Gujarat High Court
Kanjibhai Lavjibhai Rathod vs State Of Gujarat on 21 February, 2024
NEUTRAL CITATION
C/SCA/16042/2016 JUDGMENT DATED: 21/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16042 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KANJIBHAI LAVJIBHAI RATHOD & ORS.KANJIBHAI LAVJIBHAI RATHOD
Versus
STATE OF GUJARATSTATE OF GUJARAT & ORS.
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Appearance:
MR NILESH M SHAH(780) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5
MR ADITYA JADEJA AGP for the Respondent(s) No. 1
MS HARSHAL N PANDYA(3141) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2,4,5
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 21/02/2024
ORAL JUDGMENT
1. By way of present petition, under Articles 14, 16 and 226 of the Constitution of India, the petitioners have Page 1 of 11 Downloaded on : Tue Feb 27 20:33:56 IST 2024 NEUTRAL CITATION C/SCA/16042/2016 JUDGMENT DATED: 21/02/2024 undefined prayed inter alia that:-
"17(A) to issue writ of certiorari and / or any other writ or writs or orders or directions.
(B) to direct the Respondents to give the benefit of Resolution dt.17-10-88 Ann-G to the petitioners as a legal heirs of deceased Kanjibhai Lavjibhai Rathod with effect from 01-10-88 notionally up to 29-03-07 and further be pleased to direct the Respondents to give difference of salary from 30-03-07 onwards till 11-11-09. (C) to direct the Respondents to give retirement benefits of deceased Kanjibhai Lavjibhai Rathod like Family pension, Gratuity, leave encashment, etc. to the Petitioners with 12% interest from 01-12-09 till its realization.
(D) to direct the Respondents to consider for giving compassionate appointment to one of the Petitioner as a legal heir of deceased Kanjibhai Lavjibhai Rathod. (E) during the pendency of this petition by way of interim relief to direct the Respondents to consider the notice of the petitioner dt. 16-06-16 Annexure-D for giving benefit of Resolution dt. 10-03-2000 Annexure-F and Resolution dt.17-10-88 Annexure-G. (F) to grant any other relief as this Hon'ble Court may deems fit in the interest of justice.
(G) to allow this petition with costs."
2. The petitioners who are legal heirs of the deceased Kanjibhai Lavjibhai Rathod have filed present petition to get the benefit under the Government Resolution dated 17.10.1988 and also to get the compassionate appointment on the ground of death of the original Page 2 of 11 Downloaded on : Tue Feb 27 20:33:56 IST 2024 NEUTRAL CITATION C/SCA/16042/2016 JUDGMENT DATED: 21/02/2024 undefined workman i.e. deceased Kanjibhai Lavjibhai Rathod.
3. The brief facts giving rise to the present petition are that the deceased-petitioner along with other workmen joined the service of the respondent no.4, as a daily wager labourer and they were working continuously since 1978. However, the respondent No. 4 has terminated the service of the petitioner-deceased workman on 28.2.1985. Therefore, the deceased-petitioner has raised an industrial dispute and the same was adjudicated in Reference (LCS) No. 117 of 2000 and the action of the respondent no.4 was challenged. The respondent No.4 had also orally terminated the services of other three co- workmen of the deceased. Hence, they had also raised the dispute for the same. The Labour Court, Surendranagar had by common award dated 29.3.2007 partly allowed the said reference and directed the respondent Nos. 2 to 4 to reinstate the deceased Kanjibhai Lavjibhai Rathod along with other co-workmen on their original post without back wages. Page 3 of 11 Downloaded on : Tue Feb 27 20:33:56 IST 2024
NEUTRAL CITATION C/SCA/16042/2016 JUDGMENT DATED: 21/02/2024 undefined 3.1 Against the said order of Labour Court, Surendranagar the respondent Nos. 3 and 4 had filed a Special Civil Application No.1607 of 2009 to 1610 of 2009 and allied petitions which were withdrawn on 24.2.2009 with a view to file Restoration Application before the Labour Court. The respondent Nos.3 and 4 had filed Restoration Application being I.D. Miscellaneous Application No. 6 of 2009 before the Labour Court, Surendranagar against the deceased petitioner. During pendency of the Restoration Application Kanjibhai Lavjibhai Rathod expired on 12.11.2009. Therefore, the legal heirs of the deceased workman were brought on record and the said Restoration Application came to be withdrawn by respondent Nos. 3 and 4.
3.2 The respondent Nos. 3 and 4 had not paid 100% wages from 29.3.2007 to 11.11.2009, hence the legal heirs of the deceased had filed Recovery Application No.74 of 2013 and claiming wages as per the minimum wage for the period of 29.03.2007 to 11.11.2009. The said Recovery Application was partly allowed by judgment Page 4 of 11 Downloaded on : Tue Feb 27 20:33:56 IST 2024 NEUTRAL CITATION C/SCA/16042/2016 JUDGMENT DATED: 21/02/2024 undefined dated 27.04.2015 and direction was given to respondent Nos. 2 to 4 to pay the amount of due payable along with Rs.1000/- towards cost. The said amount was also not paid and therefore, legal heirs of the deceased had filed Recovery Application No.5 of 2015 under Section 33(C) (1) of the Industrial Disputes Act 1957. The said Recovery Application No. 5 of 2015 came to be partly allowed by order dated 14.3.2016 and ultimately the respondents have paid the due amount.
4. Heard Mr. N.M. Shah, learned Counsel for the petitioners, Ms. Harshal Pandya, learned Counsel for the respondent No.3 and Mr. Aditya Jadeja, learned Assistant Government Pleader for respondent No.1.
5. Mr. Shah, learned Counsel for the petitioners has submitted that in similar facts of the case, one of the co- workman of the petitioner has approached this Hon'ble Court by way of preferring Special Civil Application No.18154 of 2015. The said petition came to be allowed by Co-ordinate Bench of this Court vide order dated Page 5 of 11 Downloaded on : Tue Feb 27 20:33:56 IST 2024 NEUTRAL CITATION C/SCA/16042/2016 JUDGMENT DATED: 21/02/2024 undefined 22.12.2016. He has further submitted that the said petition was carried further by respondent District Panchayat before the Division Bench of this Court by preferring Letters Patent Appeal No.485 of 2017. The said Appeal came to be dismissed by the Division Bench of this Court vide order dated 20.7.2021. 5.1 Mr. Shah, learned Counsel for the petitioners has submitted that the said decision dated 20.7.2021 of the Division Bench came to be challenged before Hon'ble Apex Court by preferring Special Leave to Appeal (C) No. 2116 of 2022 and Hon'ble Apex Court on 22.1.2024 dismissed the said Special Leave Petition being Special Leave to Appeal (C) No. 2116 of 2022.
5.2 Mr. Shah, learned Counsel for the petitioners has further submitted that one other Special Civil Application No. 14926 of 2021 came to be preferred by other co- workman of the petitioner-deceased and the same was also decided by the coordinate bench of this Court on 2.2.2024. He has further submitted that the issue Page 6 of 11 Downloaded on : Tue Feb 27 20:33:56 IST 2024 NEUTRAL CITATION C/SCA/16042/2016 JUDGMENT DATED: 21/02/2024 undefined involved in present petition is covered by the order passed this Hon'ble Court and confirmed by Hon'ble Apex Court and therefore, the petitioner-deceased is entitled to get the benefits prayed in this petition and extended in the case of Danabhai Kalabhai and other and Premben Hamirbhai Gohil who were similarly situated to petitioner-deceased namely Kanjibhai Lavjibhai Rathod.
6. Ms. Harshal Pandya, learned Counsel for the respondent No.3 has referred to and relied upon the affidavit-in-reply filed by the respondents and order dated 24.2.2009 in Special Civil Application No.1607 of 2009 to 1610 of 2009 and allied petitions and submitted that in view of the facts and circumstances of the case, present petition may not be entertained.
6.1 Ms. Harshal Pandya, learned Counsel for the respondent No.3 however, has candidly submitted that now since the Hon'le Apex Court has confirmed the order passed by this Court in case of the co-workman of the deceased Kanjibhai lavjibhai Rathod, she is not in a Page 7 of 11 Downloaded on : Tue Feb 27 20:33:56 IST 2024 NEUTRAL CITATION C/SCA/16042/2016 JUDGMENT DATED: 21/02/2024 undefined position to defend the case.
7. It appears that one of the co-employee of the petitioner whose reference has been decided by teh learned Labour Court vide common award dated 29.3.2007, had approached this Court by preferring Special Civil Application No. 18154 inter alia praying that the respondents may be directed to consider teh case of the applicant therein for grant of benefits under the GR dated 17.10.1988.
8. At this stage, it would be pertinent to mention that even in the said petition, the petitioner therein had sought for grant of benefits notionally from 01.10.1988 up to 29.03.2007. It would also appear that in the present case also, the petitioner while seeking for grant of benefit under the GR dated 17.10.1988 has inter alia submitted that he may be entitled to benefits from 01.10.1988 to 29.03.2007 on notional basis.
9. It would appear that a learned Coordinate Bench of this Court (Coram:- Ms.Sonia Gokani, J. as her Lordship Page 8 of 11 Downloaded on : Tue Feb 27 20:33:56 IST 2024 NEUTRAL CITATION C/SCA/16042/2016 JUDGMENT DATED: 21/02/2024 undefined then was) vide decision dated 22.12.2016 had been pleased to allow the writ petition more particularly by holding that the services of the petitioner therein be treated as continuous. It would appear that the said decision had not been interfered with by the Hon'ble Division Bench of this Court (Coram: Mr.J.B.Pardiwala J. his Lordship then was and Ms.Vaibhavi D. Nanavati, J.) in Letters Patent Appeal No.485/2017 vide decision dated 20.07.2021. It would further appear that the District Panchayat had sought to challenge the order of the Hon'ble Division Bench before the Hon'ble Supreme Court and whereas, vide decision dated 22.01.2024 the Hon'ble Apex Court had been pleased to dismiss the SLPs preferred by the Panchayat.
10. Keeping in view the above circumstances more particularly since it appears that in case of identically situated co-employee who was declared to be entitled for benefit under the GR dated 17.10.1988 more particularly by treating his service as continuous and whereas, the same not having been interfered with by the Hon'ble Page 9 of 11 Downloaded on : Tue Feb 27 20:33:56 IST 2024 NEUTRAL CITATION C/SCA/16042/2016 JUDGMENT DATED: 21/02/2024 undefined Division Bench as well as the Hon'ble Apex Court, therefore, the same benefit needs to be accorded to the petitioner herein.
11. Having regard to the above observations and in view of the decision of Hon'ble Apex Court in Special Leave to Appeal(C) No. 2116 of 2022 decided on 22.1.2022 and decisions of this Court in Special Civil Application No.14926 of 2021 dated 2.2.2024 and 18154 of 2016 dated 22.12.2016, the following directions are passed:-
(i) The respondent nos.2 and 3 shall calculate the benefits available to the deceased-petitioner as per the GR dated 17.10.1988 by treating the services of the deceased-petitioner as being continuous from his original date of entry i.e. from the year 1978.
(ii) The respondents shall also take into account the fact that the decease-petitioner has voluntarily applied for grant of benefit from 01.10.1988 to 29.03.2007 notionally. The deceased-petitioner would be entitled to all other benefits in actuals and whereas, appropriate calculation and appropriate Page 10 of 11 Downloaded on : Tue Feb 27 20:33:56 IST 2024 NEUTRAL CITATION C/SCA/16042/2016 JUDGMENT DATED: 21/02/2024 undefined disbursement shall be done by the respondents in favour of the legal heirs of the deceased-petitioner within a period of ten weeks from the date of receipt of this order.
(iii) Liberty is reserved in favour of the legal heirs of the petitioner to challenge the same in case of difficulty.
12. With the above observations and directions, the present petition stands disposed of. Rule is made absolute to the aforesaid extent.
Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 11 of 11 Downloaded on : Tue Feb 27 20:33:56 IST 2024