Gujarat High Court
Ashwinbhai Maganbhai Bhalodiya vs State Of Gujarat on 3 December, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/15294/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15294 of 2017
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ASHWINBHAI MAGANBHAI BHALODIYA
Versus
STATE OF GUJARAT
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Appearance:
MR. MUKESH T MISHRA(5900) for the PETITIONER(s) No. 1
MR KM ANTANI, ASST.GOVERNMENT PLEADER for RESPONDENT No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 03/12/2018
ORAL ORDER
In the facts and circumstances of the case and with consent and request of learned advocates appearing for the parties, the petition was taken up for final consideration today.
1.1 Rule returnable forthwith. Learned Assistant Government Pleader Mr.K.M.Antani waives service of notice of Rule for the respondents.
1.2 Heard learned advocate Mr.Mishra for the petitioner and learned Assistant Government Pleader for the respondents.
2. The petitioner has prayed to set aside order dated 27.04.2017 whereby the Executive Engineer, Rajkot Irrigation Division, Rajkot, refused the Page 1 of 9 C/SCA/15294/2017 ORDER request of the petitioner to fix his salary. The petitioner had requested for fixation of salary on the basis of the completion of requisite years and accordingly to grant the benefits of Government Resolution dated 17.10.1988 on completion of 5, 10 years of service.
3. The facts are that the petitioner was appointed as dailywager under the respondents since 01.03.1985. It appears that since the petitioner's services were terminated with effect from 31.12.1990, the petitioner had raised industrial dispute by way of Reference (LCR) No.42 of 2007 before the Labour Court, Rajkot. The Labour Court allowed the reference as per its judgment and award dated 05.10.2011 and directed the respondents to reinstate the petitioner on his original post without backwages. The challenge to the said judgment and award lodged by the authorities in form of Special Civil Application No.3750 of 2012 met with failure, as the said petition came to be dismissed by this Court on 03.04.2012.
Page 2 of 9 C/SCA/15294/2017 ORDER 3.1 It is the case of the petitioner that he filed joining report but the respondents did not allow him the resumption of duty. The petitioner addressed letter on 08.01.2013, and ultimately the petitioner came to be reinstated as per letter dated 31.01.2013. After the reinstatement, the petitioner requested the authorities in writing that the judgment and award of the Labour Court as confirmed by this Court was required to be complied with. The reply of the authorities to the petitioner's request was that the petitioner was entitled to receive minimum wages from the date of award till the actual date of reinstatement. It appears that thereafter on such basis respondent No.3 released wages to the petitioner as per minimum wages total amounting to Rs.71,297/.
3.2 The representation of the petitioner for treating the service continuous and to fix the pay accordingly did not yield.
3.3 In course of the consideration of the petitioner's request for treating the service and fixing the pay, by communication dated 04.02.2017 Page 3 of 9 C/SCA/15294/2017 ORDER addressed by the Deputy Executive Engineer, Rajkot to the Executive Engineer, Rajkot, it was stated that the petitioner was reinstated and allowed to resume duty on 31.01.2013. It was stated that the judgment and award of the Labour Court dated 05.10.2011 was required to be complied with and that if the five years of petitioner's service was counted from 05.11.2011, he would complete five years of service on 04.11.2016 under the Resolution dated 17.10.1988 and from that date the benefits flowing from the said resolution were required to be extended to the petitioner.
4. Learned advocate for the petitioner submitted that once the Labour Court had directed the reinstatement of the petitioner and the said judgment and award was confirmed by the High Court, implicit in such direction would be the grant of continuous service. It was submitted that the continuity of service is not considered for the petitioner. The reasoning of the authorities, as submitted by the learned advocate for the petitioner, was erroneous when five years period is calculated from 05.11.2011 and not from the date of joining which was required Page 4 of 9 C/SCA/15294/2017 ORDER to be considered as continuity was granted. 4.1 On the other hand, learned Assistant Government Pleader wanted to submit that though the Labour Court had directed reinstatement of the petitioner and pursuant to which the petitioner was reinstated in service, there was no express order by the Labour Court to treat the services of the petitioner continuous. It was therefore sought to be justified that the five years period was considered accordingly and the benefits under resolution dated 17.10.1988 could be extended on that basis only.
5. The Labour Court in its judgment and award though directed reinstatement of the petitioner, did not expressly confer the benefits of continuity of service. Therefore, the moot question is whether the services of the petitioner could be treated as continuous and on that basis the benefits of resolution dated 17.10.1988 including the benefits of pay fixation etc. could be granted to the petitioner. 5.1 In Nanjibhai Madhabhai vs. State of Gujarat, being Special Civil Application No.2192 of 2017, decided as per the judgment dated 24.07.2018, the Page 5 of 9 C/SCA/15294/2017 ORDER very question was considered namely when the Labour Court did not explicitly mentioned continuity of service but the reinstatement was directed, whether the direction of the Labour Court would meant grant of continuity of service.
5.2 In Vasantika R. Dalia Vs. Baroda Municipal Corporation [1998(2) LLJ 172], this Court was posed to interpret the judgment and award of the Labour Court which granted the relief of reinstatement to the workmen. The relief of backwages was denied and the relief of continuity of service was not denied specifically and that in the relief of reinstatement granted, the word 'continuity' was not mentioned. The Court observed to lay down that "It may be straightaway observed that once the relief of reinstatement is granted, the continuity of service is a direct consequence rather inherent in the relief of this nature". It was held that when the relief of reinstatement was granted and the continuity of service was not specifically denied, the workman has to be relegated to the same position as was held by it at the time of termination. When the order of termination was found to be void, the Page 6 of 9 C/SCA/15294/2017 ORDER petitioner, it was held, would be entitled to hold the relief of reinstatement with continuity where there was no mention of specific denial to such continuity.
5.3 The Supreme Court in Gurpreet Singh Vs. State of Punjab and others [2002 (92) FLR 838], held that once the plaintiff was directed to be reinstated in service upon setting aside of the order of termination, continuity of service could not be denied. The Court observed that the case was not of fresh appointment but it was one of reinstatement and that being the position, it was observed that the High Court was in error in denying the continuity of service. 5.4 When the award of the Labour Court had not expressly denied the continuity is to be interpreted as per the principles of law laid down by the Supreme Court in Gurpreet Singh (supra), the concept of continuity could not be distinguished for the purpose of granting any other service benefits. Learned Assistant Government Pleader made a failed attempt to submit that the continuity for the purpose of granting benefits under Resolution dated 17.10.1988 Page 7 of 9 C/SCA/15294/2017 ORDER may be treated differently. Any such distinction would be artificial distinction.
5.5 Thus and therefore, even though the judgment and award of the Labour Court had not expressly granted the continuity, at the same time it did not deny the continuity in any expressed terms. The grant of continuity would have to be read with the order of reinstatement. The petitioner would be entitled to be treated continuous in service upon reinstatement. Resultantly, the petitioner would be entitled to be granted the benefits of Resolution dated 17.10.1988 accordingly by reckoning his services as continuous from the date of his initial appointment.
6. In view of above, the stand of the respondents in calculating five years and the continuity of service of the petitioner with effect from the date of judgment and award of the Labour Court and to treat the completion of five years as on 04.11.2016 for extension of benefits under Resolution dated 17.10.1988 is based on erroneous interpretation and application of the judgment and award of the Labour Court. Once the continuity would flow from the Page 8 of 9 C/SCA/15294/2017 ORDER judgment and award, all the benefits to the petitioner including pay fixation would be granted to the petitioner in consideration of such continuity from the beginning of the requisite completion of length of service for the purpose of resolution dated 17.10.1988 would have to be counted in that way.
7. As a result of the above discussion, the petition deserves to be allowed. The prayers are granted. Order dated 27.04.2017 passed by the respondents and in particular respondent No.2 is hereby set aside. The benefits of Government Resolution dated 17.10.1988 shall be extended to the petitioner on completion of requisite number of 5, 10 etc. years of service to be reckoned and counted as held above. The arrears which may arise and become payable by virtue of this order shall be paid by the authorities to the petitioner within a period of ten weeks from the date of receipt of this order.
The petition is allowed in the aforesaid terms. Rule is made absolute, accordingly.
(N.V.ANJARIA, J) Gaurav+ Page 9 of 9