Gujarat Maritime Board vs Bimalbhai Dineshchandra Patni
2023 Latest Caselaw 3666 Guj

    C/LPA/118/2020                             CAV JUDGMENT DATED: 29/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO.       118 of 2020

        In R/SPECIAL CIVIL APPLICATION NO. 17783 of 2015


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 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 ?

========================================================== GUJARAT MARITIME BOARD Versus BIMALBHAI DINESHCHANDRA PATNI ========================================================== Appearance:

MS DHARMISHTA RAVAL(707) for the Appellant(s) No. 1,2

MR DIPAK R DAVE(1232) for the Respondent(s) No. 1,2 ==========================================================

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

Date : 29/04/2023

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

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Heard learned advocate Ms. Dharmishta Raval for the appellant and learned advocate Mr. Dipak Dave for the respondents.

2. The present Letters Patent Appeal filed under Clause 15 of the Letters Patent is directed against the judgment and order dated 02.05.2017 of learned Single Judge, whereby the learned Single Judge allowed the Special Civil Application filed by respondents herein, the two petitioners.

2.1 The communication impugned was set aside and it was directed to give to the petitioners the benefit of decision of the Supreme Court in State of Gujarat and Ors. vs. PWD Employes Union and Ors. [2013(2) GLH 692 (SC):(2013) 12 SCC 417] upon completion of 10 years of service and to give all consequential benefits treating the petitioners as permanent.

2.2 The petitioners in their special civil application, advanced the following prayers,

"(i) to direct the respondents to grant benefits of Government Resolution dated 17.10.1988 to the petitioners and the petitioners be treated as permanent employees after completion of 5 years of service and be given all the benefits of permanent employees including regular pay-scale on the date the petitioners completed their 5 years of service;

(ii) to direct respondents to extend all the benefits of regular post with regular pay-scale in favour of the petitioners from the date they have completed 10 years of service as per the

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G.R. Dated 17.10.1988;

(iii) to direct respondents to pay difference of salary to the petitioners after placing the petitioners in pay-scale after completion of 5 years and 10 years of service;

(iv) to direct respondents to treat the petitioners as permanent employees after they have completed 10 years of service and be pleased to direct respondents to pay all consequential benefits to the petitioners treating them permanent after their completion of 5 years of service;

(v) to hold and declare that decision of the respondents in not extending benefits of Government Resolution dated 17.10.1988 to the petitioners is illegal.."

2.2 Thus, the petitioners claimed that they were entitled to get the permanency benefits and regular pay-scale and other benefits as per the State Government Resolution dated 17.10.1988, adopted by the respondent Gujarat Maritime Board -appellant herein.

3. The petitioner No.1 initially came to be appointed as apprentice in the trade of Wireman for three years with effect from 25.09.1989. Similarly, petitioner No.2 was appointed as apprentice Wireman by order of the respondent Board from 30.03.1990 to 29.03.1993. Both the petitioners completed apprenticeship training for three years and they also thereafter underwent apprenticeship test successfully to earn the certificate. The petitioners passed the

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examination of Wireman and certification was granted to them about passing such examination.

3.1 Immediately upon completion of apprenticeship period, the petitioners came to be engaged as daily wager wireman by respondent no.2 Gujarat Maritime Board in office of respondent no.3 Executive Engineer (Mechanical), Gujarat Maritime Board, Bhavnagar. Thus, the petitioner no.1 has been serving as Wireman since October 1992, whereas petitioner no.2 is in service since March 1993 as daily wager Workman. Both the petitioners have completed more than 20 years of uninterrupted service under the respondent Board.

3.2 It is the case that Resolution of the State Government dated 17.10.1988, whereby the service benefits are extended to daily rated Workman on the basis of length of service came to be adopted also by the Gujarat Maritime Board, appellant herein. The petitioner made representation for getting benefit thereunder. Respondent no.3 Executive Engineer stated that the proposal was forwarded to the Board and it was further intimated to the petitioners that the same was thereafter pending before the State Government. The petitioners remained under false hope that the proposal will be finalised soon. However, neither the proposal was materialised nor their subsequent representations were attended to.

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3.3 By virtue of order dated 13.10.2010, respondent no.2 regularised service of several daily wagers who were initially appointed for 29 days and continued. These daily wagers had approached Labour Court, Bhavnagar and earned award in their favour. They were similarly situated and many of them were junior to the petitioners, it was stated.

3.4 Learned Single Judge noticed the facts of the case and the aspect of long services rendered by the petitioners. Also mentioned in paragraph 4 of the impugned order was about the direction issued to the authority in order passed in Special Civil Application No. 11368 of 2014, whereby the case of the present petitioners was recommended for regularisation. It was also noticed and recorded that Resolution dated 17.10.1988 was adopted by Gujarat Maritime Board. The decision of the Apex Court in PWD Employees Union (supra) was relied on.

4. In PWD Employees Union (supra), the Supreme Court clearly observed that the benefit flowing from Resolution dated 17.10.1988 is not to be kept limited to the daily rated workers working in the building maintenance and repair work only but the resolution would be applicable to the class of daily rated workers working in different departments of the State.

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4.1 It was stated,

"The daily wage workers who were engaged in building maintenance and repairing work in different departments were already entitled for their work related facilities. Therefore, what we find is that the Committee has not limited the recommendation to the daily wage workers working in building maintenance and repairing work in different departments of the State. The State Government vide its Resolution dated 17th October, 1988 has not limited it to the daily wage workers working in building maintenance and repairing work. What we find is that the Resolution dated 17th October, 1988 is applicable to all the daily wage workers working in different departments of the State including Forest and Environment department performing any nature of job including the work other than building maintenance and repairing work. The decision of the Full Bench of Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest Workers Union (supra) and the subsequent Resolution dated 22nd December, 1999 issued from Forest and Environment Department of the State, in our opinion are not sustainable, as the intent of Resolution dated 17th October, 1988 was not properly explained therein and, therefore, the aforesaid decision of Full Bench and Resolution dated 22nd December, 1999 cannot be made applicable to the daily wage workers of the Forest and Environment Department of the State of Gujarat."

(para 20)

4.1.1 It was thereafter observed in PWD Employees Union (supra),

"In view of the aforesaid observation, we find that the full Bench of the Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest Workers Union (supra) proceeded on erroneous

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premises to hold that the Resolution dated 17th October, 1988 is applicable only to the daily wage workers of Forest Department engaged in building maintenance and repairing work. The conclusions in the said judgment are not sustainable otherwise also. We have already noticed that the Resolution of the State Government dated 17th October, 1988 is not limited to any particular department, it applies to all the departments including Road and Building, Forest and Environment Department, Water Resources Department, etc. We have also noticed that the Committee headed by the Minister of Road and Building Department looked into the wages of daily wage workers and work related facilities provided to the daily wage workers engaged in building maintenance and repairing work in different departments, only for the purpose of its recommendations. The committee has not limited the recommendations amongst the daily wage workers engaged in building maintenance and repairing work indifferent departments by its aforesaid Resolution. It is applicable to all daily wage workers including semi-skilled workers performing any nature of job, working in different departments of the State including the daily wage workers of the Forest Department performing work other than building maintenance and repairing work."

(para 21)

4.2 Learned Single Judge also relied on decision of this Court in the case of Kakubha Pratapsinh Gohil vs. State of Gujarat in Special Civil Application No.7570 of 2016, in which also, the benefits were granted to similar class of persons on the lines of decision in PWD Employees Union (supra). Yet another decision in Ashoksinh Pratapsinh Sarvaiya & 2 Vs. State of Gujarat & Ors. being Special Civil Application No.

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810 of 2014 was relied on, in which, the relief was granted on the basis of PWD Employees Union (supra).

5. Having seen the compass of the facts and nature of controversy as above and having appreciated the contentions canvassed by both the sides, it is to be noticed at the outset that the very petitioners herein had an occasion to file Special Civil Application No. 11368 of 2014, which resulted into order dated 08.07.2015 of the learned Single judge, in which the relief was prayed for in similar lines to give benefit of Resolution dated 17.10.2018 to the petitioners and to treat the petitioners as permanent employees after completion of five years service and to give benefits fo regular pay-scale upon completion of the requisite length of service of 5 years and 10 years as per the said Government Resolution.

5.1 It was the case of the very petitioners, in which this court finally observed these two aspects, firstly observing that the respondent Gujarat Maritime Board had already forwarded the proposal to the State Government for regularisation,

"3. Thus, it appears from the averments referred to above that the respondent Board has already forwarded a proposal to the State Government, seeking approval for regularization of the services of the two petitioners. However, as usual, it appears that such proposal is pending with the State Government as on today, and no decision has been taken so far."

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5.2 Allowing the petition, the direction was issued to the State Government to take decision, within stipulated time,

"4. In the result, this application is partly allowed. The State Government is directed to look into the proposal forwarded by the respondent Board as stated in paragraph No.15 of its reply and take an appropriate decision on the same within a period of four weeks from the date of the receipt of the order. State Government shall inform the Board about its decision in writing."

5.3 The prayer and relief in the said proceedings was based on the same decision of the Supreme Court in PWD Employees Union (supra). However, it did not bear fruits for the petitioners, who were compelled to file the present proceedings once again for seeking their rights.

6. As noted above, the petitioners initially joined as apprentices and after undergoing apprenticeship, came to be appointed as daily wagers. Petitioner no.1 worked since October 1992 and petitioner no.2 has since March 1993 in the office of respondent no.3. They had completed 20 years and more to render uninterrupted service in the Board.

6.1 The Resolution dated 17.10.1988, which the petitioners demanded was admittedly adopted by the Board. There was no reason for the Board not to implement the said resolution for its employees and

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give benefits to them on the basis of the length of service as contemplated in the resolution.

6.2 The petitioners were the employees who rendered long committed service. There are undisputed facts, it could be noticed that the Board regularised several such employees who belong to the homogeneous class with the petitioners. The allegation of the petitioner that there was pick and chose policy adopted by the Board could not be brushed aside lightly.

6.3 In view of the decision of the Supreme Court in PWD Employees Union (supra) and other decision, based on the same judgment, granted the benefit of regularisation to the similarly situated daily rated workman like the petitioners standing strong in favour of the petitioners to enable them to earn the relief in this petition.

6.4 The petitioners herein belong to the same class of persons entitled to be regularised. It is to be noted at the cost of repetition that in earlier Special Civil Application No. 11368 of 2014, the Court recommended the case of the petitioners directing the respondent Board to take appropriate decision, but nothing yielded.

6.5 The treatment meted out to the petitioners in not granting benefit to them flowing from Resolution dated 17.10.1988 and not granting them the benefit of

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permanency and regularisation despite their long committed services is unjust, unreasonable and arbitrary amounting to breach of Articles 14 and 16 of the Constitution.

6.6 Learned advocate for the appellant relied in vain, on the decision of the Supreme Court in Oil and Natural Gas Corporation vs. Krishan Gopal and Ors. [2020 SCC Online SC 150], as also in Maharashtra State Road Transport Corporation vs. Casteribe Rajya Parivahan Karmchari Sanghatana [(2009) 8 SCC 556], to submit that regularisation could not be granted to the petitioners. These decisions stand true on their own factual context.

6.7 In the present case, as noticed above, the petitioners are entitled to regularisation by virtue of scheme of regularisation dated 17.10.1988, adopted by appellant Gujarat Maritime Board and approved for its implementation for all daily wagers by the Apex Court in PWD Employees Union (supra). Once the appellant Board has adopted the scheme, it cannot deny the benefit thereof by discriminating against the petitioners.

6.8 The decision in State of Gujarat and Ors. vs. PWD Employes Union and Ors. [2013(2) GLH 692 (SC): (2013) 12 SCC 417] was explained and confirmed by the Supreme Court in more recent decision in State of Gujarat vs. Public Works Department and Forest

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Employees Union and Ors. [(2019) 15 SCC 248]. The Supreme Court in the said decision in Public Works Department and Forest Employees Union (supra), gave directions regarding granting of benefit to daily wagers who had been working for number of years. The benefits under the Resolution dated 17.10.1988 were extended with further clarification explaining and confirming the decision in PWD Employees Union (supra). In the facts of the case, the petitioners herein are entitled to reap the benefits of the decision in PWD Employees Union (supra) read with the subsequent decision in Public Works Department and Forest Employees Union (supra).

6.8 In view of the above facts and circumstances, the impugned judgment and order of learned Single Judge allowing the petition and directing the respondents to give benefit to the petitioner upon completion of 20 years of service and other consequential benefits treating them permanent, could be said to be booking no error whatsoever. The challenge is meritless.

7. Letters Patent Appeal is liable to be dismissed. The same is accordingly dismissed.

(N.V.ANJARIA, J)

(NIRAL R. MEHTA,J) BIJOY B. PILLAI