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2019 DIGILAW 355 (GUJ)

Jyoti Sangh v. State of Gujarat

2019-04-09

A.Y.KOGJE

body2019
JUDGMENT : 1. RULE. Learned AGP Mr.Dhawan Jayswal waives service of Rule on behalf of respondent Nos.1 and 2 and learned Advocate Mr.Rashmin Makwana waives service of Rule on behalf of respondent Nos.5 and 6. 2. This petition under Article 226 of the Constitution of India is seeking direction to the State authorities to comply with the requisition made by the petitioners for reimbursement of compensation paid to the respondent-workmen as per the award of the Labour Court confirmed by this Court in an industrial dispute. 3. It is the case of the petitioners that petitioner No.1 is a Public Charitable Trust and a Nongovernmental Organization, which was implementing a benevolent scheme of the State Government by running a Family Welfare Centre financed by the State Government. After running the Family Welfare Centre known as Urban Health Centre for some time, for certain reasons, the Centre was closed down, as a result, the employees of the Trust, who were specially employed for the purpose of implementing the welfare scheme, filed proceedings under the provisions of Industrial Disputes Act, where the Labour Court ruled in favour of such employees. The Trust challenged the award of the Labour Court before this Court and succeeded before learned Single Judge of this court. The respondents-employees filed LPA, which reversed the order of the learned Single Judge and confirmed the order of the Labour Court and thereby confirmed lump sum compensation awarded by the Labour Court to the respondents-employees. The respondents-employees have been paid according to the judgment of the Division Bench in LPA and thereafter, petitioners have claimed reimbursement from the State Government. 4. Learned Senior Advocate for the petitioners submitted that the employees, who are respondent Nos.3 to 7 in the present petition, were employed by the petitioners specifically for the purpose of implementing the scheme of the State Government. The petitioners used to run family welfare project known as Urban Health Centre, which was project of the Central Government, running through the State Government. The State used to provide grant for running the Centre pursuant to resolution dated 26.12.1966. The petitioners were selected after following due process recommended by the duly constituted committee and approval of the State Government. Under the scheme, the petitioners are required to submit progress report as well as salary bills of its employees who were functioning under the project. The State used to provide grant for running the Centre pursuant to resolution dated 26.12.1966. The petitioners were selected after following due process recommended by the duly constituted committee and approval of the State Government. Under the scheme, the petitioners are required to submit progress report as well as salary bills of its employees who were functioning under the project. The State Government used to release grant on such submission of salary bills. 4.1 It is submitted that the Centre which was being operated at Kalupur was ordered to be shifted to Rajpur in the year 2004 by the State Government. The petitioners therefore though wanted to shift the work under the scheme to the place identified by the State Government at Rajpur, respondent Nos.3 to 7, who were employees of the Trust under the Scheme did not accede to the request of the petitioners and thereafter, the Centre was required to be closed. 4.2 It is submitted that the respondents raised industrial dispute and the Labour Court considered all the aspects and held the respondents-employees to be the workmen of the petitioner and also, after recognizing that the Centre is closed, instead of ordering reinstatement, passed an order of paying lump sum compensation. 4.3 It is submitted that the matter travelled till the Supreme Court and the Supreme Court held that it is open for the petitioners to claim reimbursement of the compensation paid to respondent Nos.3 to 7 from the State. 4.4 It is submitted that it is for the purpose of scheme and under the frame of the scheme that respondent Nos.3 to 7 were engaged and therefore, any liability arising on their count is the responsibility of the State Government. Learned Senior Advocate for the petitioners drew attention of the Court to relevant portion of the scheme, more particularly appendix, which provided for salaries of the employees who were to be engaged to carry out object of the scheme. Learned Senior Advocate for the petitioners drew attention of the Court to relevant portion of the scheme, more particularly appendix, which provided for salaries of the employees who were to be engaged to carry out object of the scheme. 4.5 Learned Senior Advocate for the petitioners drew attention of this Court to the communications to indicate that the on-going scheme at the place where the petitioners were originally called upon to run the scheme was ordered to be changed to another location and despite efforts made by the petitioners, employees were reluctant to shift to new place and therefore, in a situation beyond the control of the petitioners, the petitioners had to close down the Centre and therefore, dispute arising out of this issue ought to be treated as responsibility of the State Government under the scheme. It is submitted that the only claim led is that of the compensation awarded by the Labour Court. 4.6 Learned Senior Advocate for the petitioners relied upon judgment of the Division Bench of this Court in the case of K.K.Shah-Convener Family Planning Centre Vs. Bhagwanji T.Karia dated 21.07.2004 in LPA No.822 of 1997, wherein, in identical set of circumstances, the State Government was called upon to reimburse the payment of gratuity which was ordered by the controlling authority in favour of the employees who was employed under the Family Planning Centre of Indian Medical Association, Gujarat Branch. 4.7 Learned Senior Advocate for the petitioners also relied upon judgment of Division Bench of this Court in the case of Sauratshtra University & Ors. Vs. Harshkant Shashikant Joshi & Ors. in LPA No.1298 of 2015 dated 20.07.2016 to contend that in case of an employee of University, the State Government was held responsible to make payment to the employee who was employed in the post of Laboratory Assistance as per particular pay scale. 5. As against this, learned AGP strongly opposed grant of the petition by relying upon the affidavit on behalf of the respondents. It is submitted that respondent Nos.3 to 7 cannot be termed to be directly in service of the State, but are employees of the petitioners. It is submitted that employer-workmen relationship between the petitioners and respondent Nos.3 to 7 is well established in view of the judgment in LPA, confirmed by the Supreme Court and therefore, financial liability of respondent Nos.3 to 7 has to be borne by the petitioner-Trust. It is submitted that employer-workmen relationship between the petitioners and respondent Nos.3 to 7 is well established in view of the judgment in LPA, confirmed by the Supreme Court and therefore, financial liability of respondent Nos.3 to 7 has to be borne by the petitioner-Trust. 5.1 It is submitted that as per the scheme, the petitioners have to run the Centre and then claim reimbursement. Where the Centre is closed and no work under the scheme is undertaken, the petitioners cannot claim any reimbursement. The compensation awarded by the Labour Court cannot be termed to be pursuant to the work undertaken by the petitioner as per the welfare scheme and therefore, will not assume colour of reimbursement. 5.2 Learned AGP drew attention of this Court to relevant paragraphs of the judgment of the Division Bench in LPA, more particularly para-6 and submitted that though contention was taken regarding liability of the State Government in the Labour Court proceedings, the same have not been upheld by the Division Bench and therefore, the responsibility, primarily of the petitioner-Trust, cannot be passed on to the State Government. 5.3 Learned AGP also submitted that the petitioners have not issued any consent letter ('Sanmati Patrak'), which is the requirement under the scheme for claiming reimbursement. 6. Learned Advocate Mr.Makwana for the respondents submitted that respondent Nos.3 to 7 have received lump sum compensation from the petitioners as directed to their satisfaction. 7. The Court has taken into consideration the rival submissions and the documents on record. It is not in dispute that the petitioners were performing under the welfare scheme by grant-in-aid after being selected by due process and on the recommendation of the duly constituted committee and approval of the State Government. The object of payment of grant-in-aid insofar as present issue is concerned, was establishment of Family Planning Centres, Depotholders, clinics, organizing family planning orientation training camps,, organizing family planning exhibitions, reservation of beds for sterilization, sterilization camps /IUCD camps and other activities leading to family planning as may be approved by the State Government. The scheme also provided for powers to sanction grant-in-aid. The scheme also provided for certain conditions for operation of grant-in-aid. The appendix to the grant-in-aid provided for expenditure and pattern of assistance available to the voluntary organizations for implementation of the family programme. This expenditure included nonrecurring and recurring expenditure. The scheme also provided for powers to sanction grant-in-aid. The scheme also provided for certain conditions for operation of grant-in-aid. The appendix to the grant-in-aid provided for expenditure and pattern of assistance available to the voluntary organizations for implementation of the family programme. This expenditure included nonrecurring and recurring expenditure. The recurring expenditure included employing services of Medical Officers, Family Planning Extension Educator-male/female, Family Planning Welfare Workers-male/female, store keeper-cum-accountant, attendant. 8. It appears that the scheme was under the State Government and the State Government entered into correspondences with the petitioner-Trust instructing it to shift from work base from particular place to another location. The communications are on record, particularly communication dated 05.07.2004 issued by the implementing authority, viz. Ahmedabad Municipal Corporation to shift the Centre to Rakhiyal from Kalupur. Upon this insistence of shifting from Kalupur to Rakhiyal, the petitioners appear to have instructed its employeesrespondent Nos.3 to 7, which was not accepted by them and therefore, Civil Suit No.530 of 2005 came to be filed by those employees against shifting of the employees under the scheme. It appears that notice of motion-Exhs.7 and 18 came to be dismissed. 9. The issue of consent letter ('Sanmati Patrak'), which according to the respondents was necessary to be issued for claiming reimbursement, does not appear to have been issued. However, such non-issuance of consent letter ('Sanmati Patrak') cannot be held against the petitioners. The scheme relied upon by learned AGP, which is at Annexure-R1/2 refers to issuance of 'Sanmati Patrak' under the signatures of trustees to the concerned Commissioner through the Corporation. Attention was also drawn to contents of Annexure-R1 that nothing can be claimed under grant in aid code as a matter of right. The matter of 'Sanmati Patrak' was agitated by respondent Nos.3 to 7 by filing SCA No.4212 of 2005, where respondent Nos.3 to 7 had sought direction to the petitioners for issuance of 'Sanmati Patrak' to the Government for release of grant to run the Centre which came to be disposed of on the ground of Article 12 of the Constitution of India. However, it was observed that the Government authorities to take steps to find out reason for not sending such 'Sanmati Patrak'. However, it was observed that the Government authorities to take steps to find out reason for not sending such 'Sanmati Patrak'. In the year 2004, the petitioners were asked to shift their Centre to Rakhiyal, but the same was not done on account of respondent Nos.3 to 7 not agreeing to it and therefore, apparently, no work under the scheme was undertaken and therefore, it can be said that the petitioners were justified in not sending 'Sanmati Patrak' as required under the scheme and rightly so. The fact of not sending 'Sanmati Patrak' therefore cannot be held against the petitioners in the present dispute. 10. The Court has taken into consideration the scheme and its operation and it can be safely concluded that respondent Nos.3 to 7 were appointed under the scheme for the purpose of fulfilling objective of welfare scheme. The Court has also considered the observations of the Apex Court in its order dated 06.11.2015, which read as under:- “Since Mr.Dushyant Dave, learned senior counsel appearing for the petitioner, states that the petitioner was only operating a Government Scheme, in which the services of the contesting private respondents came to be utilized, it is always open to the petitioner to approach the Government for reimbursement of whatever compensation that may be paid to the private respondents as awarded and confirmed by the Division Bench of the High Court.” 10.1 This Court in case of K.K.Shah-Convener Family Planning Centre (supra) has held as under:- “1. The Appellant–original petitioner–Family Planning Centre, Indian Medical Association, Gujarat Branch, Ashram Road, Ahmedabad, had filed Special Civil Application No.5349 of 1984, before this Court under Article 226 of the Constitution and challenged the impugned order dated 23.8.1984, passed by the Appellate Authority, confirming the impugned order dated 30.4.1982, passed by the Controlling Authority, in favour of the original respondent No.1 Shri Bhagwanji T. Karia, whereby the Controlling Authority held that the payment of Gratuity Act, 1972, was applicable to the petitioner Institution and it was ordered to pay the gratuity of Rs.6252/- to the original respondent No.1. The Appellant-original petitioner had also prayed in its writ petition to issue a writ of mandamus or any other writ, order or direction, directing the respondents No.2 & 3, the Director of Family Planning and the Secretary, Panchayat and Health Department, Government of Gujarat respectively, to make payment of gratuity payable to the respondent No.1 and to further direct them to make the Grant available to the petitioner Institution in respect of any lawful liability arising out of the Labour Legislations in respect of the employees of the Family Planning Centre run by the Institution. 7. We have already narrated the relevant grounds of this Appeal hereinabove. The only prayer survives in this Appeal is to direct the State Government to reimburse the payment of gratuity. The similar prayer was granted by the learned Single Judge of this Court in the case of SAMUEL JOSEPH (supra) and the said Judgment is accepted by the State Government and not carried in Appeal, as informed by the office, then in our considered opinion the present Appeal is required to be allowed. 8. Accordingly, this Appeal is allowed in terms of the Judgment of the learned Single Judge of this Court in SAMUEL JOSEPH (Supra) reported in 1996 (1) GLH 518 and the prayer : 9(b) of the writ petition No.5349 of 1984 is granted. The Appeal is allowed accordingly. No order as to costs.” 10.2 In the case of Harshkant Shashikant Joshi & Ors (supra), in paras-8 and 9, it is observed as under:- “8. ….. In the facts of the present case, when the State Government has given the grant to the appellant–University and University has made the payment to the petitioner, it is not proper on the part of the learned Single Judge to observe that it is open for the State Government to take appropriate steps against the University and in giving direction to the University to make the payment from its own fund if the State Government would not be making any payment to the University. At this stage, it is required to be observed that the State Government has not challenged the order passed by the learned Single Judge by filing an appeal. Learned Single Judge has also observed that it is not permissible to recover the amount of salary paid to the petitioner on the basis of various decisions rendered by the Hon’ble Supreme Court. Learned Single Judge has also observed that it is not permissible to recover the amount of salary paid to the petitioner on the basis of various decisions rendered by the Hon’ble Supreme Court. Such findings are not challenged by the State Government by filing an appeal. 9. We are of the opinion that once the Local Audit Fund has sanctioned the pay-scale, thereafter the said office has wrongly raised an objection with regard to grant of pay-scale and recovery of amount from the petitioner. We are also of the opinion that once the appellant University was receiving grant from the State Government, the University cannot be directed to pay the retiral benefits to the petitioner from its own fund and when the amount of salary has been actually paid to the petitioner, the State Government cannot be permitted to recover the said amount from the appellant University. 11. In view of the foregoing reasons, this Court is of the view that salaries of respondent Nos.3 to 7 were paid under the scheme from the grant in aid funds and the decision rendered by the Labour Court, confirmed till the Supreme Court was also in connection with the petitioners' rendering their services under the scheme. Therefore, any liability arising out of the relation between the petitioners and respondent Nos.3 to 7 is liability arising under the scheme. Nothing is on record to indicate that the claim that was made by respondent Nos.3 to 7 was beyond operation of the scheme under grant in aid and therefore, compensation now paid by the petitioners to respondent Nos.3 to 7 is required to be reimbursed by the State to the petitioners. Such exercise of reimbursement upon verification be undertaken and concluded within a period of eight (8) weeks from the date of receipt of copy of this order. The petition is allowed in the aforesaid terms. Rule is made absolute. No order as to costs.