Rajubhai Abhesing Bhalia vs State Of Gujarat
2022 Latest Caselaw 6035 Guj

       C/SCA/3192/2019                            ORDER DATED: 07/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3192 of 2019

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                         RAJUBHAI ABHESING BHALIA
                                   Versus
                            STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 07/07/2022

                               ORAL ORDER

1. Heard Mr. Dipak Dave, learned advocate for the petitioner, Mr.

Utkarsh Sharma, learned AGP appearing for respondent State and Mr.

HS Munshaw, learned advocate for respondent nos. 2 and 3.

2. The present petition has been filed by an employee working under

the respondents no. 2 and 3 for benefits of the resolution dated

17.10.1988.

3. Mr. Dipak Dave, learned advocate appearing for the petitioner

taking the court through the various documents annexed to the petition

namely the certificate as well as the pay slips would submit that the

petitioner was not a part-timer but a daily wager working since the year

C/SCA/3192/2019 ORDER DATED: 07/07/2022

1997 continuously without break for the whole day. He would therefore

be entitled to the benefits of the resolution dated 17.10.1988. Reliance

was placed on an order passed by this court in Special Civil Application

No. 8468 of 2014 wherein when the District Rural Development Agency,

Vadodara had challenged the award of the Labour Court granting benefits

of the resolution dated 17.10.1988 on the ground that the respondent

workman therein was a part-timer. The court had confirmed the award of

the Labour Court.

4. Mr. H.S. Munshaw, learned advocate for the respondents no. 2 and

3 would invite the court's attention to the affidavit-in-reply and point out

that the petitioner was a part-timer and was working as such only for four

hours a day and therefore he was not entitled to the benefits of the

resolution dated 17.10.1988 which are normally available to a daily

wager.

5. Considering the submissions made by learned counsels for the

respective parties, perusal of the certificate as well as the pay slips would

indicate that the petitioner was engaged as a daily wager and therefore to

deny the benefits of the resolution dated 17.10.1988 on the ground that he

was a part-timer is misconceived. Be that as it may. Even in the case of

a part-timer as observed by this court in Special Civil Application No.

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8468 of 2014 where ofcourse under consideration was award of the

Labour Court the principle that were considered by the court was

extension of the benefits of the resolution dated 17.10.1988 to a part-

timer. The co-ordinate bench of this court held as under:

"7. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under.

7.1 It is not in dispute that, the initial date of appointment of the respondent workman was 01.02.1994. It is also not in dispute that, it is the policy of the Government that a daily wager shall be granted certain benefits on his completing five years and ten years of his service. The said benefits are, being on the minimum of the regular pay scale of Class-IV employee, grant of yearly increments, leave etc. It is also not in dispute that, the respondent had completed five years of service, in the year 1999 and ten years of service in the year 2004, considering 01.02.1994 as his initial date of joining. It is under these circumstances, that he moved the Labour Court for these demands in the year 2006. Whether a part timer, working for five to six hours a day as per the say of the employer, should be treated to be a daily wager or not, is not the point for determination in this case, because, whether the present respondent was working for six hours or more was a question of fact, which the Labour Court has already gone into. This Court finds that, the Labour Court has, after evaluating the evidence on record, found that though the initial date of the appointment of the respondent workman was 01.02.1994, the material before the Labour Court, to prove that he could not have been treated to be a part timer, was only from 02.09.1996. So far not treating the respondent as a full timer for the period from 01.02.1994 to 01.09.1996 is concerned, that is not challenged by the workman, and therefore that aspect is not required to be gone into. The Labour Court has granted relief considering 02.09.1996 and not 01.02.1994. On this factual aspect, the finding recorded by the Labour Court does not call for any interference by this Court.

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7.2 This Court further finds that, what was claimed by the workman from the Labour Court, and what is granted by the Labour Court, is the benefits flowing from the policy of the Government as contained in Government Resolution dated 17.10.1988. It is also undisputable that, on the face of the finding of fact recorded by the Labour Court, as referred above, the respondent workman could not be denied the said benefits. Under these circumstances, no interference is required in the impugned award of the Labour Court and this petition is required to be dismissed.

8. There is additional dimension of this matter. The challenge of the employer is based on the misconception that on the Office Orders passed by it, the respondent was shown to have been working for a period of about 6 hours per day, though this might be continued for years and decades. Any employer, more particularly a public authority, cannot be heard to contend that work is there, but it is of six hours a day and the net effect thereof is that, for decades together the concerned workman is to be treated as a part timer, and as the consequence thereof, he can never be given pay-scale of the said post. Thus, to treat any workman for 6 hours on duty, and not for 8 hours, is less for the reasons that the requirement is for 6 hours, more an arrangement to deprive the workman of his legitimate dues. This circumstance, in no uncertain terms, would be an unfair labour practice and taking cognizance of it, the Government itself has adopted a policy as contained in Government Resolution dated 17.10.1988, which was pressed into service by the respondent workman before the Labour Court. Independent of it, it was also the policy of the Government that on completion of three years of service, the cases of the part timers were to be considered for regularisation as a full timer daily wagers. This aspect is also considered by the Labour Court. Considering all these aspects, the Labour Court came to the conclusion that, the respondent was entitled to receive the benefits as per the policy of the Government dated 17.10.1988, on completion of five years of service as a daily wager. This Court does not find any illegality in the said finding or the direction issued by the Labour Court in that regard, and therefore no interference is required by this Court.

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9.1 So far the decision relied upon by the learned advocate for the petitioner employer in the case of Nand Kumar (supra) is concerned, there cannot be any dispute with regard to preposition of law enunciated therein, however, at the same time, the decision of Honourable Supreme Court of India in the case of Harinand Prasad (supra) as relied by learned advocate for the respondent workman, is also required to be kept in view. Para:34 of the said judgment lays down the law that, wherever it is found that a workman is denied certain benefits under some scheme of the employer, and on approach, the Labour Court issues direction to grant that benefit, it cannot be termed to be illegal. By giving such a direction, the Labour Court would be achieving the equality by upholding Article 14, rather than violating this constitutional provision. Thus, the decision of Nand Kumar (supra) will not take the case of the petitioner employer any further, in the present case.

9.2 Further, while considering the applicability of the very Government Resolution dated 17.10.1988, the Division Bench of this Court, in the case of Gujarat Water Supply and Sewerage Board and others vs. PWD Employees Union and others, also took into consideration the decision in the case of Nand Kumar (supra), and ultimately upheld the grant of benefit under the said policy dated 17.10.1988. On this additional ground also, the reliance on the decision of Nand Kumar (supra) is not of any help to the petitioner employer.

10. Attempt is also made on the part of the employer that, the very engagement of service of the respondent was illegal since no procedure at the relevant time was followed. This contention needs to be rejected because an employer cannot be permitted to contend that, it is he who had to do something which he had not done, and therefore the workman is not entitled to relief. Reference in this regard can be made to the decision of Honourable the Supreme Court of India in the case of Bhartiya Seva Samaj Trust (supra), more particularly para:28 thereof.

11. Viewing from any angle, this Court finds that, none of the contentions of the petitioner employer can be accepted and no interference is required in the impugned award of the Labour Court and the petition needs to be dismissed.

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12. For the reasons recorded above, this petition is dismissed. The impugned award passed by the Labour Court, Vadodara in the Reference (Demand) (LCV) No.1 of 2006 dated 11.03.2014 is directed to be given effect to, within a period of three months from today. Notice is discharged. No order as to costs."

6. The aforesaid order was confirmed by the Division Bench of this

court in Letters Patent Appeal No. 837 of 2015.

7. In view of the above, the petition is allowed. The respondents are

directed to consider the case of the petitioner and extend the benefits of

the resolution dated 17.10.1988 in accordance with the number of years

rendered by the petitioner within a period of ten weeks from the date of

receipt of the writ of the order of this court. Direct service is permitted.

(BIREN VAISHNAV, J) DIVYA