Gujarat High Court
Karshanbhai K.Rabari vs State Of Gujarat on 10 March, 2004
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL No 1134 of 1997
in
SPECIAL CIVIL APPLICATION No 11071 of 1993
with
CIVIL APPLICATION NO.8843 of 1997
Date of Decision: 10-03-2004
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KARSHANBHAI K.RABARI Versus STATE OF GUJARAT (For Full Cause Title, See Next Sheet)
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Coram:
The H The Hon'ble Mr.Justice H.K.Rathod, Judge Whether Approved for Reporting?
For the employeesMr.Yatin N.Oza Senior Advocate Mr.Nirzar S.Desai For the Government of GujaratMr.R.C. Kodekar Asst. Govt. Pleader
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PER : BHAWANI SINGH, CHIEF JUSTICE (ORAL):-
1.This Letters Patent Appeal is directed against the judgment of learned Single Judge dated 09-05-1997 in
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Whether Reporters of Local Papers may be allowed to see the Judgment? Special Civil Application No.11071 of 1993. Shortly stated, petitioners are working on posts like Clerk, Typist, Telephone Operator, etc. in the Department of Roads & Buildings, described in Chart (Annexure A). They raised numerous demands through their Unions to the State Government from time to time, and some of the demands included permanent status, and benefits attached thereto. Respective Departments of State Government considered these demands with the Employees' Unions, and finalised the negotiations by way of settlement signed by the Chief Secretary to the State Government, and Secretaries to the various Departments of the State Government.
2.Pursuant to the above settlement, Government of Gujarat, Roads and Buildings Department Resolution No.W.C.E./1588/(5)/(2)/G.2 dated 17-10-1988 was issued. With a view to understand the question in dispute, it is necessary to reproduce this Resolution:
"Regarding acceptance of recommendations of Committee for demand of labour association Constituted under the Chairmanship of Shri Dolatbhai Parmar, Minister of Road and Building Department.
Skilled Labours Rojamdar.
GOVERNMENT OF GUJARAT Road and Building Department, Resolution No.W.C.E/1588/(5)/(2)/G.2 Block No.14, Sardar Bhavan, Sachivalaya, Gandhinagar.
Date: 17-10-88 Read:-
Resolution of Road and Building Department dated 24/3/88, No.W.C.E./1588/(5)/G Gujarat Rajya Karmachari Maha Mandal, Gujarat Rajya Jaher Bandhkam Majoor Mandal and various associations have made representations to the government regarding pending questions since long time of daily wagers working under the various department of State and their demand. Therefore, State Government has vide resolution of Road and Building Department dated 24/3/88 No.W.C.E./1588/(5)/G constituted a committee under the chairmanship of Shri Dolabhai Parmar, Minister of Road and Building Department for making necessary recommendations after studying the moral demands of labour associations and their questions. After studying in detail regarding salary, regarding service and regarding other benefits of labours and workers who were engaged as daily wagers for maintaining and repairing the constructions in various departments of State mainly like Road and Building Department, Water Resources Department, Forest Department, Agriculture Department, Narmada Development Department, Water Resources and Panchayat and Rural Housing Department and in other departments, the committee has submitted its report to the government.
Resolution:-
Government has taken into consideration the report submitted by committee and accordingly it is hereby decided to accept all the recommendations made by the committee. Accordingly, it is resolved to give salary and other benefits regarding service to the skilled workers daily wagers working under the various departments of State.
(1) It is resolved to pay daily wage as per existing Minimum Wages Rules to the daily wagers skilled labours whose service is less than 5 years as on date 1/10/88.
Upon more than 240 days presence in the first year of service, they are entitled to get leave on Sunday along with pay, medical facilities and leave on national holidays.
(2) As per provisions of Section 25(B) of Industrial Disputes Act, it is resolved to pay daily wage of days of presence and wage of leave of Sunday to the daily wagers skilled labours whose service is more than 5 years but less than 10 years as on 1/10/88 as per the Rules of pay scale of concerned category after calculating monthly fix salary and after calculating dearness allowance as per existing rate, the monthly salary and by calculating it as on daily wage basis. Moreover, they are entitled to get total 14 miscellaneous leave including two days optional leave in a year, leave on Sunday and leave on National Holidays with salary and medical facilities and also benefits of deduction of General Provident Fund as per Rules.
(3) As per the Section 25(B) of Industrial Disputes Act, the service of those daily wagers skilled workers is more than 10 years as on 1/10/88 shall treated as permanent and it is resolved to pay to them Salary, Dearness Allowance, House Rent Allowance and C.L.A. by putting these permanent skilled workers in the running pay scale of concerned category. They are entitled to get benefits of Pension, Gratuity and General Provident Fund as per existing rules. Moreover, they are entitled to get total 14 miscellaneous leave including two days optional leave, 30 days earned leave and 20 days half pay leave in a year and leave on Sunday every week and for leave on National Holiday. The retirement age of permanent skilled workers shall be 60 years and the duration of time of permanent service shall be treated as pensionable.
As per the Section 25(B) of Industrial Disputes Act, as on 1/10/88, the skilled workers who have completed 15 years, shall be given one increment in the concerned category, who has completed 20 years, shall be given two increments and who have completed more than 25 years shall be given three increments and accordingly their salary shall be fixed as on 1/10/88.
(2) Now, the appointment of new daily wage skilled workers is totally restricted. If any appointment of new daily wager skilled worker is made by any officer then the total responsibility of regarding the same shall be on that officer and the salary which is paid to such worker shall be recovered from the salary of this officer.
(3) As Government has decided to
implement the recommendations of
Committee from 1/10/88,
implementation of this order
shall be made from 1/10/88.
(4) These orders are published after getting permission of Finance Department dated 14/10/88 and permission of General Administration Department dated 17/10/88.
On the name and order of Governor of Gujarat Sd/-
(H.K.Abani) Under Secretary to Government Road and Building Department Outward No.GUJSANVI/MEHSANA/EC-2-2955/YEAR-89 Date:1/8/89 Copy forwarded to:-
Deputy Executive Engineer, Gujarat Water Resources Department, Mehsana./Pratij/Harij/Kalol, for information and implementation.
2.As per the above circular, now if any daily wager temporary appointment is made then the responsibility for its expense is of the concerned officer / employee, which may be noted.
Copy forwarded to EC-1, S.A.C., for information Sd/-illegible Executive Engineer, Gujarat Water Resources Department Mehsana."
3. Above Resolution, generally and paragraph 3 particularly demonstrates that service of those dailywager skilled workers with more than 10 years as on 01-10-1988 shall be treated as permanent. They shall be paid salary, dearness allowance, house rent allowance, and compensatory local allowance by putting these permanent skilled workers in the running pay scale of concerned cadre. The have been given the benefit of pension, gratuity and general provident fund as per existing Rules. They are also entitled to 14 miscellaneous leaves including two days optional leave, 30 days earned leave and 20 days half pay leave in a year, leave on Sunday every week, and leave on national holidays. Retirement age of permanent skilled worker is 60 years, and duration of time of permanent service is treated pensionable, etc. However, those who have completed 15 years, to be given one increment in the concerned category, those who have completed 20 years, to be given 2 increments, and those who have completed more than 25 years to be given 3 increments, and their salary to be fixed as on 01-10-1988, etc. The State Government decided to implement this Resolution with effect from 01-10-1988. It appears from the Official File No.WCE-1588-5-012-Temporary, Branch G-2 that the said Resolution has been implemented. Permanent employees had been allotted government houses also, rightly so, because under the Resolution, they are entitled to house rent allowance, which is admissible to an employee where the Government houses are not available/allotted. Thereafter, a Section Officer of Roads and Buildings Department issued a communication No.ACN-2191/739/(3)/G.2 dated 12-08-1991, giving clarification pertaining to the facilities admissible to dailywagers. By this communication, it is stated that employees are entitled to the facilities covered by the Resolution dated 17-10-1988, therefore, benefits like leave travel, relief allowances, leave encashment, other allowances, Government house etc. are not applicable to daily wagers. The petitioners challenged this communication through Special Civil Application No.11071 of 1993 unsuccessfully, learned Single Judge holding that petitioners are entitled to only those facilities, which are described in Government Resolution dated 17-10-1988, meaning thereby, claim of petitioners for other facilities has been rejected.
4.Therefore, the petitioners challenged the judgment of the learned Single Judge through this Letters Patent Appeal. Heard Shri Yatin Oza, learned Senior Counsel with Shri Nirzar S.Desai, appearing for the petitioners, and Shri R.C. Kodekar, learned Assistant Government Pleader, appearing for the respondents. Records of the case, made available, perused.
5.The question for consideration is interpretation of Government Resolution dated 17-10-1988, whether the petitioners are entitled to all the benefits/facilities admissible to permanent Government employees after being made permanent or they are entitled to only those stated in the Resolution. Shri Yatin N.Oza, learned Senior Counsel contended that the petitioners cannot be described as dailywagers after issuance of the Resolution dated 17-10-1988. They have become permanent, therefore, they merge into the common pool of other permanent employees of the State Government. That being so, all benefits are admissible and available to them. Shri R.C.Kodekar, learned Assistant Government Pleader, submits that petitioners are not entitled to further facilities over and above the Resolution dated 17-10-1988. From the perusal of the records, it is absolutely clear that the Resolution dated 17-10-1988 is a result of settlement between the State Government and Gujarat Rajya Karmachari Maha Mandal, Gujarat Rajya Jaher Bandhkam Majoor Mandal, and various Associations, having made representations to the Government regarding pending questions since long time working under various Departments of State Government. Gujarati version of Committee Report wherein the recommendations mentioned under item 6(3) is that:
"3.xJr xbuJZSkbmUm 10 xfhsxRm xCnVbUm xUuDbm xRCl xjua xQrZUr xDkaZm xiwLrLxi xCkVfnB xCUr xQrZUr xDkaZm xZJnbu xFPfk. xSbrD xZJnbuUr xZkilD xbnVlak 750-940 xUk xiwDrdZkB xVFkb, xZuBGfkbm xYRwRnB, xGbYkNnB, xim.xCrd.xCr., xVrUwgU xCUr xFwbrJwanClLm xCUr xJm.xVm.xCrW xfFrbr xUlaZ xVwbZkPrUk xdkYu xCkVfk. xDkaZm xDrLrFbmfkek xZJnbuUr xSb xfbwhr 14 xSlfiUm xDlbDud xbJk, 30 xSlfiUm xjDwD xbJk xCUr 20 xSlfiUm xCTsxVFkbm xbJk xCnVbkBQ xCMfkNlar xCrD xbJk xCUr xbkhwLwbma xQjrfkbuUm xbJkCu xZegr. xCkFe xZeQm xZrNmDd xiFfNu xHkdnB xbjrgr. xDkaZm xZJnbuUm xUlfpQwQlUm xfaZbwakSk 60 xfhsxUm xbkEfkZkB xCkfgr xCUr xDkaZm xUuDbmUm xdBXkCl xVrUwgUVkQwb xFPkgr.
xjkd xSi xfhsxRm xfTkbr xirfk xCkVQk xbuJZSkbu xVsDm 15 xfhsx xVnbk xDbwak xjua xQrZUr xCrD xClJkWu 20 xfhsx xVnbk xDbwak xjua xQrZUr xXr xClJkWk xCUr 25 xfhsxRm xfTkbr xfhsx xUuDbmZkB xVnbk xDbwak xjua xQrZUr xQwbP xClJkWk 750-940 xUk xVFkb xiwDrdZkB xCkVfkZkB xCkfgr."
From the recommendations of the Committee, there is no manner of doubt that apart from the benefits expressly mentioned in Resolution dated 17-10-1988, other benefits are also admissible to the petitioners on their absorption into the permanent cadre by the State Government. "xfFrbr" means etcetera (in Hindi "xClQwakSm"). Instead of describing all the benefits admissible to permanent Government employees, the Committee has described some, and intended to include others by "xfFrbr" (etcetera). It is inclusive description of the items mentioned expressly in the Resolution. Such rights flow to permanent employees automatically from the relief of regularisation to which no objection can reasonably be taken. (See Chief Conservator of Forests and another, etc. etc. v. Jagannath Maruti Mondhare, etc. etc. (AIR 1996 SC 2898). After having extended the benefits, the respondents cannot backtrack and dilute the Resolution dated 17-10-1988, and pass orders/instructions contrary to the said Resolution, simply because, it thought that extending these benefits would entail extra expenditure, which seems to be the cause for issuing clarifications and instructions. Any change in the Resolution could be discussed and decided in the same way in which the Resolution dated 17-10-1988 came to be passed. There is no justification to curtail the benefits given to the dailywagers in the said Resolution. Profitable it would be to refer to paragraph 28 of the Apex Court decision in Chief Conservator of Forests (supra):
28. In so far as the financial strain on State exchequer is concerned, which submission is sought to be buttressed by Shri Dholakia by stating that in the Forest Department itself the casual employees are about 1.4 lacs and if all of them were to be regularised and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighbourhood of Rs.300 crores a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument relating to financial burden is one of despair or in terrorem. We have neither been impressed by the first nor frightened by the second inasmuch as we do not intend that the view to be taken by us in these applies should apply, proprio vigore, to all casual labourers of the Forests Department or any other Department of the Government."
6.Therefore, what emerges out of the aforesaid discussion is that the petitioners are entitled to all the benefits available to permanent employees of the State Government under the Government Resolution dated 17-10-1988, and no order diluting/reversing the same can/could be passed by any other authority/functionary of the State Government. Accordingly, the Letters Patent Appeal is allowed. The communication/order dated 12-08-1991 is quashed. The petitioners are held entitled to all the benefits given to other permanent Government employees, which shall be made available to them by the respondents.
(BHAWANI SINGH) CHIEF JUSTICE (H.K. RATHOD) JUDGE [sndevu] ps