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2020 DIGILAW 123 (GUJ)

Kulsamben Jina Shah v. State of Gujart

2020-01-22

A.S.SUPEHIA

body2020
JUDGMENT : 1. In the present writ petition, the petitioner has, inter alia, prayed for the following relief’s; (A) Your Lordships be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the impugned letter dated 2.11.2015 issued by the respondent No. 5 denying the petitioner the benefits as contained in Government Resolution dated 17.10.1988 as per the decision of the Hon'ble Supreme Court of India dated 9.7.2013 as arbitrary, unreasonable, irrational, bad in law and , thus, violative of Articles 14,16, 21 and 23 of the Constitution of India and quashing and setting aside the same; (B) Your Lordships may be pleased to issue a writ of mandamus commanding the respondent authorities to extend the benefits as contained in Government Resolution dated 17.10.1988, as per the decision of the Hon'ble Supreme Court of India dated 9.7.2013 (reported in 2013(8)scale 579) to the petitioner from the date she became eligible for such benefits with all the consequential benefits, including arrears of pay and allowances. 2. During the pendency of the writ petition, it is reported by the learned Senior Counsel Mr. Mehta that the petitioner has already retired from the service on 09.05.2017, which is communicated vide communication dated 06.05.2017. The said communication dated 06.05.2017 is ordered to be taken on record. 3. It is the case of the petitioner that though she was working as a daily wager since 1989, she has not conferred the benefits of the Government Resolution dated 17.10.1988 as per the law enunciated by the Supreme Court in the case of State of Gujarat & Ors. v. PWD Employees' Union & Ors., reported in (2013) 12 SCC 417 and subsequent judgment of the Supreme in the case of State of Gujarat & Ors. v. PWD and Forest Union and Ors, reported in 2019 (3) scale 462. 4. Learned Senior Counsel Mr. Shalin Mehta appearing for the petitioner has submitted that the petitioner is denied the benefits arising out of the Government Resolution dated 17.10.1988 only on the ground that her services, from 29.10.2010 is treated, as piece rated basis and hence, she would not be entitled to such benefits as per Government Resolution dated 17.10.1988. 4. Learned Senior Counsel Mr. Shalin Mehta appearing for the petitioner has submitted that the petitioner is denied the benefits arising out of the Government Resolution dated 17.10.1988 only on the ground that her services, from 29.10.2010 is treated, as piece rated basis and hence, she would not be entitled to such benefits as per Government Resolution dated 17.10.1988. He has placed reliance on the judgment passed in Special Civil Application No. 4589 of 2005 in the case of Executive Engineer (O. & M.) & Anr v. Hareshbhai Bhurabhai Vala, reported in 2016 (2) GLR 1064 . It is submitted that the mode and manner of the payment to workmen, cannot alter his/her status and therefore the petitioner is required to be considered as a daily wager and hence she would be entitled to the benefits arising out of the Government Resolution dated 17.10.1988. 5. Per contra learned Assistant Government Pleader Mr. Dhawan Jayswal, while supporting the affidavit filed by the respondent authority, has submitted that looking to the status of the petitioner, she is not entitled to the benefits of the Government Resolution dated 17.10.1988 as she was engaged on piece rated basis and hence, she cannot be termed as a daily wager. He has submitted that the petitioner cannot be treated as a daily wager as she is engaged for specific term for specific work. It is submitted by the learned Assistant Government Pleader that the petitioner has been working since 18.09.2000 till she retired and the benefits arising out of the Government Resolution dated 17.10.1988 cannot be conferred to the piece rated worker. 6. I have heard the learned advocates for the respective parties. The State authority do not dispute about the applicability of the Government Resolution dated 17.10.1988 to the daily wagers, who are working under the respondent-State authority. The petitioner is denied the benefits arising from the Government Resolution dated 17.10.1988 for the reasons that she has been engaged as a piece rated worker since 17.09.2000. The information provided by the respondent-State authorities, which is signed by the Range Forest Officer, Mudi, Additional Conservator of Forest, Surendranagar as well as the Deputy Conservator of Forest, Surendranagar reveal the tenure of the petitioner. The aforesaid statement is signed by the Officers and are not disputed by the respondents. 7. The information provided by the respondent-State authorities, which is signed by the Range Forest Officer, Mudi, Additional Conservator of Forest, Surendranagar as well as the Deputy Conservator of Forest, Surendranagar reveal the tenure of the petitioner. The aforesaid statement is signed by the Officers and are not disputed by the respondents. 7. A bare glance of the statement providing the details of the service rendered by the petitioner is that the petitioner was appointed on 18.09.1989 as a daily wager and she worked till 17.09.2000. The petitioner has rendered more than 10 years service. However, it appears that her status has been converted to the piece rated worker and the data about the working days are not revealed in the aforesaid statement except for the period from 18.09.2005 to 17.09.2006. Thus, as per the statement provided by the respondent-State authority, the working days of the petitioner are not recorded though she has been working on the piece rated basis. It is the case of the respondent-State authority that since the petitioner is working for less than eight hours on the piece rated basis, she is not entitled to the benefits of the Government Resolution dated 17.10.1988. The respondent State authority is unable to point out any documents from the record, which requires non-recording of the days of a piece rated worker even if such worker is engaged on that day. A piece rated worker cannot be treated as if they have not worked at all, because of the work assigned to him/her. The status of the petitioner being a daily wager has been altered to piece rated employee from the 2001 onwards. The petitioner vide communication dated 03.09.2015 has specifically stated that though she was engaged from 2001 onwards till 2014 as a piece rated worker and has actually worked for 240 days but such days are not considered/recorded by the respondent-State authority. Hence, her subsequent service is totally wiped out, as it appears that the authorities have not maintained the record. 8. In the considered opinion of this Court, the respondent-State authority cannot neglect the actual days of working even of a piece rated worker by totally ignoring their work for which they are engaged. Hence, her subsequent service is totally wiped out, as it appears that the authorities have not maintained the record. 8. In the considered opinion of this Court, the respondent-State authority cannot neglect the actual days of working even of a piece rated worker by totally ignoring their work for which they are engaged. Thus, by adopting such a modus operandi, the respondent State authority have, in fact, snatched away the status of the petitioner as a daily wager by converting the services from daily wager from 2001 to piece rated worker, resulting into denial of pension. It appears that the respondents has altered the status from daily wager to piece rated worker without informing her. Being a model employer it is expected that the respondent authority should inform their employees about the repercussion of their change of status from daily wager to piece rated worker as such alteration affects their future prospectus of pay, pension etc, which arise out the resolution dated 17.10.1988. The respondent State authority cannot totally disregard his/her engagement as a piece rated worker by ignoring the days on which the work is assigned. The Coordinate Bench of this Court in the case of Hareshbhai Bhurabhai Vala (supra), while considering the service of piece rated worker basis has observed thus; 11.2 However, other documents, more particularly the vouchers under which the respondent workman was paid by the petitioner board for period after July 1990 should be taken into account. It is noticed that several vouchers were placed on record before the learned Labour Court and said vouchers demonstrate that the petitioner board made payments to the respondent workman under and by way of those vouchers. The amounts paid to the respondent workman are of different quantum. Certain documents purporting to be the bills raised by the respondent workman are placed on record. However, on closer scrutiny, it comes out that any link or connection corelation between the said bills and vouchers is not established. Besides this, mode of payment alone and that too in absence of the contract or letter of appointment/engagement cannot determine status and character of employment and the employee. 12. The petitioner board claims that after 28.7.1990, the respondent workman was engaged on contract basis and he was working as contractor and was executing the typing work on piece rate basis. Besides this, mode of payment alone and that too in absence of the contract or letter of appointment/engagement cannot determine status and character of employment and the employee. 12. The petitioner board claims that after 28.7.1990, the respondent workman was engaged on contract basis and he was working as contractor and was executing the typing work on piece rate basis. 12.1 The petitioner board claimed, through its witness, that when earlier existing contract came to an end, the petitioner board had made an inquiry and the rate quoted by the respondent workman was found to be lower than the rate quoted under the existing contract and that therefore, the decision to assign typing work on contract basis to the respondent workman was taken and accordingly, he was engaged on contract basis and thereafter, the respondent rendered his service for typing work on contract basis and he was paid on piece rate basis. 15. At this stage, it is appropriate to take into account the definition of the term "workman" as defined under Section 2(s) of the Act. The definition of said term takes in its fold "any person who is employed to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, ....". When the said definition is taken into account, then, it emerges that the respondent herein was rendering skilled service as steno/typist and he was engaged for executing skilled work assigned to him by the petitioner. His services were availed in lieu of payment and remuneration for the service rendered by the respondent was paid to him by the petitioner. The definition also includes engagement or employment of a person even in case where the terms of employment are implied. Thus, in view of the definition and in light of facts of present case, more particularly in light of the fact that the respondent was engaged for "manual/skilled" work of similar nature for which he was engaged before 28.7.1990 the petitioner's submission that after 28.7.1990 the respondent herein was not a workman of the petitioner cannot be accepted and the learned Labour Court has not committed any error in rejecting the said defence or contention of the petitioner. 16. 16. It would also be appropriate to consider the said definition of the term "workman" along with the definition of the term "wages" as prescribed under Section 2(rr) of the Act. According to the said definition, "wages means all remuneration capable of being expressed in terms of money which are paid on fulfilment of terms of employment, expressed or implied would be termed as "wages" but it would not include any bonus or contribution to provident fund or gratuity payable on termination of service. Thus, the amounts/remuneration paid to the respondent for the period after 28.7.1990 for the work executed by him would fall within the term "wages" and consequently, it would be "wages" paid to a "workman". Under the circumstances, the decision by the learned Labour Court treating the amount/remuneration paid to the respondent as wages and the recipient of the said wages as workman cannot be faulted. 9. Thus, the remuneration of the petitioner as a piece rated worker would fall within the definition of term “wages" as prescribed under of the Industrial Disputes Act, 1947 (for short the ID, Act) and her remuneration as a piece rated worker is covered under the definition of wages as define under Section 2(rr) of the ID Act. The impugned order dated 02.11.2015 is hereby quashed and set aside and the respondent authorities are directed to confer the benefits of the Government Resolution dated 17.10.1988 to the petitioner, as per the law enunciated by the Supreme Court in the case of PWD Employees' Union & Ors., reported in (2013) 12 SCC 417 and subsequent judgment in the case of PWD and Forest Union and Ors, reported in 2019 (3) scale 462. Appropriate orders conferring the benefits arising out of the Government Resolution dated 17.10.1988 shall be passed within the period of two months from the date of receipt of the writ of this Court. 10. In this view of the matter, the writ petition is disposed of. Rule made absolute.