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2021 DIGILAW 816 (GUJ)

RAMANBHAI MANGALABHAI BARIYA v. STATE OF GUJARAT

2021-09-13

A.S.SUPEHIA

body2021
JUDGMENT : Leave to amend. Learned advocate Mr.Dipak Dave requests for deletion of prayer at paragraph no. 8(A)(i). 1. Rule. Learned AGP waives service of notice of rule for the respondent-State. 2. In the present writ petition, the petitioners have prayed the benefit of the Government Resolution dated 17.10.1988, which is applicable to the daily wagers of all the departments of the State Government. 3. At the outset, learned advocate Mr.Dipak Dave appearing for the petitioners has submitted that the issue is squarely covered by the catena of decision of this Court. He has placed reliance on the judgment dated 22.10.2019 passed in Special Civil Application No.14096 of 2018 and allied matters and also the order dated 18.06.2018 passed in Letters Patent Appeal No.1268 of 2017 by the Division Bench. He has also placed reliance on the judgment of the Apex Court in the case of The State Of Gujarat vs. Pwd And Forest Employees Union, (2013) 12 SCC 147, (2019) 3 SCALE 642 . 4. Learned advocate Mr.Dipak Dave has submitted that the benefits arising out of the Government Resolution dated 17.10.1988 have been denied to the petitioners only for the reason that they have not completed 240 days in a year. He has submitted that the petitioners were constrained to remain out of job because of the illegal termination, which was set aside by the Labour Court, Godhra by different identical awards dated 16.02.2018 and 26.02.2018 passed in Reference (T) Nos.141, 143 and 147 of 1998, whereby the Labour Court has directed the respondent authorities to reinstate the petitioners with continuity of service and 10% back wages. He has submitted that since the Labour Court, Godhra has granted continuity of service, the respondent-State cannot deny the benefits of the Government Resolution dated 17.10.1988 merely on the ground that the petitioners have not completed 240 days. He has submitted that issue is sqarely covered by the aforementioned judgment and appropriate orders may be passed. 5. Per contra, learned AGP Mr.Sahil Trivedi has submitted that the communications may not be set aside since the petitioners have not completed 240 days in a year. He has submitted that the Government Resolution dated 17.10.1988 mandates that the workman has to complete 240 days in a year or 5 years or 15 years of service, which would make them entitle for the benefits as stated therein. He has submitted that the Government Resolution dated 17.10.1988 mandates that the workman has to complete 240 days in a year or 5 years or 15 years of service, which would make them entitle for the benefits as stated therein. While placing reliance on the affidavit filed by the State, he has submitted that the benefits of the Government Resolution dated 17.10.1988 may not confer to the present petitioners. 6. I have heard the learned advocates appearing for the respective parties. 7. The petitioners are claiming the benefits arising out of the Government Resolution dated 17.10.1988. The Supreme Court in the case of Pwd And Forest Employees Union (supra) after threadbare examination of the Government Resolution dated 17.10.1988 has directed that all the daily wagers working in different departments of the State of Gujarat are entitled to the regular pay-scale as mentioned in the said resolution. It is also held that such daily wagers would also be entitled to the other benefits such as Dearness Allowance, Leave Encashment, Higher Pay-scale etc. after completion of 5, 10 and 15 years’ of service. However, it is incumbent upon the workman to complete 240 days of aforementioned service in order to become eligible arising out of the Government Resolution dated 17.10.1988 and only those workmen, who had completed 240 days are required to be considered for extending the benefits. 8. In the present case, it is not in dispute that the petitioners were terminated from service in the year 1997, which was subject matter of challenge in Reference (T) Nos.141, 143 and 147 of 1998. The Labour Court, Godhra, by different awards, but on identical issue vide awards dated 16.02.2018 and 26.02.2018 allowed the references in part and the respondent authorities were directed to reinstate the petitioners in service with continuity of service and 10% back wages. The aforesaid award was subject matter of challenge before this Court in Special Civil Application Nos.14096, 9433 and 9432 of 2018 and this Court vide order dated 27.10.2019 confirmed the award of the Labour Court, Godhra granting reinstatement and continuity of service. The aforesaid award was subject matter of challenge before this Court in Special Civil Application Nos.14096, 9433 and 9432 of 2018 and this Court vide order dated 27.10.2019 confirmed the award of the Labour Court, Godhra granting reinstatement and continuity of service. Pursuant to the aforesaid order, the petitioners were reinstated with continuity of service and after they were reinstated, the benefits arising out of the Government Resolution dated 17.10.1988 was not conferred to such petitioners on the ground that they have not completed 240 days in a year and hence, the present petitioners are constrained to file the present writ petition. 9. It would be apposite to refer to the decision of the Division Bench wherein for an analogous issue, the Division Bench 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. 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. 6. We are in complete agreement with the observations made by the learned Single Judge in order dated 05.05.2016 passed in Special Civil Application No.7713 of 2016. 10. Thus, in light of the aforesaid observations, for the illegal termination, the petitioners cannot be put to loss that too after the reinstatement has been confirmed by this Court. The petitioners are also reinstated in service with continuity of service. 11. Hence, the present petition is allowed. The respondents are directed to grant the benefits of Government Resolution dated 17.10.1988 including the period for which they have been out of service because of the illegal termination. It is further directed that the pay fixation for the intervening period from the date of termination till the reinstatement shall be treated as continues for the purpose of pay fixation and for the counting of 240 days. 12. Necessary orders in terms of the directions shall be passed within a period of three months from the date of receipt of the writ of the judgment of this Court.