Gafarbhai Habibbhai Fulshetha vs State Of Gujarat
2021 Latest Caselaw 10565 Guj

    C/SCA/10713/2020                              JUDGMENT DATED: 04/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10713 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                       GAFARBHAI HABIBBHAI FULSHETHA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1
MR KURVEN DESAI, AGP for the Respondent(s) No. 1
MS KHYATI P HATHI(346) for the Respondent(s) No. 2,3
NOTICE SERVED(4) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 04/08/2021

                              ORAL JUDGMENT

1. Heard learned advocate Mr. Samir B. Gohil for the petitioner, learned advocate Ms. Khyati P. Hathi for respondents no.2 and 3 and learned Assistant Government Pleader Mr. Kurven Desai

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for the respondent-State through video conference.

2. Rule returnable forthwith. Learned advocate Ms. Khyati P. Hathi waives service of notice of rule on behalf of respondents no.2 and 3 and learned Assistant Government Pleader Mr. Kurven Desai waives service of notice of rule on behalf of respondent State.

3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the order dated 18.03.2020 and to direct the respondents to grant the benefits of the Government Resolution dated 17.10.1988 from the date the petitioner became entitled and further to pay all the consequential benefits.

4. Brief facts of the case are that the petitioner joined the service as daily wager driver under respondent no.3 on 1.4.1992. Thereafter, the service of the petitioner was terminated on 22.7.1995. The petitioner therefore, filed Reference (LCJ) No.37/1997 before the Labour Court, Junagadh. The Labour Court by award dated 22.11.2002 partly allowed the reference granting reinstatement without back-wages. Subsequently, the petitioner was reinstated in service on 3.2.2003 and since then the petitioner has been working as daily wager driver under respondent

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no.3.

4.1) The petitioner along with other daily wagers drivers made representation to respondent no.2 vide letter dated 4.2.2015 requesting the said respondent for granting the benefits of Government Resolution dated 17.10.1988. No action was taken pursuant to such representation by the respondents authorities. The petitioner therefore, challenged such inaction of the respondents by preferring Special Civil Application No.1539/2019. This Court (Coram : Hon'ble Mr. Justice N.V. Anjaria) by order dated 28.1.2019 directed the respondents to consider the case of the petitioner.

4.2) Respondent no.3 vide letter dated 1.5.2019 rejected the claim of the petitioner without assigning any reasons. The petitioner therefore, again approached this Court by filing Special Civil Application No.3981/2020. This Court (Coram : Hon'ble Mr. Justice Biren Vaishnav) by order dated 13.02.2020 directed the respondents to pass a reasoned order.

4.3) Respondent no.2 by order dated 18.3.2020 passed a reasoned order rejecting the claim on the ground that the petitioner was appointed on 1.4.1992, therefore, Government Resolution dated 17.10.1988 would not apply to him and he is not entitled to the benefits of

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the Government Resolution dated 17.10.1988.

4.4) It is the case of the petitioner that the petitioner had joined service on 1.4.1992 and he completed five years of service on 1.4.1997 and he completed total 10 years of service on 1.4.2002. Therefore, in view of his continuous service and completion of requisite number of years in the service, he is entitled to the benefits of the Resolution dated 17th October, 1988. It is the say of the petitioner that he is engaged as driver and his nature of work is claimed to be permanent.

4.5) It is the further case of the petitioner that similarly situated employees who approached this Court earlier, have been extended the benefits of the Resolution dated 17.10.1988 and have also been placed in the pay scale.

4.6) Being aggrieved by the impugned order dated 18.3.2020, the petitioner has preferred the present petition with a prayer to quash and set aside the impugned order.

5. When the ground of denial of the benefits as stated in the impugned order is noticed, it is on the consideration that the petitioner was appointed on 1.4.1992, which was after 1st October, 1988 and therefore, Government

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Resolution dated 17.10.1988 would not apply to him and he is not entitled to the benefits of the Government Resolution dated 17.10.1988. Therefore, on the ground of cut-off date that the petitioner was appointed subsequent to 1st October, 1988, benefits of Resolution were denied.

6. While the respondent authorities would be entitled to consider the service details of the petitioner including the aspect of continuous service put in by the petitioner for conferment of the benefits under the Resolution in question, the ground that petitioner's appointment was after 01st October, 1988 to make him disentitled to the benefits, would not sustain in eye of law.

7. In Kutch District Panchayat v. Mangalbhai K. Rabari being Special Civil Application No.15670 of 2005 decided as per judgment dated 08th October, 2014, in turn confirmed in Letters Patent Appeal No.1381 of 2015 decided on 04th January, 2016, it was observed and held in judgment dated 08th October, 2014 as under :

"7. Shri Pathak, learned counsel for the respondent workmen contended that the decision of the Supreme Court as cited herein above in case of State of Gujarat Vs. PWD Employees Union & Ors (supra) would have straightway applicability to the present case. The so called inapplicability of GR has been answered squarely by the Court as

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there are subsequent Government Resolutions clarifying such things. Besides this, in the affidavit in reply at page-47 Courts attention was drawn to indicate that G.R. Dated 17/10/1988 is clarified and given effect to all those who are subsequently appointed also and that has been accepted as policy governing such employment thereafter.

8. Shri Pathak pointed out that learned counsel for the petitioner is not correct in contending that all were employed after GR dated 17/10/1988. In fact four were employed before that. Shri Munshaw at this stage submitted that he never meant all employees were employed after the GR and statement annexed to the employees list would clarify the situation.

11. The Court is of the considered view that the GR dated 17/10/1988 was no doubt containing reference to the future employment but the subsequent course of action and developments as it indicate that the Government continued employing daily wagers, temporary hands irrespective of those conditions which gave rise to a situation where litigations came up and hence as Shri Pathak has pointed out clarificatory GR came to be issued and over all facts & circumstances of the case indicate that the benefits of GR dated 17/10/1988 were to be extended to all, else it would have meant to Government employing unfair labour practice which would have been highly deprecable.

12. The Court is also of the view that the decision cited at the bar in case of State of Gujarat And Others Vs. PWD Employees Union And Others will have applicability to the facts & circumstances of the case and counsel of the petitioners submission qua some of the workmen were employed after GR dated 17/10/1988 would be of no avail as the judgment itself has answered that contention squarely."

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8. In PWD Employees Union through President v. State of Gujarat being Special Civil Application No.4662 of 2015, this Court relied on the aforesaid decision in Kutch District Panchayat (supra). PWD Employees Union (supra) had a similar set of facts wherein also the petitioners were denied the benefits of Resolution dated 17th October, 1988 on the ground that their appointments were subsequent to the date of Resolution dated 17th October, 1988.

9. Therefore, the petitioner could not have been denied the benefits under the Resolution dated 17th October, 1988. The petitioner stands covered under the said Resolution for the purpose of benefits flowing therefrom and the petitioner is entitled to the same. It was not the ground to be valid in law to deny the petitioner the benefit of Resolution dated 17th October, 1988 and incidental benefits that the petitioner was appointed subsequent to the date of Resolution, that is after 17th October, 1988.

10. Denial of the benefits of Resolution dated 17th October, 1988 to the daily-rated employees such as petitioner whose employment was subsequent to the said date was a manifest invidious discrimination meted out by adopting

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artificial cut-off date which had no rationale for dividing the homogeneous class of daily- rated employees who were otherwise entitled to the benefits of the Resolution on the basis of length of the service as contemplated in the Resolution. It tantamount to segregating one class into two classes who were meted out discriminatory treatment leading to violation of Articles 14 and 16 of the Constitution. Therefore, the petitioner deserves the relief as prayed for.

11. As a result of above discussion, the petition is allowed. The respondents are directed to take into account the service details and the facts relating to continuity of service, the length of service etc. of the petitioner for the purpose of extending to him the benefits flowing from the Resolution dated 17th October, 1988 of the State Government. The respondents are directed to extend all the benefits flowing from the said Resolution without applying the cut-off date. The petitioner shall be paid the regular scale and shall be conferred other benefits on the basis of the completion of continuous service for requisite number of years of service as contemplated under policy Resolution including the grant of permanency benefits. Whatever arrears are required to be paid because of the petitioner becoming entitled to the benefits of

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Resolution dated 17th October, 1988 as above, shall be paid to the petitioner within a period of 10 weeks from the date of receipt of the present order.

12. If in the aforesaid time limit the payment of benefits from the Resolution dated 17th October, 1988 of the State Government is not paid, then the payment shall be calculated with 6% interest from the date of filing of the petition to the actual payment.

13. The petition stands allowed accordingly. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR