Gujarat High Court
State Of Gujarat vs Kiritsinh Dhirubhai Jadeja on 24 January, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/1763/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1763 of 2020
==========================================================
STATE OF GUJARAT
Versus
KIRITSINH DHIRUBHAI JADEJA
==========================================================
Appearance:
MR NIKUNJ KANARA, ASST. GOVERNMENT PLEADER(1) for the
Petitioner(s) No. 1
for the Respondent(s) No. 1,2
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 24/01/2020
ORAL ORDER
1. The present petition is preferred under Article 226 of the Constitution of India challenging the judgment and award passed by the Labour Court, Jamnagar dated 31.08.2019 in Recovery Application No. 57 of 2015 with the following prayers:-
"(A) Your Lordship may be pleased to admit and allow this petition;
(B) Your Lordship may be pleased to issue a writ of certiorari and/or any other appropriate writ, direction or order for quashing and setting aside the impugned judgment and award dated 31.08.2019 passed in Recovery Application No. 57 of 2015 by the Learned Judge, Labour Court, Jamnagar, in the interest of justice;
(C) Pending hearing and final disposal of the present petition, Your Lordship may be pleased to stay the implementation, execution and operation of the impugned judgment and award dated 31.08.2019 passed in Recovery Application No. 57 of 2015 by the Learned Judge, Labour Court, Jamnagar, in the Page 1 of 8 Downloaded on : Mon Jun 15 08:14:42 IST 2020 C/SCA/1763/2020 ORDER interest of justice;
(D) Such other and further relief as may be just, expedient and proper in the interest of justice."
2. The present respondent was appointed as a daily wager on 01.10.1984 and upon reaching the age of superannuation, his services came to be ended on 30.11.2012. He was paid gratuity and other retiral benefits, however, he had not been paid the leave encashment and therefore, he preferred the recovery application before the Labour Court. This had been allowed by the Labour Court.
3. When the order was delivered by the Labour Court allowing the Recovery Application, it has aggrieved the present petitioner who is before this Court questioning the direction of payment of Rs. 1,75,245/- with cost of Rs. 1,000/-.
4. This very issue has been decided by this Court in Special Civil Application No. 555 of 2020 and allied matters on 10.01.2020 where the Court has held thus:-
"8. This Court has heard learned AGP Mr. Nikunj Kanara extensively, at the time of issuance of notice. He, along the line of memo of petition has argued this matter and has urged that the resolution dated 17.10.1988 does not contemplate the transfer of monetary benefit of leave and therefore, the Court below has committed serious error in granting the leave encashment to the respondent. He has urged that this would require interference. He further has urged that there should not have been a recovery Page 2 of 8 Downloaded on : Mon Jun 15 08:14:42 IST 2020 C/SCA/1763/2020 ORDER application under Section 33(C)(2) of the ID Act without any predetermined right of the party.
9. The Court notices that after the recovery application came to be filed under Section 33(C)(2), the Labour Court availed the opportunity to the petitioner who had filed its reply and also has taken a very plea before the Court below. The Court also took into consideration the plea and the evidence adduced before it. It has also noticed and taken into consideration various decisions to hold in favour of the respondent.
10. Apt would be to refer to the decision of this Court rendered in case of PWD Employees Union through President Saiyed Ibrahim and 18 vs. State of Gujarat through Secretary & 2 in Special Civil Application No. 5530 of 2003 and allied matters, where this Court (Coram:- Mr. G.R.Udhwani, J.) had considered the grievance of non-grant of certain benefits including the leave encashment.
11. Following the decision in case of State of Gujarat & Anr. vs. Mahendrakumar Bhagvandas & Anr., reported in 2011 (2) GLR 1290, the Court granted the service benefits. Referring to the said decision of Mahendrakumar Bhagvandas (supara), the Division Bench by treating all original petitioners as the regular employees from their initial date of appointment, granted consequential benefits available to the government employee as per the G.R. dated 17.10.1988. The Court held that when daily rated employees are regularized in service and made permanent employees pursuant to G.R. dated 17.10.1988, such employees cannot be denied the service benefits available to regular permanent employees and such denial would be violative of Articles 14 and 16 of the Constitution of India.
"3. According to G.R. dated 17.10.1988, a committee under the Chairmanship of Honourable Minister, Shri Daulatbhai Parmar, was constituted to consider conditions of service of daily rated labourers and artisans Page 3 of 8 Downloaded on : Mon Jun 15 08:14:42 IST 2020 C/SCA/1763/2020 ORDER employed in several departments of the State Government. That committee had submitted its report and it was resolved to accept recommendations of the committee and provide several benefits to the workmen concerned with effect from 1.10.1988. Those benefits included payment of minimum wages, paid weekly holidays, medical facility and national holidays. After completion of five years of continuous service in terms of provisions of Section 25B of the Industrial Disputes Act, 1947 such daily rated employees were to be entitled to fixed monthly salary of Rs.750/with dearness allowance prevalent from time to time and few more benefits of paid holidays and leave wages as well as membership of provident fund. It is stipulated in Clause-3 of the G.R. dated 17.10.1988 that daily rated employees, who had completed, as on 1.10.1988, continuous service of ten years in terms of the provisions of Section 25B of the Industrial Disputes Act, 1947, would be treated as permanent and such permanent employees shall be entitled to the pay scale of Rs.750940/- and shall also be paid dearness allowance and house rent allowance accordingly. They would also be entitled to pension, gratuity and benefits of provident fund in accordance with prevalent rules. The age of superannuation for such permanent labourer is fixed at 60 years and the period of permanent service is to be counted as pensionable service. It is further stipulated that the employees, who had completed 15 years of service as on 1.10.1988, shall be placed in the pay scale as aforesaid and their age for retirement shall be 60 years. Such workers, who would have completed 15 years of service on 1.10.1988, were to be entitled to one increment, and the employees, who had completed 25 years of service were to be granted three increments, before fixing their wages in the pay scale on 1.10.1988.
4. Bare reading of above stipulations contained in the G.R. dated 17.10.1988 makes Page 4 of 8 Downloaded on : Mon Jun 15 08:14:42 IST 2020 C/SCA/1763/2020 ORDER it crystal clear that upon completion of ten years of service, in terms of the provisions of Section 25B of the Industrial Disputes Act, 1947, on or before 1.10.1988, daily rated employees to whom the G.R. applied were to be treated as permanent employees with concomitant benefits. It is further clarified and resolved in clause (10) of subsequent resolution dated 18.7.1994 that the employees, who were completing 5/10/15 years of continuous service due to which whose categories would change should be immediately accorded benefits of the category in which such employees would fall. Government Resolution dated 18.7.1994 is, according to its own preamble, meant to supersede earlier instructions issued vide government resolution dated 3.11.1990. The instructions are primarily meant to regulate treatment of daily rated employees, who had completed one or more years of service on 1.10.1988, with the stipulation that such employees shall continue to be treated as daily rated employees. Detailed instructions have been issued in said government resolution for categorizing such daily rated employees and maintaining their seniority lists, as also for regulating their pension and termination of their service by way of retrenchment. At the end, in Clause 15 of the government resolution, it is stipulated that the word 'permanent' as used in G.R. dated 17.10.1988 is intended to provide protection of service but not for treating such employees on regular establishment of the government.
5. As noted earlier, subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent service are already accorded to the employees concerned in terms of G.R. dated 17.10.1988. Under such circumstances, it was argued that Page 5 of 8 Downloaded on : Mon Jun 15 08:14:42 IST 2020 C/SCA/1763/2020 ORDER nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the remaining few benefits. Once the employees concerned were, in fact, treated for all purposes as permanent employees in terms of G.R. dated 17.10.1988, any discrimination or denial of benefits for a segment of such employees, who were subsequently rebranded as "daily wager" (rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of the Constitution. Nor can the State Government legally take away the rights conferred and benefits, already accorded to the employees concerned by or under a subsequent government resolution, which expressly supersedes earlier instructions and not earlier G.R. dated 17.10.1988 by which the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 years would be made permanent under G.R. dated 17.10.1988 but subsequently rebranded and treated as a daily wager. The submission of learned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and that they were at best "permanent daily wage employees", is contradictory and has no backing of any legal provision or precedent. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder.6. Letters Patent Appeal Nos.960, 961, 964
and 965 of 2001 are preferred from common oral judgment dated 6.4.2000 of learned Single Judge of this Court, inter alia, in Special Civil Application Nos.28, 64, 67 and 68 of 1988 Page 6 of 8 Downloaded on : Mon Jun 15 08:14:42 IST 2020 C/SCA/1763/2020 ORDER whereby original petitioners, working under the appellants herein, were directed to be given benefits in following terms:
".................In terms of the order passed in earlier case on 23/10/1999, the respondents are directed to extend all the benefits of regular employees to the petitioner, who have been made permanent employees in regular scale of pay for more than 10 years of service. They should not be discriminated with other employees. With the aforesaid observations and direction all the petitions are allowed and accordingly disposed of..............."
7. Apparently the aforesaid resolution dated 18.7.1994 was not pressed into service when the impugned judgment dated 6.4.2000 was delivered. It is observed by learned Single Judge as under:
".......It appears that the Government Resolution is very clear that these petitioners who have completed more than 10 years as daily workers will be treated as permanent employees and they will get regular scale of pay. When these employees are treated as permanent employees with regular scale of pay, I do not find any reasons that they will be deprived of the benefits given to other government employees of same category. There cannot be any confusion about the Government Resolution and it is obligatory on the part of the government to extend all the benefits to these petitioners, who have been regularized on regular posts with regular scale of pay...................""
12. This had been challenged before the Apex Court and the same had been confirmed by the Apex Court.
13. The Apex Court in case of State of Gujarat vs. PWD and Forest Employees Union, reported in 2019(3) Scale 642 has also in relation to the challenge to a common judgment of the High Court in Page 7 of 8 Downloaded on : Mon Jun 15 08:14:42 IST 2020 C/SCA/1763/2020 ORDER the contempt petition had examined the benefits given to the daily waged workers on the strength of the resolution dated 17.10.1988 where the grant of earned leave is also affirmed part of the judgment.
14. The issue is no longer res-integra and already governed by all the above referred decisions. Labour Court has committed no error in granting monetary benefit of the earned leaves to each of the respondents. It is trite that this Court in exercising powers under Article 227 of the Constitution of India, is not expected to interfere unless the judgment/order/award is visited with patent error on the face of record or illegality as referred to in the decision of R. M. Yellatti vs. Assistant Executive Engineer, reported in (2006) 1 SCC 106. Resultantly, no interference is desirable in any of the matters as the orders suffer from neither illegality nor any error going to the root of the matter. The order passed by the Labour Court is confirmed in toto.
15. Let the amount be paid within eight weeks from the date of receipt of this order, to each of the respondents. If the bank details are furnished or available, payment be made directly in their respective bank accounts by the petitioner.
16. Petitions are disposed of accordingly."
5. This petition also meets the very fate and is disposed of accordingly in the above terms and with the very directions given at paragraph 15 of the above referred order, with no order as to cost.
(SONIA GOKANI, J) Bhoomi Page 8 of 8 Downloaded on : Mon Jun 15 08:14:42 IST 2020