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2024 DIGILAW 1724 (GUJ)

Tayab Alarakha Laka v. State of Gujarat

2024-08-13

VAIBHAVI D.NANAVATI

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JUDGMENT : Vaibhavi D. Nanavati, J. 1. By way of present petition, the petitioner herein seeks directions qua the respondent authorities to regularize the service of the petitioner following the ratio laid down by the Hon’ble Apex Court in case of State of Gujarat & Ors. vs. PWD Employees Union & Ors., reported in 2013 (8) Scale 579 . 2. Heard Mr. Samir B. Gohil, learned advocate appearing for the petitioner and Ms. Nidhi Vyas, learned AGP appearing for the respondents. 3. Brief facts leading to the filing of the present petition read thus: 3.1 The petitioner is working as daily wager (Rojamdar); having joined the service under the respondent No.3 on 01.12.1982. The petitioner’s service came to be terminated on 13.12.1993. The petitioner challenged the said order of termination before the Labour Court, Junagadh, in Reference L.C.J. No.20 of 2001. By the award dated 30.03.2013, the Labour Court held the termination illegal and directed the respondent No.3 to reinstate the petitioner with continuity of service; duly produced at Annexure – A. The said order was subject matter of challenge in Special Civil Application No.16261 of 2014 whereby, in the said order, there was a joint statement made by the learned advocates appearing for the respective parties therein that pursuant to the award passed by the learned Labour Court, in Reference (LCJ) No.20 of 2001 dated 30.03.2013, the petitioner was offered the work by letter No.Legal/84-85/2014-15 dated 28.02.2015 which was accepted by the petitioner by letter dated 09.03.2015 and the petitioner joined the duty as offered. It is also recorded in the said order that the order is executed and in view thereof, the petition was disposed of as infructuous. 3.2 The petitioner, thereafter, was reinstated in service on 28.02.2015 and has been working as daily wager. By letter dated 23.06.2015, the petitioner made representation to the respondent No.3 to extend the benefits of the Resolution dated 15.09.2014 duly produced at Annexure – B, and the ratio laid down by the Hon’ble Apex Court in 2013 (8) Scale 579 . The said representation came to be rejected by communication dated 06.08.2015 on the ground that the petitioner failed to complete 240 days in 3 years. The said representation came to be rejected by communication dated 06.08.2015 on the ground that the petitioner failed to complete 240 days in 3 years. In view thereof, by way of present petition, the petitioner herein has challenged the impugned communication dated 06.08.2015 and has further prayed that the respondent authorities be directed to grant the benefits of the Government Resolution dated 15.09.2014 and the Government Resolution dated 17.10.1988 respectively. 4. Mr. Samir B. Gohil, learned advocate appearing for the petitioner, submitted that the case of the petitioner is squarely covered by the ratio laid down by the Hon’ble Apex Court in case of State of Gujarat & Ors. vs. PWD Employees Union & Ors., reported in 2013 (8) Scale 579 , whereby, the Department of Forest and Environment passed the Government Resolution dated 15.09.2014 to extend the benefits of the Government Resolution dated 17.10.1988 to those daily wagers who completed 240 days of service as on 29.10.2010. It is submitted that the petitioner joined the service on 01.12.1982. Thereafter, the service of the petitioner came to be terminated on 13.12.1993, which was subject matter of challenge before the learned Labour Court wherein, the termination came to be set aside and the Labour Court granted reinstatement with continuity of service vide order dated 30.03.2013. 4.1 Reliance is placed on the ratio laid down in Letters Patent Appeal No.2627 of 2010 wherein, it is held that the continuity of service granted by the Labour Court is required to be counted for all the purposes. In view thereof, the continuity granted by the Labour Court is required to be counted and the petitioner is required to be extended the benefits of the Government Resolution dated 17.10.1988 and the Government Resolution dated 15.09.2014. It is submitted that as per Clause – 3 of the said Government Resolution, the petitioner is entitled to the pay scale on completion of 15 years of service and is entitled to increments after completion of 20 years and 25 years of service if, the services are continued as per Section 25B of the Industrial Disputes Act, 1947. It is submitted that Section 25B of the I.D. Act, 1947 defines “continuous service” which states that if a workman completes 240 days in a year than it is to be counted as continuous service. It is submitted that Section 25B of the I.D. Act, 1947 defines “continuous service” which states that if a workman completes 240 days in a year than it is to be counted as continuous service. It is submitted that in light of the aforesaid and the order passed by the Labour Court whereby, the petitioner’s service is directed to be considered as continuous service and the petitioner was directed to be reinstated by the award dated 30.03.2013 in Reference L.C.J. No.20 of 2001, the prayers, as prayed for, in the present petition are required to be allowed. 5. Ms. Nidhi Vyas, learned AGP appearing for the respondents, vehemently placed reliance on the Annexure – A to the affidavit-in-reply filed by the respondent No.3 duly produced at page 38 and submitted that the petitioner had not completed 240 days within 5 years as per the requirement of the Government Resolution dated 15.09.2014. Reliance is placed on the guidelines duly produced at Annexure – C to the petition, and it is submitted that the petitioner has not completed 240 days of work in 5 years and therefore, the petitioner is not entitled for the benefits as per the Government Resolution dated 15.09.2014. 5.1 Ms. Vyas, learned AGP, also relied on an additional affidavit-in-reply filed by the respondent No.3 whereby, the said contentions are reiterated. 6. Mr. Samir B. Gohil, learned advocate appearing for the petitioner, in rejoinder, reiterated that while laying down ratio in case of State of Gujarat & Ors. vs. PWD and Forest Employees Union & Ors., in Civil Appeal Nos.1684-1689 of 2019, the Hon’ble Apex Court in paragraph 5 had held that the Government Resolution dated 15.09.2014 was contrary to the Government Resolution dated 17.10.1988 and it was directed not to be acted upon. In light of the aforesaid, it is submitted that the petitioner be granted the benefits of the Government Resolution dated 17.10.1988. Reliance is also placed on the order passed in Special Civil Application No.18143 of 2017 dated 09.10.2019 wherein, in an identical issue, it was held that once there is an order of reinstatement and the continuity, unless expressly denied, the same is presumed to have been granted. In light of the aforesaid, the benefits of the Government Resolution dated 17.10.1988 came to be extended. It is submitted that in view thereof, the prayers, as prayed for, in the present petition be allowed. Analysis:- 7. In light of the aforesaid, the benefits of the Government Resolution dated 17.10.1988 came to be extended. It is submitted that in view thereof, the prayers, as prayed for, in the present petition be allowed. Analysis:- 7. Having heard the learned advocates appearing for the respective parties, it is not in dispute that the petitioner herein joined the service of the respondent No.3 on 01.12.1982. The service of the petitioner came to be terminated on 13.12.1993. The petitioner challenged the said termination before the Labour Court in Reference L.C.J. No.20 of 2001 which came to be granted by the Labour Court by the award dated 30.03.2013 duly produced at Annexure – A. The said award reads thus: (true translation) “ORDER This Reference Case No. 20/01 of Applicant Taiyab Allarakha is partially allowed. The action of the Respondent Institute to relieve the Applicant from service with effect from 13/12/93 is held unlawful. It is hereby ordered that the Respondent shall reinstate the Applicant in service within 30 days of publishing this award in continuous service at his original post without back wages. No order as to cost. Junagadh Date:- 30/03/2013 Sd/- (M. A. Valiyani) Presiding Officer Labour Court, Junagadh” 8. The aforesaid order was subject matter of challenge in Special Civil Application No.16261 of 2014 whereby, in the said order, there was a joint statement made by the learned advocates appearing for the respective parties therein that pursuant to the award passed by the learned Labour Court, in Reference (LCJ) No.20 of 2001 dated 30.03.2013, the petitioner was offered the work by letter No.Legal/84-85/2014-15 dated 28.02.2015; which was accepted by the petitioner by letter dated 09.03.2015 and the petitioner joined the duty as offered. 8.1 Considering the aforesaid, in the facts of the present case, the petitioner is in service from the year 1982 and is also working as on today with the respondent No.3. From the aforesaid, it emerges that the petitioner herein has put in more than 10 years of service with the respondent No.3. 9. At this stage, it is apposite to refer to the ratio laid down in case of State of Gujarat & Ors. vs. PWD Employees Union & Ors., reported in 2013 (8) Scale 579 . Paragraphs 23 to 26 of the said decision read thus : “23. 9. At this stage, it is apposite to refer to the ratio laid down in case of State of Gujarat & Ors. vs. PWD Employees Union & Ors., reported in 2013 (8) Scale 579 . Paragraphs 23 to 26 of the said decision read thus : “23. The decisions in Uma Devi (supra) and A. Umarani (supra) were regarding the question concerning regularization of employees entered by back door method or those who were illegally appointed encouraging a political set up, in violation of Article 14 and 16 of the Constitution of India. We are of the opinion that both the aforesaid decisions are not applicable in the present case i.e. to the members of the respondent-Employees Union for the following reasons: (I) The Secretary, Forest and Environment Department of the State of Gujarat by his order dated 3rd May, 2008 held that initially the entry of the daily wagers do not suffer from any illegality or irregularity but is in consonance with the provisions of Minimum Wages Act. Therefore, the question of regularization by removing procedural defects does not arise. (ii) The Gujarat High Court by its judgment dated 29th October, 2010 passed in SCA No.8647 of 2008 while noticing the aforesaid stand taken by the State also held that the nature of work described in the order dated 3rd May, 2008 shows that the daily wage-workers are engaged in the work which is perennial in nature. (iii) The case of A.Uma Rani (supra) related to regularization of services of irregular appointees. In the said case this Court held that when appointments are made in contravention of mandatory provisions of the Act and statutory rules framed therein and in ignorance of essential qualifications, the same would be illegal and cannot be regularized by the State. 24. Thus, the principal question that falls to be considered in these appeals is whether in the facts and circumstances it will be desirable for the Court to direct the appellants to straightaway regularize the services of all the daily wage workers working for more than five years or the daily wage workers working for more than five years are entitled for some other relief. 25. As per scheme contained in Resolution dated 17th October, 1988 all the daily wage workers were not entitled for regularization or permanency in the services. 25. As per scheme contained in Resolution dated 17th October, 1988 all the daily wage workers were not entitled for regularization or permanency in the services. As per the said Resolution the daily wagers are entitled to the following benefits: “(i) They are entitled to daily wages as per the prevailing Daily Wages. If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays. (ii) Daily wagers and semi skilled workers who has service of more than five years and less than 10 years are entitled for fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and deduction of provident fund. (iii) Daily wagers and semi skilled workers who has service of more than ten years but less than 15 years are entitled to get minimum pay scale at par with skilled worker along with dearness allowance as per prevailing standard, for his working days. Moreover, such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. He/she will be eligible for getting medical allowance and deduction of provident fund. (iv) Daily wagers and semi skilled workers who has service of more than 15 years will be considered as permanent worker and such semi skilled workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get benefit as per the prevailing rules of gratuity, retired salary, general provident fund. Moreover, they will get two optional leave in addition to 14 misc. leave, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The daily wage workers and semi skilled who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly.” 26. The daily wage workers and semi skilled who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly.” 26. Considering, the facts and circumstances of the case, the finding of Gujarat High Court dated 29th October, 2010 in SCA No.8647/2008 and connected matters and the fact that the said judgment is binding between the parties, we are of the view that the appellants should be directed to grant the benefit of the scheme as contained in the Resolution dated 17th October, 1988 to all the daily wage workers of the Forest and Environment Department working for more than five years, providing them the benefits as per our finding at Paragraph 25 above. The appellants are directed accordingly. The judgment and order passed by the learned Single Judge dated 29th October, 2010 as affirmed by the Division Bench by its order dated 28th February, 2012 stands modified to the extent above. The benefit should be granted to the eligible daily wage workers of the Forest and Environment Department working for more than five years including those who are performing work other than building maintenance and repairing but they will be entitled for the consequential benefit w.e.f. 29th October, 2010 or subsequent date from which they are so eligible within four months from the date of receipt/production of the copy of this order. The appeals stand disposed of with the aforesaid observation and directions to the appellant- State and its authorities. There shall be no separate orders as to costs.” The Hon’ble Apex Court in the aforesaid decision categorically held that the benefits of the government resolution dated 17.10.1988 is the benefits to be granted to the eligible daily wagers of Forest and Environment Department who had worked for more than five years, including those who are performing work other than building maintenance and repairing, but they would be entitled for the consequential benefits w.e.f. 29.10.2010 or subsequent date from which they are eligible within four months from the date of receipt/ production of the copy of the order. 10. It is also apposite to refer to the ratio laid down by the Hon’ble Apex Court in case of State of Gujarat & Ors. 10. It is also apposite to refer to the ratio laid down by the Hon’ble Apex Court in case of State of Gujarat & Ors. vs. PWD and Forest Employees Union & Ors., in Civil Appeal Nos.1684-1689 of 2019. Paragraphs 5, 6 and 7 of the said decision read thus : “5. Thereafter, the appellant issued GR dated September 15, 2014 as a policy decision to extend the benefit of the aforesaid judgments. The respondents herein filed another contempt petition submitting that this GR dated September 15, 2014 was not in conformity with earlier GR dated October 17, 1988 and, therefore, it amounted to contempt of the Court’s order as the appellant had failed to carry out the directions of the Court by not giving the benefits in terms of GR dated October 17, 1988. The High Court has accepted the contention of the respondents herein. In its detailed judgment dated June 14, 2018, though it has held that case for contempt was not made out, at the same time, the petition is disposed of with the following directions: "34. The respondents are directed to extend the benefits of Government Resolution dated 17.10.1988 as ordered by the Supreme Court in order dated 09.07.2013 passed in case of PWD Employees’ Union (supra) and as reiterated by the learned Single Judge in its order on 11.6.2015 in the proceeding of SCA 9814 of 2014 and examine the case of all the concerned in light thereof and without being influenced by their own Government Resolution dated 15.9.2014, as we have categorically held that Government (arising out of SLP (C) No. 43592 of 2018) & Anr. Resolution to be not in consonance with the Supreme Court order dated 09.07.2013 passed in case of PWD Employees’ Union (supra). The entire exercise shall be over within period of 60 days from the date of receipt of writ of the order. We dispose of this petition with aforesaid directions. Notice discharged in each matter. However, there shall be no order as to costs.” 6. It may be noted that while giving the aforesaid directions, the order contains a detailed discussion to the effect that GR dated September 15, 2014 is deviation from earlier GR dated October 17, 1988 as per which the appellant was supposed to give the benefits to the respondents. 7. However, there shall be no order as to costs.” 6. It may be noted that while giving the aforesaid directions, the order contains a detailed discussion to the effect that GR dated September 15, 2014 is deviation from earlier GR dated October 17, 1988 as per which the appellant was supposed to give the benefits to the respondents. 7. In challenging the aforesaid order of the High Court by way of present appeals, the contention of the appellant is that GR dated September 15, 2014 was in fact issued to implement the judgment of the court in letter and spirit. The case set up by the appellant is that the Forest Department in the State Government, while extending the above benefits to all the daily wage workers of the Forest Department, and in order to maintain uniformity with regard to applicability of GR dated October 17, 1988 to daily wage workers working in different divisions/Districts of the Forest Department of the State, issued a GR dated September 15, 2014. The said Resolution is based on GR dated October 17, 1988 and subsequent Resolutions. The reliefs granted by this Court have (arising out of SLP (C) No. 43592 of 2018) & Anr. been extended to nearly 58000 workers. The judgment of this Court as directed above has been substantially complied with. As per the appellant, the Forest Department of the State has followed the interpretation of core GR dated October 17, 1988 as revised and clarified from time to time and has come up with the GR dated September 15, 2014 with the assistance of the Road and Building Department of the State.” 11. It is also apposite to refer to the decision rendered in Special Civil Application No.18143 of 2017, dated 09.10.2019. Paragraphs 3, 5.2, and 6 of the said decision read thus : “3. The petitioner was a workcharge Clerk since 1985. His services were terminated, as a result of which he invoked jurisdiction of Labour Court, Nadiad. Reference (LCN) No.181 of 1994 was allowed. Petitioner was directed to be reinstated on the original post without back wages. The respondent authorities challenged the said judgment and award of the Labour Court in Special Civil Application No.6795of 2001 wherein this Court did not grant any interim relief. Finally the said petition was dismissed on 27th February, 2013. Letters Patent Appeal was also dismissed. Petitioner was directed to be reinstated on the original post without back wages. The respondent authorities challenged the said judgment and award of the Labour Court in Special Civil Application No.6795of 2001 wherein this Court did not grant any interim relief. Finally the said petition was dismissed on 27th February, 2013. Letters Patent Appeal was also dismissed. 5.2 When the judgment and award of the Labour Court in the instant case is considered, the case of the petitioner stands on better and stronger footing. Though it is true that in the operative portion the Labour Court expressly not mentioned about grant of continuity, the continuity was specifically considered by the Labour Court in its judgment and award. In the reasoning part, the Labour Court explicitly observed to record a finding that the petitioner had completed continuous service within the meaning of Section 25B(2) of the Industrial Disputes Act, 1947 and that his case was falling within the concept of continuous service. The Labour Court, therefore, in terms recorded that the services of the petitioner were liable to be treated as continuous and consequently the order of termination dated 30th November, 1986 was held to be illegal. 6. In any view, when there was a reinstatement and the continuity was not expressly denied, the same has to be presumed to have been granted. In light of the aforesaid discussion, petitioner succeeds in respect of his claim for grant of benefits under Resolution dated 17th October, 1988.” 12. In light of the aforesaid facts and the position of law, as referred above, the petitioner herein is in service of the respondent No.3 for more than 30 years in light of the award passed by the Labour Court, Junagadh, wherein, the continuity is accorded to the petitioner herein by award dated 30.03.2013 and in view thereof, the petitioner is entitled to the benefits of the Government Resolution dated 17.10.1988. The prayers, as prayed for by the petitioner, in the present petition are required to be allowed and the same are allowed. 12. For the foregoing reasons, this is a fit case to exercise extra-ordinary jurisdiction under Article 226 of the Constitution of India by directing the respondent authorities to accord the benefits to the petitioner in accordance with the Government Resolution dated 17.10.1988. 12. For the foregoing reasons, this is a fit case to exercise extra-ordinary jurisdiction under Article 226 of the Constitution of India by directing the respondent authorities to accord the benefits to the petitioner in accordance with the Government Resolution dated 17.10.1988. Accordingly, necessary benefits be extended in favour of the petitioner upon due verification; preferably, within a period of ten weeks from the date of receipt of this order. Failure to pay the amount within the aforesaid period, will carry interest at the rate of 6% from the date of presentation of the petition i.e. 19.10.2015. 13. The present petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.