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Gujarat High Court · body

2016 DIGILAW 1067 (GUJ)

Bhupatbhai B. Gurjarwadia v. State of Gujarat

2016-06-09

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By writ application under Article 226 of the Constitution of India, the petitioners, serving with the Dhari Gram Panchayat, District Amreli, have prayed for the following reliefs: "8A. Your Lordships may be pleased to allow this petition. B. Your Lordships may be pleased to quash and set aside impugned order dated 8-9.7.2010 passed by respondent No. 3 herein. C. Your Lordships may be pleased to declare that impugned order dated 8-9.7.2010 passed by respondent No. 3 herein being illegal, arbitrary, mala fide, passed without any application of mind, passed in clear violation and derogatory of judgment of this Hon'ble Court dated 15.4.2010 passed in Special Civil Application No. 11933/2000 and connected matters. D. By way of ex-parte ad interim relief, Your Lordships may be pleased to stay implementation, execution and operation of the impugned order dated 8-9.7.2010 passed by respondent No. 3 herein. E. Your Lordships may be pleased to grant exemplary costs to the petitioners for preferring this petition. F. Your Lordships may be pleased to grant such other and further relief/s in the interest of justice." 2. The facts of this case may be summarized as under: "2.1 The petitioners before me are all employees of the Dhari Gram Panchayat, and it is their case that they have been serving as regular employees past couple of years. Initially, they were appointed in the Octroi Department. Later on, they were all withdrawn from the Octroi Department and were posted as Clerks. 2.2 It is their case that they were receiving regular pay scales, and the issue cropped up whether they are entitled to receive pay scales in accordance with the Fifth Pay Commission or not. 2.3 The Gram Panchayat resolved that its employees be paid salary in accordance with the Fifth Pay Commission. The Taluka Development Officer, by order dated 26th October 2000, refused to grant proposal put forward by the Panchayat for the purpose of giving benefits of the Fifth Pay Commission. The order or rather the action the part of the Taluka Development Officer was made a subject matter of challenge by filing a Special Civil Application No. 11933 of 2000. The other cognate petitions were also filed by the different employees. The order or rather the action the part of the Taluka Development Officer was made a subject matter of challenge by filing a Special Civil Application No. 11933 of 2000. The other cognate petitions were also filed by the different employees. The Special Civil Application No. 11933 of 2000 and the allied matters came to be disposed of by a learned Single Judge of this Court vide order dated 15th April 2010 with the following directions: "(1) SCA No. 11933 of 2000 is dismissed, subject to the direction that the cases of permanent or regular monthly rated employees appointed on permanent posts shall be referred to the District Development Officer, District Panchayat, Amreli (DDO) within a period of two months for fixing date of revision of their pay scales and he shall decide, after giving an opportunity of hearing to the Panchayat and union/representative of its employees, the date from which and the pay-scale to which the employees concerned shall be entitled, in terms of G.R. Dated 14.09.1993 and 17.09.2007 mentioned hereinabove. The Chief Officer of the Panchayat shall, within a period of one month, furnish necessary details of the employees and payments made to them in tabular form to the DDO. Thereafter, the respondent Panchayat shall prepare a statement of amounts paid in excess or less than required to be paid according to decision of the DDO, and such amounts of arrears shall be recovered or paid, as the case may be, in accordance with the following further directions. (2) SCA No. 345 of 2009 is disposed with the direction that the regular monthly rated employees shall be regularly paid, from month to month, at least 50% of their gross salaries after deducting the amounts, if any, required to be recovered as arrears on account of earlier excess payment and after re-fixing their salaries in accordance with the decision of the DDO as aforesaid. As for the employees from whom no amounts are required to be recovered or remaining to be recovered, the Panchayat shall regularly pay full salaries to which they may be legally entitled in accordance with the provisions of the Payment of Wages Act and the Minimum Wages Act. If any arrear is required to be paid to any employee in addition to regular salary and allowances, if may be paid in maximum twelve monthly instalments. If any arrear is required to be paid to any employee in addition to regular salary and allowances, if may be paid in maximum twelve monthly instalments. (3) SCA No. 342 of 2010 shall stand disposed with the direction that, without prejudice to the rights and contentions of the parties in any other proceedings before any other forum, the Panchayat shall re-employ such of the daily rated employees who are available and whose services could be availed, in order of their seniority, and pay them minimum wages prescribed under the Minimum Wages Act or such higher wages as the Panchayat may determine, having regard to its financial condition and government resolutions or regulations in that regard. (4) The above directions shall be subject to and not in derogation of the applicable provisions and powers of the Taluka Development Officer and District Development Officer under the Gujarat Panchayats Act, 1961." 2.4 Thus, it appears that the direction was plain and clear. This Court directed that the cases of permanent or regular monthly rated employees appointed on permanent posts should be considered by the District Development Officer, Amreli, for the purpose of revision of their pay scales. 2.5 Pursuant to the directions issued by this Court, the District Development Officer undertook the exercise, and by impugned order dated 9th July 2010, recorded a finding so far as the petitioners herein are concerned that they were not entitled to the revision in salary, because they could not be said to have been appointed by way of a regular recruitment process. The District Development Officer recorded a finding that they could not be said to be permanent or regular monthly rated employees. The District Development Officer did not stop there, but proceeded further to declare them as daily rated employees, and also directed the Panchayat to pay them wages as if they are daily wagers. 2.6 Being dissatisfied, they have come up with this writ application." 3. Mr. Kariel, the learned counsel appearing for the petitioners vehemently submitted that the District Development Officer transgressed its jurisdiction much beyond what was directed to him by this High Court. He submitted that the District Development Officer could not have passed an order declaring the petitioners as daily rated employees. He submitted that such declaration came as a surprise, because all through out, the Panchayat had treated the petitioners as regular monthly rated employees. He submitted that the District Development Officer could not have passed an order declaring the petitioners as daily rated employees. He submitted that such declaration came as a surprise, because all through out, the Panchayat had treated the petitioners as regular monthly rated employees. He submitted that it is not in dispute that the petitioners were even being paid in accordance with the Fourth Pay Commission. He submitted that if the petitioners were not being the regular monthly rated employees, then they would not have been paid salary in accordance with the Fourth Pay Commission. 4. Mr. Kariel submitted that the District Development Officer had no authority to go into this issue whether the petitioners are permanent or regular monthly rated employees appointed on permanent posts. 5. Mr. Kariel submitted that his clients were receiving regular pay scales, but now, by virtue of the impugned order, they have been termed as the daily wagers. 6. Mr. Kariel submitted that the impugned order deserves to be quashed. 7. Mr. Vakharia, the learned counsel appearing for the Dhari Gram Panchayat submitted that no error, not to speak of any error of law could be said to have been committed by the District Development Officer in passing the impugned order. He, however, conceded that all the petitioners were serving as regular monthly rated employee. He tried to throw the blame on the former Sarpanch by submitting that the petitioners were appointed by the grace of the former Sarpanch. These allegations are coming up for the first time. 8. Mr. Munshaw, the learned counsel appearing for the District Development Officer has relied upon the following averments made in the affidavit-in-reply duly affirmed by the Deputy District Development Officer, Amreli: "3. The respondent No. 3 craves leave to add that release of monetary benefits to irregularly employed staff members resulted into heavy monetary burden on the public exchequer. The respondent No. 3 submits that even the revised pay scales were also granted by the Gram Panchayat on its own without prior approval from the higher authorities and ignoring the financial condition of the Gram Panchayat which resulted into poor administrative performance, financial crisis and even non payment of salary/wages to the staff. The respondent No. 3 submits that even the revised pay scales were also granted by the Gram Panchayat on its own without prior approval from the higher authorities and ignoring the financial condition of the Gram Panchayat which resulted into poor administrative performance, financial crisis and even non payment of salary/wages to the staff. The respondent No. 3 submits that the Gram Panchayat is not in a position to even make the payment of electricity bill, water supply bill and has ignored the basic amenities like repairs & maintenance of the roads, street, lights, drainage line, etc. It is submitted that from time to time the Gram Panchayat made recruitment at its will which has not only resulted over staffing but also additional burden to the public exchequer. The respondent No. 3 submits that even the Gram Panchayat entered into settlement/compromises whenever its daily wagers and staff members approach the Labour Court for getting various relief and the result & effect of which was non development of the Gram Panchayat, administrative problems and non payment of salary/wages to the staff. It is pertinent to note that the settlements were entered into to such an extent that the daily wagers are regularized and even released the benefit of regular pay scale and given the benefit of revision of pay from time to time. In other words, the administration of Gram Panchayat was in chaotic situation and ultimately the District Panchayat administration was compelled to intervene. 4. The respondent No. 3 submits that a resolution passed by the Gram Panchayat adopting new pay scale for its employees through a resolution dated 27/01/1998 was suspended through order dated 26/10/2000 and therefore, the Employees Union representing 51 employees of the Gram Panchayat preferred Special Civil Application No. 11933 of 2000 and the Hon'ble Court on finding the substance and at that point of time issued rules and granted interim relief in favour of the petitioners. The respondent No. 3 submits that accordingly the employees of Gram Panchayat started receiving the benefit of 4th Pay Commission and also the recommendation of 5th Pay Commission and it was co version to such extent that it was left with no fund to pay the salary/wages to its employees/workmen employed on daily wage basis. The respondent No. 3 submits that accordingly the employees of Gram Panchayat started receiving the benefit of 4th Pay Commission and also the recommendation of 5th Pay Commission and it was co version to such extent that it was left with no fund to pay the salary/wages to its employees/workmen employed on daily wage basis. The respondent No. 3 submits that due to non payment of salary/wages, the employees approached the Hon'ble High Court of Gujarat by way of filing Special Civil Application No. 345 of 2009 and No. 342 of 2010 and after considering all the aspects placed on record by the present respondent No. 3, the Hon'ble Court ordered to hear all the petitioners together and ultimately passed a detailed judgment on 15/04/2010 issuing certain directions to the District Development Officer. 5. The respondent No. 3 submits that accordingly the District Development Officer, Amreli District Panchayat was required to undertaken an exercise in light of the provisions of the Act, Recruitment Rules and Regulations framed thereunder, mode of recruitment of Gram Panchayat and erstwhile Municipality, pay scale released by the Gram Panchayat from time to time, Government Resolutions as well as the policy of the State Government with regard to administrative expenses, judgments of Hon'ble Supreme Court of India as well as Hon'ble High Court of Gujarat on the issue of status of employees etc. The respondent No. 3 submits that pursuant to the directions of the Hon'ble High Court of Gujarat through judgment dated 15/04/2010, it was thought fit to grant full opportunities to various interested parties to represent their respective cases. The respondent No. 3 submits that accordingly converted Gram/Nagar Panchayat, Shramjeevi Sangh, permanent & daily wagers, safai Kamdars of Gram Panchayat, Vice President of Gram, Sarpanch as well as Upsarpanch of Dhari Gram Panchayat etc were permitted to represent their cases in writing and were also called upon to attend the hearing to enable the respondent No. 3 to comply with the direction of the Hon'ble High Court of Gujarat and to give correct conclusion in the interest of administration and public at large. The respondent No. 3 submits that the cases of existing as well as retired employees, daily wagers etc. The respondent No. 3 submits that the cases of existing as well as retired employees, daily wagers etc. were examined independently in light of the facts, provisions of the Act, Rules & Regulations framed under the Act and the judgment of the Hon'ble Supreme Court of India reported in AIR 1984 SC 161 as well as the judgment of the Hon'ble High Court of Gujarat delivered in Special Civil Application No. 9264 of 1993 on 06/03/1998. The respondent No. 3 submits that ultimately it is found that the administrative expenses are much above the ratio determined by the State Government and as such it has crossed 80% during the year 2007-2008 and 2008-2009. The respondent No. 3 submits that after careful consideration of all the aspects it is ordered that in all 20 retired employees are eligible & entitled to the relevant pay scale as well as retiral benefits and their names are also categorically mentioned to enable them to receive all the benefits. It is pertinent to note that three other employees who are employed prior to 05/06/1984 but not against the sanctioned post are treated in different category and it is ordered that they are eligible & entitled to regular pay scale and they should be paid wages as per the provisions of the Payment of Minimum Wages Act. In view of this, it is ordered that three such employees who have already retired shall not be paid any other benefits and necessary recovery be made as they were wrongfully granted the benefit of higher pay scale. At the cost of repetition the respondent No. 3 submits that as they were recruited without following due procedure of recruitment and were not appointed against any sanctioned post, they are not eligible for any retiral benefits. The respondent No. 3 submits that the third category of the retired employees carved out by the authority is of those employees who are appointed after 05/06/1984 and without following due procedure of recruitment are eligible and entitled to wages only as per the provisions of the Payment of Minimum Wages Act and excess payment be recovered by the Gram Panchayat. 6. The respondent No. 3 has carved out another category of 32 employees who are given employment prior to 05/06/1984 by the Gram Panchayat and are in still in service. 6. The respondent No. 3 has carved out another category of 32 employees who are given employment prior to 05/06/1984 by the Gram Panchayat and are in still in service. It is stated that 11 of such employees are working on sanctioned posts and therefore, it is decided to grant benefit of Government Resolution dated 14/09/1993 after improvement of financial condition of the Gram Panchayat. It is pertinent to note that the Government of Gujarat through its G.R. dated 14/09/1993 issued through Panchayat & Rural Housing Department has laid down that the establishment expenses should be less than 45|% of the revenue of the Gram Panchayat and a copy of the resolution is annexed herewith and marked as Annexure-A. It is stated that there is one employee namely Dineshkumar P. Dave who is employed by the Gram Panchayat prior to 05/06/1984 but is not working against any sanctioned post and therefore, it is ordered that he shall be entitled to wages only as per the provisions of Payment of Minimum Wages Act and nothing else. It is pertinent to note that Mr. Dave was appointed by the Gram Panchayat through a resolution without following due procedure of recruitment. 7. The respondent No. 3 submits that during the scrutiny of the record, it is found that there are five employees who are appointed after 5/06/1984 without following a resolution but are working on sanctioned posts due to settlement arrived between the employees and the Gram Panchayat. The respondent No. 3, therefore, ordered that as they are not regularly recruited employees of the Gram Panchayat, there cannot be payment of regular salary to them by the Gram Panchayat and they are entitled for the benefit of wages as per the provisions of Payment of Minimum Wages Act. 8. The respondent No. 3 submits that the respondent No. 1 has issued administrative instructions on 04/09/2002 relying upon the judgment of the Hon'ble Supreme Court of India and the Hon'ble High Court of Gujarat and therefore, the cases of in all 14 employees who are appointed without following due procedure but are working on sanctioned posts, are ordered to be paid as per the provisions of Payment of Minimum Wages Act. It is most respectfully stated that granting of regular pay scale though they are treated at par with regularly selected employees, it would be nothing but regularization of backdoor entry. It is most respectfully stated that granting of regular pay scale though they are treated at par with regularly selected employees, it would be nothing but regularization of backdoor entry. The respondent No. 3 submits that the Hon'ble Supreme Court of India and Hon'ble High Court of Gujarat have repeatedly deprecated such practice and had held that irregularly recruited employees cannot be equated with the regular employees and cannot be given equal treatment to them." 9. I have also gone through the affidavit-in-reply filed on behalf of the respondent No. 5 duly affirmed by the Secretary, Dhari Gram Panchayat. I do not find a whisper in the entire reply that the petitioners, at no point of time, were treated as permanent or regular monthly rated employees. 10. It is also not in dispute that they are serving past sixteen years, and they were drawing the regular pay scales. The issue cropped up only when the time came to take a decision whether the salary should be revised in accordance with the Fifth Pay Commission or not. 11. So far as the issue as regards being permanent or regular monthly rated employees is concerned, my attention has been drawn to the following averments made in the petition: "3.5 The petitioners respectfully state that directions of this Hon'ble Court are absolutely unambiguous. Direction No. 1 and 2 which are applicable to the present petitioners clearly direct the DDO respondent No. 3 herein to decide the date from which pay scale to each employee concerned shall be entitled in terms of Government Resolution dated 14/9/1993 and 17/9/2007. That after such decision if the conclusion is arrived at as to any employee having been paid salary in excess of his entitlement, such excess amount to be recovered from such employee, that the employees shall be paid salary regularly from the month to month and in case of any recovery from any employee, recovery shall not exceed 50% of the gross salary available to such employee. As far as employees from whom no amount is required to be recovered, such employee shall be paid monthly salary regularly in accordance with provisions of Payment of Wages Act and Minimum Wages Act and if any employee is entitled to any arrears in addition to regular salary and allowance such arrears shall be disbursed to the employee maximum within 12 monthly installments. Annexed hereto and marked as Annexure-A to this petition is copy of judgment of this Hon'ble Court dated 15.4.2010 passed in Special Civil Application No. 11933/2000, Special Civil Application No. 345/2009 and Special Civil Application No. 342/2010." 12. The averments made in para 3.5 of the petition referred to above have not been controverted in any manner. 13. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the District Development Officer committed any error in passing the impugned order. 14. The direction issued by this Court has been referred to above. At the cost of repetition, the District Development Officer was asked to consider the cases of permanent or regular monthly rated employees for the purpose of fixing the date of revision of their pay scales. It was nobody's case that the petitioners herein are not permanent or regular monthly rated employees. The District Development Officer, on its own, undertook an inquiry, and without giving any opportunity of hearing to the petitioners, recorded a finding that they are not permanent or regular monthly rated employees. Not only this, but the District Development Officer proceeded further to direct the Panchayat to treat the petitioners as daily rated employees. I have no hesitation in coming to the conclusion that the District Development Officer exceeded in its jurisdiction while passing the impugned order. 15. As a result, this writ application succeeds in part. The impugned order is ordered to be quashed. The matter is remitted to the District Development Officer, Amreli, for a fresh consideration with a direction that he shall strictly adjudicate the issue in accordance with the directions issued by this High Court. The petitioners shall appear before the District Development Officer and if need be, shall adduce the necessary materials to indicate that they all are regular monthly rated employees. I take notice of the wordings used by this Court while issuing the directions. The words are "cases of permanent or regular monthly rated employees". The word used by this Court is "or" as a prefix. A regular monthly rated employee may not be a permanent employee. I take notice of the wordings used by this Court while issuing the directions. The words are "cases of permanent or regular monthly rated employees". The word used by this Court is "or" as a prefix. A regular monthly rated employee may not be a permanent employee. If all through out i.e. for a period of sixteen years, if the Panchayat treated the petitioners as permanent or regular monthly rated employees, then that too, no objection raised by any authority at no point of time. It would be too much to say that the petitioners are daily rated employees. Let a fresh exercise be undertaken at the earliest and a fresh order be passed in accordance with the observations made by this Court within a period of two months from today. It is further directed that there shall not be any recovery on the pretext that the salary was paid to the petitioners as they were regular monthly rated employees of the Panchayat. It is further directed that the difference of salary from the date of passing of the impugned order till this date shall also be paid to the petitioners within a period of three months. 16. With the above, this application is disposed of. In view of the order passed in the main matter, the connected Civil Application is also disposed of. Direct service is permitted.