Gujarat High Court

Vikramsinh Somaji Chauhan vs State Of Gujarat on 2 February, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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    C/SCA/1673/2024                                    ORDER DATED: 02/02/2024

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 1673 of 2024

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                      VIKRAMSINH SOMAJI CHAUHAN
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1,2,3,4
MR SAHIL TRIVEDI, AGP for Respondent State
for the Respondent(s) No. 2,3,4
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 02/02/2024

                                ORAL ORDER

1. Heard learned Advocate Mr.A.S. Asthavadi on behalf of the petitioners and learned Assistant Government Pleader Mr.Trivedi on behalf of the respondent - State.

2. By way of these petitions, the petitioners have inter alia prayed for grant of benefits as would be available to the petitioner under Government Resolution dated 17.10.1988 and subsequent Government Resolutions of the Forest Department.

3. Considering the submissions made by learned Advocates for the respective parties, while it would appear that the petitioners have been working for a number of years with the respondents, in some of the cases it would also appear that the petitioners during their course of service, have their states changed from daily rated employees to piece

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rated employees. It would also appear in this regard that the said status is being questioned by the petitioners by submitting that the petitioners were never informed about their change in status and whereas it is also submitted that had the respondents considered the case of the petitioners for grant of benefits under Government Resolution dated 17.10.1988, then the petitioners having completed more than 10 years would have been entitled to the protection under the Service Rules which would have resulted in the respondents not being able to change their status.

4. On the other hand it is submitted by learned Assistant Government Pleader that since the status of the petitioners have changed in the year 2016 and thereabouts, the only issue which would remain for consideration is whether the petitioners would be entitled for benefit of Government Resolution dated 17.10.1988 prior to the date their status had changed.

5. Considering the submissions made by learned Advocates, since it would appear that as of now, there has been no decision by the respondents as regards the applicability of Government Resolution dated 17.10.1988, therefore, a direction at this stage to the respondents to direct the representation that would be preferred by the petitioners, would meet with the ends of law. Such a such course of action is not being objected by learned Advocates for the respective parties.

6. At this stage, before passing an order in the above terms, this Court deems it appropriate to refer to certain decisions of the Hon'ble Apex Court as well as this Court, where the scope and ambit of the Government Resolution dated 17.10.1988 has been laid down.

7. The Hon'ble Apex Court, in case of State of Gujarat Vs. PWD and

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Forest and Employees' Union, reported in (2019) 15 SCC 248, at paragraph 14, has observed as thus:-

"14.Having regard to the above, we are confining our discussion to the aforesaid exceptions taken by the appellant. In the first instance, it is pointed out by the appellant that even if the respondents become permanent, they would be entitled to be fitted in the job description in terms of the Rules. What is (arising out of SLP (C) No. 43592 of 2018) & Anr. emphasised is that even after regularisation, their pay scales cannot be more than the pay which is given to the employees who are taken on permanent basis. This appears to be a very sound argument. The only plea was that whatever is given to such employees in other departments, same benefit be extended to the respondents as well. It is difficult to countenance this submission which we find to be legally impermissible. That is hardly any justifiable response to rebut the same. It is to be kept in mind that members of respondent union were all engaged on daily wage basis.

No doubt, the appellant Government decided to confer certain benefits upon these daily wage workers depending upon the number of years of service they put in. Judgment dated July 09, 2013 proceeds on that basis. Under certain circumstances, namely, on completion of specified number of years of service on daily wage basis, these daily wage workers are entitled to become permanent. On attaining the status of permanency/regular employees, they become at par with those employees who were appointed on permanent basis from beginning, after undergoing the proper selection procedure on proving their merit. These daily wagers cannot be given the pay scales which are even better than the pay scales given to regularly appointed employees. The Rules are statutory in nature (arising out of SLP (C) No. 43592 of 2018) & Anr. which have been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution. On becoming permanent, such daily wagers can, at the most, claim that they be fitted in the job descriptions in terms of the said pay rules and their pay be fixed accordingly. The appellant is ready to do that. We, therefore, accept the plea mentioned in exception (i) above.

8. From the above quoted paragraph, it would clearly appear that the Hon'ble Apex Court had inter alia clarified that upon an employee, who had originally been appointed on daily-wages, completing a specific number of years, more particularly the same being in consonance with

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Section 25B of Industrial Disputes Act, then the employee is entitled to be granted benefits of permanency. The Hon'ble Apex Court has also further inter alia observed that upon attaining the status of permanency the employee, who was born in the department as daily-wager is entitled to be treated at part with employees, who have been appointed on regular/permanent basis by way of direct selection.

9. In case of State of Gujarat and Anr. Vs. Mahendrakumar Bhagvandas & Another, reported in 2011(2) GLR 1290 the Division Bench of this Court had stated the very position as stated by the Hon'ble Apex Court as noted herein above and whereas the Division Bench had also observed that the employees, upon being granted the benefits of permanency are also entitled to be granted the benefits of pension, higher pay scale, etc.

10. In case of Executive Engineer Panchayat (MAA & M) Department and Another Vs. Samudabhai Jyotibhai Bhedi & Ors., reported in 2017(4) GLR 2952, Division Bench of this Court had taken the view that upon completion of a certain number of years, while the employees concerned would be entitled to claim permanency and whereas the period of service put in by the employees concerned on the date when they were treated as permanent employees was to be treated as continuous service for deciding pension as available to the petitioners.

11. It would also be pertinent to mention here that in a proceeding before the Hon'ble Apex Court i.e. in SLP No.7229 of 2022, the State has accepted its liability of paying leave encashment of 300 days to the employees, who have been granted permanency under G.R. dated 17.10.1988.








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12. In case of Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation, reported in (1985) 4 SCC 71, the Hon'ble Apex Court has inter alia laid down that while computing the period of service rendered by an employee under Section 25 of ID Act, Sundays and Public Holidays also to be added. The said decision though not expressly as regards the scope and ambit of G. R. dated 17.10.1988, yet the law laid down is to be followed while computing the number of days having put in by an employee while considering his case for grant of benefits under the said Government Resolution.

13. It further appears that the aspect of eligibility and entitlement of workers engaged in piece rate for grant of benefit under Government Resolution dated 17.10.1988 has been considered and upheld by this Court in Special Civil Application No. 3966 of 2016 vide decision dated 22.01.2020. Relevant observations of this Court at paragraphs no. 6, 7, 8 and 9 are quoted herein below:

"[6.0] I have heard the learned advocates for the respective parties. The State authority do not dispute about the applicability of the Government Resolution dated 17.10.1988 to the daily wagers, who are working under the respondent-State authority. The petitioner is denied the benefits arising from the Government Resolution dated 17.10.1988 for the reasons that she has been engaged as a piece rated worker since 17.09.2000. The information provided by the respondent State authorities, which is signed by the Range Forest Officer, Mudi, Additional Conservator of Forest, Surendranagar as well as the Deputy Conservator of Forest, Surendranagar reveal the tenure of the petitioner. The aforesaid statement is signed by the Officers and are not disputed by the respondents.

[7.0] A bare glance of the statement providing the details of the service rendered by the petitioner is that the petitioner was appointed on 18.09.1989 as a daily wager and she worked till 17.09.2000. The petitioner has rendered more than 10 years service. However, it appears that her status has been converted to the piece rated worker

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and the data about the working days are not revealed in the aforesaid statement except for the period from 18.09.2005 to 17.09.2006. Thus, as per the statement provided by the respondent State authority, the working days of the petitioner are not recorded though she has been working on the piece rated basis. It is the case of the respondent State authority that since the petitioner is working for less than eight hours on the piece rated basis, she is not entitled to the benefits of the Government Resolution dated 17.10.1988. The respondent State authority is unable to point out any documents from the record, which requires non recording of the days of a piece rated worker even if such worker is engaged on that day. A piece rated worker cannot be treated as if they have not worked at all, because of the work assigned to him/her. The status of the petitioner being a daily wager has been altered to piece rated employee from the 2001 onwards. The petitioner vide communication dated 03.09.2015 has specifically stated that though she was engaged from 2001 onwards till 2014 as a piece rated worker and has actually worked for 240 days but such days are not considered/recorded by the respondent State authority. Hence, her subsequent service is totally wiped out, as it appears that the authorities have not maintained the record.

[8.0] In the considered opinion of this Court, the respondent- State authority cannot neglect the actual days of working even of a piece rated worker by totally ignoring their work for which they are engaged. Thus, by adopting such a modus operandi, the respondent State authority have, in fact, snatched away the status of the petitioner as a daily wager by converting the services from daily wager from 2001 to piece rated worker, resulting into denial of pension. It appears that the respondents has altered the status from daily wager to piece rated worker without informing her. Being a model employer it is expected that the respondent authority should inform their employees about the repercussion of their change of status from daily wager to piece rated worker as such alteration affects their future prospectus of pay, pension etc, which arise out the resolution dated 17.10.1988. The respondent State authority cannot totally disregard his/her engagement as a piece rated worker by ignoring the days on which the work is assigned. The Coordinate Bench of this Court in the case of Hareshbhai Bhurabhai Vala (supra), while considering the service of piece rated worker basis has observed thus;

11.2 However, other documents, more particularly the vouchers under which the respondent workman was paid by the petitioner board for period after July 1990 should be taken into account. It

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is noticed that several vouchers were placed on record before the learned Labour Court and said vouchers demonstrate that the petitioner board made payments to the respondent workman under and by way of those vouchers. The amounts paid to the respondent workman are of different quantum. Certain documents purporting to be the bills raised by the respondent workman are placed on record. However, on closer scrutiny, it comes out that any link or connection corelation between the said bills and vouchers is not established.

Besides this, mode of payment alone and that too in absence of the contract or letter of appointment/engagement cannot determine status and character of employment and the employee.

12. The petitioner board claims that after 28.7.1990, the respondent workman was engaged on contract basis and he was working as contractor and was executing the typing work on piece rate basis.

12.1 The petitioner board claimed, through its witness, that when earlier existing contract came to an end, the petitioner board had made an inquiry and the rate quoted by the respondent workman was found to be lower than the rate quoted under the existing contract and that therefore, the decision to assign typing work on contract basis to the respondent workman was taken and accordingly, he was engaged on contract basis and thereafter, the respondent rendered his service for typing work on contract basis and he was paid on piece rate basis.

15. At this stage, it is appropriate to take into account the definition of the term "workman" as defined under Section 2(s) of the Act. The definition of said term takes in its fold "any person who is employed to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, ....". When the said definition is taken into account, then, it emerges that the respondent herein was rendering skilled service as steno/typist and he was engaged for executing skilled work assigned to him by the petitioner. His services were availed in lieu of payment and remuneration for the service rendered by the respondent was paid to him by the petitioner. The definition also includes engagement or employment of a person even in case where the terms of employment are implied. Thus, in view of the

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definition and in light of facts of present case, more particularly in light of the fact that the respondent was engaged for "manual/skilled" work of similar nature for which he was engaged before 28.7.1990 the petitioner's submission that after 28.7.1990 the respondent herein was not a workman of the petitioner cannot be accepted and the learned Labour Court has not committed any error in rejecting the said defence or contention of the petitioner.

16. It would also be appropriate to consider the said definition of the term "workman" along with the definition of the term "wages" as prescribed under Section 2(rr) of the Act. According to the said definition, "wages means all remuneration capable of being expressed in terms of money which are paid on fulfilment of terms of employment, expressed or implied would be termed as "wages" but it would not include any bonus or contribution to provident fund or gratuity payable on termination of service. Thus, the amounts/remuneration paid to the respondent for the period after 28.7.1990 for the work executed by him would fall within the term "wages" and consequently, it would be "wages" paid to a "workman". Under the circumstances, the decision by the learned Labour Court treating the amount/remuneration paid to the respondent as wages and the recipient of the said wages as workman cannot be faulted.

[9.0] Thus, the remuneration of the petitioner as a piece rated worker would fall within the definition of term "wages" as prescribed under of the Industrial Disputes Act, 1947 (for short the ID, Act) and her remuneration as a piece rated worker is covered under the definition of wages as define under Section 2(rr) of the ID Act. The impugned order dated 02.11.2015 is hereby quashed and set aside and the respondent authorities are directed to confer the benefits of the Government Resolution dated 17.10.1988 to the petitioner, as per the law enunciated by the Supreme Court in the case of PWD Employees' Union & Ors., reported in (2013) 12 SCC 417 and subsequent judgment in the case of PWD and Forest Union and Ors, reported in 2019 (3) scale 462. Appropriate orders conferring the benefits arising out of the Government Resolution dated 17.10.1988 shall be passed within the period of two months from the date of receipt of the writ of this Court."

13.1. The said decision had been confirmed by Division Bench of this

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Court in Letters Patent Appeal No. 83 of 2021 vide decision dated 13.01.2021 which order is further not interfered with by Hon'ble Supreme Court.

14. The above are but few of the important decisions on the aspect of the applicability of the G. R. dated 17.10.1988 and whereas the above law as well as any further decisions that would have been passed by this Court or Hon'ble Apex Court shall be kept in mind by the respondents while deciding the representation which the petitioners would prefer individually.

15. Having regard to the above, following directions are passed:

15.1. The petitioners i.e. each of the petitioners to prefer an individual representation before the concerned respondents i.e. the Range Forest Officer of the Range in which they are working for grant of benefit under Government dated 17.10.1988 or any subsequent Government Resolution within a period of 15 days from today.

15.2. The Range Forest Officer concerned, in consultation with the Deputy Conservator of Forest, and if required, in consultation with the Principal Chief Conservator of Forest, shall decide the representation of the petitioners within a period of six weeks from the date of receipt thereof.

15.3. In case the petitioners are decided to be entitled for any of the benefit, the same shall be paid to the petitioners within a period of four weeks thereafter.

15.4. In case the petitioners are aggrieved by the decision, which would be taken by the respondents, as a whole or in part, then it would be

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open for the petitioners to challenge the same before appropriate forum in accordance with law.