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2020 DIGILAW 54 (GUJ)

State of Gujarat v. Sumliben Mulabhai Dayra

2020-01-10

SONIA GOKANI

body2020
ORDER : 1. All matters since involve identical question of facts and law, they are being decided by this common oral order. The facts are drawn from Special Civil Application No. 555 of 2020. 2. The petitioner – State seeks to challenge the legality and validity of the judgment and order dated 10.10.2018 passed in Recovery Application No. 70 of 2016 by the Labour Court, Dahod, by which the Court had directed the petitioner to pay the benefit of leave encashment of Rs. 13,800/- (Rupees Thirteen Thousand Eight Hundred) with cost of Rs. 1,000/- to the respondent – workman. 3. The respondent herein is a legal heir of the Shri Mulabhai Damabhai Dayra who had filed an application under Section 33(c)(2) of the Industrial Disputes Act, 1947 (to be referred to herein after as the 'ID Act') for recovery of the leave encashment of her husband from the petitioner. This had been registered as Recovery Application No. 70 of 2016 before the Labour Court, Dahod. The husband of the present respondent was an employee of the petitioner, who joined the services as a labourer from 01.01.1971 and retired on 28.02.2002. He lastly received his salary of Rs. 926/- per month. 4. It was the respondent's request to grant all the benefits as per the Resolution dated 17.10.1988. Upon the death of the husband of the present respondent, all benefits of Gratuity, General Provident Fund (GPF), Leave Encashment etc. were needed to be given to her. He though had been granted the rest of the benefits, he had not been paid the leave encashment. It is also not in dispute that the 5th and 6th Pay Commission benefits also had been made available to the respondent and her family. The respondent herein made a request for recovery of Rs.13,800/- by way of leave encashment. 5. The reply came to be filed by the present petitioner before the Labour Court, wherein, it has objected to the same on the ground that the same has not been incorporated in the benefits which had been specifically made available in the Resolution dated 17.10.1988. The petitioner also has disputed the amount which has been claimed by the respondent. The Labour Court after allowing the adducement of evidences of both the parties, granted the benefit of leave encashment of Rs. 13,800/- along with the cost of Rs. 1,000/-. 6. The petitioner also has disputed the amount which has been claimed by the respondent. The Labour Court after allowing the adducement of evidences of both the parties, granted the benefit of leave encashment of Rs. 13,800/- along with the cost of Rs. 1,000/-. 6. This has aggrieved the petitioner who is before this Court and has urged that the daily wagers are not the government employees and therefore, are not entitled to the benefits under the Gujarat Civil Service (Revision) Pay Rules, 2009. There has to be a pre-existing benefit at the time of superannuation, otherwise all the benefits at that stage had been paid, therefore, the recovery application itself was erroneously entertained. The expression money due in its primary sense would not denote an existing debt. In the context of Section 33(C)(1) of the Industrial Disputes Act the liability since was not as yet ascertained, the Court below has failed to appreciate this vital aspect and has granted the amount. 7. It is also the say of the petitioner that the circular passed by the Narmada Irrigation and Kalpsar Department by the Gujarat Government dated 02.12.2005 made a clear distinction regarding the benefit given to the daily wagers and it is urged that the leave encashment is not contemplated therein. It is further the say of the petitioner that all these cumulatively would lead to quash and set aside the judgment and order and therefore, the following prayers are made:- “(A) Your Lordship may be pleased to admit and allow this writ petition; (B) Your Lordship may be pleased to issue a writ, order or direction in the nature of certiorari and / or any other writ in the nature of certiorari to quash and set aside the judgment and order dated 10.10.2018 passed in Recovery Application No. 70 of 2016 passed by the learned Judge, Labour Court, Dahod; (C) Pending admission, hearing and final disposal of the petition, Your Lordship may be pleased to stay, implementation, operation and execution of the judgment and order dated 10.10.2018 passed in Recovery Application No. 70 of 2016 passed by the learned Judge, Labour Court, Dahod; (D) Your Lordship may be pleased to grant such other and further relief as may be deemed fit and proper in the interest of justice.” 8. This Court has heard learned AGP Mr. Nikunj Kanara extensively, at the time of issuance of notice. This Court has heard learned AGP Mr. Nikunj Kanara extensively, at the time of issuance of notice. He, along the line of memo of petition has argued this matter and has urged that the resolution dated 17.10.1988 does not contemplate the transfer of monetary benefit of leave and therefore, the Court below has committed serious error in granting the leave encashment to the respondent. He has urged that this would require interference. He further has urged that there should not have been a recovery application under Section 33(C)(2) of the ID Act without any predetermined right of the party. 9. The Court notices that after the recovery application came to be filed under Section 33(C)(2), the Labour Court availed the opportunity to the petitioner who had filed its reply and also has taken a very plea before the Court below. The Court also took into consideration the plea and the evidence adduced before it. It has also noticed and taken into consideration various decisions to hold in favour of the respondent. 10. Apt would be to refer to the decision of this Court rendered in case of PWD Employees Union through President Saiyed Ibrahim and 18 Ors. vs. State of Gujarat through Secretary & 2 Ors. in Special Civil Application No. 5530 of 2003 and allied matters, where this Court (Coram:- Mr. G.R. Udhwani, J.) had considered the grievance of non-grant of certain benefits including the leave encashment. 11. Following the decision in case of State of Gujarat & Anr. vs. Mahendrakumar Bhagvandas & Anr., reported in 2011 (2) GLR 1290 , the Court granted the service benefits. Referring to the said decision of Mahendrakumar Bhagvandas (supara), the Division Bench by treating all original petitioners as the regular employees from their initial date of appointment, granted consequential benefits available to the government employee as per the G.R. dated 17.10.1988. The Court held that when daily rated employees are regularized in service and made permanent employees pursuant to G.R. dated 17.10.1988, such employees cannot be denied the service benefits available to regular permanent employees and such denial would be violative of Articles 14 and 16 of the Constitution of India. “3. According to G.R. dated 17.10.1988, a committee under the Chairmanship of Honourable Minister, Shri Daulatbhai Parmar, was constituted to consider conditions of service of daily rated labourers and artisans employed in several departments of the State Government. “3. According to G.R. dated 17.10.1988, a committee under the Chairmanship of Honourable Minister, Shri Daulatbhai Parmar, was constituted to consider conditions of service of daily rated labourers and artisans employed in several departments of the State Government. That committee had submitted its report and it was resolved to accept recommendations of the committee and provide several benefits to the workmen concerned with effect from 1.10.1988. Those benefits included payment of minimum wages, paid weekly holidays, medical facility and national holidays. After completion of five years of continuous service in terms of provisions of Section 25B of the Industrial Disputes Act, 1947 such daily rated employees were to be entitled to fixed monthly salary of Rs.750/with dearness allowance prevalent from time to time and few more benefits of paid holidays and leave wages as well as membership of provident fund. It is stipulated in Clause-3 of the G.R. dated 17.10.1988 that daily rated employees, who had completed, as on 1.10.1988, continuous service of ten years in terms of the provisions of Section 25B of the Industrial Disputes Act, 1947, would be treated as permanent and such permanent employees shall be entitled to the pay scale of Rs.750940/- and shall also be paid dearness allowance and house rent allowance accordingly. They would also be entitled to pension, gratuity and benefits of provident fund in accordance with prevalent rules. The age of superannuation for such permanent labourer is fixed at 60 years and the period of permanent service is to be counted as pensionable service. It is further stipulated that the employees, who had completed 15 years of service as on 1.10.1988, shall be placed in the pay scale as aforesaid and their age for retirement shall be 60 years. Such workers, who would have completed 15 years of service on 1.10.1988, were to be entitled to one increment, and the employees, who had completed 25 years of service were to be granted three increments, before fixing their wages in the pay scale on 1.10.1988. 4. Bare reading of above stipulations contained in the G.R. dated 17.10.1988 makes it crystal clear that upon completion of ten years of service, in terms of the provisions of Section 25B of the Industrial Disputes Act, 1947, on or before 1.10.1988, daily rated employees to whom the G.R. applied were to be treated as permanent employees with concomitant benefits. 4. Bare reading of above stipulations contained in the G.R. dated 17.10.1988 makes it crystal clear that upon completion of ten years of service, in terms of the provisions of Section 25B of the Industrial Disputes Act, 1947, on or before 1.10.1988, daily rated employees to whom the G.R. applied were to be treated as permanent employees with concomitant benefits. It is further clarified and resolved in clause (10) of subsequent resolution dated 18.7.1994 that the employees, who were completing 5/10/15 years of continuous service due to which whose categories would change should be immediately accorded benefits of the category in which such employees would fall. Government Resolution dated 18.7.1994 is, according to its own preamble, meant to supersede earlier instructions issued vide government resolution dated 3.11.1990. The instructions are primarily meant to regulate treatment of daily rated employees, who had completed one or more years of service on 1.10.1988, with the stipulation that such employees shall continue to be treated as daily rated employees. Detailed instructions have been issued in said government resolution for categorizing such daily rated employees and maintaining their seniority lists, as also for regulating their pension and termination of their service by way of retrenchment. At the end, in Clause 15 of the government resolution, it is stipulated that the word 'permanent' as used in G.R. dated 17.10.1988 is intended to provide protection of service but not for treating such employees on regular establishment of the government. 5. As noted earlier, subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent service are already accorded to the employees concerned in terms of G.R. dated 17.10.1988. Under such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the remaining few benefits. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the remaining few benefits. 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. 6. Letters Patent Appeal Nos.960, 961, 964 and 965 of 2001 are preferred from common oral judgment dated 6.4.2000 of learned Single Judge of this Court, inter alia, in Special Civil Application Nos.28, 64, 67 and 68 of 1988 whereby original petitioners, working under the appellants herein, were directed to be given benefits in following terms: “.................In terms of the order passed in earlier case on 23/10/1999, the respondents are directed to extend all the benefits of regular employees to the petitioner, who have been made permanent employees in regular scale of pay for more than 10 years of service. They should not be discriminated with other employees. With the aforesaid observations and direction all the petitions are allowed and accordingly disposed of...............” 7. Apparently the aforesaid resolution dated 18.7.1994 was not pressed into service when the impugned judgment dated 6.4.2000 was delivered. They should not be discriminated with other employees. With the aforesaid observations and direction all the petitions are allowed and accordingly disposed of...............” 7. Apparently the aforesaid resolution dated 18.7.1994 was not pressed into service when the impugned judgment dated 6.4.2000 was delivered. It is observed by learned Single Judge as under: “.......It appears that the Government Resolution is very clear that these petitioners who have completed more than 10 years as daily workers will be treated as permanent employees and they will get regular scale of pay. When these employees are treated as permanent employees with regular scale of pay, I do not find any reasons that they will be deprived of the benefits given to other government employees of same category. There cannot be any confusion about the Government Resolution and it is obligatory on the part of the government to extend all the benefits to these petitioners, who have been regularized on regular posts with regular scale of pay...................”” 12. This had been challenged before the Apex Court and the same had been confirmed by the Apex Court. 13. The Apex Court in case of State of Gujarat vs. PWD and Forest Employees Union, reported in 2019(3) Scale 642 has also in relation to the challenge to a common judgment of the High Court in the contempt petition had examined the benefits given to the daily waged workers on the strength of the resolution dated 17.10.1988 where the grant of earned leave is also affirmed part of the judgment. 14. The issue is no longer res-integra and already governed by all the above referred decisions. Labour Court has committed no error in granting monetary benefit of the earned leaves to each of the respondents. It is trite that this Court in exercising powers under Article 227 of the Constitution of India, is not expected to interfere unless the judgment/order/award is visited with patent error on the face of record or illegality as referred to in the decision of R.M. Yellatti vs. Assistant Executive Engineer, reported in (2006) 1 SCC 106 . Resultantly, no interference is desirable in any of the matters as the orders suffer from neither illegality nor any error going to the root of the matter. The order passed by the Labour Court is confirmed in toto. 15. Resultantly, no interference is desirable in any of the matters as the orders suffer from neither illegality nor any error going to the root of the matter. The order passed by the Labour Court is confirmed in toto. 15. Let the amount be paid within eight weeks from the date of receipt of this order, to each of the respondents. If the bank details are furnished or available, payment be made directly in their respective bank accounts by the petitioner. 16. Petitions are disposed of accordingly.