Gujarat High Court
Vitthalbhai Anjanbhai Makwana vs State Of Gujarat on 15 July, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6876/2022 ORDER DATED: 15/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6876 of 2022
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VITTHALBHAI ANJANBHAI MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
KRISHNAN M GHAVARIYA(8133) for the Petitioner(s) No. 1,2,2.1,2.2,2.3
MR KURVEN DESAI, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 15/07/2022
ORAL ORDER
1. Rule returnable forthwith. Mr. Kurven Desai, learned AGP waives service of notice of rule on behalf of respondent State.
2. With the consent of learned advocates appearing for the respective parties, matter is taken up for final hearing today.
3. The prayer in the petition reads as under:
"(A) Your Lordships may be pleased to admit the petition.Page 1 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022
C/SCA/6876/2022 ORDER DATED: 15/07/2022 (B) Youg Lordships may be pleased to allow the petition by issuing a writ of mandamus or any other appropriate writ, direction and/or order in the nature of mandamus directing the respondents herein to further release the entire benefits flowing from the Government Resolution dated 17.10.1988 from the date of completion of 5-10-15 years of service with 12% interest.
(C) Your Lordship may be pleased to direct the respondents to release the benefits of pension, gratuity & Leave encashment calculating from the date of initial appointment of the petitioners."
4. The facts in brief would indicate that the petitioner no. 1 was appointed in the year 1978 as a daily wage watchman. The petitioner no. 2, since deceased, was appointed in the year 1982. Both came to be terminated on 03.02.1986. They raised an industrial dispute and the dispute was referred to the Labour Court, Bhavnagar being Reference (LCB) No. 623 of 1987.
5. Mr. Krishnan Ghavariya, learned advocate appearing Page 2 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022 C/SCA/6876/2022 ORDER DATED: 15/07/2022 for the petitioners would submit that the petitioners are entitled to the benefits such as GPF, Earned Leave, pension etc as if they were granted the benefits of the Government Resolution dated 17.10.1988. He would submit that in the reference being Reference (LCB) No. 623 of 1987, there were three parties of which a co-
employee and co-referee - Fajalbhai Sultanbhai Chauhan had approached this court for the benefits of the resolution dated 17.10.1988. He submitted that the said co-employee was granted the benefits by this court vide order dated 02.03.2022 passed in Special Civil Application No. 12 of 2019.
6. Briefly stated, by the aforesaid reference, the Labour Court had directed that the claimants be reinstated in service with continuity and payment of 50% backwages.
The order of the Labour Court was then challenged by way of Special Civil Application No. 8714 of 2008 which came to be allowed vide order dated 29.09.2017. A co-
ordinate bench of this court while confirming the award of the Labour Court held as under:
Page 3 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022C/SCA/6876/2022 ORDER DATED: 15/07/2022 "9. Under the circumstances there is no justification to interfere with the said findings of fact recorded by learned Labour Court.
9.1 Now, when the said factual aspect i.e. that the claimants had worked for 240 days during relevant period, is clarified and settled, the issue which would survive for consideration is that whether at the time when the claimants came to be relieved, the opponent employer had followed the procedure prescribed under Section 25F of the I.D. Act including procedure to pay retrenchment compensation. It is undisputed that prescribed procedure (under Section 25F of the I.D. Act) was not followed and compensation was also not paid.
9.2 Under the circumstances when breach of Section 25F of the I.D. Act is established further finding and the conclusion recorded by learned Labour Court cannot be said to be incorrect or perverse.
10. Learned AGP failed to point out any material from the record to establish that the said findings and conclusion by learned Labour Court is incorrect or perverse or that the Page 4 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022 C/SCA/6876/2022 ORDER DATED: 15/07/2022 Section 25F of the I.D. Act was not applicable in present case. Therefore, the findings recorded by learned Labour Court with regard to issue No. 2 cannot be faulted and does not deserve to be disturbed.
11. Upon appreciation of the evidence learned Labour Court has also recorded that the documentary and oral evidence of both sides brought out and revealed the names of the persons who came to be employed after the petitioners were relieved from service and the said fact established that after the claimants were relieved, other persons were engaged for the same work and the said persons were engaged without offering work to the claimants.
11.1 In light of the said evidence learned Labour Court reached to the conclusion that the opponent employer committed breach of Section 25H of the I.D. Act.
12. Learned AGP could not show any material from the record which would convince this Court that the said finding of fact recorded by learned Labour Court is incorrect or that any person was not engaged by RFO in place of Page 5 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022 C/SCA/6876/2022 ORDER DATED: 15/07/2022 claimants for the same work which the claimants performed.
12.1 Therefore any ground to interfere with the findings and conclusion recorded by the learned Labour Court with regard to issue no. 3 and 5 is not made out.
12.2 Foregoing discussion brings out that the petitioner employer committed breach of statutory provisions.
13. Under the circumstances, the direction to reinstate the claimants cannot be faulted.
13.1 However, as mentioned above so far as respondent no. 1 i.e. Mr. D.L. Suvagiya is concerned the said direction would not survive inasmuch as the said claimant died in January 2014. Therefore question of reinstatement does not survive.
14. Further, it has also emerged that the respondent no. 2 i.e. Mr. V.A. Makwana has crossed employable age and therefore in his case direction to reinstate the claimant does not survive.Page 6 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022
C/SCA/6876/2022 ORDER DATED: 15/07/2022 14.1 So far as respondent no. 3 i.e. Mr. F.S. Chauhan is concerned in view of the order dated 15.9.2008 the said claimants is already reinstated and that therefore any order with regard to the said direction is not required to be passed.
15. Having regard to the fact that the breach of statutory provision by employer is established and also having regard to the fact that the said claimant i.e. Mr. Chauhan is already reinstated, the direction to reinstate the said claimant does not warrant any interference by this Court.
16. This leaves behind order directing the petitioner to pay 50% backwages to claimant Mr. D.L. Suvagiya, Mr. V.A. Makwana i.e. present respondent nos. 1 and 2 and to treat their service continuous.
17. Having regard to the fact that the said claimants were engaged without following procedure prescribed by law and also having regard to the fact that the total tenure of the service by said claimants was not more than 4 to 5 years, the direction granting continuity of service and / or 50% backwages cannot be sustained.
Page 7 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022C/SCA/6876/2022 ORDER DATED: 15/07/2022
18. In view of the persons who were engaged without following procedure prescribed by law and who had not completed service of more than 4 to 5 years before they were relieved and that the persons who were engaged on adhoc and daily wage basis, the order directing the employer to treat their service continues for entire duration cannot be sustained.
18.1 Such direction would entail several other consequences and benefit to which the claimants would otherwise not be entitled. Therefore, said direction is set aside."
7. It is in light of the award of the Labour Court being so confirmed that the petitioner claimed the benefit of the resolution dated 17.10.1988. When the order of the learned Single Judge in SCA No. 8714 of 2008 was challenged before the Division Bench of this court, the Division Bench considered the order of the learned Single Judge which denied continuity of service. The Division Bench in para 4.1 onwards while considering the decisions as referred to in paras 6 and 6.1 held as under:
"4.1 The third aspect which was really Page 8 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022 C/SCA/6876/2022 ORDER DATED: 15/07/2022 interjected by learned Single Judge was about grant of continuity. The Labour Court in its judgment and award granted continuity of service to all the workmen. The direction to grant continuity of service came to be set aside by learned Single Judge. He reasoned in paragraph No.18 that, "In view of the persons who were engaged without following procedure prescribed by law and who had not completed service of more than 4 to 5 years before they were relieved and that the persons who were engaged on adhoc and daily wage basis, the order directing the employer to treat their service continues for entire duration cannot be sustained.".
5. The direction of reinstatement of the workmen issued by the Labour Court and confirmed by the learned Single Judge was confined on the finding that there was a breach of Sections 25F, 25G and 25H of the Industrial Disputes Act. It is trite principle that reinstatement when granted, in all ordinary circumstances, would accompany with grant of continuity of service. The reasoning that services of the workmen were only of four to five years or that they were the persons engaged in the ad hoc capacity, were not the Page 9 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022 C/SCA/6876/2022 ORDER DATED: 15/07/2022 valid or germane reasons in eye of law to set aside the benefit of continuity of service granted to them by the Labour Court.
6. In Gurpreet Singh v. State of Punjab and Haryana [(2002) 9 SCC 492], while the appellate court had directed reinstatement of the employee, the claim for arrears of salary was denied and it was further provided that the plaintiff would not be entitled to get the benefit of continuity of his service. The Supreme Court stated that once the plaintiff was directed to be reinstated in service upon setting aside the order of termination, continuity of service could not have been denied. The Supreme Court proceeded to observe, " ... ... ... 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 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 Page 10 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022 C/SCA/6876/2022 ORDER DATED: 15/07/2022 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." (Para 3) 6.1 Also in Nandkishore Shravan Ahirrao v. Kosan Industries (P) Ltd. [AIR 2020 SC 1776], the proposition of law was reiterated. In that case, the Labour Court had not specifically denied the continuity of service. The Supreme Court observed that the appellant would be entitled to continuity of service. It was stated in paragraph No.7 "Ex facie, the Labour Court having awarded reinstatement to the appellant, continuity of service would follow as a matter of law.".
7. In view of above, the direction of the learned Single Judge in impugned order setting aside the benefit of continuity granted to the appellantsworkmen is not sustained. The benefit of continuity accorded by the Labour Court would hold to the benefit of the appellants and all the consequential benefits to the appellants which may become payable by virtue of the judgment and award of the Labour Page 11 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022 C/SCA/6876/2022 ORDER DATED: 15/07/2022 Court would be together with continuity of service.
The Letters Patent Appeal is allowed in part to the aforesaid extent."
8. Considering all these aspects and also the fact that a co-employee of the same reference had approached this court and succeeded by oral order dated 02.03.2022 which reads as under there is no reason as to why the petitioners shall also not be entitled to the benefits including terminal benefits on the basis of they having been entitled to the benefits of the resolution dated 17.10.1988.
"1. Rule returnable forthwith. Mr. Meet Thakkar, learned Assistant Government Pleader waives service of notice of Rule for respondents.
2. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today.
3. Heard Mr. Krishnan Ghavariya, learned counsel for the petitioner and Mr. Meet Page 12 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022 C/SCA/6876/2022 ORDER DATED: 15/07/2022 Thakkar, learned Assistant Government Pleader for the respondent - State. Perused the record.
4. The prayer in this petition is with regard to grant the benefits of the Resolution dated 17.10.1988 to the petitioner who was working in the Forest Department as a Daily Wager. He was appointed in the year 1981. His services were terminated in the year 1985. The petitioner approached the labour Court. By an award dated 15.2.2008, the labour Court, Bhavnagar in the Reference (LCB) No.623 of 1987 directed that the present petitioner be reinstated. The award of the labour Court was modified, inasmuch as, the direction granting continuity of service was set aside. The petitioner approached the Division Bench of this Court by way of filing Letters Patent Appeal No.1132 of 2018. The Division Bench of this Court, by an order dated 23.11.2021 set aside the order of the learned Single Judge and restored the benefit of continuity of service specifically observing that all the consequential benefits shall be granted to the appellant which become payable by virtue of the judgment and award of the labour Court.
5. It is in pursuance of this direction of the Page 13 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022 C/SCA/6876/2022 ORDER DATED: 15/07/2022 Division Bench dated 23.11.2021 passed in Letters Patent Appeal No.1132 of 2018, which restored the benefits of continuity of service the petitioner as prayed for the benefits of the Resolution dated 17.10.1988, the petition is allowed on the same terms. The respondents are directed to extend the benefits of the Resolution dated 17.10.1988 on the basis of the award of the labour Court having granted continuity of service. While computing and extending such benefits, the State shall consider the petitioner in accordance with the Resolution dated 15.9.2014 by virtue of the judgment in the case of State of Gujarat v. PWD Employees Union reported in 2013(2) GLH 692. Since the petitioner has retired on 30.4.2019, the pensionary benefits, if any, shall also be considered in accordance with the directions hereinabove.
6. The compliance of the direction be carried out by respondent authorities within a period of eight weeks from the date of receipt of copy of this order.
7. Rule is made absolute to the aforesaid extent. Direct Service is permitted. No costs."Page 14 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022
C/SCA/6876/2022 ORDER DATED: 15/07/2022
9. Accordingly, the petition is allowed. The respondents are directed to extend the benefits of the Government Resolution dated 17.10.1988 to the petitioners on the basis of the award of the Labour Court having granted continuity of service. While computing and extending such benefits, the respondent shall consider the petitioner's case by virtue of judgment rendered in State of Gujarat v. PWD Employees Union reported in 2013(2) GLH 692. Since the petitioner no.
2 has died, the heirs of the deceased shall not only get the benefits of the resolution but their pensionary benefits shall also be revised accordingly and they shall be paid on the consideration that they were entitled to the benefits of the resolution dated 17.10.1988. The entire exercise including payment as directed above shall be completed within a period of twelve weeks from the date of receipt of the writ of the order of this court. Rule is made absolute accordingly. Direct service is permitted.
(BIREN VAISHNAV, J) DIVYA Page 15 of 15 Downloaded on : Mon Jul 18 21:58:51 IST 2022