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2022 DIGILAW 556 (GUJ)

PRAKASH SHANABHAI BARIA v. STATE OF GUJARAT

2022-04-20

BIREN VAISHNAV

body2022
JUDGMENT : BIREN VAISHNAV, J. 1. RULE returnable forthwith. Mr.Kurven Desai learned AGP waives service of notice of Rule on behalf of the respondent nos.1 and 6 and Mr.Alkesh Shah learned advocate waives service of notice of Rule on behalf of the respondent nos.2 to 5. 2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing. 3. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for a direction that he be granted the benefits of 6th and 7th pay commission. 4. As pointed out by Mr.Dipak Dave learned advocate for the petitioner, a proposal for granting such benefits of 6th and 7th pay commission benefits is pending before the concerned respondent viz. Sardar Sarovar Narmada Nigam Limited and a decision on the proposal shall be taken within a period of eight weeks from the date of receipt of copy of this order. 5. The other prayer in the petition is that the respondents be directed to take necessary steps and cover the case of the petitioner in the GPF scheme. 6. It is the stand of the respondents that since the proposal of regularization was sent by the department on 24.11.2014, which was post 01.04.2005, the petitioner’s case would be governed by the new pension scheme. 7. Facts in brief would indicate that the petitioner was working as a wire-man with the Sardar Sarovar Narmada Nigam Limited. He prayed for the benefits of the resolution dated 17.10.1988. A demand was raised for such benefits before the Labour Court, Godhara, in Reference No.2 of 2005. 8. Pending the demand, his services were terminated. The Labour Court, rejected the reference which prompted the petitioner to approach this Court by filing Special Civil Application No.8818 of 2009. The coordinate bench of this court vide an oral judgment dated 11.10.2013 held as under: “6. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that, the Labour Court has erred in recording reasoning that, since at the time of initial engagement of the petitioner, no procedure was followed, he was not entitled to the benefit as per the policy of the Government as contained in the Government Resolution dated 17.10.1988. It is not in dispute that, with a view to see that a daily wager appointed by the Authorities of the Government does not remain a daily wager even after years and decades, the Government in its wisdom had appointed a Committee headed by a Minister to suggest measures in that regard and on the recommendations of such Committee, after careful consideration, it was resolved by the Government that, a daily wager, on completion of certain years of service, shall be paid wages at the minimum of the pay-scale which is otherwise given to a regular employees, and after certain years of service thereafter, he will start earning yearly increments, etc. It is also not in dispute that in all departments of the Government, more particularly in Public Works Department (now separately known as Roads & Building and Irrigation Department) and also in Forest Department, because of the field requirement, hundreds and thousands of such persons were engaged, for whom this policy was formulated by the Government, and further that, even now such appointments are being made. If the object and reason of this policy is kept in view, the reasons recorded by the Labour Court, that since procedure was not followed, the petitioner cannot be extended benefits of this Resolution, goes to the very root of the matter, to the extent of scrapping the policy itself, since there is no procedure which is followed at the time of engaging such daily wagers. Under these circumstances, the reason recorded by the Labour Court needs to be interfered with. It also needs to be recorded that, the benefit which is asked for by the petitioner, and which is denied by the Labour Court, is that benefit, which is extended to thousands of similarly situated workmen, including to the workmen under the administrative control of the present respondent Authorities. Under these circumstances, denial of the benefits of Government Resolution dated 17.10.1988 to the present petitioner would not only be against the policy of the Government, but would be discriminatory treatment to the petitioner. Under these circumstances, denial of the benefits of Government Resolution dated 17.10.1988 to the present petitioner would not only be against the policy of the Government, but would be discriminatory treatment to the petitioner. It also needs to be recorded that, the view of the Labour Court that, since at the time of engagement of the petitioner no procedure was followed, he is not entitled to claim benefits, can also not be sustained, in view of the settled position of law, as observed by Hon'ble the Supreme Court of India in the case of Bhartiya Seva Samaj Trust (supra), that no authority can take advantage of its own wrong, to content that since he (the employer) had not followed due procedure, the workman is not entitled to any benefits. Further, as observed by Hon'ble the Supreme Court of India in the case of Maharashtra State Road Transport Corporation (supra), a daily wager cannot be asked to be a daily wager for decades. Be it noted that in the preset case, the petitioner is working since 24.11.1988, and thus, by this time he has put in about 25 years of service. Further, so far applicability of the Government Resolution in question dated 17.10.1988 is concerned, Hon'ble the Supreme Court of India has made it clear in the case of State of Gujarat and Ors. vs. PWD Employees Union & Ors. (supra), that no exception be made with regard to the extension of benefits of the Government Resolution dated 17.10.1988. Keeping all these aspects in view, this Court finds that the petitioner is entitled to get benefits of Government Resolution dated 17.10.1988 and the denial by the Labour Court is illegal, which needs to be set aside. 7. For the reasons recorded above, this petition is allowed and following order is passed and directions are given. A. The impugned award of the Labour Court is quashed and set aside and the petitioner is held to be entitled to the benefits under the Government Resolution dated 17.10.1988. B. The respondent Authorities are directed to extend all the benefits flowing from the Government Resolution dated 17.10.1988 to the petitioner, considering 24.11.1988 as his initial date of appointment, as a Wireman. C. The petitioner shall be paid arrears and all consequential benefits, within a period of three months from today. B. The respondent Authorities are directed to extend all the benefits flowing from the Government Resolution dated 17.10.1988 to the petitioner, considering 24.11.1988 as his initial date of appointment, as a Wireman. C. The petitioner shall be paid arrears and all consequential benefits, within a period of three months from today. While calculating and making payment of the arrears, the amount which is already paid to the petitioner for the relevant period, shall be adjusted. D. The petitioner is also held to be entitled for the wages for the period during which he was illegally kept out of service. The said period is indicated to be from 28.12.2006 to 20.10.2008. Respondents are directed to make payment of wages to the petitioner for the said period as well. Rule made absolute, with no order as to costs. Rule made absolute, with no order as to costs.” 9. Reading para 7 of the judgment would indicate that this Court quashed the award of the Labour Court and categorically held that the petitioner is entitled to the benefits of the Government Resolution dated 17.10.1988. A further direction was issued that such benefits be extended to the petitioner considering 24.11.1988 as his initial date of appointment as wireman. Arrears were directed to be paid within a period of three months from the date of the judgment. Letters Patent Appeal filed before the Division Bench was dismissed. Accordingly, a proposal for compliance of the order of this Court was sent by the office of the Board on 24.11.2014. Taking that as the relevant date, as is evident from the letter dated 18.01.2017, the Board was of the opinion that the petitioner would be governed by the new pension scheme and a proposal was accordingly forwarded to the Director of Pension and Provident Fund. 10. Mr.Deepak Dave learned counsel for the petitioner would rely on a decision rendered by this Court in Special Civil Application No.8155 of 2019. Considering almost the similar issue on whether the petitioner would be entitled to the GPF scheme, the Court held as under: “7. 10. Mr.Deepak Dave learned counsel for the petitioner would rely on a decision rendered by this Court in Special Civil Application No.8155 of 2019. Considering almost the similar issue on whether the petitioner would be entitled to the GPF scheme, the Court held as under: “7. Considering the issue at hand, what is undisputed on the basis of the orders of reinstatement issued in case of the respective petitioners is that the petitioners were granted the benefit of the Government Resolution dated 17.10.1988 on completion of five years and 14.10.1987 in the case of petitioner nos.1 and 2 and on completion of 10 years on 14.10.1992 in case of petitioner nos.1 and 2 and 14.03.1989 and 15.03.1994 respectively in case of the petitioner no.3. 8. Therefore in line with the decision of the Supreme Court in case of The State of Gujarat v. PWD and Forest Employees Union & Ors. rendered in Civil Appeal Nos.1684-1686 of 2019, the Supreme Court discussed the benefits of the resolution dated 17.10.1988 in context of the resolution, the Supreme Court held as under: “12. The appellant has, in the written submissions, generally accepted the position given above. However, the appellant has given this acceptance subject to following exceptions: (i) In the category mentioned at Serial Nos. 3, 4, 5 and 6, every worker is not entitled to the pay scale mentioned by them as per GR dated October 17, 1988 or in the corresponding scale on October 29, 2010 because once they become permanent, they will have to be fitted in the job description in terms of the Gujarat Civil Services (Revision of Pay) Rules, 2009 (hereinafter referred to as the ‘Rules’) as revised from time to time and not by Minimum Wages Act. Any anomaly within the same job description between people who have been regularly appointed and these workers of the respondent union would mean that everybody else will ask for it not only in this department, but other department of Government will have great difficulty in adhering to it. The pay scale mentioned in Serial Nos. 3, 4, 5 and 6 cannot be applied across the board. (ii) The old Pension Scheme has been scrapped by the Government and Contributory Pension Fund (CPF) Scheme/New Pension Scheme (NPS) has been introduced with effect from April 01, 2005. The pay scale mentioned in Serial Nos. 3, 4, 5 and 6 cannot be applied across the board. (ii) The old Pension Scheme has been scrapped by the Government and Contributory Pension Fund (CPF) Scheme/New Pension Scheme (NPS) has been introduced with effect from April 01, 2005. Therefore, CPF Scheme/NPS has been made applicable under the GR dated September 15, 2014, and the benefits of the same are being granted to the workers of the respondent union. (iii) Similarly, the old General Provident Fund (GPF) Scheme has been scrapped by the Government and CPF Scheme has been introduced with effect from April 01, 2005. Therefore, CPF Scheme has been made applicable, and the benefits of the same are being granted to the workers of the respondent union. (iv) The worker is given benefit of past services considering the earlier period on which he worked for more than 240 days in a year. (v) The GR dated October 17, 1988 provides for 14 days of casual leave including 2 days of voluntary leave/optional leave. However, due to inadvertent translation errors, the judgment passed by this Court directed 14 days of casual leave in addition to 2 days of voluntary leave/optional leave. Therefore, the GR dated September 15, 2014 has incorporated the two days of voluntary leave/restricted leave and 12 days of casual leave which is applicable to all Government employees. 13. Having regard to the above, we are confining our discussion to the aforesaid exceptions taken by the appellant. In the first instance, it is pointed out by the appellant that even if the respondents become permanent, they would be entitled to be fitted in the job description in terms of the Rules. What is emphasised is that even after regularisation, their pay scales cannot be more than the pay which is given to the employees who are taken on permanent basis. This appears to be a very sound argument. The only plea was that whatever is given to such employees in other departments, same benefit be extended to the respondents as well. It is difficult to countenance this submission which we find to be legally impermissible. That is hardly any justifiable response to rebut the same. It is to be kept in mind that members of respondent union were all engaged on daily wage basis. It is difficult to countenance this submission which we find to be legally impermissible. That is hardly any justifiable response to rebut the same. It is to be kept in mind that members of respondent union were all engaged on daily wage basis. No doubt, the appellant Government decided to confer certain benefits upon these daily wage workers depending upon the number of years of service they put in. Judgment dated July 09, 2013 proceeds on that basis. Under certain circumstances, namely, on completion of specified number of years of service on daily wage basis, these daily wage workers are entitled to become permanent. On attaining the status of permanency/regular employees, they become at par with those employees who were appointed on permanent basis from beginning, after undergoing the proper selection procedure on proving their merit. These daily wagers cannot be given the pay scales which are even better than the pay scales given to regularly appointed employees. The Rules are statutory in nature which have been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution. On becoming permanent, such daily wagers can, at the most, claim that they be fitted in the job descriptions in terms of the said pay rules and their pay be fixed accordingly. The appellant is ready to do that. We, therefore, accept the plea mentioned in exception (i) above. 14. Insofar as plea at paras (ii) and (iii) is concerned, the appellant intends to deny the benefit of GPF on the ground that w.e.f. April 01, 2005, CPF Scheme/NPS has been introduced. However, on that basis, all such employees cannot be denied the benefit of GPF. The earlier pension scheme continues to annued to the benefit of those who enter the service before April 01, 2005. Therefore, all those daily wagers who become entitled to get the status of regular/permanent employees before April 01, 2005 has to be given the benefit of GPF. To put it otherwise, April 01, 2005 would be treated as cut-off date. All those persons who would be entitled to regularisation/permanent status prior to April 01, 2005 shall be given the benefit of earlier scheme i.e. GPF. However, those who attain this status after April 01, 2005 shall be governed by CPF Scheme/NPS. 9. To put it otherwise, April 01, 2005 would be treated as cut-off date. All those persons who would be entitled to regularisation/permanent status prior to April 01, 2005 shall be given the benefit of earlier scheme i.e. GPF. However, those who attain this status after April 01, 2005 shall be governed by CPF Scheme/NPS. 9. Reading para 14 categorically indicates that the earlier pension scheme continues to enure to the benefits of those who enter service before 01.04.2005. Admittedly, the case of the petitioners is governed by the observations made by the Supreme Court as referred to herein above and having entered service prior to the cut off of date of 01.04.2005, the petitioners are entitled to the benefits of the earliest GPF scheme. 10. Accordingly, the order dated 28.10.2018 is quashed and set aside and the petitioners be given the benefits of the GPF scheme in accordance with the observations of the Supreme Court in case of PWD and Forest Employees Union (supra) within a period of 10 weeks from the date of receipt of copy of this order. 11. The petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. Direct service is permitted.” 11. Admittedly, as categorically observed in the oral judgment of this Court dated 11.10.2013, that for the purposes of extending the benefits of the resolution dated 17.10.1988, the petitioner’s initial date of appointment i.e. 24.11.1988 has to be considered. The stand of the respondents that the petitioner shall be governed by the new pension scheme is contrary to law. 12. The petition is allowed. The respondents are directed to consider the case of the petitioner for being governed under the GPF scheme and pass orders accordingly. Consequential effect to the prayer with regard to merger of DA and re-fixation of pay shall be considered on the petitioner being made the beneficiary of the GPF scheme. The compliance for the purposes of extending the benefits of GPF shall be within a period of 10 weeks from the date of receipt of copy of this order. Rule is made absolute.