Petition Nos.2116/2022 along with a bunch of similar matters
by order dated 22.01.2024 where, the order dated 20.07.2021
passed in Letters Patent Appeal No.485 of 2017 was also under
challenge. Thus, from whichever angle one looks at the issue
at hand, the same have been conclusively and repeatedly
covered in favour of the petitioner and therefore, this Court
has no hesitation in holding that the petitioner is entitled to the
benefit of Government Resolution dated 17.10.1988 as prayed
for, with effect from 01.10.1988 and the consequential
difference of salary (with revision of pay as applicable) from
08.08.2006 to 30.09.2019 i.e. the date of superannuation of
the petitioner. Needless to add that consequent retirement
benefits like pension, gratuity, leave encashment etc. which
are also founded upon the beneficial application of the
Government Resolution dated 17.10.1988 would also be
calculated by the respondents in letter and spirit of this
judgment and order and the entire package shall be disbursed
within a period of 12 weeks from the date of receipt of the
present order.
11. This Court also notes that the petitioner had approached
this Court for the second time because the respondents had
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not adhered to the order dated 21.09.2020 passed by this
Court by which, the representation of the original deceased
petitioner had to be decided and "such exercise (sic) shall be
completed as expeditiously as possible, but not later than six
weeks from the date of receipt of the order of this Court."
Consequently, the objections of Mr.H.S. Munshaw, learned
advocate appearing for the respondent Nos.2 and 3 to the
grant of interest from 01.10.2019 till the actual
implementation of the present order do not stand and are
accordingly, rejected. However, this Court in its discretion
awards the interest at the rate of 6% p.a. from 01.10.2019 i.e.
from the day after the original deceased petitioner's
superannuation till the date of actual implementation.
12. The present petition is allowed. Rule is made absolute to
the aforesaid extent.
(D.N.RAY,J)
NEHA
