published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40538
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 5321-5322 OF 2013
(ARISING OUT OF SLP(C) 13619-13620 OF 2012)
STATE OF GUJARAT & ORS. … APPELLANTS
VERUS
PWD EMPLOYEES UNION & ORS. ETC. … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted. These appeals have been preferred by the State of
Gujarat and others against a common judgment dated 28th February, 2012
passed by the Division Bench of the High Court of Gujarat at Ahmedabad
whereby Letters Patent Appeal No. 1754 of 2011 in Misc. Civil Application
No.17/2011 preferred by the State of Gujarat and its officials has been
dismissed and
the order dated 25th August, 2011 passed by the learned
Single Judge has been affirmed giving direction to the appellant-State and
its officials to regularize the services of respondents-workmen.
2. The factual matrix of the case is as follows:
The Gujarat State Employees Union, Gujarat State Public Works
Department Employees Union, Labour Union and other Unions made a
representation to the State Government for regularization of daily wage
workers, working since long. On their demand, the State Government
constituted a Committee vide Resolution dated 24th March, 1988 under the
Chairmanship of Minister of Road and Building Department to make proper
recommendations after studying the demands, issues and questions of the
Labour Unions. After thoroughly studying the wages of daily wage workers,
work related services & facilities provided to the daily wage workers who
were engaged in the building maintenance and repairing work in different
departments of the State such as Road and Building Department, Water
Resources Department, Forest Department, Agriculture Department etc. the
Committee made recommendations favouring the regularization. The State
Government on considering the recommendations submitted by the Committee
decided to accept all the said recommendations and resolved as follows:
“RESOLUTION
1 The Government has taken into consideration the recommendations
submitted by committee and so, it is decided to accept all
recommendations of the Committee. Accordingly, it is resolved
to provide following wages and services to daily wagers and semi
skilled workers working in different departments of the State.
1. It is decided to pay daily wages as per the prevailing Daily
Wages Rules to daily wagers and semi skilled workers who has
less than five years service as on 1.10.1988. If there is
presence of more than 240 days in first year, he is eligible for
paid Sunday, medical allowance and national festival holidays.
2) As per provisions of Section 25B of the Industrial disputes act,
daily wagers and semi skilled workers who has service of more
than five years but less than 10 years as on 1.10.1988, will get
Rs.750/- as fixed monthly salary alongwith dearness allowance as
per prevailing standard, for his working days. Moreover, he/she
will get two optional leave in addition to 14 misc. leave,
Sunday leave and national festival holidays. He/She will be
eligible for getting medical allowance and deduction of
provident fund.
3) As per provisions of Section 25B of the Industrial disputes
act, daily wagers and semi skilled workers who has service of
more than ten years but less than 15 years as on 1.10.1988,
will get minimum pay scale at par with skilled work along with
dearness allowance as per prevailing standard, for his working
days. Moreover, he/she will get two optional leave in addition
to 14 misc. leave, Sunday leave and national festival holidays.
He/She will be eligible for getting medical allowance and
deduction of provident fund.
(4) As per provisions of Section 25B of the Industrial
Disputes Act, daily wagers and semi skilled workers who has
service of more than fifteen years as on 1.10.1988 will be
considered as permanent worker and such semi skilled workers
will get current pay scale of skilled worker along with dearness
allowance, local city allowance and house rent allowance. They
will get benefit as per the prevailing rules of gratuity,
retired salary, general provident fund. Moreover they will
get two optional leave in addition to 14 misc. leave, 30 days
earned leave, 20 days half pay leave, Sunday leave & national
festival holidays. The retirement age of such semi skilled
workers will be 60 years and their services will be rendered for
pensionable period. As per provisions of Section 25B of the
Industrial Disputes Act, daily wagers and semi skilled workers
who have completed more than fifteen years of their service will
get one increment, two increment for 20 years service and three
increments for 25 years in the current pay scale of skilled
worker and their salary will be fixed accordingly on 1.10.1998.”
The aforesaid Resolution was issued and published with the consent of
the Finance Department dated 14th October, 1988 and General Administrative
Department dated 17th October, 1988.
3. In spite of the Resolution of the State Government dated 17th
October, 1988 the benefit was not provided to the daily wage workers of the
Forest Department of the State. Aggrieved by the same, some of the daily
wage workers of Forest Department filed a Special Civil Application No.3500
of 1992 before the High Court of Gujarat. The learned Single Judge by the
judgment dated 21st March, 1997 relying on a common judgment dated 4th
March, 1996, passed by the same Court in a group of similar cases, held
that Resolution dated 17th October, 1988 is applicable to the employees of
the Forest Department as well.
4. Against the aforesaid decision an LPA No.1642 of 1999 was filed by
the State Government which was dismissed by the Division Bench of the
Gujarat High Court by its order dated 29th April, 2003. On being aggrieved
by the same, the State Government moved before this Court by filing
SLP(C)….of 2004 (CC No.10763/2004) which also got dismissed by the order
dated 29th November, 2004. Thereby the finding that the Resolution dated
17th October, 1988 is applicable to the daily wage workers of the Forest
Department reached finality. In another case when some of the daily wage
workers of Forest Department moved before the High Court of Gujarat, the
matter was referred to a larger Bench. A three-Judge Bench by its judgment
in Gujarat Forest Producers, Gatherers and Forest Workers Union vs. State
of Gujarat, (2004) 2 GLH 302: (2004) 2 GLR 568, held that the Government
Resolution dated 17th October, 1988 is applicable only to the daily wage
workers of the Forest and Environment Department engaged in the work of
maintenance and repairing of constructions in that Department, and not to
the daily wage workers engaged in other type of work in that Department.
5. In the meantime, the State Government took up the matter in its
Forest and Environment Department. Referring to the Resolution dated 17th
October, 1988 it was observed that the said resolution was passed by
accepting the recommendations of the Committee appointed for studying
wages, service oriented and other facilities giving to the daily wagers,
labourers and workers employed for preservation and repairing constructions
in various departments of the State viz., Roads & Building Department,
Water Resources Department, Forest Department, Agricultural Department,
Narmada Development Department, Water Supply Department and Panchayat &
Rural Home Development and other departments, and it has been decided to
give wages and service oriented facilities to such daily wagers, labourers
and workers vide Resolution dated 17th October, 1988, of the Roads and
Building Department and the then ancillary resolutions. With the aforesaid
observation, the following decision was taken by the Resolution dated 22nd
December, 1999:
“RESOLUTOIN
In connection with aforesaid preface regarding daily-
wagers working in the Forest Department under the control of the
Forest & Environment Department and resolution of Hon’ble Shri
Daulatbhai Parmar Committee, it is resolved that,
1. On the basis of report of Hon’ble Shri Daulatbhai Parmar
Committee, the Resolution dated 17/10/1988 of the Roads &
Building Department, which is passed regarding wages,
services & other facilities to be applied to the daily-
wagers, labourers and workers of Forest Department under
the control of Forest & Environment Department, cannot be
applied in view of work of daily-wagers of the Forest
Department and in view of nature of work and financial
arrangement and their temporary/seasonal & limited work,
because on applying the said resolution, after completion
of work, such daily-wagers cannot be employed continuously
for long time where there is no work. But they are supposed
to be removed. In view of the said circumstances, on the
basis of report of Hon’ble Shri Daulatbhai Parmar
Committee, there is no intention of applying Resolution
dated 17/10/1998 of the Roads & Building Department to the
daily-wagers of the Forest Department of the State
Government.
2. In the Notification issued from time to time regarding
minimum wages also, minimum wages for the daily-wagers of
the Forest Department is indicated separately and in view
of the burden of their work, in comparison with daily-
wagers of construction wages is indicated at less rate,
which falls under heading of reasonable classification,
therefore, the Resolution dated 17/10/1988 of the Roads &
Building, Department cannot be applied for the said
reasons.
3. These orders have been passed in view of opinion/consent,
vide entry dated 05/11/1999 of the Legal Department, entry
dated 18/11/1999 of the Finance Department and entry dated
25/11/1999 of the Roads & Building Department.”
On bare perusal of the Resolution dated 22nd December, 1999, we find
that by such Resolution the State Government (Forest and Environment
Department) wrongly interpreted the Resolution dated 17th October, 1988
that the said Resolution passed on the opinion of the Legal Department runs
contrary to the Resolution of the State dated 17th October, 1988, and
decision of the High Court of Gujarat dated 21st March, 1997 in Special
Civil Application No.3500 of 1992, which was upheld by the Division Bench
vide letter dated 29th April, 2003 and against which the SLP was dismissed
by this Court on 29th November, 2004.
6. The present case pertains to daily wage workers of the Forest
Department, who have been in service for about 5-30 years as on 29th
October, 2010, of more than 240 days for large number of years, doing full-
time work of a perennial nature as stated by the High Court of Gujarat in
its judgment dated 29th October, 2010. In the said judgment, the High
Court directed the authority to consider the above stated factors while
deciding the individual cases for regularization.
7. The Unions of the employees and individual workmen employed by the
Forest Department approached the High Court of Gujarat in Special Civil
Application No.6913 of 2006, inter alia, seeking directions to the State
authorities for framing of a scheme for the purpose of giving permanent or
quasi permanent status to the daily wagers of Forest Department in the
light of their long services in the Forest Department on daily wage basis.
By order dated 12th October, 2006, the High Court disposed of the aforesaid
SCA permitting the petitioner Union (1st respondent in present matter) to
make a detailed representation to the State authorities and directing the
State authorities to consider the representation within a specified period.
Pursuant to the aforesaid direction of the Court the Union (1st respondent
herein) made a representation dated 30th October, 2006 to the Secretary,
Forest and Environment Department, the Secretary, Finance Department, the
Principal Chief Conservator of Forests and the Chief Conservator of
Forests. After more than a year, the Deputy Conservator of Forests,
Rajpipla West Division passed order dated 17th November, 2007 rejecting the
representation dated 30th October, 2006 with respect to 12 daily wagers of
the Rajpipla West Division.
8. Being aggrieved, the PWD Employees (1st respondent herein) filed a
Miscellaneous Civil Application No.119 of 2008 in SCA No.6913 of 2006
challenging the rejection order dated 17th November, 2007. By an order
dated 31st January, 2008, the High Court of Gujarat directed the Secretary,
Forest and Environment Department to decide the representation filed by the
PWD Employees Union.
9. The Secretary, Forest and Environment Department rejected the
application by his order dated 3rd May, 2008 which was a verbatim
reproduction of the order dated 17th November, 2007 passed by the Deputy
Conservator of Forests, West Division.
10. It is pertinent to mention that by order dated 3rd May, 2008 the
Secretary, Forest and Environment Department, inter alia, admits that “the
initial entry in the sense of engagement on daily wages does not suffer
from any illegality or irregularity and was in consonance with the
provisions of the Minimum Wages Act and continues to be so".
However, the representation was rejected, on the ground that “the
daily wagers have not worked on any duly sanctioned posts which were
otherwise required to be filled up in a regular manner and further that no
such duly sanctioned posts exist. Therefore, the Union's claim of one time
regularization, the same being on non-existent posts, is not maintainable
and is consequently denied".
11. After the rejection of the representation, the respondents-Employees
Union had to again move before the High Court in SCA No.8647 of 2008
challenging the order of rejection dated 3rd May, 2008. On hearing the
parties and perusal of record, the learned Single Judge of the High Court
by its order and judgment dated 29th October, 2010 disposed of the
representation recording the following facts:
(i) The Secretary, Forest and Environment Department,
State of Gujarat has himself come to the conclusion vide order
dated 3rd May, 2008 that initial entry of the daily wagers does not
suffer from any illegality or irregularity but is in consonance
with the provisions of Minimum Wages Act. Therefore, the question
of regularization by removing the procedural defects does not
arise.
(ii) Looking to the nature of work described in the order
dated 3rd May, 2008, the daily wagers are engaged in the work which
is perennial in nature.
(iii) The daily wagers of other Government Departments like
Roads & Buildings Department, Narmada Water Resources, Water Supply
and Kalpasar Department, etc. have been made permanent pursuant to
the Government Resolution dated 17th October, 1988.
(iv) The Department of Agriculture and Cooperation has also
issued analogous resolution dated 20th December, 2005 to regularize
the services of daily wagers of the Fisheries Department.
(v) The Forest Department of the State of Maharashtra
had also issued a scheme in the year 1996 quite similar to the
Government Resolution dated 17th October, 1988 in respect to the
daily wagers in their Forest Department.
(vi) In compliance of award passed by the Labour Court in
Reference (IT) No.386/88, a number of daily wagers of the Forest
Department who have completed 5 years 900 days were absorbed
against 22 supernumerary posts created.
Learned Single Judge finally passed the following order:
“7. In the interest of justice, the following directions are
issued which will meet with the ends of justice:
1. The impugned order dated 3.05.2008 passed by the
Secretary, Forest & Environment Department, State of
Gujarat is quashed and set aside.
2. The Secretary, Forest & Environment Department, State
of Gujarat, is directed to consider the case of the
petitioners for regularization/conferring permanent
status, afresh in light of the facts of each
individual case keeping in mind the observations made
hereinabove and also to consider the scope of framing
a scheme for giving quasi permanent status to the
petitioners-daily wagers at par with the scheme for
daily wagers in other Government Departments like
Roads & Buildings Department, Narmada Water
Resources, Water Supply and Kalpasar Department,
etc., contained in Government Resolution dated
17.10.1988. In case, the authority is of the view
that the benefits as prayed for cannot be granted
then a reasoned order be passed supported by detailed
reasons.
3 The aforesaid exercise be undertaken within a period
of two months from today.
4. Liberty to revive the petitions in case of difficulty
by filing required application/s.”
Against the judgment dated 29th October, 2010 no appeal was preferred
by the State Government or by any person and, thereby, the said judgment
reached finality.
12. The 1st respondent- Employees Union, thereafter requested the Chief
Secretary, Forest & Environment Department by letter dated 20th November,
2010 to consider the issue and pass an appropriate resolution in
consultation with the Union. However, no action has been taken. Hence, the
respondent Union filed Misc. Civil Application No.17/2011 in SCA
No.8647/2008 and connected matters before the High Court.
13. When the matter was pending, the Principal Secretary, Forest &
Environment Department by order dated 21st April, 2011 rejected the request
of regularization taking a stand that the job carried out by the
respondents herein cannot be said to be perennial in nature. Before the
High Court, Conservator of Forests filed affidavit giving details of number
of daily wagers whose cases were examined and, inter alia, stating that by
orders dated 21.4.2011 total 745 cases were considered and proposal to
grant benefit has not found favour. One additional-affidavit was filed by
the respondent-Union showing therein the fact that the State Government
already regularized the services of 21 daily wagers of the Forest
Department by creating supernumerary posts pursuant to the High Court of
Gujarat order dated 21st March, 1997 passed in SCA No.3500 of 1992. There
respondent-Union also filed a draft Amendment in Misc. Civil Application
No.17 of 2011 with additional prayer to quash the order of rejection dated
21st April, 2011.
14. Learned Single Judge of the High Court of Gujarat by order dated 25th
August, 2011 allowed the Misc.C.A No.17 of 2011, inter alia, holding that
the judgment dated 29th October, 2010 could not have been construed to mean
to pass a reasoned order rejecting the representation of the respondents
herein. An order was passed directing the State to frame a scheme for
giving quasi-permanent status to the respondents herein in compliance with
the judgment dated 29th October, 2010. Learned Single Judge also recorded
the offer made on behalf of the respondents that they were willing to waive
the financial benefits for the past period i.e. upto 29th October, 2010,
subject to the fact that period of service rendered by them be counted
notionally for other purposes.
15. The aforesaid order of the learned Single Judge was affirmed by the
Division Bench by the impugned common judgment dated 28th February, 2012.
Hence, the present SLPs are preferred by the State.
16. Learned counsel for the appellant-State contended as follows:
(i) The High Court under Article 226 of the Constitution
cannot direct absorption, regularization or permanency of the daily
wage workers unless the recruitment itself was made in a regular
manner in terms of the constitutional scheme.
(ii) A large scale regularization of daily wage workers
will increase the financial burden on the State.
(iii) The respondents or its member cannot base their claim
under Article 14 and 16 of the Constitution to seek permanence or
quasi permanence in service .
(iv) Direction given by the High Court is against the principle
laid down by this Court in Secretary, State of Karnataka and Others
vs. UmaDevi(3) and Others, (2006) 4 SCC 1 and A. Umarani v.
Registrar Co-operative Societies and Others, (2004) 7 SCC 112.
(v) Resolution dated 17th October, 1988 applies only to
the daily wage workers who were engaged in building maintenance and
repairing work as held by Full Bench of Gujarat High Court in
Gujarat Forest Producers, Gatherers and Forest Workers Union vs.
State of Gujarat (supra). The respondents or its members are not
entitled to claim any benefit under the said scheme contained in
Resolution dated 17th October, 1988.
17. Per contra, according to learned counsel for the respondents, the
judgment dated 29th October, 2010 passed in SCA No.8647/2008 and connected
matters is binding between the parties i.e. the appellants and the
respondents as it was not challenged by the appellants or any other person,
on the contrary the appellants claimed to have complied with the judgment
aforesaid. Learned counsel for the respondents contended as follows:
(i) The scheme contained in Resolution dated 17th October, 1988 is
equally applicable to the daily wage workers of the Forest
Department. It does not distinguish the employees on the basis of
nature of job performed by one or the other daily wage workers.
(ii) The Resolution dated 22nd December, 1999 issued by the
Forest & Environment Department, Government of Gujarat was not
brought on record before the High Court. It is for the first time
without any leave from this Court such fact has been brought on
record by filing additional documents. The Full Bench judgment in
Gujarat Forest Producers, Gatherers and Forest Workers Union vs.
State of Gujarat (supra) was also not placed before the High Court,
therefore, the appellants cannot derive any advantage of the same.
(iii) The Resolution dated 22nd December, 1999 issued from Forest &
Environment Department is contrary to the scheme contained in
Resolution dated 17th October, 1988 issued by the State of Gujarat.
(iv) The Full Bench of the Gujarat High Court in Gujarat Forest
Producers, Gatherers and Forest Workers Union(supra) wrongly
interpreted the scheme contained in Resolution dated 17th October,
1988. The same is not binding in case of the respondents who were
not parties to the said case.
18. The main questions which arise for our consideration in these appeals
are:
(1) Whether the daily wage workers of Forest and
Environment Department working for 5 to 30 years for works other
than building and maintenance and repairing work are entitled to
derive benefits of the scheme contained in the Resolution dated
17th October, 1988 issued by the State from Road and Building
Department;
(2) If so, whether the members of the respondent-
employees Union working on daily wages for more than 5 to 30 years
in the Forest and Environment Department of the State will be
entitled for similar benefits of the scheme contained in the
Resolution dated 17th October, 1988.
19. From a bare reading of the Resolution dated 17th October, 1988, the
following facts emerge:
(a) Labour and other Unions made representation to the
Government making demands and issues relating to daily wage workers
of different departments of the Government.
(b) The State Government constituted a committee under
the Chairmanship, Minister of Road and Building Department.
(c) The Committee was constituted for studying
(i) the wages of daily wage workers;and
(ii) work related services and facilities provided to the
daily wage workers who are engaged in the building
maintenance and repairing work in different departments of
the State.
(d) The recommendations of the Committee were accepted and
accordingly the State Government resolved to provide the benefits
of the scheme contained in the Resolution 17th October, 1988.
20. The daily wage workers who were engaged in building maintenance and
repairing work in different departments were already entitled for their
work related facilities. Therefore, what we find is that the Committee has
not limited the recommendation to the daily wage workers working in
building maintenance and repairing work in different departments of the
State. The State Government vide its Resolution dated 17th October, 1988
has not limited it to the daily wage workers working in building
maintenance and repairing work. What we find is that the Resolution dated
17th October, 1988 is applicable to all the daily wage workers working in
different departments of the State including Forest and Environment
Department performing any nature of job including the work other than
building maintenance and repairing work. The decision of the Full Bench
of Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest
Workers Union(supra and the subsequent Resolution dated 22nd December, 1999
issued from Forest and Environment Department of the State, in our opinion
are not sustainable, as the intent of Resolution dated 17th October, 1988
was not properly explained therein and, therefore, the aforesaid decision
of Full Bench and Resolution dated 22nd December, 1999 cannot be made
applicable to the daily wage workers of the Forest and Environment
Department of the State of Gujarat.
21. In view of the aforesaid observation, we find that the full Bench of
the Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest
Workers Union(supra) proceeded on erroneous premises to hold that the
Resolution dated 17th October, 1988 is applicable only to the daily wage
workers of Forest Department engaged in building maintenance and repairing
work. The conclusions in the said judgment are not sustainable otherwise
also. We have already noticed that the Resolution of the State Government
dated 17th October, 1988 is not limited to any particular department, it
applies to all the departments including Road and Building, Forest and
Environment Department, Water Resources Department, etc. We have also
noticed that the Committee headed by the Minister of Road and Building
Department looked into the wages of daily wage workers and work related
facilities provided to the daily wage workers engaged in building
maintenance and repairing work in different departments, only for the
purpose of its recommendations. The Committee has not limited the
recommendations amongst the daily wage workers engaged in building
maintenance and repairing work in different departments by its aforesaid
Resolution. It is applicable to all daily wage workers including semi-
skilled workers performing any nature of job, working in different
departments of the State including the daily wage workers of the Forest
Department performing work other than building maintenance and repairing
work.
22. The impugned order passed by the learned Single Judge and the
Division Bench arise out of the final order and judgment dated 29th
October, 2010 passed in SCA No.8647/2008 and connected matters. The said
order has reached finality in absence of any challenge before the higher
Court and hence became binding between the parties i.e. the appellant-State
of Gujarat and the respondents-Employees Union. Therefore, none of the
parties including appellants-State of Gujarat can rely on Full Bench
decision in Gujarat Forest Producers, Gatherers and Forest Workers
Union(supra) to scuttle the decision and direction given by the Gujarat
High Court in SCA No.8647/2008 and connected matters.
23. The decisions in Uma Devi (supra) and A. Umarani (supra) were
regarding the question concerning regularization of employees entered by
back door method or those who were illegally appointed encouraging a
political set up, in violation of Article 14 and 16 of the Constitution of
India. We are of the opinion that both the aforesaid decisions are not
applicable in the present case i.e. to the members of the respondent-
Employees Union for the following reasons:
(i) The Secretary, Forest and Environment Department of the State of
Gujarat by his order dated 3rd May, 2008 held that initially the entry
of the daily wagers do not suffer from any illegality or irregularity
but is in consonance with the provisions of Minimum Wages Act.
Therefore, the question of regularization by removing procedural
defects does not arise.
(ii) The Gujarat High Court by its judgment dated 29th October, 2010
passed in SCA No.8647 of 2008 while noticing the aforesaid stand taken
by the State also held that the nature of work described in the order
dated 3rd May, 2008 shows that the daily wage-workers are engaged in
the work which is perennial in nature.
(iii) The case of A.Uma Rani (supra) related to regularization of
services of irregular appointees. In the said case this Court held
that when appointments are made in contravention of mandatory
provisions of the Act and statutory rules framed therein and in
ignorance of essential qualifications, the same would be illegal and
cannot be regularized by the State.
24. Thus, the principal question that falls to be considered in these
appeals is
whether in the facts and circumstances it will be desirable for
the Court to direct the appellants to straightaway regularize the services
of all the daily wage workers working for more than five years or the daily
wage workers working for more than five years are entitled for some other
relief.
25. As per scheme contained in Resolution dated 17th October, 1988 all
the daily wage workers were not entitled for regularization or permanency
in the services. As per the said Resolution the daily wagers are entitled
to the following benefits:
“(i) They are entitled to daily wages as per the prevailing
Daily Wages. If there is presence of more than 240 days in first
year, daily wagers are eligible for paid Sunday, medical
allowance and national festival holidays.
(ii) Daily wagers and semi skilled workers who has service of
more than five years and less than 10 years are entitled for
fixed monthly salary along with dearness allowance as per
prevailing standard, for his working days. Such daily wagers
will get two optional leave in addition to 14 misc. leave,
Sunday leave and national festival holidays. Such daily wagers
will also be eligible for getting medical allowance and
deduction of provident fund.
(iii) Daily wagers and semi skilled workers who has service of
more than ten years but less than 15 years are entitled to get
minimum pay scale at par with skilled worker along with dearness
allowance as per prevailing standard, for his working days.
Moreover, such daily wagers will get two optional leave in
addition to 14 misc. leave, Sunday leave and national festival
holidays. He/she will be eligible for getting medical allowance
and deduction of provident fund.
(iv) Daily wagers and semi skilled workers who has service of
more than 15 years will be considered as permanent worker and
such semi skilled workers will get current pay scale of skilled
worker along with dearness allowance, local city allowance and
house rent allowance. They will get benefit as per the
prevailing rules of gratuity, retired salary, general provident
fund. Moreover, they will get two optional leave in addition to
14 misc. leave, 30 days earned leave, 20 days half pay leave,
Sunday leave and national festival holidays. The daily wage
workers and semi skilled who have completed more than 15 years
of their service will get one increment, two increments for 20
years service and three increments for 25 years in the current
pay scale of skilled workers and their salary will be fixed
accordingly.”
26. Considering, the facts and circumstances of the case, the finding of
Gujarat High Court dated 29th October, 2010 in SCA No.8647/2008 and
connected matters and the fact that the said judgment is binding between
the parties, we are of the view that the appellants should be directed to
grant the benefit of the scheme as contained in the Resolution dated 17th
October, 1988 to all the daily wage workers of the Forest and Environment
Department working for more than five years, providing them the benefits as
per our finding at Paragraph 25 above.
The appellants are directed accordingly.
The judgment and order passed by the learned Single Judge
dated 29th October, 2010 as affirmed by the Division Bench by its order
dated 28th February, 2012 stands modified to the extent above.
The benefit
should be granted to the eligible daily wage workers of the Forest and
Environment Department working for more than five years including those who
are performing work other than building maintenance and repairing but they
will be entitled for the consequential benefit w.e.f. 29th October, 2010 or
subsequent date from which they are so eligible within four months from the
date of receipt/production of the copy of this order. The appeals stand
disposed of with the aforesaid observation and directions to the appellant-
State and its authorities. There shall be no separate orders as to costs.
………..………………………………………..J.
(T.S. THAKUR)
………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 9, 2013.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 5321-5322 OF 2013
(ARISING OUT OF SLP(C) 13619-13620 OF 2012)
STATE OF GUJARAT & ORS. … APPELLANTS
VERUS
PWD EMPLOYEES UNION & ORS. ETC. … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted. These appeals have been preferred by the State of
Gujarat and others against a common judgment dated 28th February, 2012
passed by the Division Bench of the High Court of Gujarat at Ahmedabad
whereby Letters Patent Appeal No. 1754 of 2011 in Misc. Civil Application
No.17/2011 preferred by the State of Gujarat and its officials has been
dismissed and
the order dated 25th August, 2011 passed by the learned
Single Judge has been affirmed giving direction to the appellant-State and
its officials to regularize the services of respondents-workmen.
2. The factual matrix of the case is as follows:
The Gujarat State Employees Union, Gujarat State Public Works
Department Employees Union, Labour Union and other Unions made a
representation to the State Government for regularization of daily wage
workers, working since long. On their demand, the State Government
constituted a Committee vide Resolution dated 24th March, 1988 under the
Chairmanship of Minister of Road and Building Department to make proper
recommendations after studying the demands, issues and questions of the
Labour Unions. After thoroughly studying the wages of daily wage workers,
work related services & facilities provided to the daily wage workers who
were engaged in the building maintenance and repairing work in different
departments of the State such as Road and Building Department, Water
Resources Department, Forest Department, Agriculture Department etc. the
Committee made recommendations favouring the regularization. The State
Government on considering the recommendations submitted by the Committee
decided to accept all the said recommendations and resolved as follows:
“RESOLUTION
1 The Government has taken into consideration the recommendations
submitted by committee and so, it is decided to accept all
recommendations of the Committee. Accordingly, it is resolved
to provide following wages and services to daily wagers and semi
skilled workers working in different departments of the State.
1. It is decided to pay daily wages as per the prevailing Daily
Wages Rules to daily wagers and semi skilled workers who has
less than five years service as on 1.10.1988. If there is
presence of more than 240 days in first year, he is eligible for
paid Sunday, medical allowance and national festival holidays.
2) As per provisions of Section 25B of the Industrial disputes act,
daily wagers and semi skilled workers who has service of more
than five years but less than 10 years as on 1.10.1988, will get
Rs.750/- as fixed monthly salary alongwith dearness allowance as
per prevailing standard, for his working days. Moreover, he/she
will get two optional leave in addition to 14 misc. leave,
Sunday leave and national festival holidays. He/She will be
eligible for getting medical allowance and deduction of
provident fund.
3) As per provisions of Section 25B of the Industrial disputes
act, daily wagers and semi skilled workers who has service of
more than ten years but less than 15 years as on 1.10.1988,
will get minimum pay scale at par with skilled work along with
dearness allowance as per prevailing standard, for his working
days. Moreover, he/she will get two optional leave in addition
to 14 misc. leave, Sunday leave and national festival holidays.
He/She will be eligible for getting medical allowance and
deduction of provident fund.
(4) As per provisions of Section 25B of the Industrial
Disputes Act, daily wagers and semi skilled workers who has
service of more than fifteen years as on 1.10.1988 will be
considered as permanent worker and such semi skilled workers
will get current pay scale of skilled worker along with dearness
allowance, local city allowance and house rent allowance. They
will get benefit as per the prevailing rules of gratuity,
retired salary, general provident fund. Moreover they will
get two optional leave in addition to 14 misc. leave, 30 days
earned leave, 20 days half pay leave, Sunday leave & national
festival holidays. The retirement age of such semi skilled
workers will be 60 years and their services will be rendered for
pensionable period. As per provisions of Section 25B of the
Industrial Disputes Act, daily wagers and semi skilled workers
who have completed more than fifteen years of their service will
get one increment, two increment for 20 years service and three
increments for 25 years in the current pay scale of skilled
worker and their salary will be fixed accordingly on 1.10.1998.”
The aforesaid Resolution was issued and published with the consent of
the Finance Department dated 14th October, 1988 and General Administrative
Department dated 17th October, 1988.
3. In spite of the Resolution of the State Government dated 17th
October, 1988 the benefit was not provided to the daily wage workers of the
Forest Department of the State. Aggrieved by the same, some of the daily
wage workers of Forest Department filed a Special Civil Application No.3500
of 1992 before the High Court of Gujarat. The learned Single Judge by the
judgment dated 21st March, 1997 relying on a common judgment dated 4th
March, 1996, passed by the same Court in a group of similar cases, held
that Resolution dated 17th October, 1988 is applicable to the employees of
the Forest Department as well.
4. Against the aforesaid decision an LPA No.1642 of 1999 was filed by
the State Government which was dismissed by the Division Bench of the
Gujarat High Court by its order dated 29th April, 2003. On being aggrieved
by the same, the State Government moved before this Court by filing
SLP(C)….of 2004 (CC No.10763/2004) which also got dismissed by the order
dated 29th November, 2004. Thereby the finding that the Resolution dated
17th October, 1988 is applicable to the daily wage workers of the Forest
Department reached finality. In another case when some of the daily wage
workers of Forest Department moved before the High Court of Gujarat, the
matter was referred to a larger Bench. A three-Judge Bench by its judgment
in Gujarat Forest Producers, Gatherers and Forest Workers Union vs. State
of Gujarat, (2004) 2 GLH 302: (2004) 2 GLR 568, held that the Government
Resolution dated 17th October, 1988 is applicable only to the daily wage
workers of the Forest and Environment Department engaged in the work of
maintenance and repairing of constructions in that Department, and not to
the daily wage workers engaged in other type of work in that Department.
5. In the meantime, the State Government took up the matter in its
Forest and Environment Department. Referring to the Resolution dated 17th
October, 1988 it was observed that the said resolution was passed by
accepting the recommendations of the Committee appointed for studying
wages, service oriented and other facilities giving to the daily wagers,
labourers and workers employed for preservation and repairing constructions
in various departments of the State viz., Roads & Building Department,
Water Resources Department, Forest Department, Agricultural Department,
Narmada Development Department, Water Supply Department and Panchayat &
Rural Home Development and other departments, and it has been decided to
give wages and service oriented facilities to such daily wagers, labourers
and workers vide Resolution dated 17th October, 1988, of the Roads and
Building Department and the then ancillary resolutions. With the aforesaid
observation, the following decision was taken by the Resolution dated 22nd
December, 1999:
“RESOLUTOIN
In connection with aforesaid preface regarding daily-
wagers working in the Forest Department under the control of the
Forest & Environment Department and resolution of Hon’ble Shri
Daulatbhai Parmar Committee, it is resolved that,
1. On the basis of report of Hon’ble Shri Daulatbhai Parmar
Committee, the Resolution dated 17/10/1988 of the Roads &
Building Department, which is passed regarding wages,
services & other facilities to be applied to the daily-
wagers, labourers and workers of Forest Department under
the control of Forest & Environment Department, cannot be
applied in view of work of daily-wagers of the Forest
Department and in view of nature of work and financial
arrangement and their temporary/seasonal & limited work,
because on applying the said resolution, after completion
of work, such daily-wagers cannot be employed continuously
for long time where there is no work. But they are supposed
to be removed. In view of the said circumstances, on the
basis of report of Hon’ble Shri Daulatbhai Parmar
Committee, there is no intention of applying Resolution
dated 17/10/1998 of the Roads & Building Department to the
daily-wagers of the Forest Department of the State
Government.
2. In the Notification issued from time to time regarding
minimum wages also, minimum wages for the daily-wagers of
the Forest Department is indicated separately and in view
of the burden of their work, in comparison with daily-
wagers of construction wages is indicated at less rate,
which falls under heading of reasonable classification,
therefore, the Resolution dated 17/10/1988 of the Roads &
Building, Department cannot be applied for the said
reasons.
3. These orders have been passed in view of opinion/consent,
vide entry dated 05/11/1999 of the Legal Department, entry
dated 18/11/1999 of the Finance Department and entry dated
25/11/1999 of the Roads & Building Department.”
On bare perusal of the Resolution dated 22nd December, 1999, we find
that by such Resolution the State Government (Forest and Environment
Department) wrongly interpreted the Resolution dated 17th October, 1988
that the said Resolution passed on the opinion of the Legal Department runs
contrary to the Resolution of the State dated 17th October, 1988, and
decision of the High Court of Gujarat dated 21st March, 1997 in Special
Civil Application No.3500 of 1992, which was upheld by the Division Bench
vide letter dated 29th April, 2003 and against which the SLP was dismissed
by this Court on 29th November, 2004.
6. The present case pertains to daily wage workers of the Forest
Department, who have been in service for about 5-30 years as on 29th
October, 2010, of more than 240 days for large number of years, doing full-
time work of a perennial nature as stated by the High Court of Gujarat in
its judgment dated 29th October, 2010. In the said judgment, the High
Court directed the authority to consider the above stated factors while
deciding the individual cases for regularization.
7. The Unions of the employees and individual workmen employed by the
Forest Department approached the High Court of Gujarat in Special Civil
Application No.6913 of 2006, inter alia, seeking directions to the State
authorities for framing of a scheme for the purpose of giving permanent or
quasi permanent status to the daily wagers of Forest Department in the
light of their long services in the Forest Department on daily wage basis.
By order dated 12th October, 2006, the High Court disposed of the aforesaid
SCA permitting the petitioner Union (1st respondent in present matter) to
make a detailed representation to the State authorities and directing the
State authorities to consider the representation within a specified period.
Pursuant to the aforesaid direction of the Court the Union (1st respondent
herein) made a representation dated 30th October, 2006 to the Secretary,
Forest and Environment Department, the Secretary, Finance Department, the
Principal Chief Conservator of Forests and the Chief Conservator of
Forests. After more than a year, the Deputy Conservator of Forests,
Rajpipla West Division passed order dated 17th November, 2007 rejecting the
representation dated 30th October, 2006 with respect to 12 daily wagers of
the Rajpipla West Division.
8. Being aggrieved, the PWD Employees (1st respondent herein) filed a
Miscellaneous Civil Application No.119 of 2008 in SCA No.6913 of 2006
challenging the rejection order dated 17th November, 2007. By an order
dated 31st January, 2008, the High Court of Gujarat directed the Secretary,
Forest and Environment Department to decide the representation filed by the
PWD Employees Union.
9. The Secretary, Forest and Environment Department rejected the
application by his order dated 3rd May, 2008 which was a verbatim
reproduction of the order dated 17th November, 2007 passed by the Deputy
Conservator of Forests, West Division.
10. It is pertinent to mention that by order dated 3rd May, 2008 the
Secretary, Forest and Environment Department, inter alia, admits that “the
initial entry in the sense of engagement on daily wages does not suffer
from any illegality or irregularity and was in consonance with the
provisions of the Minimum Wages Act and continues to be so".
However, the representation was rejected, on the ground that “the
daily wagers have not worked on any duly sanctioned posts which were
otherwise required to be filled up in a regular manner and further that no
such duly sanctioned posts exist. Therefore, the Union's claim of one time
regularization, the same being on non-existent posts, is not maintainable
and is consequently denied".
11. After the rejection of the representation, the respondents-Employees
Union had to again move before the High Court in SCA No.8647 of 2008
challenging the order of rejection dated 3rd May, 2008. On hearing the
parties and perusal of record, the learned Single Judge of the High Court
by its order and judgment dated 29th October, 2010 disposed of the
representation recording the following facts:
(i) The Secretary, Forest and Environment Department,
State of Gujarat has himself come to the conclusion vide order
dated 3rd May, 2008 that initial entry of the daily wagers does not
suffer from any illegality or irregularity but is in consonance
with the provisions of Minimum Wages Act. Therefore, the question
of regularization by removing the procedural defects does not
arise.
(ii) Looking to the nature of work described in the order
dated 3rd May, 2008, the daily wagers are engaged in the work which
is perennial in nature.
(iii) The daily wagers of other Government Departments like
Roads & Buildings Department, Narmada Water Resources, Water Supply
and Kalpasar Department, etc. have been made permanent pursuant to
the Government Resolution dated 17th October, 1988.
(iv) The Department of Agriculture and Cooperation has also
issued analogous resolution dated 20th December, 2005 to regularize
the services of daily wagers of the Fisheries Department.
(v) The Forest Department of the State of Maharashtra
had also issued a scheme in the year 1996 quite similar to the
Government Resolution dated 17th October, 1988 in respect to the
daily wagers in their Forest Department.
(vi) In compliance of award passed by the Labour Court in
Reference (IT) No.386/88, a number of daily wagers of the Forest
Department who have completed 5 years 900 days were absorbed
against 22 supernumerary posts created.
Learned Single Judge finally passed the following order:
“7. In the interest of justice, the following directions are
issued which will meet with the ends of justice:
1. The impugned order dated 3.05.2008 passed by the
Secretary, Forest & Environment Department, State of
Gujarat is quashed and set aside.
2. The Secretary, Forest & Environment Department, State
of Gujarat, is directed to consider the case of the
petitioners for regularization/conferring permanent
status, afresh in light of the facts of each
individual case keeping in mind the observations made
hereinabove and also to consider the scope of framing
a scheme for giving quasi permanent status to the
petitioners-daily wagers at par with the scheme for
daily wagers in other Government Departments like
Roads & Buildings Department, Narmada Water
Resources, Water Supply and Kalpasar Department,
etc., contained in Government Resolution dated
17.10.1988. In case, the authority is of the view
that the benefits as prayed for cannot be granted
then a reasoned order be passed supported by detailed
reasons.
3 The aforesaid exercise be undertaken within a period
of two months from today.
4. Liberty to revive the petitions in case of difficulty
by filing required application/s.”
Against the judgment dated 29th October, 2010 no appeal was preferred
by the State Government or by any person and, thereby, the said judgment
reached finality.
12. The 1st respondent- Employees Union, thereafter requested the Chief
Secretary, Forest & Environment Department by letter dated 20th November,
2010 to consider the issue and pass an appropriate resolution in
consultation with the Union. However, no action has been taken. Hence, the
respondent Union filed Misc. Civil Application No.17/2011 in SCA
No.8647/2008 and connected matters before the High Court.
13. When the matter was pending, the Principal Secretary, Forest &
Environment Department by order dated 21st April, 2011 rejected the request
of regularization taking a stand that the job carried out by the
respondents herein cannot be said to be perennial in nature. Before the
High Court, Conservator of Forests filed affidavit giving details of number
of daily wagers whose cases were examined and, inter alia, stating that by
orders dated 21.4.2011 total 745 cases were considered and proposal to
grant benefit has not found favour. One additional-affidavit was filed by
the respondent-Union showing therein the fact that the State Government
already regularized the services of 21 daily wagers of the Forest
Department by creating supernumerary posts pursuant to the High Court of
Gujarat order dated 21st March, 1997 passed in SCA No.3500 of 1992. There
respondent-Union also filed a draft Amendment in Misc. Civil Application
No.17 of 2011 with additional prayer to quash the order of rejection dated
21st April, 2011.
14. Learned Single Judge of the High Court of Gujarat by order dated 25th
August, 2011 allowed the Misc.C.A No.17 of 2011, inter alia, holding that
the judgment dated 29th October, 2010 could not have been construed to mean
to pass a reasoned order rejecting the representation of the respondents
herein. An order was passed directing the State to frame a scheme for
giving quasi-permanent status to the respondents herein in compliance with
the judgment dated 29th October, 2010. Learned Single Judge also recorded
the offer made on behalf of the respondents that they were willing to waive
the financial benefits for the past period i.e. upto 29th October, 2010,
subject to the fact that period of service rendered by them be counted
notionally for other purposes.
15. The aforesaid order of the learned Single Judge was affirmed by the
Division Bench by the impugned common judgment dated 28th February, 2012.
Hence, the present SLPs are preferred by the State.
16. Learned counsel for the appellant-State contended as follows:
(i) The High Court under Article 226 of the Constitution
cannot direct absorption, regularization or permanency of the daily
wage workers unless the recruitment itself was made in a regular
manner in terms of the constitutional scheme.
(ii) A large scale regularization of daily wage workers
will increase the financial burden on the State.
(iii) The respondents or its member cannot base their claim
under Article 14 and 16 of the Constitution to seek permanence or
quasi permanence in service .
(iv) Direction given by the High Court is against the principle
laid down by this Court in Secretary, State of Karnataka and Others
vs. UmaDevi(3) and Others, (2006) 4 SCC 1 and A. Umarani v.
Registrar Co-operative Societies and Others, (2004) 7 SCC 112.
(v) Resolution dated 17th October, 1988 applies only to
the daily wage workers who were engaged in building maintenance and
repairing work as held by Full Bench of Gujarat High Court in
Gujarat Forest Producers, Gatherers and Forest Workers Union vs.
State of Gujarat (supra). The respondents or its members are not
entitled to claim any benefit under the said scheme contained in
Resolution dated 17th October, 1988.
17. Per contra, according to learned counsel for the respondents, the
judgment dated 29th October, 2010 passed in SCA No.8647/2008 and connected
matters is binding between the parties i.e. the appellants and the
respondents as it was not challenged by the appellants or any other person,
on the contrary the appellants claimed to have complied with the judgment
aforesaid. Learned counsel for the respondents contended as follows:
(i) The scheme contained in Resolution dated 17th October, 1988 is
equally applicable to the daily wage workers of the Forest
Department. It does not distinguish the employees on the basis of
nature of job performed by one or the other daily wage workers.
(ii) The Resolution dated 22nd December, 1999 issued by the
Forest & Environment Department, Government of Gujarat was not
brought on record before the High Court. It is for the first time
without any leave from this Court such fact has been brought on
record by filing additional documents. The Full Bench judgment in
Gujarat Forest Producers, Gatherers and Forest Workers Union vs.
State of Gujarat (supra) was also not placed before the High Court,
therefore, the appellants cannot derive any advantage of the same.
(iii) The Resolution dated 22nd December, 1999 issued from Forest &
Environment Department is contrary to the scheme contained in
Resolution dated 17th October, 1988 issued by the State of Gujarat.
(iv) The Full Bench of the Gujarat High Court in Gujarat Forest
Producers, Gatherers and Forest Workers Union(supra) wrongly
interpreted the scheme contained in Resolution dated 17th October,
1988. The same is not binding in case of the respondents who were
not parties to the said case.
18. The main questions which arise for our consideration in these appeals
are:
(1) Whether the daily wage workers of Forest and
Environment Department working for 5 to 30 years for works other
than building and maintenance and repairing work are entitled to
derive benefits of the scheme contained in the Resolution dated
17th October, 1988 issued by the State from Road and Building
Department;
(2) If so, whether the members of the respondent-
employees Union working on daily wages for more than 5 to 30 years
in the Forest and Environment Department of the State will be
entitled for similar benefits of the scheme contained in the
Resolution dated 17th October, 1988.
19. From a bare reading of the Resolution dated 17th October, 1988, the
following facts emerge:
(a) Labour and other Unions made representation to the
Government making demands and issues relating to daily wage workers
of different departments of the Government.
(b) The State Government constituted a committee under
the Chairmanship, Minister of Road and Building Department.
(c) The Committee was constituted for studying
(i) the wages of daily wage workers;and
(ii) work related services and facilities provided to the
daily wage workers who are engaged in the building
maintenance and repairing work in different departments of
the State.
(d) The recommendations of the Committee were accepted and
accordingly the State Government resolved to provide the benefits
of the scheme contained in the Resolution 17th October, 1988.
20. The daily wage workers who were engaged in building maintenance and
repairing work in different departments were already entitled for their
work related facilities. Therefore, what we find is that the Committee has
not limited the recommendation to the daily wage workers working in
building maintenance and repairing work in different departments of the
State. The State Government vide its Resolution dated 17th October, 1988
has not limited it to the daily wage workers working in building
maintenance and repairing work. What we find is that the Resolution dated
17th October, 1988 is applicable to all the daily wage workers working in
different departments of the State including Forest and Environment
Department performing any nature of job including the work other than
building maintenance and repairing work. The decision of the Full Bench
of Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest
Workers Union(supra and the subsequent Resolution dated 22nd December, 1999
issued from Forest and Environment Department of the State, in our opinion
are not sustainable, as the intent of Resolution dated 17th October, 1988
was not properly explained therein and, therefore, the aforesaid decision
of Full Bench and Resolution dated 22nd December, 1999 cannot be made
applicable to the daily wage workers of the Forest and Environment
Department of the State of Gujarat.
21. In view of the aforesaid observation, we find that the full Bench of
the Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest
Workers Union(supra) proceeded on erroneous premises to hold that the
Resolution dated 17th October, 1988 is applicable only to the daily wage
workers of Forest Department engaged in building maintenance and repairing
work. The conclusions in the said judgment are not sustainable otherwise
also. We have already noticed that the Resolution of the State Government
dated 17th October, 1988 is not limited to any particular department, it
applies to all the departments including Road and Building, Forest and
Environment Department, Water Resources Department, etc. We have also
noticed that the Committee headed by the Minister of Road and Building
Department looked into the wages of daily wage workers and work related
facilities provided to the daily wage workers engaged in building
maintenance and repairing work in different departments, only for the
purpose of its recommendations. The Committee has not limited the
recommendations amongst the daily wage workers engaged in building
maintenance and repairing work in different departments by its aforesaid
Resolution. It is applicable to all daily wage workers including semi-
skilled workers performing any nature of job, working in different
departments of the State including the daily wage workers of the Forest
Department performing work other than building maintenance and repairing
work.
22. The impugned order passed by the learned Single Judge and the
Division Bench arise out of the final order and judgment dated 29th
October, 2010 passed in SCA No.8647/2008 and connected matters. The said
order has reached finality in absence of any challenge before the higher
Court and hence became binding between the parties i.e. the appellant-State
of Gujarat and the respondents-Employees Union. Therefore, none of the
parties including appellants-State of Gujarat can rely on Full Bench
decision in Gujarat Forest Producers, Gatherers and Forest Workers
Union(supra) to scuttle the decision and direction given by the Gujarat
High Court in SCA No.8647/2008 and connected matters.
23. The decisions in Uma Devi (supra) and A. Umarani (supra) were
regarding the question concerning regularization of employees entered by
back door method or those who were illegally appointed encouraging a
political set up, in violation of Article 14 and 16 of the Constitution of
India. We are of the opinion that both the aforesaid decisions are not
applicable in the present case i.e. to the members of the respondent-
Employees Union for the following reasons:
(i) The Secretary, Forest and Environment Department of the State of
Gujarat by his order dated 3rd May, 2008 held that initially the entry
of the daily wagers do not suffer from any illegality or irregularity
but is in consonance with the provisions of Minimum Wages Act.
Therefore, the question of regularization by removing procedural
defects does not arise.
(ii) The Gujarat High Court by its judgment dated 29th October, 2010
passed in SCA No.8647 of 2008 while noticing the aforesaid stand taken
by the State also held that the nature of work described in the order
dated 3rd May, 2008 shows that the daily wage-workers are engaged in
the work which is perennial in nature.
(iii) The case of A.Uma Rani (supra) related to regularization of
services of irregular appointees. In the said case this Court held
that when appointments are made in contravention of mandatory
provisions of the Act and statutory rules framed therein and in
ignorance of essential qualifications, the same would be illegal and
cannot be regularized by the State.
24. Thus, the principal question that falls to be considered in these
appeals is
whether in the facts and circumstances it will be desirable for
the Court to direct the appellants to straightaway regularize the services
of all the daily wage workers working for more than five years or the daily
wage workers working for more than five years are entitled for some other
relief.
25. As per scheme contained in Resolution dated 17th October, 1988 all
the daily wage workers were not entitled for regularization or permanency
in the services. As per the said Resolution the daily wagers are entitled
to the following benefits:
“(i) They are entitled to daily wages as per the prevailing
Daily Wages. If there is presence of more than 240 days in first
year, daily wagers are eligible for paid Sunday, medical
allowance and national festival holidays.
(ii) Daily wagers and semi skilled workers who has service of
more than five years and less than 10 years are entitled for
fixed monthly salary along with dearness allowance as per
prevailing standard, for his working days. Such daily wagers
will get two optional leave in addition to 14 misc. leave,
Sunday leave and national festival holidays. Such daily wagers
will also be eligible for getting medical allowance and
deduction of provident fund.
(iii) Daily wagers and semi skilled workers who has service of
more than ten years but less than 15 years are entitled to get
minimum pay scale at par with skilled worker along with dearness
allowance as per prevailing standard, for his working days.
Moreover, such daily wagers will get two optional leave in
addition to 14 misc. leave, Sunday leave and national festival
holidays. He/she will be eligible for getting medical allowance
and deduction of provident fund.
(iv) Daily wagers and semi skilled workers who has service of
more than 15 years will be considered as permanent worker and
such semi skilled workers will get current pay scale of skilled
worker along with dearness allowance, local city allowance and
house rent allowance. They will get benefit as per the
prevailing rules of gratuity, retired salary, general provident
fund. Moreover, they will get two optional leave in addition to
14 misc. leave, 30 days earned leave, 20 days half pay leave,
Sunday leave and national festival holidays. The daily wage
workers and semi skilled who have completed more than 15 years
of their service will get one increment, two increments for 20
years service and three increments for 25 years in the current
pay scale of skilled workers and their salary will be fixed
accordingly.”
26. Considering, the facts and circumstances of the case, the finding of
Gujarat High Court dated 29th October, 2010 in SCA No.8647/2008 and
connected matters and the fact that the said judgment is binding between
the parties, we are of the view that the appellants should be directed to
grant the benefit of the scheme as contained in the Resolution dated 17th
October, 1988 to all the daily wage workers of the Forest and Environment
Department working for more than five years, providing them the benefits as
per our finding at Paragraph 25 above.
The appellants are directed accordingly.
The judgment and order passed by the learned Single Judge
dated 29th October, 2010 as affirmed by the Division Bench by its order
dated 28th February, 2012 stands modified to the extent above.
The benefit
should be granted to the eligible daily wage workers of the Forest and
Environment Department working for more than five years including those who
are performing work other than building maintenance and repairing but they
will be entitled for the consequential benefit w.e.f. 29th October, 2010 or
subsequent date from which they are so eligible within four months from the
date of receipt/production of the copy of this order. The appeals stand
disposed of with the aforesaid observation and directions to the appellant-
State and its authorities. There shall be no separate orders as to costs.
………..………………………………………..J.
(T.S. THAKUR)
………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 9, 2013.
