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2022 DIGILAW 1455 (GUJ)

Hasmukh Hirjibhai Songra v. State Of Gujarat

2022-10-19

BIREN VAISHNAV

body2022
JUDGMENT : 1. RULE returnable forthwith. Mr.Utkarsh Sharma learned AGP waives service of notice of Rule on behalf of the respondent State. 2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing. 3. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the communication dated 28.03.2022 and direct the respondents to extend the benefits of the Government Resolution dated 17.10.1988 considering the services of the petitioner from his initial date of appointment i.e. 21.07.1988. 4. Facts in brief would indicate that the petitioner had joined the department as a daily wager on 21.07.1988 and worked upto 10.12.1999. thereafter, the services of the petitioner were terminated on 10.12.1999. An industrial dispute was raised and it being referred to the Labour Court, the Labour Court, by an award dated 27.08.2012, directed reinstatement with continuity of service. 5. Challenge to the award by filing a petition being Special Civil Application No.3528 of 2013 resulted in modification of the award only qua back-wages. Letters Patent Appeal too was dismissed. Despite this, it was Mr.Mishra’s contention that by the impugned order dated 20.03.2022, the benefits of the resolution dated 17.10.1988 have not been extended from his initial date of appointment. Reliance is placed on an order passed by this Court in Special Civil Application No.12420 of 2021 which reads as under: “1. Rule returnable forthwith. Ms.Surbhi Bhati, learned Assistant Government Pleader, waives service of rule on behalf of the State-respondent. 2. The prayer of the petitioner is that the communication dated 30.07.2021 passed by the respondents holding that the benefit of the Resolution dated 17.10.1988 cannot be granted to the petitioner on the ground that the petitioner has not completed 240 days from the year 1981 to 1989 is bad. 3. The facts in brief would indicate that the petitioner was working as a daily wager, engaged in the year 1981 and worked up to 1989. Services of the petitioner came to be terminated which caused the petitioner to raise an industrial dispute. By an award dated 31.03.2007, the Labour Court in Reference(LCR) No.400/1992 lodged the reference directing the petitioner to be reinstated in service with 20% backwages. Services of the petitioner came to be terminated which caused the petitioner to raise an industrial dispute. By an award dated 31.03.2007, the Labour Court in Reference(LCR) No.400/1992 lodged the reference directing the petitioner to be reinstated in service with 20% backwages. 3.1 On a challenge to the award by the employer, this Court by judgment and order dated 21.08.2013 dismissed the petition observing that the petitioner was entitled to the benefit of continuity of service. The petitioner was reinstated by an order of 13.03.2013. The petitioner had an occasion to approach this Court earlier for asking for the benefits of the Resolution dated 17.10.1988. By an order dated 24.06.2021, was relegated to the authorities to make a representation thus on the representation made, the order impugned. 4. Mr.M.T.Mishra, learned counsel for the petitioner, would submit that the observation of the authorities that the petitioner has not worked for 240 days from 1981 to 1989 is misconceived. A categorical issue was raised before the Labour Court on the aspect of whether the petitioner had completed 240 days of service. The Labour Court in para 15 of the award specifically recorded a finding that the petitioner had completed 240 days of service on the basis of the settled position of law that an adverse inference be drawn against the employer on failing to prove the case otherwise. 5. Ms.Surbhi Bhati, learned AGP, would support the order impugned in the petition and submit that though the petitioner had asserted before the Labour Court that he had completed 240 days of service in each year, he did not discharge the onus of proving that fact by producing relevant evidence before the Labour Court. It is a settled position of law in Ms.Surbhi Bhati’s submission that it is the employee who has to discharge the burden before the Labour Court in proving the fact of having worked for 240 days. 6. Considering the submissions made by the learned counsels for the respective parties and having perused the award of the Labour Court, it is apparent that a specific positive issue of the petitioner having completed 240 days of service was raised before it. A positive finding was recorded by the Labour Court to that effect. On a challenge made to the award of the Labour Court, the Court dismissed the petition of the employer. A positive finding was recorded by the Labour Court to that effect. On a challenge made to the award of the Labour Court, the Court dismissed the petition of the employer. The Court dismissed the petition, holding that the petitioner was entitled to the benefit of continuity of service. In para 3 of the order of this Court while affirming the award of the Labour Court, the Court specifically held that, “the respondent workman was found to have worked for a period of more than 240 days in the preceeding year of his termination.” 7. In other words, once a finding recorded by the Labour Court was affirmed by this Court in no uncertain terms of the petitioner having worked for 240 days prior to his termination, the authorities could not have sat over the decisions in appeal and record an independent finding contrary to the finding that was recorded by the competent Court of law i.e. the Labour Court which was affirmed by this Court in the petition filed at the hands of the employer. 8. Accordingly, for the aforesaid reasons, the petition is allowed. The order / communication dated 30.07.2021 passed by the respondents holding that the benefit of the Resolution dated 17.10.1988 cannot be granted to the petitioner on the ground that the petitioner has not completed 240 days from the year 1981 to 1989 is hereby quashed and set aside. The respondents are directed to consider the case of the petitioner for extending the benefits of the Government Resolution dated 17.10.1988 except for the purposes of Leave Encashment and other five allowances based on his initial date of appointment preceeding his termination from 1981 onwards on the basis of he having worked for over a period of 240 days from 1981 to 1989. Moreover, the pensionary benefits of the petitioner may also be revised accordingly and all consequential benefits be paid to the petitioner. The aforesaid exercise shall be completed within a period of ten weeks from the date of receipt of certified copy of this order. The petition is allowed, accordingly. Rule is made absolute to the above extent. Direct service is permitted.” 6. He would submit that the petitioner of Special Civil Application No.12420 of 2021 has been granted the benefit pursuant to the order so passed by the department on 07.09.2022. The petition is allowed, accordingly. Rule is made absolute to the above extent. Direct service is permitted.” 6. He would submit that the petitioner of Special Civil Application No.12420 of 2021 has been granted the benefit pursuant to the order so passed by the department on 07.09.2022. In para 7 of the petition too, it is the case of the petitioner that similarly situated employees viz. (i) Tarun Girjashankar Jani, (ii) Bharatsinh Dolubha Vaghela, (iii) Ranabhai Satabhai Mundhava, (iv) Hamirbhai Satabhai Mundhva (v) Vaja Ghelabhai Khant (vi) Parbatbhai Narsangbhai Mudhva, (vii) Anupsinh Hemantsinh Parmar have been extended the benefits of the resolution dated 17.10.1988 from their initial date of appointment. 7. The order dated 28.03.2022 therefore needs to be modified. The respondents are directed to consider the case of the petitioner from his initial date of appointment. Moreover, the pensionary benefits of the petitioner may also be revised accordingly and all consequential benefits be paid to the petitioner. The aforesaid exercise shall be completed within a period of ten weeks from the date of receipt of certified copy of this order. The petition is allowed, accordingly. Rule is made absolute to the above extent. Direct service is permitted.