Gujarat High Court
Arvindbhai Jivabhai Parmar(Sukhadia) vs State Of Gujarat on 21 January, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 305 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13136 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In
R/LETTERS PATENT APPEAL NO. 305 of 2024
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ARVINDBHAI JIVABHAI PARMAR(SUKHADIA)
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DIPAK R DAVE(1232) for the Appellant(s) No. 1
MS HETAL PATEL ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No.
1
NOTICE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 21/01/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
Heard the learned counsel for the appellant and perused the
record.
2. The instant appeal is directed against the judgment and order
dated 20.03.2018 passed by the learned Single Judge in dismissing
the writ petition seeking prayer for issuance of direction to the
respondent for regularization of his services, in the light of the
Government Resolution dated 17.10.1988. The further challenge is to
the order dated 23.01.2024 passed by the learned Single Judge
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whereby while dismissing the review application, the Court has
imposed a cost of Rs.10,000/- for preferring the review application
on the premise that with the review application, an attempt has been
made by the applicant to seek benefit of the Government Resolution
dated 17.10.1988, which is not only ill-motivated and unjustified, but
is a clear abuse of the process of law.
3. Challenging the order of dismissal of the writ petition passed
by the learned Single Judge, it was vehemently argued by the learned
counsel for the petitioner that while in service, the petitioner was
terminated sometime in the year 1990, when he raised an industrial
dispute on the allegation that he was illegally terminated from
service. The Reference (LCR) No. 1389 of 1990 was made to the
Labour Court, Ahmedabad on 25.06.1990, which was adjudicated
vide award dated 31.12.2005 wherein while allowing the Reference,
with a direction to the employer to reinstate the petitioner on his
original post, consequential benefits such as continuity of service and
back wages to the extent of 30% were awarded.
3.1. The said award was challenged by the employer by filing
Special Civil Application No. 25327 of 2006 which was admitted on
06.12.2006. By an interim order dated 07.02.2007, this Court had
stayed the implementation and operation of the award dated
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31.12.2005.
4. A Civil Application No. 6249 of 2007 was filed by the petitioner
claiming payment of last drawn wages in accordance with Section
17B of the Industrial Disputes Act, 1947 (for short the "I.D. Act,"),
wherein the order dated 07.02.2007 was passed. The said application
was allowed on 10.05.2007 issuing directions to the respondent
employer to pay regularly last drawn monthly wages as required
under Section 17B of the I.D. Act till the matter is decided finally by
the writ Court.
4.1. It is the case of the learned counsel for the petitioner that the
benefit of the interim order dated 10.05.2007 was granted to the
petitioner and wages as per Section 17B of the I.D. Act was paid to
the petitioner up till the date of the final disposal of the writ petition
vide judgment and order dated 10.12.2012.
5. However, pertinent is to note that while upholding the award
of reinstatement passed by the Labour Court, the part of the award
whereby continuity of service and back wages was awarded by the
Labour Court, has been modified by the High Court in the judgment
and order dated 10.12.2012. Thus, the only benefit to which the
petitioner was held entitled to, was reinstatement in service, which
could not be granted uptill April, 2015, inasmuch as, the employer
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preferred Special Leave Petition (SLP) No. 21102 of 2013 before the
Hon'ble Apex Court which came to be dismissed on 13.12.2013.
6. Taking note of the said facts, the learned Single Judge
categorically records that once the order passed by the Labour Court
has been modified with the judgment and order dated 10.12.2012,
with the denial of continuity of service, there was a hiatus and break-
in-service of the petitioner from the year 1990 to April, 2015. As
continuity in service was denied, the petitioner cannot claim
regularization by asking for counting of the period of break as
period in service from the year 1990 to April, 2015. No permanency
can be granted to the petitioner on the premise that he was initially
engaged in January, 1985 and with the grant of reinstatement by the
Labour Court affirmed by this Court, the break-in-service from the
year 1990 to April, 2015 was liable to be ignored.
7. Challenging this observation made in the order of the learned
Single Judge, it was vehemently argued by the learned counsel for
the appellant/original petitioner that with the confirmation of the
award of reinstatement by the High Court by the judgment and order
dated 10.12.2012, the period of stay of the implementation and
operation of the award from 07.02.2007 till the date of dismissal of
the writ petition on 10.12.2012 is liable to be ignored. It is to be held
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by the Court that the reinstatement awarded to the petitioner by the
labour Court would relate back to the date of the award dated
31.12.2005 and the petitioner is liable to be treated in service
thereafter. The period from 31.12.2005, when reinstatement was
awarded to the petitioner with the continuity in service till the
disposal of the writ petition vide judgment and order dated
10.12.2012, wherein award of reinstatement was upheld, cannot be
said to be break-in-service. The submission is that with the final
disposal of the writ petition vide judgment and award dated
10.12.2012, the interim order granted on 07.02.2007 would stand
merged in the final order. The result is that the petitioner is entitled
to all benefits of the award dated 31.12.2005 and the period during
which the petitioner was entitled for reinstatement, as upheld by the
High Court vide judgment and order dated 10.12.2012, cannot be
treated as discontinuance in service.
8. Reliance is placed on the decisions of the Hon'ble Apex Court
in the case of D.N. Krishnappa v. Deputy General Manager
reported in AIR 2023 SC (Civil) 494 and Salim Ali Centre for
Ornithology and Natural History, Coimbatore & Anr., v. Dr.
Mathew K. Sebastian reported in 2022 LawSuit (SC) 561 =
[2022 (6) Scale 265] to substantiate the above submissions.
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9. Taking note of the above submissions made by the learned
counsel for the appellant/original petitioner, pertinent is to note that
the present is not a case where award passed by the Labour Court
has been completely upheld, rather the original award dated
31.12.2005 whereby reinstatement with continuity of service and
30% back wages was granted, stood modified with the judgment and
order dated 10.12.2012 of the High Court. The result is that the
petitioner was held entitled to only relief of reinstatement and not
continuity of service and back wages were completely denied. The
judgment and order dated 10.12.2012 categorically records that the
award of the Labour Court stands modified to the extent that there
would be continuity of service and 30% back wages, as awarded by
the Labour Court. In the result, the award dated 31.12.2005 to the
extent of grant of continuity of service and 30% back wages has been
quashed by the High Court.
10. There is no dispute about the fact that the judgment and order
dated 10.12.2012 has attained finality, inasmuch as, there is no
challenge by the petitioner to the said decision. The only challenge
made by the employer about the relief of grant of reinstatement by
the High Court while modifying the award dated 31.12.2005, has
been upturned with the decision of the Hon'ble Apex Court, with the
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dismissal of the Special Leave Petition vide judgment dated
13.12.2013 summarily.
11. The result is that with the quashing of the award dated
31.12.2005 by the judgment and order dated 10.12.2012, the
benefits which were originally granted by the Labour Court, cannot
now be granted by this Court. With the denial of continuity of service
and back wages, when the award for grant of continuity of service
and 30% back wages has been quashed, the only relief to which the
petitioner was entitled to after 10.12.2012 was of reinstatement
which could be granted in April, 2015. No dispute, however, has
been raised by the petitioner about the delay in the grant of
reinstatement at the relevant point of time and the relief prayed
before the learned Single Judge was to grant back wages for the
period of delay in making reinstatement, which has also been denied
by the learned Single Judge, inasmuch as the relief of reinstatement
is not accompanied with any other benefit such as continuity of
service and back wages.
12. Insofar as the plea of regularization is concerned, we are only
concerned with the aspect of "continuity in service". A person who is
not in continuous service or employment cannot seek regularization
which is the basic concept of regularization. Once it is clear that the
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petitioner is not entitled for continuity of service, the period when
the petitioner remained out of employment from the year 1990 till
April, 2015 when he was reinstated, cannot be counted as period in
service to grant continuity in view of the judgment and order dated
10.12.2012 wherein the award of "continuity of service" had been
quashed. As there is no continuity in service and the award dated
31.12.2005 has been quashed for the relief continuity in service and
back wages, the contention of the learned counsel for the petitioner
that the period during which the petitioner remained out of
employment after making of the award, at least from 31.12.2005 till
he was reinstated in April, 2015 is to be counted as period in service,
is found wholly misconceived. With the finality attached to the
judgment and order dated 10.12.2012 passed by the Writ Court in
Special Civil Application No. 25327 of 2006 whereby the award of
reinstatement though was upheld, but the award of continuity in
service and 30% back wages had been quashed, the benefit of
continuance in service for the period after the award when there was
no reinstatement, cannot be granted to the petitioner as the award
dated 31.12.2005 does not remain in existence so far as "continuity
in service" is concerned.
13. The contention of the learned counsel for the petitioner that
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the award of reinstatement would relate back to the date of the
passing of the award or the date of termination from service, i.e. the
year 1990 would have to be rejected as misconceived, inasmuch as,
the reinstatement would come into effect only from the date when
the petitioner had actually joined in service. Accepting the contention
of the learned counsel for the petitioner that the award of
reinstatement would relate back to the date of award itself i.e.
31.12.2005, we provide that as continuity in service has been denied
and no back wages are to be paid to the petitioner under the
judgment and order dated 10.12.2012 which has attained finality, no
further benefits can be granted to the petitioner except
reinstatement in service which has been duly granted in the month of
April, 2015.
14. With the above, we find that both the decisions in the case of
D.N. Krishnappa (supra) and Salim Ali Centre for Ornithology and
Natural History, Coimabtore (supra) relied by the original petitioner
would not be of any help, inasmuch as, the issue raised in the said
decisions was about grant of benefit of back wages for the period of
the stay order passed by the High Court, wherein the back wages
awarded by the Labour Court has been ultimately upheld to a certain
extent.
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15. In the facts and circumstances of the present case,
considering the nature of the judgment and order dated 10.12.2012,
no benefit can be granted to the petitioner by application of the
statement of law in the aforesaid decisions.
16. With the above, no infirmity is found in the judgment and order
passed by the learned Single Judge.
16.1. Insofar as the judgment and order dated 23.01.2024 passed by
the learned Single Judge on the Review Application, we may note
that there is no observation in the original order of the grant of any
benefit of the Government Resolution dated 17.10.1988. The learned
Single Judge has rejected the relief prayed in paragraph 7(A) of the
writ petition, noticing that no other prayer made in the writ petition
originally was pressed by the petitioner at the time of final disposal
of the writ petition. The prayer made in the Review Application,
therefore, has rightly been rejected by the learned Single Judge. We
do not find any infirmity in the judgment and order dated 23.01.2024
for rejection of the review application.
17. Before parting with this order, we may clarify that we have
adjudicated the claim of the petitioner for grant of regularization till
the date of reinstatement and denied the relief of continuity of
service till the date of reinstatement, i.e. April, 2015. However, the
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period of service rendered by the petitioner thereafter i.e. after
reinstatement is not subject matter of consideration in the present
proceedings. No opinion has, thus, been drawn on the said aspect.
18.1. For the prayer made by the learned counsel for the
appellant/original petitioner for grant of benefits between 10.12.2012
till April, 2015, that is the order passed by the High Court upholding
the award of reinstatement and till the date of actual reinstatement,
we may clarify that no further benefit can be provided as it is not
possible for us to put the clock back, when there is no challenge to
the delay in making reinstatement. The original writ petition was
filed in August, 2016 seeking for regularization in service much after
reinstatement.
19. The present appeal is, therefore, dismissed. However, the cost
awarded by the learned Single Judge in the judgment and order
dated 23.01.2024 while rejecting the review application, is made
easy.
Consequently, the connected Civil Application for stay also
stands disposed of. Rule is discharged.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
phalguni
