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2024 DIGILAW 2155 (GUJ)

Kharadi Lakshmanbhai Galabhai v. State Of Gujarat

2024-12-05

NIRZAR S.DESAI

body2024
JUDGMENT : 1. As the issue pertains to grant of benefit of Government Resolution dated 17.10.1988 and as the petitioners have claimed such benefits from his initial date of joining, which according to Mr.P.C.Chaudhari, learned advocate for the petitioners, is a covered issue. With the consent of the parties, the matter was taken up finally. Hence, Rule returnable forthwith. Mr.Sanjay Udhwani, learned AGP waives service of Rule on behalf of the respondent – State. 2. By way of this petition, the petitioners have prayed for conferring the benefits or a direction to the respondents to grant the benefit of the resolution dated 17.10.1988 from initial date of joining and on completion of 5 years, 10 years and 15 years service respectively. The petitioners have further prayed for a direction to the respondents to fix the salary of the petitioners by considering the intervening period i.e. from the date of termination till the date of reinstatement as notional and have further prayed for a direction to the respondents to pay arrears from the actual date of reinstatement with all consequential benefits. 3. The facts of the petition as stated by the learned advocate Mr.P.C.Chaudhari are stated as under :- 3.1. This petition is preferred by five petitioners who joined the services under the respondents between the year 1984 to 1993 on various posts and their services were terminated on 22.08.1997. The petitioners challenged their termination by preferring separate references and by way of separate awards dated 24.11.2004, each of the petitioners’ termination was held to be bad and they were directed to be reinstated with continuity of service with back-wages. The said award was challenged by the State by preferring the Special Civil Application Nos.8238 of 2007 to 8244 of 2007 and each of the petitions was dismissed by this Court vide order dated 28.03.2007 and hence, all the petitioners were reinstated in services after the petitions preferred by the State were dismissed by this Court vide order dated 28.03.2007. Thereafter, the petitioners preferred the petition by way of preferring the Special Civil Application No.4853 of 2014 seeking benefits of the Government Resolution dated 17.10.1988. Thereafter, the petitioners preferred the petition by way of preferring the Special Civil Application No.4853 of 2014 seeking benefits of the Government Resolution dated 17.10.1988. However, that petition was disposed of vide order dated 08.05.2014 by this Court whereby the direction was issued to the respondents to examine the cases of the petitioners individually and if found eligible, the direction was issued to extend the benefits of the Government Resolution dated 17.10.1988 to them as per the direction of the Hon’ble Supreme Court and the said exercise was directed to be done within a period of four months from the date of receipt of the order. However, as the benefits though were granted to the petitioners, the benefits were not granted in accordance with the law by not considering the intervening period from the date of termination till the date of reinstatement and therefore, this petition is preferred for that limited purpose. A chart showing details about each of the petitioners is as under. Sr.No. Name Date of Joining Date of Termination Date of award 1 Kharadi Lakshamanbhai Galabhai 01.12.1988 22.08.1997 24.11.2004 2 Damor Balvantbhai Mavabhai 1992 22.08.1997 24.11.2004 3 Padariya Somabhai Moghabhai 1984 22.08.1997 24.11.2004 4 Khant Lakshmanbhai Kanabha 1993 22.08.1997 24.11.2004 5 Khant Chandubhai Sartanbhai 01.08.1989 22.08.1997 24.11.2004 3.2. Now, in view of the fact that the petitioners’ termination was held to be illegal and except for the backwages, the order of reinstatement was kept as it is by the co-ordinate bench vide order dated 28.03.2007, in this petition, the petitioner has prayed for the benefit of Government Resolution dated 17.10.1988 on completion of 5 years, 10 years and 15 years of service as per the provision of the aforesaid resolution as the petitioners have almost completed 30-35 years services under the respondents respectively. 4. Mr.P.C.Chaudhari, learned advocate for the petitioners relied upon the decision of this Court in case of Nanjibhai Madhabhai Vs. 4. Mr.P.C.Chaudhari, learned advocate for the petitioners relied upon the decision of this Court in case of Nanjibhai Madhabhai Vs. State of Gujarat in Special Civil Application No.2192 of 2017 decided on 24.07.2018 and by relying upon the said decision, learned advocate Mr.P.C.Chaudhari submitted that the facts of the present petition are almost identical and while allowing the petition and while directing the respondents to confer and grant the benefits to the petitioners of Government Resolution dated 17.10.1988, suitable directions were issued by the co-ordinate bench to the State Government to the extent of reckoning the services of the petitioners from initial date of his joining and depending upon the completion of requisite number of services, to confer the corresponding benefits under the said resolution. It was also pointed out by learned advocate Mr.P.C.Chaudhari that the Court directed the respondent that the service of the petitioners be treated as continuous with effect from initial date of joining till the date of reinstatement and notional benefits would be calculated and actual benefits be paid from the date of reinstatement onwards. The arrears which may arise and become payable by virtue of the order passed by the Court from onwards the date of reinstatement was directed to be paid within a period of 10 weeks from the date of receipt of the order passed by the Court. Learned Advocate Mr.P.C.Chaudhari submitted that in view of the fact that the facts of the present petitioners are almost identical, this Court may pass similar order looking to the facts of the case as was passed in the Special Civil Application No.2192 of 2017 on 24.07.2018. 5. Though Mr.Sanjay Udhwani, learned Assistant Government Pleader for the respondent - State vehemently opposed the petition from the facts stated in the petition supported by the relevant orders of this Court as well as by the Labour Court, could not deny the fact that the petitioners’ services were terminated and the petitioners’ termination was held to be illegal. 5. Though Mr.Sanjay Udhwani, learned Assistant Government Pleader for the respondent - State vehemently opposed the petition from the facts stated in the petition supported by the relevant orders of this Court as well as by the Labour Court, could not deny the fact that the petitioners’ services were terminated and the petitioners’ termination was held to be illegal. When the order of termination was challenged before this Court during pendency of the petition, the petitioners were reinstated and except for the purpose of back-wages, the award of termination was not interfered with by this Court and hence, though the petition was objected tooth and nail by the learned AGP, he could not point out that the directions issued in the Special Civil Application No.2192 of 2017 in case of Nanjibhai Madhabhai are not required to be passed in this case as the facts are different. Learned AGP therefore, prayed for dismissal of the petition but could not find any support either from the facts of the case or from the judgment relied upon by Mr.P.C.Chaudhari, learned advocate for the petitioners. 6. At this juncture, learned advocate Mr.P.C.Chaudhari points out that the present petitioners are on better footing as compared to the case of Nanjibhai Madhabhai simply for the reason that in the instance case, there is no dispute about petitioners’ continuity of service as the petitioners’ reinstatement was with continuity of service. He, therefore, prayed for allowing the petition by issuing the similar directions. 7. I have heard learned advocates for the parties and perused the record. On perusal of record, I found that the facts stated by learned advocate Mr.P.C.Chaudhari which could not be disputed by the learned AGP indicates that petitioners’ services were illegally terminated by the respondents which was directed to be reinstated with continuity of service by the Labour Court and the said order was not interfered with by this Court when the aforesaid order was challenged before this Court except for the purpose of back-wages. The petitioners were reinstated during pendency of the petition whereby the Labour Court’s award reinstating the petitioners with continuity of service and back-wages was challenged before this Court. The petitioners were reinstated during pendency of the petition whereby the Labour Court’s award reinstating the petitioners with continuity of service and back-wages was challenged before this Court. While dealing with the submission of the learned advocate Mr.P.C.Chaudhari appearing for the petitioner, the Court finds that in case of Nanjibhai Madhabhai in similar set of facts wherein continuity of service was not expressly granted by the Labour Court, the Court considered the issue by observing in para 3 to para 5.1 as under. “3. The Labour Court in its judgment and award, though directed the reinstatement of the petitioner, did not expressly confer the benefit of continuity of service, therefore, the moot question is whether the petitioner would be entitled to continuous service when the same was not expressly granted by the Labour Court while ordering reinstatement. 4. In Vasantika R. Dalia Vs. Baroda Municipal Corporation [ 1998(2) LLJ 172 ], this Court was posed to interpret the judgment and award of the Labour Court which granted the relief of reinstatement to the workmen. The relief of back-wages was denied and the relief of continuity of service was not denied specifically and that in the relief of reinstatement granted, the word 'continuity' was not mentioned. 4.1 The Court observed to lay down that “It may be straightaway observed that once the relief of reinstatement is granted, the continuity of service is a direct consequence rather inherent in the relief of this nature”. It was held that when the relief of reinstatement was granted and the continuity of service was not specifically denied, the workman has to be relegated to the same position as was held by it at the time of termination. When the order of termination was found to be void, the petitioner, it was held, would be entitled to hold the relief of reinstatement with continuity where there was no mention of specific denial to such continuity. 4.2 The Supreme Court in Gurpreet Singh Vs. State of Punjab and others [ 2002 (92) FLR 838 ], held that once the plaintiff was directed to be reinstated in service upon setting aside of the order of termination, continuity of service could not be denied. 4.2 The Supreme Court in Gurpreet Singh Vs. State of Punjab and others [ 2002 (92) FLR 838 ], held that once the plaintiff was directed to be reinstated in service upon setting aside of the order of termination, continuity of service could not be denied. The Court observed that the case was not of fresh appointment but it was one of reinstatement and that being the position, it was observed that the High Court was in error in denying the continuity of service. 4.3 Thus and therefore, even though the judgment and award of the Labour Court had not expressly granted the continuity, at the same time it did not deny the continuity in any expressed terms. The grant of continuity would have to be read with the order of reinstatement. The petitioner would be entitled to be treated continuous in service upon reinstatement. Resultantly, the petitioner would be entitled to be granted the benefits of resolution dated 17.10.1988 accordingly by reckoning his services as continuous from the date of his initial appointment. 4.4 When the award of the Labour Court had not expressly denied the continuity is to be interpreted as per the principles of law laid down by the Supreme Court in Gurpreet Singh (supra), the concept of continuity could not be distinguished for the purpose of granting any other service benefits. Learned Assistant Government Pleader made a failed attempt to submit that the continuity for the purpose of granting benefits under resolution dated 17.10.1988 may be treated differently. Any such distinction would be artificial distinction. 4.5 Not only that, it was undisputedly stated by learned advocate for the petitioner that the judgment and award of the Labour Court under which the petitioner was reinstated was common judgment and award in several reference cases and other identically phased workmen who were also governed by the said judgment and award, came to be treated continuous in their services from the date of their initial appointment. In this regard, copy of office order dated 18.07.2006 by the Deputy Executive Engineer, Surendranagar Irrigation SubDivision, Surendranagar, was produced whereby the benefit of continuous service was granted to as many as thirteen workmen who were reinstated under the same common judgment and award of the Labour Court. In this regard, copy of office order dated 18.07.2006 by the Deputy Executive Engineer, Surendranagar Irrigation SubDivision, Surendranagar, was produced whereby the benefit of continuous service was granted to as many as thirteen workmen who were reinstated under the same common judgment and award of the Labour Court. 4.6 Therefore, in the above view, the denial of continuity of service to the petitioner would stand only for breach of Article 14 of the Constitution. 5. As a result of the above discussion, the petition deserves to be allowed. The respondents are directed to confer and grant the benefits to the petitioner under resolution dated 17.10.1988 of the State Government by reckoning the services of the petitioner from the initial date of his joining and depending upon the completion of requisite number of years to confer the corresponding benefits under the said resolution. 5.1 The services of the petitioner shall be treated as continuous with effect from the initiate date of joining till the date of reinstatement and notional benefits would be calculated and granted for the period from the date of reinstatement onwards. The arrears which may arise and become payable by virtue of this order from onwards the date of reinstatement shall be paid by the authorities to the petitioner within a period of ten weeks from the date of receipt of the present order.” 8. In the instant case, even the continuity of service is not in dispute and therefore, when other facts are almost similar, the petitioners also are entitled to the benefits of the Government Resolution dtd. 17.10.1988 in view of the observations made by this Court in the case of Nanjibhai Madhabhai (supra). Accordingly, the following directions are issued :- 1. Based upon the observations made in the decision in case of Nanjibhai Madhabhai, each petitioner’s period of entry in the service till his date of termination be treated from his initial date of appointment by treating the period in duty where the petitioners have completed 240 days in a year respectively. 2. Accordingly, the following directions are issued :- 1. Based upon the observations made in the decision in case of Nanjibhai Madhabhai, each petitioner’s period of entry in the service till his date of termination be treated from his initial date of appointment by treating the period in duty where the petitioners have completed 240 days in a year respectively. 2. A period between actual date of termination and actual date of reinstatement be treated notionally for the purpose of counting benefits of Government Resolution dtd.17.10.1988 or any other Government Resolution applicable to the present petitioners based on Government Resolution dated 17.10.1988 as the petitioners are the employees of the Forest Department and from the date of reinstatement, the benefit of arrears be paid to the petitioners on actual basis. 3. The respondents are directed to extend the benefits to the petitioners of the Government Resolution dtd. 17.10.1988 including all consequential and incidental benefits by taking into consideration the above directions and such benefits be paid to the petitioners within a period of 12 weeks from the date of receipt of this order. 4. The period between the date of termination till the date of actual reinstatement be treated as a period in service and the benefit of arrears be paid to the petitioners from the actual date of reinstatement within a period of 12 weeks from the date of receipt of this order. 9. With the aforesaid observations and directions, the present petition is allowed. Rule is made absolute to the aforesaid extent.