JUDGMENT : 1. Rule returnable forthwith. Mr.Ishan G. Joshi, learned Assistant Government Pleader waives service of notice of Rule for the respondent – State. 2. With the consent of the parties, the matter is taken up for final hearing. 3. The case of the petitioner is that the father of the petitioner was serving with the respondent No.2 with effect from 25.10.1996. He was illegally terminated on 31.3.2004. The termination was challenged in reference (LCR) No.291 of 2006. By an award dated 15.4.2008, the labour Court directed that the father of the petitioner was reinstated in service with continuity of service and 25% back wages. The award was challenged by filing Special Civil Application No.13927 of 2008. The award of the labour Court was confirmed except the part of back wages. In other words, the award so-far-as reinstatement of continuity of service was upheld. This Court in Special Civil Application No.13927 of 2008 was passed following order on 19.7.2010 : “1. As common questions on law and facts are involved in this group of petitions, they are disposed of by this common judgment. 2. In this group of petitions, the petitioner State has challenged the impugned award passed by the Labour Court, whereby the Labour Court has directed the petitioner State to reinstate the respondent workmen with continuity in service and back wages. 3. The short facts of the case are that the respondent workmen at the relevant time were working as rojmadar with the petitioner State since last four years. The petitioner without assigning any reasons, dismissed the respondent workmen from the service. Being aggrieved by the said order of dismissal, the respondent workmen raised an industrial dispute which was ultimately referred to the Labour Court for adjudication. Before the Labour Court both the parties adduced evidence and after appreciating the material produced before it, the Labour Court passed the impugned awards with the aforesaid directions. Hence, these petitions. 4. Heard learned counsel for the respective parties and perused the documents on record. The main question that comes up for consideration before this Court in the present group of petitions is whether 'Irrigation Department' of the State can be termed as 'Industry' under the provisions of Section 2(j) of the Industrial Disputes Act, [“the Act” for short]. 5. 4. Heard learned counsel for the respective parties and perused the documents on record. The main question that comes up for consideration before this Court in the present group of petitions is whether 'Irrigation Department' of the State can be termed as 'Industry' under the provisions of Section 2(j) of the Industrial Disputes Act, [“the Act” for short]. 5. The aforesaid issue is squarely covered by the Full Bench Decision of this Court in the case of Gujarat Forest Producers, Gatherers & Forest Workers Union v. State of Gujarat reported in 2004(2) GLR 1488 , wherein the Court has observed as under : “Ques. Whether Forest Department of the “State” is an industry or not? Ans : The activity of Irrigation and Canal Works undertaken by the Narmada Water Resources and Water Supply Department is an “industry” under Section 2(j) of the Act.” 6. In view of the aforesaid Full Bench Decision, the respondents herein were also employed in the said department of the petitioner State. Therefore, as per the principle laid down in the aforesaid decision, the respondent workmen shall be entitled for reinstatement in service. 7. So far as the question of back wages is concerned, the Labour Court has not given any cogent reasons for awarding back wages to the respondent workmen. In view of the principle laid down by the Apex Court in the case of Ram Ashrey Singh v. Ram Bux Singh reported in (2003) II L.L.J. 176 a workman has no automatic entitlement to back wages since it is discretionary and has to be dealt with in accordance with the facts and circumstances of each case. Similar principle has been laid down by the Apex Court in the case of General Manager, Haryana Roadways v. Rudhan Singh reported in J.T. 2005(6) SC 137 : [ 2005(5) SCC 591 ], wherein it has been held that an order for payment of back wages should not be passed in a mechanical manner but a host of factors are to be taken into consideration before passing any such order. 8. It would also be relevant to refer to a decision of the Apex Court in the case of A.P. State Road Transport & Ors. 8. It would also be relevant to refer to a decision of the Apex Court in the case of A.P. State Road Transport & Ors. v. Abdul Kareem reported in (2005) 6 SCC 36 , wherein it has been held that a workman is not entitled to any consequential relief on reinstatement as a matter of course unless specifically directed by forum granting reinstatement. In above view of the matter, I am of the opinion that the respondent cannot be said to be entitled for back wages. 9. In the result, the petitions are partly allowed. The impugned award qua back wages is quashed and set aside. The award qua reinstatement is confirmed. The petitioner is directed to pay wages on the basis of the continuity in service, after 30 days from the date of impugned award, within a period of six weeks from today. The petitioner shall reinstate the respondent workmen on or before 01.09.2010. The award of the Labour Court is modified accordingly. Rule is made absolute to the aforesaid extent with no order as to costs.” 4. The petitioner's father was reinstated in service with effect from 1.5.2011. Since the petitioner's father was denied the benefit of Government Resolution dated 17.10.1988, he approached this Court by filing Special Civil Application No.1606 of 2016. On 13.8.2018, this Court allowed the petition with the following direction. Relevant paragraph No.3 reproduced hereunder: “3. The stand taken by the respondent State Government in its communication referred hereinabove is not tenable in view of the fact that the issue with respect to completion of 240 days in a calender year is decided and concluded by judicial pronouncement by the learned Labour Court as well as by this Court. The question with respect to extension of benefit of Government Resolution dated 17.10.1988 to the petitioners is concerned, the stand taken by the respondent State Government that the petitioners have joined the services as daily wager employees after 17.10.1988 is also decided by the learned Division Bench of this Court vide its Judgment dated 04.04.2014 in Letters Patent Appeal No.2404 of 2018 in Special Civil Application No.12504 of 2016. Paragraph 20 onwards, the learned Division Bench has discussed the contention which was raised before the learned Division Bench with respect to applicability of Government Resolution dated 17.10.1988 in a cases of a daily wager employees those who have joined subsequent to the date of Government Resolution. Since this issue is already decided by the learned Division Bench of this Court, the stand taken by the respondent State Government in the present petition cannot be accepted.” 5. From the communication dated 29.8.2019 and the impugned communication dated 16.12.2019, the petitioner's case for appointment on compassionate basis in accordance with the Government Resolution dated 5.7.2011 has been rejected on the ground that since the petitioner's father was a daily wager, the benefit of compensation and the resolution of 5.7.2011 is not applicable to the petitioner. 6. The stand of the respondent apparently appears to be contrary to the record. From the service records, it is apparent that the petitioner's father was working as a daily wager since 1996. On his succeeding before the labour Court pursuant to termination, the petitioner's father was reinstated with continuity of service. When he approached this Court for being given the benefit of Government Resolution dated 17.10.1988, this Court, on 13.8.2018 categorically held that the petitioner's father was eligible to be extended the benefit of the Government Resolution dated 17.10.1988. From the communication dated 29.8.2019, it is apparent that the petitioner's father, in October, 2012, had completed 10 years of service and was granted the benefit of Government Resolution dated 17.10.1988. In view of this, it cannot be said that the status of the petitioner's father was a `Daily Wager' and, therefore, that way, he is entitled to the benefit of Government Resolution dated 5.7.2011. 7. This Court in a decision rendered in Special Civil Application No.1795/2013 dated 7.10.2016 has held that there cannot be any distinction between a Daily Wager and a Casual Worker. Learned counsel relied upon a decision of State of Gujarat & Anr Vs. Mahendrakumar Bhagvandas @ Anr., reported in 2011(2) G.L.R. page 1290 and submitted that distinction as made out in the impugned order in the present petition is misconceived. 8. Such order dated 7.10.2016 passed in Special Civil Application No.1795 of 2013 was confirmed in Letters Patent Appeal No.1234 of 2017 dated 4.8.2017. For the sake of convenience, such order dated 4.8.2017 is reproduced hereunder: “1. 8. Such order dated 7.10.2016 passed in Special Civil Application No.1795 of 2013 was confirmed in Letters Patent Appeal No.1234 of 2017 dated 4.8.2017. For the sake of convenience, such order dated 4.8.2017 is reproduced hereunder: “1. This Letters Patent Appeal is filed under Clause 15 of the Letters Patent by the present respondent original petitioner in Special Civil Application No.1795 of 2013, aggrieved by the order dated 07.10.2016 passed by the learned Single Judge. 2. Special Civil Application was filed by the present respondent original petitioner with the prayers, which read as under: “(A) This Honourable Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to quash and set aside the order dated 26.06.2012 passed by the Respondents (Annexure: A). Also be pleased to direct the respondents to give the benefit of the government resolution dtd. 05/07/2011 (Annexure : E) by holding that deceased was regular employee. (B) Pending Hearing and final disposal of this petition, this Hon'ble court may be pleased to stay the order dated 26/06/2012 passed by the Respondents and direct the respondents to deposit the compensation before this Hon'ble court. (C) Be pleased to pass such other and further relief that is just, fit and expedient in the facts and circumstances of the case;” 3. The learned Single Judge vide order dated 07.10.2016 allowed the petition by quashing the order dated 26.06.2012 passed by the appellant No.2, Executive Engineer, City (R&B) Division, Rajkot and issued directions to the appellants herein to consider the case of the respondent herein for grant of lumpsum compensation as per the Government Resolution dated 5.7.2011, in accordance with law, within a period of two months form the date of receipt of copy of the judgment. 4. Necessary facts, in nutshell, for the purpose of this appeal are as under: 4.1 Father of the respondent herein was working with the appellant No.1 department at Rajkot ever since 1981, as a daily wager. By an order dated 20.3.2008, passed by the appellant No.2, father of the respondent herein was made permanent with effect from 1.1.1986. Unfortunately, he died in harness on 11.7.2011. By an order dated 20.3.2008, passed by the appellant No.2, father of the respondent herein was made permanent with effect from 1.1.1986. Unfortunately, he died in harness on 11.7.2011. There is a policy in the State Government which is ordered by way of Government Resolution dated 5.7.2011 for payment of compensation to the family of the deceased government employees, who die in harness. 4.2 The present respondent original petitioner made an application in the month of September, 2011, for grant of lumpsum compensation. He has claimed that he is the only son and dependent on his father, as such, he is entitled for compensation as per the Government Resolution dated 5.7.2011. The claim of the present respondent original petitioner was rejected by the appellant No.2 vide order dated 26.6.2012 on the sole ground that the respondent is not entitled for lumpsum compensation as per Government Resolution dated 5.7.2011 as his father was a daily wager and the scheme is not applicable to daily wagers. Thereafter also, several representations were made by the original petitioner. However, ultimately, when such representations were not considered, he approached this Court. 4.3 In the Special Civil Application preferred before the learned Single Judge, the appellants have filed reply affidavit. Mainly the claim of the original petitioner was opposed on the ground that as per clause 2 of Government Resolution dated 5.7.2011, the present respondent is not entitled for lumpsum compensation. It is the case of the appellants that the respondent is not regularly recruited person by following the procedure and, as such, he is not entitled for compensation as per Government Resolution dated 5.7.2011. The learned Single Judge, mainly relying on the judgment of the Division Bench of this Court in the case of State of Gujarat & Anr Vs. Mahendrakumar Bhagvandas @ Anr., reported in 2011(2) G.L.R. page 1290, has allowed the petition by giving directions to consider the claim of respondent by setting aside the order dated 26.06.2012 passed by the appellant No.2 herein. 5. Even in this appeal, it is contended by learned Assistant Government Pleader appearing for the appellants that daily wage employees, whose services are regularized, cannot be equated to the employees, who are regularly appointed. 5. Even in this appeal, it is contended by learned Assistant Government Pleader appearing for the appellants that daily wage employees, whose services are regularized, cannot be equated to the employees, who are regularly appointed. It is submitted that as much as deceased father of the present respondent was not regularly appointed by following the procedure prescribed for recruitment, he is not entitled for compensation as per Government Resolution dated 5.7.2011. Learned counsel has also placed reliance on the judgment of the learned Single Judge of this Court in support of his case in the case of Govindbhai Madhabhai Vaghela Vs. Director, Pension and Provident Fund & Anr., reported in 2004(1) G.L.H. Page 129. 6. On the other hand, it is submitted by the learned counsel appearing for the respondent that with regard to regularization, the matter went upto the Hon'ble Supreme Court and thereafter, orders were passed for regularizing the services of the late father of the respondent herein and once he is appointed and regularized in service, there cannot be any discrimination between the employees, who are regularly appointed and who are initially appointed on daily wages and later regularized. It is further submitted that as the learned Single Judge has placed reliance on the judgment of the Division Bench of this Court in the case of State of Gujarat and Anr. Vs. Mahendrakumar Bhagvandas & Anr. reported in 2011(2) G.L.R. Page 1290, there is no error committed by the learned Single Judge warranting interference in this appeal filed under clause 15 of the Letters Patent. 7. Having heard the learned counsel appearing for the parties, we have perused the material on record and the order passed by the learned Single Judge. 8. In this case, it is not in dispute that late father of the respondent herein was initially appointed as a daily wager and thereafter, his services were regularized vide order dated 28.03.2008. A copy of such order is also placed on record. As per the terms of the said order, it is made clear that late father of the respondent herein would be entitled to the benefits of regular employees including retiral benefits, seniority, etc. There is also specific observation that in the event of a proposal for resignation, notice of resignation also should be issued before tendering the resignation. Further, we have also perused the Government Resolution dated 5.7.2011. There is also specific observation that in the event of a proposal for resignation, notice of resignation also should be issued before tendering the resignation. Further, we have also perused the Government Resolution dated 5.7.2011. While it is true that para 3 clause 2 of the Government Resolution dated 5.7.2011 states that such scheme of paying compensation amount is applicable to the employees, who are regularly recruited persons, but there is a specific clause which excludes applicability of the scheme to the category of persons namely, daily wager, casual worker, apprentice, adhoc, contract or reemployment. If both the clauses are conjointly read, it is clear that this scheme is to be extended to all the persons, who are on regular services on the date of death of the deceased employee. As the scheme itself is a beneficial scheme for the employees, who die in harness, the respondent herein cannot be denied the same on the ground that late father of the respondent was initially recruited as a daily wager. While it is also true that initially late father of the respondent was appointed as a daily wager in the year 1981, after considering his length of services, his services were regularized with effect from 1.1.1986, extending all the benefits payable to regular employees vide order dated 28.3.2008 passed by the appellant No.2 herein. If the conditions of regularisation order given while appointing the late father of the respondent herein are considered, with reference to various clauses under the scheme of the Government Resolution dated 5.7.2011, we are of the view that the respondent herein is entitled for all the benefits. Moreover, the Division Bench of this Court in the judgment in the case of State of Gujarat & Anr. V. Mahendrakumar Bhagvandas & Anr., reported in 2011(2) GLR 1290 has held in paragraph No.5 as under: “5. ...Once the employees concerned were, in fact, treated for all purposes as permanent employees in terms of G.R. Dated 17.10.1988, any discrimination or denial of benefits for a segment of such employees, who were subsequently rebranded as “daily wager” (rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of the Constitution. Nor can the State Government legally take away the rights conferred and benefits, already accorded to the employees concerned by or under a subsequent government resolution, which expressly supersedes earlier instructions and not earlier G.R. dated 17.10.1988 by which the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 years would be made permanent under G.R. dated 17.10.1988 but subsequently rebranded and treated as a daily wager. The submission of learned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and that they were at best “permanent daily wage employees”, is contradictory and has no backing of any legal provision or precedent. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder.” 9. Learned Assistant Government Pleader has placed reliance on the judgment of the learned Single Judge of this Court in the case of Govindbhai Madhabhai Vaghela Vs. Director, Pension and Provident Fund & Anr. reported in 2004(1) G.L.H. page 129, where the learned Single Judge has held that a daily wager cannot be said to be holding the post in the State Government and in view of the statutory rules, service rendered as daily wage employee cannot be treated as pensionable service nor can such service be counted for computation of pension. Having regard to the facts, we are of the view that said judgment relied on by the learned Assistant Government Pleader would not have any assistance in support of his case. 10. For the aforesaid reasons, we do not find any reason to interfere with the findings recorded by the learned Single Judge in this appeal. The appeal being devoid of any merits is dismissed with no order as to costs. Consequently, Civil Application stands disposed of.” 9. Under the circumstances, the impugned communication dated 16.12.2019 by the respondent No.2 is hereby quashed and set aside. Thereby, the respondents are directed to consider the case of the petitioner in accordance with the Scheme by virtue of the Government Resolution dated 5.7.2011 on the basis of his being eligible as if the communication dated 16.12.2019 is non-existent preferably within a period of Six Weeks from the date of receipt of writ of this order. 10. Thereby, the respondents are directed to consider the case of the petitioner in accordance with the Scheme by virtue of the Government Resolution dated 5.7.2011 on the basis of his being eligible as if the communication dated 16.12.2019 is non-existent preferably within a period of Six Weeks from the date of receipt of writ of this order. 10. With the aforesaid directions and observations, the petition stands disposed of with no order as to costs. Rule is made absolute to the aforesaid extent. Direct Service is permitted.