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2021 DIGILAW 1207 (GUJ)

TUSHAR NALINKANT PATHAK v. STATE OF GUJARAT

2021-12-15

A.S.SUPEHIA

body2021
ORDER : 1. With consent of learned advocates appearing for the respective parties, the main matter is taken up for hearing. 2. In the present writ petition, the present has been prayed for quashing and setting aside the impugned order dated 23.10.2017, by which the petitioner has been denied the benefits of Government Resolution dated 17.10.1988 and further not regularizing the petitioner in service, even after completion of more than 15 years of service. 3. The facts which are not in dispute is that the petitioner was engaged as a daily wager at Salinity Control, Sub-Division, Bhavnagar on 01.06.1991. The service of the petitioner was illegally terminated vide order dated 01.02.1993. The petitioner has challenged the said order of illegal termination before the Labour Court, Bhavnagar by filing a reference being Reference (L.C.B.) No.1 of 2001, which came to be partly allowed vide order dated 18.05.2010 and the petitioner was granted reinstatement in service with continuity of service with 10% back wages with all consequential benefits. 3.1 Being aggrieved by the aforesaid award dated 18.05.2010 passed by the Labour Court, Bhavnagar, the respondents had filed Special Civil Application No.13692 of 2010, which was admitted by this Court and the petitioner was getting the benefits of Section 17B of the Industrial Disputes Acct, 1947. This Court vide order dated 07.01.2013 partly allowed the said petition filed by the respondents and confirmed the order of reinstatement in service of the petitioner with continuity of service and order of back wages was quashed and set aside. 3.2 It is the case of the petitioner that thereafter, the petitioner reported for duty on 11.01.2013 after the order passed by this Court but respondent Nos.2 and 3 did not permit him to join the duties at the relevant time, thereafter the petitioner had once again reported on duty with resumption letter dated 19.02.2013, however this time also, he was not permitted to resume his duty. Therefore, the petitioner issued a legal notice to the respondents on 18.03.2013. Thereafter the petitioner was reinstated at the Office of Executive Engineer, Salinity Control Sub-Division, Bhavngar vide Office Order dated 18.06.2013. Therefore, the petitioner issued a legal notice to the respondents on 18.03.2013. Thereafter the petitioner was reinstated at the Office of Executive Engineer, Salinity Control Sub-Division, Bhavngar vide Office Order dated 18.06.2013. 3.3 Thereafter, the petitioner made a representation dated 11.06.2015 to the respondent No.2 for fixation of his salary and further to give the benefit of Government Resolution dated 17.10.1988, which inter alia entitles to the employee upon completion of 5, 10 and 15 years of service, for the benefits of regular pay-scale in regular cadre along with all other consequential benefits, as stated in the Government Resolution dated 17.10.1988. The said representation was rejected vide order dated 29.06.2015. 3.4 Being aggrieved by the same, the petitioner approached this Court by filing Special Civil Application No.3703 of 2016. This Court vide order dated 26.04.2016 directed the respondent to re-consider the case of the petitioner in view of the decisions of the Supreme Court as well as this Court, more particularly the judgment dated 28.03.2016 passed in Special Civil Application No.18632 of 2015. It is further directed that the said direction is required to be complied with within a period of one month from the date of receipt of order of this Court. 3.5 The respondent authority vide order dated 11.01.2017 extended the benefits to the petitioner only after completion of five years in service from 18.05.2010. Thereafter, the petitioner again made a representation, inter alia, stating that his date of appointment should be considered from 1991 and not from 2015 and his pay is required to be revised accordingly. 3.6 The respondent vide order dated 01.09.2017 canceled all the benefits given to the petitioner vide Office Order dated 11.01.2017. 4. At the outset, learned advocate Mr.Mishra has submitted that the issue is squarely covered by the catena of judgments of this Court. He has placed reliance on the order dated 22.01.2019 passed in Special Civil Application No.6420 of 2017. While inviting the attention of this Court to the impugned order dated 23.10.2017, he has submitted that the benefits of the order of this Court dated 26.04.2016 passed in Special Civil Application No.3703 of 2016 conferring regular pay-scale, which has only been denied for the reason that the petitioner is appointed after the cut-off date of 01.10.1988, as specified in the Government Resolution dated 17.10.1988. He has also placed reliance on the order of Division Bench dated 18.06.2018 passed in Letters Patent Appeal No.1268 of 2017. 4.1 Learned advocate Mr.Mishra has submitted that even after the direction of the Labour Court as well as of this Court to reinstate the petitioner with continuity or service, the respondents have not given the benefit of continuity of service and by its order dated 01.06.2013, the respondents have considered the date of reinstatement in service from 18.05.2010 and not from the initial date of his appointment. 4.2 By the impugned order dated 23.10.2017, as stated herein- above, the benefits of the Government Resolution dated 17.10.1988 has not been extended to the petitioner, only for the reason that he has been appointed after the cut-off date of 01.10.1988. 4.3 Thus, Mr.Mirshra has submitted that the impugned communication may be set aside and the petitioner may be conferred the benefit flowing from the Government Resolution dated 17.10.1988. 5. In response to the aforesaid submissions, learned Assistant Government Pleader Mr.Jadeja, has submitted that the petitioner cannot be granted the benefits flowing from the Government Resolution dated 17.10.1988, since he has been appointed subsequently by the order dated 01.06.2013 with effect from 18.05.2010. 6. I heard the learned advocates appearing for the respective parties. 7. The facts as narrated here-in-above are not in dispute. the petitioner was appointed as a daily wager at Salinity Control, Sub-Division Bhavnagar on 01.06.1991, his illegal termination vide order dated 01.02.1993 was the subject matter of challenge in Reference (L.C.B.) No.1 of 2001, the Labour Court, Bhavnagar vide order dated 18.05.2010 ordered reinstatement of the petitioner in service with continuity of service with 10% back wages and all consequential benefits. The said award was subject matter of challenge by the respondent-State authority by filing a writ petition being Special Civil Application No.13692 of 2010, wherein this Court vide order dated 07.01.2013 confirmed the award passed by the Labour Court. 8. The said award was subject matter of challenge by the respondent-State authority by filing a writ petition being Special Civil Application No.13692 of 2010, wherein this Court vide order dated 07.01.2013 confirmed the award passed by the Labour Court. 8. Very surprisingly and shocking to note that despite the confirmation of the award by this Court, the respondent authority by the order dated 01.06.2013 reinstated the petitioner in service by interpreting the award illegally and reinstated the petitioner with effect from 18.05.2010 i.e. from the date of award, despite the directions issued by the Labour Court to reinstate the petitioner with continuity of service and such direction being confirmed in the writ petition by this Court filed by the State. The respondent authority has adopted a very unique and novel approach in fixing the date of reinstatement from the date of the award, though there is no direction issued either by the Labour Court or by this Court to reinstate him from the date of award. On the contrary, the award was to reinstate the petitioner with continuity of service. Once the continuity of service is granted by the Labour Court, the petitioner was required to be reinstated by giving effect to his earlier services, which he rendered from 01.06.1991 till he was terminated by the order dated 01.02.1993. Though the aforesaid order referred that he shall give an undertaking that he will not claim the benefit of the Government Resolution dated 17.10.1988, it is asserted by the learned advocate Mr.Mishra that no such undertaking was given. Even the respondent authorities have not stated in their affidavit that the petitioner has given such undertaking. 9. The order dated 11.01.2017 (Annexure-H) also reveals that the earlier services of the petitioner from 01.06.1991 to 31.01.1993 has been only considered for the purpose of pension and seniority. Thus, if the petitioner has been conferred the benefit of seniority of his earlier services, he cannot be denied the benefit of the Government Resolution dated 17.10.1988. His entire service, as noted in the order dated 11.01.2017 i.e. from 01.06.1991 to 31.01.1993 and subsequent thereto, as per Clause-1 and Clause-6 of the said order, is required to be considered for extending the benefit of the Government Resolution dated 17.10.1988. 10. His entire service, as noted in the order dated 11.01.2017 i.e. from 01.06.1991 to 31.01.1993 and subsequent thereto, as per Clause-1 and Clause-6 of the said order, is required to be considered for extending the benefit of the Government Resolution dated 17.10.1988. 10. At this stage, it would be apposite to mention the observations made by the Coordinate Bench of this Court in the order dated 22.01.2019 passed in Special Civil Application No.6420 of 2017, wherein in identical facts the workman was denied the benefit of the Government Resolution dated 17.10.1988 only for the reason that he was appointed after 01.10.1988. The facts, as noted by the Coordinate Bench in the order dated 22.01.2019, are as under:- “2.1 The ground mentioned in the impugned order for denying the benefit is that the appointment of the petitioners was after 01.10.1988, therefore, the petitioners would not be entitled to get benefits flowing from State Government Resolution dated 17.10.1988. 2. Stating only the relevant facts, the petitioners were originally appointed as Daily Wagers who were subsequently granted the benefit of ClassIII category and were given the scale of Rs.9501500 in the year 2006 as per order No.486 of 2006. Thereafter by order No.195 of 2006, the respondent granted the benefit of skilled workers to the petitioners. The petitioners have been working in the regular time scale of pay and they are being paid wages as per the 4thPay Commission recommendations at present. 3.1 It appears that the petitioners had earlier filed Special Civil Application No.13051 of 2010 and allied matters praying for revision in the basic salary as per the recommendations of the 5thand6thPay Commissions. The State of Gujarat had accepted the recommendations of the 5thand 6thPayCommissions. This petition was disposed of by this Court on 17.07.2015. Thereafter contempt petition was filed. 3. The impugned order came to be passed with reference to order dated 17.07.2015 passed in Special Civil Application No.13051 of 2010 aforementioned as well as the contempt application. The authorities took a view that the petitioners are not entitled to the revision claimed in view of the fact that their appointments were on 01.10.1988 and since their appointment was after 01.10.1988, they would not be entitled to be considered for benefits under Resolution dated 17.10.1988 and consequential benefits would not flow for them. 5. The authorities took a view that the petitioners are not entitled to the revision claimed in view of the fact that their appointments were on 01.10.1988 and since their appointment was after 01.10.1988, they would not be entitled to be considered for benefits under Resolution dated 17.10.1988 and consequential benefits would not flow for them. 5. In Kutch District Panchayat v. Mangalbhai K. Rabari, being Special Civil Application No.15670 of 2005 decided as per judgment dated 08.10.2014, in turn confirmed inLetters Patent Appeal No.1381 of 2015decided on 04.01.2016, it was observed and held in judgment dated 08.10.2014 asunder, “7. Shri Pathak, learned counsel for the respondent workmen contended that the decision of the Supreme Court as cited herein above in case of State of Gujarat Vs. PWD Employees Union & Ors (supra) would have straightway applicability to the present case. The so called in applicability of GR has been answered squarely by the Court as there are subsequent Government Resolutions clarifying such things. Besides this, in the affidavit in reply at page47 Courts attention was drawn to indicate that G.respondent. Dated 17/10/1988 is clarified and given effect to all those who are subsequently appointed also and that has been accepted as policy governing such employment thereafter. 8. Shri Pathak pointed out that learned counsel for the petitioner is not correct in contending that all were employed after GR dated 17/10/1988. In fact four were employed before that. Shri Munshaw at this stage submitted that he never meant all employees were employed after the GR and statement annexed to the employees list would clarify the situation. 11. The Court is of the considered view that the GR dated 17/10/1988 was no doubt containing reference to the future employment but the subsequent course of action and developments as it indicate that the Government continued employing daily wagers, temporary hands irrespective of those conditions which gave rise to a situation where litigations came up and hence as Shri Pathak has pointed out clarificatory GR came to be issued and over all facts & circumstances of the case indicate that the benefits of GR dated 17/10/1988 were to be extended to all , else it would have meant to Government employing unfair labour practice which would have been highly depreciable. 12. The Court is also of the view that the decision cited at the bar in case of State of Gujarat And Others Vs. 12. The Court is also of the view that the decision cited at the bar in case of State of Gujarat And Others Vs. PWD Employees Union And Others will have applicability to the facts & circumstances of the case and counsel of the petitioners submission qua some of the workmen were employed after GR dated 17/10/1988 would be of no avail as the judgment itself has answered that contention squarely.” 5.1 In PWD Employees Union through President v. State of Gujarat, beingSpecial Civil Application No.4662 of 2015, this Court relied on the aforesaid decision inKutch District Panchayat (supra).PWD Employees Union (supra)had a similar set of facts wherein also the petitioners were denied the benefits of Resolution dated 17.10.1988 on the ground that their appointments were subsequent to the date of Resolution dated 17.10.1988. 6. In view of above position of law, the petitioners could not have been denied the benefit of Resolution dated 17.10.1988 on the ground that their appointment was prior to 01.10.1988. The benefit as would flow from the resolution dated 17.10.1988 have to be made available to the petitioners with all incidents thereof. Resultantly, the petitioners who are already in time scale and are getting the 4thPayCommission would be entitled to be given the pay scales as per the 5thand 6thPay Commissions whichare accepted by the State Government for its employees. 7. As a result of above discussion, the present petition is allowed. The impugned order, being Office Order No.2 of 2016, dated 21.04.2016, passed by the Executive Engineer, Jamnagar Irrigation Department, Jamnagar, is hereby set aside. The authorities shall not deny to the petitioners the benefit of revision of pay scales from 4thPay Commissioner commendations to the 5thPay Commission recommendations as well as the pay scales as per the 6thPayCommissionrecommendations. Since the petitioners are entitled to receive the scales as revised as per the 5th and 6thPay Commission recommendations as may be admissible for them, the authorities are directed to pass necessary orders and the arrears which may arise to be paid by virtue of the present directions shall be paid within a period of eight weeks from the d a t e of receipt of writ of the present order. Rule is made absolute in the aforesaid terms. Direct service is permitted.” 11. Rule is made absolute in the aforesaid terms. Direct service is permitted.” 11. The Division Bench in the order dated 18.06.2018 passed in Letters Patent Appeal No.1268 of 2017 while dealing with the case of the respondent-workman, who was reinstated after his termination was set side with continuity of service and who was denied the benefit of the Government Resolution dated 17.10.1988, has observed thus :- “5. Thus, the upshot of the aforesaid facts and discussion is that the present respondent workman is denied the benefits flowing from the Government Resolution dated 17.10.1988 only on the ground that he had not completed 240 days in a year and his “continuity of service”, as granted by the Labour Court vide award dated 23.07.2007 and confirmed by this court, cannot be considered. The stand taken by the present appellants that the respondent - workman is not entitled to the benefits of the Government Resolution dated 17.10.1988 deserves to be deprecated. Once it has been established by this court that the respondent – workman is reinstated in service with continuity of service, the workman would be entitled to get the benefits flowing from the Government Resolution dated 17.10.1988, and such benefits cannot be denied to the respondent workman only on the ground that he has not worked for 240 days. He was forced to live without work because of his illegal termination. The appellants cannot take benefit of their illegal action. The termination of the respondent workman was found to be illegal and contrary to the provisions of the Industrial Disputes Act, 1947. The effect of continuity of service is to be conferred from the year 1996, when he was appointed as a daily wager. The impugned order dated 15.04.2016 is blissfully silent about denying the benefits of the Government Resolution dated 17.10.1988 to the workmen who have been reinstated with continuity of service. The Government Resolutions dated 17.10.1988 and 01.05.1991 envisage grant of benefits of pay fixation, pension, etc. to the daily wagers, who have completed certain number of years of service.” 12. The impugned order dated 15.04.2016 is blissfully silent about denying the benefits of the Government Resolution dated 17.10.1988 to the workmen who have been reinstated with continuity of service. The Government Resolutions dated 17.10.1988 and 01.05.1991 envisage grant of benefits of pay fixation, pension, etc. to the daily wagers, who have completed certain number of years of service.” 12. The case of the petitioner stands on the better footing since he has been conferred the benefit of seniority by the order dated 11.01.2017 and hence, his entire service is required to be considered for extending the benefit of the Government Resolution dated 17.10.1988 and he cannot be denied such benefit only for the reason that he is reinstated with effect from 18.05.2010. 13 For the foregoing reasons and analysis, the present writ petition is allowed. The impugned order dated 23.10.2017 is quashed and set aside. The respondents are directed to confer the benefits flowing from the Government Resolution dated 17.10.1988 to the petitioner and accordingly fix his pay as envisaged in the Government Resolution dated 17.10.1988 in light of the judgment of the Supreme Court in the cases of State of Gujarat Vs. PWD and Forest Employees Union (2019) 3 SCALE 642 and State of Gujarat Vs. PWD Employees Union and Ors . , (2013) 12 SCC 417 . The arrears shall accordingly be piad to him. 14. Necessary orders in terms of the directions issued herein- above, shall be passed within a period of two months from the date of receipt of this order. 15. Rule is made absolute in the aforesaid extent. 16. The connected Civil application would not survive and the same is disposed of accordingly.