Gujarat High Court
State Of Gujarat vs Govindbhai Ukabhai Parmar on 11 July, 2018
Author: A.S. Supehia
Bench: Harsha Devani, A.S. Supehia
C/LPA/174/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 174 of 2017
In SPECIAL CIVIL APPLICATION NO. 18470 of 2014
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI Sd/-
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT
Versus
GOVINDBHAI UKABHAI PARMAR
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Appearance:
MR.UKARSH SHARMA, AGP (1) for the PETITIONER(s) No. 1,2,3,4
MR NILESH M SHAH(780) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 11/07/2018
Page 1 of 7
C/LPA/174/2017 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA)
1. The present appeal is directed against the judgment and order dated 07.04.2016, passed in Special Civil Application No.18470 of 2014, whereby the learned Single Judge has directed the present appellants to pass appropriate orders for fixing the pension in accordance with law and also forward the papers in that regard to the Pension Sanctioning Authority, who in turn, shall pass appropriate orders.
2. The brief facts of the present petition are as under: 2.1 That the petitioner was party to a reference (L.C.S.) No. 83 of 2001 before the Labour Court, Surendranagar, along with other employees. The appellant authority filed their written submissions, wherein it was specifically mentioned that there is no proof on record with the respondentauthority that the petitioner has worked with the respondent authority in the past. In the statement of Deputy Executive Engineer also it was mentioned that it is found that the petitioner has not worked with the respondent authority and he was not their employee.
2.2 The Labour Cour, Surendranagar, passed an award dated 12.02.2007, whereby reference filed by the opponent being Reference (L.C.S.) No. 83 of 2001 was partly allowed and the appellant was directed to Page 2 of 7 C/LPA/174/2017 JUDGMENT reinstate the respondentworkman at his original post without backwagess and without continuity of service.
2.3 The Appellant preferred Special Civil Application No.15594 of 2007 before this Court challenging the order passed by the Labour Court dated 12.01.2007, wherein the same was dismissed vide order dated 26.07.2007. Thus, the award passed by the Labour Court, Surendranagar stood confirmed.
2.4 In compliance with the order passed by the Labour Court, Surendranagar, Appellant respondent authority reinstated the petitioner w.e.f. 29.08.2007, and thereafter, he retired on 27.11.2013 on attaining the age of superannuation.
2.5 After his retirement the workman submitted his pension paper to the authorities. The respondent was paid an amount of Rs.27,265/ by demand draft No.250636 dated 06.03.2014 towards gratuity after counting 5 years of service only.
2.6 Since the respondent was not granted the pension vide application dt. 24.03.2014, he requested to grant the same. The request was refused by the Appellant No.3 vide communication dt. 25.04.2014. The respondent challenged the same by filing the captioned writ petition. By the judgment and order dated 07.04.2016, the petition was disposed with certain directions.
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3. Mr.Utkarsh Sharma, learned AGP for the appellants - State has submitted that the respondent
- workman is not entitled to any pension since he has not completed requisite numbers of years of service. He has submitted that the benefits of the Resolution dated 17.10.1988 cannot be conferred on the respondentworkman since he has actually not worked for 240 days in a year. He has submitted that by the award dated 12.01.2007, termination of the respondentworkman was setaside by the Labour Court and pursuant to that, he was reinstated on 06.10.2008 and finally he retired on 30.11.2013. Thus, it can be inferred that he has only 5 years of service which does not meet with the requisite criteria of grant of pension as per Resolution dated 17.10.1988.
4. Per contra, Mr.Nilesh M. Shah, learned advocate for the respondentworkman has submitted that the award of the Labour Court has become final since the writpetition being Special Civil Application No.15594 of 2007 was dismissed vide order dated 26.07.2007. He has submitted that, subsequently, service of the petitioner has been regularized as per Government Resolution dated 17.10.1988 by order dated 07.11.2012 with effect from 28.08.2012, and thereafter, the petitioner had was retired on 30.11.2013 from service on account of his superannuation.
5. Learned advocate Mr.Nilesh Shah has submitted that the petitioner was terminated from 01.01.1988 and the same was quashed and set aside by the award Page 4 of 7 C/LPA/174/2017 JUDGMENT dated 12.01.2007, and he was directed to be reinstated without backwages on his original post. Thus, he has submitted that the workman was illegally prevented of being employed by the action of the present appellants, and once his termination is set aside, his rest of the service from 1988 is required to be considered for the purpose of pension. He has submitted that the appellants while fixing the gratuity have only considered the service of 5 years of the respondentworkman, whereas he would be entitled to the pension counting his earlier service prior to his termination.
6. In support of submissions, he has placed reliance on the judgment of Apex Court rendered in the case of Gurpreet Singh versus State of Punjab & Ors., reported in 2003 SCC (L & S) 20, for the proposition of law that, if the termination is set aside and workman is reinstated in service, then it is not a case of fresh appointment, but it is a case of reinstatement. Hence, the workman cannot be denied of benefit of continuity of service.
7. He has placed reliance on the judgment of Division Bench of this Court passed in Letters Patent Appeal No.1426 of 2016. He has also placed reliance on the judgment of Divison Bench of this Court in the case of Executive Engineer Panchayat (MAA & M.) Department & Anr. Versus Samudabhai Jyotibhai Bhedi & Anr., reported in 2017 4 G.L.R. 2952 in support of his contention that, if the Daily Wager is Page 5 of 7 C/LPA/174/2017 JUDGMENT regularized under Government Resolution dated 17.10.1988, his past services are to be counted for the purpose of pension.
8. The undisputed fact in the present appeal is that the respondentworkman was terminated from the service in the Year1988 and his termination was quashed and set aside by the award dated 12.01.2007. The Labour Court had directed the present appellants to reinstate the present respondentworkman without backwages on his original post, however, no specific reference was made regarding continuity of service. The Apex Court in the case of Gurpreet Singh (Supra) has specifically observed that once the termination is setaside, the workman will be entitled for continuity of service since the same is not fresh appointment, but it is a case of reinstatement. Accordingly, the workman was reinstated by the order dated 06.10.2008 on his original post, and thereafter, also, it is undisputed fact he was conferred the benefit of regular payscale till he retired on 13.11.2013 after rendering 5 years of service.
9. It is no more resintegra that, as per Resolution dated 17.10.1988, the workman would be entitled to pension and other retirement benefits after completion of 10 years of service. In present case, the termination of the workman is found to be illegal and he was reinstated in service and was also paid regular pay scale. Thus, he was forced to remain unemployed for the interregnum period. The Labour Page 6 of 7 C/LPA/174/2017 JUDGMENT Court, after examining the documents on record, has given a specific finding that the workman had worked for 12 years before his termination and he had also completed 240 days service. Thereafter, he was reinstatement on 06.10.2008 and till his retirement on 30.11.2013, he had completed 5 years. The learned Single Judge has allowed the writ petition and has only directed the Pension Fixation Authority to pass appropriate orders of fixation in accordance with law and it is further directed to forward the papers in that regard to the Pension Sanctioning Authority, who after receipt of the same, shall pass appropriate orders. The learned single judge has only given a direction to the appellants to pass appropriate orders to fix the pension in accordance with law. This Court does not find any illegality or infirmity in such directions of passing appropriate orders for fixing the pension.
10. In view of the foregoing discussion, the present appeal is devoid of merits and deserves to be dismissed. Accordingly, the appeal is dismissed.
11. Consequently, the Civil Application does not survive and is disposed of, accordingly.
Sd/-
(HARSHA DEVANI, J) Sd/ (A. S. SUPEHIA, J) GIRISH Page 7 of 7