Gujarat High Court

Amrutben Govindbhai Parmar vs State Of Gujarat on 20 January, 2025

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

                                                                                                                    NEUTRAL CITATION




                          C/SCA/18006/2023                                          JUDGMENT DATED: 20/01/2025

                                                                                                                     undefined




                                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/SPECIAL CIVIL APPLICATION NO.                          18006 of 2023


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                      =====================================================

                              Approved for Reporting     Yes      No
                                                         Yes
                      =====================================================
                                    AMRUTBEN GOVINDBHAI PARMAR
                                               Versus
                                      STATE OF GUJARAT & ORS.
                      =====================================================
                      Appearance:
                      MR NILESH M SHAH(780) for the Petitioner(s) No. 1
                      MR SANJAY UDHWANI ASSISTANT GOVERNMENT PLEADER for
                      the Respondent(s) No. 1
                      NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
                      SERVED BY RPAD    (N) for the Respondent(s) No. 5
                      =====================================================

                         CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                                      Date : 20/01/2025

                                                         ORAL JUDGMENT

1. Heard learned advocate Mr. Nilesh M. Shah

appearing for the petitioner and learned

Assistant Government Pleader Mr. Sanjay Udhwani

appearing for the respondent - State.

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

2. With the consent of learned advocates appearing

for the respective parties, the matter was taken

up for final hearing. Hence, RULE. Learned

Assistant Government Pleader Mr. Sanjay Udhwani

waives the service of rule on behalf of the

respondent - State.

3. By way of this petition, the petitioner has

prayed for quashing and setting aside the

impugned order dated 2.5.2012 passed by the

respondent No.2 to the extent of not granting

benefits of G.R. dated 17.10.1988 with effect

from 1.10.1988 notionally with revised pay scale

up to 8.1.2007 and has further prayed for a

direction to the respondents to give difference

of salary with revised pay scale from 9.1.2007

to 28.2.2022.

4. The petitioner has further prayed for quashing

and setting aside the order dated 9.10.2023

passed by Executive Engineer, Road and Building

Department, Surendranagar whereby the

petitioners written representation was rejected.

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

5. Brief facts of the petition as stated by learned

advocate Mr. Shah can be summarized as under :-

5.1 The petitioner was employed by

respondent No.3 as a daily wager labourer since

1979 and according to the petitioner, since

then, she was working continuously. The service

of the petitioner along with a co-employee was

orally terminated by the respondent No.3 from

1.1.1991 which was subject matter of challenge

by way of Reference (LCS) No. 82 of 2001 whereby

the Labour Court, Surendranagar vide award dated

8.1.2007 partly allowed the reference and

directed respondents No.2 and 3 to reinstate the

petitioner and co-employee to the original post

without back wages. Against the aforesaid award

dated 8.1.2007, the respondents No.2 and 3 filed

Special Civil Application No.15685 of 2007 which

was dismissed by this Court vide order dated

3.8.2007. Pursuant thereto ultimately the

petitioner was reinstated on 5.1.2009 vide order

dated 31.12.2008. Thereafter, the petitioner

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

remained in service and ultimately, retired on

28.2.2022 on account of superannuation. However,

the petitioner was though granted the benefits

of Government Resolution dated 17.10.1988, the

same was granted only with effect from

17.1.2012, considering the petitioner's date of

appointment as 18.1.2007 and the past services

of the petitioner was not considered by the

respondents for granting him benefits of

Government Resolution dated 17.10.1988 and now,

upon superannuation, for computing retiral

benefits and that is how the petition is

preferred.

6. Upon retirement, the petitioner was handed over

a cheque of Rs.1,90,523/- only, towards gratuity

for 15 years and despite the petitioner's

correspondence with the respondents except for

an amount of Rs.2,30,480/- paid by the

respondents towards leave encasement, no other

amounts were paid to the petitioner despite the

petitioner's claiming her entitlement over the

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

same by counting her service from 1.10.1988 and

as the same was not considered and the same

would wipe out the petitioner's past service

prior to her reinstatement, the present petition

is preferred.

7. Learned advocate Mr. Nilesh M. Shah appearing

for the petitioner submitted that the

identically situated co-employee viz. Champaben

Ukabhai Parmar preferred a petition being

Special Civil Application No. 10343 of 2020

before this Court claiming similar benefits and

the said petition was allowed by the Co-ordinate

Bench vide order dated 15.9.2022 and therefore,

as the aforesaid order dated 15.9.2022 has

become final in respect of co-employee and the

same has been complied with in respect of co-

employee, the petitioner is also required to be

granted similar benefits.

8. Learned Assistant Government Pleader Mr. Sanjay

Udhwani appearing for the respondent - State

though vehemently opposed the petition could not

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

point out from the record that the order dated

15.9.2022 has not become final which is passed

in respect of co-employee viz. Champaben Ukabhai

Parmar in Special Civil Application No. 10343 of

2020 or that there is any decision by this Court

or the Hon'ble Apex Court which would support

the case of the respondents that the respondents

action of wiping out petitioner's past service

before reinstatement has rightly not been taken

into consideration while computing petitioners

retiral benefits.

9. From the record, learned Assistant Government

Pleader Mr. Sanjay Udhwani also could not

dispute the fact that the petitioner's claim

about pensionery benefits and recognition of

past service is not covered by the decision of

Champaben Upabhai Parmar (Supra) who happens to

be the co-employee of the petitioner. Though

learned Assistant Government Pleader Mr. Sanjay

Udhwani heavily relied on the affidavit-in-reply

filed by the respondents, the same could not

point out anything contrary, which may compel

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

the Court to take a different view.

10. In the above background I have considered

the submissions made by learned advocates

appearing for the respective parties. On perusal

of decision of co-employee viz. Champaben

Ukabhai Parmar (Supra) dated 15.9.2022, I have

found that in case of co-employee Champaben

Ukabhai Parmar, even a contention of delay also

was raised. However, the Co-ordinate Bench of

this Court by relying upon the decision of this

Court in Special Civil Application No. 389 of

2020 dated 14.2.2022 allowed the petition. In

the above decision, the Co-ordinate Bench of

this Court observed as under from paragraph Nos.

6 and 7 as under :-

"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

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

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:

"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

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

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 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

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

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 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

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

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 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

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

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"

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

11. In view of the fact that it could not be

pointed out from the record that the case of the

petitioner is not identical to that of Champaben

Ukabhai Parmar (Supra) or that the aforesaid

decision in case of Champaben Ukabhai Parmar

(Supra) does not cover the issue which the

petitioner has agitated before this Court, I

have no option but to follow the decision in

case of Champaben Ukabhai Parmar (Supra) whereby

in similar facts of the case, the Co-ordinate

Bench of this Court had directed the respondents

to recognize the services of the petitioner from

her initial date of joining and upon completion

of requisite number of years to confer the

corresponding benefits of Government Resolution

dated 17.10.1988. Accordingly, present petition

is allowed. Respondents are directed consider

the petitioners initial date of joining with

effect from 1.10.1988, to confer the benefits to

the petitioner with effect from 1.10.1988 and to

recalculate the petitioner's entitlement of

salary and accordingly, refix the salary and pay

NEUTRAL CITATION

C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025

undefined

the retiral benefits to the petitioner and to

revive the consequential benefits as per the

entitlement of the petitioner as early as

possible but in any case not later than twelve

weeks from the date of receipt of the order.