Gujarat High Court
Gujarat Rajya Ardh Sakari Audhiyogick ... vs State Of Gujarat on 8 September, 2004
Equivalent citations: (2005)1GLR135
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Heard learned advocate Mr.P.H. Pathak on behalf of the petitioners and learned AGP Ms.Nandini Joshi appearing on behalf of respondents.
2. In these two petitions, the Dailywagers who are working with the Forest Department, have filed these two separate petition claiming benefits of Government Resolution dated 17th October, 1988 and benefit of equality on the basis of equal pay for equal work. So far as the first petition Special Civil Application No.7923 of 1996 is concerned, this Court [ Coram : Justice J. N. Bhatt, J. ] has at the time of admitting this matter, on 16.10.96 issued Rule and granted ad-interim relief restrained the respondents from terminating the services of the petitioners named as at Annexure-C with a clarification that it will be open for the respondents to terminate their services in accordance with law. It is further ordered that the petitioners named in Annexure-C shall be paid wages calculated or determined at the minimum of the pay scale applicable to the Class-IV employees and also observed that the ad-interim relief and interim order is without prejudice to the rights of the parties. Similar ad-interim relief is also granted in other petition being Special Civil Application No.10083 of 1996 on 12.12.1996.
3. It requires to note that in both these petitions, ad-interim relief granted by this Court remained as it is and as such, no steps have been taken by the respondents to vacate the earlier granted ad-interim relief inasmuch as though Civil Applications in respective petition were filed but in one case, not brought on board the civil application for vacating interim relief, whereas in other Civil Application No.560 of 1998 filed with prayer to vacate the ad-interim relief granted earlier by this Court in main matter, no order of this Court is obtained by the respondents, nor this Court has made any order on both these civil applications. Prayers made in both these petitions are identical in nature and since the same is very relevant, same are referred to and quoted from para-16 of Special Civil Application No.7923 of 1996 as under;
"[A] Your Lordships be pleased to issue an order writ in the nature of mandamus and / or certiorari or any other appropriate writ, order or direction, declaring the impugned action of the respondents not extending the benefits of Government Resolution dtd.17.10.88 to the petitioners as discriminatory, arbitrary and violative of Article 14 and 16 of the Constitution of India and be pleased to declare that the petitioners being the daily wage employees are required to be extended the same benefits as granted to the daily wage employees of other departments and further direct to grant all consequential benefits with 18 % interest.
[B] Be pleased to hold that there is no justification available to the respondents for depriving the petitioners of the benefit of equality of pay payable to Class-IV employees and to deprive them of regulation and further direct the respondents to pay the arrears of wages calculating on the basis of time scale of pay payable to class IV employees to the petitioners from their initial date of appointment with 18 % interest.
[C] Be pleased to declare that the respondents are entitled to get the benefits of equal pay for equal work i.e. minimum of the time scale of pay payable to Class IV employees from the initial date of appointment and further direct the respondents to pay the same with interest and further direct to treat the petitioners as regular employee of the respondent department and grant all consequential benefits.
[D] Pending admission and final disposal of the petition, be pleased to restrain the respondents from terminating / discharging and / or discontinuing the services of the petitioner employees at Annexure-C and further direct respondents to pay them the minimum of the time scale of pay with all allowances payable to Class IV employees.
[E] Pending admission and final disposal of the application, be pleased to restrain the respondents from terminating the services of the employees at Annexure-C to this petition and direct the respondents to extend the benefits of Government Resolution dated 17.10.88 to them.
[G] Any other relief to which the Hon'ble Court deems fit and proper in the interest of justice together with cost."
As observed earlier, having regards to the facts and circumstances of the case, this Court has granted ad-interim relief restraining the respondents from terminating the services of the petitioners with a clarification that it will be open for the respondents to terminate their services in accordance with law and shall pay wages to the petitioners calculated or determined at the minimum of the pay scale applicable to the Class-IV employees. The ad-interim relief and interim order is without prejudice to the rights of the parties.
4. The respondent No.2 in both these Special Civil Applications has filed their reply, against which, rejoinder is filed by the petitioners.
5. Today, when these petitions are taken up for hearing, at the outset, Ms.Nandini Joshi, learned AGP has raised objection to contend that these both petitions are covered by the decision of the Full Bench of this Court in case of Gujarat Forest Producers, Gatherers and Forest Workers Union vs. State of Gujarat, 2004 [2] G.L.H 302, holding that question whether the "Forest Department" and "Irrigation Department" are an "Industry" as defined under the I.D.Act, the answer is that the entire Forest Department cannot be branded as an industry - only those units which satisfy the "triple test" laid down in the Banglore Water Supply case can be brought under the definition of "Industry" and the Government Resolution dated 17.10.88 is applicable to the daily wagers of various departments working for maintenance and repairs of construction and therefore, petitioners who are daily wagers working in the Forest Department, their case are covered as per the clear answer given by the Full Bench to the Reference, and hence, their claim may be rejected. In view of this objection raised at the outset by Ms.Joshi, Learned AGP for respondents, Mr.P.H.Pathak, learned advocate submitted that the answer given by the Full Bench of this Court only replies the first prayer made in respect of implementation of the Government Resolution dated 17.10.88 but the rest of the claims of the petitioners in prayer clause [B] and [C] are not replied in the aforesaid decision of the Full Bench. Under this situation, Mr.Pathk, learned advocate for the petitioners therefore requests this Court to relegate the petitioners to raise industrial dispute under the provisions of the Industrial Disputes Act, 1947 and further prays that the ad-interim order made by this Court may be ordered to be continued in force till the dispute is raised and referred to by the appropriate Government to the concerned forum under the I.D.Act.
6. However, the request made by the learned advocate Mr.P.H.Pathak for relegating the petitioners to raise industrial dispute, has been vehemently opposed by the learned AGP Ms.Joshi. It is her contention that in view of the decision rendered by the Full Bench of this Court in case of Gujarat Forest Producers, Gatherers and Forest Workers Union vs. State of Gujarat, 2004 [2] G.L.H 302, the Government Resolution dated 17.10.88 is not applicable to the petitioners as per the clear answer given by the Full Bench to the Reference. The one of the questions before the Full Bench was, Question No.3 "Whether persons similarly situated employees of the Forest Department are entitled to benefit of Government Resolution dated 17.10.88 ?" The answer given by the Full Bench that the Government Resolution dated 17.10.88 is applicable to daily wagers of various departments working for maintenance and repairs of constructions but not to the daily wagers engaged in other types of work in that departments. Therefore, she submitted that so far as the main and first prayer made in both these petitions is relating to implementation of the Government Resolution dated 17.10.88, is already answered by the decision of the Full Bench of this Court whereby such prayer of similarly situated dailywagers has been rejected by the Full Bench. Relying on the facts of the case, she submitted that these workmen are not working in repairs and construction branch of Forest Department. Therefore, relying on the decision of the Full Bench, she submits that both these petitions may be rejected. Ms.Joshi, learned AGP, however, in support of her submission has also placed reliance on two decisions of the Coordinate Bench of Single Judge of this Court [ Coram : K.S.Jhaveri, J. ] rendered in group of petitions viz. Special Civil Application No.7122 of 1991 dated 30.7.2004 and Special Civil Application No.4371 of 2000 dated 16th July, 2004. Relying on aforesaid two decisions of the coordinate bench of Single Judge of this Court, she submits that case of the similarly situated workmen, has been rejected by this Court and therefore, present two petitions may also be dismissed while rejecting the request made by the learned advocate Mr.P.H.Pathak. In short, her submission is the request made by the learned advocate Mr.Pathak to relegate the petitioners to machinery under the I.D.Act, 1947, cannot be entertained. Even on the request made of Mr.Pathak for granting protection in the form of ad-interim relief granted by this Court which in force today, till the appropriate Government refers the dispute for adjudication, has also been opposed and objected by Ms.Joshi. In support of her submission for not accepting such request, she has relied upon decision of the Division Bench of this Court in case of State of Gujarat v. Nirmanlaben Waghela, 2003 [1] G.L.H. 434 to contend that interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party, when the Court declines to decide on the right of the parties and a writ under Article 226 is refused no interim direction can be granted which go counter to the main relief, and Article 226 cannot be used solely for the purpose of granting interim relief. Therefore, relying on this decision, she submitted that in the event, if this Court inclines to relegate the petitioners for raising industrial dispute under the machinery of the Industrial Disputes Act, the petitioners cannot be permitted to do so with protection of ad-interim relief earlier granted by this Court though in existence and in force even today. Except the contentions recorded above, no other submissions made before this Court, nor any other citations pressed into service by the learned AGP Ms.Nandini Joshi on behalf of the respondents.
7. I have considered submissions made the learned advocates for the respective parties. The first petition is filed by the Union. Looking to the prayers made in both these petitions, the first prayer is in regard to extending of benefits of Government Resolution dated 17.10.88. The other prayers made in prayer clause [B] and [C] are against the grievance for depriving the petitioners of the benefits of regular pay and therefore, claim is made in respect of entitlement of the petitioners for grant of benefit of equality of pay payable to Class-IV employees on the principle of "equal pay for equal work" and accordingly grant them minimum of the time scale of the pay payable to Class-IV employees from the initial date of their appointment with interest and further sought directions on the respondents to treat the petitioners as regular employees of the respondent department and grant all consequential benefits.
8. So far as the first prayer is concerned, there is no dispute that the answer to such claim made in first prayer is given by the Full Bench in its decision referred to above. However, so far the other two prayers are concerned, in my respectful opinion, since the issues involved in aforesaid two prayers [B] and [C] before the Full Bench, no decision or opinion has been given by the the Full Bench whether the daily wagers working in other departments barring in maintenance and repairs of construction, are entitled to the benefit of "Equal Pay for Equal Work". Ms.Nandini Joshi is not able to point out from the entire judgment of the full bench and opine that whether this question has been examined by the full bench and the same has been negatived by the Full Bench. Therefore, considering the facts and circumstances of the case and the controversy involved in the present petitions as well as the other prayers made in Clause [B] and [C] of para-16, in my humble opinion, the decision of the full bench would not be applicable and cannot be solely relied for acceptance of the submissions made by the learned AGP Ms.Nandini Joshi. Similarly, two decisions of the coordinate bench of the Single Judge based on the decision of the full bench, are also not applicable to the facts of the case on hands. It is pertinent to note that in aforesaid two decisions of the coordinate Bench, it was not the issue whether such daily wagers are entitled to benefit of "equal pay for equal work" and regularisation. No such issues were examined by the coordinate bench of the Single Judge. Therefore, two decisions pressed into service before this Court by Ms.Joshi in support of her submissions, cannot be made applicable in the facts of these cases.
9. Recently, the Apex Court has dealt with the principle of "equal pay for equal work" in case of STATE OF PUNJAB V. TALWINDER SINGH AND OTHERS, 2004 [2] LLJ 1048. The Apex Court has examined the very question, whether the daily wagers are entitled to minimum pay scale of the category in which they are working or not. While giving answer, the Apex Court has held that "Equal pay for Equal Work" - principle of, claim of daily wagers for parity of pay scale with those on regular basis allowed to extent of granting minimum in regular pay scale, upheld as valid. In the aforesaid decision, the Apex Court, having considered earlier two decisions in case of STATE OF PUNJAB V. DEVINDER SINGH, 1998 [9] SCC 595, and the other decision of STATE OF HARYANA V. JASMER SINGH AIR 1997 SC 1988, has directed the State of Punjab to make payment at the minimum of regular scale of pay for a period of three years prior to the date of filing of the writ petition. In the present petitions also, the petitioners have raised the issue and contention as examined by the Apex Court in above referred decision, that they are entitled to the minimum time scale of the regular employees who were working in that category. Therefore, looking to the recent view trend of the Apex Court that whether the daily wagers are entitled to regular minimum pay scale on the principle of "equal pay for equal work", which is upheld by the Apex Court in above referred case of State of Punjab v. Talwinder Singh and others, in my opinion, the petitioners before this Court have, prima facie case, for their claims to be adjudicated under the Industrial Disputes Act, but that can be ultimately decided after adjudication by the concerned forum under the Industrial Disputes Act.
10. It is also contention of Ms.Joshi that in the event this Court inclines to relegate the petitioners to approach the machinery under the Industrial Disputes Act, they cannot be permitted to do so at least with protection granted by this Court till the dispute is referred by the appropriate Government. To substantiate the aforesaid submission, Ms.Joshi has also relied upon the decision of the Division Bench of this Court in case of State of Gujarat and Nirmalaben Waghela, 2003 [1] GLH 434. To answer this contention, this Court would like to refer the recent decision in case of DEORAJ V. STATE OF MAHARASHTRA, [2004] 4 SCC 697, wherein the Apex Court has dealt with on the issue of grant of interim relief and observed that interim relief under Article 226 of the Constitution is discretion of the Court and for grant of such interim relief, relevant factors to be considered. The Head Note [A] reads as under;
"Constitution of India - At.226 - interim relief, Discretion - When should be granted, factors to be considered, when order tantamounting to a mandamus can be issued at the interim stage, where withholding the interim relief would amount to dismissal of the main petition itself, as by the time the main matter comes up for hearing, nothing would remain to be allowed as relief, court may, having regard to a strong prima facie case, balance of convenience and irreparable injury, issue an interim writ even though it would amount to granting the final relief, however, that should be made in rare cases under compelling circumstances."
11. In view of above discussion and having regards to the facts of the case and the controversy involved and the disputed questions of law and facts, so also, the ratio propounded in the aforesaid two decisions of the Apex Court, in my opinion, the petitioners have prima facie case for raising industrial dispute for their claim of benefits of minimum time scale on the principle of "equal pay for equal work" and looking to the service tenure attended by the petitioners workmen, the balance of the convenience and the aspect of irreparable injury are also in favour of the petitioners and therefore, this is fit case to grant protection of the ad-interim relief granted by this Court in favour of the petitioners and in force till date while relegating them to approach the machinery under the Industrial Disputes Act, till the dispute is referred by the appropriate Government, otherwise, not granting of such protection would render the dispute that may be raised by the petitioners, infructuous and in probabilities, the petitioners could suffer irreparable injury. Therefore, considering all these aspects of the matter, according to my opinion, the request made by Mr.Pathak, learned advocate for the petitioner deserves to be accepted while not accepting the contentions of Ms.Joshi, learned AGP for respondents.
12. It is important to note that in both these petitions, this Court has granted identical ad-interim relief. From the materials produced on record, it also transpires that identical orders protecting the interest of the workmen came to be passed in Civil Application No.1391 / 90 in SCA No.828 of 1990, order dated 15th April, 1990 in Special Civil Application NO.828 of 1990, order passed in Special Civil Application No.3663 of 1991, order dated 21.5.1993 in Special Civil Application No.5025 of 1993, order dated 22.2.1988 in Special Civil Application No.517 of 1988, order dated 31.8.1989 in Special Civil Application No.3987 of 1989. Thus, this Court has made identical orders granting interim relief in favour of the daily wagers at the time of issuing Rule in above numbered petitions identical in nature.
13. It is pertinent to note that the objection raised by Ms.Joshi, learned AGP for respondents is found contrary to the stand of the respondents in affidavit-in-reply dated 25th November, 1996 filed on behalf of the respondent. On perusal of the said reply in para-5, at the outset, preliminary objection raised by the respondents that the present petition involves disputed question of facts as to applicability of the provisions of the Government resolution, looking to the facts of each and every individual and there is an alternative efficacious remedy by resorting remedy under the provisions of the Industrial Disputes Act. Thus, it is the contention raised by the respondents in their affidavit in reply in both these petitions. The ad-interim orders remained in force as it is till date. No serious efforts made by the respondents for vacating the ad-interim orders. Merely, filing of Civil Application for vacating ad-interim order, has no consequences. Thus, request made by Mr.Pathak also seems to be justified in light of the objection raised by the respondents to relegate the petitioners for alternative efficacious remedy under the machinery of Industrial Disputes Act, 1947.
14. Therefore, one of the considerations for accepting the request for relegating the petitioners to machinery under the Industrial Disputes Act,is that the other issues as regards "equal pay for equal work" and "regularisation of the workmen" involved in these two petitions before this Court have not been examined by the Full Bench in reported decision 2004 [2] GLH 302. Not only that but in two decisions rendered by the Coordinate Bench of Single Bench of this Court, relied upon before, have also not dealt with aforesaid issues, nor that questions have been examined by the learned Single Judge. The learned Single Judge has mainly relied upon the answer to Question No.3 before the Full Bench while rejecting the petitions. Therefore, in my humble opinion, decisions of the learned Single Judge are also not applicable and not of any assistance in the facts of the present case. The other decision of Division Bench of this Court in State of Gujarat v. Nirmalaben Waghela, 2003 [1] GLH 434 relied on by the learned AGP Ms.Joshi for respondents, wherein the challenge against the show cause notice. Facts of the case before that Division Bench show that the learned Single Judge has considered the petition premature and at the pre mature stage while not entertaining the petition, granted interim relief in terms of not implementing the order in question for a period of ten days from the date of its communication to the municipality. Therefore, this decision is also, in my respectful opinion, not applicable in the facts of this case inasmuch as in the cases on hands, the daily wagers are working for more than 20 years and ad-interim orders are in operation for more than eight years without any objection from the respondents side. In these circumstances, while relegating the petitioners dailywagers to raise industrial dispute under the machinery of I.D.Act, vacating the ad-interim orders or not granting of protection of interim order made by this Court, would amount to leaving the workmen in lurch and putting the workmen in a situation where they may not even be able to get fruits of further proceedings. Therefore, ad-interim order is required to be continued till the decision is taken by the Conciliation Officer. Thus, the reported case [ 2003 [1] GLH 434 ] cited before me, cannot assist the stand of the respondents.
On the contrary, the Division Bench of this Court in case of Bijli Mazdoor Panchayat v. State of Gujarat and others, 1996 [2] GLR 1776 has extended similar interim relief while disposing the petition in case of contract labourers.
15. This Court has considered identical situation in case of Food Corporation of India Workers' Union v. Food Corporation of India, 2001 [1] GLH 90. In this case, the workers of the labour contractor filed petition with prayer that they are entitled to regularisation or absorption in F.C.I. because they are working under the control and supervision of FCI and the labour contract is sham and bogus. In the facts and circumstances of that case, this Court, while accepting request of the petitioner union for relegating to raise industrial dispute or to approach the Labour Advisory Board for abolition of contract and for the mean time, ordered for continuation of ad-interim relief granted earlier to continue till Reference is referred for adjudication to the Industrial Tribunal. The observations made by this Court in the aforesaid decision FCI Workers' Union, [2001 [1] GLH 90] in para-17 and 19, since relevant to the facts of the present case, referred as under :
"17. I have considered the relevant observations made by this Court as referred to above. In almost similar case, wherein the Union has approached directly this Court with a request to protect the interest of the worker under the contract labour in the event of change of contractor and on that occasion, this Court has not examined the merits of the matter and has also not entered into arena of disputed questions of fact and without entering into the merits of the matter and also without entering into the disputed questions of fact, this Court has relegated the petitioner Union to the alternative effective remedy by way of approaching the appropriate machinery under the provisions of the Contract Labour [Regulations and Abolition] Act, 1970 as well as the Industrial Disputes Act, 1947. However, at the same time, this Court has, in all cases, protected the interest of the workers by directing not to terminate or transfer the contract labour concerned during the intervening period as well as during pendency of the proceedings initiated by the petitioner-Union before the machinery under the Contract Labour [Regulation and Abolition] Act, 1947. Therefore, in this case also, in similar situation and circumstances, I am not deciding the disputed questions of fact and I am also not entering into the merits of the matter and without examining the merits of the matter and without expressing any opinion thereon, I am relegating the petitioner-Union to approach the machinery under the provisions of the Contract Labour [Regulation and Abolition] Act, 1970 as well as the Industrial Disputes Act, 1947. The petitioner Union can simultaneously approach both the authorities, i.e. the authority under the Contract Labour Act as well as the authority under the Industrial Disputes Act, 1947 for redressal of their grievance. Before passing any final orders in the present matter and also before passing any interim orders, it would be proper to refer to some observations made by the Apex Court in case of AIR INDIA STATUTORY CORPORATION ETC V. UNITED LABOUR UNION AND OTHERS reported in 1997 1 CLR pg.292 in paras 38 and 46 of the reported case. Said observations are as under :
"38. In a developing society like ours, steeped with unbridgeable and even widening gaps of inequality in status and of opportunity, law is a catalyst, rubicon to the poor, etc. to reach the ladder of social justice. What is due cannot be ascertained by an absolute standard which keeps changing, depending upon the time, place and circumstances. The constitutional concern of social justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor, the workmen etc. are languishing and to secure dignity of their person. The Constitution, therefore, mandates the State to accord justice to all members of the society in all facets of human activity. The concept of social justice embeds equality to favour and enliven the practical content of life. Social justice and equality are complementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results. It was accordingly held that right to social justice and right to health were held to be Fundamental Rights. The management was directed to provide health insurance during service and at least 15 years after retirement and periodical tests protecting the health of the workmen.
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46. Mahatma Gandhi, the Father of the Nation, in his book Socialism of My Concept, has said thus;
"To a people famishing and idle, the onlyacceptable form in which God can dareappear in work and promise of food aswages. God created man to work for hisfood, and said that those who are withoutwork were thieves. Eighty percent of India are compulsory thieves half theyear. Is it any wonder if India hasbecome one vast prison ?"
Again, he stressed :
"No one has ever suggested that grindingpauperism can led to anything else thanmoral degradation. Every human being hasa right to live and, therefore, to findthe wherewithal to fee himself and wherenecessary, to clothe and house himself...In a well ordered society the securing ofone's livelihood should be and is foundto be the easiest thing in the world.Indeed, the test of orderliness in acountry is not the number of millionariesit owns, but the absence of starvationamong its masses.
Working for economic equality meansabolishing the eternal conflict betweencapital and labour. It means thelevelling down of the few rich in whosehands is concentrated the bulk of thenation's wealth on the one hand and thelevelling up of the semi-starved nakedmillions on the other. A nonviolentsystem of Government is clearly animpossibility so long as the wide gulfbetween the rich and hungry millionspersists. The contrast between theparties of the New Delhi and themiserable hovels of the poor labouringclass nearby, cannot last one one in afree India in which the poor will enjoythe same power as the richest in theland. A violent and bloody evolution isa certainly one day, unless here tovoluntary abdication of riches and thepower that batches give a sharing themfor the common good."
Therefore, considering the observations of the Apex Court in Air India Statutory Corporation's case [supra], according to my view, following directions, if issued, will meet the ends of justice, in the facts and circumstances of the case.
16. In repsect of their demand for which the present petition is filed, the petitioner Union is required to be directed to approach the machinery under the Industrial Disputes Act.
[a] Accordingly, the petitioner-union shall approach the Conciliation Office with respect to their demands for which the present petition has been filed within six weeks from the date of receipt of the copy of this order.
[b] The Conciliation Officer shall submit appropriate report within three months from the date of hearing the parties after taking into consideration their rival contentions and objections, if any.
[c] In case the failure report is drawn by the Conciliation Officer, in that event, the appropriate Government respondent No.5 shall taken decision by passing appropriate order of making a reference, at an early date, within four weeks from the date of receipt of such failure report."
The above decision of this Court [ Coram : H.K.Rathod, J. ] was challenged before higher forum in Division Bench [ Coram : M.R.Call and N.G.Nandi, JJ ] by way of Letters Patent Appeal No.447 of 2001 in Special Civil Application No.10673 of 2000. The Division Bench of this Court vide order dated 20th June, 2001 had dismissed the Letters Patent Appeal. Thereafter, the order made by Division Bench was carried to the Hon'ble Supreme Court by preferring Special Leave to Appeal [Civil] No.18574 of 2001. The Hon'ble Supreme Court has also vide order dated 14th February, 2003 has disposed of SLP. The Hon'ble Supreme Court in order dated 14th February, 2001, while observing the final directions made in the order passed by the Single Judge of the High Court, has observed as under :
"We heard the learned counsel on both sides.
The Counsel for the appellant Food Corporation submitted that the learned Single Judge has made certain observations in the judgment that may adversely affect the Food Corporation while the decision is taken by the Division Bench. The Counsel for the Food Corporation also submitted that the Corporation also may be heard while the final decision is taken in the matter.
Having regard to the submission, we hold that the observations made either by the learned Single Judge as well as by the Division Bench shall not have any persuasive effect while taking final decision in the matter by the Board. The Food Corporation as well as respondent, Trade Union are at liberty to approach the Board and the Board shall give reasonable opportunity of hearing tot he appellants as well as the Trade Union representing the workers.
The SLP stands disposed of accordingly."
17. Since this Court has expressed opinion that considering the facts and circumstances of the case and the controversy involved in the present petitions as well as the other prayers made in Clause [B] and [C] of para-16, the decision of the full bench in case of Gujarat Forest Producers, Gatherers and Forest Workers Union, 2004 [2] GLH 302 would not be applicable and cannot be solely relied for accepting submissions made by the learned AGP Ms.Nandini Joshi and similarly, two decisions of the coordinate bench of the Single Judge based on the decision of the full bench, are also not applicable to the facts of the case on hands and further considering the fact that this Court while admitting these petitions has granted ad-interim relief in the year 1996 and the fact that the respondents authorities have not made any serious efforts to get the interim relief vacated and as such, this Court has not made any order to vacated the earlier granted interim relief, meaning thereby, the petitioners workmen are enjoying the interim relief all throughout out for more than eight years and receiving the benefits continuously, in my opinion, the petitioners have prima facie case for their claims based on the the principle of "equal pay for equal work" and balance of convenience is also in their favour and if at this stage, while accepting the request made by the petitioners to relegate them to approach machinery under the Industrial Disputes Act, if protection granted by this Court existing and in force today, is not extended till the petitioners raise dispute for adjudication of their claims, it would adversely affect on the rights and claims of the petitioner and could cause irreparable injury and that may result into reduction in their salary. Such adverse effect on the salaries of the petitioner employees, naturally, adversely affect their livelihood which is part of Article 21 - Right to life includes livelihood and therefore, ad-interim relief and interim order granted by this Court while admitting these matters cannot be vacated while relegating the petitioners to machinery under the Industrial Disputes Act. It is pertinent to observe that if protection of the interim relief is not extended in case of the petitioners while relegating to machinery under I.D.Act, the dispute that may be raised by the petitioners would become infructuous and meaningless.
18. So far as grant of interim relief and its extension in the facts and circumstances of case, this Court would again like to refer observations made by the Apex Court in recent decision in case of DEORAJ vs. STATE OF MAHARASHTRA AND OTHERS [2004] 4 SCC 697 referred to above. To make interim order is discretionary powers of the Court and on appropriate occasion, it is the duty of the Court to protect the interest of the petitioner, if the petitioner is relegated to avail other statutory remedy. The relevant observations made in para-12 of the aforesaid decision reads as under :
"12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end of the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent."
19. Thus, considering the facts and circumstances of the case, in my opinion, while relegating the petitioners to the machinery under the Industrial Disputes Act without protection of interim relief granted by this Court operating till date, could result into irreparable injury to the prima facie case of the petitioners and lead to a situation that court would not be able to vindicate the cause of justice, inasmuch as, the petitioners workmen are working for about twenty years and ad-interim granted in favour of the petitioners is continued for more than eight years and it is a question of right to livelihood which includes livelihood of the employees who are in service of the respondents - State Authority. The other important consideration is that the interim relief extended by this Court in identical situation in case of FCI Workers' Union has been confirmed and upheld by the Apex Court. Therefore, considering the fact that the petitioners are working with the respondent since 1981 and till date they are in continues service for more than twenty years. Therefore, it is disputed questions of facts and law to examine the manner they have been recruited and their claim for equality, cannot be examined by this Court at this stage. However, fact remains that they are working with the respondents for about twenty years and as such, they have right to raise dispute about regularisation and claiming benefit on principle of "equal pay for equal work" and for that, they are entitled to raise industrial dispute and in the mean time to have peaceful atmosphere for agitating their rights, it is not only necessary to protect them with interim order presently operating in their favour but to extend the same till appropriate stage otherwise, the whole exercise would become meaningless and even further proceedings would futile in the event if the respondents terminate services of the petitioners especially in the circumstances when they would not be in service and ultimately, the question of regularisation would stand meaningless.
20. In view of aforesaid discussion and considering the request made by Mr.Pathak that claim made by the petitioners in prayer [B] & [C] since cannot be decided under writ petition under Article 226 of the Constitution of India but requires to be adjudicated based on oral and documentary evidence, this Court is inclined to accept the request made by Mr.Pathak, learned advocate for the petitioners, to permit the petitioners to approach the machinery under the I.D.Act, 1947 with protection of interim relief granted by this Court in force today till the dispute is referred for adjudication by the appropriate Government
21. Thus, for the foregoing reasons, in my opinion, if the petitioners are permitted to avail the remedy under the provisions of the Industrial Disputes Act, 1947 by raising the industrial dispute for their claim based on the principle of "equal pay for equal work" and regularisation of service before the Conciliation Officer concerned within a period of six weeks from today and as and when such dispute is raised by the petitioners before the Conciliation Officers, the Conciliation Officer concerned shall initiate conciliation proceedings immediately on the dispute raised by the petitioner Union and complete such conciliation proceedings within three months thereafter from the date of hearing of such dispute raised by the petitioner Union and thereafter to pass appropriate order in accordance with law on the issue "whether the dispute requires to be referred for adjudication to the concerned Industrial Tribunal or not ?" The ad-interim relief granted by this Cout in both these petitions on 16.10.1996 in SCA No.7923 of 1996 and on 12.12.1996 in SCA No.10083 of 1996 are ordered to be continued and in operation till decision taken by the appropriate Government and further period of one month from such decision and communication in respect of the industrial dispute that may be raised by the petitioner Union, will certainly meet the ends of justice in the facts and circumstances of the case.
22. In view of my aforesaid discussions in foregoing paragraphs, request made by Mr.Pathak, learned advocate for the petitioners is accepted, while rejecting objections raised on behalf of the respondents by Ms.Nandini Joshi, learned AGP. In the result, both these petitions are disposed of in terms of the following order;
23. The following directions are issued in the facts and circumstances of the case;
[a] It is open for the petitioners - Union to approach the machinery under the Industrial Disputes Act, 1947.
[b] Accordingly, the petitioner-union and other concerned workmen in these petitions, shall approach the Conciliation Officer with respect to their claims and / or demands, for which, prayer made in the present petition in prayer clause [B] and [C] within six weeks from the date of receipt of the copy of this order.
[c] The Conciliation Officer shall submit appropriate report within three months from the date of hearing the parties after taking into consideration their rival contentions and objections, if any.
[d] In case the failure report is drawn by the Conciliation Officer, in that event, the appropriate Government shall take decision by passing appropriate order of making a reference, at an early date, within four weeks from the date of receipt of such failure report.
[e] Ad-interim orders passed by this Court in both these petitions on dated 16.10.1996 in SCA No.7923 of 1996 and dated 12.12.1996 in SCA NO.10083 of 1996 are directed to remain in force and operation for a further period of one month from the date on which the appropriate Government takes a decision and communicate to the petitioner Union by registered post.
24. Accordingly, both these petitions stand disposed of in aforesaid terms, and therefore, Civil Applications preferred in the said two petitions also do not survive and the same are disposed of accordingly.
25. Rule stands discharged in both these petitions. No order as to costs.
26. Direct Service is permitted.