Gujarat Water Supply & Sewerage ... vs Agricultural And Rural Labour ...
2021 Latest Caselaw 14105 Guj

     C/SCA/954/2016                               JUDGMENT DATED: 15/09/2021



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 954 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA
=============================================
1  Whether Reporters of Local Papers may be allowed to NO
   see the judgment ?

2    To be referred to the Reporter or not ?                            YES

3    Whether their Lordships wish to see the fair copy of the           NO
     judgment ?

4    Whether this case involves a substantial question of law           NO
     as to the interpretation of the Constitution of India or
     any order made thereunder ?

==================================================
           GUJARAT WATER SUPPLY & SEWERAGE BOARD
                            Versus
     AGRICULTURAL AND RURAL LABOUR ASSOCIATION & 1 other(s)
==================================================
Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 1
MS ASHLESHA M PATEL(6127) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
==================================================
    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                     Date : 15/09/2021
                     ORAL JUDGMENT

1) By way of the present writ petition, the petitioner-Gujarat Water Supply and Sewerage Board (the petitioner-Board) has prayed for quashing and setting aside the award dated 24.04.2015 passed by the Industrial Tribunal, Nadiad (the Tribunal) partly allowing Reference (IT) No. 17 of 2005 by directing the petitioner-Board to grant the benefits of Government Resolution dated 17.10.1988 to the members of the respondent Association.

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2)      Learned advocates appearing for the respective parties have

also submitted written submissions, which are also considered by this Court.

3) Learned Senior Advocate Mr.Prashant Desai for learned advocate Mr.Munshaw appearing for the petitioner-Baord has submitted that the directions issued by the Tribunal for extending the benefits of Government Resolution dated 17.10.1988 issued by the State Government, is erroneous since the members/workmen of the respondent No.1-Agricultural and Rural Urban Association (the respondent-Association) were the part-timers. It is submitted that the policy framed by the State of Gujarat, through Government Resolution dated 17.10.1988 issued by the petitioner-Board is one time measure, which has to be conferred to the daily wagers only. It is submitted that in absence of the any sanctioned and permanent posts, in the establishment, the Tribunal should not have issued such directions vide impugned award. Thus, it is submitted that the benefits of the Government Resolution dated 17.10.1988 cannot be extended to the members of respondent Association.

4) Learned Senior advocate Mr. Prashant Desai has submitted that the Tribunal has erred in not undertaking the exercise of scrutinizing each and every daily-wager, who are the members of the respondent-Association and whether they should be granted the benefits of Government Resolution dated 17.10.1988. It is submitted that the matter may be remanded back to the reference court for scrutinizing such daily-wagers. It is submitted that some of the workmen are the part-timers working for one hour, two hours or five to six hours and if the Government Resolution dated 17.10.1988 is implemented in their cases, the same would be a heavy monetary burden on the public exchequer. It is submitted that the Tribunal has also not considered the circular of the State Government dated

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30.11.1994. Reliance is placed on the judgment of the Division Bench dated 24.07.2020 passed in Letters Patent Appeal No. 82 of 2020 in support of his submissions.

5) In response to the aforesaid submissions, learned advocates Mr.Yatin Oza with Mr. Yogen Pandya appearing for the respondent- Association has submitted that the applicability of the Government Resolution dated 17.10.1988 to the employees of the daily-wagers, has been settled by catena of decisions of the Supreme Court as well as this Court. He has submitted that the Division Bench in the recent decision dated 27.08.2021 passed in Civil Application No.3910 of 2019 in F/Letters Patent Appeal No.35122 of 2019 and allied matters has considered all the judgments on the issue. He has submitted that the Government Resolution dated 17.10.1988, which was adopted by the petitioner-Board is also examined as the petitioner-Board was one of the parties in those groups of petitions. It is submitted that thus, it is now not open for the petitioner-Board to take contrary stand in the present writ petition, as the issue is squarely covered by various judgments of this Court, which are confirmed by the Apex Court also.

6) I have heard the learned advocates appearing for the respective parties. The impugned award is also perused by this Court.

7) The case of the petitioner-Board primarily hinges only on one submission that the Tribunal has passed an erroneous award of extending the benefits of the Government Resolution dated 17.10.1988 to the members of the respondent-Association, since its members are the part- timers.

      C/SCA/954/2016                           JUDGMENT DATED: 15/09/2021




8)      This Court has perused the award threadbare. A perusal of the

impugned award reveals that the petitioner-Board has miserably failed in establishing the fact that the members of the respondent- Association or the workmen are engaged on part time basis. There was no evidence led by the petitioner-Board before the Tribunal, indicating that the workmen are the part-timers and they are not the daily-wagers. The Tribunal has also examined the provisions of the Government Resolution dated 17.10.1988 and also subsequent Government Resolution dated 13.11.1994 issued by the petitioner- Board. There are various depositions considered by the Tribunal, including catena of decisions of Supreme Court as well as this Court. The Tribunal has specifically held that the daily-wagers of the respondent-Association, who are engaged after 1988 are also entitled to the same benefits. After the examination of the evidence on record, a finding has been recorded by the Tribunal that the workmen have been engaged as a daily wagers since inception of the scheme and they have been continuously working under the petitioner-Board and are also paid the monthly basis. Thus, nothing is produced to the contrary as submitted by the petitioner-Board with regard to the employment of the workmen as part-timers before the Tribunal. Thus, once it is established that the workmen of the respondent-Association were engaged as daily wagers, the law is well settled that such daily wagers, who have completed 5-15-20 years of service, are entitled to the benefits under the Government Resolution dated 17.10.1988 even if they are engaged after the date of the issuance of the resolution. The Division Bench in the judgment dated 27.08.2021 passed in Civil Application No.3910 of 2019 in F/Letters Patent Appeal No.35122 of 2019 has considered catena of decisionS, including decisions of the Supreme Court in case of the State of Gujarat and Ors. vs. PWD Employees Union and Ors, (2013) 12 SCC

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417, State of Gujarat vs. PWD & Forest Employees Union and Ors., (2019) SCC Online SC 204. The decision of the Division Bench in the aforesaid judgement in paragraphs No.34, 35, 36, 37 and 38 has held thus;-

"34. We have considered the submissions. The argument advanced by Shri Trivedi today is a day late and a dollar short. May be if such argument had been advanced at an appropriate time, the Court would have examined in that light. But reopening the whole issue today would result into severe discrimination and would be very unjust to the present group of employees who are engaged prior to the employees in the case of Atul C. Soni (supra) which was carried upto the Supreme Court. The learned Single Judge has examined this aspect of the matter in great detail and has referred to the relevant judgments which has resulted into grant of the benefits on the grounds of equality and parity, rather the present employees are holding better case than the case of the employees in case of Atul C. Soni (supra). We may also note here that in the case of Mahendrakumar Bhagvandas (supra), the issue regarding permanency and regularization was considered and the judgment went upto the Supreme Court to be affirmed not once but twice. Paragraph 7 and its sub-paragraphs, 8, 9 and 10 of the judgment of the learned Single Judge contain detailed discussion on this aspect. The same are reproduced hereunder:

"7. This takes to the relief for extension of benefits of (i) Transport Allowance; (ii) Travelling Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encashment and (v) Leave Travel Concession on the basis of Resolution dated 17th October, 1988. it is the case of the petitioners that though the said benefits are not expressly mentioned in the Resolution dated 17th October, 1988, they are part of the permanency benefits which are available under the Resolution and when these benefits are available to homogeneous class of permanent employees, the petitioners should also be granted the same.

7.1 This issue cannot be said to be res integra in view of decision in Mahendrakumar Bhagvandas (supra). Those were the petitioners who were dailyrated employees, regularise in service under the Resolution dated 17th October, 1988 and all benefits as regular government servants were extended to them except the leave encashment, leave travel concession, etc. They had approached this Court with grievance that by not extending the said benefits, the authorities had discriminated them, as though they were accorded permanency benefits, it was minus of the aforesaid benefits of encashment of leave, travelling allowance, etc., even as these benefits were part and parcels of permanency status.

7.1.1 In Mahendrakumar Bhagvandas (supra), the Division Bench confirmed the judgment of the learned Single Judge, noted the submissions on behalf of the State authorities thus,

"2. Learned AGP reiterated the argument that even as workmen concerned were entitled to, and were in fact granted most of the

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benefits at par with regular employees of the State, in terms of Government Resolution dated 17.10.1988, some of the benefits such as encashment of leave, leave travel assistance, travelling allowance, uniform allowance etc. were denied to them on the basis that they were not full-fledged duly recruited government servants. Learned AGP relied upon subsequent government resolution dated 18.7.1994, whereby it was sought to be clarified that the word 'permanent' in G.R. dated 17.10.1988 was meant to convey job security but it was not meant to be understood to make daily rated employees regular employees on the set up and establishment of respective departments. It was fairly conceded that entitlement of the employees concerned was wholly dependent upon reading and interpretation of G.R. dated 17.10.1988."

7.1.2 The Division Bench thereafter considered the object, applicability and scope of Government Circular dated 17th October, 1988 and further noted the clauses in the subsequent Resolution dated 18th July, 1994. It was thereafter observed in paragraph 5 to hold as under.

"5. ... ... ... subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent service are already accorded to the employees concerned in terms of G.R. dated 17.10.1988. Under such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the remaining few benefits. Once the employees concerned were, in fact, treated for all purposes as permanent employees in terms of G.R. dated 17.10.1988, any discrimination or denial of benefits for a segment of such employees, who were subsequently re-branded as "daily wager" (rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of the Constitution. Nor can the State Government legally take away the rights conferred and benefits, already accorded to the employees concerned by or under a subsequent government resolution, which expressly supersedes earlier instructions and not earlier G.R. dated 17.10.1988 by which the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 years would be made permanent under G.R. dated 17.10.1988 but subsequently re-branded and treated as a daily wager. The submission of learned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and that they were at best "permanent daily wage employees", is contradictory and has no backing of any legal provision or precedent. ... ... ..." 7.2 On behalf of respondent No.1 - State, affidavit-in-reply was filed through the Under Secretary, Narmada Water Resource, Water Supply and Kalpsar Department in which it was accepted that Special Leave Petition Nos.29108-29114 of 2014 was

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disposed of by the Apex Court and the question of granting benefits to the daily-wagers of respondent No.2 Board attained finality and that the entitlement of the petitioners for grant of benefits concerned is within the purview of respondent No.2 - Gujarat Water Supply and Sewerage Board. However, respondent No.1 expressed objection to the grant of the prayer in respect of extending the benefit of various allowances such as Transport Allowance, Leave Encashment, Leave Travel Concession, etc., by submitting that the issue with regard to grant of these benefits to daily-wagers is pending in Letters Patent Appeal (Stamp) Nos.1134 of 2017 and 1271 of 2017. Dealing with the said aspect of pendency of said Letters Patent Appeals, no orders are passed in the said Letters Patent Appeals.

7.3 Not only that and in in any view, the employees involved in the said Letters Patent Appeals are the employees of the Departments of the Government whereas the present petitioners are the employees of respondent No.2 - Board. They are identically placed with other similarly situated employees of the same Board who are granted the benefits claimed in the petition. Therefore, since the petitioners belonged to the homogeneous class, they are entitled to the same benefit and same treatment. As far as the entitlement of this class of employees working under the respondent No.2 - Board, the issue can be said to have already been considered and decided.

7.4 There is yet another reason as to why the petitioners herein could not be denied the equal treatment in respect of payment of the allowances of transport allowance, travelling allowance, etc. Subsequent to the orders of the Supreme Court in Special Leave to Appeal (Civil) Nos.29108-29114 of 2014 mentioned above, similarly placed batch of employees were granted the benefits by the respondent - Board by passing Office Order No.59 of 2016 dated 02nd September, 2016 in which, along with granting of benefits of 6th Pay Commission, the Board also accorded benefits of the allowances mentioned hereinabove. A reference is made to this office order in paragraph 5.4 in Anand Bhausaheb Pawar (supra). Therefore, as far as the Board's employees are concerned and all those other similarly situated, these benefits to be extended to them as flowing from the status of permanency which they may acquire by getting benefit of Resolution dated 17th October, 1988.

8. The issues in the controversy and claims of and relief prayed for by the petitioners operate interactively. The decision in Atul C. Soni (supra) was also based on the Division Bench decision in Mahendrakumar Bhagvandas (supra).

8.1 It is to be further noticed that the decision in Mahendrakumar Bhagvandas (supra) was challenged before the Supreme Court by filing Special Leave Petition (Civil) Nos.19970-19975 of 2012 which came to be dismissed by order dated 09th November, 2012. Thereafter the review applications came to be filed by the State being Nos.35043-35048 of 2012 and the said review applications were also dismissed on 14th May, 2015. Therefore, the decision in Mahendrakumar Bhagvandas (supra) having attained finality upto the stage of the Apex Court, stands to operate to apply to the present petitioners and all other similarly situated employees for the purpose of their claim to be granted the allowances in question as part of

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permanency benefits.

9. In the above view, class of the daily-wagers to which the petitioners herein belonged, have to be held entitled to the relief prayed in paragraph 33(C) and the benefits of (i) Transport Allowance; (ii) Travelling Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encashment and (v) Leave Travel Concession are required to be extended to them in the same lines as they are extended to the permanent employees since these petitioners are also treated as permanent on the basis of Resolution dated 17th October, 1988.

9.1 The view taken as above stand solidified by subsequent decisions on the aspect. In Vallabhbhai Chhotabhai Chauhan v. State of Gujarat being Special Civil Application No.1945 of 2014, the petitioner therein was a retired daily-wager who prayed that he was entitled for encashment of privilege leave. The petitioner was appointed as daily-wager and was granted benefit of permanency under Resolution dated 17th October, 1988. Learned Single Judge relied on Mahendrakumar Bhagvandas (supra) and allowed the petition holding that the petitioner was entitled to the encashment of privilege leave to the extent of 300 days. This decision in Vallabhbhai Chhotabhai Chauhan (supra) was confirmed by the Division Bench in Letters Patent Appeal No.1310 of 2015 decided on 30th October, 2015.

9.2 Referring to the decision of Division Bench in State of Gujarat v. Mahendrakumar Bhagvandas (supra), it was observed in the aforementioned judgment dated 30th October, 2015 as under.

"6. When the decision of the Division Bench of this Court, which has been relied upon by the learned Single Judge is not interfered with by the Apex Court in the afore referred proceedings of SLP and the review is also dismissed, in our view, it cannot be said that the learned Single Judge had committed any error in exercise of the power, which may call for interference in the present appeal. Further, when the SLP is also dismissed against the above referred decision of the Division Bench of this Court in the case of State of Gujarat (supra) and the review application is also subsequently dismissed, such would be a further more ground not to interfere with the order of the learned Single Judge."

9.3 The same question came to be dealt with by another Division Bench of this Court in Gujarat Water Supply and Sewerage Board v. Jorubhai Jijibhai Dabhi being Letters Patent Appeal No.457 of 2016 wherein also the original petitioner had claimed benefit of leave encashment upon his retirement. Learned Single Judge allowed the petition, against which Letters Patent Appeal No.457 of 2016 was preferred. The Division Bench relied on Mahendrakumar Bhagvandas (supra) and confirmed the decision of the learned Single Judge by dismissing the appeal.

10. The aforesaid facts and the principles of law highlighted, render the inaction on part of the respondent authorities (a) in not extending the benefits of 6th Pay Commission to the petitioners; (b) in not merging 50% Dearness Allowance in the basic salary with effect from 01st April, 2004 and (c) in not granting the benefits of allowances (i) Transport Allowance; (ii)

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Travelling Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encashment and (v) Leave Travel Concession as part of permanency benefits though the benefit of permanency is granted to the petitioners under Resolution dated 17th October, 1988, as violative of petitioners' rights under Article 14 read with Article 16 of the Constitution. This discrimination has to be finally smothered by granting the relief."

35. The other argument of Shri Trivedi placing reliance upon the judgment in the case of Karshanbhai K. Rabari (supra) would also not be available today in view of the subsequent developments that have taken place in between as narrated above in the judgment of the learned Single Judge.

36. The other argument of Shri Trivedi regarding difference between permanency and regularization would also not be available insofar as the present appeals are concerned inasmuch as the benefits extended by the learned Single Judge have already been extended by the Sewerage Board and the State of Gujarat for the employees of the Sewerage Board vide subsequent circulars after the judgment in the case of Atul C. Soni (supra) attained finality before the Supreme Court.

37. It would also be worthwhile to mention here that the judgment in the case of Mahendrakumar Bhagwandas (supra) having been upheld upto the Supreme Court and all the issues having been raised and having been discussed and dealt with, it would be unreasonable and unfair to the original petitioners from denying the benefit extended to the other daily wagers covered by the Government Resolution dated 17.10.1988.

38. In view of the above, group of appeals filed by the Sewerage Board and the State against the judgment of the learned Single Judge extending the five benefits also deserve to be dismissed and are accordingly dismissed. Consequently, the connected Civil Applications to these appeals stand disposed of."

9) Thus, the Division Bench, after survey of various judgments, has held that over and above the benefits, which are available under the Government Resolution dated 17.10.1988, the daily-wagers are also entitled to other amounts likely leave encashment, benefits of 6 th pay commission, traveling allowance etc. The petitioner-Board is also one of the parties to various writ petitions, which are referred to by the Division Bench. Thus, it settled principles of law that once it is established that the daily-wagers, who have completed 5-10-15 years of service, in any department of the State of Gujarat, including the present petitioner-Board, they are entitled to the benefits of the Government Resolution dated 17.10.1988 and are treated at par as

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regular employees.

10) The request of the petitioner-Board for remanding the matter does not merit acceptance. It is always open for the Board to extend the benefit of the Government Resolution dated 17.10.1988 only to the daily wagers, who are engaged by them. The Supreme Court in case of P.W.D Employees Union (supra) has in fact elucidated the applicability of the Government Resolution dated 17.10.1988 to the daily wagers, who are working under various departments of the State of Gujarat. Thus, no variant view can be expressed in view of the catena of judgments, both by Apex Court as well as this Court that the benefits flowing from the Government Resolution dated 17.10.1988 are only available for the daily wagers and not to the part-timers. The petitioner-Board can always undertake necessary exercise of identifying the daily wagers from part timers. Thus, with this clarification, the award is confirmed. This Court does not find any infirmity, illegality or perversity in the award of the Industrial Tribunal, and hence, the present writ petition fails. Rule is discharged. Interim relief, if any, granted earlier shall stand vacated.

Sd/-

(A. S. SUPEHIA, J) VISHAL MISHRA