Gujarat High Court
Divisional Controller, Gujarat State ... vs Its Workmen Shree Babuba Dadba Gohil on 13 December, 2023
NEUTRAL CITATION
C/SCA/1884/2022 ORDER DATED: 13/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1884 of 2022
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DIVISIONAL CONTROLLER, GUJARAT STATE ROAD TRANSPORT
CORPORATION
Versus
ITS WORKMEN SHREE BABUBA DADBA GOHIL
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Appearance:
MR HAMESH C NAIDU(5335) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/12/2023
ORAL ORDER
1. Gujarat State Road Transport Corporation (GSRTC) as Petitioner has filed this petition challenging the order dated 02.01.2021 of Industrial Tribunal in Reference (IT) No.51 of 2015, whereby the petitioner was directed to grant benefit of time scale to the workman, upon completion of 180 days of his service.
2. Mr. Hamesh Naidu, learned advocate for the petitioner submitted that the issue is squarely covered by decision of this Court.
3. Considering the fact that despite service of notice twice, the respondent chose not to appear and since the issue is Page 1 of 7 Downloaded on : Mon Dec 18 20:36:25 IST 2023 NEUTRAL CITATION C/SCA/1884/2022 ORDER DATED: 13/12/2023 undefined covered the matter is taken for final hearing today.
4. Facts referred in this petition are as under:
(a) The respondent-was appointed on 12.05.1997 as daily wager driver. He continued as daily wager and was granted benefit of time scale on 31.05.2011.
(b) For grant of Time Scale from 31.05.2011, the workman raised dispute before Industrial Tribunal. It was case of the respondent- workman before the Tribunal that though he was entitled for the benefit of Time Scale upon competition of 180 days from his initial appointment i.e. 12.o5.1997, where as,he was granted Time Scale on 31.05.201.
(c) Upon filing of statement of claim, the petitioner GSRTC appeared and filed their written statement. It was case of the petitioner GSRTC before the Tribunal that the workman was working as badli worker to meet with the exigencies.
Considering the seniority and the vacancy which arose at the relevant point of time the benefit of time scale was extended to the workman. As per Clause 20 of the settlement, the time scale is to be given on the basis of seniority and vacancy and not solely on the basis of completion of 180 days.
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(d) The said reference was allowed by directing petitioner to grant Time Scale upon completion of 180 days of initial appointment, aggrieved by which present petition is filed.
5. Heard Mr. Hamesh Naidu, learned advocate for the petitioner. He submitted that the order of the Tribunal is erroneous on many grounds. First of all, the dispute was raised by the workman before the Tribunal after delay of more than 15 years. For the benefits from the year 1997, the dispute was raised in the year 2015. Further, before the Tribunal, the petitioner - GSRTC was directed to produce attendant details. This direction was pursuant to the application filed by the workman seeking production of documents. In response to the said application, an affidavit was filed at Exh.31 clarifying that since more than 24 years was passed, the documents are not available. Therefore, adverse inference was drawn on presumption. It was presumed by the Tribunal that in the probable list of set up the workman's name might have figured. Moreover, despite reliance placed by the Tribunal on the seniority list, the same has not been called for from the petitioner. Though the onus is on the workman to prove his completion of 180 days without having filed any proof to that effect, the award was passed. Learned Counsel relied upon decision of Hon'ble Supreme Court in case of Bhupendra Kumar Chimanbhai kachiya Patel vs. Divisional Controller Page 3 of 7 Downloaded on : Mon Dec 18 20:36:25 IST 2023 NEUTRAL CITATION C/SCA/1884/2022 ORDER DATED: 13/12/2023 undefined GSRTC, Nadiad in Civil Application No.2546 of 2018 dated 07.03.2018.
5.1. Though as mentioned in the statement of claim, the terms of reference is whether on completion of 180 days the time scale is to be given or not, the Tribunal erred in granting the time scale from the initial date of joining. He thus submitted that there being error in the award, the same requires to be quashed and set aside.
5.2. Placing heavy reliance on the decision of this Court in the case of Kanubha Vajubha Rathod vs. Divisional Controller in Special Civil Application No.13668 of 2020 dated 17.01.2022, learned advocate submitted that as per settled legal position, grant of time scale upon completion of 180 days is not the sole condition to be satisfied. The other two conditions i.e. vacancy and inter se seniority are also to be considered for grant of time scale. On this issue, Co-ordinate Bench of this Court in Special Civil Application No.13668 of 2020 has held as under:
"6.4 Thus, on both the points, the law is well settled that only those daily wagers, who have completed 180 days and have satisfied the further two conditions i.e. availability of the Page 4 of 7 Downloaded on : Mon Dec 18 20:36:25 IST 2023 NEUTRAL CITATION C/SCA/1884/2022 ORDER DATED: 13/12/2023 undefined post and looking to the inter se seniority, they are conferred the benefit of time scale. The aforesaid judgment of Division Bench of this Court was subject matter of challenge before the Apex Court in Civil Appeal No.2546 of 2018 and the Apex Court, by the detailed judgment dated 07.03.2018, has confirmed the observations made by the Division Bench of this Court.
7. In the present case, it is not disputed that the petitioner was appointed as "Badli Worker"
and he has never raised the dispute with regard to placing him as a daily wager and it is undisputed that only after he is conferred the status of the "daily wager" and on completion of 180 days, he can be extended the benefit of time scale. Assuming that the respondent authority has not produced anything to show that the post was vacant and seniority list was prepared, the same would not give benefit to the petitioner since unquestionably the petitioner was a "Badli Worker" and continued to remain the same. The petitioner has raised industrial dispute for claiming the time scale Page 5 of 7 Downloaded on : Mon Dec 18 20:36:25 IST 2023 NEUTRAL CITATION C/SCA/1884/2022 ORDER DATED: 13/12/2023 undefined from the year 2000, but the said benefit could not have been extended in wake of the fact that his status was a Badli Worker in 2000 and he was not a daily wager. The petitioner is granted the benefit w.e.f 14.03.2009 after he was appointed as a daily wager. Thus, the Badli Worker admittedly could not have been extended the benefit of time scale even if he had completed 180 days in 2000. As held in the aforesaid judgments, there is also delay in raising the dispute for claiming the time scale w.e.f. 2000 and that is also after a period of 12 years.
8. In light of the foregoing observations, the writ petition fails. Notice is discharged."
6. Considering the submissions and revisitation of facts of this case, evidently, the workman raised dispute by filing reference in the year 2015, whereas the petitioner had joined in the year 1997, so there is a delay of more than 15 years. Further, the non-fulfillment of other two conditions namely availability of post and inter se seniority was not considered by the Tribunal. Therefore, in the opinion of this Court, the decision of this Court in Special Civil Application No.13668 of Page 6 of 7 Downloaded on : Mon Dec 18 20:36:25 IST 2023 NEUTRAL CITATION C/SCA/1884/2022 ORDER DATED: 13/12/2023 undefined 2020 would be applicable.
7. In view of clear facts and binding judgment, the petition is allowed.
(MAUNA M. BHATT,J) NAIR SMITA V. Page 7 of 7 Downloaded on : Mon Dec 18 20:36:25 IST 2023