SCA/13728/2006 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13728 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BHURABHAI M RABARI - Petitioner(s) Versus THE DIRECTOR OF ANIMAL HUSBANDARY & 1 - Respondent(s) ========================================================= Appearance : MR PH PATHAK for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 2. RULE SERVED for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 08/10/2008 ORAL JUDGMENT 1.The petitioner has approached this court under Article 226 of the Constitution of India seeking writ of mandamus or any other appropriate writ SCA/13728/2006 2/6 JUDGMENT or direction to the respondent for complying the award of Labour Court and for grant of benefits of pension and the benefit flowing from Government Resolution dated 17.10.1988 as he was entitled to such benefits pursuant to the award passed by the Labour Court on 17.01.2004 in Reference Case No. 1308 of 1989 (old) again Reference Case No. 162 of 1996 (New). 2.Facts in brief leading to filing of this petition deserve to be set out as under. 2.1 The petitioner as per his say was engaged as Daily Wager by the respondent for grazing animals in the year 1978. His services were terminated w.e.f. 07.08.1984 and therefore, he had to raise Industrial Dispute which came to be numbered as 1308 of 1989 (old) and re-numbered as 162 of 1996. The Labour Court relying upon communication dated 27.10.1989 that the petitioner had been engaged as Daily Wager from 27.01.1978 to 07.08.1984 considered to be in service for seven years and partly allowed the reference ordering reinstatement without back- wages. The said award came to be made on 17.01.2004. It requires to be noted that the petitioner attained the age of 60 years on 09.08.1999 and the award for reinstatement came to be passed only on 17.01.2004. Despite these facts available on the record as could be seen from the testimony of the petitioner, the award came to be passed for reinstatement. Therefore, it appears that the same was challenged by the SCA/13728/2006 3/6 JUDGMENT respondent by preferring Special Civil Application No. 6977 of 2004 wherein the workman -present petitioner was represented by Advocate and this Court disposed of the same on 27.09.2004 on the statement that the matter had become infructuous as the petitioner had attained the age of superannuation on 09.08.1999. It deserves to be noted at this stage that no demur is made by the present petitioner who was represented through Advocate before the Court and the matter challenging the award came to an end. Thus, the petitioner preferred this Petition in 2005. 3.Learned counsel for the petitioner has stated at the bar that the amount which would have been payable to him had he been working as Daily Wager till 09.08.1999, has already been paid to him what is in-fact prayed for in this petition is the equality in treatment on the strength of the award dated 17.01.2004 as reinstatement was ordered. The petitioner ought to have been treated as continuously serving the department and would have been eligible for receiving the benefits flowing from the Government Resolution dated 17.10.1988 based whereupon many other continuing Daily Wagers were granted benefits of pay scales and other monetary benefits. Learned Counsel for the petitioner relied upon the decision of the Apex Court in case of Sanatkumar Dwivedi V/s. Dhara Jilla Sahakari Bhoomi Vikas Bank Maryadit reported in 2001 AIR Supreme Court weekly 2430 in support of his contention that SCA/13728/2006 4/6 JUDGMENT where ever there is an award of reinstatement, the continuity of service is implicit therein and therefore, the Court's award is to be complied with accordingly. In the instant case, the reinstatement award implied continuity of service on the part of the workman so as to make him entitled for receiving benefits flowing from Government Resolution dated 17.10.1988 as those benefits like pension etc. had not been given and therefore this petition is preferred. 4.This court is unable to accept the submissions canvassed by learned Advocate for the petitioner in peculiar facts and circumstances of the present case. There cannot be any dispute with regard to the order of reinstatement and its effect. But the peculiar facts militating against granting of such relief to the petitioner deserve to be enlisted as under:- (i) The workman-petitioner though orally terminated on 07.08.1994 did not pursue his remedy available to him as the reference is filed only in the year 1989. Prior to his alleged termination, the workman had putting as per his say 7 years of continuous service as Daily Wager only. The workman has not agitated his grievance nor has he articulately asked for any appropriate relief during the pendency of reference when the reference was being decided. Therefore, the Labour Court has also granted him no benefit of back wages or continuity of service and it is only with regard to SCA/13728/2006 5/6 JUDGMENT reinstatement and this award came to be passed on 17.01.2004 when the same was not being complied with in its true spirit and letter. However the same was challenged by this respondent in Special Civil Application No. 6977 of 2004 where the petitioner workman was party respondent and represented through Advocate. No demur is raised and the challenge was permitted to die out on account of the petition becoming infructuous. Therefore, the workman who was represented by Advocate having not resisted the disposal of the petition and permitted the challenge to die-out without there being adjudication is equally bound by the principle of res-judicata or rather constructive res- judicata and now it is not open to him to turn around and after receiving the monetary benefits which were admissible to him and which he received as if he was Daily Wager till 09.08.1999 i.e. the age of 60 years filed a petition for seeking larger benefit. The action amount to cause great prejudice to the other side, petition otherwise would have been continuously agitated and adjudicated upon the propriety of the award under challenged. 5.Shri V.S.Pathak, learned A.G.P. has pointed out that the persons who were continued as Rojamdar have been granted the benefit flowing from the resolution dated 17.10.1988 that includes even the persons who were junior to the petitioner. 6.In view of this, this court is not inclined to SCA/13728/2006 6/6 JUDGMENT grant any relief. The petition deserves to be dismissed as having no merits. Accordingly, the same is dismissed. Rule is discharged. However there would be no order as to costs. Sd/- (S.R.BRAHMBHATT,J.) Jyoti