Gujarat High Court
Rashtriya vs State on 1 April, 2008
Author: H.K.Rathod
Bench: H.K.Rathod
SCA/3591/1999 2/ 10 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3591 of 1999 ========================================================= RASHTRIYA MAZDOOR UNION & 1 - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR RAJESH P MANKAD for Petitioner(s) : 1 - 2. MS REETA CHANDARANA AGP for Respondent(s) : 1, 3, RULE SERVED for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 01/04/2008 ORAL ORDER
Heard learned advocate Mr. RP Mankad on behalf of petitioner, learned AGP Ms. Chandarana appearing for respondent state authority.
The affidavit in reply was filed on 30/7/1999 by respondent Mr. A. C. Amin, Executive Engineer, Vadodara Mechanical Division (R & B) Vadodara. In the said affidavit in reply, following averment made at page 47 to 51 relevant para 3 to 7 are quoted as under:
ýS3. I submit that, as said by petitioner in para 2 of the petition, the award was ýS All Temporary Workmen other than workcharged employees and daily rated employees.ýý who have put more than six months service as temporary workmen shall be taken to be permanent on the date of passing of the award. I say that the petitioner have raised the point before the Honourable High Court in this petition that this award is not being implemented by the authorities and have annexed Annexure C, showing list of the employees to be made permanent according to award.
I deny the aforesaid contentions of the petitioners and say that the office of of the Ex. Engineer, Vadodara Mechanical Division, has clearly told the petitioner Union vide their R.P.A.D. letters dated 15/9/1998 and 23/2/1999 that, according to Award there is no employees left to be made permanent and if the union has got any names of such employees, they should submit the list to the department. Annexed hereto and marked Annexure R1 collectively are copy of letter dated 15/9/1998 and 23/2/1999 respectively. The petitioner Union has not produced or given any list of such employees to the office till today. The Annexure C list to the petition shows that the workers are either daily rated or workcharged but not temporary as regards to sub division no. 1, Vadodara and as regard to the employees of the sub Division ý 2 Vadodara the workers were made temporary on 4/8/1990 as per the policy of the Government Resolution dated 4/8/1990 and even otherwise the list was never produced to this office, in past or as said by the petitioner union on 5/3/1999. Further the said letter dated 5/3/1999 of the union is given to the respondents only on 15th July 1999.
4. I say and submit that, according to the office record there is no temporary workmen (i.e. other than daily rated or workcharged employees) remains to be made permanent according to the award of the Industrial Tribunal.
The workers mentioned in the list submitted by the petitioners at Annexure C are continued in service on their respective post and they will be continued till their retirement. The details of each worker is annexed hereto and marked Annexure 2. Thus the workers are being treated as is they are permanent and thus the award of the Industrial Tribunal is implemented in all respects by the office.
5. I say and submit that the State Government has made and implemented the policy vide the Government of Gujarat, R & B Department's Resolution dated 17/10/1988 regarding various benefits of pay scales, leave, pension, GPF, Gratuity etc. is to be given to a daily rated and workcharged employees. Annexed hereto and marked Annexure R3 is copy of the Resolution dated 17/10/1988 for ready reference of this Honourable Court.
6. I say and submit that, now it is a settled law that any daily rated employee is to be considered as 'workman' and he cannot be made permanent at par with other regular Government employees. And, the policy being implemented by the Govt. vide their above referred G. R. dated 17/10/1988 and the benefits being given under this policy is quite enough and nothing more than that can be given to any daily rated or workcharged or so called 'Temporary workman'.
I submit that the word 'Temporary' is used for both, Regular employees of government as well as in the case of daily rate casual type of labour of the government. But, when the services of the regular employees of the State is termed as 'Temporary (Hangami)', it should not be mixed or can not be identified in the context of the word 'Temporary' used for the daily rated employees, who are as such 'casual' type of worker and being recruited without any regular recruitment procedure for purely temporary period but for many reasons they are continued for long time on one work or the other. But such casual type of temporary employees can not be made permanent as in the case of Regularly appointed 'Hangami' Govt. employees. The Government has clarified this aspect in R & B Department G. R, dated 18/7/1994. Annexed hereto and marked Annexure 4 is copy of said G.R. I further submit that this Honourable Court has an occasion to deal with similar type of question raised, in Spl. C. A. no. 1817 of 1987 and Spl. C. A. No. 11071 of 1993. By detailed judgment & order both the petitioners were dismissed by Ld. Single Judge. Annexed hereto and marked Annexure R5 and R6 respectively are copy of judgment and order passed in aforesaid two petitions.
7. I say and submit that, as per the policy of the State Government, and as it is held valid by above referred judgments, the service conditions of the daily rated and workcharged workers are to be regulated strictly according to the resolutions dated 17/10/1988 of Roads and Building Department. In the circumstances, without challenging this policy of the state petitioners can not be allowed any other type of relief whatsoever regarding permanency of the services of the daily rated or workcharged workers. This office has already given various benefits according to present policy of the State which includes, pay scale, leave, pension, gratuity, medical benefits etc. which is more or less the same as applicable to regular permanent Government employees.ýý Against the affidavit in reply of respondent, affidavit in rejoinder is filed by petitioner on 13/10/1999, where following averment made at page 99 to 100 in para 3 to 6 are quoted as under:
ýS3. I say and submit that in para 3, the respondents have stated that no employee has left to be made parmanent. If, so respondent authorities may be called upon to show as to who are made permanent and what is the date of making them permanent. The list appended in the petition as Annexure C is the list of employees who have not issued any order of being made permanent till today. The statement of employees would go to show that the employee in the range of entry into the services were from 1968 to 1981, still they await the permanency and most of whom have completed the service of more than 20 years. Still, they are being treated as ineligible for the benefits that have been awarded by the judgment and award of the Honourable Industrial Tribunal. The respondents have accepted in their reply that the employees of sub. Division II, Vadodara had been made temporary on 4/8/1990 whereas as per the award, the respondents have to be made from work charged or daily rated employee to temporary employee from the date of award and after completion of six months as temporary employee, they have to be made as permanent employees.
4. In para 4, the respondent authority has stated that the employees at Annexure C of the petition will be continued till their retirement and they are being treated as if they are permanent and that is how the award of the Honourable Industrial Tribunal has been implemented.
5. The award of the Honourable Industrial Tribunal is very clear and as per the award, employee shall be taken to be permanent on the date of the award being effective. There is no question of treating the employee permanent, but they have to be made permanent by issuing the order of permanency. It has not been done till today. By non-implementation of the award, the employees are loosing their pay scale, seniority, promotion, and other consequential benefits over and above loosing their social status.
6.I deny the contention taken in para 5 and 6 and I say and submit that the award has been clarified by the Honourable Supreme Court of India and if the daily rated and work-charged employees are on the role on the date of award, they have been treated as temporary and after completion of six months as temporary employees, they have to be made permanent. There is no question of any Government resolution. It is not applicable in the present case when the award has been passed by Honourable Industrial Tribunal.ýý Learned advocate Mr. Mankad submitted that additional affidavit is filed by Me. Krishna Krup, General Secretary of petitioner Union in January, 2008. Copy thereof is served to learned AGP Ms. Chandarana.
In light of the additional affidavit, it is directed to respondent to file additional affidavit in reply whether annexure C - list of petition is given by Union or not and whether they are entitled for the benefit of award or not and also to file affidavit, in respect to list, which has been supplied by petitioner along with affidavit whether this employees are entitled for the benefits of award inquestion or not.
If respondent is having opinion that this employees are not entitled for benefit of award, then, they should have to given reason that on what basis they are not entitled. The said affidavit is to be filed within a period of one month from the date of receiving copy of this order.
The additional affidavit filed by learned advocate Mr. Mankad is not on record. According to learned advocate Mr. Mankad, it is filed in the Registry of this Court. Therefore, registry is directed to place on record original additional affidavit filed by petitioner.
Therefore, matter is adjourned on 18/6/2008.
(H.K.RATHOD, J) asma