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2024 DIGILAW 649 (GUJ)

Dineshbhai Laxmishanker Mehta v. State of Gujarat

2024-03-26

BIREN VAISHNAV, PRANAV TRIVEDI

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JUDGMENT : PRANAV TRIVEDI, J. 1. The present Letters Patent Appeal under Clause 15 of the Letters Patent is filed by the appellant – original petitioner challenging the validity and correctness of the order dated 25.09.2018 passed in Special Civil Application No. 5974 of 2016. 2. The prayers that were made before the learned Single Judge were to give direction to the original respondents to immediately release the arrears in scale of Rs.5,200/20,200/- (meant for skilled labour). It was further prayed to issue directions to immediately release the gratuity amount and unavailed privilege leave to the extent of 300 days. 3. The learned Single Judge after hearing both the parties, came to the conclusion that insofar as principal relief to grant payscale of skilled category is concerned, had no merits. The learned Single Judge further held that the claim of the petitioner for release of gratuity and unavailed privilege leave for 300 days are concerned, the same are required to be duly considered and in that aspect, the learned Single Judge held that the petitioner on two scores that is of gratuity and unavailed privilege leave succeeds and it directed the respondent authorities to release the gratuity to that extent. 4. The facts that led to filing of the petition was that the appellant – original petitioner was working as a daily wager with the respondent authorities since 01.03.1998. The petitioner was paid minimum wage of unskilled labour of Rs.4,009/- per month. In the year 2011, the petitioner raised a dispute that he is working as a driver since 1998 and receiving daily wages of Rs.4,009/- per month and not receiving regular pay-scale. It was the case of the petitioner that he is not getting minimum wage of skilled labour. Such aspect led the petitioner to prefer a writ petition before this Court being Special Civil Application No. 4094 of 2011. This Court vide order dated 13.07.2011 observed that issue as to whether the petitioner is working on the post of driver or not is to be considered in light of the representation and the documentary evidence that were to be produced by the petitioner. The Court further directed the respondents to consider the case of the petitioner for wages according to the skilled category after considering entire record that may be supplied by the petitioner, and thereafter pass appropriate reasoned order within a period of two months. 4.1. The Court further directed the respondents to consider the case of the petitioner for wages according to the skilled category after considering entire record that may be supplied by the petitioner, and thereafter pass appropriate reasoned order within a period of two months. 4.1. Pursuant to the said direction issued by this Court, the authorities by way of order dated 14.10.2011 held that there is no sanction post of the driver. It was further observed that the petitioner was working as a daily wager and his appointment was as a daily wager and, therefore, the prayer of the petitioner to consider as a skilled worker was not appropriate. Looking to the necessary documentary evidence, the respondent authorities held that the petitioner was not a skilled worker and was a daily wager and in that aspect, rejected the application made by the petitioner pursuant to the order passed by this Court in Special Civil Application No. 4094 of 2011 on 13.07.2011. 5. The order passed by respondent authorities on 14.10.2011 was challenged by the petitioner by preferring a writ petition before this Court. The said writ petition came to be numbered as Special Civil Application No. 1759 of 2012. It was argued before this Court that over and above the impugned order dated 14.10.2011, there was another issue of granting regularization pursuant to Government Resolution dated 17.10.1988. It was urged in the writ petition that in view of the decision of the Hon’ble Apex Court in the case of State of Gujarat v. P.W.D., Employees Union & Ors., reported in 2013 (8) Scale 579 , the case of the petitioner be considered and he be given the benefits of Government Resolution dated 17.10.1988. This Court vide order dated 26.02.2014 directed the respondent authorities to consider the case of the petitioner pursuant to the directions issued by the Hon’ble Apex Court in paragraph 26 in the case of P.W.D. Employees Union (supra). However, the case of the petitioner with regard to getting pay-scale of skilled worker and with regard to impugned order dated 14.10.2011 was not considered. 6. Pursuant to the order passed by this Court on 26.02.2014 in Special Civil Application No. 1759 of 2012 representation was made to the respondent authorities. Vide order dated 18.11.2014 the respondent authorities granted the benefits of Government Resolution dated 17.10.1988 to the petitioner and other allied benefits were also granted. 6. Pursuant to the order passed by this Court on 26.02.2014 in Special Civil Application No. 1759 of 2012 representation was made to the respondent authorities. Vide order dated 18.11.2014 the respondent authorities granted the benefits of Government Resolution dated 17.10.1988 to the petitioner and other allied benefits were also granted. The petitioner accepted the order dated 18.11.2014 and came to be superannuated on 29.02.2016. During the time of superannuation, he again raised the issue of getting pay-scale of skilled worker as he was working as a driver. He also referred to communication of the respondent authorities asking for information with regard to payment made to him as a daily wager. On the basis of such aspect, the petitioner again preferred writ petition before this Court being Special Civil Application No. 5974 of 2016. The learned Single Judge over and above other grounds, dismissed the writ petition on the ground of delay and laches. This order dated 25.09.2018 is impugned in the present Letters Patent Appeal. 7. We have heard Mr. T. R. Mishra, learned advocate appearing for the appellant and Mr. Rohan Shah, learned Assistant Government Pleader for the respondents. 8. Mr. T.R. Mishra, learned advocate for the appellant has contended that there is documentary evidence showing that the petitioner was working as a driver and on such documentary evidence, the respondent authority ought to have granted payscale of Rs.5,200-20,200/- meant for skilled labourer and could have immediately release the arrears of such pay-scale. It was further contended that the learned Single Judge has wrongly dismissed the writ petition on the ground of delay and laches. Learned advocate Mr. Mishra has submitted that the petitioner had asked for certain information through RTI and the same was produced on record whereby a categorical challenge was made in the writ petition. Therefore, the learned Single Judge ought not to have dismissed the writ petition on the ground of delay and laches. Learned advocate Mr. Mishra has relied upon the decision of the Hon’ble Apex Court in the case of M.R. Gupta v. Union of India & Ors., reported in 1995 (5) SCC 628 , with regard to fixation of pay-scale and contended that insofar as limitation for seeking fixation of pay-scale is concerned, that could also be done at a belated stage and therefore, the learned Single Judge was not right in dismissing the writ petition. 9. Per contra, Mr. 9. Per contra, Mr. Rohan Shah, learned Assistant Government Pleader for the respondent has drawn our attention to the affidavit-in-reply filed on behalf of the respondent and has contended that the reasons given by the respondent authority are just and proper and the learned Single Judge has properly appreciated the reasons given by the respondent authority by dismissing the contentions raised by the petitioner. In view of the aforesaid, the learned Assistant Government Pleader has contended that the appeal filed by the appellant deserves to be dismissed. 10. We have heard learned counsel appearing for the respective parties. The primary contention of learned advocate Mr. Mishra is that the appellant – original petitioner was working as a skilled labourer and not as a rojamdar or daily wager. There are documentary evidence to show that he was getting pay-scale as a driver and, therefore, he was a skilled labourer. Therefore his fixation of pay-scale should be that of a skilled labourer. This argument of learned advocate Mr. Mishra has to be examined in view of certain factual background. For the very first time, the appellant original petition has raised the very same issue in the year 2011, which led to filing of writ petition being Special Civil Application No. 4094 of 2011. A reference of the writ petition is also made in that impugned order and in the order dated 14.10.2011. Though the order passed in Special Civil Application No. 4094 of 2011 is not produced on record, we have gone through the same as that is the base of the order dated 14.10.2011. This Court in Special Civil Application No. 4094 of 2011 has categorically observed as under :- “The case of petitioner is that at present petitioner is working as a Driver since 1998 and receiving only daily wages, and total amount of salary comes to Rs.4009/- and not getting regular pay scale. Even petitioner is not getting a minimum wages for skilled worker. Affidavit-in-reply is filed by other side denying the averments made in present petition. Learned advocate Mr. Mishra submitted that, he having a documents which have been related to nature of work performed by petitioner as a driver. For that he will supply all the details and documents to the respondents within a period of 10 days from the date of receiving copy of present order. Learned advocate Mr. Mishra submitted that, he having a documents which have been related to nature of work performed by petitioner as a driver. For that he will supply all the details and documents to the respondents within a period of 10 days from the date of receiving copy of present order. As and when, respondents receive such documents from petitioner, it is directed to respondents to consider case of petitioner, whether petitioner is working in the post of driver or not and, thereafter, to consider further that if the petitioner is working in the post of driver being a skilled worker, then respondents are directed to consider case of petitioner for wages according to skilled category and, thereafter, to pass appropriate reasoned order after considering entire record which has been supplied by petitioner within a period of two months from the date of receiving such documents and material from petitioner. In view of above observations and directions, present petition is disposed of by this Court without expressing any opinion on merits. However, in case, if ultimate decision is adverse to petitioner then it is open for petitioner to challenge the same before appropriate Forum by filing appropriate proceedings in accordance with law. Direct service is permitted.” 10.1. Pursuant thereto, this order was impugned in Special Civil Application No. 1759 of 2012. However, in case, if ultimate decision is adverse to petitioner then it is open for petitioner to challenge the same before appropriate Forum by filing appropriate proceedings in accordance with law. Direct service is permitted.” 10.1. Pursuant thereto, this order was impugned in Special Civil Application No. 1759 of 2012. The prayer made in the writ petition i.e. Special Civil Application No. 1759 of 2012 which were reproduced in the memo of the impugned petition are as under :- “(A) That Your Lordships be pleased to issue an order direction and/or writ in the nature of mandamus/certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 14.10.2011 marked Ann.C to this petition; (B) That Your Lordships be further pleased to direct the respondent to pay the initial basic salary for the post of Driver in the scale of Rs.5200/20200 (PB-1, Grade Pay Rs.1800) which is a pay-scale prescribed in respect of the post of Driver; (C) Direct the respondent to pay the arrears arising out of less payment of wages from Fifth Pay Commission onwards till the petitioner is granted regular time-scale of pay and permanency; (D) Pending admission and final disposal of this petition, Your Lordships be pleased to issue direction to the respondent to grant time scale for the post of Driver forthwith; (E) Any other and such further relief as the Hon’ble Court deems fit and proper in the interest of justice.” 10.2. This Court while disposing of the writ petition has passed the following order :- “1. In this group of matters, learned advocate Mr. Mishra appearing for the petitioners submitted that all the petitioners are serving in the Forest Department of the State of Gujarat and in fact there claim in the petition is in the context of Government Resolution dated 17.10.1988 though not referred in prayer clause. Mr. Mishra submitted that now in view of judgment of Hon'ble Supreme Court in the case of State of Gujarat Vs. PWD Employees Union and others, reported in 2013 (8) Scale 579 , the respondents need to examine each individual case and decide whether, the benefits of resolution dated 17.10.1988 could be extended to the petitioners. Learned advocate Mr. Mr. Mishra submitted that now in view of judgment of Hon'ble Supreme Court in the case of State of Gujarat Vs. PWD Employees Union and others, reported in 2013 (8) Scale 579 , the respondents need to examine each individual case and decide whether, the benefits of resolution dated 17.10.1988 could be extended to the petitioners. Learned advocate Mr. Mishra has drawn the attention of the Court to the order dated 14.02.2014 in Special Civil Application No. 18167 of 2013 and allied matters and requested to pass similar direction given therein. 2. Learned AGP Mr. Niraj Ashar and learned AGP Mr. Ronak Raval appearing for respondents in respective matters submitted that since, the petitioners now want to have their cases considered in the light of Government Resolution dated 17.10.1988, this Court may consider giving of similar directions to the respondents given in Special Civil Application No. 18167 of 2013 and allied matters. 3. In above view of the matter, all these petitions are partly allowed. The respondents are directed to examine and decide the case of each of the petitioners as per the directions issued by the Hon’ble Supreme Court in para No.26 of its decision in the case of PWD Employees Union (supra). 11. Therefore, what is relevant is the fact that the challenge to the order dated 14.10.2011 was not considered by this Court in writ petition being Special Civil Application No. 1759 of 2012. The petitioner had not challenged that order and it has attained finality. Therefore, the order dated 14.10.2011, which was impugned in Special Civil Application No. 1759 of 2012 has attained finality. Now the appellant – original petitioner has come with the very same challenge in the present writ petition after attaining the age of superannuation. Therefore, in this context, the argument of learned advocate Mr. Mishra that the petitioner be given fixation of pay-scale as per skilled worker cannot be countenanced. The primary reason being that very same aspect has been considered by this Court, the order has attained finality. On this aspect, the only argument canvassed by learned advocate Mr. Mishra fails. 11.1. The second aspect over and above the first aspect needs to be considered is that the aspect of delay and laches. The petitioner has accepted the direction given to the respondent authority in Special Civil Application No. 1759 of 2012 in the year 2014. On this aspect, the only argument canvassed by learned advocate Mr. Mishra fails. 11.1. The second aspect over and above the first aspect needs to be considered is that the aspect of delay and laches. The petitioner has accepted the direction given to the respondent authority in Special Civil Application No. 1759 of 2012 in the year 2014. The petitioner accepted the benefits given by this Court in Special Civil Application No. 1759 of 2012 with regard to benefit of Government Resolution dated 17.10.1988. Thereafter, he has not raised any grievance with regard to fixation of pay-scale. It is only in the year 2016 on attaining the age of superannuation, he has again raised the issue of fixation of pay-scale. Therefore, also the prayer as prayed by the appellant original petitioner fails on the ground of delay and laches. The learned Single Judge was justified in dismissing the petition on the ground of delay. 11.3. The last limb of argument of learned advocate Mr. Mishra that case of the petitioner would be akin to the decision of the Hon’ble Apex Court in the case of M.R. Gupta (supra). Having gone through the said decision relied upon by the learned advocate for the petitioner, the said decision is with regard to the limitation for seeking relief from fixation of pay when their application was rejected by the Administrative Tribunal before coming in force the Administrative Tribunal Act, 1985 and therefore, the issue of limitation arose. This is not the case in the present appeal. In the present case on hand on after being appointed in the year 1998, the appellant – original petitioner raised the issue for the very first time in the year 2011 and by way of subsequent order, this Court had rejected the prayers as prayed by the petitioner and such order has attained finality. Therefore, the said decision relied upon by the learned advocate for the petitioner would not come to the rescue of the appellant with regard to his prayers. 12. In view of the above three observations, the appeal preferred by the appellants is meritless and the same is hereby dismissed. No order as to costs.