Gujarat High Court
Thakor Balaji Prabhatji vs State Of Gujarat on 26 July, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/6450/2017 ORDER DATED: 26/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6450 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 18863 of 2021
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THAKOR BALAJI PRABHATJI & 9 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9
MS SHRUTI PATHAK, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 26/07/2022
ORAL ORDER
1. These two petitions are filed by the same petitioners for the same purpose. The object of the petitions is to consider the petitioners to be employees daily wagers of the Government under respondent No.2 and therefore, to regularize their services by giving them benefit of Government resolution dated 17.10.1988 (Dolat Parmar resolution).
2. The first petition was filed with prayer as under:-
"(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondents to extend the benefit of Government Resolution dated 17-10-
1988 on completion of 5, 10 years of service;"
2.1 The second petition was filed with prayer as under:-Page 1 of 11 Downloaded on : Thu Jul 28 20:53:22 IST 2022
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"(A) That Your Lordships be pleased to issue an order,
direction and/or writ in the nature of certiorari /mandamus and/or any other appropriate writ, order or direction, quashing and setting aside the oral termination in the month of June, 2017, as being illegal and be pleased to direct the respondents to reinstate the petitioners on original post with continuity of service with full back-wages;"
3. Learned Advocate for the petitioners submitted that daily wagers and other employees under the Government department, who have been in service for long time, have been given the benefit of Government resolution dated 17.10.1988 and as the petitioners are in service since 2001, the petitioners are also entitled to such benefit.
3.1 Learned Advocate for the petitioners further submitted that the petitioners were initially protected by this Court in the first petition, but as the petitioners had filed the petition before this Court, they are now orally terminated. Learned Advocate submitted that the second petition is filed only upon the direction of this Court in the first petition.
3.2 On merits, it is submitted that the issue is squarely covered by the decision of this Court in LPA No.899 of 2016 dated 23.11.2016 and hence, the petitioners be given same treatment.
3.3 Learned Advocate for the petitioners relied upon ID Page 2 of 11 Downloaded on : Thu Jul 28 20:53:22 IST 2022 C/SCA/6450/2017 ORDER DATED: 26/07/2022
cards and vouchers issued to them and also one document wherein it petitioner No.1 was engaged as driver of dumper /tipper for earthquake work. Accordingly, since then, the petitioners are engaged in Government work and they therefore, deserve benefits.
4. As against this, learned AGP for the respondent-State submitted that so far as appointments of the petitioners are concerned, they are made by the respective outsourcing agencies with which they are associated. It is submitted that none of the appointment are made by the department of the State Government so as to remotely suggest that they are appointed by the departments of the State Government. It is further submitted that the State Government through various department entrusts the work or contract to the agencies who in turn are required to fulfill the work or contract as per terms and conditions. It is during the course of completion of such works or contracts that the outsourcing agencies appoint their own staff or employees to complete the work or contract.
4.1 It is submitted that the State Government had entered into contracts to run drum mix plant at Chiloda and to carry asphalt mix material produced in the said plant to the respective sites through Government trucks /tippers for the purpose of carrying out the resurfacing and repairing works at the sites. It is for that purpose that contracts were given to private contractor namely M/s. Rajesh G. Patel and Elite Security Services. It is Page 3 of 11 Downloaded on : Thu Jul 28 20:53:22 IST 2022 C/SCA/6450/2017 ORDER DATED: 26/07/2022 submitted that as far as petitioner nos.1 to 5, 7, 9 and 10 are concerned, they are appointed by M/s. Rajesh G. Patel whereas petitioner Nos.6 and 8 are appointed by M/s. Elite Security Services.
4.2 It is submitted that the petitioners are not appointed by the State Government or any Department or agency of the State Government. It is submitted that the petitioners have not been able to demonstrate through any documentary evidence in form of any appointment letter or any such document that they are appointed by the department of the State Government. It is submitted that there is no employer-employee relationship between these employees and the State Government and therefore, they cannot seek any benefits similar to that of those appointee by the State Government or department of the State Government. It is submitted that so far as payment of remuneration or wages to the petitioners are concerned, the same are not done by the State Government.
4.3 It is further submitted that the petitioner has not produced any appointment order which shows that they are Government Employee. It is further submitted that the present petitioner is only produced the Identification Card which was issued by the Section Officer of the Government Hot Mix Plant, Chiloda. Only the Identification Card is not the proof that he is appointed by the State Government. The Identification Card is Page 4 of 11 Downloaded on : Thu Jul 28 20:53:22 IST 2022 C/SCA/6450/2017 ORDER DATED: 26/07/2022 issued for the purposes of facilitating the petitioners to enter into the Government VIP premises like Sachivalaya Minister Bungalow, Raj Bhavan etc. for security purpose. All the petitions are Driver/Helper. Therefore, they used to go in the VIP premises. Therefore, Identification card is issued by the authorities. It does not amount to as appointment order.
5. Having heard learned Advocates for the parties and having perused documents on record, it appears that Government resolution dated 17.10.1988 is applicable to the Government employee who has completed 5 years of service as a daily wager or who has completed 5-10 years of services in the Government department as daily wager and work charge employee. In the present case, the petitioners are not daily wagers or work charge employees, but they are only the contractual appointee appointed by the out sourcing agency. Therefore, this Government resolution is not applicable to the petitioners. The petitioners have only produced identification card to show that they are Government employees, but have not produced any other documents like appointment letter, salary slip, etc. They are only relying upon identification card, but it is not sufficient to prove that they are Government employees. The respondent-Department issued letter to the petitioners on 05.02.2001 to perform work in earthquake restoration work in Kutch district.
6. It appears that there is no employer-employee Page 5 of 11 Downloaded on : Thu Jul 28 20:53:22 IST 2022 C/SCA/6450/2017 ORDER DATED: 26/07/2022 relationship between these employees and the State Government and therefore, they cannot seek any benefits similar to that of those appointee by the State Government or department of the State Government. As far as the payment of remuneration or wages to the petitioners are concerned, the same is not done by the State Government or the department of State Government. The department as per the work or contract makes payment to the respective outsourcing agency who in turn makes payment to their workmen or employees appointed by them to undertake the task. Petitioners themselves have produced a communication addressed to the Deputy Executive Engineer, Capital Project, Gandhinagar with their rejoinder which reflects a communication that the agency has made payment of the wages to the petitioners. Further, the voucher receipts which are annexed at Page 61 would also reflect that the vouchers are issued by one Rajesh G. Patel who is approved Government Contractor. Even the passbook details annexed would also highlight that the payments are made by Elite Security Services to the respective account of the workmen and the same is not done by the State Government or department. It is in light of the aforesaid factual aspect, the same would indicate that there is not direct nexus of the State Government in either recruitment or payment of wages, salary etc., to the workmen. The benefit of Government Resolution dated 17.10.1988 cannot be granted to the petitioners. The Government Resolution dated 17.10.1988 is applicable to the workmen or daily-wagers who are Page 6 of 11 Downloaded on : Thu Jul 28 20:53:22 IST 2022 C/SCA/6450/2017 ORDER DATED: 26/07/2022 appointed on the establishment in various departments and that upon completion of their continuous service and subject to compliance of the provisions under Section 25B of the Industrial Disputes Act, 1947.
7. The petitioners filed Civil Application No.5700 of 2017 in Special Civil Application No.6450 of 2017 for interim relief and this Court passed an order on 27.04.2017 granting ad interim relief in terms of para No.6(A). Para No.6(A) reads as under:-
"(A) That Your Lordships be pleased to allow this Civil Application and be pleased to direct the respondents to immediately take all the applicants back in the employment prior to the date of 21-4-2017 and be pleased to direct the respondents to provide work to the applicants;"
7.1 The aforesaid order was subject matter of challenge in LPA No.1921 of 2017. this Court in order dated 15.11.2017 recorded as under:-
"2. We have heard Shri Dhawan Jayswal, learned Assistant Government Pleader appearing on behalf of the appellants and Shri Mishra, learned advocate appearing on behalf of the respondents - original applicants at length. There are allegations and counter allegations. We were ready to pass a detail reasoned order suspending the impugned ad interim order passed by the learned Single Judge, more particularly, when it is the case on behalf of the appellants that the concerned respondents were never the employees of Page 7 of 11 Downloaded on : Thu Jul 28 20:53:22 IST 2022 C/SCA/6450/2017 ORDER DATED: 26/07/2022 the State Government and they were the employees of the Contractors, however, at the end, Shri Mishra, learned advocate appearing on behalf of the respondents - original applicants does not press Civil Application No.5700/2017 pending before the learned Single Judge and has stated that the question with respect to the interim relief be kept open to be considered by the learned Single Judge while considering the hearing of main Special Civil Application No.6450/2017. Shri Mishra, learned advocate appearing on behalf of the respondents - original applicants does not invite any further reasoned order while quashing and setting aside the impugned ad-interim order passed in Civil Application No.5700/2017 as he is not pressing Civil Application No.5700/2017 filed in the main Special Civil Application.
7.2 Thereafter, there is nothing on record as to whether the petitioners have continued in service of the contractor.
8. Learned Advocate for the petitioners had vehemently argued that the reliance placed on vouchers is a fraud as the vouchers do not bear signatures of the petitioners and just to adversely affect the case and prejudice the Court, the vouchers are produced by the State Government. It is pertinent to observe that those vouchers were produced before the Division Bench of this Court. The Division Bench had also occasion to deal with the same.
Even at that stage, the petitioners have not taken up a contention of fraud being played on the Court. Again, the petitioners have not Page 8 of 11 Downloaded on : Thu Jul 28 20:53:22 IST 2022 C/SCA/6450/2017 ORDER DATED: 26/07/2022 agitated this issue or forgery or fraud at any stage or filed any criminal complaint. Moreover, this stand of the petitioners themselves taken on the issue of vouchers gives rise to serious disputed questions of fact, which this Court may not examine under Article 226. Moreover, the other documentary evidence in the form of letter of the year 2001 pertains to only one of the petitioners whereas there are 10 petitioners in all. The Court cannot treat this evidence as a conclusive proof of the fact that all the petitioners are in service since 2001. Such an issue is a question of fact, which the petitioners need to establish on the basis of sound evidence.
The petitioners have neither approached the Labour Court or the Department concerned in this regard. Even before this Court, when opportunity was given, the petitioners refused and of course, so as the petitioners have no cogent evidence to substantiate their claim. Therefore, to sweep over the requirement of the legal process, directly filed the present proceedings invoking Article 226 of the Constitution of India.
9. The Court is of the view that there is no element of fraud on the part of the Government when they produced the copy of vouchers before the Division Bench of this Court or in the present proceedings.
10. The decision of the Apex Court in case of Bharat Heavy Electricals Limited Vs. Mahendra Prasad Jakhmola & Ors., reported in (2019) 13 SCC, 82, specifies the parameters to Page 9 of 11 Downloaded on : Thu Jul 28 20:53:22 IST 2022 C/SCA/6450/2017 ORDER DATED: 26/07/2022 establish employment. Paragraph No.24 of the said decision reads under:-
"24. We may hasten to add that this view of the law has been reiterated in `Balwant Rai Saluja and Another v. Air India Limited and Others' [2014(9) SCC 407], as follows:
"65. Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer- employee relationship would include, inter alia:
(i) who appoints the workers;
(ii) who pays the salary/remuneration;
(iii) who has the authority to dismiss;
(iv) who can take disciplinary action;
(v) whether there is continuity of service; and
(vi) extent of control and supervision i.e. whether there exists complete control and supervision.
As regards extent of control and supervision, we have already taken note of the observations in Bengal Nagpur Cotton Mills case [(2011) 1 SCC 635], International Airport Authority of India case [2009 13 SCC 374] and Nalco case 10.1 In the present case, the petitioners have not even taken care to come anywhere near to the aforesaid parameters.
11. The Apex Court in case State of Gujarat Vs. Public Works Department and Forest Employees Union & Ors., reported in (2019) 15 SCC, 248, has held as under in paragraph No.16:-
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"16. Insofar as exception (iv) mentioned by the
appellant is concerned, there appears to be some merit therein. For counting the number of years for giving benefit to the workers in terms of judgment dated July 09, 2013, only those years would be taken into consideration wherein these workers had worked for 240 days or more in a year i.e. in consonance with the GR dated October 17, 1988. Furthermore, there is no direction in the judgment of this Court to the effect that the period of service of 240 days in a year should be only in the initial year and not thereafter. In fact, when the learned senior counsel for the respondents were confronted with the aforesaid position, they conceded to this position."
11.1 Thus, while dealing with benefits under Government resolution dated 17.10.1988, the factual material has to be established, wherein responsibility is of the petitioners. Therefore, the claim to benefit of Government resolution dated 17.10.1988 is not an omnibus benefit, but has to be in consonance with the parameters of the Government resolution as approved by the Apex Court and is required to be established by cogent evidence.
12. In view of the aforesaid, no case is made out for interference. The petitions deserve to be and are hereby dismissed. Notice is discharged. Interim relief, if any, stands vacated. No order as to costs.
(A.Y. KOGJE, J) SHITOLE Page 11 of 11 Downloaded on : Thu Jul 28 20:53:22 IST 2022