RAJESHBHAI KHODABHAI RATHOD vs STATE OF GUJARAT

C/SCA/649/2024 JUDGMENT DATED: 02/11/2026
(GJHC240021372024)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 649 of 2024
FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No

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RAJESHBHAI KHODABHAI RATHOD
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR. MUKESH T MISHRA(5900) for the Petitioner(s) Nos. 1, 2.
MS. KRISHNA DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
==========================================================
CORAM: HONOURABLE MR. JUSTICE NIRAL R. MEHTA

Date : 02/11/2026

ORAL JUDGMENT
1. Rule, returnable forthwith. Ms. Krishna Desai, learned
A.G.P. waives service of notice of Rule on behalf of
respondents.
2. By way of this petition, the petitioners have approached
this Court with the following prayers:
“(A) be pleased to That Your Lordships issue an order, direction
and/or writ in the nature of certiorari/mandamus and/or any other
direction, appropriate writ, order or directing to modify the
calculation and pay the arrears arising out of G.R. dated 17-10-
1988 (Annexure C) for the period 6-5-2008 to 31-12-2014 with 6%
simple interest;
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(B) Pending admission and final disposal of this petition, Your
Lordships be pleased to direct the respondents to pay the arrears
from 6-5-2008 to 31-12-2014 with 6% interest forthwith;
(C) Any other and such further relief as the Hon'ble court deems fit
and proper in the interest of justice together with costs;”
3. Brief facts of the present petition are as under:
3.1. Learned advocate Mr. M. T. Mishra appearing for the
petitioners has submitted that the petitioners were originally
appointed as a daily-wagers in the year January 1992 and
15.12.1983 and continuously worked up to March 1999,
respectively and thereafter they were illegally terminated. The
petitioners approached the Hon’ble Labour Court, Rajkot, by
filing Reference(LCR) No.200/2005 and 201/2005, wherein the
Labour Court passed common Award on 6-5-2008, directing the
respondents to reinstate the petitioners with continuity of
service and 40 days back-wages. The said Award came to be
challenged by the respondents by filing Special Civil
Applications Nos.14231 of 2008 and 14233 of 2008 before this
Court, wherein this Court was pleased to grant interim relief
subject to compliance of Section 17(B). Thereafter the
petitioners received the remuneration u/s.17(B) of the Industrial
Disputes Act, 1947.
4. Learned advocate Mr. Mishra further submits that the
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petitions were disposed of by this Court on 09.01.2013 and
04.02.2013 wherein this Court set aside the 40 days of back-
wages and rest of the Award was confirmed. Thereafter the
petitioners were reinstated in service by an office order dated
22.12.2014.
5. Learned advocate Mr. Mishra further submits that after
reinstating the petitioners, petitioners were granted the benefits
th
of G.R. dated 17 October 1988 by an office order dated
07.10.2023 whereby the service of the petitioners were treated
continuous from their date of initial appointment and also paid
the arrears from 01.01.2015. Being aggrieved and dissatisfied
with the said order, the petitioners approached this Court by
way of present petition.
6. Learned advocate Mr. Mishra further submits that the
issue regarding grant of arrears from the date of Award instead
of date of reinstatement is concerned, the similarly situated
employees working in the same office in different sub divisions
namely; (1)Tarun Girjashanker Jani, (2) Ranabhai Satabhai
Mundhva, (3) Bharatsinh Dolubha Vaghela, (4) Hamirbhai
Satabhai Mundhva, (5) Vaja Ghela Khant, (6) Prabhat
Narsangbhai Mundhva, (7) Anupsinh Hemantsinh Parmar, have
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been granted the benefits of G.R. dated 17 October 1988 and
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paid the arrears from the date of Award and therefore, the
present petitioners are also entitled for the said benefits from
the date of Award instead of date of reinstatement. Therefore,
the action of the respondents is totally illegal and arbitrary
and discriminatory and violative of Articles 14 & 16 of the
Constitution of India.
7. Learned advocate Mr. Mishra further submits that the
termination held illegal by the Labour Court and direction was
issued that reinstatement with continuity of service and the
said direction was confirmed by the higher forum. The
petitioners are entitled the difference of salary from the date of
Award instead of date of reinstatement. In this connection,
learned advocate Mr. Mishra relied the decision of this Court
rendered in the case of Lalji Manji and others vs.
Surendranagar District Panchayat and others [Special Civil
nd
Application No.6983 of 2010 decided on 22 October 2010].
This Court allowed the said petition by an oral judgment dated
22-10-2010, wherein para 5 and 6 are reproduced as under:
“5. Heard the learned advocates appearing on behalf of the
respective parties at length. From the facts narrated hereinabove, it
is not in dispute that the judgement and award passed by the
Labour Court dated 25/02/1999 in Reference (L.C.S) No. 302/1992
granting reinstatement to the petitioners came to be confirmed up
to the Hon'ble Supreme Court. It is also not in dispute that the
judgement and award passed by the Labour Court, Surendranagar
in the aforesaid Reference denying continuity of service came to be
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set aside by the learned Single Judge and the learned Single Judge
directed to grant continuity in service from the date of initial
appointment. The said order passed by the learned Single Judge
came to be confirmed by the Hon'ble Supreme Court. Under the
circumstances, when the judgement and award passed by the
Labour Court came to be confirmed up to the Hon'ble Supreme
Court, the petitioners are entitled to all the benefits, inclusive of
wages flowing from the aforesaid judgement and award as well as
the order passed by the learned Single Judge dated 28/10/2004 in
Special Civil Application No. 5390/2001 inclusive of wages and
other benefits subject to deducting whatever amount is paid under
Section 17B of the Industrial Disputes Act. The contention on
behalf of the respondents that during pendency of the matter
before the Hon'ble Supreme Court the petitioners did not submit
any application under Section 17B of the Industrial Disputes Act
and, therefore, they are not entitled to any wages for the aforesaid
period cannot be accepted. If the aforesaid contention is accepted
then the order passed by the Hon'ble Supreme Court dismissing the
SLP and confirming the order passed by the learned Single Judge
confirmed by the LPA Bench would become nugatory. Under the
circumstances, when the judgement and award passed by the
Labour Court as well as the judgement and order passed by the
learned Single Judge modifying the order passed by the Labour
Court came to be confirmed up to the Hon'ble Supreme Court the
petitioners are entitled to all the benefits flowing from the date of
the said judgement and award inclusive of wages and other
benefits from the date of the award till reinstatement subject to
deducting whatever is paid to them under Section 17B of the
Industrial Disputes Act.
6. In view of the above and for the reasons stated hereinabove, the
present petition succeeds. The impugned judgement and award
dated 31/03/2010 passed by the learned Labour Court,
Surendranagar in Recovery Application No.38/2009 in so far as
denying the back wages and other benefits from the date of the
award till reinstatement is hereby quashed and set aside and the
respondent is directed to pay the wages and other benefits to the
petitioners from the date of award i.e. 25/02/1994 till they are
reinstated i.e. 16/10/2008 after deducting whatever amount is paid
to them under Section 17B of the Industrial Disputes Act.
Necessary calculation shall be made by the respondents within a
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period of eight weeks from today and actual payment shall be
made within a period of four weeks thereafter. Rule is made
absolute to the aforesaid extent. No cost.”
Against the aforesaid oral judgment, the Surendranagar
District Panchayat challenged the same by filing Letters Patent
Appeal No.586 of 2011, wherein the Division Bench dismissed
th
the said Appeal vide order dated 7 April 2011 observing in
paragraphs Nos.5, 6 and 7 as under:
“5. Learned counsel Mr. Shah for the respondents has submitted
that the award passed by Labour Court, Surendranagar dated
25.2.1999 in Reference (LCS) No.302 of 1992, had come to be
confirmed upto the Hon'ble Supreme Court and the respondents are
entitled to get wages from the date of the award till they are
reinstated, of-course subject to deducting the amount what had
been paid to the respondents under Section 17-B of the Act.
6. We have considered the above-referred rival submissions made
by the learned counsel for the parties. The object of Section 17-B
of the Act is to relieve to a certain extent the hardship that is
caused to workman due to delay in implementation of the award
during pendency of proceedings in which said award is under
challenge before the High Court or the Hon'ble Supreme Court.
7. It is well settled legal position of law that payment of full
wages as last drawn by workman payable by employer during
pendency of proceedings in the higher Court, will be from the date
of award and not from the date of disposal of proceedings before
the High Court or the Supreme Court. It is not in dispute that at
present, the respondents have already been reinstated and the
amount is paid under Section 17-B of the Act to the respondents. If
this position is considered, then, in our view, it is clear that it is
not relevant at this stage whether the respondents had filed
affidavit before the Hon'ble Court for getting benefit under the
provisions of Section 17-B of the Act or not. The learned Single
Judge has observed that the contention on behalf of the appellants
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that during pendency of the matter before the Hon'ble Supreme
Court, the respondents did not submit any application under
Section 17-B of the Act and therefore, they were not entitled to
any wages for the aforesaid period, cannot be accepted. If the
aforesaid contention is accepted then, the order passed by the
Hon'ble Supreme Court dismissing the S.L.P. and the order passed
by the Division Bench of this Court confirming the order passed by
learned Single Judge, would become nugatory. In our view, the
learned Single Judge has rightly observed that when the judgment
and award passed by the Labour Court as well as the judgment
and order passed by the learned Single Judge modifying the order
passed by the Labour Court came to be confirmed upto the Hon'ble
Supreme Court, the respondents are entitled to all benefits flowing
from the date of the said judgment and award inclusive of wages
and other benefits from the date of the award till the date of
reinstatement subject to deducting whatever amount had been paid
to them under Section 17-B of the Act. Thus, we do not find any
illegality in order passed by the learned Single Judge in Special
Civil Application No.6983 of 2010 dated 22.10.2010.”
In the present case, learned advocate Mr. Mishra submits
that the petitioners have also received the 17(B) wages and
therefore, petitioners are also entitled for difference of salary
as per the G.R. dated 17-10-1988 from the date of Award to
actual reinstatement.
8. Learned advocate Mr. Mishra also relied upon the
judgment of the Hon’ble Supreme Court in the case of Salim
Ali Centre for Ornithology and Natural History, Coimbatore
and another Vs. Dr. Mathew K. Sebastian. The Hon’ble
th
Supreme Court of India, by order dated 4 April 2022, decided
the said issue wherein the Hon’ble Supreme Court of India
decided that the principle of ‘no work no pay’ shall not be
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applicable in such a situation. The observations made by the
Hon’ble Supreme Court in the case of Salim Ali Centre (supra)
in paragraphs Nos. 5, 6, 7 and 8 are as under:
“5. Now so far as the submission on behalf of the management
that the writ petitioner has not established and proved by leading
cogent evidence that he was not gainfully employed during the
period he was out of employment and therefore he shall not be
entitled to the back wages is concerned, at the outset, it is
required to be noted that as such the learned Single Judge in the
earlier round of litigation ordered reinstatement vide order dated
23.08.2002 and in fact the appeal came to be dismissed and the
writ petitioner was reinstated in service on 16.12.2010. Therefore,
as such, he was entitled to back wages for the period between
23.08.2002 to 16.12.2010, subject to proving that he was otherwise
gainfully employed. However, the writ petitioner himself came out
with a case and claimed back wages only for the period from
23.08.2002 to 30.04.2007 by specifically averring and submitting
that he was in some other employment for the period from
01.05.2007 to 20.01.2011. By submitting so, it can be said that the
writ petitioner has discharged the initial burden. Thereafter, the
onus shifted to the employer to disprove and establish that the
employee was gainfully employed throughout the aforesaid period.
6. Now so far as the submission on behalf of the petitioners herein
that the writ petitioner had not established and proved by leading
cogent evidence that he was not gainfully employed is concerned,
it is to be noted that once the writ petitioner came out with a
specific case that he remained out of employment for the period
from 23.08.2002 to 30.04.2007 and that he was gainfully employed
during the period from 01.05.2007 to 20.01.2011, meaning thereby,
that he was not gainfully employed for the period between
23.08.2002 to 30.04.2007, thereafter, he was not required to lead
any further evidence to prove the negative. Even in the case of
J.K. Synthetics v. K.P. Agrawal (supra), it is specifically observed
by this Court that an employee cannot be asked to prove the
negative. However, he has to at least assert on oath that he was
neither employed nor engaged in any gainful business or venture
and that he did not have any income. Thereafter the employee is
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not supposed to prove the negative that he was not gainfully
employed. There cannot be any evidence to prove the negative to
the effect that he is not gainfully employed. Once he asserts that
he is not gainfully employed, thereafter the onus will shift to the
employer positively and it would be for the employer to prove that
the employee was gainfully employed. Therefore, in the facts and
circumstances of the case, none of the decisions relied upon by the
learned ASG, referred to hereinabove, is of any assistance to the
petitioners, considering the facts and circumstances, narrated
hereinabove.
7. As far as the submission on behalf of the petitioners that even
on the principle of “no work no pay”, the writ petitioner shall not
be entitled to back wages is concerned, the said principle shall not
be applicable to the facts of the case on hand, where the employee
remained unemployed due to the stay order granted by the
appellate court. It was the management who preferred the appeal
and at the instance of the management, there was an order of stay
against reinstatement as ordered by the learned Single Judge and
the appeal came to be dismissed and consequently the stay came
to be vacated in the year 2010. Therefore, the employee/writ
petitioner/respondent herein cannot be denied the back wages for
no fault of his. Therefore, the principle of “no work no pay” shall
not be applicable in such a situation.
8. In view of the above discussion and for the reasons stated
above, we see no reason to interfere with the impugned judgment
and order passed by the Division Bench as well as the judgment
and order passed by the learned Single Judge ordering back wages
for the period from 23.08.2002 to 30.04.2007 along with interest
@ 9% per annum. The special leave petition stands dismissed
accordingly. Now the Petitioners - management shall pay the
amount due and payable to the Respondent - Original Writ
Petitioner within a period of eight (8) weeks from today.”
9. Learned advocate Mr. Mishra also relied upon the
judgment of the Hon’ble Supreme Court in the case of
Constable Umashankaran vs. Union of India and others
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wherein also the Hon’ble Supreme Court decided that the
petitioners for no fault on his part was kept out of service.
The observations made by the Hon’ble Supreme Court in the
case of Umashankaran (supra) in paragraph Nos.8, 9, 10, 11,
12 are as under:
“8. We are conscious of the law that ordering back wages to be
paid to a dismissed employee – upon his dismissal being set aside
by a court of law – is not an automatic relief and, ordinarily, is
dependent on the employee being not employed in the
interregnum. However, the general rule is that if the employer by
reason of its illegal act deprives any of its employees from
discharging his work and the termination is ultimately held to be
bad in law, such employee has a legitimate and valid claim to be
restored with all that he would have received but for being
illegally kept away from work. This is based on the principle that
although the employee was willing to perform work, it was the
employer who did not accept work from him and, therefore, if the
employer’s action is held to be illegal and bad, such employer
cannot escape from suffering the consequences [Maharashtra SRTC
v. Mahadeo Krishna, Naik, 2025 4 SCC 321].
9. In the light of the afore-stated legal position, the High Court
ought to have undertaken an exercise to ascertain whether the writ
petitioner was gainfully employed in the interregnum before
denying arrears of salary/ back wages. However, this exercise was
not done. In our view, as already sufficient time has elapsed since
the date of High Court’s order and the order of reinstatement with
benefit of continuity in service has attained finality, we do not
consider it appropriate to remand the matter for such an exercise.
Consequently, we have examined the counter affidavit of the
respondent to ascertain whether any plea has been taken that the
appellant was gainfully employed elsewhere in the interregnum. On
perusal of the counter affidavit, we find that the counter affidavit
emphasizes more on the plea that there should not have been a
direction for reinstatement than on providing any material to show
that the appellant was gainfully employed elsewhere. As the plea
to deny reinstatement has already been rejected by the High Court,
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and its direction for reinstatement has attained finality, in absence
of any plea that the appellant was gainfully employed elsewhere in
the interregnum, in our view, there appears no good reason to
deny back wages/ arrears of pay.
10. Besides that, the charge of dispatch of Bank Drafts of an
amount which, prima facie, is within the known sources of income
ought not to have been a basis for removal from service,
particularly, when the source of money was duly proved. In
consequence, the action of the respondent(s) is nothing short of
being arbitrary. Thus, when the High Court held charge(s) were
not proved, there had to be a cogent reason for denial of arrears /
back wages. We do not find any such cogent reason to deny those
benefits.
11. As far as the previous conduct of the appellant is concerned,
the appellant has already been punished and therefore, denial of
back wages on that ground would amount to double punishment.
12. We, therefore, allow these appeals. The order of the High
Court to the extent it denies the appellant of the arrears of
pay/back wages is set aside. In consequence, the appellant shall be
entitled to arrears of pay / back wages in addition to what he is
entitled to under the order of the High Court.”
10. Learned advocate Mr. Mishra for the petitioners,
therefore, submits that the issue regarding non-granting the
difference of salary from the date of Award to actual date of
reinstatement is concerned, this Court as well as the Hon’ble
Supreme Court of India have decided the same and learned
advocate Mr. Mishra, also stated that the similarly situated
employees working in different sub-divisions of the same
district have been granted the benefit of arrears as per G.R.
th
dated 17 October 1988 and therefore, the petitioners are also
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entitled for the said benefit.
11. Per contra, learned Assistant Government Pleader for the
respondents has submitted that the respondents have filed reply
on 24.05.2024 and 25.06.2026 and stated that petitioners were
appointed as daily-wagers and subsequently their services were
terminated and a direction of the Award passed by the Labour
Court, the said Award was challenged by the respondents and
subsequently the said Award was partly allowed and direction
of reinstatement with continuity of service was confirmed and
so far back-wages is concerned, same is set aside by this Court
and during that period the petitioners received the 17(B) wages
under the Industrial Disputes Act, 1947. Therefore, petitioners
th
are not entitled for any wages under the G.R. dated 17
October 1988. The learned Assistant Government Pleader also
contended that the petitioners came before this Court after five
years and therefore, the petitioner is not entitled. Except this,
no further argument of learned Assistant Government Pleader.
12. I heard the learned advocates appearing for the respective
parties. It is settled position of law, that once the illegal
termination is set aside and same is subsequently confirmed by
the Hon’ble court, during this period the employees received
the remuneration u/s.17(B) of the Industrial Disputes Act, it
means it is not a case of ‘no work no pay’ and therefore, the
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said principle shall not be applicable in such a situation and
the same is decided by this Court and subsequently the
Hon’ble Supreme Court of India also. As per the contention
raised by the learned Assistant Government Pleader that the
petitioners approached this Court after five years. Therefore,
the prayer made in the present petition is not required to be
granted and the petition may be dismissed. In this connection,
once any issue is decided and it is implemented by the
respondents, in that case, it is the duty of the respondent that
the same treatment be given to their employees in toto without
making them to approach the competent Court of law.
Therefore, in my view, the present petition is allowed and
petitioners are entitled for the difference of salary from the
date of Award which is 06.05.2008 to 31.12.2014. Therefore,
respondents are directed to pay the difference of salary as per
th
G.R. dated 17 October 1988 to the petitioners from
06.05.2008 to 31.12.2014 within a period of eight weeks from
the date of receipt of this order.
13. The present petition succeeds. Rule is made absolute to
the aforesaid extent. Direct Service is permitted.
(NIRAL R. MEHTA,J)
NIHAL PATEL
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