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2019 DIGILAW 328 (GUJ)

BHAGVANBHAI AMRABHAI DAMOR v. STATE OF GUJARAT

2019-04-08

N.V.ANJARIA

body2019
JUDGMENT : In the facts and circumstances of the case and with consent and request of the parties appearing through their respective learned advocates, the petition was taken up for final consideration. Rule returnable forthwith. Learned Assistant Government Pleader Mr. K.M. Antani waives service of notice of Rule on behalf of the respondents. 1.1 Heard learned advocate Mr. Dipak Dave for the petitioner and learned Assistant Government Pleader for the respondents. 2. The petitioner has prayed for the following reliefs, (i) To direct the respondents to grant benefits of Government Resolution dated 17.10.1988 to the petitioner and the petitioner be treated as permanent employee after completion of 10 years of service and be given all the benefits of permanent employee including regular pay-scale on the date the petitioner completed his 10 years of service. (ii) To direct the respondents to extend all the benefits of regular post with regular pay-scale in favour of the petitioner from the date he completed 10 years of service. (iii) To direct respondents to pay difference of salary to the petitioner after placing the petitioner in pay-scale after completion of 10 years of service with interest. (iv) To direct the respondents to pay pension and all retirement benefits to the petitioner after 30.06.2016, the date on which petitioner retired, and to pay arrears of pension with 12% interest. 2.1 Thus, the reliefs are based on the provisions of Resolution dated 17.10.1988 and the benefits flowing therefrom. 3. It is the case of the petitioner that he worked continuously under the respondents for the period from 04.05.1990 till 30.06.2016 as Watchman-cum-Sweeper. Still however, the petitioner is not granted the benefits of State Government Resolution dated 17.10.1988. The petitioner was initially posted at Kaleshwari, Lunavada and thereafter worked as above under the respondent authorities. 3.1 It appears that at a particular point of time in the year 1996, the services of the petitioner were terminated leading the petitioner to invoke the jurisdiction of Labour Court by filing Reference (LCG) No.70 of 1996. The judgment and award dated 30.09.2006 was delivered by the Labour Court reinstating the petitioner with 25% of back-wages. Special Civil Application No.11491 of 2007 preferred by the respondents against the said judgment and award was partly-allowed by scoring off the directions as regards back-wages, however, rest of the award was not interfered with. The petitioner's services are treated continuous. The judgment and award dated 30.09.2006 was delivered by the Labour Court reinstating the petitioner with 25% of back-wages. Special Civil Application No.11491 of 2007 preferred by the respondents against the said judgment and award was partly-allowed by scoring off the directions as regards back-wages, however, rest of the award was not interfered with. The petitioner's services are treated continuous. 3.2 It is the case of the petitioner that similarly situated employees had approached this Court by filing Special Civil Application No.17874 of 2013. The petitioner is better placed and the said petitioners are juniors to the petitioner, as per the case of the petitioner. The said petition was disposed of with order directing the respondents to grant benefits of Government Resolution dated 17.10.1988. The Letters Patent Appeal preferred by the State was dismissed. It is stated that the said judgment which is in respect of similarly situated persons become final and the petitioner ought to have been extended the benefits of Resolution dated 17.10.1988 on the said basis also. 4. The reason for denial of benefit of the Resolution dated 17.10.1988 is discernible from the communication dated 10.03.2014 from the office of Archaeological Department addressed to the President, Gujarat Labour Federation. The said communication was in respect of the two workmen named Baria Rameshbhai Udabhai as well as the present petitioner, Damor Bhagvanbhai Amrabhai. In the earlier petitions, being Special Civil Application No.5321 of 2013 and 5322 of 2013, the case had gone in Special Leave Petition and pursuant to the same, the order was passed. The denial was on the ground that the benefits under the Resolution dated 17.10.1988 would be available provided the Rojamdar had been working prior to 01.10.1988. It was stated that the present petitioner was working since 04.10.1991, therefore, the date being subsequent to 01.10.1988, the petitioner would not be entitled to the benefits of the Resolution dated 17.10.1988. 5. In Kutch District Panchayat v. Mangalbhai K. Rabari, being Special Civil Application No.15670 of 2005, decided as per judgment dated 08.10.2014, in turn confirmed in Letters Patent Appeal No.1381 of 2015, decided on 04.01.2016, it was observed and held in judgment dated 08.10.2014 as under, “7. Shri Pathak, learned counsel for the respondent workmen contended that the decision of the Supreme Court as cited herein above in case of State of Gujarat Vs. Shri Pathak, learned counsel for the respondent workmen contended that the decision of the Supreme Court as cited herein above in case of State of Gujarat Vs. PWD Employees Union & Ors (supra) would have straightway applicability to the present case. The so called inapplicability of GR has been answered squarely by the Court as there are subsequent Government Resolutions clarifying such things. Besides this, in the affidavit in reply at page-47 Courts attention was drawn to indicate that G.respondent. Dated 17/10/1988 is clarified and given effect to all those who are subsequently appointed also and that has been accepted as policy governing such employment thereafter. 8. Shri Pathak pointed out that learned counsel for the petitioner is not correct in contending that all were employed after GR dated 17/10/1988. In fact four were employed before that. Shri Munshaw at this stage submitted that he never meant all employees were employed after the GR and statement annexed to the employees list would clarify the situation. 11. The Court is of the considered view that the GR dated 17/10/1988 was no doubt containing reference to the future employment but the subsequent course of action and developments as it indicate that the Government continued employing daily wagers, temporary hands irrespective of those conditions which gave rise to a situation where litigations came up and hence as Shri Pathak has pointed out clarificatory GR came to be issued and over all facts & circumstances of the case indicate that the benefits of GR dated 17/10/1988 were to be extended to all, else it would have meant to Government employing unfair labour practice which would have been highly depreciable. 12. The Court is also of the view that the decision cited at the bar in case of State of Gujarat And Others Vs. PWD Employees Union And Others will have applicability to the facts & circumstances of the case and counsel of the petitioners submission qua some of the workmen were employed after GR dated 17/10/1988 would be of no avail as the judgment itself has answered that contention squarely.” 5.1 In PWD Employees Union through President v. State of Gujarat, being Special Civil Application No.4662 of 2015, this Court relied on the aforesaid decision in Kutch District Panchayat (supra). PWD Employees Union (supra) had a similar set of facts wherein also the petitioners were denied the benefits of Resolution dated 17.10.1988 on the ground that their appointments were subsequent to the date of Resolution dated 17.10.1988. 5.2 The decision in Kutch District Panchayat (supra), was relied on in Jayantibhai Venabhai Patel vs. State of Gujarat, being Special Civil Application No.6601 of 2016, decided on 31.08.2018, in which what was under challenge was the order passed by the Commissioner, Geology and Mines Department, who had refused the benefits of Resolution dated 17.10.1988 to the petitioner of the said petition on the ground that as per the said resolution, the benefits were available only in the case where the employee was engaged prior to 01.10.1988. In other words, in that case also the benefits under Resolution dated 17.10.1988 came to be denied on the ground that the petitioner had started the service as daily-rated Peon after 01.10.1988, which was on 19.10.1988. The said petition was allowed. 6. In view of the above position of law, the ground on which the petitioner is denied the benefits of Resolution dated 17.10.1988, cannot sustain in eye of law as the competent authority has refused the benefits on the footing that the petitioner was appointed subsequent to 01.10.1988. This cut-off date is illegal. The employees whether employed prior to the date of Resolution dated 17.10.1988 or subsequently employed, are entitled in uniform way to the benefits emanating from the said Resolution on the basis of completion of requisite length of their service. The petitioners could not be denied the benefits. 7. As a result of the above discussion, the petitioner shall be granted the benefits of State Government Resolution dated 17.10.1988. He shall be treated to be permanent upon completion of ten years of service and regular pay-scales shall be extended to him. The petitioner shall further be extended all retirement benefits after 30.06.2016, being the date on which the petitioner reached the age of superannuation. The necessary benefits flowing by virtue of the present order shall be paid to the petitioner within a period of eight weeks from the date of receipt of the writ of this order. The petition stands allowed accordingly. Rule is made absolute in the aforesaid terms.