IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 10005 of 1996
For Approval and Signature:
Hon'ble MR.JUSTICE M.R.CALLA
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1. Whether Reporters of Local Papers may be allowed
to see the judgements? YES
J
2. To be referred to the Reporter or not? YES
3. Whether Their Lordships wish to see the fair copy
of the judgement? NO
4. Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder? NO
5. Whether it is to be circulated to the Civil
Judge? NO
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VASNTIKA R JALIA
Versus
BARODA MUNICIPAL CORPORATION
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Appearance:
MR AS SUPEHIA FOR MR IS SUPEHIA for Petitioner
MR PRANAV G DESAI for Respondent.
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CORAM : MR.JUSTICE M.R.CALLA
Date of decision: 05/05/97
ORAL JUDGEMENT
Heard learned Counsel.
The petitioner was employed with Baroda Municipal
Corporation on 7.7.1975 as Stenographer and her services
were terminated in January/February,1997 without
following requirements of Section 25F of the Industrial
Disputes Act. Ofcourse in the meantime for a short
period of three months by an order dated 14.10.1977 she
had been given an employment as Typist. However, the
petitioner had raised a dispute about her unlawful
termination in January/February,1977 from the post of
Stenographer. This dispute was referred to the Labour
Court, Baroda. On 28.3.1988 in reference (LCA) No.14 of
1980. The Labour Court, Baroda granted relief of
reinstatement in favour of the petitioner without any
backwages whatsoever. Against this award dated
28.3.1988, Baroda Municipal Corporation preferred Special
Civil Application No. 3483 of 1988 contesting the relief
of reinstatement as was granted by the Labour Court but
this petition failed. While rejecting the corporation’s
petition summarily the Division Bench observed that ” in
February, 1977 when the respondent was terminated from
service as Stenographer provision of Section 25F was
violated by the petitioner corporation and therefore her
termination was void”.
The present petitioner workman had also filed
Special Civil Application No. 5497 of 1988 contesting
for the backwages and consequential reliefs and this
Special Civil Application filed by the workman was
dismissed and the notice was discharged. The award dated
28.3.1988 as aforesaid thus attained the finality. It
appears that this award dated 28.3.1988 granting relief
of reinstatement to the workman was not implemented by
the respondent corporation and therefore a Miscellaneous
Civil Application No. 655 of 1988 in the nature of
contempt application had been filed by the petitioner
workman and this Miscellaneous Civil Application No. 655
of 1988 was decided by the Division Bench while noticing
the statement of learned Counsel Mr.P.G.Desai for the
respondent that it had complied with the direction given
by the Labour Court in as much as the petitioner has been
reinstated in service. The Division Bench has also
observed that there was some delay in reinstating the
petitioner on the original post and therefore the
statement of Mr.Desai was also noted that the wages for
the period for which the delay had been caused in
complying with the direction will be paid to her on or
before 12.10.1990. In view of this statement the
Division Bench found that the application did not survive
and the same was disposed of as having become
infructuous. In this background the dispute has now
precipitated between the parties about the continuity of
service i.e. from January,1977 to 23.8.1988 when she was
reinstated on the basis of the award dated 28.3.1988.
The Assistant Municipal Commissioner, 5th zone, Baroda
has passed an order that all the grievances of the
petitioner were included in Special Civil Application No.
547 of 1988 and this Special Civil Application had been
rejected on 18.6.1992 and therefore, her request for
granting continuity of service cannot be entertained.
This order dated 30.10.1996 passed by the Assistant
Municipal Commissioner, 5th zone, Baroda is under
challenge in this petition. Though it is mentioned in
the award dated 28.3.1988 that the relief of
reinstatement is granted while denying the backwages,
nothing has been said in the positive terms with regard
to the continuity of service or otherwise but the fact
remains that the relief of continuity has not been denied
by any specific mention as has been done for the
backwages. Thus the petitioner may have failed before
the Division Bench in getting the relief of backwages for
the intervening period but that does not mean the
forfeiture of the continuity of the service because it is
not a case of denying the continuity of service by any
positive penal order. The rejection of the petitioner’s
Special Civil Application No. 5497 of 1988 on 18.6.1992
only means that her claim for the backwages was not
accepted by this Court nor it can be said on the basis of
the order passed in Miscellaneous Civil Application
No.655 of 1988 on 28.9.1990 that everything due to the
petitioner under the award had been given. In a facts of
a given case if the Court comes to the conclusion that
the contempt proceedings are not warranted, the Court may
not proceed to initiate the contempt proceedings but the
mere fact that the Court does not initiate the contempt
proceedings does not mean that the rights of the party if
they are otherwise available to her on the basis of the
award passed after adjudication would come to an end. An
order or action may not be contemptuous per se, still it
may be illegal order. However, every illegal order may
not be a contemptuous order and therefore the rejection
of the application in the nature of seeking contempt
proceedings would not impeach upon otherwise illegal
order or action. In this view of the matter, in my
considered opinion, neither the rejection of the
petitioner’s Special Civil Application No. 5497 of 1988
on 18.6.1992 nor the rejection of Misc. Civil
Application No. 655 of 1988 in the nature of contempt
proceedings on the ground of being infructuous by the
Division Bench comes in the petitioner’s way for claiming
relief of continuity of service on the strength of the
award dated 28.3.1988, if at all it is available to her
on the basis of that award itself. It is therefore,
plain and simple case of interpretation of the relief
granted by the Labour Court while passing the award dated
28.3.1988. By this award the relief of reinstatement has
been granted but the relief of backwages has been denied
specifically and the relief of continuity of service has
not been denied in any terms except that along with the
relief of reinstatement the word ‘continuity’ has not
been mentioned. It may be straight way observed that
once the relief of reinstatement is granted, the
continuity of service is the direct consequence rather
inherent in the relief of this nature, more particularly
when the Division Bench has already held that the
termination was void. If the termination order was void
the meaning is that in the eye of law the relief of
reinstatement has to be granted as if the impugned award
had never been passed. The question of backwages is
therefore dependent on variable factors of gainful
employment during the period of enforced idleness and
therefore in a given case the relief of backwages may not
be granted depending upon the finding on the question of
gainful employment or otherwise during the period of
enforced idleness. When the relief of reinstatement is
granted and the continuity of service is not specifically
denied the party has to be relegated to the same position
as was held by it at the time of termination. When the
order of termination has been found to be void the
petitioner holds the relief of reinstatement with no
mention of specific denial of continuity of service the
oncerned workman has to be relegated to the position
which was obtaining at the time of termination of her
services and there is no question of denying the
continuity of services for the period for which the
services have been interrupted on account of an unlawful
and void order.
For the reasons aforesaid I find that the order
dated 30.10.1996 passed by the Assistant Municipal
Commissioner is not based on any sound reasoning.
Reasons given therein are extraneous and not tenable and
this order suffers from an error of law and appears to
have been passed without objective application of mind
and the same cannot be sustained in the eye of law. This
order dated 30.10.1996, therefore, deserves to be quashed
and set aside, which I hereby do and direct the
respondent to grant the relief of continuity of service
and such other alike benefits except the backwages for
the intervening period. It is also pointed out by
Mr.Supehia that the petitioner has already retired on
31.1.1997 on reaching the age of superannuation and a
grievance has been made that no pension is paid to the
petitioner. It is, therefore, made clear that the
petitioner being retired, due retiral benefits shall be
computed to her keeping the continuity of service in view
as if she had never been terminated in 1977 and as if she
had continued in service through out till the date of
retirement. Rule is made absolute in the terms as
aforesaid. No order as to costs.
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