District Rural Development ... vs Rajubhai Abhesing Bhaliya
2023 Latest Caselaw 3555 Guj

    C/LPA/125/2023                                      CAV JUDGMENT DATED: 28/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/LETTERS PATENT APPEAL NO. 125 of 2023

              In R/SPECIAL CIVIL APPLICATION NO. 3192 of 2019

                                  With
          CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
               In R/LETTERS PATENT APPEAL NO. 125 of 2023

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA

and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA

==========================================================

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 No the interpretation of the Constitution of India or any order made thereunder ?

========================================================== DISTRICT RURAL DEVELOPMENT AGENCY Versus RAJUBHAI ABHESING BHALIYA ========================================================== Appearance:

MR HS MUNSHAW(495) for the Appellant(s) No. 1,2

ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the

==========================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE NIRAL R. MEHTA

C/LPA/125/2023 CAV JUDGMENT DATED: 28/04/2023

Date :28/04/2023

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr.Munshaw for the appellants, learned advocate Mr.Dipak Dave for the respondent No.1 and learned Assistant Government Pleader Mr.Krutik Parikh for the respondent State.

2. This Letters Patent Appeal is directed against judgment and order dated 7.7.2022 of learned single Judge whereby learned single Judge allowed the petition of respondent No.1- original petitioner, directing the respondents to consider the case of the petitioner and extend the benefits of Resolution dated 17.10.1988 on the basis of number of years of service rendered by the petitioner.

2.1 Special Civil Application was filed by the petitioner making following prayers, "(i) To direct the respondents to grant benefits of Government Resolution dated 17.10.1988 to the petitioner and may be pleased to direct the respondents to place the petitioner in fixed pay after completion of five years of service and thereafter to place the petitioner in pay- scale after 10 years of continuous service and further direction may be issued against the respondents to give all consequential benefits to the petitioner after extending aforestated benefits under Government Resolution dated 17.10.1988 including regular pay-scale on the date the petitioner completed 10 years of service.

(ii) To direct the respondents to extend all the

C/LPA/125/2023 CAV JUDGMENT DATED: 28/04/2023

benefits of regular post with regular pay-scale in favor of the petitioner from the date he completed 10 years of service.

(iii) To direct respondents to pay difference of salary to the petitioner after placing the petitioner in pay-scale after completion of 10 years of service."

3. The case of the petitioner in the petition was inter alia that he was appointed as water-bearer on 10.6.1997. According to the petitioner he was required to do the clerical work but was paid meagre amount of Rs.300/- per month which subsequently increased to Rs.1350/- per month. His case was specific that he was required to do work for whole day. According to the petitioner he served under respondent authority right from 1997, rendering 19 years of continuous service.

3.1 It was the case that a similarly situated employee had filed Special Civil Application before this court for grant of benefits of Government Resolution dated 17.10.1988, in which proceedings they succeeded upto the stage of Letters Patent Appeal. It was the grievance that though the petitioner was entitled to be treated equally, since had completed 19 years of continuous service and was also entitled to 7 th Pay Commission scale. The case of the petitioner was that he was given only minimum wages at the daily-rate though work of clerical nature was taken from 8:00 a.m. in the morning till 6:00 p.m. in the evening. The petitioner made representation dated 9.7.2018 for grant of benefits emanating from Resolution dated 17.10.1988.

3.2 The petition was contested by respondent Taluka Development Officer by filing affidavit-in-reply to submit that the

C/LPA/125/2023 CAV JUDGMENT DATED: 28/04/2023

wages were paid to the petitioner as per policy of the Government. According to the stand of the respondent, Resolution dated 17.10.1988 was not applicable to the petitioner as it would apply to the daily-rated workman and that the petitioner could be treated as part-timer only. It was contended that, 'a part-timer rendering service for more than four hours per day is to be paid wages as if he is rendering service for the whole day but that does not mean that the petitioner is engaged as daily wager for whole day.' It was contended that the post water-bearer was not a sanctioned post.

3.3 Learned single Judge relied on the decision of this court in District Rural Development Agency, Vadodara Vs. Arvindbhai Ramanbhai Chauhan being Special Civil Application No.8468 of 2014, decided on 12.9.2014 and allowed the petition. The respondents were directed to extend the benefits of Resolution dated 17.10.1988 to the petitioner.

4. Learned advocate for the appellant repeated the contentions, which was advanced before learned single Judge. It was submitted that the respondent- petitioner was required to be categorized as part-time and that for such class of employees, benefits of Resolution dated 17.10.1988 are not extendable. It was submitted that non-inclusion of the part-timers for giving benefit of the Resolution was a policy of the employer State. It was submitted that the daily wagers render services for eight hours per day unlike the part-time employee.

4.1 Learned advocate for the appellant relied on the contentions raised in affidavit filed in support of the appeal to

C/LPA/125/2023 CAV JUDGMENT DATED: 28/04/2023

submit that case of the petitioners could not compared with the petitioners of Special Civil Application No.8468 of 2014. It was submitted that the present petitioner has directly approached this court by filing petition, whereas in the case relied on the workman had approached the labour court which recorded finding that he had worked for more than six hours.

4.2 Learned advocate for the original petitioner supported the judgment of learned single Judge and submitted that the petitioner was to be categorized as daily wager on facts and not a part-timer.

4.3 The relief came to be granted by learned single Judge to the petitioners after appreciating the submissions on behalf of the petitioner workman who relied on various documents annexed to the petition including the certificate as well as the pay-slips which showed that the petitioner was not part-timer or daily-rated employee working since 1997 continuously without break.

5. In District Rural Development Agency (supra), what was recorded by learned single Judge was that though the work was taken on the respondent workman for full-time, he was paid wages as if he was part-timer. It was observed that the employment was for four to six hours only. The policy of the Government was that, it was stated, on completion of five years of service, the workman would be given the regular pay scale of Class IV employee, and on further completion of five years service, other benefits were to be extended which all were the benefits under Resolution dated 17.10.1988. All those

C/LPA/125/2023 CAV JUDGMENT DATED: 28/04/2023

considerations apply to the present case also.

5.1 While granting relief to the said petitioners, in District Rural Development Agency (supra), following observations were made by learned single Judge in para 8 of the order which again apply to the present case.

"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. "

5.1.1 The court viewed such arbitrariness as unfair labour practice to proceed to observe in the same para, "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."

C/LPA/125/2023 CAV JUDGMENT DATED: 28/04/2023

5.1.2 Taking into account all the above circumstances that operated in law, the petition was allowed. The decision stood confirmed in Letters Patent Appeal No.837 of 2015 decided on 21.4.2015.

5.2 Furthermore, in the instant case the evidence which figures on record suggests to be able to fairly come to conclusion that the respondent workman was engaged as water- bearer and work was taken from him for whole day. Certificate dated 30.6.2017 was given by the Taluka Development Officer. The payment vouchers of salary to the respondent are on record. It reflected continuous payment on daily wages for the days of work. It was since 1997 that the workman had been in service. Even if the services were initially was to be treated as part-timer for the sake of it, the period of 25 years is fairly long period not to treat the petitioner to be entitled to the benefits. The work was perennial and the discharging of duty by the workman was for whole day.

6. Learned single Judge has recorded in para 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. 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

C/LPA/125/2023 CAV JUDGMENT DATED: 28/04/2023

to a part- timer. "

6.1 The reasons supplied and the conclusions drawn by learned single Judge could be said to be eminently proper in allowing the petition and granting relief to the petitioner. The judgment and order of learned single Judge is not liable to be interfered with in exercise of Letters Patent Jurisdiction.

7. The present Letters Patent Appeal is dismissed summarily.

In view of dismissal of the main Letters Patent Appeal, the Civil Application will not survive. Accordingly, it is disposed of.

(N.V.ANJARIA, J)

(NIRAL R. MEHTA,J) Manshi