BHARATKUMAR SHANTILAL BARBHAIYA Vs. CHIEF ADMINISTRATIVE OFFICER

JUDGEMENT

(1.) The present petition is filed by the petitioner, claiming to have joined the service of the respondent Department on 1-1-1989 in the circle office under the Superintending Engineer, as Karkoon. The time scale of pay payable to the regular Karkoon is Rs.950-1500. The case of the petitioner is that he was not paid the said pay-scale, but he was paid only Rs.20.50 as daily wage. It is also contended that the petitioner was not granted the benefits of weekly off and, therefore, the petitioner was getting salary for 24-26 days in a month. That he was also given break in service to avoid his right of continuous service in October, 1989. It is also the case of the petitioner that he was re-designated as "Xerox Operator" in fixed salary, though during that period also the petitioner was performing all the duties of Karkoon, over and above the duties of "Xerox Operator". Again from July, 1990, the petitioner was employed as Karkoon and from fixed salary, he was paid the salary on daily wage basis. The case of the petitioner is that as the other employees approached this Court, the petitioner was terminated without following any procedure of law from March, 1991. With these averments, the prayer of the petitioner is:

(2.) The affidavit-in-reply is filed by B.J.Vasavada, Executive Engineer, respondent No.2, who has said that the facts set out by the petitioner are not true and in fact, the petitioner was engaged in the month of January, 1989 as Office Boy for miscellaneous work on purely adhoc basis on daily rate wage basis due to exigency of work in the office and he worked as Office Boy upto September, 1989. It is also said in the affidavit in reply that since there was no regular work in the office of the Executive Engineer from October, 1989, the petitioner was engaged on part-time rate basis and he was being paid his wages on hour's basis and he continued as part-time worker upto February, 1991. The affidavit-in-reply proceeds further to state that from March, 1991 to December, 1991, the petitioner was not working for the respondent Board and that from January, 1992, the petitioner was again engaged as Office Boy for miscellaneous work in the office of the Public Health Works Division at Jamnagar on daily rate basis on purely adhoc basis. The details were set out about the working for the petitioner during the months of January and February, 1992, to which the petitioner worked as Office Boy for 41 days only. Thereafter, again from March, 1992 to June, 1992 i.e. for a period of four months, the petitioner was not in the employment of the respondent Board and it was only in the month of July, 1992 that the petitioner was given work of watchman and he worked as watchman till September, 1992. Thereafter, from September, 1992, he continued in service as watchman in view of the interim order passed by this Court. Looking to the averments in the petition and looking to the averments made in the affidavit-in-reply, there is no doubt that the matter involves highly disputed questions of facts and this Court cannot go into these questions under Article 226 of the Constitution of India.

(3.) At this stage, Mr.Pathak, learned Advocate, places reliance upon the judgement of the Division Bench of this Court passed in Special Civil Application Nos.3547, 5100 of 1991, 6414 and 6415 of 1992, decided on 13th/14th July, 1993 (Coram: S.D.Shah and R.D.Vyas, J.J.). Mr.Pathak pointed out that against this judgement, the respondent Board had approached the Hon'ble Supreme Court by filing Special Leave to Appeal (Civil) No.4650/1995, which was dismissed on 21st September, 1995. Mr.Pathak submitted that the Division Bench, after taking into consideration various aspects, has decided the question as to whether the daily rated employees being employed by the respondent Board can be denied the minimum time scale of pay, which is being paid to the regular employees, discharging similar work and performing similar duties, more particularly when on completion of five years' service as daily rated employees, such daily rated workers are conferred upon the benefit of minimum time-scale of pay (Emphasis supplied). The Division Bench has observed that the Hon'ble Supreme Court of India, in the case of State of Hariyana Vs. Piara Singh and Ores., has laid down at Para 28 of the judgement, which is reproduced below: