Gujarat High Court

Manubhai Raghavbhai Parmar vs The State Of Gujarat on 12 July, 2022

Bench: Biren Vaishnav

      C/SCA/5657/2019                             JUDGMENT DATED: 12/07/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 5657 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                        MANUBHAI RAGHAVBHAI PARMAR
                                   Versus
                           THE STATE OF GUJARAT
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Appearance:
(DIPESH D CHHAYA)(8075) for the Petitioner(s) No. 1,2
KHUSHBU D CHHAYA(8093) for the Petitioner(s) No. 1,2
MR KURVEN DESAI, AGP for the Respondent(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 2,3,4
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 12/07/2022

                              ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai,

learned Assistant Government Pleader waives

service of notice of Rule for the respondent -

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State while Mr. Rituraj Meena, learned advocate

waives service of notice of Rule for and on behalf

of respondent Nos.2 to 4.

2. With the consent of the learned advocates for the

respective parties, the petition is taken up for

final hearing today.

3. In this petition, the petitioners have prayed to

pass an order to fix the pay fixation as awarded

in connection with the order passed by the

Hon'ble High Court in Special Civil Application

Nos.5943/2008, 5945/2008 and LPA

Nos.972/2017 and 974/2017 and further prayed

to pay the arrears alongwith the interest @ 18%

p.a. by granting the benefit of GR dated

17.10.1988.

4. The facts would indicate that the petitioners

were working with the respondent Nos.2 to 4.

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They had challenged their terminations before

the Labour Court. The Labour Court by the

awards passed in the Reference filed by the

petitioners granted reinstatement in service with

continuity and 20% back-wages. The awards of

the Labour Court were a subject-matter of

challenge by the petitioners / workmen and by

the employer - Executive Engineer. The group of

petitions were heard together and this Court by

an order dated 3.5.2016 disposed of the petitions

modifying the awards of the Labour Court. The

benefit of continuity of service was taken away

and restricted only to claim such benefit for the

purposes of gratuity. The award of back-wages to

the extent of 20% was also modified to that of

lump-sum of Rs.7,000/-. Para 21 of the order

dated 3.5.2016 passed in SCA No.5943 of 2008

and allied matters of the Coordinate Bench reads

as under:

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"21. Now, the question arises with regard to direction granting continuity of service and back-wages.

21.1 It has emerged from the record that more than 20 years have passed since the services of the concerned claimants came to be discontinued. He also emphasized that the workmen raised dispute after delay of more than one year and that the concerned claimants were engaged on daily wage basis and they were working as daily wagers. When the said aspects are taken into account, it comes out that the direction granting continuity of service for almost 20 years in favour of the concerned persons who were engaged on daily wage basis and that too without following procedure for selection and recruitment as prescribed under the rules applicable to the board, is not justified.

21.2 Under the circumstances, it is clarified that the workmen will not be entitled to claim continuity in services,

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for any purpose, except gratuity, if payable according to the rules. It is also clarified that the reinstatement of the claimants will be on their original post and in their original capacity, i.e. as daily wagers.

           21.3         So    far     as      order       directing
           payment       of   back-wages             at    20%          is

concerned, the said direction is also set aside and instead, it is clarified that the concerned workmen will be entitled for lump sum compensation of Rs.7,000/- (Seven Thousand Only) in addition to reinstatement on their original post, i.e. as daily wagers.

21.4 So far as Special Civil Application No.8977 of 2007 filed by the son of the workman Mr. Iqbalbhai Nanubhai Rathod (since deceased) is concerned, in view of foregoing discussion and above mentioned directions more particularly the decision to set aside the order granting backwages, the said petition does not survive. The challenge against the

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award declining full backwages is rejected and consequently, the Special Civil Application No.8977 of 2008 is rejected, however, with clarification that the heir of the deceased workmen will be entitled for aforesaid lump sum compensation.

With aforesaid clarifications and directions, the petitions are disposed of. The awards impugned in Special Civil Application No.5943 of 2008, 5944 of 2008 and 5945 of 2008 are partly modified to the aforesaid extent. Rule is made absolute to the aforesaid extent."

5. The order of the Coordinate Bench became a

subject-matter of challenge before the Division

Bench in a group of LPAs. It was pointed out by

the learned counsel for the petitioners -

workmen even before the Appeals were filed, the

workmen had been reinstated in service and the

Board has passed an order treating the period as

taken for the purposes of gratuity. A request was

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made that while disposing of the Appeals, a

suitable observation be made that the concerned

workmen shall be paid the wages of

reinstatement and even as Daily Wager they

shall be paid wages / minimum wages provided

under the Minimum Wages Act.

6. The relevant portion of the common oral

judgment dated 25.1.2018 passed in LPA

No.972/2017 and allied matters of the Division

Bench dated 25.1.2018 read as under:

"[2.0] Today, when the present Letters Patent Appeals are taken up for further hearing, Shri Chhaya, learned Advocate appearing on behalf of the respective appellants - original workmen has stated at the Bar that as such after the impugned common judgment and order passed by the learned Single Judge and even before the present appeals are preferred by the concerned workmen as well as the original respondent -

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Gujarat Water Supply Sewerage Board, order has already been passed reinstating the concerned workmen and the impugned judgment and order passed by the learned Single Judge has been accepted by the respondent Board. Therefore, in view of the order dated 23.02.2017, Shri Chhaya, learned Advocate appearing for the original workmen does not press the present Letters Patent Appeal Nos.972/2017 to 974/2017 more particularly in view of the fact that even under the order dated 23.02.2017 of the Executive Engineer of the Board, the continuity is ordered to be considered for the purpose of gratuity. However, has made a grievance that by misreading and/or misinterpreting the impugned order passed by the learned Single Judge by which in lieu of 20% backwages the learned Single Judge has ordered to pay Rs.7000/ by way of lumpsum backwages / compensation, the concerned workmen are paid Rs.7000/ per month only instead of paying minimum wages due

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and payable under the provisions of the Minimum Wages Act.

Therefore, while disposing of the appeals preferred by the concerned workmen, it is requested to make suitable observation that the concerned workmen shall be paid the wages of reinstatement and even as daily wager they shall be paid the wages / minimum wages provided under the Minimum Wages Act.

[3.0] The subsequent order dated 23.02.2017 passed by the Executive Engineer of the Board is directed to be taken on record. Shri Rituraj Meena, learned Advocate appearing on behalf of the original petitioners - Board and the appellants of Letters Patent Appeal Nos.2601/2017 to 2603/2017 does not dispute the subsequent order dated 23.02.2017 by which the Board as such has accepted the impugned judgment and order passed by the learned Single Judge. He has stated at the Bar under the instructions from the concerned Officer of the Board that as such the

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concerned workmen are being paid the wages as daily wagers due and payable under the provisions of the Minimum Wages Act. In view of the above and more particularly the subsequent order passed by the Executive Engineer dated 23.02.2017, which is already directed to be taken on record, and as requested by Shri Chhaya, learned Advocate appearing on behalf of the appellants of Letters Patent Appeal Nos.972/2017 to 974/2017, the said Letters Patent Appeal Nos.972/2017 to 974/2017 are dismissed as not pressed / withdrawn.

           However,          it         is        observed               and
           directed       that       on      reinstatement                the

concerned workmen shall be paid the wages as per the provisions of the Minimum Wages Act from the date of the judgment and award passed by the learned Labour Court. Therefore, it is directed that if the original workmen - appellants of Letters Patent Appeal Nos.972/2017 to 974/2017 are not paid / not being paid the minimum wages under the provisions of the Minimum

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Wages Act, in that case, same shall be paid by the Board with arrears if any within a period of six weeks from today and continue to pay the same.


           [4.0] Now,     so      far       as    the       Letters
           Patent      Appeal        Nos.2601/2017                     to
           2603/2017           preferred              by            the
           original    petitioners          challenging             the

impugned common judgment and order passed by the learned Single Judge in Special Civil Application Nos.5943/2008 to 5945/2008 are concerned, at the outset it is required to be noted that as such the Board has already accepted and implemented the impugned judgment and order passed by the learned Single Judge which is evident from the order passed by the Executive Engineer dated 23.02.2017. Under the circumstances, as such the Board ought not to have preferred the present Letters Patent Appeals. It appears that only as a counter blast to the Letters Patent Appeals preferred by the concerned workmen the Board has preferred the present Letters

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Patent Appeal Nos.2601/2017 to 2603/2017 and that too after accepting and implementing the impugned judgment and order passed by the learned Single Judge. Under the circumstances, Letters Patent Appeal Nos.2601/2017 to 2603/2017 preferred by the Board deserve to be dismissed and are, accordingly, dismissed."

7. It is in this context of these prayers today, Mr.

Meena submits that the petitioners are being

paid wages in accordance with the directions of

the Division Bench of this Court and the prayers

made in this petition therefore may not survive.

8. In the event, there is no compliance of the order

of the Division Bench dated 25.1.2018 as quoted

hereinabove, the respondents shall comply with

the same in true later and spirit of the order

within a period of four weeks from the date of

receipt of copy of this order.

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