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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
DAHYABHAI LAGHARBHAI MAKWANA – Petitioner
Versus
STATE OF GUJARAT – Respondent
Special Civil Application No. 21344 of 2019
Decided On : 27-09-2022
Labour Dispute - Government Resolution - 17.10.1988 - [BIREN VAISHNAV, J.] - [LCS No. 93 of 1995, LCS No. 274 of 1992, SCA No. 1881 of 2021, SCA No. 14049 of 2017, SCA No. 131 of 2019, LPA No. 1214 of 2019, LPA No. 492 of 2016, LPA No. 485 of 2017, Special Civil Application No. 21123 of 2018, Letters Patent Appeal No. 1132 of 2018, Letters Patent Appeal No. 1268 of 2017, Letters Patent Appeal No. 553 of 2017, Special Civil Application No. 14297 of 2019] - The court discussed the benefits of the Government Resolution dated 17.10.1988 notionally and the issue of continuity of service. The court relied on various decisions including Nandkishore Shravan Ahirrao vs. Kosan Industries (P) Ltd. AIR 2020 SC 1776 and Gurpreet Singh vs. State of Punjab and Haryana, (2002) 9 SCC 492 to establish that once the termination is set aside, the employee cannot be denied continuity of service once reinstatement is directed. The court allowed the petition and directed the respondents to confer the benefits flowing from the resolution dated 17.10.1988 notionally and give the difference of salary by treating the entire period of service from the initial date of appointment as continuous. The court also directed the respondents to extend the benefits of Leave Encashment to the petitioners within the stipulated time frame.
Fact of the Case:
The petitioner, a daily wager, raised an industrial dispute after termination and sought reinstatement and benefits of the Government Resolution dated 17.10.1988. The Labour Court partly allowed the reference and directed reinstatement without backwages. The petitioner was reinstated but the benefits of the resolution were not extended. The petitioner retired and sought pensionary benefits based on 38 years of service.
Finding of the Court:
The court found that the petitioner was entitled to the benefits of the Government Resolution dated 17.10.1988 notionally and directed the respondents to confer the benefits and give the difference of salary by treating the entire period of service from the initial date of appointment as continuous. The court also directed the respondents to extend the benefits of Leave Encashment to the petitioners within the stipulated time frame.
Issues: The issues involved the extension of benefits of the Government Resolution dated 17.10.1988 and the determination of continuity of service for the purpose of granting benefits.
Ratio Decidendi: The court established that once the termination is set aside, the employee cannot be denied continuity of service once reinstatement is directed. The court relied on various decisions to establish that the concept of continuity of service has to be read into the order of reinstatement unless otherwise expressly denied.
Final Decision: The petition was allowed and the respondents were directed to confer the benefits of the Government Resolution dated 17.10.1988 notionally and give the difference of salary by treating the entire period of service from the initial date of appointment as continuous. The court also directed the respondents to extend the benefits of Leave Encashment to the petitioners within the stipulated time frame.
JUDGMENT :
BIREN VAISHNAV, J.
1. Rule returnable forthwith. Mr. Kurven Desai, learned Assistant Government Pleader waives service of notice of rule on behalf of respondents.
2. With consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing today.
3. By way of this petition, the prayer in the petition is that after having retired from service with effect from 30.11.2014, the petitioner is entitled to the benefit of the Resolution dated 17.10.1988 with effect from 1.10.1988 notionally upto 10.5.2007 and further entitled the difference of salary from 11.5.2007 to 30.11.2014. The other prayer is for leave encashment of 300 days.
4. Facts in brief would indicate that the petitioner was employed by the Deputy Executive Engineer, Dhrangadhra as Daily Wager since 1977. His services were terminated in August, 1985 as a result of which he raised an Industrial Dispute. The Labour Court, by an award dated 10.5.2007 partly allowed the Reference and directed reinstatement without backwages. On a challenge to the award, Special Civil Application was filed and was dismissed on 13.12.2007. The petitioner was reinstated in the year 1.10.2008.
5. Mr. Shah, learned advocate for the petitioner would rely on an order dated 25.3.2022 passed by this Court in SCA No. 1881 of 2021 which reads as under:
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 for quashing and setting aside the order dated 02.11.2011 and to extend the benefits of the Government Resolution dated 17.10.1988 with effect from 01.10.1988 notionally upto 20.06.2006 and further be pleased to direct the respondents to give difference of salary from 21.06.2006 till 31.12.2018. Further direction is prayed that they be paid pension from 01.01.2019 on the basis of 38 years of service.
4. The facts in brief would indicate that the petitioner was appointed as a daily wager on 01.04.1982. His services were terminated from 01.04.1992. The petitioner raised an industrial dispute in Reference LCS No. 93 of 1995. The same was partly allowed by an order dated 20.06.2006 directing reinstatement without back-wages. The petitioner was reinstated vide order dated 19.12.2006. His services have been regularized as per the resolution dated 17.10.1988 by an order dated 02.11.2011 with effect from 21.07.2011. The petitioner retired from services on 31.12.2018. The case of the petitioner is that she having completed 38 years of service, she is entitled to pensionary benefits. However, for the purposes of calculating pension, the respondents have considered only seven years of service i.e. with effect from 21.07.2011 to 31.12.2018.
5. Mr. Shah learned counsel for the petitioner would submit that the issue is covered by the decision of this Court in case of Jagabhai Chaganbhai Parmar vs. State of Gujarat and Others rendered in Special Civil Application No. 14049 of 2017, wherein, this Court considering the decisions in case of Nandkishore Shravan Ahirrao vs. Kosan Industries (P) Ltd. AIR 2020 SC 1776, passed the following order:
“1. Heard learned advocates for the parties.
2. This petition under Article 226 of the Constitution of India is filed against the non granting of benefit of Resolution dated 17.10.1988 to the petitioner.
3. The facts of the case would indicate that the petitioner on being terminated had approached the Labour Court by raising a dispute by way of Ref. (LCS) No. 274 of 1992. By an award dated 11.06.1997, the reference was partly allowed and the petitioner was ordered to be reinstated with 20% backwages.
4. The only ground on which the petitioner seems to be deprived of the Government Resolution dated 17.10.1988 that the award of the Labour Court specifically does
Once the termination is set aside, the employee cannot be denied continuity of service once reinstatement is directed.
Continuity of service is established upon reinstatement, and benefits under the Government Resolution cannot be denied based on prior illegal termination.
Point of law: Once the issue, as ordered while setting aside the termination, has ordered of reinstatement, the continuity of service cannot be denied and the case of is of not fresh appointment, but....
Reinstatement inherently includes continuity of service, entitling the employee to benefits from the initial date of joining, despite a period of illegal termination.
Continuity of service is inherent in reinstatement, entitling the petitioner to benefits from the initial date of joining despite the illegal termination.
Reinstatement of employees following illegal termination entails continuity of service, allowing for benefits under applicable government resolutions from the initial date of joining.
If the Labour Court does not specifically deny continuity of service, the concerned worker is entitled to it.
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