Gujarat High Court
Gujarat Forest Produce Gatherers And ... vs State Of Gujarat Thro The Secretary & 2 on 6 January, 2014
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/515/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 515 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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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 ?
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GUJARAT FOREST PRODUCE GATHERERS AND FOREST WORKERS
UNION & 353....Petitioner(s)
Versus
STATE OF GUJARAT THRO THE SECRETARY & 2....Respondent(s)
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Appearance:
MR. SHALIN MEHTA, LD. SENIOR ADVOCATE WITH MS VIDHI J BHATT,
ADVOCATE for the Petitioner(s) No. 1 - 354
MR. RONAK RAVAL, LD. AGP for the Respondent(s) No. 1 - 3
RULE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 06/01/2014
Page 1 of 13
C/SCA/515/2012 JUDGMENT
ORAL JUDGMENT
1. This petition is moved by Union of Forest Produce Gatherers and Forest Workers with 353 employees working in the forest department.
2. They have prayed for following relief in para No.25.
"25 A. Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, commending the respondents herein to formulate and prepare a permanent scheme for the purpose of according permanent or quasi permanent status to the daily wagers of the Forest Department in light of their long service rendered on daily wages in the Forest Department;
B. Your Lordships be pleased to permanently restrain the respondents herein from terminating or discontinuing in any other manner the service of the petitioners No.2 to 354;
C. Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents herein to grant the following benefits to the petitioners No.2 to 354 herein:
(a) Permanent absorption in service or a fair scheme for regularization of service.
(b) Regular pay scale.
(c) Increments.
(d) Weekly off.
(e) Group Insurance.
(f) Casual leave, earned leave and medical leave.
(g) Public holidays.
(h) Provident Fund.
(i) Pension
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C/SCA/515/2012 JUDGMENT
(j) Gratuity
(k) Bonus
(l) Fixed norms of misconduct.
D. Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents herein to apply Government Resolution dated 17.10.1988 to the petitioners No.2 to 354 herein and to grant all benefits admissible under the said Government Resolution dated 17.10.1988 to the petitioners No.2 to 354 herein depending on the length of each employee;
E. Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents herein to grant workcharged benefits payable under the final judgment dated 30.1.1996 passed by this Hon'ble High Court in Special Civil Applications No.3607/82, 422/83, and 423/83 to the petitioners No.2 to 354 herein just as such benefits have been paid to 746 daily wagers of the Narmada Water Resources, Water Supply and Kalpasar Department and 288 daily wagers of the Roads & Buildings Department.
F. Pending admission and final hearing of the present petition, Your Lordships be pleased to restrain the respondents herein from terminating the service of the petitioners No.2 to 354 herein;
G. Pending admission and final hearing of the present petition, Your Lordships be pleased to direct the present respondents to grant to the petitioners benefits similar in nature to those made available to the daily wagers of the Roads & Buildings Department and the Narmada Water Resources, Water Supply and Kalpasar Department vide Government Resolution dated 17.10.1988 depending on their length of service;
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3. The petition is opposed by affidavit in reply filed by one Mr.P.F.Patel, Conservator of Forests, mainly on the ground that the work being carried out by the petitioners is of temporary nature and they are not entitled to the benefits as per the Government Resolution dated 17.10.1988.
4. I have heard learned Senior Advocate Mr.Shalin Mehta with learned advocate Ms.Vidhi J. Bhatt for the petitioners and learned AGP Mr.Ronak Raval for the respondents.
5. Learned Senior Advocate Mr.Mehta submitted that now in view of the decision of Hon'ble Supreme Court in the case of State of Gujarat and Ors. Vs. PWD Employees Union and Ors., reported in 2013(8) Scale 579, holding that the benefits of resolution dated 17.10.1988 could be applied to daily wagers of the Forest Department of the State of Gujarat, the respondents are required to be directed to act and take decision as per the direction issued by the Hon'ble Supreme Court in the said case. Learned Senior Advocate Mr.Mehta also submitted that relying on the decision of the Hon'ble Supreme Court in the case of PWD Employees Union (Supra), coordinate Bench of this Court has by common oral order dated 26.12.2013 passed in group of petitions, directed the respondents to act and decide the cases of those petitioners, who were working as daily wagers as per the direction issued by the Hon'ble Supreme Court in para No.26 of the decision in the case of PWD Page 4 of 13 C/SCA/515/2012 JUDGMENT Employees Union (Supra). Mr.Mehta thus urged to issue similar directions to the respondents.
6. Learned AGP Shri Ronak Raval appearing for the respondents submitted that not only the individual case of each of the petitioners working as daily wager is required to be examined, but, in view of the review petition filed by the State before the Hon'ble Supreme Court to review the decision in case of PWD Employees Union (Supra), this Court may not accept the petition and issue any directions to the respondents for giving benefit of the resolution dated 17.10.1988.
7. Having heard learned advocates for the parties, it appears to the Court that the petitioner No.2 to 354, working in the Forest Department as daily wagers, since, claiming benefit of resolution dated 17.10.1988, the cases of these petitioners could be considered in light of observations and directions issued by Hon'ble Supreme Court in para No.21 to 26 of the decision in the case of PWD Employees Union (supra). Observations/directions contained in para No.21 to 26 of the said decision are reproduced as under:
"21. In view of the aforesaid observation, we find that the full Bench of the Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest Workers Union(supra) proceeded on erroneous premises to hold that the Resolution dated 17th October, 1988 is applicable only to the daily wage workers of Forest Department engaged in Page 5 of 13 C/SCA/515/2012 JUDGMENT building maintenance and repairing work. The conclusions in the said judgment are not sustainable otherwise also. We have already noticed that the Resolution of the State Government dated 17th October, 1988 is not limited to any particular department, it applies to all the departments including Road and Building, Forest and Environment Department, Water Resources Department, etc. We have also noticed that the Committee headed by the Minister of Road and Building Department looked into the wages of daily wage workers and work related facilities provided to the daily wage workers engaged in building maintenance and repairing work in different departments, only for the purpose of its recommendations. The Committee has not limited the recommendations amongst the daily wage workers engaged in building maintenance and repairing work in different departments by its aforesaid Resolution. It is applicable to all daily wage workers including semiskilled workers performing any nature of job, working in different departments of the State including the daily wage workers of the Forest Department performing work other than building maintenance and repairing work.
22. The impugned order passed by the learned Single Judge and the Division Bench arise out of the final order and judgment dated 29th October, 2010 passed in SCA No.8647/2008 and connected matters. The said order has reached finality in absence of any challenge before the higher Court and hence became binding between the parties i.e. the appellant State of Gujarat and the respondents Employees Union. Therefore, none of the parties including appellantsState of Gujarat can rely on Full Bench decision in Gujarat Forest Producers, Gatherers Page 6 of 13 C/SCA/515/2012 JUDGMENT and Forest Workers Union(supra) to scuttle the decision and direction given by the Gujarat High Court in SCA No.8647/2008 and connected matters.
23. The decisions in Uma Devi (supra) and A. Umarani (supra) were regarding the question concerning regularization of employees entered by back door method or those who were illegally appointed encouraging a political set up, in violation of Article 14 and 16 of the Constitution of India. We are of the opinion that both the aforesaid decisions are not applicable in the present case i.e. to the members of the respondentEmployees Union for the following reasons:
(i) The Secretary, Forest and Environment Department of the State of Gujarat by his order dated 3rd May, 2008 held that initially the entry of the daily wagers do not suffer from any illegality or irregularity but is in consonance with the provisions of Minimum Wages Act. Therefore, the question of regularization by removing procedural defects does not arise.
(ii) The Gujarat High Court by its judgment dated 29th October, 2010 passed in SCA No.8647 of 2008 while noticing the aforesaid stand taken by the State also held that the nature of work described in the order dated 3rd May, 2008 shows that the daily wage workers are engaged in the work which is perennial in nature.
(iii) The case of A.Uma Rani (supra) related to regularization of services of irregular appointees. In the said case this Court held that when appointments are made in contravention of mandatory Page 7 of 13 C/SCA/515/2012 JUDGMENT provisions of the Act and statutory rules framed therein and in ignorance of essential qualifications, the same would be illegal and cannot be regularized by the State.
24. Thus, the principal question that falls to be considered in these appeals is whether in the facts and circumstances it will be desirable for the Court to direct the appellants to straightaway regularize the services of all the daily wage workers working for more than five years or the daily wage workers working for more than five years are entitled for some other relief.
25. As per scheme contained in Resolution dated 17th October, 1988 all the daily wage workers were not entitled for regularization or permanency in the services. As per the said Resolution the daily wagers are entitled to the following benefits:
"(i) They are entitled to daily wages as per the prevailing Daily Wages.
If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays.
(ii) Daily wagers and semi skilled workers who has service of more than five years and less than 10 years are entitled for fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leave in addition to 14 misc.
leave, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and deduction of Page 8 of 13 C/SCA/515/2012 JUDGMENT provident fund.
(iii) Daily wagers and semi skilled workers who has service of more than ten years but less than 15 years are entitled to get minimum pay scale at par with skilled worker along with dearness allowance as per prevailing standard, for his working days.
Moreover, such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. He/she will be eligible for getting medical allowance and deduction of provident fund.
(iv) Daily wagers and semi skilled workers who has service of more than 15 years will be considered as permanent worker and such semi skilled workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get benefit as per the prevailing rules of gratuity, retired salary, general provident fund. Moreover, they will get two optional leave in addition to 14 misc. leave, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The daily wage workers and semi skilled who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly."
26. Considering, the facts and circumstances of the case, the finding of Gujarat High Court dated 29th October, 2010 in SCA No.8647/2008 and connected Page 9 of 13 C/SCA/515/2012 JUDGMENT matters and the fact that the said judgment is binding between the parties, we are of the view that the appellants should be directed to grant the benefit of the scheme as contained in the Resolution dated 17th October, 1988 to all the daily wage workers of the Forest and Environment Department working for more than five years, providing them the benefits as per our finding at Paragraph 25 above. The appellants are directed accordingly. The judgment and order passed by the learned Single Judge dated 29th October, 2010 as affirmed by the Division Bench by its order dated 28th February, 2012 stands modified to the extent above. The benefit should be granted to the eligible daily wage workers of the Forest and Environment Department working for more than five years including those who are performing work other than building maintenance and repairing but they will be entitled for the consequential benefit w.e.f. 29th October, 2010 or subsequent date from which they are so eligible within four months from the date of receipt/production of the copy of this order. The appeals stand disposed of with the aforesaid observation and directions to the appellantState and its authorities. There shall be no separate orders as to costs."
8. In Special Civil Application No.9036 of 2013 and allied matters, the coordinate bench of this Court after considering the objections raised by learned AGP about pendency of the review petition before Hon'ble Supreme Court made following observations in para Nos.12, 15, 16 and 17 as under: "12. At this stage, learned AGP submitted that though the respondents do not dispute that the petitioners in these cases are Page 10 of 13 C/SCA/515/2012 JUDGMENT similarly situated to the petitioners in previous case, however, the respondents have taken out review application before Hon'ble Apex Court, wherein the respondent State is in process of seeking review of the decision in case of State of Gujarat & Ors. vs. PWD Employees Union & Ors. [2013 (8) Scale 579].
15. However, the fact remains that any order as of now is not passed by Hon'ble Apex Court in the any review application.
16. More important is the fact that the operation of the decision in case of State of Gujarat & Ors. vs. PWD Employees Union & Ors. [2013 (8) Scale 579] is not stayed by Hon'ble Apex Court.
17. Under the circumstances, the said decision and directions by Hon'ble Apex Court are in operation."
9. The Court then made further observations in para No.21 to 24 as under:
21. It is not in dispute that Hon'ble Apex Court has not passed any order staying the implementation and operation of the decision in the case of State of Gujarat & Ors. vs. PWD Employees Union & Ors. [2013 (8) Scale 579].
22. In that view of the matter, the cases of present petitioners are undisputedly as acknowledged even by learned AGP - governed by and covered by the decision in the case of State of Gujarat & Ors. vs. PWD Employees Union & Ors. [2013 (8) Scale 579] and that, therefore, the respondents are under obligation to implement the said decision in case of present petitioners as well.
23. Hence, these petitions are disposed of in light of the observations and directions by Hon'ble Apex Court in paragraphs No.2, 3, 8, Page 11 of 13 C/SCA/515/2012 JUDGMENT 14, 15, 21 to 26 and more particularly in paragraph No.26 of the said decision.
24. So far as the submissions by learned AGP that the cases of each individual employee are required to be examined in accordance with their respective eligibility by the competent authority, is concerned, it is relevant and necessary to mention that Hon'ble Apex Court has dealt with the said aspect and has also clarified that:
"The benefit should be granted to the eligible daily wage workers of the Forest and Environment Department working for more than five years including those who are performing work other than building maintenance and repairing but they will be entitled for the consequential benefit w.e.f. 29th October, 2010 or subsequent date from which they are so eligible within four months from the date of receipt/production of the copy of this order."
and finally, the Court issued following direction in para No.25 as under:
25. Therefore, the respondents should act and decide the cases of present petitioners as per the directions of the Hon'ble Apex Court in paragraph No.26 of the decision. Though it is not necessary, learned AGP requested that it may be calrified that if any order is passed in respondent's review application, it will be applicable to the cases of these petitioners as well. It goes without saying that this aspect also will depend on the nature and effect of the directions that may be passed by Hon'ble Apex court, in the review application.
With the aforesaid clarification, the petitions are disposed of.
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10. Thus considering the decision of Hon'ble Supreme Court in the case of PWD Employees Union (Supra) and the directions issued by coordinate bench, the petitioners' case shall be required to be examined by the respondents as directed by Hon'ble Supreme Court.
11. In view of the above, the petitions are partly allowed. The respondents are directed to examine and decide the case of each of the petitioners individually as per the direction issued by the Hon'ble Supreme Court in para No.26 of the decision in case of PWD Employees Union (supra). The respondents shall take such decision within 4 months from the receipt/production of the order passed by this Court in the present petitions.
12. At the instance of learned AGP Shri Ronak Raval, it is clarified that the order which may be passed in review application pending before the Hon'ble Supreme Court, shall also be applicable to the cases of the petitioners.
13. Rule made absolute to the extent stated above. The copy of this order shall be made available to the learned AGP Shri Ronak Raval for its onward communication.
(C.L.SONI, J.) ANKIT Page 13 of 13