Champraj Bhojabhai Khachar vs Director / Administrator Shree ...
2021 Latest Caselaw 2063 Guj

          C/SCA/2860/2021                                        ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 2860 of 2021

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               CHAMPRAJ BHOJABHAI KHACHAR
                           Versus
  DIRECTOR / ADMINISTRATOR SHREE BHARAT SARASVATI MANDIR
                          SANSAD
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Appearance:
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1,2,3,4,5
for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                             Date : 11/02/2021

                                 ORAL ORDER

1. By way of this petition, the petitioners have prayed for quashing and setting aside the award dated 17.01.2018 and has further sought directions to direct the respondent to extend the benefit of 6th Pay commission and leave encashment of 300 days with arrears to be paid to the present petitioners.

2. Heard learned advocate Mr. Samir B. Gohil for the petitioners through video conference.

3. The brief facts of the case can be summarized as under:

    3.1       That the present petitioners were serving
    under      the      respondent      and      now   they   are       retired






        C/SCA/2860/2021                                                     ORDER



  from     the      services.           The         petitioners            raised          an
  industrial             dispute         which           was      culminated               in
  Reference         (Demand)          Case          No.1    of       2014.       In     the
  claim       statement,            the        petitioners              prayed           for

extending the benefits of the 6th pay commission and to pay leave encashment of 300 days instead of 180 days, as per the recommendations of the 6th Pay Commission. The petitioners also prayed for dearness allowance and arrears.

3.2 The petitioners were serving under the respondent, which is a Charitable Trust. It was the case of the present petitioners that in the year 1989, the settlement was arrived between the Union of the respondent and the respondent in Reference (I.T.) Case No.236 of 1989 and pursuant to that, the employees of the respondent were granted the benefits of 4th and 5th pay commissions. It was further the case of the petitioners that since the benefits of the recommendations of the 4th and 5th pay commissions were extended to the petitioners, now the respondent cannot deny the benefits of the recommendations of the 6th pay commission. According to the petitioners, the respondent has a big chunk of land of around 1800 vighas and the land being very fertile land, the respondent is giving big contracts of the agriculture produces. The respondent has also the income from the sale of milk and therefore, the benefits as prayed for by the petitioners are required to be given, as

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they are the permanent employees of the respondent.

3.3 The respondent by way of a reply filed before the Presiding Officer, Labour Court, Junagadh submitted that the respondent is a Charitable Trust and the Trust does not get any financial aid from the Government. The recommendations of 6th and 7th Pay Commissions are applicable to the government employees and the institutions getting grant from the government and since the respondent being a charitable trust and not getting any aid from the government, the respondent is not in a position to sustain the burden of such huge financial liability. The respondent also contended that the present petitioners were getting the sufficient amount of salary and therefore, the demand for rising the salary is unreasonable. The respondent also submitted in the reply that the financial conditions of the respondent Trust is not healthy and there is a debt of around Rs.8,00,00,000/­ on the respondent. Considering the financial condition of the respondent as well as considering the fact that the respondent is not getting any donation and also considering the fact that except salary of the teachers, for which the institution is getting salary grant, all other expenses are borne by the respondent only and as and when necessity arises, the respondent has taken loan from the President of

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the institution or their family members and even those loans were also taken without any interest. Considering the debt that the respondent institution is burden with, the demand of the petitioners is unreasonable and is not required to be considered. The respondent also took a stand that, as against demand of leave encashment for a period of 300 days, the respondent is already giving leave encashment of 180 days and therefore, considering the totality, the demand of the petitioners being unreasonable, could not be entertained.

3.4 The Presiding Officer, Labour Court No. 1, Junagadh took into consideration the documentary as well as oral evidence which were on record as well as the other materials which were on record and framed the issues. After hearing the parties, the Labour Court observed that all the petitioners have accepted the fact that the respondent institution is not getting any financial aid from the government and in fact, it's a charitable trust. The petitioners also failed to produce any circular / resolution or notification to the effect that they are entitled for salary and other payments as per the recommendations of various pay commissions, as per the entitlement of the Government employees. The petitioners have also accepted and admitted the fact that the 6th Pay Commission is applicable only for the Government employees and they have

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also admitted the fact that the salary which they used to get were paid by the Trust. The Labour Court has also considered the fact that even water­fodder were also getting Rs.18,000/­ p.m. which is far more, than the wages required to be paid under the Minimum Wages Act. The Labour Judge has also observed the fact that a private Trust which does not get any government aid cannot be compelled to pay the monetary benefits at par with the Government employees. The Labour Judge has also observed that the settlement arrived at between the parties in a Reference (I.T.) Case No.236 of 1989 has not been placed on record by the petitioners. Ultimately, the Labour Court came to the conclusion that considering the fact the respondent­Trust is not a government aided trust or not getting any financial aid by way of a grant or any other mode from the Government, the petitioners cannot claim the financial benefits, as prayed for by the petitioners at par with the Government employees, as the respondent is a private Charitable Trust and therefore, the various resolutions, circulars and notifications issued by the Government for implementation of the various pay commissions are not binding upon the respondent and ultimately, dismissed the reference preferred by the petitioners.

4. The learned advocate Mr. Samir Gohil for the petitioners submitted that the impugned order

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dated 17.01.2018 passed by the Presiding Officer, Labour Court No.1, Junagadh in Demand Reference Case No.1 of 2014 is erroneous, illegal and unreasonable order, as the learned Presiding Officer, Labour Court, Junagadh has failed to appreciate the fact that earlier the petitioners were granted the benefits as per the recommendations of 4th and 5th pay commissions, pursuant to the settlement arrived at between the parties in Reference (I.T.) Case No.236 of 1989. He further submits that as per the Reference, when the respondent started giving the benefits to the petitioners of the recommendation of the 4th and 5th Pay commissions, it is obligatory for the respondent to extend the benefits of the recommendation of the 6th pay commission also to the present petitioners. He further submitted that when the respondent­Trust has adopted and accepted the recommendation of the State Government in respect of 4th and 5th pay commissions, in that case, it is obligatory upon the respondent­Trust to follow the practice adopted by all means. Hence, he further submitted that since the State Government employees are getting the leave encashment of 300 days even the present petitioners are also entitled to the benefits of 300 days as well as the arrears, as is paid to the employees of the State Government.

5. However, when a query put to learned advocate for the petitioners, as to whether a private charitable trust, which is not getting any financial aid or assistance from the State Government, under

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which provision of law, such a Trust can be asked to make payment to its employees at par with the Government employees. Learned advocate Mr. Gohil could not point­out any provision of law, any judgment/ resolution/ circular or notification equating the employees of the private Trust and government employees at par with each other. When a query was put to the learned advocate Mr. Gohil, as to whether the settlement arrived at between the parties in Reference (I.T.) Case No. 236 of 1989 was placed on record or not. The learned advocate Mr. Gohil fairly submitted that the settlement arrived at between the parties in Reference (I.T.) Case No.236 of 1989 was never placed on record. Learned advocate Mr. Gohil further submitted that even as per the aforesaid settlement, it was not agreed upon between the parties to extend the benefits of recommendations of 6th and 7th pay commissions to the present petitioners and other employees of the respondent­ institution.

6. In view of above, considering the fact that there is noting on record to indicate that the respondent Trust was ever agreed to extend the benefits as per the recommendations of the various pay commissions, which are extended by the State Government to its employees and also considering the fact that the settlement arrived at between the parties in Reference (I.T.) Case No. 236 of 1989 was not on record and as submitted by the learned advocate Mr. Gohil, even in that settlement, there

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was no clause which may bind the respondent to extend the benefits of 6th and 7th pay commissions to the present petitioners, the petitioners cannot be said to be entitled to the benefits as prayed for by them by way of the demand Reference Case No.1 of 2014.

7. Accordingly, I am firmly of the view that the Presiding Officer, labour Court No.1, Junagadh has not committed any error while passing the order dated 17.01.2018 in Demand Reference Case No.1 of 2014, whereby, the Reference of the petitioners was dismissed. I am in complete agreement with the reasonings assigned by the Presiding Officer, Labour Court No.1, Junagadh, and hence the same does not warrant any interference by this Court. Therefore, the petition is required to be dismissed and is dismissed accordingly, with no order as to costs.

(NIRZAR S. DESAI,J) Pradhyuman