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SCA/9409/1998 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9409 of 1998
=========================================================
SURAJBEN
HARJIBHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MRS
SANGEETA N PAHWA for
Petitioner(s) : 1,
MR AL SHARMA AGP for Respondent(s) : 1 -
2.
RULE SERVED for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/02/2011
ORAL
ORDER
Heard
learned advocate Mrs. SN Pahwa on behalf of petitioner, learned AGP
Mr. AL Sharma appearing for respondent nos. 1 and 2. Though, Rule is
served to respondent no. 3, no appearance is filed by respondent no.
3.
The
affidavit in reply is filed by Deputy Conservator of Forest, S.F.
Division, Surendranagar on 3/3/1999. The additional affidavit in
reply is also filed by Dy. Conservator of Forest, S.F. Division,
Surendranagar on 9/2/1999. The Rule is issued in this matter on
4/2/2000. The statement of facts are as under:
“To
Challenge: The action of the respondents of not paying minimum time
scale of pay i.e. Rs. 750/-, Dearness allowance, Medical Allowance
and House rent allowance with all the benefits as per G.R. Dated
17/10/1988 w.e.f. 10/10/1996.
1.10.86 The
petitioner was appointed as a daily wager.
6.6.97 The
petitioner has filed recovery application no. 156/94 for getting
minimum time scale as per the resolution dated 17/10/1988 and the
Labour Court had directed the respondent to pay Rs. 52760/-.
The
petitioner again filed a recovery application no. 317/96 demanding
minimum time scale which pending before Labour Court, Surendranagar.
Juniors to the petitioner had also filed recovery application for
getting minimum time scale on the basis of resolution dated
17/10/88.
4.3.96 Respondents
challenged the same in the Hon’ble Court which was dismissed.
Sept,
1997 The persons juniors to the petitioners were paid their
respective claims.
Juniors
to the petitioner again filed a Special Civil Application No. 382/97
to 387/92 for getting current wages on the basis of the resolution
dated 17/10/88 and this Hon’ble Court has directed the respondents
to pay current wages in accordance with the Government Resolution.”
The
prayer made by petitioner in para 6 (A)(B)(C) are as under:
(A)
YOUR LORDSHIPS may be pleased to issue appropriate writ order or
direction and may be pleased to direct the respondents to pay the
minimum time scale of Rs. 750, dearness allowance, Medical
allowances & HRA alongwith the other benefits of earned leave
and public holiday etc., as per GR dated 17/10/88 w.e.f. 1.10.96
onwards;
(B)
YOUR LORDSHIPS may be pleased to direct the respondents to pay the
current wages in accordance with GR dated 17/10/88, pending
admission, hearing and final disposal of this petition;
(C)Your
Lordships be pleased to grant such other and further relief(s) as
may be deemed fit in the interest of justice.”
The
petitioner has claimed benefit of Government Resolution dated
17/10/88 as petitioner has completed more than eleven years of
service. Therefore, petitioner is entitled to minimum time scale,
DA, HRA and other benefits, which is available to regular selected
candidates.
Learned
AGP Mr. AL Sharma appearing on behalf of State Government –
respondent raised contention before this Court that Government
Resolution dated 17/10/1988 is not applicable to Forest Department
except Buildings and Constructions Division as decided by Division
Bench of this Court in case of Chief Conservator of Forest and
Anr. Vs. Ashok N. Pandya & Anr. reported in 2010 (24) GHJ 206.
Learned
AGP Mr. Sharma submitted that petitioner is working in maintenance
of nursery. Therefore, view taken by Full Bench of this Court that
Government Resolution dated 17/10/88 is not applicable to
maintenance of Nursery of Forest Department but it only applied to
Roads and Buildings Department. He submitted that Full Bench
decision in case of Gujarat Forest Producers, Gatherers and
Forest Workers Union Vs. State of Gujarat reported in 2004 (2) GLH
302 has been considered by Division Bench of this Court in
aforesaid decision. He also submitted that Forest Department is not
covered by definition of an Industry under section 2(j) of
Industrial Dispute Act.
Learned
advocate Mrs. Pahwa raised contention that similar situated other
employees are getting benefits of Government Resolution dated
17/10/1988 only petitioner has been discriminated by respondent
Forest Department.
I
have considered submission made by both learned advocates and
considering decision of Full Bench of this Court reported in 2004
(2) GLH 302 and considering decision of Division Bench of this Court
reported in 2010 (24) GHJ 206. The relevant para 1 to 6 are quoted
as under:
1. This
appeal preferred under clause 15 of the Letters Patent arises from
the order dated 21st March 1997 passed by the learned
Single Judge in the above Special Civil Application no. 5350 of
1994.
2. The
respondents writ petitioners are employed under the Forest
Department of the State of Gujarat. The petitioners are engaged by
the appellant No. 3 Range Forest Officer on daily wages for
maintenance of nursery and forest area in the district Bhavnagar.
The petitioners claimed that they were engaged as daily wage
employees from 3 to 20 years and that hey were entitled to the
benefits of semi permanent service benefits conferred under the
Resolution dated 17th October 1988 passed by the State of
Gujarat in its Roads and Buildings Department. Learned Single Judge,
under the impugned order dated 21st March 1997, following
the common judgment dated 4th March 1996 passed by a
learned Single Judge in group of petitions, allowed the petition.
Learned Single Judge held that the petitioners were entitled to the
benefits under the above mentioned Government Resolution dated 17th
October, 1988. Therefore, the present Appeal.
3. Learned
Assistant Government Pleader Ms. Nair has appeared for the
appellants. She has submitted that the question whether or not the
Department of Forest of the Government of Gujarat is an industry
within the meaning of Section 2(j) of the Industrial Disputes Act,
1947 and whether or not such employees are entitled to the benefit
under the Government Resolution dated 17th October 1988
are set at rest by the judgment of the Full Bench of this Court in
the matter of GUJARAT FORST PRODUCERS, GATHERERS AND FOREST WORKERS
UNION VS. STATE OF GUJARAT (2004 (2) GLH 302.)
4. The
Full Bench has, in the above judgment held, “The Forest and
Environment Department of the State Government is not an industry
under section 2(j) of the Industrial Disputes Act, 1947 and the
question whether any of its unit, establishment or undertaking is an
industry or not will depend upon the nature of work done by such
entity and only when the activity under taken amounts to an activity
for production or distribution of goods and/or services for
satisfying wants and desires of consumers, in the sense in which the
concepts are understood in the field of industrial economy,
satisfying the third ingredient of the triple ingredients test, that
such unit, establishment or undertaking of the Department can be
said to be industry, unless falling in the categories removed by the
constitutional and competently enacted legislative provisions of
Item IV f the guidelines laid down by the Supreme Court in paragraph
161 of Bangalore Water Supply case (supra), including the law
falling under Articles 309 to 311 of the Constitution. The bench
further held “The Government Resolution dated 17h October 1988
is applicable to the daily wagers of the Forest & Environment
Department engaged in the work of maintenance and repairs of
constructions in that Department, and not to the daily wagers
engaged in other types of work in that Department.”
5. In
view of the above decision of Full Bench of this Court, we must hold
that the impugned decision of the learned Single Judge does not lay
down a good law. Admittedly, the writ petitioners were engaged
under the Range Forest Officer for maintenance of nursery and forest
area. The writ petitioners are, therefore, not entitled to the
benefit under the resolution dated 17th October 1988
passed by the Government of Gujarat in its Roads and Buildings
Department.
6. For
the aforesaid reasons, the Appeal is allowed. The impugned order
dated 21st March 1997 made by the learned Single Judge in
the above Special Civil Application No. 5350 of 1994 is set aside.
Special Civil Application No. 5350 of 1994 is dismissed.”
After
considering aforesaid decisions and also considering fact that
petitioner is working as daily wager labourer since 1/3/1986 and
completed continue service of more than eleven years. This being an
undisputed fact, aforesaid Government resolution dated 17/10/1988 is
not applicable to daily wager those who are working in Forest
Department Nursery. The view taken by Full Bench of this Court as
well as Division Bench of this Court is binding to this Court.
Therefore, contention raised by learned advocate Mrs. Pahwa can not
be accepted. The prayer made in this petition in para 6(A)(B) can
not be granted in favour of present petitioner.
Therefore,
it is declared that petitioner being a daily wager working in Forest
Department of Forestry Nursery is not entitled for benefit of
Government resolution dated 17/10/88. Hence, there is no substance
in present petition. Accordingly, same is dismissed. Rule is
discharged. No order as to costs.
(H.K.RATHOD,
J)
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