Gujarat High Court
Divisional Controller, S T Corporation vs Sukhdevsinh Temubha Rana on 10 January, 2025
NEUTRAL CITATION
C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16982 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 16982 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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DIVISIONAL CONTROLLER, S T CORPORATION
Versus
SUKHDEVSINH TEMUBHA RANA
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Appearance:
MS SEJAL K MANDAVIA(436) for the Petitioner(s) No. 1
ULLASH N GOHIL(8357) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 10/01/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Gohil waives service of Rule on behalf of respondent.
2. This petition is filed under article 226 and 227 of the Constitution of India challenging the award passed by the learned presiding officer Labour Court, Bhavnagar in reference (LCB) No.31/2012 dated 29.01.2022 whereby, directions were issued to the petitioner, to reinstate the respondent with continuity of service along with 10% Page 1 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined back wages. The amount of Rs.2,000/- was awarded towards the cost of litigation.
3. Facts needed to be discussed for disposal of the case is that the petitioner-corporation has issued an advertisement in the newspaper for filling up the post of driver in the month of June, 1999. Pursuant to the advertisement the respondent has applied and was selected and was placed in the select list/waiting list at serial no.273. It is alleged by the present petitioner that while presenting himself on duty the leaving certificate was produced wherein, the date of birth is mentioned as 01.03.1969. Appointment was given on ad-hoc basis vide order dated 19.04.2001 at Palitana depot and accordingly respondent has resumed the duty on the post of driver vide base no.1772 from 18-19/4/2001. On 11.08.2004 the name of the respondent came to be deleted from the waiting list/selection list on the ground that the respondent has committed fraud with the petitioner corporation by producing forged certificate wherein, the year of the birth has been show as 1963. The action of the petitioner corporation deleting the name of the respondent from waiting list/selection list Page 2 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined was challenged by raising the dispute before the learned labour court no.2 Bhavnagar and same was registered as reference (LCB) No.31 of 2012. The terms of the reference appears to be with regard to the reinstatement in the service to its original post and learned labour court after assigning detailed reasons has awarded the reference in favour of respondent by holding the action of the petitioner-corporation illegal and directing to reinstate the respondent with 10% back wages which is subject matter of consideration before this court.
4. Heard learned advocate Ms.Sejal Mandaviya for the petitioner and learned advocate Mr.Ullash Gohil for the respondent.
5. Learned advocate Ms.Mandaviya submits that the respondent was appointed as badli kamdar and he served for a period of five months only. Learned advocate Ms.Mandaviya submits that as he was not a temporary employee or a regular employee, no inquiry is required with regard to the alteration of the birth certificate which was alleged. Learned advocate Ms.Mandaviya submits that despite the same, number of Page 3 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined correspondences were addressed to the District Primary Education Officer, Ahmedabad, however, it was informed by the District Primary Education Officer on the basis of the statement of the trustee that the school has been closed since 1984-1985. Learned advocate Ms.Mandaviya submits that the order passed by the petitioner-corporation dated 18.11.2004 was challenged in the year 2012 after a delay of eight years and therefore, also reference was required to be dismissed on the ground of time barred dispute. Learned advocate Ms.Mandaviya submits that in the license which was issued by the RTO, the birth year is mentioned as 1963 and thereafter, certificate which was issued by the Chachana Prathamik Shala, Taluka Chuda District Surendranagar, his birth year is mentioned as 1963. Learned advocate Ms.Mandaviya submits that considering these two certificates also, the birth year which is mentioned in the leaving certificate appears to be incorrect and only to take the advantage of the advertisement which was issued, the alteration was made in the school leaving certificate. Learned advocate Ms.Mandaviya submits that as the respondent has Page 4 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined worked as a badli kamdar and the badli kamdar cannot be said to be a permanent worker, therefore, also the award of reinstatement with 10% back wages which is passed by the learned labour court requires to be set aside and petition is required to be allowed. 5.1. Learned advocate Ms.Mandaviya has relied on the decision rendered by this Court in the case of Gujarat State Road Corporation versus Gunvantbhai Ratilal Patel rendered in SCA No.1412 of 2001 and submitted that at the best, award can be passed to continue the name of the respondent in the waiting list of badli workers. It is submitted that badli workers work as stopgap arrangement in absence of regular employees, therefore, award passed granting 10% back wages alongwith relief of reinstatement deserves to be set aside. Learned advocate Ms.Mandaviya submits that without considering the status of the respondent, the award is passed and therefore, the petition be allowed and impugned order be set aside.
6. As against the same learned advocate Mr.Gohil appearing for the respondent submits that the service of the respondent was not terminated simply, the name of Page 5 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined the respondent was removed from the waiting list on alleged ground of alteration in the birth certificate. If any misconduct is alleged by the petitioner-corporation then petitioner ought to have initiated an elaborate inquiry. In absence of any evidence adduced in support of the charge and in absence of opportunity of hearing the order passed by the petitioner-corporation deleting the name from the waiting list/selection list would amount to violation of principle of natural justice. Learned advocate Mr.Gohil submits that misconduct which was alleged without proving the same would have a stigma effect for his lifetime and the same would affect in getting the services with the other establishments. In that scenario, learned labour court has rightly awarded the reference in favour of the present respondent. Learned advocate Mr.Gohil submits that reliance which was placed on the license issued by the RTO wherein, the birth year of 1963 is mentioned is subsequently corrected, however, without giving any opportunity to lead and adduce evidence in the defence of the respondent, straightaway the order was passed deleting the name of the present respondent from the waiting Page 6 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined list/selection list.
6.1. Learned advocate Mr.Gohil submits that the last school leaving certificate of the present respondent which was issued by the Sadhana High School shows the date of birth as 01.03.1969. Learned advocate Mr.Gohil submits that infact in the certificate issued by the Chachana Primary School mentioning the date of birth as 01.03.1966 is incorrect and same was not proved by the petitioner. Learned advocate Mr.Gohil submits that the fresh license which was issued after the correction of the birth certificate was produced before the learned labour court alongwith the Aadhar Card and the PAN Card wherein, the date of birth is mentioned as 01.03.1969. Learned advocate Mr.Gohil submits that the leaving certificate on which the reliance was placed stating that the birth year is interpolated was sent for verification. However, as the school was already closed, no opinion was given with regard to the alteration of the birth year. Learned advocate Mr.Gohil submits that multiple evidence was produced before the learned labour court and therefore, learned labour court has rightly held that without disciplinary proceedings the Page 7 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined conclusion arrived by the petitioner-corporation that the petitioner has altered the birth year in the certificate is bad in law.
6.2. Learned advocate Mr.Gohil has relied on the decision rendered by this court in the case of Gujarat State Road Transport Corporation versus Chandulal Rasadiya reported in 1993 (1) GLR 442 and submitted that even the badli worker is also entitled for the departmental inquiry in the event of any misconduct alleged and in absence of the same the order passed by the petitioner-corporation is illegal. Learned advocate Mr.Gohil submits that learned labour court after considering the evidence in detail has awarded the reference in favour of the respondent and therefore, no interference is required and petition deserves to be dismissed. Learned advocate Mr.Gohil submits that in the event if the service of the respondent was not terminated, then he could have got the benefit of the settlement which was referred by the Division Bench in the order passed in Civil Application No.89 of 1990 where the badli workers who completed one year of service were appointed as daily rated workers and on Page 8 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined completion of 240 days of the daily rated workers, corporation has appointed them on the time scale if there is a vacancy after taking into consideration his service and conduct.
6.3. Learned advocate Mr.Gohil submits that due to the illegal termination or deletion of the name of the present respondent from the waiting list/selection list he was deprived from the above benefits and therefore, also the award passed by the learned labour court is just and proper and no interference is required.
7. Having considered the arguments advanced by the learned advocate for the respective parties and on perusing the records it emerges that pursuant to an advertisement issued by the petitioner-corporation in the month of June, 1999, petitioner was appointed as a badli worker on 17.04.2001 and was ordered to resume the duty at Palitana Center on the post of Driver. At the time of resuming the duty, respondent has submitted the school leaving certificate, driving license, medical fitness certificate etc. and on verification of the above documents, the appointment of the respondent was made. It was alleged by the petitioner-corporation that Page 9 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined the leaving certificate which was produced, the birth year is altered and instead of 1963, the birth year is stated as 1969. The said certificate was sent for the verification with the concerned school, however, it was informed by the Trustee that the school had already been closed in the year 1984-1985. This was not the only document with the petitioner-corporation, the petitioner- corporation thereafter, has examined the driving license, however, in the driving license which was old, there too the birth year is wrongly mentioned i.e. of 1963. Another document which was produced by the respondent below Exh.20 i.e. of school leaving certificate issued by the Sadhana High School, Zanzarka wherein, the birth date is mentioned as 01.03.1969. So far as the incorrect date of birth in the license, the petitioner stated that as it was old license, there was some mistake in mentioning the date of birth, however, the same was rectified and fresh license was also produced which was exhibited at Exh.37. However, petitioner-corporation came to the conclusion that there is an alteration in the leaving certificate and therefore, by alleging the fraud the name of the respondent was deleted from the waiting Page 10 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined list/selection list. It is undisputed fact that before passing of the order, deleting the name of the present respondent, no inquiry was initiated, neither the explanation was called from the respondent regarding the charge of forgery. By deleting the name from the waiting list/selection list chances for the appointment in the terms of selection has been forfeited. In that event, the opportunity of explanation is required to be given as it would affect his right of future employment. It is true that the service of the badli worker could be put to an end to like a service of the probationer, however, when the service were to be put an end to by alleging any misconduct, the opportunity to explain the misconduct as alleged is required to be given. Corporation may not hold a full fledged inquiry, however, principle of natural justice is certainly required to be followed by giving him a chance to explain the misconduct as alleged. If one would peruse the judgment which was relied by the learned advocate for the petitioner rendered in SCA No.1412 of 2001, then it comes on the record that, that was not the case if any misconduct and any stigmatized termination, therefore, in that event this Court has held Page 11 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined that no reinstatement award can be passed for the employees who are appointed as badli worker. The contention with regard to the delay caused in raising the dispute before the learned court is concerned, it emerges from the record that the suit came to be filed before the learned civil court and on withdrawing the same, immediately the dispute was raised before the learned reference court, therefore the said contention is unfounded.
8. As per the submission made by the learned advocates, the respondent has worked from 19.01.2001 to 31.10.2001 in the place of the employee who was not available. The reliance which was placed by the learned advocate for the respondent on the judgment rendered in Civil Application No.89 of 1990 wherein, it is held that the principle of natural justice is required to be followed even in removing the name from the waiting list on the alleged ground of misconduct. This Court is of the view that as due to said alleged misconduct, the respondent would loose the chance of getting the service in future with the corporation by not holding any inquiry and passing this order of deleting the name of the Page 12 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025 NEUTRAL CITATION C/SCA/16982/2022 JUDGMENT DATED: 10/01/2025 undefined respondent from the waiting list, petitioner corporation committed an error.
9. In view of the same, this Court did not find any infirmity in the impugned award passed by the learned labour court by directing to reinstate to his original post. However, by directing the same learned labour court has awarded 10% back wages. This Court is of the view that as the service of the respondent was taken as a badli worker and in absence of the regular employee, no back wages can be awarded to the respondent, hence the impugned award is modified to the above extent and the petitioner is directed to reinstate the respondent to his original post without any back wages.
10. Considering the above, this petition is partly allowed to the above extent.
11. Rule is made absolute.
ORDER IN CIVIL APPLICATION NO. 1 of 2023 In view of the order passed in Special Civil Application No. 16982 of 2022, the application is also disposed of.
(M. K. THAKKER,J) NIVYA A. NAIR Page 13 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jan 20 2025 Downloaded on : Sat Feb 01 00:04:41 IST 2025