Surat Labour Union vs State Of Gujarat
2022 Latest Caselaw 2676 Guj

    C/SCA/14838/2020                              JUDGMENT DATED: 09/03/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 14838 of 2020


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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                          SURAT LABOUR UNION
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,5,6,7,8,9
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4,5,6,7,8,9
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 09/03/2022

                            ORAL JUDGMENT

1 Rule returnable forthwith. Mr.Kurven Desai, learned Assistant

Government Pleader, waives service of rule on behalf of the State-

       C/SCA/14838/2020                              JUDGMENT DATED: 09/03/2022



respondent.

2         The petitioners, by way of this petition have prayed that the

respondents be directed to extend the benefits of the 6 th and the 7th Pay

Commission in light of the Resolution dated 24.08.2009. The other prayer

of the petitioners is to declare the inaction on the part of the respondent

authorities of fixation pay of the petitioners in light of the Government

Resolution dated 24.08.2009 as bad. Further prayer is that the past

services of the petitioners should be counted in light of the oral order

dated 27.06.2009 passed by this Court in Special Civil Application

No.8671 of 2008.

2.1 The petitioners had approached this Court by filing Special Civil

Application No.8617 of 2008. After having rendered five to fourteen

years of service as referred to in the order of 27.06.2008, the services of

the petitioners were terminated, references were preferred by the

petitioners before the Labour Court, where the Labour Court, Surat,

directed the respondents to re-engage the petitioners on vacant posts. The

case of the petitioners was that the petitioners were entitled to the benefits

of the Resolution dated 17.10.1988. The Court while disposing off the

matter, observed as under:

"11. I have considered the aforesaid decisions which have been relied upon by learned advocate Mr.Mulia and the order passed by the State Government giving re-engagement to the concerned petitioners and paying the benefits as per Para.1 of the GR dated 17.10.1988. However, considering the facts which have been

C/SCA/14838/2020 JUDGMENT DATED: 09/03/2022

emerging from the petition, if the State Government has considered earlier services as they were employed prior to 1988 then, the Government has to consider the earlier service rendered by them prior to 1988 while granting the benefit under GR dated 17.10.1988. Therefore, it is directed to the respondents to consider the case of petitioners in light of the aforesaid background and considering various decisions of Apex Court and Bombay High Court as referred above and also factual aspect that they were employed prior to 1988, rendered number of years of service prior to 1988 and also consider their case for regular pay scale as per Para.2 of the GR dated 17.10.1988 for giving the benefit of minimum pay scale of Rs.2550/- plus dearness allowance, casual leave including the medical allowance within a period of two months from the date of receiving the copy of the said order and pass appropriate orders in accordance with law and communicate the decision to the petitioners."

2.2 It appears that, the Union, namely, the PWD Employees Union

filed Special Civil Application Nos. 46661 of 2015 and allied matters

before this Court. The petitioners Nos. 2 to 48, though the member of the

PWD Employees Union, did not file petition as was filed by the

petitioners of Special Civil Application No.4661 of 2015. In the petition

so filed, the Court, after considering the facts on hand wherein directions

were sought in view of the non compliance of the order passed in Special

Civil Application No. 8617 of 2008 and in context of the prayer that the

petitioners are entitled to fixation of their pay in the pay of Rs.4440 and

in the pay band of Rs.4,440-7,440 in light of the Government Resolution

dated 24.08.2009, the Court passed the following order:

"54. In the wake of Government Resolution dated October 17, 1988, even if their services can be considered from the time the impugned order dated June 13, 2002 was passed, their entitlement

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for fresh daily wage employment without continuity of service or back wages against the sanctioned post which were vacant, subject to permission of the Government, could not have been denied. Viewing from these aspects, in the opinion of this Court, denying the petitioners the benefit of Government Resolution dated August 24, 2009, would surely be an act of discrimination. The petitioners when were taken up in service in the year 2008, would complete five years of service in the year 2013. The Government of Gujarat has issued the Government Resolution dated August 24, 2009, granting 6th Central Pay Commission to the daily wage employees working in different departments of the Government of Gujarat. The respondent-authority has also passed an order that the petitioner Nos.2 to 69 have completed more than five years of service, but less than 10 years of service and, therefore, they would not be entitled to basic pay of Rs.4440 in the pay band of Rs.4440- 7440 along with the Dearness Allowance, Medical Allowance, etc. in light of the Government Resolution dated August 24, 2009 issued by the respondent-State, which is the corresponding revised pay band of the pay scale of Rs.2550-3200.

55. Examining such a claim from another angle, If one goes by the Government Resolution dated October 17, 1988, on completion of 10 years of service, the daily wagers and semi-skilled workers would be entitled to get minimum pay-scale at par with skilled workers along with Dearness Allowance and other benefits. Likewise, on completion of more than 15 years of service, they would be entitled to be considered as permanent workers and would get present pay-scale of the skilled workers along with Dearness Allowance, Local Compensatory Allowance and other benefits. Thus, with more than 10 years of service and less than 15 years of service, they are put at par with the skilled workers and are found entitled to the minimum pay-scale and with more than 15 years of service, they would be entitled to the present pay-scale of the skilled workers. It is unfathomable as to how these workers could be denied the benefit when there is a corresponding rise of the pay-scale from Rs.2550-3200 to Rs.4440-7440. Having specifically placed them in the pay-scale of Rs.2550- 3200, this Court finds that denial of minimum payscale of Rs.4440/- to the petitioners is discriminatory and contrary to the object of the Government Resolution dated October 17, 1988 and breach of the decision of the Apex Court in the case of PWD Employees Union (supra).

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56. This Court at this stage is also conscious of the communication dated October 22, 2010, addressed by the Superintending Engineer, Ukai Circle (Civil) to the office of the Executive Engineer, Ukai Division No.1, wherein certain benefits like Dearness Allowance, Minimum Wages, holidays, etc. have been DIRECTED to be given pursuant to the order dated June 27, 2008 passed by this Court in Special Civil Application No.8617 of 2008, wherein the respondentauthority was directed to consider the demands made by the petitioners. It is to be noted that there was no adjudication. The respondents were to use their good office, of course, in accordance with law and to avail them the benefits, if permissible under the Government Resolution dated October 17, 1988, or otherwise. The petitioners having failed to get the continuity of service and back wages after the Tribunal had awarded limited prayers in favour of the petitioners, allowing them a fresh daily wage employment without continuity of service against the sanctioned posts when all challenges have failed, this Court does not deem it appropriate to consider the prayer of treating their past services for the purpose of calculating the benefits as per the Government Resolution dated October 17, 1988.

57. Their challenge, therefore, as mentioned above, having failed for considering continuity of past services up to 2004, the same cannot be granted. However, their entitlement to be continued on these posts from the date of their re-engagement in the year 2007/2008 shall need to be granted.

58. For the foregoing reasons, the present petitions succeed and the same are, accordingly, PARTLY ALLOWED. The respondent- authorities are DIRECTED to fix the pay of the petitioners in the pay band of Rs.4440-7440 with 9% interest from the date of their entitlement, i.e. from the date of their reengagement, which shall be paid within a period of THREE MONTHS from the date of receipt of a copy of this order.

59. Independent of that, all the benefits which are otherwise available to them, shall be MADE AVAILABLE to them treating their services from the year 2008. The respondent-authorities may also regard the grant of these benefits from the date the award in favour of the petitioners. However, so far as the grant of specific prayers is concerned, the respondent-authorities are directed to place the petitioners in the minimum pay-scale of Rs.4440/- with

C/SCA/14838/2020 JUDGMENT DATED: 09/03/2022

9% interest. Any other periodical benefits, if any, flowing from the Government Resolution dated October 17, 1988, should be made available to them in accordance with law."

2.3 The prayer of the present petitioners is also the same as that which

was considered by this Court in the aforesaid group of matters.

3 Considering the directions issued by this Court in the order dated

02.05.2017, particularly in para 59 thereof, since the petitioners are

similarly situated, the directions given in paras 58 and 59 shall govern the

case of the petitioners and same benefits shall be extended to the

petitioners of the present petition on the same terms and conditions of the

aforesaid paras Nos. 58 and 59 within a period of three months from the

date of receipt of copy of this order.

4 The petition is allowed, accordingly. Rule is made absolute to the

aforesaid extent.

(BIREN VAISHNAV, J) Bimal