Gujarat High Court
G.W.R.D.C. Technical Operator Workers ... vs State Of Gujarat & 2 on 29 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/345/2004 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 345 of 2004
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G.W.R.D.C. TECHNICAL OPERATOR WORKERS UNION....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR YN OZA, SR.ADVOCATE with MR BP GUPTA, ADVOCATE for the
Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/03/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a Union, has prayed for the following reliefs :
"(A) Be pleased to issue a writ of mandamus or any other writ in the nature of mandamus or direction;
(i) quashing and setting aside the orders passed by the respondents terminating the services of the members of the petitioner union, and further be pleased to direct the respondents to permit the members of the petitioner union to discharge their duties without any disturbance with all consequential and incidental benefits.
(ii) to absorb as work charge employees to those who have completed five years of service as daily-Page 1 of 10
HC-NIC Page 1 of 10 Created On Fri Apr 01 00:46:28 IST 2016 C/SCA/345/2004 ORDER wagers, to absorb as permanent employees to those who have completed 10 years of service as daily wagers with retrospective effect and with all consequential and incidental benefits.
(iii) to direct the respondents to give benefits of annual increments as per the pay-scale prescribed by R.O.P. Rules, 1987 and R.0.P. Rules, 1998 with effect from the date on which the said rules came into effect and to pay the arrears and other benefits accordingly.
(B) Pending admission and final disposal of this petition be pleased;
(i) to stay the implementation, execution and operation of the orders terminating the services of the members of the petitioner union, like the order dtd.29-11-2003 and further be pleased to direct the respondents to permit the members of the petitioner union to discharge their duties without any disturbance.
(ii) to direct the respondents to give benefits of annual increments as per the pay-scale prescribed by R.0.P. Rules, 1987 and R.0.P. Rules, 1998 with effect from the date on which the said rules came into effect and to pay the arrears and other benefits accordingly.
(iii) to absorb as work charge employees to those who have completed five years of service as daily- wagers, to absorb as permanent employees to those who have completed 10 years of service as daily wagers with retrospective effect and with all consequential and incidental benefits."
The Union seeks to challenge the illegal, arbitrary and discriminatory action of the respondents terminating the Page 2 of 10 HC-NIC Page 2 of 10 Created On Fri Apr 01 00:46:28 IST 2016 C/SCA/345/2004 ORDER services of the members of the petitioner Union.
It is the case of the petitioner that the respondents have misinterpreted the resolution passed by the Government dated 17th October 1988, whereby certain benefits were given to the daily wagers depending upon the number of years of service completed by them as on 1st October 1988.
The issue, as on today, is now in a very narrow compass. On 18th March 2004, this Court passed the following order :
"Since the petition is filed by the Union, the details of the workmen claiming benefit of GR are not available and therefore, class of workmen to whom the GR would apply, is not certain. Under the circumstances, learned advocate Mr.Chauhan raises an objection. To meet with the objection, learned Senior Advocate Mr.Oza seeks time to enable him to place on record all requisite details of persons claiming benefits of the GR in question. He places on record a copy of judgement rendered by the Division Bench of this Court in Letters Patent Appeal No.1134 of 1997 in Special Civil Application No.11071 of 1993 with Civil Application No.8843 of 1999 dated 10.3.2004 (Coram : Honourable the Chief Justice Mr.Bhawani Singh and H.K.Rathod,J). Same is kept on record. To come up on 1/4/2004."
Thereafter, while issuing the rule, the following order was passed on 14th December 2004 :
"Rule, returnable in the first week of March 2005.
Mr.Chauhan, learned advocate for the respondent Corporation states that the Corporation may be permitted to terminate the services of the concerned employees in accordance with law. The Corporation is at liberty to terminate the services of the concerned employees in accordance with law. However, such orders may not be implemented till further orders by this Court. In case any order is passed by the Page 3 of 10 HC-NIC Page 3 of 10 Created On Fri Apr 01 00:46:28 IST 2016 C/SCA/345/2004 ORDER Corporation by which the services of the concerned employees are terminated, it will be open for the respondent Corporation to apply even earlier for modification/revocation of the interim relief."
Thus, it appears that the termination orders were withdraw and the members of the Union were reinstated in service. Thus, as clarified by Mr.D.G.Chauhan, the learned counsel appearing for the Corporation that although the termination was proposed, yet the same was not given effect to.
This matter is taken up for final disposal after 12 years from the date of admission. It is not in dispute that the members of the Union are in service as on date.
Mr.Oza, the learned senior advocate, assisted by Mr.Gupta, the learned advocate appearing of the Union, submitted that practically all the benefits flowing from the Government Resolution dated 17th October 1988 have been extended to the members of the Union. However, there are some aspects which the Government will have to look into and extend those benefits also.
On behalf of the Corporation, there is an affidavit-in-reply duly affirmed by the Administrative Officer, inter alia, stating as under :
"3. At the outset, I respectfully submit that I do not admit any of the statements or averments made by respondent in the affidavit except those, which are specifically admitted by me hereinbelow. I standby with the averments, statements and submissions made by the petitioner in the memo of petition and in this rejoinder affidavit. I am not dealing with the affidavit of the Page 4 of 10 HC-NIC Page 4 of 10 Created On Fri Apr 01 00:46:28 IST 2016 C/SCA/345/2004 ORDER respondent para-wise. However, I reserve my right to file further affidavit, if and when necessary.
4. I say that the petition is maintainable and tenable in law and there are no disputed questions, which are required to be decided by this Hon'ble Court in this petition. In fact, in the present case, individual cases are not required to be adjudicated and only a principle, which is required to be followed by the respondent is to be laid down by this Hon'ble Court and hence the objection raised by the respondent is not tenable and the petition deserves to be decided on merits, in the interest of justice.
5. I say that, at present, there are 687 members in the petitioner Union whose services are going to be affected by the action of the respondents, which is challenged by the petitioner Union in this petition. I say that as it is evident from the statement of joining dates of the members of the petitioner union, it is evident that members of the petitioner union have completed service of 14 to 23 years. I say that each employee has worked for more than 240 days during each complete working year during which he has served. I say that the recommendations of Daulatbhai Parmar's Committee, by way of resolution dated 17.10.1988, ought to have been implemented in case of the members of the petitioner union. I say that the respondents have committed an illegality in not implementing the resolution dated 17.10.1988 and, therefore, it is necessary that the respondent be directed to implement the above stated resolution and to give benefit to the members of the petitioner union depending upon the number of years of service discharged by each member of the Union. Copy of the list of members of the union is annexed hereto and marked as ANNEXURE-M to the petition.
6. I say that as per the resolution dated 17.10.1988 those daily wagers, who have completed 10 to 15 years as on 1.10.1988 are to be treated as permanent employees and they were required to be placed in the running pay scale in the respective cadre and the benefits like Dearness Allowance, House Rent Allowance, Local Allowance and other benefits like Gratuity, Provident Page 5 of 10 HC-NIC Page 5 of 10 Created On Fri Apr 01 00:46:28 IST 2016 C/SCA/345/2004 ORDER Fund, etc. ought to have been given to them. I say that a clarification was sought by the department regarding the said resolution and by notification dated 30.5.1989 a clarification was made by the Government, according to which, it was clarified that the benefits of the resolution dated 17.10.1988 are to be given to the employees as soon as they complete the service of 5 years, 10 years, 15 years, as the case may be. I say that if the said circulars are implemented in proper perspective, all the members of the petitioner union are required to be treated as permanent employees and the benefits, as envisaged under the resolutions are required to be given to them."
Mr.Oza, the learned senior advocate, invited my attention to the additional affidavit filed by the Union through its Acting President, highlighting five aspects which have been overlooked by the State Government. Those are as under :
"(a) The respondents have declared certain daily rated employees who have passed SSC Examination as work-
charge employees w.e.f. 1/5/2006 but no arrears have been given to them. It is to be noted that the daily rated employees who are non-SSC are also required to be given the above stated benefits as the Resolution dated 17/10/1988 does not distinguish between the SSC and non-SSC employees. Copies of the letters dated 1-5-06 and the copies of the orders passed by the executive Engineers of some of the circles are annexed here to and marked as Annexure AR-I (Colly.).
(b) The respondents have discriminated the similarly situated employees in giving regular increments. The employees of Irrigation Department who have completed 10 years of service have been put in regular pay scale and are given running annual increments w.e.f. 13/10/2008 but no such increments are given to the employees of the petitioner Union irrespective of whether they are SSC or non-SSC pass. It is further to be noted that the members of the petitioner union are also required to be put in regular pay scale after completion of 10 years of service and regular increments are also Page 6 of 10 HC-NIC Page 6 of 10 Created On Fri Apr 01 00:46:28 IST 2016 C/SCA/345/2004 ORDER required to be given but the respondents have given the benefit of placing the employees in regular pay scale w.e.f. 13-10-08 but the benefit of increments is not given and the arrears are also not given. A copy of the letter dated 27-1-09 is annexed here to and marked as Annexure AR II.
(c) Those employees who are SSC pass have been made work-charge employee after 10 years of service though as per recommendations of the resolution dated 17/10/1988, all employees whether SSC or non-SCC were required to make work-charge employees after 5 years of service and permanent after service of 10 to 15 years.
(d) At the time of appointment of employees there was no distinction between SSC or Non-SSC candidates and nor the recommendations of the resolution dated 17/10/1988 make any such distinction. Inspite of that (only SSC pass candidates have been given benefits.
(e) The benefits as per the resolution dated 17/10/1988, which ought to have been given immediately have been given after very long delay and the arrears of the earlier period are not given to the employees.
(f) The benefit of merger of 50 % of DA in pay has not been given to the daily rated workman as well as to the SSC pass employees who are made work-charge employees with effect from 1/5/2006, though all employees of the Government and Government Boards and Corporation have been given the above-stated benefits.
(g) The employees are not given the pay scale as per ROP Rules, 1998."
Mr.Oza further pointed out that even the Gujarat State Human Rights Commission, after hearing the parties concerned, directed the Corporation to implement the Page 7 of 10 HC-NIC Page 7 of 10 Created On Fri Apr 01 00:46:28 IST 2016 C/SCA/345/2004 ORDER Government Resolution dated 17th October 1988.
Mr.Oza is right in contending that the issue is now covered by a Division Bench decision of the Supreme Court in the case of State of Gujarat and others v. PWD Employees' Union and others, (2013) 12 SCC 417.
Mr.Oza has also relied on a Division Bench decision of this Court rendered in the Letters Patent Appeal No.958 of 2001, decided on 18th March 2011, and a judgment of a learned Single Judge dated 31st January 2013 rendered in Special Civil Application No.1563 of 1992 and allied matters.
To a certain extent I am at one with Mr.Oza that there is no reason to draw a distinction between daily rated employees who have cleared SSC and those who have not been able to clear SSC. No such distinction seems to have been drawn by the Supreme Court while delivering the judgment referred to above.
Mr.Chauhan, the learned counsel appearing for the Corporation, submitted that so far as the issue raised in clause 3(a) and clause 3(b) is concerned, the Corporation would immediately recommend the case to the State Government.
Mr.Sharma, the learned AGP appearing for the State, submitted that no sooner an appropriate proposal is received by the Government from the Corporation, then the State Government would immediately act upon it and pass appropriate orders in accordance with law granting the necessary benefits.
Once the stance of the Corporation is that they would Page 8 of 10 HC-NIC Page 8 of 10 Created On Fri Apr 01 00:46:28 IST 2016 C/SCA/345/2004 ORDER recommend the case so far as the clause 3(a) and clause 3(b) is concerned, practically the other aspects are also taken care of.
The Corporation is directed to immediately act and see to it that an appropriate proposal is prepared within a period of four weeks from the date of receipt of the writ of the order and the State Government shall, within four weeks from the date of receipt of such proposal, pass appropriate orders in accordance with law, and more particularly, keeping in mind the case-law which has been referred to above.
I am sure that in view of the position of law prevailing today, there should not be any objection at the end of the Corporation or the State Government.
I direct the respondents to ensure that there is no second round of litigation. The matter is taken up for hearing after 11 years.
With the above this writ-application is disposed of. Direct service is permitted.
A copy of this order be provided to Mr.Utkarsh Sharma, the learned AGP, for its onward communication, as well as to Mr.D.G.Chauhan, the learned counsel appearing for the Corporation, for its onward communication.
It is needless to clarify that so far as the other clauses are concerned, i.e. clauses (c) to (g), the Corporation will look into the same and forward an appropriate proposal to the State Government.
Page 9 of 10HC-NIC Page 9 of 10 Created On Fri Apr 01 00:46:28 IST 2016 C/SCA/345/2004 ORDER It is again needless to clarify that in the event if the Union is dissatisfied with the decision taken, it will be open for them to challenge the same in accordance with law.
(J.B.PARDIWALA, J.) MOIN Page 10 of 10 HC-NIC Page 10 of 10 Created On Fri Apr 01 00:46:28 IST 2016