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2024 DIGILAW 2157 (GUJ)

Himmatbhai Vithhalbhai Patil v. State Of Gujarat

2024-12-05

NIRZAR S.DESAI

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JUDGMENT : Nirzar S. Desai, J. 1. As the issue pertains to grant of benefit of Government Resolution dated 17.10.1988 and as the petitioner has claimed such benefits from his initial date of joining, which according to Mr.P.C.Chaudhari, learned advocate for the petitioner, 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 petitioner has 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 petitioner has further prayed for a direction to the respondents to fix the salary of the petitioner by considering the intervening period i.e. from the date of termination till the date of reinstatement as notional and has 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 Mr.P.C.Chaudhari, learned advocate for the petitioner are stated as under:- 3.1. That the petitioner is working under the respondents since 1990 as a Peon. He was illegally terminated from services on 1.11.1999 and the petitioner challenged the said action of termination by way of Reference (L.C.A.) No.1003/2000 before the Labour Court at Ahmedabad. The Labour Court, Ahmedabad passed an award dated 30th October, 2003 and directed the respondents to reinstate the petitioner on his original post with continuity of service along with full back-wages. Since the order passed by the Labour Court was an ex-parte order and based upon that order, as the petitioner preferred the Recovery Application claiming the backwages, the respondents preferred the application for restoration. However, the said restoration was also dismissed by the Labour Court by order dated 13.03.2008. The aforesaid orders of award and rejecting the restoration application were challenged before this Court by the respondents by way of Special Civil Application No.9662 of 2008 and during pendency of that petition, the petitioner was reinstated. However, the said restoration was also dismissed by the Labour Court by order dated 13.03.2008. The aforesaid orders of award and rejecting the restoration application were challenged before this Court by the respondents by way of Special Civil Application No.9662 of 2008 and during pendency of that petition, the petitioner was reinstated. However, subsequently, the said Special Civil Application No.9662 of 2008 was partly allowed vide judgment dated 5.8.2022 by the co-ordinate bench of this Court, whereby the order passed by the Labour Court dated 30th October, 2003 in Reference (LCA) No.1003 of 2000 was quashed and set aside qua back-wages only and rest of the directions issued by the Labour Court remained the same. 3.2. Now, in view of the fact that the petitioner's 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 05.08.2022, in 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 petitioner has almost completed 32 years services under the respondents. 4. Mr.P.C.Chaudhari, learned advocate for the petitioner 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 petitioner 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 petitioner 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 petitioner be treated as continuous with effect from initial date of joining till the date of reinstatement and notional benefits would be calculated and the actual benefits be paid from the date of reinstatement onwards. It was also pointed out by learned advocate Mr.P.C.Chaudhari that the Court directed the respondent that the service of the petitioner be treated as continuous with effect from initial date of joining till the date of reinstatement and notional benefits would be calculated and the 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 petitioner 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 petitioner’s services were terminated and the petitioner’s termination was held to be illegal. When the order of termination was challenged before this Court during pendency of the petition, the petitioner was 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 petitioner. 6. At this juncture, learned advocate Mr.P.C.Chaudhari points out that the present petitioner is 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 petitioner’s continuity of service as the petitioner’s reinstatement was with continuity of service. He, therefore, prayed for allowing the petition by issuing the similar directions. 7. 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 petitioner’s 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 petitioner was reinstated during pendency of the petition whereby the Labour Court’s award reinstating the petitioner 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. 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. 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. 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 Sub-Division, 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 petitioner also is 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. In the instant case, even the continuity of service is not in dispute and therefore, when other facts are almost similar, the petitioner also is 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, the petitioner’s period of entry in the service in the year 1990 till his date of termination i.e. 1.11.1999 be treated as a period in duty where the petitioner has completed 240 days in a year. 2. A period from 01.11.1999 till 01.09.2008 i.e. the date on which the petitioner was reinstated be treated as a period in service and the petitioner would be entitled to the benefits notionally and the respondents may calculate the aforesaid benefits for the aforesaid period notionally. 3. The respondents are directed to extend the benefits to the petitioner 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 petitioner 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 petitioner 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. ORDER IN CIVIL APPLICATION NO.1 OF 2023:- In view of the order passed in the main matter being Special Civil Application No.18619 of 2022, the present application is disposed of.