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2022 DIGILAW 1133 (GUJ)

Executive Engineer v. State of Gujarat

2022-09-29

A.J.DESAI, MAUNA M.BHATT

body2022
JUDGMENT : A.J. Desai, J. 1. By way of the present appeal under clause 15 of the Letters Patent, the appellants - original respondent Nos.1, 2 & 3 have challenged oral judgement dated 22/04/2022 passed by learned Single Judge in Special Civil Application No.9897 of 2012, by which, while allowing the writ petition preferred by the original petitioner, learned Single Judge has held that the original petitioner is entitled to get benefits as per Government Resolution dated 17/10/1988 as he was reinstated in the year 1993 pursuant to the order passed by Labour Court in reference proceedings. Learned Single Judge further held that the appellants shall grant pensionary benefits including gratuity and other retiral benefits considering the continuous service of the original petitioner from 1993 to 2006. While disposing of the petition, it was made clear that the original petitioner would not be entitled for arrears from 1993 to 2006 since he was retired from the services on 30/04/2006 on attaining the age of superannuation. This appeal has been opposed by the respondent - original petitioner, who has filed caveat through learned advocate Mr. Mukesh Rathod. 2. Short facts, arising from the record, are as under: That the respondent - original petitioner was working as driver with the appellant - Panchayat from 1982 and was driving jeep. However, petitioner’s service was terminated in the month of May,1984 without following due procedure prescribed under the provisions of Industrial Disputes Act and therefore, the original petitioner raised industrial dispute before the Labour Court, Junagadh being Reference (L.C.J.), No.317 of 1993, which was allowed by judgement and award dated 29/05/2000 and the appellant-Panchayat was directed to reinstate the original petitioner on his original post with continuity of service and with 50% backwages. The said award was challenged by the present appellants by way of filing Special Civil Application No.12880 of 2000 before this Court. The said writ petition was partly allowed vide order dated 26/07/2010 and the award as far as backwages are concerned, was quashed and set aside. The said order has become final. Meanwhile, the original petitioner was retired on 30/04/2006. The grievance thereafter was raised that while reinstating the original petitioner, continuity of services were granted from 1993. The said writ petition was partly allowed vide order dated 26/07/2010 and the award as far as backwages are concerned, was quashed and set aside. The said order has become final. Meanwhile, the original petitioner was retired on 30/04/2006. The grievance thereafter was raised that while reinstating the original petitioner, continuity of services were granted from 1993. However, the authority did not grant any pension on the ground that he had not completed 10 years of services and therefore, writ petition being Special Civil Application No.9897 of 2012 was preferred by the original petitioner. Learned Single Judge after considering the observations made by the Labour Court and confirmed in writ petition being Special Civil Application No.12880 of 2000, which was filed by the Panchayat, has upheld the continuity of service and allowed the petition. Hence, this appeal. 3. Ms. R.V. Acharya, learned advocate for the appellants has submitted that it is an undisputed fact that the original petitioner has not worked from 1984. However, vide judgement and award dated 29/05/2000, labour court has directed the appellant-panchayat to reinstate the original petitioner on its original post with continuity of service and with 50% backwages, which was challenged by the appellants before this Court. She would submit that he has completed 10 years services from 1993 to 2004 and thereafter only, he was regularised and therefore, this period is required to be excluded and therefore, this appeal is required to be allowed. 4. On the other hand, Mr. Mukesh Rathod, learned advocate for the respondent-original petitioner has opposed this appeal and supported the reasons assigned by the learned Single Judge while allowing the petition. He would submit that learned Single Judge has rightly held that order of reinstatement of the labour court, which had given effect from 1993, is required to be kept in mind and therefore, learned Single Judge has committed no error. It is an undisputed fact that by judgement and award dated 29/05/2000, Labour Court has reinstated the original petitioner granting continuity of service from the date of filing of the writ petition i.e. from the year 1993. This order has become final in view of the oral judgement dated 26/07/2010 passed by learned Single Judge in Special Civil Application No.12880 of 2000. Therefore, he has requested to dismiss this appeal. 5. This order has become final in view of the oral judgement dated 26/07/2010 passed by learned Single Judge in Special Civil Application No.12880 of 2000. Therefore, he has requested to dismiss this appeal. 5. Having heard learned advocates appearing for the respective parties and considering the facts and circumstances of the case, we are of the opinion that learned Single Judge has committed no error in allowing the petition. We are in agreement with the observations made by learned Single Judge in Para-9, 10, 11, 12, 13 and 14 in Special Civil Application No.9897 of 2012, which reads as under : “9. I have considered the submissions canvassed by learned advocates appearing for the parties. I have also perused the material placed on record. It emerges from the record that the petitioner was appointed in October, 1982 and was working as daily wager driver with the respondent – Panchayat and he has worked till May, 1984. It is the case of the petitioner that his services were terminated by the respondent – Panchayat without following mandatory provision contained under the provision of the ID Act, therefore, the petitioner raised industrial dispute, which was referred to the concerned Labour Court and the concerned Labour Court, after considering the evidence led before it by the parties, passed an award on 29.05.2000, whereby the direction was given to the respondent – Panchayat to reinstate the petitioner with continuity of service and 50% backwages were also granted to the petitioner. The respondent – Panchayat challenged the said award by filing Special Civil Application No.12800/2000 and this Court, vide order dated 26.07.2010, partly allowed the said petition and in Paragraph No.8 of the said order, it has been observed as under, “8.0 In the premises aforesaid, the judgment and order of the Labour Court qua backwages is quashed and set aside. The continuity of service of the respondent shall be granted from the date of the reference i.e. from the year 1993. Since, the respondent has retired, the retirement dues pursuant to this order will be paid to the respondent. The petition is partly allowed. Rule is made absolute to the aforesaid extent with nor order as to costs.” 10. The continuity of service of the respondent shall be granted from the date of the reference i.e. from the year 1993. Since, the respondent has retired, the retirement dues pursuant to this order will be paid to the respondent. The petition is partly allowed. Rule is made absolute to the aforesaid extent with nor order as to costs.” 10. Thus from the aforesaid observations made by this Court, it would be clear that this Court has quashed and set aside the award of the Labour Court qua backwages only, however, so far as the continuity of service of the present petitioner is concerned, this Court has specifically observed that the continuity of service shall be granted from the date of Reference i.e. from 1993. It was also observed by this Court that since the petitioner has retired, the retirement dues pursuant to the said order shall be paid to the present petitioner. It is not in dispute that the present respondent – Panchayat has accepted the said order passed by the learned Single Judge of this Court and the said order has attained finality. Thus from the aforesaid observations made by this Court, it is clear that the continuity of service is granted to the petitioner from the year 1993. 11. Now when the petitioner has requested to the respondent – Panchayat to grant benefit of GR dated 17.10.1988 as he had completed more than 10 years of continuous service as daily wager with the respondent – Panchayat, the respondent – Panchayat passed impugned office order dated 22.03.2011. If the said office order is carefully seen, it is revealed that the respondent – Panchayat while placing reliance upon the GR dated 17.10.2011 granted benefit of gratuity of service for the period between 01.04.2004 to 30.04.2006 i.e. for a period of two years. It has been observed by the respondent – Panchayat in the said office order that as per the order dated 26.07.2010 passed by this Court in the aforesaid petition, period between 26.07.1993 to 26.07.2003 i.e. ten years’ period is required to be considered as notional period and the petitioner is not entitled to get benefit for the said notional period because he has not worked during the said period. Thus on one hand, the respondent – Panchayat has placed reliance upon the GR dated 17.10.1988 and on the other hand, learned advocate has suggested before this Court that the aforesaid GR is not applicable to the respondent – Panchayat. Thus, the contention raised by learned advocate for the respondent is misconceived. At this stage, it is also pertinent to note that in the order dated 26.04.2011 passed by the respondent – Panchayat, copy of which is placed on record at Page No.81 of the compilation, once again reference is made with regard to GR dated 17.10.1988 and, thereafter, it was observed that the proposal was sent by the concerned office to grant gratuity to the petitioner for a period between 01.04.2004 to 30.04.2006 and total amount of Rs.47,760/- for the aforesaid period of two years was given to the petitioner. Thus, it is clear that the benefit is given to the petitioner under GR dated 17.10.1988. 12. It is further clear from the aforesaid office order dated 22.03.2011 that the respondent – Panchayat has considered the period of ten years as notional period and not granted benefit of pension to the petitioner as he has not worked during the said period and, therefore while denying the pensionary benefits to the petitioner, the respondent – Panchayat has not placed reliance upon any of the provision of the BCSR/GCSR and, therefore, it is not open for learned advocate for the respondent to place reliance upon the said provision for denying the pensionary benefits to the petitioner in the present proceeding. Therefore, the aforesaid contention raised by learned advocate for the respondent on Rule 230 and 25 of the BCSR is misconceived. 13. Thus in the facts of the present case, only issue which is required to be considered by this Court is whether the period between 1993 to 2006 can be considered for the purpose of granting benefit of GR dated 17.10.1988 or not. For deciding the aforesaid issue, once again it is pertinent to note that this Court, in the petition filed by the respondent – District Panchayat challenging the award passed by the Labour Court, has specifically observed in the order dated 26.07.2010 that the said award is quashed and set aside qua backwages only. This Court has specifically granted continuity of service from the date of Reference i.e. from 1993. This Court has specifically granted continuity of service from the date of Reference i.e. from 1993. It was also observed that the retirement dues pursuant to the said order shall be paid to the present petitioner. Thus, when the continuity of service is granted to the petitioner by this Court from 1993 and the said order has attained finality, it is not open for the respondent authority to contend that the aforesaid period of 1993 to 2003 should be considered as notional only. This Court is of the view that the petitioner is entitled to get pensionary benefit as per GR dated 17.10.1988 as he has completed more than ten years’ of service. Thus, the respondents are required to grant pensionary benefits and other retiral benefits by considering the service of the petitioner as more than ten years. However, it is to be noted at this stage that as the petitioner has not worked during the period between 1993 to 2003, the petitioner is not entitled to get wages for the said period.” 6. It is also pertinent to note that the original petitioner has not been granted any arrears from 1993 to 2004 (when he retired from the services on attaining the age of superannuation). The appeal is meritless and the same deserves to be dismissed and is accordingly dismissed. 7. In view of dismissal of the main appeal, civil application (for stay) No.1 of 2022 would not survive and the same is also dismissed accordingly.