Gujarat High Court
State Of Gujarat vs Bharat Ramji Parmar on 25 April, 2011
Author: H. K. Rathod
Bench: H.K.Rathod
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 5832 of 2003
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STATE OF GUJARAT
Versus
BHARAT RAMJI PARMAR
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Appearance:
1. Special Civil Application No. 5832 of 2003
MR HD DAVE, AGP for Petitioner No. 1
.......... for Respondent No. 1-2
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CORAM : MR.JUSTICE H.K.RATHOD
Date of Order: 02/05/2003
ORAL ORDER
Heard learned AGP Mr. H.D. Dave on behalf of the petitioner. The State of Gujarat has challenged the award passed by the Labour Court, Rajkot in Reference (LCD) No. 09/1997 dtd. 20.01.2003 wherein Labour Court has granted the benefit to the respondents workmen to be regularised or made permanent in the Class IV with effect from 07.07.1997 and whatever the arrears available, due to that same will be required to be paid by the petitioner with effect from 01.01.2000. Learned AGP Mr. H.D. Dave has submitted that specific contention was raised before the Labour Court, Rajkot that for appointment in the Class IV, some detailed procedure is required by the department and his name is required to be called for from the employment exchange and without selection, he should not have to be regularised in the Class IV post. He also submitted that Labour Court has committed gross error in granting such benefit which is contrary to the service rules of the department. The specific objection has been taken that there is no set up in respect to Class IV in the department. He was not appointed through employment exchange and no appointment letter was given to him and according to the department rules, the post of Class IV is to be filled up through employment exchange and 10 candidates are required to be taken into account and all the candidates are required to be given equal opportunity for the post of Class IV and whenever the regular appointment is made, accordingly the order has been passed by the department. None of the procedure has been followed in case of respondent and, therefore, Labour Court has committed gross error in directing to the petitioner to confirm both the respondent workmen in Class IV and directed to be paid arrears with effect from 01.01.2000. Learned AGP Mr. H.D. Dave has pointed out that the respondents workmen remained in service because of the interim order passed by the District Court, Rajkot. Therefore, they are not entitled for the said benefits.
I have considered the submissions made by learned AGP Mr. H.D. Dave. I have perused the award passed by the Labour Court, Rajkot. Before the Labour Court, statement of claim has been filed by the workmen vide Exh.5 wherein it is pointed out that they are working in the post of "Khalasi-Cum-Peon" in the Class IV since many years and during their service, new recruitment has been made by the petitioner. Even though, they were not given benefit of permanency and, therefore, the demand has been raised to be made permanent with effect from the date of joining. No reply has been filed by the petitioner before the Labour Court. However, vide Exh.31, one witness Shri Kishorbhai Ghanabhai Sagathiya was examined on behalf of the petitioner. Thereafter, Labour Court has considered the evidence on record. Each workman has completed more than 15 years service continuously with the petitioner and this is not in dispute by the petitioner. The Labour Court has considered that one Bharatbhai Ramji Parmar was appointed on 07.11.1979 and one Shri Bhupatbhai Chauhan was appointed on 01.10.1981 in the post of "Khalasi-Cum-Peon" in Class IV and they were remained continuous in service till the dispute has been raised and even subsequent to that also, they are in service. The Labour Court has also considered that total length of service is not challenged by the petitioner before the Labour Court. The respondents workmen has produced the Govt. Resolution dtd. 17.10.1988 vide Exh.9 and even Labour Court has considered that Resolution and after a period of 10 years service, even according to that Govt. Resolution, the workman is entitled the benefit of permanency and regular salary. Ultimately, the Labour Court has considered that whether in the set up the post is available or not. But once the workmen remained continue in service for more than 10 years, then he entitled the regular salary and entitled the benefit of permanency. The Labour Court has given reasons and relied upon certain decisions of the Apex Court while granting the relief in favour of the respondents workmen. According to my opinion, while passing such award, Labour Court has not committed any error.
Recently, the Apex Court has also considered this aspect of regularisation in service and also as regular pay scale to such daily wager employees in case of GUJARAT AGRICULTURAL UNIVERSITY V. RATHOD LABHU BECHAR reported in AIR 2001 SC 706. Relevant observations made in para-19, 20 and 21 are quoted as under :-
"19.One of the questions which is also up for our consideration is, apart from the fact who are to be regularise, what would be payable to these daily wage workers who have completed more than 10 years of continuous service. Submissions for the respondents is, that such daily wage workers should be paid the same minimum scale of pay as admissible to the regularised incumbent based on the principle of `equal pay for equal work' Daily rated casual labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch V. Union of India [ AIR 1987 SC 2342 : 1988 Lab IC 37 ] [ Supra] was a case of daily rated casual labourers of the P & T department doing work similar to that of the regular workers of the department. This Court held :
" ..... Even though the Directive Principle contained in Articles 38 and 39 [d] may not be enforceable as such be virtue of Article 37 but it may be relied upon by the petitioners to show that in the instant case they have been subjected to hostile discrimination. The State cannot deny at least the minimum pay in the pay scales of regularly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees. Such denial amounts to exploitation of labour. The Government cannot be take advantage of its dominant position and compel any worker to work even as a casual laborer on starvation wages. It may be that the casual laborer has agreed to work on such low wages ..... "
20.State of Haryana v. Piara Singh, 1992 (4) SCC 118 : (1992 AIR SCW 2315 : AIR 1992 SC 2130 : 1992 Lab IC 2168). This was a case of ad hoc/temporary Government employees. This Court held, those eligible and qualified and continuing in service satisfactorily for a long period have right to be considered for regularisation. Long continuing in service gives rise to a presumption about the need for a regular post. In such cases Government should consider feasibility of regularisation having regard to the particular circumstances with a positive approach and empathy for the concerned person.
21.In Surinder Singh V. Engineer-in-Chief, C.P.W.D., 1986 (1) SCC 639 : (AIR 1986 SC 584 :
1996 Lab IC 551), this Court holds entitlement of 'equal pay for equal work' for the daily wage workers of C.P.W.D. to the wages equal to the regular and permanent employees employed to do identical work, Mool Raj Upadhavava v. State of H.P., 1994 Supp (2) SCC 316, was a case of regularisation based on the claim for 'equal pay for equal work' of daily wages of Class III and Class IV employees in the irrigation and Public Health Wings of H.P. Some of them worked for more than 10 years. They were being paid minimum wages prescribed by the State Government but were seeking regularisation and parity of pay with regular employees. The State Government came out with a scheme which was modified by the Court to the following effect. The relevant portion of which is quoted hereunder :
"Taking into consideration the facts and circumstances of the case, we modify the said scheme :
xxxxxxxx (3) daily-wage muster-roll workers, whether skilled or unskilled who have not completed 10 years of service with a minimum of 240 days in a calendar year on 31.12.1993, shall be paid daily wages at the rates prescribed by the Government of Himachal Pradesh from time to time for daily wage employees falling in Class III and Class IV till they are appointed as work-charged employees in accordance with paragraph 2;
(4) daily-wage/muster-roll workers shall be regularised in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularisation they shall be put in the minimum of the time-scale payable to the corresponding lowest grade applicable to the Government and would be entitled to all other benefits available to regular Government servants of the corresponding grade."
In view of the observations made by the Apex Court and considering the facts of the present case, undisputedly, both the respondent workmen were continue in service for more than 15 to 16 years as a Casual or daily wager and they raised the dispute which resulted in relief in their favour. According to my opinion, Labour Court has rightly appreciated the evidence on record and passed appropriate award in favour of the respondents workmen. The Labour Court has taken care that no financial burden would impose upon the State Government and that is how with retrospective effect from 07.07.1997, the benefit was not given and no direction has been issued to pay the arrears to the workmen but on the contrary, Labour Court has taken into account that future effect from 01.01.2000. According to my opinion, it is a balanced award passed by the Labour Court and after considering the settled principles laid down by the Apex Court, Labour Court has not committed any error while passing such award which does not require any interference while exercising the powers under Article 226/227 of the Constitution of India. Hence, there is no substance in the present petition. Present petition is dismissed.
(H. K. Rathod, J.)