Gujarat High Court
Sardar Sarovar Narmada Nigam Limited vs Mahadev Dhanjibhai Khokhar on 30 January, 2023
Author: A.J.Desai
Bench: A.J.Desai, Rajendra M. Sareen
C/LPA/1475/2022 ORDER DATED: 30/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1475 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 7652 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1475 of 2022
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SARDAR SAROVAR NARMADA NIGAM LIMITED
Versus
MAHADEV DHANJIBHAI KHOKHAR
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Appearance:
MR. ALKESH N SHAH(3749) for the Appellant(s) No. 1,2,3,4
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 2
MR NILESH M SHAH(780) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 30/01/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. By way of present appeal under Clause 15 of Letters patent, original respondent Nos. 2 to 5 have challenged the oral judgment dated 17.02.2022 passed by the learned Single Judge in captioned writ petition by which learned Single Judge by relying upon a decision passed by the learned Single Judge dated 20.08.2019 in SCA No. 7531 of 2018 and confirmed in LPA No.1381 of 2015 decided on 04.01.2016 accepted the petition and while allowing the prayer of the writ petition in terms of paragraph 21 (C) held that original petitioner - present respondent would be entitled to the benefit of Government Resolution dated 17.10.1988 w.e.f. 16.04.1995 to 25.07.2003 in the pay scale of Rs.950-1500 and revised pay scale corresponding thereto from 26.07.2003 to 09.01.2017 and Page 1 of 8 Downloaded on : Thu Feb 02 20:40:47 IST 2023 C/LPA/1475/2022 ORDER DATED: 30/01/2023 from 10.01.2017 till date with 100% difference of salary.
2. The case put forwarded by the original petitioner is as under;
The petitioner was appointed on 16.4.1990 as Daily Wager Driver by the Superintending Engineer, Sardar Sarovar Saurashtra Branch Canal Circle - 1, Surendranagar. On his services being terminated on 11.12.1990, a dispute was raised in reference (LCS) No.57/1991. By an award dated 30.7.1993, the labour Court directed reinstatement with continuity of service and 50% of back wages. On a challenge to the award by the respondent No.2 - Nigam, by a judgment and order dated 26.8.1997, the petition was dismissed. The petitioner was reinstated on 21.8.1997. The petitioner had given legal notice on 21.9.1998 sought for the benefits of Resolution of 17.10.1988. Accordingly, a proposal was sent by the respondent for extending the benefits of Resolution. The petitioner had raised an industrial dispute claiming regularization before the labour Court, Surendranagar. Pending the dispute, the petitioner's services were again terminated by an order dated 25.7.2003, for which, the petitioner filed a complaint No.2/2003. The reference / complaint was rejected against which the petitioner filed SCA No.17955/2014. The labour Court, by an award dated 29.9.2011 in complaint No.2/2003 directed the Nigam to reinstate the petitioner with 50% back wages. In the main award namely; Reference (LCD) No.6/2003, the petitioner's claim for regularization was refused. Aggrieved by these orders, the petition filed SCA No.17995/2014 and a Nigam filed SCA No.20/2013. Both these petitions were heard together and by common order dated Page 2 of 8 Downloaded on : Thu Feb 02 20:40:47 IST 2023 C/LPA/1475/2022 ORDER DATED: 30/01/2023 9.1.2017 with regard to regularization directed the petitioner to make a representation to the authorities, as far as the Nigam's petition challenging reinstatement, the petition was dismissed.
3. It is apparent from the proposal made by the Corporation
- Nigam that for the first time, the petitioner was appointed on 16.4.1990 and a representation being made for granting the benefits of Resolution dated 17.10.1988, his request has been rejected by a communication dated 1.11.2018 on the ground that his appointment is post of Resolution dated 17.10.1988.
4. In response to the notice, the respondents filed an affidavit. The learned Single Judge after considering the decision of learned Single Judge which was confirmed by the Division Bench allowed the petition. Hence, this appeal.
5. Mr. Alkesh N. Shah, learned advocate for the appellants would submit that learned Single Judge has committed an error in relying upon a decision of the learned Single Judge. He would submit that he was not in service when the Government Resolution dated 17.10.1988 was issued and therefore, the same will not be applicable to the original petitioner. He would, therefore, prayed to allow the appeal by quashing and setting aside the impugned order.
6. On the other hand Mr.Nilesh Shah, learned advocate for the original petitioner has opposed this appeal that this aspect has been considered by the learned Single Judge which was confirmed by the Division Bench. He further submitted that even in the case of similarly situated employee, in another Page 3 of 8 Downloaded on : Thu Feb 02 20:40:47 IST 2023 C/LPA/1475/2022 ORDER DATED: 30/01/2023 writ petition being SCA No.17874 of 2017, similar benefits were granted by the learned Single Judge, which was challenged before the Division Bench in LPA No.1584 of 2017 by relying upon decision which was confirmed in LPA, dismissed the appeal filed by the State authorities. He has placed copy of judgment dated 21.09.2017 passed in LPA No.1584 of 2017 and prayed to dismiss the appeal.
7. We have heard learned advocates appearing for the respective parties and gone through the contentions raised by the learned advocate for the appellants are dealt with by the Division Bench in aforesaid order. The relevant paragraph is as under;
"4. We have heard the learned AGP and perused the material on record. It was contended by the learned AGP that the benefits of Government Resolution dated 17.10.1988 would accrue to only those daily wagers who were engaged before 01.10.1988. However, the said contention is misconceived in view of the order passed by the Division Bench of this Court in Letters Patent Appeal No.1381 of 2015 decided on 04.01.2016. For ready reference, the relevant paragraphs of the said judgment are reproduced hereunder;
"3. The contention raised on behalf of the appellant is that even in the decision of the Apex Court in the case of State of Gujarat and others vs. PWD Employees Union and Ors., reported at (2013) 12 SCC 417, effective date for the purpose of conferment of the benefits is 29.10.2010 and not as per the Govt. Resolution dated 17.10.1988. The Labour Court has granted benefits as per the Govt. Resolution dated Page 4 of 8 Downloaded on : Thu Feb 02 20:40:47 IST 2023 C/LPA/1475/2022 ORDER DATED: 30/01/2023 17.10.1988 and the learned single Judge did not interfere with the same. It was also submitted that after the above-referred decision of the Apex Court in the case of State of Gujarat & Ors. (supra), the Gujarat Water Supply & Sewerage Board approached the Apex Court by preferring Special Leave Petition Nos.29108 29114 of 2014 against the judgment dated 6.7.2014 rendered in Letters Patent Appeal No.327of 2013 and allied matters and the Apex Court, vide order dated 14.11.2014 has interfered with the judgment by observing that the the payment of arrears shall remain stayed, but the benefits in terms of the judgment of the High Court be released for the future. It was, therefore, submitted that in view of the aforesaid recent development, this Court may consider the matter.
4. If the facts of the present case are considered, the Labour Court has passed the award by directing to grant the benefits available to the respective workmen as per the Govt. Resolution dated 17.10.1988. The learned single Judge, in view of the above-referred decision of the Apex Court in the case of State of Gujarat & others (supra) did not find the case for interference. Mr. Munshaw is not right in submitting that the effect for permanency benefits etc. is to be given from 29.10.2010 as per the above-referred decision of the Apex Court in the case of State of Gujarat & others (supra). On the contrary, in paragraph 29 of the said decision, the Apex Court has observed, inter alia, that, considering the facts and circumstances of the case, the finding of the Gujarat High Court dated 29.10.2010 in PWD Employees Union v. State of Gujarat and connected 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 Page 5 of 8 Downloaded on : Thu Feb 02 20:40:47 IST 2023 C/LPA/1475/2022 ORDER DATED: 30/01/2023 17.10.1988 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 para 29 above. The appellants are directed accordingly. Entire paragraph 29 of the above referred decision of the Apex Court reads as under:
"29. As per the scheme contained in the Resolution dated 17- 101988 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 have 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 leaves in addition to 14 miscellaneous leaves, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and deduction of provident fund.
(iii) Daily wagers and semi skilled workers who have service of more than ten years but less than 15 years are entitled to get minimum pay scale on a par with skilled workers along with dearness allowance as per prevailing standard, for his working days. Moreover, such daily wagers will get two optional leaves in addition to 14 miscellaneous leaves, Sunday leave and national festival holidays. He/She will be eligible for getting medical allowance and deduction of provident fund.
(iv) Daily wagers and semiskilled workers who have service of more than 15 years will be considered as permanent worker and such semiskilled 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 (sic retiral) salary, general provident fund. Moreover, they will get two optional leaves in addition to 14 miscellaneous leaves, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The daily- wage workers and semiskilled workers who have completed Page 6 of 8 Downloaded on : Thu Feb 02 20:40:47 IST 2023 C/LPA/1475/2022 ORDER DATED: 30/01/2023 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.
Hence, what is ordered by the Apex Court is grant of benefits as per the Govt. Resolution dated 17.10.1988 and not from the date as sought to be canvassed by the learned counsel for the appellant so as to deprive the benefits, if any, of the Govt. Resolution dated 17.10.1988.
5. Be it recorded that so far as the present case is concerned, the respondent no.1 is the workman in District Panchayat and in respect of the Panchayat employees, the policy of the government applies automatically which means that they are at par with the government employees. The status of the employees of Gujarat Water Supply & Sewege Board of whose matter reference is made by Mr. Munshaw cannot be said to be at par with the Panchayat employees. We leave it at that because the matter is pending before the Apex Court in the abovereferred proceedings of Special Leave Petitions.
6. The Labour Court has directed for conferment of benefits by the impugned award as per the Govt. Resolution dated 17.10.1988. We do not find that the learned single Judge has committed any error in not interfering with the said award. Under the circumstances, no case is made out for interference. Hence, the appeal is dismissed."
8. We are in complete agreement with the findings given by the Division bench in aforesaid judgment and find no merits in the appeal and the same is dismissed.
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9. In view of dismissal of the main appeal, Civil Application does not survive and disposed of accordingly.
(A.J.DESAI, J) (RAJENDRA M. SAREEN,J) DRASHTI K. SHUKLA Page 8 of 8 Downloaded on : Thu Feb 02 20:40:47 IST 2023