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2023 DIGILAW 293 (GUJ)

Rajeshbhai Khodabhai Rathod v. State Of Gujarat

2023-02-13

N.V.ANJARIA, NIRAL R.MEHTA

body2023
JUDGMENT : N.V.ANJARIA, J. Heard learned advocate Mr. MTM Hakim for the appellant and learned Assistant Government Pleader Mr. Manan Mehta for the respondents. 2. The present Letters Patent Appeal filed by the appellants-original petitioners is directed against the judgment and order dated 14.06.2022 of the learned Single Judge whereby the learned Single Judge dismissed the Special Civil Application filed by the petitioners. 2.1 In the Special Civil Application, the two petitioners prayed to set aside order dated 22.12.2014 passed by the Executive Engineer, respondent no.2 herein. It was further prayed to direct the respondent authorities to reckon the earlier services rendered by the petitioners, to further grant on that basis benefit of Government Resolution dated 17.10.1988. It was also prayed for against the respondents to prepare the service book and open the General Provident Fund Account of the petitioners. 3. Both the petitioners were employed under respondent no.2 Executive Engineer, Irrigation Division as daily wagers. Petitioner no.1 was appointed in January 1992 and worked continuously upto March 1999. As far as petitioner no.2 was concerned, he was initially appointed as daily wager in the year 1984 and worked upto March 1999. 3.1 It appears that as the services of the petitioners were terminated, they had an occasion to raise industrial dispute by approaching Labour Court. The Labour Court entertained the Reference (LCR) Nos. 200 of 2005 and 201 of 2005 directing the respondents to reinstate the petitioners on their original posts with continuity of service with 40 days backwages. 3.2 The respondents challenged the aforesaid judgment and award by filing before this Court Special Civil Application Nos.14231 of 2008 and 14233 of 2009 respectively, which petitions came to be dismissed on 09.01.2023 and 04.02.2023 respectively. In view of the dismissal of the petitions, the petitioners were taken back in service and upon reinstatement, they resumed their duties with effect from 01.05.2015. 3.3 It is the undisputed case of the petitioners that since then the petitioners have worked continuously and uninterruptedly. The case of the petitioners has been that the Labour Court while delivering the judgment and award, when granted the continuity of service to the petitioners, the length of service of the petitioners from the date of their initially joining were to be calculated and reckoned accordingly. The case of the petitioners has been that the Labour Court while delivering the judgment and award, when granted the continuity of service to the petitioners, the length of service of the petitioners from the date of their initially joining were to be calculated and reckoned accordingly. 3.4 It is the case that the petitioners are required to be treated to be in service continuously for all these years as per the judgment and award of the Labour Court. It was the case that in several such cases, identical to the petitioners, this Court directed the respondents to grant benefit of Resolution dated 17.10.1988 and all consequential benefits flowing therefrom. The petitioners referred to the decision in Kasambhai M. Ajmeri Vs. District Development Officer & Ors. being Special Civil Application No. 7588 of 2004 decided on 12.11.2014 as also in Paresh Chelshankar Vyas vs. State of Gujarat and Ors. being Special Civil Application No. 7529 of 2018 decided as per judgment and order dated 12.07.2019 and other decision on the same lines. 3.5 It has been the grievance that the order of reinstatement dated 22.12.2014 was passed but continuity of service was not granted. 3.6 After the decisions of this Court dismissing the Special Civil Applications of the authorities as stated above, when the petitioners were reinstated by order dated 22.12.2014, but continuity was not granted in the said order, they had an occasion to file the Special Civil Application. 4. The learned Single Judge referred to decision of this Court in Prabhatbhai Narsangbhai Mudhwa vs. State of Gujarat rendered in Special Civil Application No. 14661 of 2019 decided on 27.11.2019 as well as the decision in the case of State of Gujarat vs. Ashok Laxmanbhai Parmar rendered in Letters Patent Appeal No. 1268 of 2017, wherein the Courts had considered the question of treating the service interpreting the term "continuous service". It was noted that when the Labour Court had awarded the benefit of continuity of service, it was not open for the employer to question the said benefit by denying the application of Resolution dated 17.10.1988 from the date of initial appointment. 4.1 Learned Single Judge noted that the Labour Court had opined in favour of the petitioners that the petitioners had completed 240 days of continuous service, however on the ground of delay, the petition was dismissed. 4.1 Learned Single Judge noted that the Labour Court had opined in favour of the petitioners that the petitioners had completed 240 days of continuous service, however on the ground of delay, the petition was dismissed. 4.2 Learned Single Judge too the view that the order dated 22.12.2014 sought to be called in question in respect of non-grant of continuity of service after passage of five years, it was observed in the impugned order, "The order that was subsequently passed of reinstating the petitioner of 22.10.2014 with condition no. 4 which denied benefits of resolution dated 17.10.1988 was not challenged by the petitioner. It cannot be therefore said that the cause of action to challenge the order would revive on a case being decided by this court in the case of Prabhatbai Mudhwa (supra). Certainly it was not a case where similarly situated employees had approached this court for setting aside the order which denied the benefits of the resolution dated 17.10.1988. Even otherwise, the communication that was challenged in the case of Prabhatbhai Mudhwa (supra) was of 13.05.2019 in a petition filed in the same year. In the present case, the petition is filed after a period of five years after the date of order of reinstatement. On the ground of delay alone, therefore the petition deserves to be dismissed." 4.3 The decision in Prabhatbhai Mudhwa (supra) referred to by the petitioners had similar facts. The petitioners prayed for grant of gratuity, leave encashment and pensionary benefits in light of Government Resolution dated 17.10.1988 and the petitioners had raised industrial dispute before the Labour Court and Labour Court had granted as per its judgment and award, reinstatement with continuity of service to the petitioner employees. 4.4 The contention of the petitioners was that when the judgment and ward of Labour Court granted them continuity of service and same was confirmed by the higher courts, the benefits arising from Resolution dated 17.10.1988 would be available to them as necessary corollary. The following observations of the Court in Prabhatbhai Mudhwa (supra) in paragraph 5. may be noticed with relevance, "It is an admitted fact fact that the petitioners have served since 1988 upto 31.3.1998; their services came to be terminated and they were reinstated on 13.5.2019 after the judgment and award of labour court, which granted them continuity of service. The following observations of the Court in Prabhatbhai Mudhwa (supra) in paragraph 5. may be noticed with relevance, "It is an admitted fact fact that the petitioners have served since 1988 upto 31.3.1998; their services came to be terminated and they were reinstated on 13.5.2019 after the judgment and award of labour court, which granted them continuity of service. Therefore, it would necessarily follow that entire period of service of the petitioners from the respective date in the year 1988 till reinstatement or retirement, as the case may be, would have to be counted as continuous either based on actual service rendered or notionally in view of the continuity benefit conferred by the labour court." 4.5 The Court further observed after noticing that the judgment and award of the Labour Court was confirmed by this Court in Special Civil Applications, which were dismissed, "...in para-5 of the impugned communication, the petitioners were specifically denied the benefits of Resolution dated 17.10.1988. It was stated that the petitioners would be entitled to minimum wages only. In the same way, those petitioners who have retired with effect from 31.7.2017 have also been denied the benefits of Resolution dated 17.10.1988, which otherwise would have to be granted to them in the facts of the case. Respondent No.2 authority has evidently ignored and disregarded the effect in law required to be given to the judgment and award of the labour court confirmed by this court as above in denying the benefits of Resolution dated 17.10.1988. The benefits flowing therefrom have to be accorded to the petitioners taking into account their respective factual matrix of services." 5. The Division Bench in Ashok Laxmanbhai Parmar (supra), dealt with similar set of facts and the grievance to observe thus, extracting from paragraph 5, "...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. 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." 5.1 It was further observed that when the workman was forced to leave duties on account of unlawful termination by the employer, the employer cannot take benefit of its own illegal action to deny continuity of service, which was otherwise granted by the lower court. 5.1.1 It was further stated in paragraph 5 by the Division Bench, "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." 5.2 Coming back now to the impugned order dated 22.12.2014, in paragraph 4 of the said order, the reason was supplied, it was given out that the respondent workman had not completed 240 days in a year as per the provisions of Section 25B of the Industrial Disputes Act, 1947. In that view, it was stated, they did not become entitled to benefits flowing from Resolution dated 17.10.1988. 5.3 In other words, though the Labour Court had granted continuity of service and in the interregnum, the services of the petitioners were required to be treated as continuous, treating the entire length of service accordingly, the respondent while passing impugned order, fall back upon the aspect of 240 days of service and completion thereof. Once the Labour Court granted continuity, it pronounced that the requisite conditions for treating the services continuous were fulfilled. Once the Labour Court granted continuity, it pronounced that the requisite conditions for treating the services continuous were fulfilled. 5.4 Even by deeming fiction taken to its logical end, the continuity of service have to be considered and accorded to the petitioners in light of the award of the Labour Court. Not only that the aforesaid order dated 22.12.2014 was after the judgment and award of the Labour Court confirmed by this Court, reasoning as above contained therein stands contrary to the law laid down by this Court in Prabhatbhai Narsangbhai Mudhwa (supra) and Ashok Laxmanbhai Parmar (supra). 5.5 In totality of facts, the ground weighed with the learned Single Judge that relief was not liable to be granted to the petitioners on the ground that the order dated 22.12.2014 was called in question after passage of long time in the year 2019, does not stand to reason. It could not be said that the challenge was delayed so as not to entertain the petition for grant of relief. 5.6 Apart that the case has strong merits, the cause of action for the petitioner workman could be said to be continuous. It could not be viewed that it was a delayed challenge. 6. For the reasons recorded above, the judgment and order of the learned Single Judge dated 14.06.2022 is hereby set aside. The respondent, in particular, respondent no.2 is directed to reckon the services of the petitioners from the date of initial joining to be continuous and to grant all benefits of Resolution dated 17.10.1988 to both the petitioners. 6.1 The benefits, including the issuance of service book, GPF Account, grant of time-scale and other benefits of permanency as may flow from Resolution dated 17.10.1988 shall be extended to the petitioners within a period of six weeks from the date of receipt of this order. 7. The appeal is accordingly allowed.