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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
Hasmukh Hirjibhai Songra – Appellant
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 15479 of 2022
Decided on : 19-10-2022
Labour Dispute - Government Resolution - 17.10.1988 - Article 226 - 240 days of service - Labour Court award - Continuity of service
Fact of the Case:
The petitioner sought to quash a communication and extend the benefits of a Government Resolution from his initial date of appointment. The petitioner's services were terminated, and an industrial dispute led to a Labour Court award directing reinstatement with continuity of service. The petitioner challenged the award, claiming entitlement to the benefits of the Resolution.
Finding of the Court:
The Court found that the petitioner had completed 240 days of service, as affirmed by the Labour Court and the Court itself. The authorities were not entitled to sit over the decisions and record an independent finding contrary to the affirmed finding.
Issues: The main issue was whether the petitioner was entitled to the benefits of the Government Resolution dated 17.10.1988 from his initial date of appointment, considering the completion of 240 days of service.
Ratio Decidendi: The Court held that once a finding was recorded by the Labour Court and affirmed by the Court, the authorities could not independently contravene the finding. The petitioner was entitled to the benefits of continuity of service and the Resolution from his initial date of appointment.
Final Decision: The petition was allowed, and the communication holding that the benefits of the Resolution cannot be granted to the petitioner was quashed and set aside. The respondents were directed to extend the benefits of the Resolution from the petitioner's initial date of appointment and revise pensionary benefits accordingly.
JUDGMENT :
1. RULE returnable forthwith. Mr.Utkarsh Sharma learned AGP waives service of notice of Rule on behalf of the respondent State.
2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.
3. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the communication dated 28.03.2022 and direct the respondents to extend the benefits of the Government Resolution dated 17.10.1988 considering the services of the petitioner from his initial date of appointment i.e. 21.07.1988.
4. Facts in brief would indicate that the petitioner had joined the department as a daily wager on 21.07.1988 and worked upto 10.12.1999. thereafter, the services of the petitioner were terminated on 10.12.1999. An industrial dispute was raised and it being referred to the Labour Court, the Labour Court, by an award dated 27.08.2012, directed reinstatement with continuity of service.
5. Challenge to the award by filing a petition being Special Civil Application No.3528 of 2013 resulted in modification of the award only qua back-wages. Letters Patent Appeal too was dismissed. Despite this, it was Mr.Mishra’s contention that by the impugned order dated 20.03.2022, the benefits of the resolution dated 17.10.1988 have not been extended from his initial date of appointment. Reliance is placed on an order passed by this Court in Special Civil Application No.12420 of 2021 which reads as under:
2. The prayer of the petitioner is that the communication dated 30.07.2021 passed by the respondents holding that the benefit of the Resolution dated 17.10.1988 cannot be granted to the petitioner on the ground that the petitioner has not completed 240 days from the year 1981 to 1989 is bad.
3. The facts in brief would indicate that the petitioner was working as a daily wager, engaged in the year 1981 and worked up to 1989. Services of the petitioner came to be terminated which caused the petitioner to raise an industrial dispute. By an award dated 31.03.2007, the Labour Court in Reference(LCR) No.400/1992 lodged the reference directing the petitioner to be reinstated in service with 20% backwages.
3.1 On a challenge to the award by the employer, this Court by judgment and order dated 21.08.2013 dismissed the petition observing that the petitioner was entitled to the benefit of continuity of service. The petitioner was reinstated by an order of 13.03.2013. The petitioner had an occasion to approach this Court earlier for asking for the benefits of the Resolution dated 17.10.1988. By an order dated 24.06.2021, was relegated to the authorities to make a representation thus on the representation made, the order impugned.
4. Mr.M.T.Mishra, learned counsel for the petitioner, would submit that the observation of the authorities that the petitioner has not worked for 240 days from 1981 to 1989 is misconceived. A categorical issue was raised before the Labour Court on the aspect of whether the petitioner had completed 240 days of service. The Labour Court in para 15 of the award specifically recorded a finding that the petitioner had completed 240 days of service on the basis of the settled position of law that an adverse inference be drawn against the employer on failing to prove the case otherwise.
5. Ms.Surbhi Bhati, learned AGP, would support the order impugned in the petition and submit that though the petitioner had asserted before the Labour Court that he had completed 240 days of service in each year, he did not discharge the onus of proving that fact by producing relevant evidence before the Labour Court. It is a settled position of law in Ms.Surbhi Bhati’s submission that it is the employee who has to discharge the burden before the Labour Court in proving the fact of having worked for 240 days.
6. Considering the submi
The main legal point established is that once a finding is affirmed by the competent Court, the authorities cannot independently contravene the finding.
The main legal point established is that continuity of service should be granted based on an award of reinstatement by the Labour Court unless expressly denied.
When the Labour Court grants continuity of service, the benefits arising from the Government Resolution dated 17.10.1988 should be available as a necessary corollary, and the employer cannot deny con....
Continuity of service is inherent in reinstatement, entitling the petitioner to benefits from the initial date of joining despite the illegal termination.
Reinstatement of a worker inherently includes continuity of service, entitling them to benefits from the initial date of joining.
The main legal point established is that the Government Resolution dated 17.10.1988 applies to extend benefits to those working on a daily wage basis, and continuity of service is crucial in determin....
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