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2022 DIGILAW 1115 (GUJ)

Paragbhai Popatbhai Loladiya v. State Of Gujarat

2022-09-28

BIREN VAISHNAV

body2022
ORDER : 1. Rule returnable forthwith. Mr. Kurven Desai, learned AGP waives service of notice of Rule on behalf of the respondent-State. 2. The prayer in the petition is that the petitioners be held to be entitled to benefits of resolution dated 17.10.1988 from the initial date of appointment i.e. 27.06.1981 and 01.05.1980. By the impugned order, the benefits have been restricted to the date on which the petitioners no. 1 and 2 complete five years of service as on 31.05.2019 and 30.04.2018 respectively. 3. Mr. Mishra, learned advocate appearing for the petitioner would submit that though the awards of the Labour Court in case of both of the petitioners on 04.08.2000 did not expressly mention the word ‘continuity of service’ by discounting the initial date of appointment, the respondents have infact restricted the benefits of the resolution dated 17.10.1988. He would submit that it is also apparent that the Labour Court awards were under challenge in the respective petitions and this court by order dated 12.07.2010 dismissed the petitions of the State in light of the decision rendered by this court in Special Civil Application No. 10833 of 2021, which has considered the decision of Nandkishore Shravan Ahirrao v. Kosan Industries (P) Ltd. [ AIR 2020 SC 1776 ] and Gurpreet Singh v. State of Punjab and Haryana [ (2002) 9 SCC 492 ]. He would also rely on the decision dated 27.01.2022 passed by this court in Special Civil Application No. 66 of 2019 wherein also this court relying on the abovementioned decision granted the benefits to the petitioners therein as prayed for in this petition. 4. The issue involved in this petition has been time and again addressed by this court vide various orders passed in petitions taking up such issues. This court in Special Civil Application No. 66 of 2019 on 27.01.2022 has considered the decisions rendered in the case of Nandkishore Shravan Ahirrao (supra) and Gurpreet Singh (supra). This court while granting benefits of resolution dated 17.10.1988 has observed as under in the said petition: “7. This court in Special Civil Application No. 66 of 2019 on 27.01.2022 has considered the decisions rendered in the case of Nandkishore Shravan Ahirrao (supra) and Gurpreet Singh (supra). This court while granting benefits of resolution dated 17.10.1988 has observed as under in the said petition: “7. Having heard learned advocates for the parties, it is borne out that this issue is squarely covered by the decision of this court rendered in Special Civil Application No. 66 of 2019 dated 27.01.2022 wherein this court therein has considered the decisions rendered in the case of Nandkishore Shravan Ahirrao v. Kosan Industries (P) Ltd. [ AIR 2020 SC 1776 ] and Gurpreet Singh v. State of Punjab and Haryana [ (2002) 9 SCC 492 ]. This court while granting benefits of resolution dated 17.10.1988 has observed as under in the said petition: “12. Taking into consideration all the decisions referred to herein above, the common thread has been decided by this Court is that when there is an award of reinstatement by the Labour Court, the award has to be construed to be an award granting continuity of service unless otherwise expressly denied. That is the position of law as held by the Supreme Court in case of Nandkishore Shravan Ahirrao (supra) referred to by the Division Bench in case of Heirs of Decd. Dhirubhai Lavabhai Suvagiya (supra). 13. Even the decision of this Court in case of Hamirbhai Meghabhai Gohil (supra) it has been extensively reproduced above would indicate that based on an award of the Labour Court unless there is an express denial of continuity of service once the termination is set aside, continuity of service has to be read into the order of Labour Court.” 8. Accordingly the petition is allowed. The respondents are directed to confer the benefits flowing from the resolution dated 17.10.1988 to the petitioner as per the as per the 5th, 6th and 7th Pay Commission with other consequential benefits and also to direct the respondents to open GPF account of the petitioner with retrospective effect treating the entire period of service from the initial date of appointment as continuous. Necessary orders shall be passed in terms of the directions issued by this Court within a period of ten weeks from the date of receipt of copy of this order. Rule is made absolute. Direct service is permitted.” 5. Necessary orders shall be passed in terms of the directions issued by this Court within a period of ten weeks from the date of receipt of copy of this order. Rule is made absolute. Direct service is permitted.” 5. Similarly, in Special Civil Application No. 4803 of 2020, this court has observed as under: “1. Since the issue involved in the main petition is covered by the decision of this Court rendered in Special Civil Application No.66 of 2019 dated 27.01.2022, the main matter is taken up for final hearing. 2. While issuing rule, this Court had passed the following order: “1. Heard Mr. Mukesh Mishra, learned advocate for the petitioner. 2. Drawing attention to the communication dated 02.06.2016 by the Assistant Director of Animal Husbandry, Animal Husbandry Centre, Thara addressed to the Director, Animal Husbandry, Gujarat State submitted that it refers about abandonment of service by the workman as recorded in the order of the Labour Court dated 19.01.2004 is ex-facie false. Drawing the attention of the Court to the award passed by the Labour Court, it is pointed out that it is nowhere held by the Labour Court that petitioner-workman has voluntarily abandoned his work. 3. Considering the issue raised by Mr.Mishra that once the Labour Court has held that the termination of the petitioner was illegal and directed reinstatement in service, in view of section 25B of the Industrial Disputes Act, 1947, his service has to be treated as continuous even for the purpose of benefits under the Government Resolution dated 17.10.1988. He further submitted that challenge to the award of the Labour Court holding termination to be illegal and directing reinstatement of the petitioner at the instance of the respondents failed up to the High Court, the respondent no.2 in the inter-departmental communication to the respondent no.1 cannot assert that petitioner is not retrenched as he has abandoned the work. According to his submission, if at all it is proved and believed by the Labour Court that the petitioner has abandoned the work, the award could not have been passed holding the termination to be illegal and ordering reinstatement. Therefore, the communication dated 02.06.2016 by respondent no.2 to respondent no.1 recommending only benefits under the Government Resolution dated 17.10.1988 for a period of 5 years only is absolutely illegal. 4. As against that, Ms. Therefore, the communication dated 02.06.2016 by respondent no.2 to respondent no.1 recommending only benefits under the Government Resolution dated 17.10.1988 for a period of 5 years only is absolutely illegal. 4. As against that, Ms. Asmita Patel, learned AGP submitted that interdepartmental communication cannot be challenged by the petitioner for claiming benefits under the Government Resolution dated 17.10.1988 and therefore, interdepartmental communication could not have been challenged. 5. Considering the above submissions, Rule. 6. In view of the fact that benefits under the Government Resolution dated 17.10.1988 are claimed, as the petitioner has not prayed or pressed for any interim relief, there is no question of determining the same.” 3. The case of the petitioner is that though the award of the Labour Court dated 19.01.2004 did not specifically mention continuity of service, which award was confirmed by the order dated 16.08.2010 passed in Special Civil Application No.6969 of 2004, by the impugned order, past services have not been counted for rendering the benefits of the resolution of 17.10.1988. 4. Mr.Mishra therefore relies on a decision of this Court passed in Special Civil Application No.66 of 2019, by which, referring to the decisions of the Supreme Court and the decision of the coordinate bench of this Court on the issue, this Court had considered the case of the petitioner therein and held that even if the award does not explicitly mention continuity of service unless expressly denied, the same has been impliedly granted. The relevant paragraphs of the order read as under: “12. Taking into consideration all the decisions referred to herein above, the common thread has been decided by this Court is that when there is an award of reinstatement by the Labour Court, the award has to be construed to be an award granting continuity of service unless otherwise expressly denied. That is the position of law as held by the Supreme Court in case of Nandkishore Shravan Ahirrao (supra) referred to by the Division Bench in case of Heirs of Decd. Dhirubhai Lavabhai Suvagiya (supra). 13. Even the decision of this Court in case of Hamirbhai Meghabhai Gohil (supra) it has been extensively reproduced above would indicate that based on an award of the Labour Court unless there is an express denial of continuity of service once the termination is set aside, continuity of service has to be read into the order of Labour Court. 14. Even the decision of this Court in case of Hamirbhai Meghabhai Gohil (supra) it has been extensively reproduced above would indicate that based on an award of the Labour Court unless there is an express denial of continuity of service once the termination is set aside, continuity of service has to be read into the order of Labour Court. 14. Accordingly the petition is allowed. The respondents are directed to confer the benefits flowing from the resolution dated 17.10.1988 to the petitioner with effect from 01.10.1988 to 31.01.2005 notionally and thereafter the respondents are directed to give salary from 01.02.2005 to the actual date of reinstatement treating the entire period of service from the initial date of appointment as continuous. Necessary orders shall be passed in terms of the directions issued by this Court within a period of three months from the date of receipt of copy of this order. Rule is made absolute. Direct service is permitted.” 5. Accordingly, the petition is allowed. The order dated 02.06.2016 is quashed and set aside. The respondents are directed to calculate the earlier services of the petitioner from the initial date of appointment i.e. 15.08.1982 for extending the benefits of resolution dated 17.10.1988 and all other consequential benefits. The said exercise shall be done within a period of 10 weeks from the date of receipt of copy of this order. Rule is made absolute to the aforesaid extent. 6. In view of the order passed in the main petition, Civil Application will also not survive and hence the same is also disposed of. Direct service is permitted.” 6. Accordingly, the petition is allowed. The order impugned is quashed and set aside. The respondents are directed to calculate the earlier services of the petitioners no. 1 and 2 from 27.06.1981 and 01.05.1980 respectively which are their initial dates of appointment for extending the benefits of resolution dated 17.10.1988 and all other consequential benefits. The said exercise shall be done within a period of 12 weeks from the date of receipt of copy of this order. Rule is made absolute to the aforesaid extent. Direct service is permitted.