Gujarat High Court
Jethaji Punjaji Thakore vs Exeucutive Engineer & on 8 July, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11982/2001 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11982 of 2001
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JETHAJI PUNJAJI THAKORE....Petitioner(s)
Versus
EXEUCUTIVE ENGINEER & 1....Respondent(s)
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Appearance:
MR PH PATHAK, ADVOCATE for the Petitioner(s) No. 1
MR PR NANAVATI, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/07/2016
ORAL ORDER
By this writ petition under Article 226 of the Constitution, the petitioner serving with the District Panchayat, Mehsana, in the Tubewell Division, has prayed for the following reliefs, "A. This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or Certiorary or other appropriate writ, order or direction, declaring the impugned order issued by the Respondent No.2 transferring the petitioner from Kadi to Kutch District as illegal, arbitrary, unjust and violative of Articles 14 & 16 of the Constitution of India and be pleased to quash and set the same and direct the respondents to continue the petitioner at Kadi in Mehsana District.
B. Be pleased to declare that transfer the petitioner outside the District is not the condition of service of petitioner and therefore, declare the impugned order of transfer of petitioner as malafide exercise of power and therefore be pleased to quash and set aside the same and direct the respondents to continue the petitioner at, Kadi and direct the responders to pay special cost and compensation to the petitioner for exercising the power of Page 1 of 5 HC-NIC Page 1 of 5 Created On Wed Jul 13 00:56:48 IST 2016 C/SCA/11982/2001 ORDER malafide by the respondents.
C. Be pleased to direct the respondents to extend the benefits of Resolution dt. 17.10.1988 to the petitioner from retrospective date and pay arrears with all consequential benefits to the petitioner with 18% interest.
D. Be pleased to declare that petitioner is entitled to minimum of pay scale with permissible allowances of Class IV from the initial date of appointment and declare that denying the minimum of the pay scale is unjust, arbitrary, illegal and discriminatory and be pleased to direct the respondents to pay all arrears of salary to the petitioner form initial date of appointment with 18% interest.
E. Pending admission and final disposal of this petition, be pleased to suspend implementation and operation of the impugned order of transfer at Annexure-C and direct the respondetns to continue the petitioner at Kadi and further extend to him the benefits of Resolution dt. 17.10.88 forthwith.
F. Pending admission and final disposal of this petition, be pleased to suspend the order of transfer of petitioner and allow the petitioner to discharge duties under respondent no.2 and direct the respondents to pay minimum of pay scale with permissible allowances payable to the permanent watchman, to the petitioner."
2. The facts of the case may be summarised as under.
2.1 The petitioner was appointed by the Panchayat in 1988 on the post of Watchman. After about four years of service, his services came to be terminated in 1992. The termination led to a Reference No. 454 of 1993 before the labour court at Kalol. By Award dated 27th August, 1998, the Panchayat was directed to reinstate the petitioner in service.
2.2 It appears that the Award passed by the labour court was challenged by the Panchayat by filing Special Civil Application NO. 1542 of 1999. The said Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Jul 13 00:56:48 IST 2016 C/SCA/11982/2001 ORDER petition was ordered to be rejected by order dated 18.01.2000.
2.3 It appears that the order passed by the learned single judge was challenged by filling the Letters Patent Appeal. I am told that the appeal was ordered to be dismissed.
3. Despite the Award passed by the labour court and the rejection of the writ application as well as dismissal of the appeal filed by the Panchayat, the petitioner was not reinstated in service and therefore he had to come back to this court by filling the Special Civil Application No. 2184 of 2000. On 29th March, 2000, the following order was passed, "Heard learned advocate Mr.Pathak for the petitioner. According to Mr. Pathak, the labour Court, Kalol has passed award in reference No.454of f 1993 dated 27th August, 1998 directing the reinstatement withcontinuity of service and with full back wages for the intervening period. Said award has been challenged by the respondent before this Court by filing the special civil application no.1542 of 1999 and the said petition has been summarily rejected by this court by order dated 18th January, 2000. Inspite of that fact, the respondent is not implementing the said award. In view of these facts, Rule. By way of ad interim order, the respondents nos. 1 and 2 are directed to reinstate the petitioner in service within three weeks from today. Notice as to interim relief returnable on 26th April, 2000."
3.1 It appears that the Special Civil Application No. 2184 of 2000 came to be disposed of vide judgment and order dated 19.12.2000 directing the Panchayat to comply with the award passed by the labour court.
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4. The issue before me is very limited. It appears that in the Award there is no reference to the effect that the reinstatement shall be with continuity in service.
5. Let me assume for a while that the labour court has not clarified to that extent. Still the law is that whenever there is reinstatement by the labour court, it is with continuity in service. I may quote the observations made by this court in the case of Pravinkumar Nanalal Trivedi vs Amreli District Panchayat in Special Civil Application No. 2796 of 2015 decided on 31.07.2015.
"11. Even if the earlier part of the service is not clubbed with the later part of the service, the petitioner has almost put in 12 years of service and he would be otherwise entitled to the benefit of the Government Resolution, dated 17.10.1988 in view of the decision of the Supreme Court in the case of 'State of Gujarat & Ors. Vs. PWD Employees Union and Ors.' reported in 2013 (2) GLH
692. The whole idea to club the earlier service is to derive the benefit as provided in Clause IV of the Government Resolution. The daily-wagers and semi skilled workers who have service of more than 15 years would be considered as a permanent worker and such semi skilled workers would get the current pay-scale of a skilled worker along with the dearness allowance, local city allowance and house rent allowance.
12. The Supreme Court in the case of 'Gurpreet Singh Vs. State of Punjab' reported in 2002 (9) SCC 492 took the view that the continuity of service could not be denied once the person is directed to be reinstated in service on setting aside the order of termination. This is exactly what the labour Court has observed in its order. It is difficult for me to take the view that his appointment with the respondent no.1 would be a fresh appointment.
13. The same view has been taken by a learned Single Judge of this Court in the case of 'Nagjibhai Paljibhai Zala & Ors. Vs. State of Gujarat' reported in 2011 (2) GLR 1592."Page 4 of 5
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6. In view of the above, this writ application is disposed of with a direction to the respondents that continuity in service shall be given to the petitioner and after giving such continuity, if the petitioner is found entitled to any other benefits, the same shall be extended in his favour. After giving continuity in service, if he is otherwise found entitled to receive the benefits of the Government Resolution 17.10.1988, then the same shall be given to him.
7. With the above, this petition is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) cmjoshi Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Jul 13 00:56:48 IST 2016