Gujarat High Court

Ashvinbhai Baldevbhai Parmar vs State Of Gujarat on 25 January, 2022

Bench: Biren Vaishnav

      C/SCA/1358/2021                                   JUDGMENT DATED: 25/01/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 1358 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV Sd/-
================================================================
 1 Whether Reporters of Local Papers may be allowed to see the                No
   judgment ?

 2 To be referred to the Reporter or not ?                                    No

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

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

================================================================
                  ASHVINBHAI BALDEVBHAI PARMAR
                              Versus
                        STATE OF GUJARAT
================================================================
Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
MR MEET K. THAKKAR, AGP for the Respondent(s) No. 1
================================================================

     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 25/01/2022

                               ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Meet K. Thakkar,

learned Assistant Government Pleader for the

respondent - State.

2. With the consent of the learned counsels for the

respective parties, the petition is taken up for final

C/SCA/1358/2021 JUDGMENT DATED: 25/01/2022

hearing today.

3. The short issue involved in this petition is to direct

the respondent - authority to extend the benefit of

GR dated 17.10.1988 to the petitioner. By way of an

interim prayer, the petitioner has prayed to grant

the minimum pay scale of Class-III-IV.

4. The facts in brief would indicate that the petitioner

was working initially as Work Charge Clerk since

1995. His services were terminated with effect from

8.3.2000. On raising an Industrial Dispute before the

Labour Court, the labour Court by an award dated

10.12.2010 allowed the Reference directing the

reinstatement with continuity of service with 20%

back-wages.

5. On the challenge being made to the award by filing

Special Civil Application No.10170 of 2011, the

employer filed an appeal before the Division Bench,

which was dismissed by this Court on 5.8.2013. It is

C/SCA/1358/2021 JUDGMENT DATED: 25/01/2022

under these circumstances, the petitioner has

prayed for the benefit of Government Resolution

dated 17.10.1988.

4.1. Mr. Chaudhary would submit that in an

identically situated employee of the same

department, this Court in Special Civil Application

No.2238 of 2013 on 22.10.2018 considering the

decisions in the case of State of Gujarat v. PWD

Employees Union and others reported in

2013(2) GLH 692 and State of Punjab v. Jagjit

Singh reported in 2017(1) SCC 148 directed the

concerned respondents as under:

"9. Having heard learned counsels for the respective parties, it is not in dispute that the petitioner was engaged as a labourer to carry out unskilled work with effect from 01.11.1994. Faced with the termination order of 16.03.1997, the petitioner was constrained to approach the labour Court, which directed reinstatement with continuity of service. The State, failed in its challenge and was therefore bound to comply with the order of the labour Court granting reinstatement with continuity of service. Having done so, as a model employer, it was bound to comply with the spirit of the resolution that was envisaged in it i.e. resolution dated 17.10.1988, needless to reproduce relevant clauses of the resolution, which has been relied now by Shri Pathak. The resolution dated 17.10.1988 is a mathematical formula which stipulates that a daily wager is entitled to a particular amount of fixation of pay on completion of number of years of service. It clarifies that, once a daily wager completes stipulated 10 years of service in accordance with Section 25(B) of the Industrial Disputes Act, 1947, he shall be entitled to a minimum scale of pay of Rs.750 - 940/-.

C/SCA/1358/2021 JUDGMENT DATED: 25/01/2022

10. It does not lie in the mouth of the State Government to deny such a minimum pay-scale once the petitioner is in service since 1994. Having succeeded before the labour Court and before this Court in getting his stand vindicated of being reinstated with continuity of service, ironically it is the State, which now says that since he was not engaged on a regular post of Class-IV employee, he shall not be entitled to a minimum scale of pay and in accordance with the policy which the State itself has made. In the judgment of the Hon'ble Supreme Court in the case of State of Punjab & Ors., vs. Jagjit Singh & Ors.,(supra), the Hon'ble Supreme Court considered thread bare the case law on the issue on hand and observed that it is not open for the State as a model employer to deny benefit of minimum scale of pay to an employee who has discharged his duties continuously. It is not disputed in the facts of the case that, once having granted the benefit of continuity of service since 1994, it was not open for the State to deny pay parity, at least minimum of the pay-scale for Class-IV employee and/or the benefits of the Government Resolution dated 17.10.1988, on the principle of "Equal Pay, for Equal Work". It will be fruitful to quote para 60 of the judgment in the case of State of Punjab & Ors., vs. Jagjit Singh & Ors. (supra). Para 60 of the judgment is quoted herein below:

"60. Having traversed the legal parameters with reference to the application of the principle of "equal pay for equal work", in relation to temporary employees (daily-wage employees and the like), the sole factor that requires our determination is, whether the employees concerned (before this Court), were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of "equal pay for equal work" summarised by us in para 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals were appointed against posts which were also available in the regular cadre/establishment. It was also accepted that during the course of their employment, the temporary employees concerned were being randomly deputed to discharge duties and responsibilities which at some point in time were assigned to regular employees. Likewise, regular employees holding substantive posts were also posted to discharge the same work which was assigned to temporary employees from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary

C/SCA/1358/2021 JUDGMENT DATED: 25/01/2022

employees in the present set of appeals were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State that any of the temporary employees would not be entitled to pay parity on any of the principles summarised by us in para 42 hereinabove. There can be no doubt, that the principle of "equal pay for equal work" would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post."

11. In light of the law laid down by the Hon'ble Supreme Court, the State is bound to and shall pay to the petitioner, the benefits that he is entitled to, on the number of years of service he having completed in accordance with the Government Resolution dated 17.10.1988. Such benefits in accordance with the Resolution dated 17.10.1988, if not paid, till date shall be computed and paid to the petitioner within a period of six weeks from the date of receipt of certified copy of this order."

6. Considering the aforementioned decisions, the

respondents are bound and shall pay to the

petitioner, the benefits that he he is entitled to, on

the number of years of service he having completed

in accordance with the GR dated 17.10.1988. Such

benefits in accordance with the GR dated

17.10.1988, if not paid, till date shall be computed

and paid to the petitioner within a period of eight

weeks from the date of receipt of the order.

7. It is clarified that the petitioner shall not be entitled

C/SCA/1358/2021 JUDGMENT DATED: 25/01/2022

to any arrears and shall be paid benefits only from