Gujarat High Court

Jasdan Nagarpalika vs Anilbhai Dahyabhai Bariya on 3 August, 2023

Bench: J. C. Doshi

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       C/LPA/694/2023                            ORDER DATED: 03/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 694 of 2023

             In R/SPECIAL CIVIL APPLICATION NO. 5893 of 2008

                                   With
                CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
                In R/LETTERS PATENT APPEAL NO. 694 of 2023
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                           JASDAN NAGARPALIKA
                                  Versus
                        ANILBHAI DAHYABHAI BARIYA
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Appearance:
MR BHAVESH P TRIVEDI(2731) for the Appellant(s) No. 1
MR RR TRIVEDI(941) for the Appellant(s) No. 1
MR. KISHAN M GHAVARIYA, ADVOCATE FOR MR MURALI N
DEVNANI(1863) for the Respondent(s) No. 1
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 CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
       SUNITA AGARWAL
       and
       HONOURABLE MR. JUSTICE J. C. DOSHI

                             Date : 03/08/2023

                        ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. Heard learned advocates for the parties and perused

the records.

2. This Letters Patent Appeal is directed against the

judgment and order dated 04.02.2022 passed by the learned

Single Judge, whereby the Nagarpalika is directed to grant

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benefit of wages at the minimum of the pay-scale of Safai

Kamdar in terms of the decision of the Hon'ble Apex Court in

the case of State of Punjab versus Jagjit Singh reported

in (2017) 1 SCC 148 as well as in view of the findings

returned by the learned Single Judge in the judgment

impugned, from the date of filing of the writ petition before

this Court.

3. The writ petition namely Special Civil Application

No. 5893 of 2008 arose out of the Labour Court's award

dated 11.05.2007 passed in Reference (LCD) No. 10 of 1997,

whereby the Labour Court has dismissed the Reference

seeking regularization in services, preferred by the petitioner

- workman / respondent herein. There is no dispute about

the fact that the respondent - workman was appointed as a

daily wager - Safai Kamdar on 24.08.1992 and has continued

to work till the year 1997 when he made Reference for

regularization of his services. The relief of regularization

was turned down by the Labour Court noticing that the

workman could not produce any evidence to show that he

was appointed as a Daily Wager by following due procedure

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of recruitment.

4. Taking note of this finding returned by the Labour

Court, the learned Single Judge records that the petitioner -

respondent herein had continued in services of the appellant

- Nagarpalika and by virtue of the order dated 19.03.2019 in

Special Civil Application No. 2928 of 2017, the order of

termination of his services, passed by the Nagarpalika has

been termed as illegal. The judgment and order dated

19.03.2019 passed by this Court setting aside the termination

order, upholding the award of reinstatement passed by the

Labour Court in another Reference against the termination

order dated 05.04.2008, has become final between the

parties.

5. Learned advocate appearing for the appellant could

not dispute the above noted facts recorded by the learned

Single Judge in the judgment impugned. Only submission of

the learned counsel for the appellant is that there was no

justification to interfere in the award passed by the Labour

Court, inasmuch as, relief of regularization could not have

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been granted to a daily wager in absence of any Rule or

provision of law. The Labour Court could not have travelled

beyond the reference and hence, the relief of grant of award

of minimum pay-scale by this Court in exercise of power

under Article 227 of the Constitution of India, in its

supervisory jurisdiction, testing the validity of the award of

the Labour Court, could not have been passed.

6. The submission, thus, is that the learned Single

Judge has erred in passing the award of grant of minimum of

pay-scale of Safai Kamdar to the respondent - workman,

thereby enlarging the scope of the Reference made by the

respondent - workman. It is further submitted that in none of

the paragraphs of the judgment impugned, the learned Single

Judge has dealt with the findings returned by the Labour

Court in the impugned award, to turn down the Reference.

7. Testing these submissions of the learned counsel for

the appellant - Nagarpalika, we may record that there is no

dispute about the fact that the respondent - workman had

been engaged on daily wage basis in the year 1992 by an

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appointment letter in writing. He had continued to work in

the appellant - Nagarpalika since the year 1992. When the

Reference of regularization was turned down by the Labour

Court vide award dated 11.05.2007, the services of the

respondent - workman was illegally terminated by the

Nagarpalika on 05.04.2008. The appellant - Nagarpalika did

not succeed in this venture, inasmuch as, the termination

order has ultimately been set aside by the Labour Court in

another reference made by the workman and upheld by this

Court. From the above turn of events, it is more than

evident that the Appellant - Nagarpalika had adopted unfair

labour practice in continuing the services of a Safai Kamdar

on daily wager for a long period of more than 16 years (year

1992 to 2008) and then illegally terminating his services

when demand for regularization was made. It is an admitted

fact of the matter that in the regular recruitment pursuant to

an advertisement for the post of Sweeper, the respondent -

workman has been selected and is appointed to the post of

regular Sweeper on 28.09.2021.

8. In the said scenario, it is evident that the services of

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the respondent - workman was indispensable for the

appellant - Nagarpalika. It was a work of perennial

nature, continuance of a daily wager for a long period of the

years has been deprecated by the Hon'ble Apex Court in the

case of Jagjit Singh (supra), the observations of the Apex

Court be noted and extracted as under : -

"55. In view of all our above conclusions, the decision rendered by the full bench of the High Court in Avtar Singh v. State of Punjab & Ors. (CWP no. 14796 of 2003), dated 11.11.2011, is liable to be set aside, and the same is hereby set aside. The decision rendered by the division bench of the High Court in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA No. 337 of 2003, decided on 7.1.2009) is also liable to be set aside, and the same is also hereby set aside. We affirm the decision rendered in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010), with the modification, that the concerned employees would be entitled to the minimum of the pay-scale, of the category to which they belong, but would not be entitled to allowances attached to the posts held by them.

57. There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-

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hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again.

58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation."

9. For the above, we are not convinced with the

arguments of the learned counsel for the appellant to show

infirmity in the judgment passed by the learned Single Court.

Moreover, benefit of minimum of pay-scale has been awarded

from the date of institution of the writ petition before this

Court, which cannot be said to suffer from any error of law.

The contention of the learned counsel for the appellant that

this Court in exercise of the supervisory power under Article

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227 of the Constitution of India, has travelled beyond the