STATE OF GUJARAT vs. PWD EMPLOYEES UNION & ORS ETC.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 5321-5322 OF 2013

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 th and others against a common judgment dated 28 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 JUDGMENT th State of Gujarat and its officials has been dismissed and the order dated 25 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 Page 1 2 State Government for regularization of daily wage workers, working since long. On their demand, the State Government constituted a Committee vide Resolution th dated 24 March, 1988 under the Chairmanship of Minister of Road and Building

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      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. JUDGMENT 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  Page 2 3 eligible   for   paid   Sunday,   medical  allowance and national festival holidays.

(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. JUDGMENT (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.  Page 3 4

The aforesaid Resolution was issued and published with the consent of the th Finance Department dated 14 October, 1988 and General Administrative th Department dated 17 October, 1988. th 3. In spite of the Resolution of the State Government dated 17 October, 1988 the benefit was not provided to the daily wage workers of the Forest Department of JUDGMENT 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 st Court of Gujarat. The learned Single Judge by the judgment dated 21 March, 1997 th relying on a common judgment dated 4 March, 1996, passed by the same Court in th a group of similar cases, held that Resolution dated 17 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 Page 4 5 State Government which was dismissed by the Division Bench of the Gujarat High th Court by its order dated 29 April, 2003. On being aggrieved by the same, the State Government moved before this Court by filing SLP(C)….of 2004 (CC

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 th that the Government Resolution dated 17 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. JUDGMENT 5. In the meantime, the State Government took up the matter in its Forest and th Environment Department. Referring to the Resolution dated 17 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, Page 5 6 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

aforesaid observation, the following decision was taken by the Resolution dated nd 22 December, 1999: “ RESOLUTOIN In connection with aforesaid preface  regarding   daily­wagers   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   daily­wagers,  labourers   and   workers   of   Forest  Department   under   the   control   of  Forest   &   Environment   Department,  cannot be applied in view of work of  daily­wagers   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   daily­wagers   cannot   be  employed continuously for long time  JUDGMENT Page 6 7

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   daily­wagers   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.” JUDGMENT nd On bare perusal of the Resolution dated 22 December, 1999, we find that by such Resolution the State Government (Forest and Environment Department) th wrongly interpreted the Resolution dated 17 October, 1988 that the said Resolution passed on the opinion of the Legal Department runs contrary to the th Resolution of the State dated 17 October, 1988, and decision of the High Court of Page 7 8 st Gujarat dated 21 March, 1997 in Special Civil Application No.3500 of 1992, th which was upheld by the Division Bench vide letter dated 29 April, 2003 and th against which the SLP was dismissed by this Court on 29 November, 2004.

than 240 days for large number of years, doing full-time work of a perennial nature th as stated by the High Court of Gujarat in its judgment dated 29 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 JUDGMENT th the Forest Department on daily wage basis. By order dated 12 October, 2006, the st High Court disposed of the aforesaid SCA permitting the petitioner Union (1 respondent in present matter) to make a detailed representation to the State authorities and directing the State authorities to consider the representation within st a specified period. Pursuant to the aforesaid direction of the Court the Union (1 th respondent herein) made a representation dated 30 October, 2006 to the Secretary, Forest and Environment Department, the Secretary, Finance Department, the Page 8 9 Principal Chief Conservator of Forests and the Chief Conservator of Forests. After more than a year, the Deputy Conservator of Forests, Rajpipla West Division th th passed order dated 17 November, 2007 rejecting the representation dated 30

Miscellaneous Civil Application No.119 of 2008 in SCA No.6913 of 2006 th st challenging the rejection order dated 17 November, 2007. By an order dated 31 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 rd by his order dated 3 May, 2008 which was a verbatim reproduction of the order th dated 17 November, 2007 passed by the Deputy Conservator of Forests, West Division. JUDGMENT rd 10. It is pertinent to mention that by order dated 3 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 Page 9 10 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".

rd order of rejection dated 3 May, 2008. On hearing the parties and perusal of record, the learned Single Judge of the High Court by its order and judgment dated th 29 October, 2010 disposed of the representation recording the following facts: (i) The Secretary, Forest and Environment Department, State of rd Gujarat has himself come to the conclusion vide order dated 3 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. rd (ii) Looking to the nature of work described in the order dated 3 May, 2008, the daily wagers are engaged in the work which is perennial JUDGMENT 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 th pursuant to the Government Resolution dated 17 October, 1988. (iv) The Department of Agriculture and Cooperation has also th issued analogous resolution dated 20 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 Page 10 11 th Resolution dated 17 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

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. JUDGMENT 3 The aforesaid exercise be undertaken within a period of two months from today. Page 11 12 4. Liberty to revive the petitions in case of difficulty by filing required application/s.” th Against the judgment dated 29 October, 2010 no appeal was preferred by the State Government or by any person and, thereby, the said judgment reached finality. st 12. The 1 respondent- Employees Union, thereafter requested the Chief th Secretary, Forest & Environment Department by letter dated 20 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 & st Environment Department by order dated 21 April, 2011 rejected the request of regularization taking a stand that the job carried out by the respondents herein JUDGMENT 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 st of Gujarat order dated 21 March, 1997 passed in SCA No.3500 of 1992. There Page 12 13 respondent-Union also filed a draft Amendment in Misc. Civil Application No.17 st of 2011 with additional prayer to quash the order of rejection dated 21 April, 2011.

th judgment dated 29 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 th the respondents herein in compliance with the judgment dated 29 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 th 29 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 JUDGMENT th Division Bench by the impugned common judgment dated 28 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 Page 13 14 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

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. th (v) Resolution dated 17 October, 1988 applies only to the daily wage workers who were engaged in building maintenance JUDGMENT 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 th scheme contained in Resolution dated 17 October, 1988. 17. Per contra, according to learned counsel for the respondents, the judgment th dated 29 October, 2010 passed in SCA No.8647/2008 and connected matters is Page 14 15 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

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. nd (ii) The Resolution dated 22 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 JUDGMENT Union vs. State of Gujarat (supra) was also not placed before the High Court, therefore, the appellants cannot derive any advantage of the same. nd (iii) The Resolution dated 22 December, 1999 issued from Forest & Environment Department is contrary to the scheme contained in th Resolution dated 17 October, 1988 issued by the State of Gujarat. Page 15 16 (iv) The Full Bench of the Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest Workers Union(supra) wrongly th interpreted the scheme contained in Resolution dated 17 October,

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 th Resolution dated 17 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 JUDGMENT th the Resolution dated 17 October, 1988. th 19. From a bare reading of the Resolution dated 17 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 Page 16 17 (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 th benefits of the scheme contained in the Resolution 17 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 JUDGMENT th its Resolution dated 17 October, 1988 has not limited it to the daily wage workers working in building maintenance and repairing work. What we find is that the th Resolution dated 17 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 nd and the subsequent Resolution dated 22 December, 1999 issued from Forest and Page 17 18 Environment Department of the State, in our opinion are not sustainable, as the th intent of Resolution dated 17 October, 1988 was not properly explained therein nd and, therefore, the aforesaid decision of Full Bench and Resolution dated 22

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 th 17 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 th that the Resolution of the State Government dated 17 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. JUDGMENT 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 Page 18 19 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.

th Bench arise out of the final order and judgment dated 29 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 JUDGMENT 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 rd of Gujarat by his order dated 3 May, 2008 held that initially the entry of the daily wagers do not suffer from any illegality or Page 19 20 irregularity but is in consonance with the provisions of Minimum Wages Act. Therefore, the question of regularization by removing procedural defects does not arise.

stand taken by the State also held that the nature of work described in rd the order dated 3 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 JUDGMENT 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. Page 20 21 th 25. As per scheme contained in Resolution dated 17 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:

(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. JUDGMENT (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.” Page 21 22

th High Court dated 29 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 th contained in the Resolution dated 17 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 th Single Judge dated 29 October, 2010 as affirmed by the Division Bench by its th order dated 28 February, 2012 stands modified to the extent above. The benefit JUDGMENT 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 th consequential benefit w.e.f. 29 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. Page 22 23 ………..………………………………………..J. (T.S. THAKUR)

JUDGMENT Page 23