Gujarat High Court
Executive Engineer & vs Dudabhai Khemabhai Makwana & on 12 July, 2016
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/492/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 492 of 2016
In
SPECIAL CIVIL APPLICATION NO. 20577 of 2015
With
CIVIL APPLICATION NO. 4972 of 2016
In
LETTERS PATENT APPEAL NO. 492 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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EXECUTIVE ENGINEER & 1....Appellant(s)
Versus
DUDABHAI KHEMABHAI MAKWANA & 1....Respondent(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Appellant(s) No. 1 - 2
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HC-NIC Page 1 of 6 Created On Fri Jul 15 01:25:48 IST 2016
C/LPA/492/2016 JUDGMENT
MR KUNTAL A JOSHI, CAVEATOR for the Respondent(s) No. 1
Mr.UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER for
respondent no.2-State.
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 12/07/2016
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) This Letters Patent Appeal is filed under Clause 15 of the Letters Patent by original respondents no.2 and 3 in Special Civil Application No.20577 of 2015, aggrieved by order dated 13.04.2016 passed by the learned Single Judge in the above petition. By the aforesaid order the learned Single Judge has allowed the writ petition with directions to the appellants herein to fix pay scale of respondent no.1- original petitioner with all consequential benefits.
2. The respondent- original petitioner, has originally joined as daily wager on 15.03.1983. His services were terminated with effect from 24.02.1986. Questioning such termination the respondent- original petitioner raised dispute under the provisions of the Industrial Disputes Act, 1947, and reference was made to the Labour Court, Palanpur. The said reference was allowed and the Labour Court passed award with a direction to reinstate him in Page 2 of 6 HC-NIC Page 2 of 6 Created On Fri Jul 15 01:25:48 IST 2016 C/LPA/492/2016 JUDGMENT service. The appellants have challenged the award by filing Special Civil Application No.20959 of 2006, which was dismissed by order dated 05.10.2006. The same was confirmed in Letters Patent Appeal No.1408 of 2006 by order dated 10.11.2006.
3. In spite of the award for reinstatement of the Labour Court and further confirmation in Letters Patent Appeal No.1408 of 2006 by order dated 10.11.2006, the appellants have not reinstated the respondent- original petitioner in service. Again the respondent- original petitioner has filed petition being Special Civil Application No.13231 of 2007. In that writ petition an order of reinstatement was passed and ultimately he was reinstated in service.
4. When benefit of Government Resolution dated 17.10.1988 to regularize services of daily wager was not extended by computing the period during which he was out of service, the the respondent- original petitioner approached this Court seeking benefit of the aforesaid Government Resolution. The learned Single Judge by recording finding that once the Labour Court ordered for reinstatement, continuity in service follows automatically, and has ordered extending benefit of Government Resolution with a direction to the appellants to fix pay scale of the the respondent- original petitioner by giving all consequential benefits.
5. Heard Shri H.S. Munshaw, learned counsel for the Page 3 of 6 HC-NIC Page 3 of 6 Created On Fri Jul 15 01:25:48 IST 2016 C/LPA/492/2016 JUDGMENT appellants, Shri Kuntal A. Joshi, learned counsel for respondent no.1, and Shri Utkarsh Sharma, learned Assistant Government Pleader for respondent no.2-State.
6. Mainly it is the case of the appellants that in absence of specific direction for extending the benefit of continuity of service as awarded by the Labour Court, the respondent- original petitioner is not entitled to benefits of Government Resolution dated 17.10.1988. It is submitted that such benefit is conferred only for the persons, who are in actual service for more than 5 years and 10 years, but not for persons, who were out of service for one reason or the other. On the other hand it is the submission of the learned counsel for respondent no.1 that once termination is held to be illegal and the Labour Court awarded reinstatement, which is confirmed by this Court, he is entitled to the benefit of continuity of service. When this matter was listed on the last occasion, it was adjourned to enable the learned counsel for respondent no.1 to get instructions and to satisfy this Court with regard to benefit of continuity of service for the period from 15.03.1983 to 24.02.1986 and for further period from the date of award of the Labour Court, viz. 20.07.2006. On instructions it is submitted by the learned counsel for respondent no.1- original petitioner that his client is willing to accept the same provided that the benefit is given by modifying the order of the learned Single Judge. It is not in dispute that as per the Government Resolution Page 4 of 6 HC-NIC Page 4 of 6 Created On Fri Jul 15 01:25:48 IST 2016 C/LPA/492/2016 JUDGMENT dated 17.10.1988, daily wagers, who have completed 5 years of service and 10 years of service were granted certain benefits. It is also clear from the said Resolution that the persons, who continued for several years on daily wage basis and for indefinite period certain benefits were granted certain benefits on completion of 5 years and 10 years respectively. In that view of the matter, we are of the view that in absence of any directions in the award of the of Labour Court with regard to continuity of service, respondent no.1- original petitioner is not entitled to the benefits for the period for which he was actually out of service. At the same time it is not in dispute that he was initially engaged as daily wager on 15.03.1983 and he was continued as such till 24.02.1986 and further he was ordered to be reinstated by the award of the Labour Court on 20.07.2006. In that view of the matter there is no reason to deny benefit of service from 15.03.1983 to 24.02.1986 and from the date of the award of the Labour Court, viz. 20.07.2006.
7. For the aforesaid reasons, we allow this Letters Patent Appeal in part, modifying the award of the learned Single Judge with directions to the appellants to extend the benefit of Government Resolution dated 17.10.1988 by extending the benefit of pay scale and other benefits available under the said Resolution to respondent no.1- original petitioner by computing the services of respondent no.1- original petitioner for the period from 15.03.1983 to 24.02.1986 and from 20.07.2006 onwards. The Page 5 of 6 HC-NIC Page 5 of 6 Created On Fri Jul 15 01:25:48 IST 2016 C/LPA/492/2016 JUDGMENT appellants shall comply with such direction and issue necessary orders within period of 6 (six) weeks from the date of receipt of this judgment. No order as to cost.
8. As the Letters Patent Appeal is disposed of no orders on the Civil Application. The Civil Application stands disposed of accordingly.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) karim Page 6 of 6 HC-NIC Page 6 of 6 Created On Fri Jul 15 01:25:48 IST 2016