[Cites 3, Cited by 0]
Gujarat High Court
Prabhatsinh Mathurbhai Baria vs State Of Gujarat on 24 March, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 629 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
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PRABHATSINH MATHURBHAI BARIA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MS FORUM BIMAL SUKHADWALA, ASSISTANT GOVERNMENT PLEADER
for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J. SHELAT
Date : 24/03/2026
JUDGMENT
1. RULE returnable forthwith. Ms. Forum Bimal Sukhadwala,
learned Assistant Government Pleader, waives service of notice
of Rule on behalf of respondent-State.
2. At the outset, Ms. Forum Sukhadwala, learned AGP for the
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respondent-State places on record Office Order No. 04 of 2026
dated 07.02.2026 by virtue of which the petitioner is granted
the benefit of the Government Resolution dated 17.10.1988
w.e.f. 01.04.2008. Therefore, the narrow scope of this petition
would remain as to from which date the petitioner would be
entitled for grant of benefit under the Government Resolution
dated 17.10.1988.
3. Heard Mr. Dipak R. Dave, learned Advocate for the petitioner
and Ms. Forum Sukhadwala, learned AGP for the respondent-
State.
4. The present writ petition is filed under Article 226 of the
Constitution of India, seeking the following reliefs:
"(A) This Hon'ble Court may be pleased to issue a writ of
mandamus and/or a writ in the nature of mandamus and/or any
other appropriate writ, order or direction to
(i) To quash and set aside impugned order at Annexure-C
to the petition passed by respondents:
(ii) direct the respondents to confer benefits of Government
Resolution dated 17.10.1988 to the petitioner and he be
treated as permanent employees after completion of 10
years of service i.e. from 1997 and accordingly he may be
held entitled to have all the benefits of permanent
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employees including regular pay-scale from 1997;
(iii) to direct the respondents to pay the difference of salary
at the rate of 10% as per the award and thereafter regular
salary to the petitioner from the date of award i.e.
16.02.2018 till date;
(B) Pending the admission, hearing and final disposal of the
present petition, this Hon'ble Court may be pleased to direct the of
respondents to immediately fix pay the petitioner in pay-scale
applicable to the permanent employees taking into consideration
the length of service of the petitioner right from 1987;
(C) Any other and further relief or reliefs to which this Hon'ble
Court deemed fit, in the interest of justice; may kindly be granted."
5. SUBMISSIONS OF THE PETITIONER:
5.1. Mr. Dave, learned Advocate appearing for the petitioner
would submit that though the petitioner is entitled to receive
the benefit of Government Resolution dated 17th October
1988, the same was wrongly denied by the respondent-State
only on the ground that he had not completed 240 days of
service when terminated. It is respectfully submitted that on
getting termination of service of the petitioner, he approached
the Labour Court by way of reference no. (T) 145 of 1998, who
allowed his reference whereby he was reinstated in service with
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continuity, thereby, as per provisions of Section-25(B) of the
Industrial Disputes Act, 1947 (hereinafter referred to as "I.D.
Act"), he is required to be continued in service and entitled to
receive the benefit of Government Resolution dated 17th
October 1988. It is further submitted that the aforesaid award
dated 16th February 2018 passed by the Labour Court is also
confirmed by this Court while dismissing the writ petition vide
order dated 20.01.2020 passed in Special Civil Application
No.14528 of 2018. Learned Advocate would submit that while
examining case of the petitioner with regard to the illegal
termination, the Labour Court categorically held that the
petitioner has served with the respondents continuously as
provided under Section 25(B) of the I.D Act. Learned
Advocate therefore submitted that the office order no. 04 of
2026 granting benefit of government resolution dated
17.10.1988 is therefore required to be modified to the extent
that the petitioner is entitled to the benefit of government
resolution dated 17.10.1988 w.e.f. October, 1997 i.e the date on
which the petitioner would complete 10 years of service.
5.2. Mr. Dave, learned Advocate, would further respectfully
submit that the issue germane in the matter is no longer res
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integra, having already been decided by two judgments of the
Division Bench of this Court, in following cases:
(i) State of Gujarat V/s. Ashok Laxmanbhai Parmar in Letters
Patent Appeal No.1268 of 2017 dated 18/06/2018, reported
in 2018 SCC OnLine Guj 2344;
(ii) Jamnagar District Panchayat & Anr. V/s. Girdharbhai
Muljibhai Eradiya & Anr. in Letters Patent Appeal No.1205
of 2025 dated 10/11/2025.
5.3. Making the above submissions, Mr. Dave, learned Advocate,
would request this Court to allow the present writ petition.
6. SUBMISSIONS OF THE RESPONDENTS:
6.1. Per contra, Ms. Sukhadwala, learned AGP, would respectfully
submit that as stated in the order dated 07.02.2026, it remained
undisputed fact on record that the petitioner has not
completed 240 days of service prior to his termination i.e. 20 th
March 1997 and merely because of the order of reinstatement
with continuity of service passed by the Labour Court, it
would not entitle the petitioner to claim any benefit flowing
from Government Resolution dated 17th October 1988.
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6.2. According to Ms. Sukhadwala, learned AGP, the petitioner's
service has been rightly considered from 1998 and accordingly
he has been granted benefits from 01.04.2008.
7. No other and further submissions are made.
8. Having heard learned Advocates appearing for the respective
parties and after considering the facts of the present case, the
issue germane in this matter would stand covered by the
aforesaid cited two judgments of the Division Bench binding to
this Court, wherein, the following proposition of law laid
down:
8.1. In the case of Ashok Laxmanbhai Parmar (supra), it has been
observed and held thus:
"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
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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."
(emphasis supplied)
8.2. In the case of Girdharbhai Muljibhai Eradiya (supra), wherein,
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after referring the aforesaid judgment of the Division Bench of
this Court, it has been observed and held thus:
"4.4 The contention of the petitioners was that when the
judgment and award of Labour Court granted them
continuity of service and same was confirmed by the higher
courts, the benefits arising from Resolution dated
17.10.1988 would be available to them as necessary
corollary. The following observations of the Court in
Prabhatbhai Mudhwa (supra) in paragraph 5 may be
noticed with relevance,
"It is an admitted fact fact that the petitioners have
served since 1988 upto 31.3.1998; their services
came to be terminated and they were reinstated on
13.5.2019 after the judgment and award of
labour court, which granted them continuity of
service. Therefore, it would necessarily follow that
entire period of service of the petitioners from the
respective date in the year 1988 till reinstatement
or retirement, as the case may be, would have to
be counted as continuous either based on actual
service rendered or notionally in view of the
continuity benefit conferred by the labour court."
4.5 The Court further observed after noticing that the
judgment and award of the Labour Court was confirmed by
this Court in Special Civil Applications, which were
dismissed,
"...in para-5 of the impugned communication, the
petitioners were specifically denied the benefits of
Resolution dated 17.10.1988. It was stated that
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the petitioners would be entitled to minimum
wages only. In the same way, those petitioners who
have retired w.e.f. 31.7.2017 have also been
denied the benefits of Resolution dated
17.10.1988, which otherwise would have to be
granted to them in the facts of the case.
Respondent No.2 authority has evidently ignored
and disregarded the effect in law required to be
given to the judgment and award of the labour
court confirmed by this court as above in denying
the benefits of Resolution dated 17.10.1988. The
benefits flowing therefrom have to be accorded
their to into account the petitioners taking
respective factual matrix of services."
"5. The Division Bench in Ashok Laxmanbhai Parmar
(supra), dealt with similar set of facts and the grievance to
observe thus, extracting from paragraph 5,
"...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."
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5.1 It was further observed that when the workman was
forced to leave duties on account of unlawful termination
by the employer, the employer cannot take benefit of its own
illegal action to deny continuity of service, which was
otherwise granted by the lower court."
(emphasis supplied)
9. Even in the aforesaid last decision of the Division Bench of this
Court, while rejecting the arguments of the respondent-State,
also referred to recent past judgments of the Hon'ble Supreme
Court in the cases of Vinod Kumar & Ors. V/s. Union of India
reported in (2024) 9 SCC 327 and Jaggo V/s. Union of India
reported in 2024 SCC OnLine SC 3826.
10. Thus, in view of the aforesaid peculiar facts and circumstances
of the case and when the stand taken by the respondent-State
in the present case is already turned down by the aforesaid two
judgments passed by the Division Bench of this Court, there is
no reason to deviate from such view, which is otherwise
binding to this Court.
11. In the present case it is undisputed that the Labour Court has
found that the petitioner has rendered continuous services as
per Section 25(B) of the I.D Act and therefore the benefits of
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Government Resolution dated 17.10.1988 would flow from the
date of initial appointment, i.e, October 1987.
CONCLUSION:
12. In view of the foregoing reasons, I pass the following order:
(i). The respondents are directed to give all consequential
benefits of Government Resolution dated 17th October
1988 to the petitioner w.e.f. October 1987 notionally up
to 20.03.1997. The petitioner is entitled to be placed in
the pay scale w.e.f October, 1997 and his 10% wages as
per the direction of the Labour Court in Reference (T)
no. 145 of 1998 shall be payable from the date of
termination till 16.02.2018. The petitioner shall be
entitled to actual difference in wages from 16.02.2018 as
per the Government Resolution dated 17.10.1988.
(ii). Once, the aforesaid benefits will be paid by the
respondents to the petitioner, as the petitioner is still in
service, the respondents are directed to pay him regular
salary with all service benefits.
(iii). All the arrears shall be paid to the petitioner on or before
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30.04.2026, failing which the petitioner shall be entitled
to receive any such arrears amount with 6% interest
from 01.05.2026 till its realisation.
13. Accordingly, in view of the foregoing conclusion, the present
writ petition is hereby partly allowed. Rule is made absolute,
to the aforesaid extent. There shall be no order as to costs.
(MAULIK J. SHELAT, J)
NILESH
