Gujarat High Court
Dhundiyabhai Pahujyabhai Chaudhari vs State Of Gujarat on 6 November, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/117/2023 ORDER DATED: 06/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 117 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 13716 of 2017
With
R/LETTERS PATENT APPEAL NO. 126 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 13695 of 2017
With
R/LETTERS PATENT APPEAL NO. 127 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 13682 of 2017
With
R/LETTERS PATENT APPEAL NO. 147 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 13655 of 2017
With
R/LETTERS PATENT APPEAL NO. 148 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 16948 of 2017
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DHUNDIYABHAI PAHUJYABHAI CHAUDHARI
Versus
STATE OF GUJARAT
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Appearance:
MR PC CHAUDHARY, ADVOCATE with M V PATEL (7602) for the
Appellant(s) No. 1
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH
ROY
Date : 06/11/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr. P.C. Chaudhary for the appellants and learned Assistant Government Page 1 of 10 Downloaded on : Fri Nov 10 20:50:32 IST 2023 NEUTRAL CITATION C/LPA/117/2023 ORDER DATED: 06/11/2023 undefined Pleader Ms. Shruti Dhruve for the respondent State and its authorities.
2. All these appeals, since arise from common judgment and order dated 28.09.2022, passed in respective Special Civil Applications and since they have common thread of facts and identical issues involved, all were taken together for hearing to be treated for disposal by this common order.
2.1 Learned Single Judge held the petitioners concerned were entitled to be considered for grant of benefits under Government Resolution dated 17.10.1988 in light of the decision of this Court in Ramabhai Lalabhai & Ors. vs. State of Gujarat, which was Special Civil Application No. 17874 of 2013 decided on 27.09.2016. The benefits under the Resolution dated 17.10.1988 were required to be considered for the petitioners in accordance with the observations made in paragraph 6.2 of the decision in Ramabhai Lalabhai (supra), held learned Single Judge.
3. The petitioners in their respective petitions, prayed for direction to grant the benefits of Resolution dated 17.10.1988 with retrospective effect and also to pay the arrears.
3.1 Noticing the facts from the first captioned Page 2 of 10 Downloaded on : Fri Nov 10 20:50:32 IST 2023 NEUTRAL CITATION C/LPA/117/2023 ORDER DATED: 06/11/2023 undefined Letters Patent Appeal No. 117 of 2023 referable to Special Civil Application No. 3716 of 2017, the petitioner was employed as Gallery Attendant since 14.10.1986 under the respondent Archaeological Department. In view of the length of service the petitioner rendered, the benefits under Resolution dated 17.10.1988 were claimed. It was also the case that the workmen junior to the petitioner had been extended such benefits, however, the petitioner was discriminated.
3.2 The relevant details in each of the cases containing the name, the post held by the petitioner, their education qualification and the date of their appointment as daily wagers are given in the tabular form hereinbelow, Sr. Letters Patent Name and Post Date of Birth Education Date of No. Appeal Number Qualification Appointment as daily wager
1. LPA No. 117/23 Dhundiyabhai 06.08.1959 Std-4 14.10.1986 In Pahujyabhai SCA No.13716/17 Chaudhari -
Gallery Attendant
2. LPA No. 126/23 Yashvant R. 02.07.1965 Std-10 05.11.1983 In Gayakvad -
SCA No.13695/17 Watchman/Ju.Ka./Ta xidermist
3. LPA No.127/23 Chandubhai 05.02.1968 Std-9 21.11.1984 In Gulabbhai Dalavi-
SCA No.13682/17 Watchman
4. LPA No.147/23 Kisanbhai Rama 01.05.1963 Uneducated 01.0.1986
In Pawar - Labourer,
SCA No.13655/17 Assistant Snake
Keeper
5. LPA No.148/23 Bhavanbhai 01.06.1962 Std-5 07.07.1986
In Sonyabhai Vaghera
SCA No.13648/17 - Gardener
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NEUTRAL CITATION
C/LPA/117/2023 ORDER DATED: 06/11/2023
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3.2 The above facts are not in dispute. There is
no dispute also on the factum of continuous service rendered by the employees since their date of appointment as daily-wagers. Learned Assistant Government Pleader also could not dispute in principle the applicability of the Resolution dated 17.10.1988 and the benefits flowing therefrom for the petitioners.
3.5 As per the above observations in that case, the Court held that the said petitioners to be entitled to the benefits of Resolution dated 17.10.1988, however, it was directed that the arrears shall be payable from the date of filing of the petition.
4. Learned Single Judge considered the case of the petitioners, however, ultimately, in the operative directions, granted relief on the lines of decision in Ramabhai Lalabhai(supra) stating that the observations made in paragraph 6.2 of the said decision would apply to those petitioners.
4.1 Paragraph 6.2 of Ramabhai Lalabhai (supra) reads as under, "6.2 It is observed that the benefits flowing from the Resolution dated 17th October, 1988 shall be made available to the petitioners but the arrears prior to the date of filing of petition, i.e. prior to 01st January, 2014, Page 4 of 10 Downloaded on : Fri Nov 10 20:50:32 IST 2023 NEUTRAL CITATION C/LPA/117/2023 ORDER DATED: 06/11/2023 undefined shall not be paid but the entire period should be counted notionally for all other purpose including continuity and the fixation of such benefits shall be made from the date of eligibility. The benefits so arising shall be paid to the petitioners within a period of four months from the date of receipt of this order."
4.2 Learned advocate for the petitioners-appellants herein successfully contended that the said directions in Ramabhai Lalabhai (supra) in paragraph no.6.2 were in the context of fact situation obtained in that case. It was submitted that in case of the present petitioners, the benefits under Resolution dated 17.10.1988 have to be granted by counting the services from the initial date of joining.
5. The above submission could be countenanced by the Court inasmuch as it was noticed from the decision in Ramabhai Lalabhai (supra) that in two respects, the facts of the said case were at variance to be different to the facts of the present case.
5.1 As observed in paragraph 6 of Ramabhai Lalabhai (supra), learned advocate appearing for those petitioners had submitted that the benefits may be available from the date of filing of the petition. Whereas for the purpose of arrears prior to the date of filing of the petition, the benefits Page 5 of 10 Downloaded on : Fri Nov 10 20:50:32 IST 2023 NEUTRAL CITATION C/LPA/117/2023 ORDER DATED: 06/11/2023 undefined may be given notionally. It was in light of the above concession offered on behalf of the petitioners, the Court in that case directed that the arrears shall be paid only from the date of filing of the petition.
5.2 The second distinction was both factual and legal. The services of those petitioners came to be terminated upon they invoking jurisdiction of the Labour Court. Those petitioners came to be reinstated with 60% backwages and continuity of service as per the judgment and award of the Labour Court. The writ petition was filed by the respondent against the said judgment and award, in which the respondents succeeded to the extent that the backwages were reduced from 60% to 30% and the rest of the award was maintained.
5.3 The above factual distinction was also made operative by the Court in Ramabhai Lalabhai (supra) while issuing the final directions to give the benefits to the petitioners restricting the payment of arrears from the date of filing of the petition.
5.4 The case before the Court in Ramabhai Lalabhai (supra) was of reinstatement and not of regularisation. The nature of relief granted in Ramabhai Lalabhai (supra) was true in view of the facts obtained in that case, which had above two Page 6 of 10 Downloaded on : Fri Nov 10 20:50:32 IST 2023 NEUTRAL CITATION C/LPA/117/2023 ORDER DATED: 06/11/2023 undefined aspects, which are absent in the present case. In the present case, the case of the present appellants-petitioners are clear to entitle him to get the benefits of the Resolution dated 17.10.1988 full fledged by reckoning their services from the date of initial joining the services.
6. There is no aspect in the facts of this case, which would require limiting the relief regarding grant of arrears from a particular date only. However, amongst the appellants, the case of two appellants in Letters Patent Appeal No. 126 of 2023 and Letters Patent Appeal No. 127 of 2023 named Yashvant R. Gayakvad and Chandubhai Gulabbhai Dalvi respectively would stand on different footing. This is in view of the undisputed fact stated in the affidavit-in-reply by the respondent that the said two appellants who had also approached Labour Court entered into a settlement with the employer. At the time of settlement, since two posts were available, the claim of the said appellants- petitioners was accepted by the authorities and they were regularised in service as per their seniority.
6.1 The consent terms/settlement was acted upon and the said two petitioners came to be given regular appointment to the post of Gallery Attendant. It was pointed out that the case of the Page 7 of 10 Downloaded on : Fri Nov 10 20:50:32 IST 2023 NEUTRAL CITATION C/LPA/117/2023 ORDER DATED: 06/11/2023 undefined above two petitioners-appellants could be considered at that time in view of the fact that two posts were available and the other petitioners remained continued as daily wagers who became the rest of the petitioners in the present proceedings.
6.2 Since the appellants-petitioners in two Letters Patent Appeals mentioned above arrived at a settlement in the course of the reference proceedings and their services came to be regularised in the year 1986, the question of their agitating for benefits under Resolution dated 17.10.1988 does not arise. They on their own volition entered into settlement. They cannot be permitted to now fall back upon their claim for grant of benefit under Resolution dated 17.10.1988 since they have already been regularised under the settlement. Therefore, the said two Letters Patent Appeals could not be entertained.
6.3 It was pointed out by learned Assistant Government Pleader that out of the above three appeals, appellants named Dhundiyabhai Pahujyabhai Chaudhari of Letters Patent Appeal No. 117 of 2023 and Bhavanbhai Sonyabhai Vaghera, appellant of Letters Patent Appeal No. 148 of 2023 have already retired having reached the superannuation on 31.08.2017 and 30.06.2020 respectively.
Page 8 of 10 Downloaded on : Fri Nov 10 20:50:32 IST 2023NEUTRAL CITATION C/LPA/117/2023 ORDER DATED: 06/11/2023 undefined 6.4 In the aforesaid view, all those appellants- workmen who are in service or have retired are entitled to be considered for grant of benefits flowing from Resolution dated 17.10.1988 on the basis of the length of the services they rendered, reckoned from initial date of their appointment.
7. Therefore, these Letters Patent Appeals are partly allowed by modifying and to that extent, setting aside the judgment and order of learned Single Judge,
(i) Those workmen who were in service shall be paid the benefits under the Resolution dated 17.10.1988 on the basis of the length of their services as provided hereinabove. The arrears shall be paid in their cases within 10 weeks from the date of receipt of this order.
(ii) Letters Patent Appeal No. 117 of 2023, Letters Patent Appeal No. 147 of 2023 and Letters Patent Appeal No. 148 of 2023 are allowed in the above terms.
(iii) In the cases where the workmen have retired upon reaching the age of superannuation, the benefits under Resolution dated 17.10.1988 shall accrue to be available to them for the purpose of fixation of their pension and paying retirement benefits.
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(iv) In these cases also, necessary compliance and payment of arrears shall be done within 10 weeks from the date of receipt of the order.
Letters Patent Appeal No. 126 of 2023 and Letters Patent Appeal No. 127 of 2023, which are the cases of settlement before the Labour Court, are dismissed as the question of considering these workmen for the benefit under Resolution dated 17.10.1988 does not arise as they already stand regularised in service.
(N.V.ANJARIA, J) (CHEEKATI MANAVENDRANATH ROY, J) BIJOY B. PILLAI Page 10 of 10 Downloaded on : Fri Nov 10 20:50:32 IST 2023