Gujarat High Court
State Of Gujarat vs Laxmanbhai Nathabhai Machar on 14 December, 2022
Bench: A.J.Desai
C/LPA/1557/2022 ORDER DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1557 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 4192 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
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==========================================================
STATE OF GUJARAT
Versus
LAXMANBHAI NATHABHAI MACHAR
==========================================================
Appearance:
Mr. Sahil Trivedi. Asst. GOVERNMENT PLEADER for the Appellant(s)
No. 1
for the Respondent(s) No. 2
MR P C CHAUDHARI(5770) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 14/12/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1.0. The group of Letters Patent Appeal No.399 of 2022 and
allied appeals have been filed by the State Authorities
challenging the common CAV judgment dated 5.11.2020
passed by the learned Single Judge (Coram: Hon'ble Mr.
Justice Bhargav D Karia) in captioned writ petitions
whereas Letters Patent Appeal No.1557 of 2022 and allied
appeals have been filed against the oral order dated
15.09.2021 passed by the learned Single Judge (Coram:
Hon'ble Mr. Justice A.S. Supehia) in captioned writ
C/LPA/1557/2022 ORDER DATED: 14/12/2022
petitions.
2.0. As the common question of law and facts arise in all
these appeals, they are being heard and decided together
with the consent of the learned advocates for the respective
parties.
3.0. The short facts arise from the record of the Letters
Patent Appeal No.399 of 2022 and allied matters are as
under:
3.1. That the respondents - daily wagers who were working
with the Forest Department with various unit of Forest
Department raised an industrial dispute challenging their
illegal termination though they have worked for various
years for 240 days in each years.
3.2. The demand of reinstatement with backwages by the
employee was opposed by the State Authorities by way of
filing of reply before the Reference Court.
3.3. The Reference Court by judgment and award dated
13.10.2017 allowed the Reference in part and held that
action of the State Authorities to terminate the services of
each employee was illegal and therefore, he was reinstated
on the post with continuity of service, however no back
wages were granted to the employees.
C/LPA/1557/2022 ORDER DATED: 14/12/2022
3.4. The said judgment and award was challenged by the
State Authorities as well as employees-workmen. The
learned Single Judge by common judgment and order dated
5.11.2020 (Coram: Hon'ble Mr. Justice Bhargav D Karia)
whereas in one batch of appeals i.e. Letters Patent Appeal
No.1557 of 2022 and allied appeals, the learned Single
Judge (Coram: Hon'ble Mr. Justice A.S. Supehia) by order
dated 15.09.2021 while confirming the order of Labour
Court of reinstatement with continuity of service, partly
allowed claim of the workmen-petitioners of Special Civil
Application No.4192 of 2019 by setting aside the
subsequent action of State Authorities in engaging
petitioners on piece rate wages. The learned Single Judge
while passing the impugned order has relied upon the order
dated 5.11.2020 passed in Special Civil Application No.2767
of 2018. Hence, the appeals are taken up for hearing
together and are decided by this common oral order. Being
aggrieved and dissatisfied with the aforesaid orders of
learned Single Judge, the State Authorities have preferred
the present group of Letters Patent Appeals.
4.0. Mr. Chaudhary, learned advocate for the employees -
workmen has categorically stated that they have not
challenged their dismissal by the learned Single Judge, by
which, the order of the Reference Court / Tribunal of non-
grant of backwages is upheld. Hence, consideration for this
Court in this group of appeals is the validity of the order
C/LPA/1557/2022 ORDER DATED: 14/12/2022
passed by the learned Single Judge qua confirming the
reinstatement of each employee with continuity of service.
5.0. Mr. Sahil Trivedi, learned Assistant Government
Pleader has vehemently submitted that the Tribunal as well
as learned Single Judge has committed an error in
accepting the case of employee that they have not worked
for more than 240 days in each year. In absence of any
evidence produced by the workmen, Mr. Trivedi submitted
that it was the case of the appellant that they were
appointed only for monsoon season to carry out certain
works and thereafter they were not hired on daily wages.
This aspect has not been properly considered by the
Tribunal as well as learned Single Judge. By taking us to
the reply filed in one of the Reference Case (LCS) No.98 of
2005 (the same reply has been filed in each of the
Reference), Mr. Trivedi, learned Assistant Government
would submit that along with written statement extract of
one of the person / employee was produced, which states
that in the year 2001-02 the concerned employee has
worked for 198 days wherein in the year 2002-03 he has
worked for 90 days and therefore, it cannot be said that he
has worked for 240 days in each year. He would therefore,
submit that in absence of any specific evidence led by the
employees, the Industrial Tribunal as well as learned Single
Judge ought not to have presumed that they have worked
for 240 days in each year. In support of above submissions
C/LPA/1557/2022 ORDER DATED: 14/12/2022
and relying upon the decision of the Hon'ble Supreme Court
in the case of Bhavnagar Municipal Corporation vs. Jadeja
Govubha Chhanubhai and Another reported in (2014) 16
SCC 130, Mr. Trivedi, learned Assistant Government Pleader
would submit that as per the ratio laid by the Hon'ble
Supreme Court it is the duty of the employee to establish
that he has completed 240 days in each year. He, therefore,
would submit that appeals be admitted and implementation
of the order passed by the learned Single Judge as well as
Tribunal be stayed.
6.0. On the other hand, Mr. Chaudhary, learned advocate
appearing for the employees in each of the matter has
vehemently submitted that the State Authorities have
accepted the decision i.e. CAV judgment dated 5.11.2020
passed by the learned Single Judge (Coram: Hon'ble Mr.
Justice Bhargav D Karia) in some of the writ petition which
was filed by the State Authorities itself as well as writ
petition filed by the employees and only in few writ petition,
Letters Patent Appeals have been preferred by the State
Authority and therefore, State Authorities have adopted pick
and choose method, as per the convenience of the
department. Apart from this first contention, he has taken
us to the award passed by the Reference Court. By taking
us to the issue frame by the Tribunal, more particularly,
issue no.5, he would submit that State Authorities have not
produced any document before the Tribunal relating to the
C/LPA/1557/2022 ORDER DATED: 14/12/2022
attendant register or any details with regard to salary paid
to each of the employees. He would submit that even the
Tribunal has held that the State Authorities have failed to
establish the fact that work was taken only in the monsoon
season. He would submit that even in the written statement,
it has never alleged by the employer that any of the
dailywager had not worked for 240 days. He would submit
by producing some extract, it cannot be said that they have
worked only for those days and particularly in absence of
any other supporting evidence produced by the State
Authorities.
7.0. By taking us to the para 19 of the judgment passed by
the learned Single Judge, he would submit that the learned
Single Judge has dealt with factual as well as legal aspect of
the case on hand and ultimately upheld the decision of the
Tribunal. He would submit that employees have already
been reinstated by the State Authorities way back in the
year 2014 and since then they have worked with the
Appellants. By making above submissions, it is requested to
dismiss the Letters Patent Appeals filed by the State
Authorities.
8.0. We have heard the learned advocates for the respective
parties and perused the award passed by the learned
Tribunal as well as orders passed by the learned Single
Judge. Considering the written statement filed before the
C/LPA/1557/2022 ORDER DATED: 14/12/2022
Reference Court by the State Authorities, there is no
contention raised by the State Authorities that the
employees have not completed 240 days in any of the years,
which it has claimed. It is true that some extract produced
by the Authorities before the Tribunal suggest that in
particular year concerned employees have not completed
240 days. However, if we examined the findings of the
Tribunal with regard to issue no.5, it appears that the State
Authorities have only examined one witness, however except
his oral version, he has not produced any documentary
evidence like attendance register or pay register, which
shows the salary paid to each of the employees.
9.0. As far as judgment relied upon by Mr. Trivedi, learned
Assistant Government Pleader in the case of Bhavnagar
Municipal Corporation and Others (supra) is concerned, the
facts in the aforesaid case is totally different. In the
aforesaid decision, the Corporation has produced other
important document like xerox copy of the employment
given for particular period since original was with the
employee itself. In such circumstances, the Hon'ble
Supreme Court has held in favour of the appellant whereas
in the present case facts are different, therefore, the same
would not be applicable in the present case.
10. When there is no specific contention raised by the
State Authorities before the Tribunal about non-working of
C/LPA/1557/2022 ORDER DATED: 14/12/2022
employee for 240 days in a particular year and if such facts
have been deposed before the Tribunal, it was the duty of
the State Authorities to produce the necessary documents
to establish that the employees have not worked for 240
days. This aspect has also been considered by the learned
Single Judge. The findings of the learned Single Judge
recorded in para 19 to 27 reads as under:
"19. Having heard the learned advocates for the respective
parties and having gone through the materials on record,
Labour Court has arrived at following finding of fact on the
basis of oral and documentary evidence produced before it :
i) That the petitioner was appointed as "Chowkidar" on 1 st
January, 1998 on a monthly salary of Rs. 1200/-.
ii) Service of the petitioner was terminated from 18th
September, 2002.
iii) On the basis of details provided by respondent no.1 at
Exh.19, wherein the number of days worked by the
petitioner are mentioned in the presence register, Labour
Court has found on perusal of such presence register that
during the year 2001-2002, the petitioner worked for 12
months and not for the rainy season as stated by the
witness of the respondent no.1.
iv) Labour Court has also found that respondent no. l is
not declared as a seasonal institute by the Government
and office of the Range Forest Officer works throughout the
year.
v) Respondent no.1 has not produced any documentary
evidence to show that any salary slip or voucher was
provided to the petitioner workman.
vi) During the course of cross examination of the
petitioner, respondent no.1 failed to get any information
other than what is stated in the statement of claim that the
petitioner worked for more than 240 days in each of the
year of his service.
20. In view of the above findings of fact, Labour Court was
justified in holding that there is a violation of provision of
section 25F of the ID Act as no notice, notice pay or
retrenchment compensation was paid to the petitioner.
The Labour Court also arrived at findings of fact
C/LPA/1557/2022 ORDER DATED: 14/12/2022
that respondent no.1 failed to produce any
documentary evidence to show that there were
recruitment rules for employing the daily wager.
21.The Labour Court has therefore, come to the
conclusion that the services of the petitioner were illegally
terminated by respondent no.1.
22.The Labour Court has also found that during the year
2014, the petitioner was reinstated in service by
respondent no.1 during the pendency of the reference, but
instead of payment of minimum wages to the petitioner,
respondent no.1 paid wages on the basis of piece rate.
This fact is also stated by the petitioner in his
affidavit at Exh.21 stating that as the petitioner opposed
the payment of wages on the basis of piece rate, his
service was discontinued with effect from 6th January,
2015. Therefore, the Labour Court came to the conclusion
that there was a requirement of service of the petitioner
by respondent no.1. Labour Court therefore, came to the
conclusion that there is a breach of section 25H of the ID
Act.
23. Labour Court after considering the decisions
rendered by this Court in Special Civil Application
No.17770/2014 and in Special Civil Application
No.18763/2014 and Government Resolution came to the
conclusion that the petitioner was also entitled to be
reinstated in view of Government Resolution dated 17th
October, 1988.
24. With regard to denial to award of back wages,
Labour Court relied upon the cross examination of the
petitioner at Exh.8 wherein he has admitted that he was
doing some labour work. Relying upon such evidence and
in view of the following decisions, Labour Court came to
the conclusion that the petitioner is not entitled to
any back-wages considering the fact that respondent no.1
is Government and there is public money involved for
payment of back wages:
i) Decision of Supreme Court in case of M.P. State
Electricity v. Smt. Zarina reported in 2003(98) FLR 595.
ii) Decision of Supreme Court in case of Kendria
Vidyalaya v. S.P. Sharma reported in 2005 LLR 275.
iii) Decision of Madhya Pradesh High Court in case of
Sagar v. Presiding Officer, Labour Court reported in
C/LPA/1557/2022 ORDER DATED: 14/12/2022
2006 LLR 549.
iv) Decision of Supreme Court in case of General
Manager Haryana Roadways v. Rudhansing reported in
2006 LLR 849.
25. Thus, the Labour Court has passed the impugned
judgment and award on the findings of fact. In view of
various judgments cited at bar on behalf of the petitioner
as discussed here in above the petitioner was also
entitled to the benefit of Government Resolution dated
17th October, 1988 in view of the decision of the
Supreme Court in case of State of Gujarat and others v.
PWD Employees Union and others (supra), wherein the
Apex Court has held as under:
19. The main questions which arise for our consideration
in these appeals are:
(1) Whether the daily wage workers of Forest and
Environment Department working for 5 to 30 years for
works other than building and maintenance and
repairing work are entitled to derive benefits of the
scheme contained in the Resolution dated 17th October,
1988 issued by the State from Road and Building
Department;
(2) If so, whether the members of the respondent-
employees Union working on daily wages for more than 5
to 30 years in the Forest and Environment Department of
the State will be entitled for similar benefits of the
scheme contained in the Resolution dated 17th October,
1988.
19. From a bare reading of the Resolution dated 17th
October, 1988, the following facts emerge:
(a) Labour and other Unions made representation to the
Government making demands and issues relating to daily
wage workers of different departments of the
Government.
(b) The State Government constituted a committee under
the Chairmanship, Minister of Road and Building
Department.
(c) The Committee was constituted for studying
C/LPA/1557/2022 ORDER DATED: 14/12/2022
(i) the wages of daily wage workers;and
(ii) work related services and facilities provided to the daily
wage workers who are engaged in the building
maintenance and repairing work in different departments
of the State.
(d) The recommendations of the Committee were accepted
and accordingly the State Government resolved to provide
the benefits of the scheme contained in the Resolution
17th October, 1988.
20. The daily wage workers who were engaged in building
maintenance and repairing work in different departments
were already entitled for their work related facilities.
Therefore, what we find is that the Committee has not
limited the recommendation to the daily wage workers
working in building maintenance and repairing work in
different departments of the State. The State Government
vide its Resolution dated 17th October, 1988 has not
limited it to the daily wage workers working in building
maintenance and repairing work. What we find is that
the Resolution dated 17th October, 1988 is applicable to
all the daily wage workers working in different
departments of the State including Forest and
Environment Department performing any nature of job
including the work other than building maintenance and
repairing work. The decision of the Full Bench of Gujarat
High Court in Gujarat Forest Producers, Gatherers and
Forest Workers Union(supra and the subsequent
Resolution dated 22nd December, 1999 issued from
Forest and Environment Department of the State, in our
opinion are not sustainable, as the intent of Resolution
dated 17th October, 1988 was not properly explained
therein and, therefore, the aforesaid decision of Full
Bench and Resolution dated 22nd December, 1999
cannot be made applicable to the daily wage workers of
the Forest and Environment Department of the State of
Gujarat.
21. In view of the aforesaid observation, we find that the
full Bench of the Gujarat High Court in Gujarat Forest
Producers, Gatherers and Forest Workers Union(supra)
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proceeded on erroneous premises to hold that the
Resolution dated 17th October, 1988 is applicable only
to the daily wage workers of Forest Department engaged
in building maintenance and repairing work. The
conclusions in the said judgment are not sustainable
otherwise also. We have already noticed that the
Resolution of the State Government dated 17th October,
1988 is not limited to any particular department, it
applies to all the departments including Road and
Building, Forest and Environment Department, Water
Resources Department, etc. We have also noticed that
the Committee headed by the Minister of Road and
Building Department looked into the wages of daily wage
workers and work related facilities provided to the daily
wage workers engaged in building maintenance and
repairing work in different departments, only for the
purpose of its recommendations. The Committee has not
limited the recommendations amongst the daily wage
workers engaged in building maintenance and repairing
work in different departments by its aforesaid
Resolution. It is applicable to all daily wage workers
including semi- skilled workers performing any nature of
job, working in different departments of the State
including the daily wage workers of the Forest
Department performing work other than building
maintenance and repairing work.
22. The impugned order passed by the learned Single
Judge and the Division Bench arise out of the final order
and judgment dated 29th October, 2010 passed in SCA
No.8647/2008 and connected matters. The said order
has reached finality in absence of any challenge before
the higher Court and hence became binding between the
parties i.e. the appellant-State of Gujarat and the
respondents-Employees Union. Therefore, none of the
parties including appellants-State of Gujarat can rely on
Full Bench decision in Gujarat Forest Producers,
Gatherers and Forest Workers Union(supra) to scuttle
the decision and direction given by the Gujarat High
Court in SCA No.8647/2008 and connected matters.
C/LPA/1557/2022 ORDER DATED: 14/12/2022
23. The decisions in Uma Devi (supra) and A. Umarani
(supra) were regarding the question concerning
regularization of employees entered by back door method
or those who were illegally appointed encouraging a
political set up, in violation of Article 14 and16 of the
Constitution of India. We are of the opinion that both the
aforesaid decisions are not applicable in the present case
i.e. to the members of the respondent- Employees Union
for the following reasons:
(i) The Secretary, Forest and Environment Department
of the State of Gujarat by his order dated 3rd May,
2008 held that initially the entry of the daily wagers do
not suffer from any illegality or irregularity but is in
consonance with the provisions of Minimum Wages
Act. Therefore, the question of regularization by
removing procedural defects does not arise.
(ii) The Gujarat High Court by its judgment dated 29th
October, 2010 passed in SCA No.8647 of 2008 while
noticing the aforesaid stand taken by the State also
held that the nature of work described in the order
dated 3rd May, 2008 shows that the daily wage-
workers are engaged in the work which is perennial in
nature.
(iii) The case of A.Uma Rani (supra) related to
regularization of services of irregular appointees. In the
said case this Court held that when appointments are
made in contravention of mandatory provisions of the
Act and statutory rules framed therein and in
ignorance of essential qualifications, the same would
be illegal and cannot be regularized by the State.
24. Thus, the principal question that falls to be
considered in these appeals is whether in the facts and
circumstances it will be desirable for the Court to direct
the appellants to straightaway regularize the services of
all the daily wage workers working for more than five
years or the daily wage workers working for more than
five years are entitled for some other relief.
25. As per scheme contained in Resolution dated 17th
October, 1988 all the daily wage workers were not
entitled for regularization or permanency in the services.
C/LPA/1557/2022 ORDER DATED: 14/12/2022
As per the said Resolution the daily wagers are entitled
to the following benefits:
"(i) They are entitled to daily wages as per the prevailing
Daily Wages. If there is presence of more than 240 days
in first year, daily wagers are eligible for paid Sunday,
medical allowance and national festival holidays.
(ii) Daily wagers and semi skilled workers who has service
of more than five years and less than 10 years are
entitled for fixed monthly salary along with dearness
allowance as per prevailing standard, for his working
days. Such daily wagers will get two optional leave in
addition to 14 misc. leave, Sunday leave and national
festival holidays. Such daily wagers will also be eligible
for getting medical allowance and deduction of provident
fund.
(iii) Daily wagers and semi skilled workers who has
service of more than ten years but less than 15 years are
entitled to get minimum pay scale at par with skilled
worker along with dearness allowance as per prevailing
standard, for his working days. Moreover, such daily
wagers will get two optional leave in addition to 14 misc.
leave, Sunday leave and national festival holidays.
He/she will be eligible for getting medical allowance and
deduction of provident fund.
(iv) Daily wagers and semi skilled workers who has
service of more than 15 years will be considered as
permanent worker and such semi skilled workers will get
current pay scale of skilled worker along with dearness
allowance, local city allowance and house rent allowance.
They will get benefit as per the prevailing rules of
gratuity, retired salary, general provident fund. Moreover,
they will get two optional leave in addition to 14 misc.
leave, 30 days earned leave, 20 days half pay leave,
Sunday leave and national festival holidays. The daily
wage workers and semi skilled who have completed more
than 15 years of their service will get one increment, two
increments for 20 years service and three increments for
25 years in the current pay scale of skilled workers and
their salary will be fixed accordingly."
26. Considering, the facts and circumstances of the case,
the finding of Gujarat High Court dated 29th October,
C/LPA/1557/2022 ORDER DATED: 14/12/2022
2010 in SCA No.8647/2008 and connected matters and
the fact that the said judgment is binding between the
parties, we are of the view that the appellants should be
directed to grant the benefit of the scheme as contained
in the Resolution dated 17th October, 1988 to all the
daily wage workers of the Forest and Environment
Department working for more than five years, providing
them the benefits as per our finding at Paragraph 25
above. The appellants are directed accordingly. The
judgment and order passed by the learned Single Judge
dated 29th October, 2010 as affirmed by the Division
Bench by its order dated 28th February, 2012 stands
modified to the extent above. The benefit should be
granted to the eligible daily wage workers of the Forest
and Environment Department working for more than five
years including those who are performing work other
than building maintenance and repairing but they will be
entitled for the consequential benefit w.e.f. 29th October,
2010 or subsequent date from which they are so eligible
within four months from the date of receipt/production of
the copy of this order. The appeals stand disposed of with
the aforesaid observation and directions to the appellant-
State and its authorities. There shall be no separate
orders as to costs.
26. In view of the above conspectus of law, Labour Court has
rightly passed the award of reinstatement of the petitioner with
continuity of service to his original post without backwages
and so far as communication dated 6th November, 2017 is
concerned, the same is contrary to the impugned judgment
and award passed by the Labour Court, therefore, such
communication is also quashed and set aside directing
respondent no.1 to reinstate the petitioner within a period of
three months from the date of receipt of writ of this order so as
to comply with the judgment and award passed by the Labour
Court.
27. Decisions cited on behalf of the learned
Assistant Government Pleader are not applicable to the facts of
the case, as there is a categorical finding of fact arrived at by
the Labour Court that the petitioner worked for more than 240
days in 12 calendar months preceding to the date of his
termination from service as provided under section 25B of the
ID Act in view of evidence produced at Exh.19 by respondent
C/LPA/1557/2022 ORDER DATED: 14/12/2022
no.1 showing the working days of the petitioner with
respondent no.1."
11. We are in complete agreement with the view taken by
the learned Single Judge. Hence, we do not find any merits
in any of the Letters Patent Appeals. In view of the above
and for the reasons stated above, all the Letters Patent
Appeals stand dismissed.
12. In view of dismissal of Letters Patent Appeal, Civil
Applications also stand dismissed.
(A.J.DESAI, J)
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
