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2020 DIGILAW 107 (GUJ)

State of Gujarat v. Bhagvanbhai Amrabhai Damor

2020-01-21

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : A.J. SHASTRI, J. 1. The present Letters Patent Appeal under Clause 15 of the Letters Patent is filed against the judgment and order passed by the learned Single Judge dated 08.04.2019 in Special Civil Application No. 1942 of 2019 whereby the petition filed by original petitioner respondent herein came to be allowed. 2. The background is that the original petitioner respondent herein continuously worked under the present appellant – authorities from 04.05.1990 to 30.06.2016 as a Watchman-cum-Sweeper. Despite the aforesaid long service record, the original petitioner, respondent herein, was not granted benefits of Government Resolution dated 17.10.1988. It was the case of original petitioner, respondent herein, that other similarly situated persons even junior to the original petitioner, respondent herein, have been extended such benefits. In the year 1996, the original petitioner, respondent herein, was terminated, on account of which, a reference was registered before the Labour Court being Reference (LCG) No.70 of 1996. After considering the relevant material, the concerned Labour Court was pleased to allow the reference and an award came to be passed on 30.09.2006 reinstating the petitioner with 25% back wages. The award passed in favour of original petitioner, respondent herein, was challenged further by the appellant – authorities by a Special Civil Application No.11491 of 2007. After hearing the parties, this Court was pleased to partly allow the petition by setting aside the direction with regard to back wages but the rest of the award was not interfered with. As a result of this, the original petitioner's service was treated as continuous. 3. It is the case of the original petitioner, respondent herein, that by that time the similarly situated employees had approached this Court by way of Special Civil Application No.17874 of 2013. This Court was pleased to direct the authorities to grant and extend the benefits to those petitioners of Government Resolution dated 17.10.1988 against which the appellant – authorities preferred Letters Patent Appeal which came to be dismissed. Now, the grievance of the original petitioner respondent herein was that he is better placed than the petitioners junior to him, yet the benefit had not been made available. Aggrieved by the said discriminatory treatment, the original petitioner respondent herein approached this Court by way of petition, claiming the following reliefs: “8. Now, the grievance of the original petitioner respondent herein was that he is better placed than the petitioners junior to him, yet the benefit had not been made available. Aggrieved by the said discriminatory treatment, the original petitioner respondent herein approached this Court by way of petition, claiming the following reliefs: “8. (A) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction to (i) 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) direct 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) 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) 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; (B) Pending the admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to direct the respondents to immediately fix the pension of the petitioner; (C) Any other and further relief or reliefs to which this Hon'ble Court deemed fit, in the interest of justice; may kindly be granted;” 4. The original petition came to be heard by the learned Single Judge at length who was pleased to allow the petition by judgment and order dated 08.04.2019. It was held that the original petitioner, respondent herein, is entitled to seek the benefits of Government Resolution dated 17.10.1988. The operative part of the said order is reproduced hereinafter: “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. 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.” 5. It is this order, passed by the learned Single Judge, which is the subject matter of the present Letters Patent Appeal before us. 6. Ms. Nisha Thakore, learned Assistant Government Pleader for the appellant – authorities has vehemently contended that the learned Single Judge has committed a serious error in not considering the spirit and object of Government Resolution dated 17.10.1988. A bare reading of the said Government Resolution does not permit automatic extension of benefits. Looking into the track record of the original petitioner, respondent herein, such benefits are not amenable. It has been submitted that the learned Single Judge has given undue emphasis upon the decision delivered by this Court referred to in the order, but has erroneously come to the conclusion that the cut off date is illegal, though the same was not under challenge. Ms. Thakore, learned Assistant Government Pleader has further submitted that a serious error has been committed by the learned Single Judge in passing the order to the effect that the original petitioner, respondent herein, is ordered to be treated as a permanent employee instead of granting benefits under Government Resolution dated 17.10.1988. That being so, such erroneous order does not deserve to stand in the eyes of the law. Ms. Thakore, learned Assistant Government Pleader has submitted that there is a non-application of mind on the part of the learned Single Judge in not examining the relevant judgments at length and the controversy arose in those proceedings. Ms. Thakore, learned Assistant Government Pleader has submitted that the original petitioner, respondent herein, otherwise has been granted all retirement benefits on account of reaching the age of superannuation. If this order is allowed to be implemented, a serious financial implications will be imposed on the appellant – authorities. Resultantly, the Letters Patent Appeal is requested to be allowed. Ms. Thakore, learned Assistant Government Pleader has submitted that the original petitioner, respondent herein, otherwise has been granted all retirement benefits on account of reaching the age of superannuation. If this order is allowed to be implemented, a serious financial implications will be imposed on the appellant – authorities. Resultantly, the Letters Patent Appeal is requested to be allowed. No other submissions have been made. 7. Having heard Ms. Nisha Thakore, learned Assistant Government Pleader on behalf of the appellant – authorities and having gone through the order passed by the learned Single Judge at length and the material placed before us ex facie, it appears that while passing the impugned order the learned Single Judge has not only considered the factual background at length but has also evaluated the proposition of law laid down by this Court in similarly situated petitions. It is visible from that record that undisputedly the juniors to the original petitioner respondent herein have been extended such benefits and therefore, there is no earthy reason found from the record to deprive original petitioner respondent herein from such benefits. In fact, the learned Single Judge appears to have gone through the spirit of the Government Resolution dated 17.10.1988 and has thus issued directions. The relevant observations are based upon the decision delivered by this Court in an identical situation, we also deem proper to reproduce hereinafter, rightly considered by the learned Single Judge: “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. 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 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. Besides this, in the affidavit in reply at page-47 Courts attention was drawn to indicate that 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. 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.” 8. In the light of aforesaid situation, one additional factor which cannot be lost sight of, is that while examining the award passed by the learned Presiding Officer of the Labour Court and while modifying it, this Court has not disturbed the rest of the award. The only modification is to the extent of back wages and with regard to that, the original petitioner, respondent herein, is justifiably extended such benefits, prayed for especially when his juniors are already getting such benefits. We see no infirmity in the order passed by the learned Single Judge. 9. Additionally, we are also of the opinion that no better submission or distinguishable material has been placed before us, to make us look at the issue from a different angle. In such circumstance when the learned Single Judge has properly construed the relevant resolution and relied upon the observation made by other similarly situated cases, we see no reason to interfere with the view taken by the learned Single Judge. We are benefited by the relevant observation contained in paragraph No.5 of a decision delivered by the Apex Court in the case of The Management of Narendra & Company Private Limited versus The workmen of Narendra & Company reported in 2016 (3) SCC 340 . We are benefited by the relevant observation contained in paragraph No.5 of a decision delivered by the Apex Court in the case of The Management of Narendra & Company Private Limited versus The workmen of Narendra & Company reported in 2016 (3) SCC 340 . Considering such proposition of law in the absence of any other view being possible we are unable to accept the appeal filed by the State. Resultantly, since the appeal lacks merit, the same is dismissed accordingly with no order as to costs. 10. In view of the order passed in main matter, Civil Application does not survive and stands dismissed accordingly.