Gujarat High Court
Mahipatsinh vs State on 19 July, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/8967/2011 19/ 19 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8967 of 2011
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MAHIPATSINH
JITUBHA KER GAURDSMAN OF BORDER WING JAMNAGAR - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 2 - Respondent(s)
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Appearance
:
MR
SHALIN MEHTA FOR MS VIRAJ S FOZDAR
for
Petitioner(s) : 1,
MR MAULIK NANAVATI, AGP for Respondent(s) :
1,
None for Respondent(s) : 2 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 19/07/2011
ORAL
ORDER
Heard learned advocates appearing on behalf of respective parties.
The petitioner was appointed in year of 1999 as a part time Guardsman of Border Wing Home Guards No.3 Battalion, Jamnagar. Thereafter, because of pendency of criminal prosecution, he was discharged from service on 27th July, 2001 and from criminal prosecution, he was declared acquittal on 16th April, 2008. Thereafter, order of reinstatement has been passed in favour of petitioner, page 34, dated 9th December, 2009. Page 32 is a decision taken in respect of appeal preferred by petitioner and on that basis, he was reinstated in service while considering one fact that in earlier service, prior to discharge or dismissal, there was no any misconduct committed by petitioner. Accordingly, order of reinstatement has been passed on 9th December, 2009. Subsequently, a policy decision has been taken by respondent on 6th April, 2009 and respondent has decided to consider Border Wing Home Guards for purpose of scheme, who have put in at least five years service and who are desirous to get benefit of this scheme for which they shall have to apply in a proper form to Recruitment Board. The relevant is Item No.IV which is quoted as under :
"(iv) The State Government has decided to consider the above referred Boarder Wing Home Guards for the purpose of this scheme, who have put in at least five years service and who are desirous to get benefit of this scheme for which they shall have to apply in a proper form to Recruitment Board."
In view of above decision taken vide Item No.IV, petitioner is entitled for benefit of scheme, because, he has completed at least five years continuous service in Boarder Wing Home Guards. But, question has been raised by other side is that he was not remained in continuous service for a period of five years because from date of discharge 27th July, 2001 till date of reinstatement 9th December, 2009, he was not in service, therefore, according to respondent, he did not remain in continuous service and satisfied aforesaid Condition No.IV of Scheme dated 6th April, 2009.
It is necessary to note that once reinstatement order has been issued by respondent, order of discharge dated 27th July, 2001 is impliedly set aside, meaning thereby petitioner is deemed to be in service for all purposes, because, in between, no punishment or departmental inquiry conducted against present petitioner. Therefore, question is whether in case of reinstatement, a continuity of service is impliedly covered or not ? It is also necessary to note that petitioner is not re-employed by respondent, but, he was reinstated in service, means he is deemed to be in service continuously. This aspect has been recently considered by this Court in case of Nagjibhai Paljibhai Zala & Ors. v. State of Gujarat in Special Civil Application No.3300 of 2011 dated 14th March, 2011.
This decision is no doubt relating to Industrial Disputes Act, 1947, but, this Court has considered question of continuity of service in case when reinstatement order or award passed by Labour Court where it was not mentioned whether continuity of service is granted or denied to concerned employee. Therefore, this aspect, in detail, has been examined by this Court and passed order dated 14th March, 2011. The relevant paragraphs 4 to 11 are quoted as under :
"4.In present petition, petitioners have challenged award passed by Labour court, Jamnagar in Reference (LCJ) No. 75 of 2002 to 79 of 2002 Exh. 27 Annexure A page 22 dated 10.7.2008 wherein labour court has partly allowed references and directed respondent establishment to reinstate petitioners in service on their original post within thirty days from date of publication of award without back wages for interim period.
5. Before labour court, Jamnagar, specific argument was made by representative for petitioners that if labour court come to conclusion that petitioners are entitled for reinstatement in service, then, petitioners are not claiming any amount of back wages for interim period from respondent. Accordingly, considering aforesaid submission made by representative for petitioners, labour court has not granted any amount of back wages for interim period in favour of petitioners.
6. Learned advocate Mr. Devnani for petitioners has submitted that in para 13 of award, labour court has, in terms, come to conclusion that each petitioner has completed continuous service as required under section 25B(1) and (2) of ID Act, 1947. Documents demanded by petitioners from respondents before labour court were not supplied by respondents and, therefore, he submitted that labour court has rightly drawn adverse inference against respondent on the ground that inspite of fact that documents are in possession of respondent, respondent has not produced same on record even though order passed by labour court and no affidavit has been filed by respondent before labour court and in oral evidence, no reason has been disclosed for non production of documents demanded by petitioners. Witness for respondent has admitted in cross examination that presence and pay register of concerned petitioners were maintained by respondent department. Even though, intentionally, demand made by petitioners has not been satisfied by respondents while producing relevant record of presence register and pay register before labour court and, therefore, he submitted that once labour court has come to conclusion that petitioners have established continuous service under section 25B(1)(2) of ID Act, 1947 and sec. 25F of ID Act, 1947 has been violated by respondents while terminating service of petitioners, then, such order of termination becomes void, ab initio. He relied upon decision of apex court in case of Mohan Lal v. The Management of M/s. Bharat Electronics Ltd., AIR 1981 SC 1253. Relevant para 12 of said judgment is quoted as under:
"12. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicating in sub-section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in clause (a) of sub-section (2). The conditions are that commencing the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter VA. It is not necessary for the purposes of sub-section (2) (a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of sub-section (1) his case would be governed by sub-section (1) and his case need not be covered by sub-section (2).
Sub-section (2) envisages a situation not governed by sub-section (1). And sub-section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in sub-section 2(a) it is necessary to determine first the relevant date, i.e., the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in sub-section 2(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in section 25F. On a pure grammatical construction the contention that even for invoking sub-section (2) of section 25B the workman must be shown to be in continuous service for a period of one year would render sub-section (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumption. The contention must first be negatived on a pure grammatical construction of sub-section (2).And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render sub-section (2) otiose. The language of sub- section (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it. But as Mr. Markandaya referred to some authorities, we will briefly notice them."
7. Learned Advocate Mr. Devnani for petitioners also submitted that once order of termination is held to be illegal and violative of section 25F of ID Act, 1947, then, order of termination is held to be void ab initio, then, workman is deemed to be in continuous service for all purposes. He submitted that right of reinstatement itself includes continuity of service as per decision which has been relied upon by petitioners in Ground (e) (f), (g) and (h). Therefore, Ground (e) to (h) of petition are quoted as under:
"(e) The learned labour court has committed great error of law that, the witness of the respondent has stated on oath in the cross examination below Exh. 15 that, as and work required they are appointing daily wagers employees. It is crystal clear that, there was a clear cut violation of section 25(G) and (H)a of the ID Act, 1947, it may be noted that, said aspect has been considered by the Labour Court and comes to the conclusion that there was a clear violation of mandatory sections 25(F),(G) and (H) of the Industrial Disputes Act, 1947, though the Labour Court has not granted continuity of service, it is a basic error of law which is considered to be non application of mind, and contrary to the record and therefore the award impugned is null and void and suffering from gross error of law and required to be quashed and set aside for not granting continuity of service in favour of petitioners.
(f) That the labour court has comes to the conclusion that, the workman is entitled to get reinstatement, but no specific reasons were mentioned in impugned award for denying or not clarified about continuity of service. It may be noted that once the violation of mandatory sections of the ID Act, 1947 has been established then, full relief should be granted, recently, the Hon'ble Apex Court have been pleased to hold in case of RAMESH KUMAR V/S. STATE OF HARYANA reported in 2010(1) SCALE 432, and in another case of HARJINDER SINGH V/S. PUNJAB STATE WAREHOUSING CORPORATION, reported in 2010(1) SCALE 613, and recent decision in case of ANOOP SHARMA, reported in 2010(3) LLJ 1, the principles and observations made by the Hon'ble Apex Court in three recent decisions are squarely covered the case of the petitioners, therefore, the award impugned qua not clarified about continuity of service is null and void and is required to be quashed and set aside.
(g) The petitioner submits that, there are number of decisions of this Hon'ble Court as well as the Hon'ble Apex Court that, once the termination is held to be illegal or violation of mandatory provisions, then, the natural relief of reinstatement with impliedly continuity of service along with full back wages should be granted,but in the present case, the learned Judge has failed to exercised its jurisdiction and therefore, the award qua not clarified about continuity of service is required to be quashed and set aside.
(h) It may be noted that as per the impugned award all the petitioners were reinstated back in service but the respondent has not granted continuity of service, the petitioners had put about 9 to 6 years service with respondent and if the continuity of service will not taken into consideration,t hen, their past service has gone and the Labour Court has not specifically denied continuity of service and, therefore continuity of service should be implied with the reinstatement, if it is not considered then the petitioner will not eligible to get the benefits of the Government Resolutions therefore in case where the continuity of service specifically not denied by the labour court then it is impliedly with the reinstatement. The act of the respondents for not giving/granting benefits of the continuity of service to the petitioner is a contrary to the law laid down by the Hon'ble Apex Court as well as this Hon'ble High Court. In the various decisions, the Hon'ble High Court has taken a view that Reinstatement means impliedly entitled to get continuity in service; all the reported decisions are mentioned as under with relevant head notes.
1. VASANTIKA R DALIA VS BARODA MUNICIPAL CORPORATION, reported in 1997(3) GLR 1879.
"INDUSTRIAL DISPUTES ACT, 1947 (XIV OF 1947) - Sec. 25F -
Retrenchment - Setting aside order of termination Labour Court directed reinstatement without back wages - Question of continuity of service not mentioned in the order of Labour Court - Held, in such a case workman would be entitled to reinstatement with continuity of service.
2. SONI RAMESHKUMAR BHOGILAL VS STATE OF GUJART reported in 2002(3) GCD 2001.
"(A) Constitution of India, 1950 - Art. 227 - Reinstatement -
Award by Labour Court - While granting relief of reinstatement Labour Court has not specifically denied relief of continuity of service whereas relief of back wages has been specifically denied - Held, petitioner entitled to benefit of continuity of service for the period for which his services have been interrupted on account of an unlawful action of respondents - Petition allowed.
(B) SERVICE LAW - Reinstatement - Constitution of India, Art. 227 - Award by Labour Court - While granting relief of reinstatement Labour Court has not specifically denied relief of continuity of service whereas relief of back wages has been specifically denied - Held, petitioner entitled to benefit of continuity of service for the period for which his services have been interrupted on account of an unlawful action of respondents.
3. PRATIKSHABEN B UTRANKAR VS STATE OF GUJARAT reported in 2004 (1) GLH 501.
"(A) Industrial Disputes Act, 1947 - Secs. 2(b) and 10 -
Constitution of India, 1950 - Art. 227 - Workman - Labour Court awarded reinstatement without back wages - Held Labour Court awarded reinstatement and not re-employment - Reinstatement includes and implies continuity of service unless Labour Court has expressly refused relief of continuity of service.
(B) Constitution of India, 1950 - Art. 227 - Industrial Disputes Act, 1947 - Secs. 2(b) and 10 - Workman - Labour Court awarded reinstatement without back wages - Held Labour Court awarded reinstatement and not re-employment - Reinstatement includes and implies continuity of service unless Labour Court has expressly refused relief of continuity of service.
4. UNION OF INDIA VS KISHOR LAKHA reported in 2004 (1) GLH 101 "(A) Industrial Disputes Act, 1947 - Sec. 33(C)(2) - Payment of Bonus Act, 1965 - Sec. 8 - Employee whose termination of service is set aside being illegal and who is ordered to be reinstated with full back wages, is deemed to have worked for the period during which he may not have actually worked, within the meaning of Sec. 8 - Such employee entitled to bonus for the said period.
(B) Payment of Bonus Act, 1965 - Sec. 8 - Industrial Disputes Act, 1947 - Sec. 33(C)(2) - Employee whose termination of service is set aside being illegal and who is ordered to be reinstated with full back wages, is deemed to have worked for the period during which he may not have actually worked, within the meaning of Sec. 8 - Such employee entitled to bonus for the said period.
5. GURPREET SINGH VS STATE OF PUNJAB AND OTHERS reported in 2003 SCC (L&S) page No. 20 (2002 9 SCC - 492) whereby the full bench of the Hon'ble Apex Court have been pleased to considered the same issue, the relevant observations made in Par 3 of the order :
"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 that part of the impugned order. So far as the arrears of 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.
6. SANAT KUMAR DWIVEDI VS DHAR JILA SAHAKARI BHOOMI VIKAS MARYADIT AND OTHERS reported in 2001 AIR SCW 2430, whereby the Hon'ble Apex Court have been pleased to made relevant observations in para 3;
"3. It is clarified that this order will not be treated to be resulting in any break in service of the appellant. He will be deprived of only the back wages. The continuity of service and all other notional benefits on that basis will be available to him. It appears that when the order of reinstatement was granted, except depriving him of back wages, it necessarily meant that the continuity of service was implicit in the reinstatement. Even Conditions 1 and 2 of the Order of Reinstatement clearly indicate that he is reinstated in service with continuity as pay scales and other benefits were also directed to be given."
8. Learned Advocate Mr. Devnani also submitted that labour Court has merely granted reinstatement and simultaneously, labour court has not denied continuity of service and labour court has also not granted re-employment to workmen and, therefore, in such circumstances, once continuity of service is not denied specifically, then, impliedly, it should have to be considered as an award of reinstatement with continuity of service in favour of workmen and, therefore, as per his submission, award made by labour court is required to be modified to that extent by declaring that petitioners are entitled for benefit of continuity of service.
9. As against that, learned AGP Mr. AL Sharma appearing for respondent State of Gujarat has submitted that labour court has rightly examined matter and continuity of service is not granted by labour court. For that, as per his submission, labour court has not committed any error which would require interference of this court in exercise of powers under Article 227 of Constitution of India.
10. I have considered submissions made by learned advocates for both parties. I have also perused award passed by labour court wherein labour court has directed respondent establishment to reinstate petitioners in service on their original post within thirty days from date of publication of award without back wages for interim period and has not denied relief of continuity of service specifically while granting relief of reinstatement on original post held by respective workmen. I have also considered fact that award made by labour court in aforesaid references dated 10th July, 2008 has not been challenged by present respondent State of Gujarat before Higher Forum.
11. Therefore, in light of this back ground, considering decisions which have been referred to and relied upon by learned advocate Mr. Devnani for petitioners, according to my opinion, reinstatement includes continuity of service and accordingly workmen are entitled for benefits flowing from continuity of service. For that, labour court has not issued any directions against present petitioners. Therefore, award passed by Labour Court in Reference No. 75 of 2002 to 79 of 2002 dated 10th July, 2008 is hereby modified to the effect that each petitioner is entitled for reinstatement on original post with continuity of service without back wages for interim period. Accordingly, aforesaid award is modified and each petitioner is entitled for relief of continuity of service on original post without back wages for interim period.
Award is accordingly modified and directed to Respondents to extend the benefits of continuity of service with consequential benefits as available to each petitioners. Rule is made absolute to the extent indicated herein above with no order as to costs."
In light of aforesaid observations made by this Court, it is relevant to note that while passing reinstatement order in favour of present petitioner, a respondent has not denied continuity of service of interim period, meaning thereby petitioner may be considered to be deemed to be in service continuously.
For that, let petitioner may make detailed representation to respondent Nos.1 and 2 claiming continuity of service of interim period as referred above within a period of ten days from date of receiving copy of present order.
As and when respondent Nos.1 and 2 received such representation from petitioner, it is directed to respondent Nos.1 and 2 to consider aforesaid aspect of continuity of service and examine grievance of present petitioner in light of decision which has been referred above by this Court in present order and then to pass appropriate reasoned order within a period of one month from date of receiving such representation from petitioner and communicate decision to petitioner immediately.
It is made clear by this Court that decision which has been relied upon by this Court as referred above where similar question has been considered by this Court, but, in respect of facts of present case, this Court has not expressed any opinion on merits.
Accordingly, present petition is disposed of by this Court.
However it is made clear that in case if ultimate decision is adverse to petitioner, it is open for petitioner to challenge same before appropriate forum by filing appropriate proceedings in accordance with law.
Direct service is permitted.
[H.K. RATHOD, J.] #Dave Top