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2023 DIGILAW 419 (GUJ)

STATE OF GUJARAT v. BHAGWANBHAI MOTIBHAI MALIVAD

2023-03-07

HEMANT M.PRACHCHHAK, VIPUL M.PANCHOLI

body2023
JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. The present Letters Patent Appeal is filed by the appellants-original respondents under Clause 15 of the Letters Patent challenging the impugned judgment and order dated 2nd February 2022 passed by the learned Single Judge in Special Civil Application No. 15845 of 2020 whereby the learned Single Judge has allowed the petition. 2. Brief facts of the present appeal are in nutshell as under: 2.1 It is the case of the original petitioner that he was appointed as a daily wager with effect from 1st April 1974 in the office of original respondent No. 4. He was terminated from the service with effect from 1st April 1976. It is alleged that the petitioner was constrained to raise an industrial dispute and said dispute culminated in Reference (LCJ) No. 406 of 1999. The Labour Court, Godhra vide award dated 21st July 2009 set aside the termination of the petitioner and directed the respondents - authorities to reinstate the petitioner in service with 20% back wages. It is alleged that no direction with regard to continuity of service was recorded in the award and the respondent authorities challenged the said award by filing Special Civil Application No. 7983 of 2010 which came to be dismissed vide order dated 27th January 2014. 2.2 It is alleged that the petitioner reached the age of superannuation on 30th November 2012 since he was not paid the gratuity, he filed proceedings before the Controlling Authority under the Payment of Gratuity Act and the said Authority by order dated 24th March 2014 directed the respondents to pay gratuity considering 22 years of service of the petitioner with 10% interest. Against the said order of the Controlling Authority, the petitioner preferred appeal before the Appellate Authority, which came to be allowed vide order dated 27th August 2014 and enhanced the amount on the basis of 24 years of service. 2.3 It is the case of the petitioner that he is entitled to the benefits arising from the Government Resolution dated 17th October 1988 and the Resolution dated 15th September 2014, however, the same has not been conferred upon the petitioner on the ground that the petitioner has not rendered continuous service as he has not completed 240 days. 2.3 It is the case of the petitioner that he is entitled to the benefits arising from the Government Resolution dated 17th October 1988 and the Resolution dated 15th September 2014, however, the same has not been conferred upon the petitioner on the ground that the petitioner has not rendered continuous service as he has not completed 240 days. Being aggrieved and dissatisfied with the action on the part of the respondent-authorities in not extending benefits of Government Resolution dated 17th October 1988 and retirement/pensionary benefits to the petitioner, the petitioner preferred the captioned petition which came to be allowed by the learned Single Judge. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge, the appellants-authorities have preferred the present appeal. 3. Heard Mr.Jayneel Parikh, learned Assistant Government Pleader for the appellants herein and Mr.Dipak Dave, learned advocate for the respondent herein. 4. Mr. Parikh, learned Assistant Government Pleader for the appellants has submitted that the learned Single Judge has not considered the fact that the petitioner-workman has not worked with the respondent-authority for more than four years and not completed 240 days in a year and, therefore, he is not entitled to get any benefits as prayed for in the petition. It is submitted by the learned Assistant Government Pleader that the petitioner had approached the Labour Court after a delay of eight years, which was not satisfactorily explained by the petitioner and which fact is also not considered by the learned Single Judge. Learned Assistant Government Pleader has also submitted that the direction with regard to the benefits enumerated in the order, the petitioner is not entitled for the same and, therefore, the direction issued by the learned Single Judge is erroneous and without there being any cogent and considerable reasons. Learned Assistant Government Pleader has also submitted that the learned Single Judge has not appreciated the contentions and averments made in the affidavit-in-reply filed by the respondents - authorities and has not considered the order passed by the Labour Court in its true and proper spirit. Learned Assistant Government Pleader has also submitted that the learned Single Judge has not appreciated the contentions and averments made in the affidavit-in-reply filed by the respondents - authorities and has not considered the order passed by the Labour Court in its true and proper spirit. Learned Assistant Government Pleader has further submitted that the workman has not completed 240 days from the year 1973 to 1975 and 2011 to 2013, however, it is contrary to the attendance sheet produced by the appellants before the Labour Court and, therefore, the Labour Court has recorded erroneous finding with regard to 240 days. It is submitted by the learned Assistant Government Pleader that the petitioner is not entitled to get any benefits or relief under the Government Resolution dated 17th October 1988 and 21st June 2019 as he has not completed 240 days in the preceding years as per the government resolution with the respondent-authority continuously for ten years. Learned Assistant Government Pleader has also submitted that the learned Single Judge has wrongly applied the ratio laid down by this Court in Special Civil Application No. 7913 of 2010 which is referred in the impugned judgment and order. Learned Assistant Government Pleader has urged that the appeal be allowed and the impugned judgment and order of the learned Single Judge be quashed and set aside. 5. On the other hand, Mr.Dave, learned advocate for the petitioner - respondent herein has submitted that the learned Single Judge has rightly observed that as the original petitioner was reached the age of superannuation on 30th November 2012 and he was not paid the accrued the benefits like the gratuity etc., the Controlling Authority has passed the order that the petitioner has completed 22 years of service and, therefore, he is not entitled to get the benefits with interest at the rate of 10%. Learned advocate for the respondent herein has submitted that the learned Single Judge, while discussing the Government Resolution dated 17th October 1988, has treated the service of the petitioner continued in light of the award passed by the Labour Court and after considering the documentary evidence laid by the parties, the learned Single Judge has rightly granted the benefits to the petitioner. Learned advocate for the respondent has referred the judgment and order of the Division Bench dated 28th December 2018 rendered in Letters Patent Appeal No. 1567 of 2018 and another judgment and order of the Division Bench dated 27th August 2021 rendered in Letters Patent Appeal No. 6241 of 2020. Learned advocate for the respondent has also referred the judgment of the Hon’ble Apex Court in the case of Nandkishore Shravan Ahirrao vs. Kosan Industries (P) Ltd. AIR 2020 SC 1776 more particularly paragraph no. 8. Learned advocate for the respondent has also referred the decision of the Hon’ble Supreme Court in the case of M.L. Patil vs. State of Goa and Another, (2023) 1 SCC 660 more particularly paragraph no. 3. He has submitted that in the case of M.L. Patil (supra), the Hon’ble Apex Court has observed that as far as the pension is concerned, it is a continuous cause of action and there is no justification at all for denying the arrears of pension. He has urged that the appeal being meritless deserves to be dismissed. 6. We have considered the submissions canvassed by the learned advocates for the parties. We have perused the materials placed on record. 7. In the case of Nandkishore Shravan Ahirrao (supra), the Hon’ble Apex Court has held and observed in paragraph no. 8 as under: “8. On the question of back wages, the Labour Court had confined the award of back wages to 25%. Having come to the conclusion that the findings in the disciplinary enquiry was perverse, the Labour Court observed that it was a matter of record that the workman has been gainfully employed over a part of the period after dismissal, between 3 March 1990 to 9 September 1992 with another employer. It was in the above circumstances, that the entire component of back wages was not awarded to the appellant and only 25% was awarded. The High Court has no justification to set aside the award of 25% back wages awarded by the Labour Court which was eminently fair and proper. The direction of the High Court for deletion of back wages is therefore unsustainable and is set aside.” 8. In the case of M.L. Patil (supra), the Hon’ble Apex Court has held and observed in paragraph no. The direction of the High Court for deletion of back wages is therefore unsustainable and is set aside.” 8. In the case of M.L. Patil (supra), the Hon’ble Apex Court has held and observed in paragraph no. 3 as under: “3……….As such the High court may be right and/or justified in denying any salary for the period of two extra years to the writ petitioners if they would have continued in service, on the ground of delay. However, as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years……….” 9. With regard to the unexplained delay, the learned Single Judge has referred to the decision of the Hon’ble Supreme Court in the case of Gurpreet Singh vs. State of Punjab and Others, (2002) 9 SCC 492 and has observed that the Supreme Court has enunciated that the continuity of service cannot be denied to the workman if he is directed to be reinstated in service on setting aside the order of termination. The learned Single Judge has also referred to the decision in the case of Nandkishore Shravan Ahirrao (supra) and observed that it is well settled proposition of law that once the reinstatement as awarded by the Labour Court the continuity of service would follow as a matter of course. Thus, the entire service from the date of termination till he was reinstated in service i.e. from 1st April 1996 to 6th April 2011 is required to be treated as continuous. With regard to issue of denying the benefit flowing from the Government Resolution dated 17th October 1988 on the ground of non-completion of 240 days, the learned Single Judge has considered the observations made by the Division Bench in the order dated 18th June 2018 passed in Letters Patent Appeal No. 1268 of 2017 more particularly paragraph No. 5 which reads 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. to the daily wagers, who have completed certain number of years of service.” 10. It appears that the learned Single Judge has also referred to the decisions in the case of State of Gujarat and Others vs. PWD Employees Union and Others, (2013) 12 SCC 417 and State of Gujarat vs. PWD and Forest Employees Union and Others, (2019) 3 Scale 642 . The learned Single Judge has observed in paragraphs no. 11, 12, 13, 14, 15 and 16 as under: “11. The Division Bench, while examining the provisions of the Government Resolution dated 17.10.1988 has held that once the termination of the respondent-workman is found to be illegal and contrary to the provisions of the Industrial Disputes Act, 1947 (for short “the ID Act”), the effect of continuity of service is required to be conferred and the benefits of the Government Resolution dated 17.10.1988 cannot be denied to him on the premise that he has not worked or completed 240 days. The workman was compelled to remain out of service because of his illegal termination and such illegal action on being set aside, the respondents cannot deny the benefits flowing from the Government Resolution dated 17.10.1988 on the ground that the petitioner has not completed 240 days and there is no continuity of service. Such contention or submission raised by the respondent is required to be rejected at the outset in view of the fact that the termination of the petitioner has been declared illegal. 12. So far as the contention raised with regard to delay by the respondents in approaching this Court is concerned, the same also does not merit acceptance since it was the respondents, who were required to confer the benefits arising from the Government Resolution dated 17.10.1988 and accordingly, he should have been paid all the retirement benefits including pension, leave encashment etc., to the petitioner. However, after the retirement of the petitioner in the year 2012, nothing was paid to him, which constrained him to file application claiming gratuity before the Controlling Authority. The said proceedings culminated vide order dated 27.08.2014 passed by the Appellate Authority directing the respondents to confer the benefit of gratuity of Rs.83,293/- on the basis of 24 years of service. Even after passing of such order against the respondents, they did not grant the petitioner any benefit of pension, which constrained him to file the captioned writ petition. The respondent cannot take shelter under the pretext of delay for denying the benefits of pension flowing from the Government Resolution dated 17.10.1988 and the Government Resolution dated 15.09.2014. Nonpayment of pension is a recurring cause and the workman has to suffer every day only for the non-payment of retirement benefits to him and hence, the writ petition cannot be thrown out on the ground of delay. 13. It appears that after issuance of the Government Resolution dated 15.09.2014, there were subsequent proceedings with regard to its clarification and ultimately, the Apex Court in the case of PWD and Forest Employees Union and Others (supra) has clarified the aforesaid resolution and the Supreme Court has ordered to confer the benefits to the employees of the respondent-Department. 13. It appears that after issuance of the Government Resolution dated 15.09.2014, there were subsequent proceedings with regard to its clarification and ultimately, the Apex Court in the case of PWD and Forest Employees Union and Others (supra) has clarified the aforesaid resolution and the Supreme Court has ordered to confer the benefits to the employees of the respondent-Department. After the judgment passed by the Supreme Court in the case of PWD and Forest Employees Union and Others (supra), the respondent-Department passed Government Resolution dated 21.06.2019 clarifying the Government Resolution dated 17.10.1988 and also the Government Resolution dated 15.09.2014. 14. It is not in dispute that the Government Resolutions dated 17.10.1988 and 15.09.2014 were under scrutiny by the Apex Court in the case of PWD and Forest Employees Union and Others (supra). The Supreme Court has held that the workmen, who complete 5, 10 and 15 years of service, are required to be placed in regular pay-scale and accordingly, they are also required to confer the pensionary benefits. The dispute with regard to applicability of the aforesaid resolutions to the daily wagers working in the various departments of the State of Gujarat, is no more res integra. Thus, the respondents are directed to confer the benefits arising from the Government Resolution dated 17.10.1988 read with Government Resolution dated 15.09.2014, which would be applicable to the petitioner’s case and accordingly, he shall be conferred all the benefits, including the pension and retirement benefits, which he would be entitled as per the judgment of the Supreme Court in the case of PWD and Forest Employees Union and Others (supra). 15. The respondents are also directed to confer the six benefits such as Public holidays, Transport allowance, Leave Encashment, counting service for purpose of pension, medical allowance and group insurance as ordered by the Division Bench in the judgment dated 28.12.2018 passed in Letters Patent Appeal No. 1567 of 2018……….. Thus, the law on the issue raised in the writ petition is well settled by catena of decisions of this Court. The petitioner is entitled to five benefits as stated hereinabove. 16. Appropriate orders fixing and payment of retirement benefits as narrated hereinabove shall be passed within a period of two months from the date of receipt of the writ of this judgment. The petitioner is entitled to five benefits as stated hereinabove. 16. Appropriate orders fixing and payment of retirement benefits as narrated hereinabove shall be passed within a period of two months from the date of receipt of the writ of this judgment. It is clarified that, if the aforesaid benefits are not paid within the time stipulated by this Court, it shall carry interest 9% per annum from the date of retirement till the payment of such benefits.” 11. In view of the aforesaid facts and circumstances of the case, we are of the considered opinion that the learned Single Judge has not committed any error while passing the impugned judgment and order and, therefore, no interference is called for. Hence, the appeal deserves to be dismissed and accordingly it is dismissed. The appellants are directed to comply with the direction issued by the learned Single Judge within a period of three months from the date of receipt of the copy of this order. 12. The connected civil application stands disposed of accordingly.