NEUTRAL CITATION
C/SCA/16001/2023 ORDER DATED: 18/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16001 of 2023
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PIPARWADIYA SMER SHABBIRBHAI
Versus
GUJARAT WATER SUPPLY AND SEWERAGE BOARD
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 18/09/2023
ORAL ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :-
"(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondents to treat the petitioner as direct employee of the respondent No.1 and be further pleased to direct the respondents to grant all the benefits including pay-scale meant for Assistant Manager in the establishment of respondents with all other fringe benefits;
(B) Be further pleased to declare and hold the impugned action of the respondents in treating the petitioner on outsourcing basis, as illegal, unfair in law;Page 1 of 12 Downloaded on : Fri Sep 22 20:35:52 IST 2023
NEUTRAL CITATION C/SCA/16001/2023 ORDER DATED: 18/09/2023 undefined (C) Pending admission and final disposal of this petition, Your Lordships be pleased to restrain the respondents their agent and servants from terminating and/or discounting the services of the petitioner;
(D) Any other and such further relief as the Hon'be court deems fit and proper in the interest of justice together with costs."
2. It is the case of the petitioner that the Gujarat Water Infrastructure Limited - respondent No.2 herein has sanctioned two posts of Assistant Manager, vide letter dated 25.4.2018. Thereafter, the petitioner was appointed on outsourcing basis through one Presscott Infosis vide appointment letter dated 4.5.2018. The aforesaid appointment on the post of Assistant Manager (Mechanical), was initially for a period of one year was continued till today i.e. 18.9.2023, with periodical renewal of his appointment.
3. The entire petition is based on a premise that though the petitioner's appointment in the managerial cadre of Assistant Manager is a Page 2 of 12 Downloaded on : Fri Sep 22 20:35:52 IST 2023 NEUTRAL CITATION C/SCA/16001/2023 ORDER DATED: 18/09/2023 undefined technical post, on the basis of outsourcing on contractual basis and the nature of appointment is temporary. Considering the fact that the petitioner has continued to work on a sanctioned post of Assistant Manager, for all these years under respondent No.2, through different employers. On the basis of apprehension of termination, the present petition is preferred, with the prayers which are already referred to in the foregoing paragraphs.
4. Heard learned advocate Mr. T. R. Mishra appearing for the petitioner.
4.1 Learned advocate Mr. T.R. Mishra appearing for the petitioner submitted that the petitioner was initially appointed in the year 2018, on the post of Assistant Manager through one Presscott Infocis and subsequently, through one M/s. M.J. Solanki and at present through Rajdeep Enterprises, who all continued the petitioner to work on the post of Assistant Manager (Mechanical) to work under the Page 3 of 12 Downloaded on : Fri Sep 22 20:35:52 IST 2023 NEUTRAL CITATION C/SCA/16001/2023 ORDER DATED: 18/09/2023 undefined respondent No.2 - Gujarat Water Infrastructure Ltd., on temporary basis for a specific period on contractual basis, as the contract for providing the qualified persons by way of outsourcing was given to aforesaid three organizations, at the relevant point of time. 4.2 It is the case of learned advocate Mr.Mishra appearing for the petitioner that though the petitioner's services were outsourced by the respondent No.2 - Corporation through various agencies, considering the fact that the petitioner has worked on sanctioned post of Assistant Manager (Mechanical) since his date of appointment i.e. 4.5.2018 and has worked continuously and at present, he is not considered for being regularized on the same post. Presently he is drawing a salary of Rs.23,000/- per month. As the petitioner is apprehending his termination, he has preferred this petition under Article 226 of the Constitution of India.
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NEUTRAL CITATION C/SCA/16001/2023 ORDER DATED: 18/09/2023 undefined 4.3 Learned advocate Mr. T.R. Mishra relied upon two judgments of this Court as well as the Hon'ble Supreme Court and made following submissions:-
By relying upon the order of the Hon'ble Supreme Court in case of Hussainbhai, Calicut Versus Alath Factory Thozhilali Union, Calicut and others reported in Special Leave Petition No.1853 of 1978 : Equivalent Citation is 1978 (2) L.L.J 397, dated 28.7.1978, he submitted that in paragraph No.3 of the aforesaid judgment, the Hon'ble Supreme Court while considering the question about who is an employee as per the labour law as discussed in paragraphs No.3 of the judgment, in paragraph No.5 of the judgment observed that where a worker or group of workers labours to produce goods or services and these goods or services are for business of another, the other is, in fact, the employer, as he has economic control over the workers' subsistence, skill and continued employment.
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NEUTRAL CITATION C/SCA/16001/2023 ORDER DATED: 18/09/2023 undefined 4.4 By relying upon the aforesaid judgment, learned advocate Mr. T. R. Mishra submitted that as per the aforesaid decision that though the present petitioner was employed by various agencies and was asked to work with the respondent No.2 - Corporation, as he is working under respondent No.2 - Corporation, through various agencies, it is the respondent No.2 which can be said to be the real employer of the present petitioner.
4.5 Learned advocate Mr. Mishra relied upon the judgment of this Court in case of Gujarat State Karmachari Sankalan Samiti Versus State of Gujarat dated 25.7.2018 passed in Special Civil Application No.12537 of 2011 with Civil Application No.1 of 2018, and by relying upon paragraphs No.8 and 9 of the judgment submitted that there is no rational coming forward in terminating the service of the present petitioner and therefore, as observed by the Co- ordinate Bench of this Court in case of Gujarat Page 6 of 12 Downloaded on : Fri Sep 22 20:35:52 IST 2023 NEUTRAL CITATION C/SCA/16001/2023 ORDER DATED: 18/09/2023 undefined State Karmachari Sankalan Samiti (Supra) that without there being any reasons for termination if any termination is given effect to the same would be contrary to the settled principles of law and therefore, such termination can not be permitted. By relying these two judgments, learned advocate Mr. Mishra prayed for ad- interim relief in favour of the present petitioner by issuing notice to the respondents. 4.6 Learned advocate Mr. Mishra also relied upon an order dated 26.2.2014 passed in Special Civil Application No.3103 of 2014, wherein according to learned advocate Mr. Mishra in similar set of facts, Co-ordinate Bench of this Court while issuing notice, directed the parties to maintain statue-quo qua service condition of the petitioner.
However, upon a specific query from the Court, as to whether after passing the aforesaid order, whether any final order has been passed or not, learned advocate Mr. Mishra fairly conceded that he is unaware about the fact that Page 7 of 12 Downloaded on : Fri Sep 22 20:35:52 IST 2023 NEUTRAL CITATION C/SCA/16001/2023 ORDER DATED: 18/09/2023 undefined whether any further order, after the order dated 26.2.2014 in Special Civil Application No.3103 of 2014 is passed or not.
5. Heard learned advocate Mr. T.R. Mishra appearing for the petitioner and perused the record and considered the fact of the case. I have considered the fact that the petitioner was holding a managerial post and at present, he is drawing a salary of Rs.23,000/-. I have also considered the fact that today, there is no termination notice or termination order on record and the entire petition is based on apprehension. Further, the judgments relied upon by learned advocate Mr. T. R. Mishra are in relation to labour law and as far as the judgment in case of Hussainbhai, Calicut (Supra) is concerned. Whereas other judgment of Gujarat State Karmachari Sankalan Samiti (Supra), is in respect of Class-III post. Considering the fact that the present petitioner is holding a managerial cadre post, the aforesaid post is an important post in the organization and Page 8 of 12 Downloaded on : Fri Sep 22 20:35:52 IST 2023 NEUTRAL CITATION C/SCA/16001/2023 ORDER DATED: 18/09/2023 undefined therefore, according to this Court, such post are usually filled up by way of competitive exams by issuing public advertisement and following due procedure.
In the instance case, by challenging the aforesaid apprehended termination and by praying for other reliefs as stated in foregoing paragraphs, the petitioner wants relief to continue himself on a technical post without competing with others or on the strength of his appointment order issued by a private person/entity which has posted the petitioner to work under respondent No.2 - Corporation. 5.1 Fact remains that the petitioner is holding a managerial cadre post and with an open eyes, the petitioner has accepted his appointment, purely on the contractual basis, knowing fully well that his appointment is a temporary appointment. From submissions made by learned advocate Mr. Mishra as well as on perusal of the record of the petition, it transpires that from 2018 till today i.e. Page 9 of 12 Downloaded on : Fri Sep 22 20:35:52 IST 2023 NEUTRAL CITATION C/SCA/16001/2023 ORDER DATED: 18/09/2023 undefined 18.9.2023, there were three different employers, under which the petitioner has worked and it is purely a co-incident that each of the outsourcing agency has posted the petitioner in the respondent No.2 - Corporation. 5.2 Today, in absence of any order or notice of termination either issued by respondent No.2 - Corporation or the employer of the petitioner, if any relief is granted to the petitioner, in that case, that would amount to entertaining a premature petition where cause of action has not even arisen. Though the matter has been circulated today by the petitioner, upon an apprehension, that his service would be terminated today, upon a specific query from the Court, learned advocate Mr. Mishra fairly conceded that he has no material to place before the Court substantiating his apprehension. All that is submitted is the fact that there is likelihood that the petitioner's services would be terminated today itself. When a petition is based upon apprehension as well as considering Page 10 of 12 Downloaded on : Fri Sep 22 20:35:52 IST 2023 NEUTRAL CITATION C/SCA/16001/2023 ORDER DATED: 18/09/2023 undefined the fact that there is no direct employer- employee relationship between present applicant and respondent - Corporation, whether the present petitioner can be said to be the employee of respondent No.2 - Corporation or not is a matter of evidence, considering the fact that it is specific case of the petitioner that he was employee in the respondent No.2 - Corporation through outsourcing agencies. 5.3 In view of above, as the post that the petitioner is holding is a managerial cadre post and the appointment of the petitioner was purely on temporary basis for a specific period and in these five years, the petitioner has worked under three different employers who has posted the petitioner to work under respondent No.2, that will not create any equity in favour of the petitioner. The petitioner has failed to establish his right to work under respondent No.2 prima-facie and therefore, no relief as prayed for can be granted. Also considering the fact that the present petition is premature, the Page 11 of 12 Downloaded on : Fri Sep 22 20:35:52 IST 2023 NEUTRAL CITATION C/SCA/16001/2023 ORDER DATED: 18/09/2023 undefined Court cannot entertain such petition on the basis of assumptions and presumptions.
It is an admitted position that the petitioner was working under respondent No.2, on the basis of outsourcing agency and considering the fact that the petitioner was holding a managerial post, which is required to be filed up by way of a competitive examination ordinarily and as the petitioner has failed to produced any material on record to indicate that the petitioner can be appointed on a sanctioned post, without following due procedure, merely on the basis of his initial appointment by way of outsourcing, in absence of any material those prayers also cannot be granted and therefore, in respect of remaining prayers also the petition is required to be dismissed.
In view of above, the present petition requires to be dismissed and the same is dismissed accordingly.
(NIRZAR S. DESAI,J) Pallavi Page 12 of 12 Downloaded on : Fri Sep 22 20:35:52 IST 2023