Gujarat High Court
Jesingbhai Talshibhai Makwana vs State Of Gujarat on 8 July, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/9396/2024 ORDER DATED: 08/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9396 of 2024
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JESINGBHAI TALSHIBHAI MAKWANA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR NILESH M SHAH(780) for the Petitioner(s) No. 1
MS NIRALI SARDA ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 08/07/2025
ORAL ORDER
1. Heard learned Advocate Mr. Nilesh M. Shah for the petitioner and
learned AGP Ms. Nirali Sarda for the respondent-State.
2. By way of this petition, the petitioner has sought for the following
prayers :
"(20) The Petitioner therefore prays that this Hon'ble Court may be pleased:-
(A) to issue writ of certiorari and/or any other writ or writs or orders or
directions.
(B) to quash and/or set aside Common Order dt. 06-11-16 Ann-B passed
by the Respondent No.4 to the extent of not granting benefit of G.R. dt. 17-10-
88 Ann-C with effect from 01-01-89 and to direct the Respondents to give the
benefit of pay scale (including revised pay scale) from 01-01-89 and all retirement
benefits including Pension, Gratuity and Leave Encashment as per Resolution dt.
17-10-88, Ann-C.
(C) to quash and/or set aside Reply dt. 06-04-5024, Ann-G given by the
Respondent No.4.
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(D) to direct the Respondents to give the notional benefit of Resolution dt. 17-
10-88, Ann-C (notional fixation including revised pay scale from time to time) to
the Petitioner with effect from 01-01-89 to 28-10-10 and further be pleased to
direct the Respondents to give difference of salary (including fixation of revised pay
scale from time to time) from 29-10-10 to 16-09-2014 and pay slip for the said
period from 06-05-13 to 16-09-14.
(E) to direct the Respondents to grant retirement benefits like Pension of 31
years service from 17-09-14 till its implementation, Gratuity of 31 years and
Leave encashment of 300 days to the Petitioner with 9% interest from the date of
filing of this petition till its actual implementation.
(E) to grant any other relief as this Hon'ble Court may deems fit in the
interest of justice.
(F) to allow this petition with costs."
3. It is the case of the petitioner that the petitioner had been engaged as
daily wage labourers by the respondent No. 4 with effect from 01.01.1984
and whereas services of the petitioner and other similarly situated co-
employees were terminated on 08.03.1992, which had resulted in the said
employees approaching the learned Labour Court by raising dispute vide
Reference (LCS) No. 159 of 1992 and whereas the learned Labour Court,
Surendranagar, had partly allowed the said reference vide an award dated
17.05.2000, directing the respondent No.4 to reinstate the petitioner and the
other similarly situated employees without any backwages. The respondents
had challenged the said decision before this Court by preferred Special Civil
Application Nos. 12148 of 2000 to 12165/2000 and whereas a learned Co-
ordinate Bench of this Court had interfered with the award passed by the
learned Labour Court and vide judgment dated 04.07.2005, the matter had
been remanded back to the learned Labour Court. It appears that the
learned Labour Court had again passed a fresh order dated 29.06.2006,
whereby the employees were directed to be reinstated with backwages as per
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the last drawn salary, till reinstatement. The said award having been
challenged before this Court, had not been interfered with. It appears that
the petitioner had thereafter been reinstated on 03.07.2006 on piece rate
basis and whereas since their application to the Assistant Labour
Commissioner, Surendranagar as regards the non-compliance of the order
of the learned Labour Court did not result in any fruitful action, the
petitioner and co-employees had approached this Court by preferring
Special Civil Application No. 17573/2000 and whereas the learned Co-
ordinate Bench of this Court, had issued certain directions which had
resulted in the petitioner and other co-employees being reinstated on
06.05.2013. The petitioner had thereafter retired from service on 16.09.2014.
4. It appears that the petitioner and other co-employees had requested
the respondents to grant benefits of Government Resolution dated
17.10.1988 and later Government Resolutions, upon completion of 20 years
of service and whereas vide common order dated 06.11.2016, the
respondents had denied such benefits. It would appear at this stage that the
co-employees i.e 14 co-employees, had questioned the said communication
dated 06.11.2016 before this Court by preferring writ petition being Special
Civil Application No. 1759 of 2016 and whereas a learned Co-ordinate
Bench of this Court vide decision dated 04.12.2023 had allowed the writ
petition.
5. It would appear to this Court that since the facts and the law
applicable insofar as the present petitioner are concerned, are identical to
the petitioner who had approached this Court vide Special Civil Application
No. 1759 of 2016, therefore, the said decision, has to be followed by this
Court completely.
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6. Learned AGP Ms. Nirali Sarda for the respondent-State could not
point out any difference between the petitioner before this in Special Civil
Application No. 1759 of 2016 and the present petitioner.
7. Considering such a position, observations of the learned Co-ordinate
Bench of this Court in order dated 04.12.2023, more particularly paragraphs
No. 3, 3.1, 3.2, 4, 5, 5.1, 5.2, 5.3, 5.4 and 6 being relevant for the present
purpose are reproduced hereinbelow for benefit.
"3. The facts inter alia are that all the petitioners were engaged as
labourers in the office of the respondent Forest Department. They were
assigned the work of digging pits, raising samplings, preparing hedge etc. in
the nursery. The petitioners were appointed since 1982 to 1989 for such
work. As their services were terminated, they had an occasion to invoke
the jurisdiction of the labour court by filing Reference (LCS) No.195 of
1992 which was renumbered as No.160 of 2005. The labour court,
Surendranagar passed judgment and award dated 29.6.2006 directing the
employer to reinstate the workmen on their original post and to pay to
them the last drawn salary till the date of reinstatement.
3.1 It is the case of the petitioners that despite judgment and award of the
labour court, the respondent authorities were disinclined to reinstate the
workmen and implement the award which led them to file another petition
for compliance. In the meantime, the State Government also filed Special
Civil Application No.30545 of 2007 challenging the order of the labour
court. The said petition was dismissed by order dated 17.3.2016 and the
judgment and award of the labour court was not interfered with.
3.2 As regards the claim of the petitioner for grant of benefits under
Resolution dated 17.10.1988, by filing affidavit-in-reply, it was contended
inter alia that unless the workman was found to have completed 240 days
in a calendar year, he could not be given the benefit. It was stated that the
petitioners would not be entitled to the benefits of Resolution dated
17.10.1988 because of the said reason. It was contended that the other
workmen named by the petitioner who were reinstated because of the
judgment and order of the labour court, whereas the present petitioners are
not extended the same relief as they could not be said to have completed
continuous service, therefore benefits of Resolution dated 17.10.1988 and
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Resolution dated 15.9.2014 could not be given.
4. In other words, the main contention of the respondents to deny the
benefits of the Resolution is that the petitioners had not rendered
continuous service within the meaning of Section 25B of the Industrial
Disputes Act.
5. Examining the aforesaid stand of the respondents in light of the facts
and in particular judgment and award of the labour court dated
29.6.2006, it is to be noticed that the workmen were directed to be
reinstated on the original post and the first party employer was required to
pay salary to them till the date of reinstatement. It may be true that
nothing was expressly stated about the benefit of continuity. However, it is
trite principle that when the award of reinstatement is passed and the
continuity of service is not expressly denied by the labour court or the
Industrial Tribunal, as the case may be, the benefit of continuity shall be
deemed to have been granted and that such benefit would be read into the
award, provided that the continuity is not expressly denied.
5.1 The decisions of this court in Kasambhai M. Ajmeri Vs.
District Development Officer & Ors. being Special Civil
Application No. 7588 of 2004 decided on 12.11.2014 as also in
Paresh Chelshankar Vyas vs. State of Gujarat and Ors.
being Special Civil Application No. 7529 of 2018 decided as per
judgment and order dated 12.7.2019 and other decisions are on the same
lines based on similar set of facts.
5.2 When the impugned decision passed by the Range Forest Officer is
seen, what is stated to deny the benefits of Resolution is that the benefits of
Resolution could be extended to those employees who had rendered
continuous services, however, the petitioners could not be said to have
rendered the services continuously, they are not entitled to the benefits. The
aforesaid stand cannot be sustained in eye of law. As per the judgment
and award of the labour court granting reinstatement, continuity benefit is
to be deemed for the petitioners. The said judgment and award stands
confirmed as the challenge thereto by the State authorities failed when the
Special Civil Application No.30545 of 2007 was dismissed.
5.3 Once the continuity benefit is available to the petitioners under the
judgment and award of the labour court, confirmed by this court, the
benefits can be said to have been crystallized finally. It is not open to the
respondent authorities to question the same on the spacious ground that
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there was requirement to examine whether the petitioners concerned had
completed 240 days in the year, when the continuity benefit has accrued for
the petitioners. By taking such stance, the authorities cannot indirectly call
in question or reopen the judgment and award. The judgment and award
of the labour court wherefrom the benefit of continuity of service has flown
has to be taken to its logical end.
5.4 The services of the petitioners have to be viewed and taken to be
continuous within the meaning of law. As a necessary sequetor, all the
benefits available to the petitioners on the basis of continuous service and
such length of service under Resolution dated 17.10.1988 and Resolution
dated 15.9.2014, the petitioners could be said to have been fulfilling the
criteria prescribed in the said Resolution to get the benefits thereunder.
6. In view of the forgoing reasons and discussion, the petitioners are
entitled to succeed. The decision reflected in communication dated
16.11.2016 as well as the communication itself which denies the benefit of
Resolution dated 17.10.1988 and Resolution dated 15.9.2014 to the
petitioners on the ground that the benefits were not available as the
continuous services was not rendered, is hereby set aside. The petitioners
have to be held earned the benefit of continuity. They are entitled to the
benefits of Resolution dated 17.10.1988 and Resolution dated
15.9.2014. Such benefits shall be paid to the petitioners within a period
of eight weeks from the date of receipt of this order."
8. Having regard to the fact that the petitioner is identically situated to
the petitioners of the above writ petition, the benefits as had been granted in
case of the co-employees, should also be made available to the petitioner.
Hence, the following directions.
(i) The Communication dated 16.11.2016 is hereby quashed and
set aside.
(ii) The respondents are directed to reconsider the case of the
petitioner, while calculating the services of the petitioner as
continuous from the date of entry in service.
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(iii) All benefits as it may available to the petitioner under
Government Resolution dated 17.10.1988 read with
Government Resolution dated 15.09.2014 shall be made
available to the petitioner, within a period of 12 weeks from
the date of receipt of this order.
(iv) Liberty is reserved in favour of the petitioner to approach this
Court by filing a fresh application in case of difficulty.
9. With the above observations and directions, the present petition
stands disposed of as allowed.
(NIKHIL S. KARIEL,J)
Y.N. VYAS
