Gujarat High Court
State vs Thakor on 28 March, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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LPA/50/1998 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 50 of 1998
In
SPECIAL
CIVIL APPLICATION No. 3459 of 1996
With
LETTERS
PATENT APPEAL No. 1124 of 1997
In
SPECIAL CIVIL APPLICATION No. 1550 of 1992
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
HONOURABLE
MR.JUSTICE K.A.PUJ
=============================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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STATE
OF GUJARAT & 2 - Appellant(s)
Versus
THAKOR
JUGAJI RANAJI & 1 - Respondent(s)
=============================================
Appearance :
MR
RASHESH RINDANI AGP for Appellant(s) : 1 - 3.NOTICE SERVED BY DS for
Appellant(s) : 2,
MR PH PATHAK for Respondent(s) : 1,
SERVED BY
AFFIX.-(R) for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
and
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 21/03/2011
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE H.K.RATHOD)
1. Heard learned AGP Mr.Rashesh Rindani appearing on behalf of appellants and learned advocate Mr.P.H.Pathak appearing on behalf of respondent No.1, in both appeals.
2. The Government of Gujarat, R & B Department vide Resolution datd 17.10.1988 resolved to extend certain benefits to the workmen engaged on the work of maintenance and repairs. Whether the said Government Resolution is made applicable to the those employees, who are working in the Forest Department or not, for that, a group of Special Civil Applications being SCA Nos. 1550/1992, 5147/90, 4718/94, 8286/93, 3459/96, 8100/96, 5404/91 and 540/92 were preferred by original petitioners before this Court. Said petitioners were preferred by original petitioners with a prayer to direct the respondent - State of Gujarat to extend the benefits of Government Resolution dated 17.10.1988 in favour of the petitioners and they are entitled to the same as the said Government Resolution is applicable to employees working in the Forest Department. The said group of petitions was decided by the learned Single Judge by judgment and order dated 28.4.1997, of which Para 3, 4 and 5 are relevant, which are reproduced as under :
"3. The learned counsel for the respondents does not dispute this fact.
However, the learned counsel for the respondents contended that the judgment of this Court given in earlier matter has been taken by Government in L.P.A., which is pending. It is not the case of the counsel for the respondents that the L.P.A. is admitted or the judgment is stayed or it has been reversed. Merely because the earlier decision has been taken in L.P.A., I fail to see any justification in the request of the counsel for the respondents that these matters may be ordered to be kept pending. As these matters are squarely covered by the judgment of this Court, then they have to be decided on the same lines to the decision given by this Court earlier in identical matters.
4. The Special Civil Application No.3987 of 1989 was disposed of on the consent of the parties on the same lines to the order which has been passed by this Court in Special Civil Application No.2397 of 1995 on 21st March, 1997. All these Special Civil Applications are also disposed of in the same terms.
5. In the result, these Special Civil Applications are disposed of in the terms that the Government resolution dated 17th October, 1988 is applicable to the employees of the Forest Department as well and they are entitled to the benefit under the aforesaid Government Resolution for the period from 1-10-1988 i.e. the date from which the Resolution was made effective and onwards and the amount which may be found due shall be examined and calculated in each and every case and shall be paid to the petitioners at the earliest possible opportunity, but not later than 31st July, 1997."
4. Learned AGP Mr.Rindani, appearing on behalf of appellants, pointed out that Division Bench of this Court has passed an order in LPA No.1125 of 1997 in SCA No.4718 of 1994 with Civil Application No.8793 of 1997, dated 13.10.2005, wherein the Division Bench, after considering the decision of Full Bench of this Court in a case of Gujarat Forest Producers, Gatherers & Forest Workers Union v. State of Gujarat, reported in 2004 (2) GLR 1488, has been pleased to set aside the order passed by learned Single Judge on 28.4.1997 in respect to each petition, as referred above and petition is also dismissed by Division Bench of this Court in aforesaid orders. The order dated 13.10.2005 passed in LPA No.1125 of 1997 by the Division Bench of this Court is quoted as under :
"Mr. Pathak, learned counsel for the respondents frankly conceded at the bar that this matter is squarely covered against them by a Full Bench judgment in the case of GUJARAT FOREST PRODUCERS, GATHERERS & FOREST WORKERS UNION vs. STATE OF GUJARAT reported in 2004 (2) G.L.R. Page 1488. In view of the above, the impugned common judgment and order dated 28th April, 1997 passed in Special Civil Applications No.5025/1993, 1550/1992, 5147/1990, 4718/1994, 8286/1993, 3459/1996, 8100/1996, 5404/1991 and 540/1992 is hereby quashed and set aside and the main writ petition i.e. Special Civil Application No.4718/1994 filed by the respondents - petitioners is hereby dismissed.
No order on Civil Application for stay."
5. Learned AGP Mr.Rindani has also pointed that in LPA No.1125 of 1997 in SCA No.4718 of 1994 wherein the Division Bench of this Court has examined the entire matter on merits and come to conclusion that Government Resolution dated 17.10.1988 is not made applicable to employees those who are working in Forest Department. This decision has been taken by the Division Bench on 8.5.2000. Relevant observations are made in Para.9 to 12 which are quoted as under :
"9. The contention that decision of the State Government not to accord benefits of Government Resolution dated October 17, 1988 to those employees recruited on daily-wage basis and who are not connected with the work of repair and/or maintenance of buildings is arbitrary and violative of the provisions of Article 14 of the Constitution cannot be accepted. The reasons as to why all daily-wagers employed by Forest and Environment Department cannot be granted benefits of Government Resolution dated October 17, 1988 are indicated in latest Government Resolution dated December 22, 1999. The work of repair and/or maintenance of buildings is by and large continuous and of permanent nature whereas the work of those daily-wagers who are engaged in the work of seedling, digging pits, weeding, mulching, thinning of plants, nursery is during a particular season and for specific period. Under the circumstances, rojamdars employed by the Forest and Environment Department for seedling, digging pits, weeding, mulching, thinning of plants, nursery,etc., cannot be equated with those who are engaged in the work of repair and/or maintenance of buildings. The decision not to give benefits of Government Resolution dated October 17, 1988 to those daily-wagers who are not connected with the work of repair and/or maintenance of buildings is informed by reasons and has nexus to the object which is sought to be achieved by Government Resolution dated October 17, 1988.
Having regard to the work of seedling, digging pits, weeding, mulching, thinning of plants, nursery, etc., and its duration, the Government has decided not to grant benefits of Government Resolution dated October 17, 1988 which is available to the rojamdars associated with the work of repair and/or maintenance of buildings. This is a policy decision and the respondents have failed to point out that the policy decision is either irrational, arbitrary or perverse so as to call for interference of the Court in a petition filed under Article 226 of the Constitution. In view of difference in nature of work and its duration it cannot be said that the decision of the State Government not to grant benefits of Government Resolution dated October 17, 1988 to those rojamdars who are not connected with the work of repair and/or maintenance of buildings is in any way violative of Articles 14 and 16 of the Constitution.
10. It may also be mentioned that the Supreme Court in Delhi Development Horticulture Employees' Union (supra) has deprecated back-door entry in service under so-called right of the employees to regularisation. For regularisation there must be regular and permanent post or it must be established that although work of regular and permanent nature is available the device of appointment and keeping the workers on adhoc or temporary basis has been resorted to, to deny them the legitimate benefits of permanent employees. It is the specific case of the appellants that though the eight employees were recruited for specific purpose and duration, they have been continued in service by assigning different kind of work on humanitarian grounds but, work of regular and permanent kind for which they were recruited is not available. As observed earlier, the work which is being performed by the eight employees is neither regular nor of permanent nature. Moreover, as pointed out by Mr. Pandav in additional affidavit in reply, Governor of Gujarat has made rules called "the Watchman (Forest Department) Recruitment Rules, 1975" as well as 'The Khalasi (Gujarat Forests Inferior Service) Recruitment Rules, 1977' in exercise of the powers conferred by the proviso to Article 309 of the Constitution. If the relief as claimed for by the respondents is granted it would amount to nullifying the rules framed by the Governor of Gujarat under Article 309 of the Constitution and such a course is not permissible to Court while hearing a petition filed under Article 226 of the Constitution of India.
11. Having regard to the facts and circumstances which have been noted above, we are of the opinion that the eight employees whose cause was expoused by the respondents are not entitled to the benefits of Government Resolution dated October 17, 1988. The claim of the appellants is that there are no regular post of Watchman, Labourer, etc., available at the respective Forest Ranges. Therefore it will not be proper to give direction to the appellants to regularise the service of those eight employees. The result is that the appeal will have to be accepted by setting aside the impugned judgment.
12. For the foregoing reasons, the appeal succeeds. The judgment dated April 28, 1997 rendered by the learned Single Judge in Special Civil Application No. 4718 of 1994 is set aside and quashed. Special Civil Application No. 4718 of 1994 filed by the respondents is dismissed. There shall be no order as to costs all throughout."
6. Learned AGP Mr.Rindani has also relied upon recent decision of the Division Bench of this Court in case of Chief Conservator of Forest and Others v. Ashok N.Pandya, reported in (2010) 24 GHJ 206 wherein it has been held that Government Resolution dated 17.10.1988 issued by R&B Department and daily wager who have been engaged in the construction and maintenance of the buildings are entitled of such benefit and forest department is not an industry and appellants of that appeal are engaged in the maintainance of nursery, it is held that in view of the judgment delivered by the Full Bench of this Court, as referred above, the appellants - petitioners are not entitled to benefits of Government Resolution dated 17.10.1988. Relevant observations made by this Court in Para.3, 4 and 5 are quoted as under :
"3. Learned Assistant Government Pleader Ms.Nair has appeared for the appellants. She has submitted that the questions whether or not the Department of Forest of the Government of Gujarat is an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 and whether or not such employees are entitled to the benefit under the Government Resolution dated 17th October 1988 are set at rest by the judgment of the Full Bench of this Court in the matter of Gujarat Forest Producers, Gatherers and Forest Workers Union Vs. State of Gujarat [2004(2) GLH 302].
4. The Full Bench has, in the above judgment held, "The Forest and Environment Department of the State Government is not an industry under Section 2(j) of the Industrial Disputes Act, 1947 and the question whether any of its unit, establishment or undertaking is an industry or not will depend upon the nature of the work done by such entity and only when the activity undertaken amounts to an activity for production or distribution of goods and / or services for satisfying wants and desires of consumers, in the sense in which the concepts are understood in the field of industrial economy, satisfying the third ingredient of the triple ingredients test, that such unit, establishment or undertaking of the Department can be said to be industry, unless falling in the categories removed by constitutional and competently enacted legislative provisions from the scope of the Industrial Disputes Act as indicated in clause (c) of Item IV of the guidelines laid down by the Supreme Court in paragraph 161 of Bangalore Water Supply case (supra), including the law falling under Articles 309 to 311 of the Constitution. The bench further held "The Government Resolution dated 17th October 1988 is applicable to the daily wagers of the Forest & Environment Department engaged in the work of maintenance and repairs of constructions in that Department, and not to the daily wagers engaged in other types of work in that Department."
5. In view of the above decision of the Full Bench of this Court, we must hold that the impugned decision of the learned Single Judge does not lay down a good law. Admittedly, the writ petitioners were engaged under the Range Forest Officer for maintenance of nursery and forest area. The writ petitioners are not engaged in the construction activities referred to by the Full Bench. The writ petitioners are, therefore, not entitled to the benefit under the resolution dated 17th October 1988 passed by the Government of Gujarat in its Roads and Buildings Department."
7. In view of above law decided by the Division Bench of this Court taking into consideration the decision of Full Bench of this Court, both appeals preferred by the State Government challenging the order of learned Single Judge dated 28.4.1997 is required to be quashed and set aside and is accordingly hereby quashed and set aside. Accordingly, both Letters Patent Appeals are allowed. No order as to costs.
8. Learned advocate Mr.P.H.Pathak appearing on behalf of respondent No.1 submitted that certain employees, who are working at different nursery as a daily wager, are getting benefit of Government Resolution dated 17.10.1988 but, the Forest Department has not extended similar benefits in favour of present respondents.
8.1 If that be so, let present respondents may approach to Forest Department of State of Gujarat by making a detailed representation pointing out that there is a discrimination amongst the employees who are working in Forest Department.
10. As and when such representation is received by Forest Department, State of Gujarat, same will be considered in accordance with law and reasoned order be passed.
(H.K.RATHOD,J.) (K.A.PUJ,J.) (vipul) Top