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2014 DIGILAW 67 (GUJ)

STATE OF GUAJRAT v. REVABHAI JESINGBHAI

2014-01-20

A.G.URAIZEE, K.S.JHAVERI

body2014
ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. By way of present appeal under Clause 15 of the Letters Patent, the appellant original petitioner has challenged the legality and validity of the order dated 06/05/1998 passed by the learned Single Judge of this Court while dealing with Special Civil Application No.7187 of 1997, whereby the learned Single Judge confirmed the award dated 11/5/1992 passed by the Industrial Tribunal in Reference I.T. No. 388/98. 2. The present respondents have filed Special Civil Application and prayed to extend the benefit of the award of the Industrial Tribunal in Reference (IT) No. 386/88 and further prayed for the benefits of the resolution dated 17/10/1988. On the ground that they completed more than 960 days of working as daily rated employees and are governed by the award of the Tribunal in Reference (IT) No. 386/88. The submissions made by the respondents were disputed by the present appellant by way of filing affidavit in reply. However, learned Single Judge has come to the conclusion that the respondents have put up the qualifying period of service and they are entitled to the benefits of Reference (IT) no. 386/1988. It was also disputed by the present appellant that present respondents were working on the permanent post of watchmen in Forest Department. It is the case of appellant that the learned Single Judge came to the conclusion that both the respondent workmen were working as daily wagers and were paid Rs. 46.50 at that time. The learned Single Judge has relied on the seniority list and directed the appellant to give effect to the award dated 11/5/1992 but the contents of the seniority list are not admitted by the appellant. Hence, this appeal. 3. It is the case of the appellant that the respondents – original petitioner no. 1 & 2 have joined their services of the appellant Department as watchman w.e.f. February, 1984. They were transferred on different road side protection of plantation from time to time and were working satisfactorily. In the year 1995, the appellant has circulated a seniority list of watchman working under him, wherein the name of respondents are at Sr. no. 3 & 5 respectively. The respondents are daily rated watchmen and receiving monthly salary at the rate of Rs. 46.50 per day. 4. Learned AGP Mr. In the year 1995, the appellant has circulated a seniority list of watchman working under him, wherein the name of respondents are at Sr. no. 3 & 5 respectively. The respondents are daily rated watchmen and receiving monthly salary at the rate of Rs. 46.50 per day. 4. Learned AGP Mr. J.K.Shah appearing for the appellant states that the learned Single Judge has committed serious error in coming to the conclusion that as the respondents are shown at 3 & 5 in the seniority list, respondents have put up more than 960 days of service as daily wager and therefore, the respondents are entitled for benefits of the award. 5. It is contended by the appellant that the learned Single Judge has failed to take into account that present respondents ought to have approached machinery under the Industrial Disputes Act before approaching the Honourable High Court by way of preferring Special Civil Application. 6. It is contended by the appellant that appointments are required to be made as per recruitment rules and no appointment can be made in the fashion in which it has been stated that qualifying period of service is completed and therefore they are entitled to the benefits. 7. It is further contended that looking to the nature of the activities of the Forest Department, it is necessary to engage Rojamdar during monsoon season and there cannot be any direction for appointment on regular post of Rojamdar as there is no need to engage them on continuous basis. Therefore, the order of the learned Single Judge is exfacie, illegal, improper and unjust and not maintainable in law. 8. Learned advocate Mr. Pathak appearing for the respondents has supported the impugned order passed by the learned Single Judge and stated that the order of the learned Single Judge is just and proper and no interference of this Court is warranted. 9. We have heard learned counsel appearing for the respective parties at length and in great detail. We have also perused the order passed by the learned Single Judge. The learned Single Judge has made following observation in para 4: “4. 9. We have heard learned counsel appearing for the respective parties at length and in great detail. We have also perused the order passed by the learned Single Judge. The learned Single Judge has made following observation in para 4: “4. In the face of specific assertion on behalf of petitioners about the duties discharged by them as watchman from period to period at different places which had not been even denied vaguely and there has been no dispute about the correctness of the seniority list, the plea of the learned counsel for the respondent cannot be accepted that the petitioners were not discharging the function of the watchman, to whom the award apply. In fact, at one stage, learned counsel has gone on to submit that the petitioners were not even employed on the crucial date of 1/1/89 and the award was not applicable to the persons engaged subsequent to that date. The fact which has no relevance to the controversy in the present case inasmuch as seniority list goes to show that both the petitioners have been employed with the respondent department long before the crucial date of 1/1/89 referred to in the award. Both contentions are not supported from reply and are contrary to undisputed document Annexure B issued by respondents only. The fact that the petitioners were employed as permanent watchman or they are discharging their duties as daily rated watchman by itself cannot be of any avail to the respondent inasmuch as it is precisely for the reason that while the petitioner are discharging the functions of watchman for long on daily rated wages, they are demanding for grant of permanent status and the relief is claimed because notwithstanding the award to that effect in favour of workmen that those who had discharged the functions of watchman in a period of 4 years prior to 1/1/89 for 240 days each year or have been completed 960 days of actual working where prior to 1/1/89 or complete thereafter are entitled to be made permanent and the petitioners apparently fulfill the conditions which makes them eligible to be treated as permanent in terms of the award the respondents are not giving effect to that ward.” 10. We are in complete agreement with the finding recorded by the learned Single Judge. We do not find any illegality in the order passed by the learned Single Judge. We are in complete agreement with the finding recorded by the learned Single Judge. We do not find any illegality in the order passed by the learned Single Judge. Hence, there is no substance in the present appeal. The appeal is, accordingly, dismissed.