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2020 DIGILAW 838 (GUJ)

MAHESH TULSIDAS AGARWAT v. STATE OF GUJARAT

2020-10-07

ASHUTOSH J.SHASTRI

body2020
ORDER : 1. Rule. Learned Assistant Government Pleader waives service of Notice of Rule on behalf of respondents. 2. The present group of petitions filed under Article 226 of the Constitution of India essentially for seeking benefits flowing from Government Resolution dated 17th October, 1988 and challenged to the denial of the same on the premise that petitioners have been appointed after the said resolution. Since all these petitions are arising out of common issue, a request is made by the learned advocates appearing for both the sides to examine and decide this group of petitions by common judgment and order and accordingly, upon request since the issue involved in the petition is identical, this group is being dealt with by the present common judgment and order by treating Special Civil Application No.7629 of 2020 as a lead matter. 3. In this group of petitions, facts are almost similar but the respective date of appointment and the chronology of events may slightly differ and as such, Court would like to summarize in the following manner: (i) So far as lead matter is concerned i.e. Special Civil Application No.7629 of 2020, the petitioner was originally appointed in the year 1991 as a labourer and was illegally terminated from the services in the year 2004, which has given rise to the proceedings before the Labour Court, Rajkot in the form of reference after failure report having been submitted. The said reference was registered as LCJ No.21 of 2009, which came to be partly allowed by an award dated 31st December, 2014, directing the respondents to reinstate the petitioner, of course without back-wages with continuity of services. This award passed by the learned Presiding Officer of the Labour Court was challenged by the respondents by filing Special Civil Application No.15939 of 2015, but the same came to be summarily dismissed by judgment and order dated 08.11.2016. It is only after that the respondent no.1 sent a communication on 13.12.2017 to the respondent no.2, instructing to reinstate the petitioner as per the award in origin reinstatement has been given but the benefits flowing from Government Resolution dated 17th October, 1988 have been denied only on the ground that petitioner’s appointment was after the Government Resolution dated 17.10.1988, which has laid the petitioner to approach this Court by way of present application. (ii) Similar is the case with respect to Special Civil Application No.3070 of 2020, in which the petitioner was appointed in the year 1989, came to be terminated in the year 2000, to challenge the termination by way of filing a reference being LCR No.55 of 2007, which came to be allowed on 06.05.2008, directing respondents to reinstate the petitioner with continuity of service and 10% back-wages. This award was challenged by the respondents by filing Special Civil Application No.2191 of 2009, which came to be partly allowed vide order dated 04.02.2013, whereby the reinstatement and continuity of service came to be confirmed but the back-wages came to be denied. The petitioner, pursuant to the aforesaid order, came to be reinstated but denied the benefit of Government Resolution dated 17th October, 1988 on the ground that his appointment is after the Government Resolution dated 17th October, 1988. (iii) Same is the case with Special Civil Application No.2828 of 2020, in which also, the petitioner came to be appointed in 1990, was illegally terminated on 01.08.1998, which has resulted into filing of reference being LCR No. 59 of 2007 before the Labour Court, Rajkot, which came to be allowed on 06.05.2008. Feeling aggrieved by the same, respondents approach the High Court by way of filing Special Civil Application No.2187 of 2009, which came to be disposed of vide judgment and order dated 04.02.2013, whereby the reinstatement and continuity came to be confirmed but the award of labour Court was set aside qua back-wages part. However, after the reinstatement, pursuant to the aforesaid disposal of petition, the petitioner was denied the benefit flowing from Government Resolution dated 17.10.1988, on the premise that he came to be appointed after the aforesaid Resolution date. (iv) In so far as the Special Civil Application No.3093 of 2020 is concerned here also the petitioner was appointed in 1990, was illegally terminated on 01.08.1998, which has resulted into filing of Reference being LCR No.56 of 2007 before the Labour Court, Rajkot, which came to be allowed on 06.05.2008, directing the respondents to reinstate the petitioner with continuity of service and 10% back wages. This was also challenged by way of Special Civil Application No.2191 of 2009, in which the petition came to be partly allowed vide judgment and order dated 04.02.2013, in which the order of reinstatement and continuity came to be confirmed but the back-wages were denied and qua that the award came to be set aside. Pursuant to the disposal of petition, the petitioner came to be reinstated, but is denied of benefits flowing from Government Resolution dated 17.10.1988, on the premise that he came to be appointed after the date of aforesaid Resolution. (v) Identically is the case with Special Civil Application No.3510 of 2020, in which also the petitioner came to be originally appointed in the year 1990, was illegally terminated in the year 1998, which has resulted in filing of reference being LCR No.68 of 2007 before the Labour Court, Rajkot, the reference came to be allowed vide award dated 06.05.2008, directing the respondent to reinstate petitioner with continuity of service and 10% back wages. This was also challenged way of Special Civil Application No. 2192 of 2009 by the respondents, which came to be disposed of vide order dated 04.02.2013, whereby the reinstatement and continuity came to be confirmed but award so far as backwages is concerned came to be set aside and here also the petitioner after reinstatement, pursuant to the order of the High Court, was denied the benefit of Government Resolution dated 17.10.1988, on the premise that he came to be appointed after the date of Resolution. (vi) Similar is the position with respect to the petitioner of Special Civil Application No.8561 of 2020, in which also the petitioner was appointed in 1992 as a labourer, illegally terminated in 2004, which has resulted into filing of reference being LCJ No.23 of 2009, which came to be partly allowed vide award dated 31.12.2014, directing respondents to reinstate petitioner with continuity of service but without back wages. This award of reinstatement and continuity came to be challenged by the respondents by filing writ petition being Special Civil Application No.15941 of 2015, which came to be summarily dismissed on 08.11.2016 and later on, pursuant to the aforesaid disposal of the petition, the petitioner came to be reinstated on 13.12.2017. However, he has been denied the benefit flowing from Government Resolution dated 17.10.1988 merely on the ground that his appointment is after the date of aforesaid resolution. 4. However, he has been denied the benefit flowing from Government Resolution dated 17.10.1988 merely on the ground that his appointment is after the date of aforesaid resolution. 4. So in all these petitions, the respective petitioners have been denied the benefit flowing from Government Resolution dated 17.10.1988 only on the ground that their respective appointments have been made after the date of Resolution and as such, since substantial issue of this nature has arisen upon the request of learned advocates, the Court has taken up the hearing of all the petitions with the consent of learned advocates and the common submissions have been made by both the sides in a lead matter i.e. Special Civil Application No.7629 of 2020. 5. Mr.Krishnan M. Ghavariya, learned advocate appearing for the petitioners has vehemently contended that the action on the part of the respondent-authority in denying the benefit of Government Resolution is ex facie, arbitrary, illegal and resulting into miscarriage of justice. The denial of benefit on the premise that the petitioners have been appointed after the date of resolution itself is unfair and discriminatory in nature. On the contrary, according to Mr.Ghavariya, if this stand of authority is allowed to be operated, then there will be not only a heart burning to the petitioners but similarly situated employees, who are working exactly on the same terms are on one hand getting the benefit whereas the petitioners could be deprived of which action itself is violative of Articles 14 and 16 of the Constitution of India. Mr. Ghavariya, the learned advocate has further submitted that in this department itself, there are several employees exactly similar to the petitioners, are getting benefit of this Government Resolution, whereas petitioners have been denied arbitrarily and this lame excuse, which has been given by authority in not extending the benefit has been on the contrary a subject matter of challenge before the Court in past, in which after threadbare hearing, the Courts have examined the Government Resolution and have extended the benefit and as such, nongranting of benefit to the petitioners would be nothing but is a clear example of discriminatory treatment. In the lead matter, learned advocate has taken up the pleadings that this issue is no longer res integra since not only this Hon’ble Court has dealt with the issue in plethora of judgments whereas even the Apex Court has also held that denial of benefits on the ground of cut of date is only illegal but contemptuous in nature and as such by referring to paragraphs 8 and 9 of the lead petition an attention is drawn that this issue has been substantially covered. 6. In addition thereto, it has been pointed out that in this very department, several employees are getting the benefit, whereas the petitioners are not being extended, this is not only unjust but arbitrarily in nature. 7. To substantiate this submission, learned advocate Mr. Ghavariya has drawn attention of this Court to an identical issue dealt with and decided by the co-ordinate Bench of this Court in Special Civil Application No.7531 of 2018 decided on 20th August 2019 and further a decision dated 12th July 2019 passed in Special Civil Application No. 7529 of 2019 and has reiterated the contention that this is nothing but a clear discriminatory treatment which violates well recognized principles of equality and as such, has requested to allow all these petitions. 8. To meet with the aforesaid stand taken by the learned advocate for the petitioners, learned Assistant Government Pleader appearing for the respondent-authority has made an attempt to counter to these submissions and has invited an attention to some of the affidavits filed in Special Civil Application Nos.8561 and 7629 of 2020 and thereby contended that this Government Resolution dated 17.10.2018 is an independent Resolution, having exclusive existence and operation of it is prevailing in the State of Gujarat and as such, simply because the same benefit has been extended to other employee that would not automatically entitle the petitioner to seek some benefit as a matter of right. It has further been contended that every case has its own factual matrix and therefore, independent examination of facts need to be dealt with and as such, according to the learned Assistant Government Pleader, simply because continuity of service is granted, no automatic extension of benefit be made available to the petitioners. Since these petitioners are appointed after the date of passing of Resolution, which in considered opinion, not applicable and therefore, requested to dismiss the petition. 9. Since these petitioners are appointed after the date of passing of Resolution, which in considered opinion, not applicable and therefore, requested to dismiss the petition. 9. However, after going through the decisions, which have been cited as indicated above and after perusal of the substance of it, the learned Assistant Government Pleader has candidly left it to the discretion of the Court since undisputedly the co-ordinate Bench has also dealt with this very issue in which a categorical pronouncement is made that irrespective of date of appointment the benefit of Government Resolution deserves to be extended and as such has not made any further submissions. 10. Having heard learned advocates appearing for the respective parties and having gone through the aforesaid sequence of events and factual matrix of each of the petitions, the real grievance raised by all these petitioners is that they have been denied the benefit of Government Resolution dated 17.10.1988 only on the premise that their respective appointment is after the date of Government Resolution. Now to consider this issue, the relevant proposition of law laid down by the Apex Court including co-ordinate Bench of this Court, said proposition since directly covering the issue needs to be reproduced hereinafter: “5. In Kutch District Panchayat v. Mangalbhai K.Rabari being Special Civil Application No.15670 of 2005 decided as per judgment dated 08th October,2014, in turn confirmed in Letters Patent Appeal No.1381 of 2015 decided on 04th January, 2016, it was observed and held in judgment dated 08th October,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 page47 Courts attention was drawn to indicate that G.R. Dated17/10/1988 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. 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 17th October, 1988 on the ground that their appointments were subsequent to the date of Resolution dated 17th October, 1988. 6. Therefore, the petitioner could not have been denied the benefits under the Resolution dated 17th October, 1988. He stands covered under the said Resolution for the purpose of benefits flowing therefrom and the petitioner is entitled to the same. It was not the ground to be valid in law to deny the petitioner the benefit of Resolution dated 17th October, 1988 and incidental benefits that the petitioner was appointed subsequent to the date of Resolution, that is after 17th October, 1988. It was not the ground to be valid in law to deny the petitioner the benefit of Resolution dated 17th October, 1988 and incidental benefits that the petitioner was appointed subsequent to the date of Resolution, that is after 17th October, 1988. 6.1 Resultantly, the impugned order passed by the Executive Engineer, Irrigation and Maintenance Department, Rajkot, is set aside. The respondents are directed to accord benefits to the petitioner in accordance with the conditions of Resolution dated 17.10.1988. Necessary benefits shall be paid together with the arrears to the petitioner within a period of eight weeks from the date of service of copy of the present order. Failure on the part of the respondents to pay the due amount and the benefits to the petitioner would entail interest at the rate of 6%per annum from the date of filing of the petition, that is from 07.05.2018 till actual payment. 7. The petition is allowed in the aforesaid terms. Rule is made absolute accordingly. Direct service is permitted.” 11. The aforesaid observations, which are based on the decision of Division Bench of this Court and exactly summarizing and answering the question pose before this Court without much discussing any further this Court not only as a part of judicial discipline but also in consideration of aforesaid observation is of the view that subsequent course of action and the developments in which the Government continued employing daily wagers, temporary hands irrespective of those conditions, which has given rise to a situation of litigation. Hence, in view of clarificatory Resolution, which came to be issued by the Government in respect of the aforesaid Government Resolution, the benefit is not possible to be denied to these petitioners simply because they have been appointed after the date of Government Resolution and as such, taking note of observations, which are made in paragraphs 5 and 5.1 precisely and in view of the candid submission made by the learned Assistant Government Pleader, pointing out and not disputing the aforesaid observations, the Court is left with no other alternate but to observe in the line on which the Coordinate Bench has taken a view. Accordingly the case is made out by these petitioners to seek benefit as prayed for. Accordingly the case is made out by these petitioners to seek benefit as prayed for. In the premise aforesaid and in view of the aforesaid discussion and the binding effect of the observations as indicated above, the petition deserves to be allowed and accordingly all these petitions are allowed with a directions that respondents to accord benefit to the petitioners in accordance with the conditions of Government Resolution dated 17.10.1988 and necessary due benefits shall be paid together with arrears to the petitioners within a period of 8 weeks from the date of receipt of writ of this Court and failure of the respondents to make the payment to the petitioners would entail the interest at the rate of 6% per annum from the date of filing of the petition till actual payment. 12. With these directions and observations, these petitions are allowed in aforesaid terms. Rule is made absolute. Direct service is permitted.