AI Structured Summary
Not yet generated for this judgment
Judgment
A.L. Dave, J.—The appellant who is working as Sais in the Animal Husbandry department as a daily wager approached this Court with
Special Civil Application No. 6417 of 1989 claiming benefits of regularization on the basis of the Government Resolution dated 17th October,
1988, issued in respect of daily wagers working in the Roads and Building Department of the Government of Gujarat. The learned Single Judge,
after considering the facts of the case of appellant-petitioner, and considering the ratio of law, as laid down by the Full Bench of this Court in
Gujarat Forest Producers, Gatherers and Forest Workers Union v. State of Gujarat reported in 2004(2) GLH 302, dismissed the petition and
hence this Appeal.
Learned advocate Mr. Acharya submitted that the appellant has been working with the respondent-Department for many years. His services are
satisfactory and there is nothing adverse to him. He submitted that Sais in other stud-farms run by the Animal Husbandry Department are being
paid regular pay-scale and the appellant-petitioner ought to have been given a similar treatment and should have at least been given the benefit of
lowest pay-scale.
Mr. Acharya has placed reliance on a judgment in Special Civil Application No. 948 of 1993 dated 3rd December, 2004, in the case of
Harkantbhai K. Vyas v. State of Gujarat wherein benefit of wages in the minimum of the time-scale was granted to the daily rated employee on
completion of three years'' service as daily rated labourer. The said judgment was passed on the basis of an earlier Division Bench order of this
Court in the case of Ashokkumar Jayantilal Mehta and Ors. v. Gujarat Water Supply & Sewerage Board Special Civil Application No. 3547 of
1991 decided on 13th/14th July, 1993 (Coram: S.D. Shah & R.D. Vyas, JJ) and order dated 21st September, 1995 of the Supreme Court
whereby SLP preferred against said judgment was turned down. Mr. Acharya therefore submitted that the appellant ought to have been and may
be given the benefit of these orders.
Before we proceed to appreciate the arguments advanced by learned advocate for the appellant, we may refer to the prayers made in
paragraph-9 of the petition, which run as under:
(A) That Your Lordship be pleased to issue an order or direction or writ in the nature of mandamus or certiorari and/or any other appropriate writ,
order or direction declaring the circular at Annexure-A dated 17.10.1988 as ultra vires to the Article 14 and 16 of the Constitution to the effect
whereby it discriminates the daily wage employees in extending benefits of time scale of pay and other allowances on the basis of length of services
and cause and set aside the same to that effect, and declare that all the daily wage employees are entitled to get the time scale of pay and
allowances of their cadre, irrespective of the length of service.
(B) Be pleased to direct the respondents to grant the time scale of pay with all allowances to all the daily wage employees working in the
respondent department, payable to their respective cadre and post from initial date of appointment with 12% interest.
(C) Be pleased to direct the respondent No. 2 & 3 to regularise the services of the petitioner as class IV employee or as Sais and extend all the
benefits of regularisation from initial date of appointment.
Alternatively
Be pleased to direct respondent No. 2 to frame a scheme to regularise all the daily wage employees of the department, who have completed 360
days of service.
(D) Pending admission and final disposal of this petition be pleased to restrain the respondent No. 2 & 3 from terminating, discharging or
discontinuing the services of the petitioner and further direct to grant the time scale as of pay of class IVth employee i.e. of Sais of the respondent
department.
(E) Pending admission of this petition be pleased to direct the respondents to extend all the benefits of regular employees to the daily wage
employee irrespective of the length of services and be pleased to restrain the respondents from discriminating the daily wage employees for
payment of time scale of pay and all other allowances, on the basis of length of service.
(E/1) Be pleased to declare the action on the part of respondents of continuing the employees as daily wagers for years and depriving them
benefits available to the regular employees as Unfair Labour Practice.
(F) Any other relief to which this Honourable Court deems fit and proper in the interest of justice together with costs.
It is therefore clear from the prayers made in the petition itself that the first prayer was to declare the G.R. dated 17th October, 1988, as ultra-
vires the Articles 14 and 16 of the Constitution of India with a declaration that all daily-wage employees of various Departments are entitled to get
the benefit of time-scale of pay and allowances of the respective cadre irrespective of length of service. A direction was also sought on
respondents No. 2 and 3 to regularise the services of the petitioner-appellant as Class-IV employee or as Sais and extend the benefits of
regularization from the date of appointment. Alternatively, it was prayed to direct the respondent No. 2 to frame a Scheme to regularise all the
daily-wage employees of the Department who have completed 360 days of service.
The learned Single Judge has taken into consideration all the relevant aspects and relying on the decision of the Full Bench of this Court in the
case of Gujarat Forest Producers, Gatherers and Forest Workers Union v. State of Gujarat (supra) has dismissed the petition.
The order passed in Special Civil Application was sought to be reviewed by preferring Miscellaneous Civil Application No. 2208 of 2006
which also came to be dismissed by order dated 20th April, 2007.
We have given a thoughtful consideration to the case of the appellant. In the first instance, it is contradictory to argue that benefit of G.R. dated
17th October, 1988, should be extended to the appellant-petitioner as well who is working in an altogether different Department and doing a
different nature of work than the persons working in the R & B Department for the reason that in the petition itself, there is challenge to the G.R.
dated 17th October, 1988, on the ground that it is discriminatory, with further prayer that the respondents be directed to frame a Scheme whereby
such benefits can be extended to daily rated employees irrespective of the Department or industry or working or length of service rendered.
In Gujarat Forest Producers, Gatherers and Forest Workers Union v. State of Gujarat (supra), a view was expressed by the Full Bench of this
Court that to decide whether the benefit of 17.10.1988 G.R. can be extended to a particular workman or a class of workman or not, it would be
necessary to satisfy the triple test laid down in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, The Full Bench
observed that G.R. dated 17th October, 1988, is applicable to daily wagers of various Departments working in the maintenance and repairs of
construction. It has to be examined whether the activity of that department is ''industry'' or not. The Court observed that whether any activity
undertaken by the Forest Department or by a unit of the undertaking thereof is an industry or not is required to be examined on the basis of nature
of work done by such Unit or Undertaking and only if the work undertaken amounts to an activity for production or distribution of goods and
service for satisfying the wants and desires of the consumers, in the sense in which concepts are understood in the field of industrial economy,
satisfying the third ingredient of the triple test, as propounded by the Supreme Court in Bangalore Water Supply and Sewerage Board v. A.
Rajappa (supra) that such a unit or undertaking can be called an industry and its workmen will be covered by the Industrial Disputes Act, 1947.
The learned Single Judge has also considered this aspect while disposing of Special Civil Application No. 6417 of 1989 as well as Miscellaneous
Civil Application No. 2208 of 2006.
We may place a fact on record that the attention of learned advocate for the appellant was drawn towards the Full Bench judgment and he
was invited to offer his comments on facts of the present case in the light of that decision, but he has deemed it proper not to offer any comments
except to rely on the decision in the case of Harkantbhai K. Vyas v. State of Gujarat decided on 3rd December, 2004. The said decision in the
case of Harkantbhai K. Vyas v. State of Gujarat can be of no virtue to the appellant for the reason that that was a decision rendered in respect of
an employee working with the Gujarat Water Supply and Sewerage Board. We have nothing on our record to know or to conclude that the nature
of work of the workman in that case is similar to the nature of work in the instant case on our hand, but we can infer that the nature of work is
bound to be different considering the fact that the appellant is working as Sais (caretaker of horses) which can only be in the Animal Husbandry
Department.
It was contended that Sais in the other farms run by the respondents are given benefit of regular pay-scales, but nothing is placed on record to
support this contention. We are short of data to know whether in fact such persons are getting the benefits and if so, what was the nature of their
appointment. Their appointment could be regular appointment unlike the appellant who is a daily rated employee. We have no other data to
conclude whether Animal Husbandry Department or the division or section where the appellant is working can be considered as an ''industry'' and
in this set of circumstances, we are of the view that the alternative relief sought in paragraphs 9(C) of the petition has rightly been rejected by the
learned Single Judge.
No contention is raised on the vires of G.R. dated 17th October, 1988, before us. Relief sought for in paragraph 9(A) of the petition also
therefore cannot be considered to be granted.
In the light of above, the Appeal must fail. It stands dismissed.
In view of dismissal of Appeal, Civil Application No. 13771 of 2007 for stay stands disposed of.