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Gujarat High Court · body

2020 DIGILAW 311 (GUJ)

Aarti Vajubhai Thummar v. State of Gujarat

2020-02-18

BIREN VAISHNAV

body2020
JUDGMENT : 1. In this petition, under Article 226 of the Constitution of India, the prayers of the petitioners read as under: “(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; (i) to direct the respondents to grant benefits of Government Resolution dated 17.10.1988 to the petitioners as adopted by the Forest Department vide circular dated 15.9.2014 and the petitioners be treated as permanent employees after completion of five years of service and be given all the benefits of permanent employees including fix pay on the date of petitioners completed 5 years of service; (ii) to direct respondents to extend all the benefits fix pay in favour of the petitioners from the date they completed five years of service; (iii) to direct respondents to pay difference of salary to the petitioners after placing the petitioner in pay-scale;” 2. The case of the petitioners is that they are appointed on the post of Geographic Information System Analyst-cum-Computer Operator in the Forest Department. Both the petitioners were appointed in the year 2010. 3. Mr.Dipak R. Dave, learned counsel for the petitioners would submit that the petitioners were appointed on vacant posts as Geographic Information System Analyst-cum-Computer Operators with the respondent. Initially, they had been paid Rs.10,000/- on piece rated basis, which was subsequently revised to an amount of Rs.13,000/- per month. 3.1. Drawing my attention to the communication dated 2.12.2014 / 2.1.2015, Mr.Dave would contend that in-fact, the petitioners had been working continuously from 10.00 am to 6.00 pm and therefore, their services should not be treated on the basis of computing the amount of payment made on piece-rated basis. In-fact, amount of Rs.13,000/- is being paid for discharge of duties continuously over a period of a month and not on the basis of the work actually performed by the petitioners on what is called as `piece rated system'. 3.2. Mr.Dave would invite my attention to the notice on page No.27, in support of his submission that the work is not piece rated but in-fact it is on a daily wage basis. 3.2. Mr.Dave would invite my attention to the notice on page No.27, in support of his submission that the work is not piece rated but in-fact it is on a daily wage basis. By communication dated 25.8.2010, at page No.27, what is indicated is that when the petitioners had remained absent for a period from 22.8.2010 to 24.8.2010, notice was given to them that their payment for a period of 3 days, would be deducted. This, in Mr.Dave's submission would support the stand that the work was in the nature of daily wage and not on piece rated basis. 4. Reliance is placed on a decision of this Court in Special Civil Application No.3966 of 2016 between Kulsamben Jina Shah v. State of Gujarat decided on 22.1.2020. According to Mr.Dave, keeping in mind the provisions of the Industrial Disputes Act, 1947 especially Sections 2(s), 2(rr), relying on a decision in the case of Executive Engineer (O. & M.) & Anr. V. Hareshbhai Bhurabhai Vala, reported in 2016(2) GLR 1064 , the Court opined that piece rated worker is entitled to the benefits of the resolution dated 17.10.1988. The decision in the case of Hareshbhai Bhurabhai Vala (Supra) on which, the reliance is placed in aforesaid decision in Kulsamben Jina Shah, reported in 2016(2) GLR 1064 , was placed into service. This Court referring to the decision of the Hon’ble Supreme Court and taking into consideration the definition of `Wages' as prescribed under Section 2(rr) of the Act, observed that a piece rated employee in fact deemed to be drawing wages which is deemed as remuneration under the definition of `Wages'. 5. Mr.Dave, also places reliance on a decision of the Hon’ble Supreme Court of Dhrangadhra Chemical Works Limited v. State of Saurashtra reported in AIR 1957 SC 264 , wherein, considering the definition of `Workman', the Hon’ble Supreme Court formulated a prima facie test for determination of relationship between master and servant. 6. Next decision relied upon by Mr.Dave is in case of Officer Incharge, Sub-Regional Provident Fund Office & Another v. M/s. Godavari Garments Limited reported in 2019(Law Suit) SC 1348. He has invited my attention to the relevant decision which the Hon’ble Supreme Court considered in the case of Shining Tailors v. Industrial Tribunal II, U.P., Lukcnow reported in 1983(4) SCC 464 . 7. He has invited my attention to the relevant decision which the Hon’ble Supreme Court considered in the case of Shining Tailors v. Industrial Tribunal II, U.P., Lukcnow reported in 1983(4) SCC 464 . 7. Mr.Utkarsh Sharma, learned Assistant Government Pleader vehemently opposed the petition and submitted that the petitioners are not entitled to the benefits of the Government Resolutions dated 17.10.1988 and 15.9.2014. 8. Drawing my attention to the Government Resolution dated 17.10.1988, Mr.Sharma would contend that such Government Resolution is only applicable to a daily wager. Piece rated employees cannot, therefore, by virtue of the nature of employment seek the benefit of Government Resolution dated 17.10.1988 by trying to extend the benefit from the nature of their work to term it as daily wager employment. 9. Drawing my attention to the affidavit-in-reply, Mr.Sharma submitted that the petitioners are working on a contractual basis. On the basis of a daily report submitted, for the purposes of carrying out work of imparting satellite image, they are paid @ Rs.30/- per image and on the basis of work done, the petitioners are so paid. He has relied on a computation made on 7.4.2014 wherein, in the case of one of the petitioners where on the basis of making 40 such images, @ Rs.325/- per image, the petitioners were paid Rs.13,000/- which disclosure indicates that the amount was paid on piece rated basis. 10. Mr.Dave, learned counsel for the petitioners has drawn my attention to the rejoinder. Such contentions are denied and what is submitted is that it is a mere paper arrangement made to show that the petitioners are piece rated employees. That they are given Rs.13,000/- per month as a fixed salary. 11. Considering the issue at hands, a question is whether the petitioners who are termed as `piece rated employees’ could be granted benefit of Government Resolution dated 17.10.1988 and 15.9.2014. 12. Though the documents on record including the order at page No.26 would indicate that while computing the amount that the petitioners are being paid at the concept of `piece rated’ is being adopted, initially, amount of Rs.10,000/- was subsequently enhanced to Rs.13,000/-. However, the nature of payment as `piece rated’ stands diluted from the fact of the communication dated 25.8.2010, wherein, in the case of the petitioner since they were absent for the period of 3 days, payment for the period for 3 days, had not been made. However, the nature of payment as `piece rated’ stands diluted from the fact of the communication dated 25.8.2010, wherein, in the case of the petitioner since they were absent for the period of 3 days, payment for the period for 3 days, had not been made. Obviously, therefore, it supports the stand of the petitioners that the method and mode of payment which was adopted, was mere paper arrangement and in-fact that it was fixed salary of Rs.13,000/- per month for the work carried out and which was computed on the basis of each day of work. 13. In the case of Kulsamben Jina Shah (Supra), the case whether the benefit of Government Resolution dated 17.10.1988 can be granted to an employee working on piece rated basis, was considered by this Court. It is true that for an initial period from 18.9.1989 to 17.9.2000, the petitioner in that case namely; Kulsamben was working as a daily wager, however, perusal of paragraph Nos.8 and 9 of the judgment, which when read, would indicate that considering the decision of `Workman’ as defined in Section 2(s) and `Wages' in Section 2(rr) of the Industrial Disputes Act, 1947, this Court, unequivocally held that even if the services were converted from that of a daily wager to piece rated worker, the number of days that the petitioners had rendered services on a piece rated basis, could not be ignored for the purposes of granting the benefit of the Government Resolution dated 17.10.1988. “[8.0] 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. 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 co-relation 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. 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. 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. 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. 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. [9.0] 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.” 14. That there was a master and servant relationship on the principle so decided by the Hon’ble Supreme Court in the case of Dhrangadhra Chemical Works Limited (Supra) is not disputed from the fact that the notice at page No.27 indicated that in the event, the petitioners remained absent, then, salary would be deducted. 15. On the submission of Mr.Sharma, learned AGP that the definitions under Sections 2(rr) and 2(s) cannot be imported into the dispute at hand, in terms of the provisions of the Industrial Disputes Act, 1947 while considering extending the benefit of the Government Resolution dated 17.10.1988 will also not hold good in view of the fact that while computing the benefit of the Government Resolution dated 17.10.1988, the authorities have to take into consideration provisions of Section 25 of the Industrial Disputes Act, the petitioners have to be accorded the benefits of resolution based on such calculation so made, keeping in mind the yardsticks under the provisions of the Industrial Disputes Act. Therefore, considering that the petitioners are eligible and entitled to the benefit of the Government Resolution dated 17.10.1988 and 15.9.2014 and holding that the action of denial of such benefits that they are working as piece rated, is bad, the petitioners are held to be eligible for the benefit of the Government Resolution dated 17.10.1988. 16. It will be in the fitness of the things to direct the respondents to consider the case of the petitioners for extending the benefits of Government Resolution dated 17.10.1988 and 15.9.2014 as per the law enunciated by the Hon'ble 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. 17. On the basis of their having completed the number of working days which shall be on the basis of they having working as Daily Wagers, their case shall be considered. Such exercise shall be completed by the respondents preferably within a period of Eight Weeks from the date of receipt of the order. 18. With the aforesaid observations and directions, this petition is disposed of. Rule is made absolute to the aforesaid extent. Direct Service is permitted.