Gujarat High Court
Hamirbhai Meghabhai Gohil vs State Of Gujarat on 3 January, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21123 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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HAMIRBHAI MEGHABHAI GOHIL
Versus
STATE OF GUJARAT
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Appearance:
MR NILESH M SHAH(780) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP for the Respondent(s) No. 1,4
MS HARSHAL N PANDYA(3141) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 03/01/2022
ORAL JUDGMENT
1. The present petition has been filed seeking the following prayers:-
"16(A) That this Hon'ble Court may be pleased to issue writ of certiorari and/or any other writ or writs or orders or directions;
(B) That this Hon'ble Court may be pleased to quash and set aside order dt.01-09-15, Ann-C passed by Respondent No.3 to the extent of not granting benefit of Resolution dt.17-10-88, Ann-D from 01-10-
88;
(C) That this Hon'ble Court may be pleased to direct the Respondent No.1 to 3 to give the benefit of Resolution dt.17-10-88, Ann-D to the petitioner with effect from 01-10-88 notionally up to 29-03-07 and Page 1 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022 C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 further be pleased to direct the Respondents to give difference of salary from 30-03-07 to 30-06-17;
(D) That this Hon'ble Court may be pleased to direct the Respondents to grant retirement benefits like Pension, Gratuity and Leave encashment to the Petitioner considering total service of more than 39 years continuous service with 12% interest from 01-07-17 till its actual implementation."
2. At the outset, learned advocate Mr.Nilesh Shah appearing for the petitioner has submitted that the issue is squarely covered by the decision of this Court dated 22.12.2016 passed in Special Civil Application No.18154 of 2015, which is confirmed by the Division Bench vide order dated 20.07.2021 passed in Letters Patent Appeal No.485 of 2017. He has submitted that the Labour Court had decided four references being Reference (LCS) No.115 of 2000, which pertains to the present petitioner along with Reference (LCS) No.184 of 2000 in favour of Shri Danabhai Kalabhai. It is submitted that the award was subject matter of challenge in the aforesaid writ petition and this Court vide order dated 22.12.2016 has granted the similar relief in case of Danabhai Kalabhai and hence, the present petitioner is also entitled to the same relief since the petitioner is similarly situated to him.
3. The brief facts of the case are as under:-
3.1. The Petitioner was employed by the respondent No.3 as a daily wager labourer since 1978. The service of the petitioner was orally terminated by the respondent no.3 from 28.02.1985. Hence, petitioner had Page 2 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022 C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 raised the said dispute, which had been adjudicated in Reference (LCS) No.115/2000. The respondent no.3 had also orally terminated other three co-employees hence, they had also raised the disputes for the same. The Labour Court, Surendrangar by a common award dated 29.03.2007, partly allowed the said reference by directing respondent nos.2 and 3 to reinstate the petitioner and other three co-employees on their original posts without back wages.
3.2. Thereafter, against the said common award dated 29.03.2007, the respondent nos.2 and 3 had filed Special Civil Application No.1607 of 2009 to 1610 of 2010, which had been withdrawn by order dated 24.02.2009 to file restoration application before the Labour Court.
Thereafter, the respondent nos.2 and 3 had filed Restoration Application being (ID) Misc. Application No.8 of 2009 before the Labour Court, Surendranagar against the petitioner, which was dismissed by judgment dated 30.06.2010 on the ground of delay. Hence, the respondent Nos.2 and 3 had filed Special Civil Application No.11455 of 2010, which was allowed by an order dated 15.10.2010 in which this Court had directed the Labour Court, Surendrangar to hear and decide (ID) Misc. Application No.8 of 2009 on merits. Misc. Application No.5 of 11 (Old No.8 of 2009) was decided on merits and was dismissed by judgment dated 13.04.2012. Against the said judgment, respondent nos.2 and 3 had Page 3 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022 C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 filed Special Civil Application No.11486 of 2012, which is dismissed by judgment dated 10.01.2013. Thereafter, the petitioner submitted an application for reinstatement to the respondent no.3 on 11.02.2013, but however, the respondent no.3 did not reinstate the petitioner. Ultimately, by the order dated 01.07.2013 the respondent no.3 reinstated the petitioner on 01.07.2013.
3.3. Thereafter, the petitioner filed Recovery Application No.115/12 for claiming wages of Rs.2,02,082-40 for the period from 06.04.2007 to 30.06.2012 as per minimum wage, which was partly allowed by judgment dated 30.09.2013. The petitioner had also filed Recovery Application No.46/13 for claiming wages of Rs.46,144=80 for the period from 01.07.2012 to 31.03.2013 as per minimum wage, which has been allowed by judgment dated 17.03.2015.
4. Learned advocate Mr.Nilesh Shah for the petitioner has submitted that after reinstatement from 01.07.2013, the petitioner has continuously worked under the Respondent No.3. He has submitted that the petitioner has requested the Respondent Nos.2 and 3 to give the benefit of Resolution dated 17.10.1988 of the Government from 01.10.1988, since he has, by the time completed more than 39 years service, but however, the Respondent No.3 has passed an order on 01.09.2015 granting benefit of Resolution dated 17.10.1988 from 01.09.2015, reason best known to Page 4 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022 C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 him.
5. Learned advocate Mr.Nilesh Shah has submitted that the petitioner has retired from the service by the order dated 30.06.2017 on account of his superannuation, but however, the respondents have not given any retirement benefits. He has submitted that the respondent nos. 2 and 3 have not considered his request to grant the benefit of Resolution dated 17.10.1988 from 01.10.1988, and therefore the petitioner, through his advocate, has given notice to the Respondents by R.P.A.D. on 14.09.2018, which has been received by them on or about 17.09.2018, but however, the respondents have neither acted upon as per notice nor given any reply to the Petitioner till today.
6. Learned advocate Mr.Nilesh Shah for the petitioner has submitted that the respondent Nos.2 and 3 have implemented Resolution dated 17.10.1988 and have given benefit to their daily wager employees, who have completed continuous five years service considering their services from their appointment, but however, though the petitioner has by this time completed more than 39 years service, he is left out without any reason and the benefit is given only from 01.09.2015 and not from 01.10.1988.
7. Learned advocate Mr.Nilesh Shah for the petitioner has submitted Page 5 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022 C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 that in termination case of the petitioner, by the award the Labour Court has granted reinstatement which has been confirmed by this Court by the judgment dated 10.01.2013 dismissing the petition filed by the respondent Nos.2 and 3. He has submitted that though the petitioner has completed more than 39 years service, however, the respondent no.3 has given the benefit of Resolution dated 17.10.1988 to the petitioner only from 01.09.2015, as if he is newly appointed from 01.07.2013 and his past service is ignored for granting the said benefit and to that extent order dated 01.09.2015 is illegal, erroneous and is required to be quashed and set aside. In support of his submissions, he has placed reliance on the judgment dated 17.02.2017 passed in Special Civil Application No.9168 of 2015, which is confirmed by the Division Bench vide order dated 27.03.2018 passed in Letters Patent Appeal No.553 of 2017. Reliance is also placed by him on the order dated 18.06.2018 passed in Letters Patent Appeal No.1268 of 2017.
8. Learned advocate Mr.Nilesh Shah for the petitioner has submitted that the Apex Court in the case of State of Gujarat & Others Vs. P.W.D, Employees Union and Others, (2013) 12 SCC 417 has held that the Government Resolution dated 17.10.1988 is applicable to all the department of the Government and a daily wager employee, who has completed five years service from the date of appointment, is entitled to Page 6 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022 C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 get benefit of Resolution dated 17.10.1988. Thus, he has submitted that the present writ petition may be allowed.
9. Per contra, learned advocate Ms.Harshal Pandya appearing for the respondent nos.2 and 3 has submitted that the petitioner is not entitled to any benefit as there was no directions issued with regard to continuity of service and hence, earlier period, which he has rendered in service cannot be considered for the benefit available under the Government Resolution dated 17.10.1988. In support of her submission, she has placed reliance on the Division Bench's Judgment dated 12.07.2016 passed in Letters Patent Appeal No.492 of 2016.
10. I have heard the learned advocates appearing for the respective parties.
11. The facts, as narrated hereinabove, are not in dispute. The Labour Court vide award dated 29.03.2007 while examining the case of the present petitioner and the co-employee namely Danabhai Kalabhai in Reference (LCS) No.184 of 2000 has directed the respondent authorities to reinstate him on his original post. However, it appears that no directions were issued with regard to continuity of service. Shri Danabhai Kalabhai had approached this Court by filing Special Civil Application No.18154 of 2015 claiming the same relief as claimed by the present Page 7 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022 C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 petitioner since he was denied the benefit flowing from the Government Resolution dated 17.10.1988. A similar contention was raised, which is raised in the present petition that since the Labour Court did not observe with regard to continuity of service, the benefit of the Government Resolution dated 17.10.1988 cannot be extended to the petitioner. The Coordinate Bench of this Court after survey of judgments of the Apex Court has held that once the Labour Court has directed reinstatement, the same would include continuity of service.
12. Finally, the Coordinate Bench of this Court in the case of Shri Dananbhai Kalabhai vide order dated 22.12.2016 has observed thus:-
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.
13. The judgment dated 22.12.2016 was subject matter of challenge before the Division Bench in Letters Patent Appeal No.485 of 2017. The Division Bench by the order dated 20.07.2021 rejected the appeal by observing thus:-
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:Page 8 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022
C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 "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 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 Page 9 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022 C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 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."
14. Thus, the directions issued by this Court in the case of co- employee Shri Danabhai Kalabhai, who was the party to the Reference (LCS) No.184 of 2000 have become final and accordingly, the petitioner, whose reference is decided with the common award along with Shri Danabhai Kalabhai, cannot be denied the benefits, which are conferred to Shri Danabhai Kalabhai.
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C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022
15. In the order dated 18.06.2018 passed in Letters Patent Appeal No.1268 of 2017, while dealing with the same issue, the Division Bench has held thus:-
5.Thus, the upshot of the aforesaid. facts and discussion is that the present respondent -
workman is dented. 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. 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.
16. In the order dated 27.03.2018, the Division Bench, while Page 11 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022 C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 examining the similar issue in Letters Patent Appeal No.553 of 2017 and allied appeals, has held thus:-
3. However, according to learned advocate for the employer who argued the case before learned Single Judge, workman-
Govindbhai Haribhai Solanki had not actually worked between 1989 and 2006 and attained the age of superannuation on completion of 60 years in the year 2009 and thus, he had hardly worked for 3 years and not entitled to get the benefit of Government Resolution dated 17.10.1988. Another workman- Javalben Palaben Kantaria, she was reinstated in the year 2006 pursuant to the order of this Court and retired on 17.1.2016 on attaining the age of superannuation and had put only 9 years and therefore she also would not be entitled to the benefit of above Government Resolution. Various other contentions were raised based on the scheme of Government Resolution dated 17.10.1988 that it was a policy decision and a self-contained mechanism worked out to grant certain benefits to daily rated/causal workers and cannot have any nexus with provisions of Industrial Dispute Act. However, learned Single Judge based on decision of the Apex Court to which reference was made in para 7 of the judgement and material on record as emerged in the writ petition and interpretation put forth of Government Resolution dated 17.10.1988 in all such cases, the significance of expression "continuity of service" was considered and ultimately held that if the contention of learned advocate for the employer about actual length of service rendered by the workman is considered provisions contained in Government Resolution as well as Section 25B of I.D.Act, 1947 referred to therein will be nugatory. At the same time benefits awarded by the Labour Court of Government Resolution dated 17.10.1988 to the workman was modified and held that the workman would be entitled to the benefits under Government Resolution dated 17.10.1988 by treating them in continuous service from the initial date of their appointment till the date of superannuation with a rider that for the period for which back- wages were denied to them, workmen would be entitled to receive only notional benefits under G.R. Dated 17.10.1988.
4. The above conclusion of learned Single Judge based on various orders passed by this Court and interpretation put forth in such decision it cannot be said that period of service namely length of service of each of the workman is to be considered from the date of the award for conferring benefits under G.R.dated 17.10.1988.
17. Thus, there is a constant view taken by the Division Benches, Page 12 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022 C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 which are subsequent to the judgment dated 12.07.2016 passed in Letters Patent Appeal No.492 of 2016, on which the reliance is placed by the respondents that once the Labour Court orders reinstatement, continuity to such employee cannot be denied merely because the Labour Court has failed to record the expression "continuity of service".
18. Even otherwise, the case of the petitioner is similarly situated to the co-employee, Shri Danabhai Kalabhai, in whose case the orders passed by this Court have become final where the identical prayers made seeking the benefit of the Government Resolution 17.10.1988 from 01.10.1988 to 29.03.2007 have been granted by this Court the only difference is that Shri Danabhai Kalabhai is still in service, whereas the present petitioner has retired after rendering 39 years of service on 30.06.2017.
19. The Supreme Court in the case of Gurpreet Singh vs. State of Punjab & Ors., (2002) 9 SCC 492 has also held that once the termination is set aside, the employee cannot be denied continuity of service once reinstatement is directed. The Apex Court has held thus:-
"3. Having heard the learned counsel for the parties and on examining the materials on record, we fail to understand how the continuity of service could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment, but it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and we set aside the part of the impugned order. So far as the arrears of Page 13 of 14 Downloaded on : Wed Jan 12 16:18:45 IST 2022 C/SCA/21123/2018 JUDGMENT DATED: 03/01/2022 salary is concerned, we see no infirmity with the direction which was given by the lower appellate court taking into account the facts and circumstances including the fact that the suit was filed after a considerable length of time. That part of the decree denying the arrears of salary stands affirmed and this appeal stands allowed in part to the extent indicated above."
20. Accordingly, the present petition is allowed. The respondents are directed to confer the benefits flowing from the Government Resolution dated 17.10.1988 with effect from the petitioner will be entitled to such from 01.10.1988 notionally up to 29.03.2007 and thereafter, the respondents are directed to give difference of salary from 30.03.2007 to 30.06.2017 and pay arrears accordingly. The respondents are also directed to grant retirement benefits like pension, gratuity and leave encashment to the petitioner as per the law enunciated by the Supreme Court in the case of P.W.D, Employees Union and Others (supra).
21. Necessary orders shall be passed in terms of the directions issued by this Court within a period of two months from the date of receipt of the writ of this judgment. Rule is made absolute.
Sd/-
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