IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 5832 of 2003
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STATE OF GUJARAT
Versus
BHARAT RAMJI PARMAR
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Appearance:
1. Special Civil Application No. 5832 of 2003
MR HD DAVE, AGP for Petitioner No. 1
.......... for Respondent No. 1-2
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CORAM : MR.JUSTICE H.K.RATHOD
Date of Order: 02/05/2003
ORAL ORDER
Heard learned AGP Mr. H.D. Dave on behalf of
the petitioner. The State of Gujarat has challenged the
award passed by the Labour Court, Rajkot in Reference
(LCD) No. 09/1997 dtd. 20.01.2003 wherein Labour Court
has granted the benefit to the respondents workmen to be
regularised or made permanent in the Class IV with effect
from 07.07.1997 and whatever the arrears available, due
to that same will be required to be paid by the
petitioner with effect from 01.01.2000. Learned AGP Mr.
H.D. Dave has submitted that specific contention was
raised before the Labour Court, Rajkot that for
appointment in the Class IV, some detailed procedure is
required by the department and his name is required to be
called for from the employment exchange and without
selection, he should not have to be regularised in the
Class IV post. He also submitted that Labour Court has
committed gross error in granting such benefit which is
contrary to the service rules of the department. The
specific objection has been taken that there is no set up
in respect to Class IV in the department. He was not
appointed through employment exchange and no appointment
letter was given to him and according to the department
rules, the post of Class IV is to be filled up through
employment exchange and 10 candidates are required to be
taken into account and all the candidates are required to
be given equal opportunity for the post of Class IV and
whenever the regular appointment is made, accordingly the
order has been passed by the department. None of the
procedure has been followed in case of respondent and,
therefore, Labour Court has committed gross error in
directing to the petitioner to confirm both the
respondent workmen in Class IV and directed to be paid
arrears with effect from 01.01.2000. Learned AGP Mr.
H.D. Dave has pointed out that the respondents workmen
remained in service because of the interim order passed
by the District Court, Rajkot. Therefore, they are not
entitled for the said benefits.
I have considered the submissions made by learned
AGP Mr. H.D. Dave. I have perused the award passed by
the Labour Court, Rajkot. Before the Labour Court,
statement of claim has been filed by the workmen vide
Exh.5 wherein it is pointed out that they are working in
the post of “Khalasi-Cum-Peon” in the Class IV since many
years and during their service, new recruitment has been
made by the petitioner. Even though, they were not given
benefit of permanency and, therefore, the demand has been
raised to be made permanent with effect from the date of
joining. No reply has been filed by the petitioner
before the Labour Court. However, vide Exh.31, one
witness Shri Kishorbhai Ghanabhai Sagathiya was examined
on behalf of the petitioner. Thereafter, Labour Court
has considered the evidence on record. Each workman has
completed more than 15 years service continuously with
the petitioner and this is not in dispute by the
petitioner. The Labour Court has considered that one
Bharatbhai Ramji Parmar was appointed on 07.11.1979 and
one Shri Bhupatbhai Chauhan was appointed on 01.10.1981
in the post of “Khalasi-Cum-Peon” in Class IV and they
were remained continuous in service till the dispute has
been raised and even subsequent to that also, they are in
service. The Labour Court has also considered that total
length of service is not challenged by the petitioner
before the Labour Court. The respondents workmen has
produced the Govt. Resolution dtd. 17.10.1988 vide Exh.9
and even Labour Court has considered that Resolution and
after a period of 10 years service, even according to
that Govt. Resolution, the workman is entitled the
benefit of permanency and regular salary. Ultimately, the
Labour Court has considered that whether in the set up
the post is available or not. But once the workmen
remained continue in service for more than 10 years, then
he entitled the regular salary and entitled the benefit
of permanency. The Labour Court has given reasons and
relied upon certain decisions of the Apex Court while
granting the relief in favour of the respondents workmen.
According to my opinion, while passing such award, Labour
Court has not committed any error.
Recently, the Apex Court has also considered this
aspect of regularisation in service and also as regular
pay scale to such daily wager employees in case of
GUJARAT AGRICULTURAL UNIVERSITY V. RATHOD LABHU BECHAR
reported in AIR 2001 SC 706. Relevant observations made
in para-19, 20 and 21 are quoted as under :-
“19.One of the questions which is also up for
our consideration is, apart from the fact who are
to be regularise, what would be payable to these
daily wage workers who have completed more than
10 years of continuous service. Submissions for
the respondents is, that such daily wage workers
should be paid the same minimum scale of pay as
admissible to the regularised incumbent based on
the principle of `equal pay for equal work’ Daily
rated casual labour employed under P & T
Department through Bhartiya Dak Tar Mazdoor Manch
V. Union of India [ AIR 1987 SC 2342 : 1988 Lab
IC 37 ] [ Supra] was a case of daily rated casual
labourers of the P & T department doing work
similar to that of the regular workers of the
department. This Court held :
” ….. Even though the Directive Principle
contained in Articles 38 and 39 [d] may not be
enforceable as such be virtue of Article 37 but
it may be relied upon by the petitioners to show
that in the instant case they have been subjected
to hostile discrimination. The State cannot deny
at least the minimum pay in the pay scales of
regularly employed workmen even though the
Government may not be compelled to extend all the
benefits enjoyed by regularly recruited
employees. Such denial amounts to exploitation
of labour. The Government cannot be take
advantage of its dominant position and compel any
worker to work even as a casual laborer on
starvation wages. It may be that the casual
laborer has agreed to work on such low wages
….. ”
20.State of Haryana v. Piara Singh, 1992 (4) SCC
118 : (1992 AIR SCW 2315 : AIR 1992 SC 2130
: 1992 Lab IC 2168). This was a case of ad
hoc/temporary Government employees. This Court
held, those eligible and qualified and continuing
in service satisfactorily for a long period have
right to be considered for regularisation. Long
continuing in service gives rise to a presumption
about the need for a regular post. In such cases
Government should consider feasibility of
regularisation having regard to the particular
circumstances with a positive approach and
empathy for the concerned person.
21.In Surinder Singh V. Engineer-in-Chief,
C.P.W.D., 1986 (1) SCC 639 : (AIR 1986 SC 584 :
1996 Lab IC 551), this Court holds entitlement of
‘equal pay for equal work’ for the daily wage
workers of C.P.W.D. to the wages equal to the
regular and permanent employees employed to do
identical work, Mool Raj Upadhavava v. State of
H.P., 1994 Supp (2) SCC 316, was a case of
regularisation based on the claim for ‘equal pay
for equal work’ of daily wages of Class III and
Class IV employees in the irrigation and Public
Health Wings of H.P. Some of them worked for
more than 10 years. They were being paid minimum
wages prescribed by the State Government but were
seeking regularisation and parity of pay with
regular employees. The State Government came out
with a scheme which was modified by the Court to
the following effect. The relevant portion of
which is quoted hereunder :
“Taking into consideration the facts and
circumstances of the case, we modify the said
scheme :
xxxxxxxx
(3) daily-wage muster-roll workers, whether
skilled or unskilled who have not completed 10
years of service with a minimum of 240 days in a
calendar year on 31.12.1993, shall be paid daily
wages at the rates prescribed by the Government
of Himachal Pradesh from time to time for daily
wage employees falling in Class III and Class IV
till they are appointed as work-charged employees
in accordance with paragraph 2;
(4) daily-wage/muster-roll workers shall be
regularised in a phased manner on the basis of
seniority-cum-suitability including physical
fitness. On regularisation they shall be put in
the minimum of the time-scale payable to the
corresponding lowest grade applicable to the
Government and would be entitled to all other
benefits available to regular Government servants
of the corresponding grade.”
In view of the observations made by the Apex Court and
considering the facts of the present case, undisputedly,
both the respondent workmen were continue in service for
more than 15 to 16 years as a Casual or daily wager and
they raised the dispute which resulted in relief in their
favour. According to my opinion, Labour Court has
rightly appreciated the evidence on record and passed
appropriate award in favour of the respondents workmen.
The Labour Court has taken care that no financial burden
would impose upon the State Government and that is how
with retrospective effect from 07.07.1997, the benefit
was not given and no direction has been issued to pay the
arrears to the workmen but on the contrary, Labour Court
has taken into account that future effect from
01.01.2000. According to my opinion, it is a balanced
award passed by the Labour Court and after considering
the settled principles laid down by the Apex Court,
Labour Court has not committed any error while passing
such award which does not require any interference while
exercising the powers under Article 226/227 of the
Constitution of India. Hence, there is no substance in
the present petition. Present petition is dismissed.
(H. K. Rathod, J.)