Gujarat High Court
Pravinkumar Nanalal Trivedi vs Amreli District Panchayat & 3 on 31 July, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2796/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2796 of 2015
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PRAVINKUMAR NANALAL TRIVEDI....Petitioner(s)
Versus
AMRELI DISTRICT PANCHAYAT & 3....Respondent(s)
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Appearance:
MR. VISHAL P THAKKER, ADVOCATE for the Petitioner(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1 - 2
NOTICE SERVED BY DS for the Respondent(s) No. 3 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 31/07/2015
ORAL ORDER
1. Rule returnable forthwith. Mr. Munshaw, the learned counsel waives service of notice of rule for and on behalf of the respondents no.1 and 2. The respondents no.3 and 4 although served with the notice issued by this Court has chosen not to appear in person or through an advocate and oppose this writapplication.
2. By this writapplication under Article 226 of the Constitution of India, the petitioner, a dailywager serving with the Amreli District Panchayat, has prayed for the following reliefs: "9(AA) YOUR LORDSHIPS be pleased to issue a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, order or direction, to the respondents to grant the benefits of Govt. Resolution dtd.17.10.1988 to the petitioner, following the length of service of the petitioner and also as per the decision of the Hon'ble Apex Court;
Page 1 of 7HC-NIC Page 1 of 7 Created On Fri Aug 07 00:24:35 IST 2015 C/SCA/2796/2015 ORDER (BB) YOUR LORDSHIPS be pleased to issue a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, order or direction, to the respondents to grant the benefits of Govt. Resolution dtd.17.10.1988 to the petitioner, following the length of service of the petitioner and also as per the decision of the Hon'ble Apex Court, pending the admission, hearing and final disposal of this petition;
(CC) YOUR LORDSHIPS be pleased to direct the respondent authority to pay the difference of salary as per the prevailing pay commission from dt.24.07.1994, as the services of the petitioner are eligible for benefit of Govt. resolution dtd.17.10.1988, on completing 10 years of continuous service, along with interest in the interest of justice;
(DD) YOUR LORDSHIPS be pleased to direct the respondent authority to pay the difference of salary as per the prevailing pay commission from dt.24.07.1994, as the services of the petitioner are eligible for benefit of Govt. resolution dtd.17.10.1988, on completing 10 years of continuous service, along with interest in the interest of justice, pending the admission, hearing and final disposal of this petition;
(EE) YOUR LORDSHIPS be pleased to grant such other and further reliefs as deemed fit in the interest of justice;"
3. To put it in a nutshell the case of the petitioner is that he was appointed as a dailywager in the year 1984. He was working as a Peon in the office of the Bhavnagar District Panchayat.
4. His services were terminated in the year 1989. He approached the Labour Court vide Reference LCB No.285 of 1989. The Labour Court partly allowed the Reference and ordered the respondents to reinstate the petitioner in service with continuity and without backwages.
5. It appears from the materials on record that two petitions were filed; one by the petitioner herein and the other by the Panchayat. The petitioner challenged the award so far as not granting him the back wages and the Panchayat challenged the award in so far as the Labour Page 2 of 7 HC-NIC Page 2 of 7 Created On Fri Aug 07 00:24:35 IST 2015 C/SCA/2796/2015 ORDER Court directed for reinstatement. It appears that both the petitions were dismissed. Thereafter, the petitioner was appointed as a dailywager in the Amreli District Panchayat. He has put about 12 years of service by now and his grievance is that he is not being given the benefit of the Government Resolution, dated 17.10.1988. The Government Resolution, dated 17.10.1988 confers 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 has 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 leave in addition to 14 misc. leave, 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 has service of more than ten years but less than 15 years are entitled to get minimum pay scale at par with skilled worker along with dearness allowance as per prevailing standard, for his working days. Moreover, such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. He/she will be eligible for getting medical allowance and deduction of provident fund.
(iv) Daily wagers and semi skilled workers who has service of more than 15 years will be considered as permanent worker and such semi skilled 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 salary, general provident fund. Moreover, they will get two optional leave in addition to 14 misc. leave, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The daily wage workers and semi skilled who have completed 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."
6. In such circumstances referred to above, he seeks for a writ of Page 3 of 7 HC-NIC Page 3 of 7 Created On Fri Aug 07 00:24:35 IST 2015 C/SCA/2796/2015 ORDER mandamus to the respondents for grant of the benefit of the Government Resolution referred to above.
7. This application has been vehemently opposed by Mr. Munshaw, the learned counsel appearing for the respondent no.2. He has placed reliance on the averments made in the affidavitinreply filed on behalf of the respondent no.2. The averments made in the reply are as under: "2. The respnt. no.2 most respectfully submits that the petitioner has preferred present Special Civil Application praying that his services be regularized in the employment of Amreli District Panchayat including the revision of pay scales. The petitioner has also asked for the implementation of the recommendations of 6th Pay Commission in his case and pay the arrears with interest. The respnt. no.2 more respectfully submits that the petitioner is not entitled to such relief as it is contrary to the facts , material on record, policy of the Govt. of Gujarat as well as the judgment delivered by the Hon'ble Supreme Court of India laying down that the part timer are not entitled to regularization. The respnt. no.2 craves leave to bring the facts on the record as under:
3. The respnt. no.2 most respectfully submits that the petitioner herein was provided work purely on temporary, adhoc and part time basis with effect from 24.7.84. It is stated that no regular recruitment procedure was followed and he was offered work as a part timer and he work up to 31.12.89. It is stated that in absence of work he was not offered work with effect from 1.1.90 and, therefore, he approached the Hon'ble Labour Court at Bhavnagar praying for a relief of reinstatement with continuity and backwages. It is submitted that the said Ref. Bearing no.285/89 was partly allowed i.e.without backwages and, therefore, a Special Civil Application No.1163/99 but the same was rejected by the Hon'ble High Court of Gujarat on 10.3.99. It is submitted that the petitioner herein also preferred Special Civil Application No.3122/99 praying for back wages but it came to be rejected on 5.7.05.
4. The respnt. no.2 most respectfully submits that the petitioner who was reinstated in the same capacity preferred Special Civil Application No.945/03 ventilating grievances that he was not getting the benefit of Govt. Resolution and policy framed for regularization. It is stated that the Hon'ble High Court of Gujarat disposed off Special Civil Application No.945/03 through order dtd.22.4.03.
Page 4 of 7HC-NIC Page 4 of 7 Created On Fri Aug 07 00:24:35 IST 2015 C/SCA/2796/2015 ORDER It is submitted that there was a delay in taking appropriate decision om the representation and, therefore, Misc. Civil Application No.1934/03 came to be filed and after disposal thereof the respnt. Authority took a decision on 6.11.03 to reject the same and a copy of orders annexed as AnnexureA. The respnt. no.2 most respectfully submits that the petitioner who has no case on merits has failed to produce the said decision on record. It is humbly stated that the petitioner had work only as a part timer and that too without following due procedure of recruitment. It is submitted that petitioner was not offered work in consonance with recruitment rules and even names were called from the employment exchange. It is further stated that it was a stop gap arrangement. The respnt. no.2 craves leave to annex herewith a copy of G.R. dated 17.10.88 issued by the Govt. of Gujarat through its Roads & Bldg. Dept. laying down that a policy for grant of certain service benefits to the daily wage labourers as AnnexureB. From a kind perusal thereof and the part time service being offered by the petitioner it is clear that the case of the petitioner is not covered under the norms laid down by the Govt. of Gujarat. It is submitted that petitioner who is offering dailywage service cannot ask for the benefits flowing from the G.R. dated 17.10.88. The respnt. no.2 craves leave to annex herewith a statement showing the details about working hours and the payment being made to him for his part time service as AnnexureC. In other words petitioner's insistence for regularization of his service on the basis of Govt. policy as well as the judgments of the Hon'ble Supreme Court of India is not well founded and without merits. The respnt. no.2 submits that even the Hon'ble Apex Court has laid down that the dailywager have no right of regularization. It is stated that the petitioner is not serving on any permanent and sanctioned post after following due procedure of recruitment.
5. In view of the above mentioned facts and circumstances Hon'ble Court is humbly prayed not to grant any interim relief and reject the present Special Civil Application in limine with cost in the interest of justice."
8. Mr. Munshaw submitted that there being no merit in this writ application, the same be rejected.
9. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the petitioner is entitled to the benefit Page 5 of 7 HC-NIC Page 5 of 7 Created On Fri Aug 07 00:24:35 IST 2015 C/SCA/2796/2015 ORDER of the Government Resolution, dated 17.10.1988.
10. Indisputably, the petitioner is serving as a dailywager with the respondent no.1 past almost 12 years. In the past, he was serving as a dailywager with the respondent no.4. His services were terminated in the year 1989 and thereafter, he succeeded before the Labour Court. The objection of Mr. Munshaw that the earlier period of service should not be clubbed with the later part of the service, deserves to be rejected.
11. Even if the earlier part of the service is not clubbed with the later part of the service, the petitioner has almost put in 12 years of service and he would be otherwise entitled to the benefit of the Government Resolution, dated 17.10.1988 in view of the decision of the Supreme Court in the case of 'State of Gujarat & Ors. Vs. PWD Employees Union and Ors.' reported in 2013 (2) GLH 692. The whole idea to club the earlier service is to derive the benefit as provided in Clause IV of the Government Resolution. The dailywagers and semi skilled workers who have service of more than 15 years would be considered as a permanent worker and such semi skilled workers would get the current payscale of a skilled worker along with the dearness allowance, local city allowance and house rent allowance.
12. The Supreme Court in the case of 'Gurpreet Singh Vs. State of Punjab' reported in 2002 (9) SCC 492 took the view that the continuity of service could not be denied once the person is directed to be reinstated in service on setting aside the order of termination. This is exactly what the labour Court has observed in its order. It is difficult for me to take the view that his appointment with the respondent no.1 would be a fresh appointment.
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13. The same view has been taken by a learned Single Judge of this Court in the case of 'Nagjibhai Paljibhai Zala & Ors. Vs. State of Gujarat' reported in 2011 (2) GLR 1592.
14. Thus, in view of the above, the petitioner is entitled to the benefits of the Government Resolution, dated 17.10.1988 and while granting such benefits his earlier service shall also be considered.
15. For the foregoing reasons, this petition is allowed. The respondents no.1 and 2 are directed to sanction the necessary benefit of the Government Resolution, dated 17.10.1988 in favour of the petitioner considering his past service also and sanction the same within a period of 12 weeks from the date of the receipt of the writ of the order.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 7 of 7 HC-NIC Page 7 of 7 Created On Fri Aug 07 00:24:35 IST 2015