Gujarat High Court
Maganbhai J Makwana S/O Jerambhai ... vs State Of Gujarat & on 24 July, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/9690/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9690 of 2015
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MAGANBHAI J MAKWANA S/O JERAMBHAI MAKWANA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ANAND B GOGIA, ADVOCATE for the Petitioner(s) No. 1
MS KAJAL L KALWANI, ADVOCATE for the Petitioner(s) No. 1
MR BB GOGIA, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM, AGP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 24/07/2015
ORAL ORDER
RULE returnable forthwith. Mr.Goutam, the learned AGP waives service of notice of rule for and on behalf of the respondents.
By this writ-application under Article 226 of the Constitution of India, the petitioner, a daily wager working with the Roads and Buildings Department, has prayed for the following reliefs :
"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to quash and set-
aside the impugned decision dated May 11, 2015 taken by the respondent(s).
Page 1 of 7 C/SCA/9690/2015 ORDER(C) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, directions, orders to the respondent(s) to grant benefits as available to the petitioner under Government Resolution dated October 17, 1988 considering his service as continuous from the date of his initial appointment i.e. from 1981.
(D) Your Lordships may be pleased to direct the respondent(s) to treat the petitioner as permanent employee from the date he has completed ten years of service from the date of initial appointment in 1981 in terms of Government Resolution dated October 17, 1988 and grant him all the consequential benefits, including notional pay fixation, seniority, difference amount arrears, pensionary benefits etc. interest at the rate of 9% be awarded to the petitioner from the respondent from the date as due."
The petitioner was appointed as a daily wager under the Deputy Executive Engineer, Gondal, in the year 1981. His services were terminated on 25th May 1984 by the respondents while he was working. The petitioner raised an industrial dispute against his illegal termination. The case was referred to the Labour Court, Rajkot, vide Reference (LCR) No.136 of 2009 (old Reference (LCR) No.107 of 2007 = Reference (LCR) No.206 of 1996). The said reference was adjudicated and an award was passed dated 21st May 2010 ordering reinstatement of the petitioner.
It appears that the award was challenged by the respondents herein by way of a Special Civil Application No.2408 of 2012, which was dismissed summarily vide order dated 22nd February 2012. The respondents, vide order dated 9th June 2014, resinstated the petitioner in service.
The short point involved in this writ-application is with Page 2 of 7 C/SCA/9690/2015 ORDER regard to the benefits of the Government Resolution dated 17th October 1988. Those benefits are :
"(i) They are entitled to daily wages as per the prevailing Daily Wages. If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays.
(ii) Daily wagers and semi skilled workers who has service of more than five years and less than 10 years are entitled for fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and deduction of provident fund.
(iii) Daily wagers and semi skilled workers who has service of more than ten years but less than 15 years are entitled to get minimum pay scale at par with skilled worker along with dearness allowance as per prevailing standard, for his working days. Moreover, such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. He/she will be eligible for getting medical allowance and deduction of provident fund.
(iv) Daily wagers and semi skilled workers who has service of more than 15 years will be considered as permanent worker and such semi skilled workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get benefit as per the prevailing rules of gratuity, retired salary, general provident fund. Moreover, they will get two optional leave in addition to 14 misc. leave, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The daily wage workers and semi skilled who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly."Page 3 of 7 C/SCA/9690/2015 ORDER
The case of the petitioner is that he is being denied the benefits of the Government Resolution dated 17th October 1988 on the premise that his reinstatement in service will be construed as a fresh appointment, and if that be so, then he is not entitled to the benefits of the said Government Resolution.
This issue is no longer res integra in view of the decision of the Supreme Court in the case of Gurpreet Singh v. State of Punjab and others, (2002)9 SCC 492. The Supreme Court observed in paragraphs 2 and 3 as under :
"2. The Plaintiff is in appeal against the impugned judgment of the High Court of Punjab & Haryana in a second appeal. The plaintiff's services stood terminated and he filed the suit for declaring the order of termination null and void. The suit was dismissed. The lower appellate Court, however, on re-appreciation of the materials on record, came to the conclusion that the order passed by the D.I.G. must be held to be illegal and consequently directed that the plaintiff should be reinstated in service. Having directed so, the first appellate court categorically held that the plaintiff will not be entitled to any arrears of salary for the period for which he has not served. The plaintiff assailed the appellate decree by filing a second appeal claiming that he would be entitled to the arrears of salary. The High Court by the impugned order not only confirmed the decree of the lower appellate court that the plaintiff will not be entitled to any arrears salary, but also further added that the plaintiff will not get his continuity of service. The plaintiff, therefore, is in appeal before this Court.
3. Having heard the learned counsel for the parties and on examining the materials on record, we fail to understand how the continuity of service could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. 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 Page 4 of 7 C/SCA/9690/2015 ORDER 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 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. "
The case of Gurpreet Singh (supra) and other decisions of the Supreme Court have been considered by this Court in the case of Nagjibhai Paljibhai Zala and others v. State of Gujarat, (2011)2 GLR 1592. I may quote the observations made by a learned Single Judge in paragraphs 10 and 11 as under :
"10. I have considered submissions made by learned advocates for both parties. I have also perused award passed by labour court wherein labour court has directed respondent establishment to reinstate petitioners in service on their original post within thirty days from date of publication of award without back wages for interim period and has not denied relief of continuity of service specifically while granting relief of reinstatement on original post held by respective workmen. I have also considered fact that award made by labour court in aforesaid references dated 10th July, 2008 has not been challenged by present respondent State of Gujarat before Higher Forum.
11. Therefore, in light of this back ground, considering decisions which have been referred to and relied upon by learned advocate Mr. Devnani for petitioners, according to my opinion, reinstatement includes continuity of service and accordingly workmen are entitled for benefits flowing from continuity of service. For that, labour court has not issued any directions against present petitioners. Therefore, award passed by Labour Court in Reference No. 75 of 2002 to 79 of 2002 dated 10 th July, 2008 is hereby modified to the effect that each petitioner is entitled for reinstatement on original post with continuity of service without back wages for interim period.Page 5 of 7 C/SCA/9690/2015 ORDER
Accordingly, aforesaid award is modified and each petitioner is entitled for relief of continuity of service on original post without back wages for interim period. Award is accordingly modified and directed to Respondents to extend the benefits of continuity of service with consequential benefits as available to each petitioners. Rule is made absolute to the extent indicated herein above with no order as to costs."
Thus, the position of law seems to be well-settled. The continuity of service cannot be denied once the person is directed to be reinstated in service on setting aside the order of termination. In the present case, it appears that the Labour Court, while passing the award, has not said in so many words that the petitioner is to be reinstated in service with continuity of service. However, in light of the decision of the Supreme Court, the reinstatement in service will have to be construed with continuity of service.
In view of the clear settled position of law, the respondents are directed to reconsider the issue as regards the benefits of the Government Resolution dated 17th October 1988 referred to above.
The respondents are directed to undertake this exercise at the earliest and complete the same within a period of eight weeks from the date of receipt of the writ of the order.
While taking an appropriate decision in the matter, the respondents shall bear in mind the observations made by this Court, including the case-law referred to in this order.
The continuity of service shall be for the purpose of the benefits of the Government Resolution dated 17th October Page 6 of 7 C/SCA/9690/2015 ORDER 1988 only.
With the above, this petition is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 7 of 7