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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.C. RAO, J.
Hirabhai Nanabhai Bhoi – Appellant
Versus
State Of Gujarat – Respondents
R/Special Civil Application No. 9159 of 2020
Decided on : 26-02-2021
Labour Law - Industrial dispute - Denying benefit of G.R - Back wages - Termination from service - Claiming benefits of permanent employee - Seeks to quash and set aside the impugned order passed by respondent No.2 and also to direct respondents to confer benefits of GR to petitioner and he may be treated as permanent employee after completion of 10 years of service i.e. 2002 and accordingly he may be held entitled to have all benefits of permanent employee including regular pay-scale and also prayed for direction to respondents to pay difference of salary which petitioner would be entitled after 21.8.1997 until date of award of Labour Court and also prayed to direct respondents to pay interest at rate of 18% on arrears of salary which is payable to petitioner.
Finding of the court: It is pointed out by appellant that even if the respondents become permanent, they would be entitled to be fitted in the job description in terms of the Rules. What is Civil Appeal No emphasised is that even after regularisation, their pay scales cannot be more than the pay which is given to employees who are taken on permanent basis. This appears to be a very sound argument. Only plea was that whatever is given to such employees in other departments, same benefit be extended to respondents as well. It is difficult to countenance this submission which we find to be legally impermissible - Petitioner would be entitled to be governed by Resolution for purpose of benefits flowing therefrom. Petitioner would be entitled to all consequential benefits including pension if he has retired. Petitioner to get benefit of continuity of service and benefits under Resolution
Result: Petition allowed
ORDER :
It appears that through inadvertence and mistake, some improper order has been transcribed in this matter on 23.12.2020. Therefore, the said order dated 23.12.2020 is recalled and replaced by present order.
2. Rule returnable forthwith. Mr. Trivedi, learned AGP waives service of rule for the respondent State.
3. By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed to issue a writ of mandamus and/or a writ in the nature of mandamus and/or appropriate writ, order or direction to quash and set aside the impugned order dated 10.2.2020 passed by the respondent No.2 and also to direct the respondents to confer benefits of GR dated 17.10.1998 to the petitioner and he may be treated as permanent employee after completion of 10 years of service i.e. 2002 and accordingly he may be held entitled to have all the benefits of permanent employee including regular pay-scale from 11.11.2002 and also prayed for direction to the respondents to pay difference of salary which the petitioner would be entitled after 21.8.1997 until the date of award of the Labour Court and also prayed to direct the respondents to pay interest at the rate of 18% on the arrears of salary which is payable to the petitioner.
4. The brief facts leading to the present petition, in words of the petitioner, are that, the petitioner came to be appointed as Peon with the office of the respondent No.2 herein. That at present, the petitioner is working as Peon for maintenance City Survey Superintendent, Shahera under respondent No.2. The petitioner came to be appointed on 11.11.1992. It is the case of the petitioner that, without following any procedure of law and absolutely in illegal manner, he came to be terminated from the service with effect from 15.09.1993. The petitioner, therefore, raised industrial dispute. The Labour Court, Godhra, in Reference (LCG) No.684 of 1993 has been pleased to held that the petitioner has completed 240 days of service and he has been illegally terminated without following due procedure of law. The Labour Court, accordingly, vide its award dated 21.07.1997 has been pleased to direct the respondents to reinstate the petitioner in service without back wages but with continuity of service.
4.1 It is the case of the petitioner that, the respondents challenged the said award before this Court by way of Special Civil Application No.3500 of 1998. That, in the year 2003, respondents reinstated the petitioner, however, it appears that at his wish and will, respondent No.2 has marked presence of the petitioner though petitioner was never been relieved from the duty. Again, the petitioner was relieved in May, 2005 and after a year, he was again provided work. This Court by order dated 01.07.2005 has been pleased to reject the petition of the respondents.
4.2 That, this Court specifically observed that respondents are required to grant benefit of award from the date of publication of the award and the regular payment is required to be made to the petitioner. It is pertinent to note that the petitioner has not been paid salary regularly after the award, despite the observations of this Court. It is also pertinent to note that the petitioner had preferred at the first instance petition before this Court being Special Civil Application No.12448 of 2012 for grant of benefits of the G.R. dated 17.10.1988. The petitioner had also preferred Recovery Application No.36 of 2015, in which the petitioner had prayed for grant of salary in view of the award of the Labour Court. The said application for recovery came to be rejected on the ground that there is no pre-existing right in favour of the petitioner.
4.3 It is the case of the petitioner that, the petitioner is required to be placed in fixed pay itself, though notionally, in the year 1997. Thus, as per the award of the Labour Court, petitioner was required to be reinstated with effect from publication of the award i.e. from 21.08.1997 on the fixed pay itself. The p
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