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2024 DIGILAW 2142 (GUJ)

Khatana Bharatbhai Govindbhai v. State Of Gujarat

2024-12-04

NIRZAR S.DESAI

body2024
JUDGMENT : 1. Heard learned advocate Ms. Shikha D. Panchal appearing for the petitioner and learned Assistant Government Pleader Ms. Nirali Sarda appearing for the respondent – State. 2. At the outset, it was pointed out by learned advocate Ms. Shikha Panchal appearing for the petitioner that the issue agitated in this petition is a covered issued and therefore, the matter may be heard finally. Accordingly, the matter was taken up for final hearing with the consent of learned advocates appearing for the parties. Hence, issue RULE returnable forthwith. Learned Assistant Government Pleader Ms. Nirali Sarda waives the service of rule on behalf of the respondent – State i.e. respondents No. 1 to 4. 3. By way of this petition, the petitioner has prayed for quashing and setting aside the order dated 2.9.2022 issued by the Deputy Conservator of Forest, Surendranagar, whereby the petitioner was denied the benefit of 17.10.1988 GR by including the years where he was made to work on piece rate basis. The petitioner has also prayed for revision of his pay in terms of 7th Pay Commission recommendation, which was also rejected vide the impugned order dated 2.9.2022. 4. The facts giving rise to the filing of present petition as canvassed by learned advocate Ms. Panchal are stated as under :- 4.1 That the petitioner joined the services under Forests and Environment Department of the State Government with effect from 1.3.1990 with a break from 1.8.1993 to 31.8.2000. In all the petitioner has put in more than twenty years of service as daily wager as per the say of the petitioner. The petitioner upon being entitled to get the benefits of Government Resolution dated 17.10.1988, preferred a petition before this Court being Special Civil Application No.5321 of 2019 which was disposed of by this Court vide judgment dated 29.11.2019 by issuing suitable directions to the State Government. The aforesaid judgment dated 29.11.2019 was carried in appeal by way of Letters Patent Appeal No. 329 of 2021. However, the letters patent appeal was dismissed vide order dated 3.3.2021. 5. Despite the dismissal of letters patent appeal as the benefits of GR dated 17.10.88 were not granted to the petitioner, the petitioner filed an application for contempt being Miscellaneous Civil Application No.643 of 2020. However, upon the respondents passing an order and tendering unconditional apology, the petitioner withdrew the contempt proceedings vide order dated 20.9.2021. 6. 5. Despite the dismissal of letters patent appeal as the benefits of GR dated 17.10.88 were not granted to the petitioner, the petitioner filed an application for contempt being Miscellaneous Civil Application No.643 of 2020. However, upon the respondents passing an order and tendering unconditional apology, the petitioner withdrew the contempt proceedings vide order dated 20.9.2021. 6. In the meantime, while dismissing the letters patent appeal, the Division Bench of this Court in its order dated 3.3.2021 has directed the State to take a decision within a period of three months with regard to conferment of benefits admissible to the petitioner as per the Government Resolution and even the contempt Bench also did not say anything about the petitioner’s entitlement to the 7th pay commission benefits. 7. That is how this petition is preferred whereby when the petitioner agitated the issue about granting him the benefits of 17.10.88 GR by taking into consideration the period during which the petitioner worked on piece rate and demanded the benefits of 7th pay commission when the aforesaid benefits were denied to the petitioner vide order dated 2.9.2022 being aggrieved by the same, this petition is preferred. 8. Learned advocate Ms. Panchal appearing for the petitioner submitted that both the issues first related to inclusion of piece rate work done by the petitioner while counting the benefits extended to the petitioner under 17.10.88 GR as well as the petitioner’s entitlement to the 7th pay commission recommendation are covered issues. She submitted that in a similar set of facts when one workman viz. Kulsamben Jina Shah preferred Special Civil Application No.3966 of 2016, the Co-ordinate Bench of this Court vide judgment dated 22.1.2020 by relying upon the decision in case of Executive Engineer (O.& M.) & Another Versus Hareshbhai Bhurabhai Vala reported in 2016 (2) GLR 1064 , decided that the petitioner is entitled for insisting for inclusion of piece rate work while the benefits of GR dated 17.10.88 are extended to the petitioner. Ultimately, the impugned orders were quashed and suitable directions were given to the State Government. 9. Ultimately, the impugned orders were quashed and suitable directions were given to the State Government. 9. Similarly, the issue about entitlement of the petitioner to seek the benefits of recommendation of 7th pay commission is also a covered issue in view of Government Resolution dated 18.3.2023 as well as subsequent Resolution dated 29.12.2023 whereby the State has decided to extend the benefits of 7th pay commission to the daily wagers working under the Forest Department with effect from 1.1.2016 and in similar set of fact, the Co-ordinate Bench of this Court has vide order dated 10.11.2023 passed in Special Civil Application No. 8456 of 2022 and allied matters has directed the State to consider the case of each of the petitioners for payment of revised salary/arrears of revised salary as per the GR dated 18.3.2023 within a period of eight weeks from the date of receipt of the order and liberty was reserved in favour of the petitioner in case if they are aggrieved by the decision that may be taken by the State Government. It was also held by order dated 10.11.2023 that the petitioner is entitled to have the benefits of 7th pay commission with effect from 1.1.2016. 10. By relying upon the aforesaid decisions and Grs learned advocate Ms. Panchal submitted that similar orders be passed in case of present petitioner as well, as the case of present petitioner is un-distinguishable when compared with the facts of the decisions cited by learned advocate Ms. Panchal. 11. Though learned Assistant Government Pleader Ms. Nirali Sarda appearing for the respondent – State vehemently opposed the petition and submitted that the petitioner is not entitled to either of the reliefs she could not point out anything from the record as to how the petitioner is not entitled to either of the reliefs. She prayed for dismissal of the petition. 12. In view of the fact that there is no material on record to indicate that the petitioner is not entitled to either of the reliefs, the Court is bound to consider and follow the precedent cited by learned advocate Ms. Panchal to put the controversy in question to rest. She prayed for dismissal of the petition. 12. In view of the fact that there is no material on record to indicate that the petitioner is not entitled to either of the reliefs, the Court is bound to consider and follow the precedent cited by learned advocate Ms. Panchal to put the controversy in question to rest. As far as the petitioner’s entitlement for considering the period during which he has worked on piece rate is concerned, the Coordinate Bench of this Court has in its decision dated 22.1.2020 in case of Kulsamben Jina Shah Versus State of Gujarat and others while deciding Special Civil Application No.3966 of 2016 has observed in paragraph No.8 onwards as under :- “[8.0] In the considered opinion of this Court, the respondent- State authority cannot neglect the actual days of working even of a piece rated worker by totally ignoring their work for which they are engaged. Thus, by adopting such a modus operandi, the respondent State-authority have, in fact, snatched away the status of the petitioner as a daily wager by converting the services from daily wager from 2001 to piece rated worker, resulting into denial of pension. It appears that the respondents has altered the status from daily wager to piece rated worker without informing her. Being a model employer it is expected that the respondent authority should inform their employees about the repercussion of their change of status from daily wager to piece rated worker as such alteration affects their future prospectus of pay, pension etc, which arise out the resolution dated 17.10.1988. The respondent- State authority cannot totally disregard his/her engagement as a piece rated worker by ignoring the days on which the work is assigned. The Coordinate Bench of this Court in the case of Hareshbhai Bhurabhai Vala (supra), while considering the service of piece rated worker basis has observed thus; 11.2 However, other documents, more particularly the vouchers under which the respondent workman was paid by the petitioner board for period after July 1990 should be taken into account. It is noticed that several vouchers were placed on record before the learned Labour Court and said vouchers demonstrate that the petitioner board made payments to the respondent workman under and by way of those vouchers. The amounts paid to the respondent workman are of different quantum. It is noticed that several vouchers were placed on record before the learned Labour Court and said vouchers demonstrate that the petitioner board made payments to the respondent workman under and by way of those vouchers. The amounts paid to the respondent workman are of different quantum. Certain documents purporting to be the bills raised by the respondent workman are placed on record. However, on closer scrutiny, it comes out that any link or connection co-relation between the said bills and vouchers is not established. Besides this, mode of payment alone and that too in absence of the contract or letter of appointment/engagement cannot determine status and character of employment and the employee. 12. The petitioner board claims that after 28.7.1990, the respondent workman was engaged on contract basis and he was working as contractor and was executing the typing work on piece rate basis. 12.1 The petitioner board claimed, through its witness, that when earlier existing contract came to an end, the petitioner board had made an inquiry and the rate quoted by the respondent workman was found to be lower than the rate quoted under the existing contract and that therefore, the decision to assign typing work on contract basis to the respondent workman was taken and accordingly, he was engaged on contract basis and thereafter, the respondent rendered his service for typing work on contract basis and he was paid on piece rate basis. 15. At this stage, it is appropriate to take into account the definition of the term "workman" as defined under Section 2(s) of the Act. The definition of said term takes in its fold "any person who is employed to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, ....". When the said definition is taken into account, then, it emerges that the respondent herein was rendering skilled service as steno/typist and he was engaged for executing skilled work assigned to him by the petitioner. His services were availed in lieu of payment and remuneration for the service rendered by the respondent was paid to him by the petitioner. The definition also includes engagement or employment of a person even in case where the terms of employment are implied. His services were availed in lieu of payment and remuneration for the service rendered by the respondent was paid to him by the petitioner. The definition also includes engagement or employment of a person even in case where the terms of employment are implied. Thus, in view of the definition and in light of facts of present case, more particularly in light of the fact that the respondent was engaged for "manual/skilled" work of similar nature for which he was engaged before 28.7.1990 the petitioner's submission that after 28.7.1990 the respondent herein was not a workman of the petitioner cannot be accepted and the learned Labour Court has not committed any error in rejecting the said defence or contention of the petitioner. 16. It would also be appropriate to consider the said definition of the term "workman" along with the definition of the term "wages" as prescribed under Section 2(rr) of the Act. According to the said definition, "wages means all remuneration capable of being expressed in terms of money which are paid on fulfilment of terms of employment, expressed or implied would be termed as "wages" but it would not include any bonus or contribution to provident fund or gratuity payable on termination of service. Thus, the amounts/remuneration paid to the respondent for the period after 28.7.1990 for the work executed by him would fall within the term "wages" and consequently, it would be "wages" paid to a "workman". Under the circumstances, the decision by the learned Labour Court treating the amount/remuneration paid to the respondent as wages and the recipient of the said wages as workman cannot be faulted. [9.0] Thus, the remuneration of the petitioner as a piece rated worker would fall within the definition of term “wages" as prescribed under of the Industrial Disputes Act, 1947 (for short the ID, Act) and her remuneration as a piece rated worker is covered under the definition of wages as define under Section 2(rr) of the ID Act. [9.0] Thus, the remuneration of the petitioner as a piece rated worker would fall within the definition of term “wages" as prescribed under of the Industrial Disputes Act, 1947 (for short the ID, Act) and her remuneration as a piece rated worker is covered under the definition of wages as define under Section 2(rr) of the ID Act. The impugned order dated 02.11.2015 is hereby quashed and set aside and the respondent authorities are directed to confer the benefits of the Government Resolution dated 17.10.1988 to the petitioner, as per the law enunciated by the Supreme Court in the case of PWD Employees' Union & Ors., reported in (2013) 12 SCC 417 and subsequent judgment in the case of PWD and Forest Union and Ors, reported in 2019 (3) scale 462. Appropriate orders conferring the benefits arising out of the Government Resolution dated 17.10.1988 shall be passed within the period of two months from the date of receipt of the writ of this Court. [10.0] In this view of the matter, the writ petition is disposed of. Rule made absolute.” 13. In view of above observations made by the Court based upon the decision in case of Hareshbhai Bhulabhai Vala (Supra) and as the facts of the present case are also identical, the ratio of the aforesaid decision is required to be followed by this Court as well by holding that the petitioner is entitled to ensure that the period during which the petitioner worked on piece rate basis is considered vide extending the benefits of GR dated 17.10.88 which has already been given to the petitioner. However, now in view of the fact that the petitioner is held entitled to the benefits of counting of the period during which he worked for piece rate basis, the petitioner’s salary and all other benefits are required to be revised in view of the present decision. 14. As far as the petitioner’s entitlement about 7th pay commission is concerned, the order under challenge by way of this petition is dated 2.9.2022 whereas subsequently the State itself has come with GR dated 18.3.2023 and GR dated 29.12.2023 which provides and rather extends the benefits of 7th pay commission recommendation to the daily wagers working under Forest Department with effect from 1.1.2016. In view of this subsequent GR the order dated 2.9.2022 is required to be quashed which holds that the petitioner is not entitled to benefits of 7th pay commission recommendation. Accordingly, order dated 2.9.2022 is required to be quashed and same is quashed and set aside. 15. In view of above discussions, following directions are issued :- It is held that the present petitioner is entitled for counting of the period during which the petitioner has worked on piece rate basis for the purpose of seeking benefits of GR dated 17.10.88 which are already granted to the petitioner and therefore, the respondents are directed to revise the petitioner’s salary and recalculate other benefits and to grant the benefits to the petitioner by taking into consideration the period during which the petitioner worked on piece rate basis as early as possible preferably within a period of three months from the date of receipt of the order. 16. In view of GR dated 18.3.2023 and 29.12.2023, the petitioner is held to be entitled to the benefits of 7th pay commission for which the calculation shall be made by the respondents and actual benefits shall be paid to the petitioner within a period of three months from today. Petitioner is entitled to have it with effect from 1.1.2016. Arrears be paid as per the Governments Policy. 17. With the aforesaid direction, the present petition is required to be allowed. Accordingly, petition is allowed. Rule made absolute. No order as to costs. Direct service is permitted.