Mahotji Shanaji Thakore vs State Of Gujarat

A.S. Supehia, J

The present writ-petition has been filed seeking a direction on the respondent authorities to grant the continuity of service so that they can be granted the benefits arising out of Government Resolution dated 17.10.1988.

The prayer of the petitioners is to consider their initial date of appointment for the purpose of granting the benefits of the Government Resolution dated 17.10.1988.

The petitioners, who are working as Daily Wagers, were terminated from the services on 15.09.1989, which was the subject matter of challenge before the Labour Court in Reference (LCA) No.1161 of 1990. The Labour Court passed an award directing the respondent authorities to reinstate them with continuity of service with 25% backwages vide award dated 31. 12.2005.

3.1 Since the petitioners were not granted the benefits of Government Resolution dated 17.10.1988, they were constrained to prefer Special Civil Application No.7895 of 2016, which was disposed of vide order dated 06.05.2016, whereby the respondents were directed to immediately look into the issue raised by the petitioners and to take an appropriate decision in this regard.

3.2 Since the aforesaid order was not complied, the petitioners filed the contempt proceedings being Misc. Civil Application No.486 of 2017. The contempt petition was heard by the Division Bench of this Court and vide order dated 06.02.2019, granted time to the Director to take appropriate stand as per the earlier order passed by this Court.

3.3 It appears that, thereafter, the petitioners have filed undertakings dated 20.02.2019 in the form of affidavits forgoing earlier service prior to reinstatement and benefits of Resolution dated 17.10.1988. Accordingly, the contempt petition came to be disposed of vide order dated 21.02.2019 recording the facts that the petitioners since were reinstated and had forgone earlier service.

3.4 It is a case of the petitioners that the aforesaid undertakings were forcibly taken from them forgoing the earlier service, which has resulted in the denial of benefits arising out of the Government Resolution dated 17.10.1988.

Mr.Bhatt, learned advocate for the petitioners has submitted that since the aforesaid undertaking was forcibly taken by them and being the employees of the respondents, they had no other option but to file an undertaking. The benefit arisen out of Government Resolution dated 17.10.1988 cannot be denied to them.

4.1 In support of his submissions, learned advocate for the petitioners has relied upon the decision of Apex Court in case of Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath Ganguly & Anr. reported in (1986) 3 SCC 156 and also the decision of the Apex Court in case of Secretary-cum- Chief Engineer, Chandigarh Vs. Hari Om Sharma & Ors. reported in (1998) 5 SCC 87.

4.2 Learned advocate for the petitioners has thus, submitted that the benefits arising out of the award with regard to continuity of service could not have been wiped out in view of the undertakings given by the petitioners. It is reiterated by learned advocate for the petitioners that such undertakings cannot be relied upon, as the same were forcibly taken from the petitioners by the respondent authorities and they have no option but to file such undertakings. Thus, it is submitted that the benefits arising out of the Government Resolution dated 17.10.1988 may be directed to be given to the petitioners.

Per contra, Mr.Aditya Pathak, learned AGP for the respondents-State has submitted that the petitioners have in fact filed affidavits dated 12.08.2016, wherein and whereby they have submitted that they would forgo the earlier services rendered from 1987 to 2006 and also the benefits arising out the of the Government Resolution dated 17.10.1988 and hence, now, they cannot claim the benefits of continuity of service and benefits of Government Resolution dated 17.10.1988.

5.1 Learned AGP has placed reliance on the affidavits and submitted that in fact, the statement to that effect was recorded by the Division Bench of this Court in Misc.Civil Application No.486 of 2017 and accordingly, the contempt petition was disposed of vide order dated 21.02.2019 and in view of the aforesaid statements recorded by the Division Bench of this Court as well as their affidavits, the petitioners are not entitled to any benefits arising out of the Government Resolution dated 17.10.1988.

The the aforementioned facts are not in dispute. The petitioners were not granted the benefits of Government Resolution dated 17.10.1988 by the Labour Court, which constrained them to file writ-petition being Special Civil Application No.7895 of 2016, which was disposed of vide order dated 06.05.2016 directing the respondents to look into the issue. Since the aforesaid issue of benefits arising from the Government Resolution dated 17.10.1988 was not answered, the petitioners filed Contempt Petition before this Court being Misc. Civil Application No.486 of 2017.

It appears that during the pendency of the aforesaid writ petition, the petitioners filed undertakings and affidavits dated 20. 02.2019 (Annexure-A, Page Nos.20 & 22) wherein they have categorically made statements that they are ready to forgo the benefits arising out of the Government Resolution dated 17. 10.1988 and also earlier service from 1987 to 12.12.2006 since they have been reinstated in service.

It appears that the petitioners have filed two affidavits dated 12.08.2016 and also 20.02.2019. Both the affidavits at Page No. 22 i.e. (affidavit dated 20.02.2019) Page No.73 (affidavit dated 12.08.2016) assert that the petitioners have forgone the benefits of the earlier services from 1987 to 13.12.2006 and the benefits arising out of Government Resolution dated 17.10.1988.

The Division Bench accordingly, disposed of the Contempt Petition vide order dated 21.02.2019 by observing thus:-

“Learned Assistant Government Pleader Ms Nisha M. Thakore, appearing for the respondents places on record an affidavit of the petitioner wherein the petitioner has stated that he has been reinstated in service on 13.12.2006 and that he will forgo earlier service from 1987 to 12.12.2006.

In view of above, substantial compliance is reported. The application is disposed of. Notice is discharged.

The Division Bench has specifically recorded that the petitioners have forgone earlier service from 1987 to 12.12.2006.

Thus, the established fact from the record is that the petitioners filed two undertakings in the Years 2016 & 2019 forgoing their rights arising from the Government Resolution dated 17.10.1988 as well as their earlier services before the reinstatement. The Division Bench has endorsed the same vide order dated 21.02.2019. It is the case of the petitioners that such undertakings were forcibly taken from them. The petitioners have tried to resurrect the issue of grant of benefits arising out of Government Resolution dated 17.10.1988, which was not granted to them.

It is very difficult to comprehend such submission made before this Court. By taking the excuse of forcible undertakings being taken by the respondents denying the aforesaid benefits, such contention raised in the writ-petition before this Court does not merit acceptance and is required to be rejected out rightly since it was always open for the petitioners to point out before the Division Bench that they are being coerced by the respondent authorities to file such undertakings forgoing the benefits of their earlier service as well as the benefits arising from the Government Resolution dated 17.10.1988. It was also open for the petitioners to file a recall application pointing out the forcible undertakings being obtained from them by the respondent authorities before the Division Bench. No complaints are also made against the respondent authorities with regard to the forcible taking of the undertakings in the Years 2016 & 2019. No legal proceedings are also initiated by the petitioners challenging such undertakings before any of the forums. So far as the law enunciated by the Apex Court in case of Brojo Nath Ganguly (supra) and Hariom Sharma (supra) are concerned, there cannot be cavil of proposition of law, but the same would not apply in the facts of the present case. Hence, in wake of the aforesaid facts, it cannot be said that the petitioners were forced to sign such undertakings forgoing the benefits of their earlier service as well as the Government Resolution dated 17.10.1988. Hence, the present writ-petition is devoid of any merits and the same stands rejected.