State Of Gujarat vs Vijaykumar Shabhaibhai Harijan
2021 Latest Caselaw 18336 Guj

     C/SCA/12973/2020                                   ORDER DATED: 13/12/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12973 of 2020
==========================================================
                               STATE OF GUJARAT
                                     Versus
                        VIJAYKUMAR SHABHAIBHAI HARIJAN
==========================================================
Appearance:
MR ADITYASINH JADEJA, AGP for the Petitioner(s) No. 1,2,3
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
==========================================================
 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 13/12/2021
                                 ORAL ORDER

Rule. Learned advocate Mr.Dipak Dave waives service of notice of rule for and on behalf of the respondent No.1.

1. In the present writ petition, the petitioner- State has challenged the award dated 05.06.2020 passed by the Labour Court, Godhra in Reference (T) No.149 of 2007, whereby the petitioner is directed to reinstate the respondent-workman on his original post without back wages.

2. Learned advocate Mr.Dave for the respondent- workman has submitted that the respondent-workman has not challenged the impugned award.

3. Learned Assistant Government Pleader for the petitioner-State has submitted that the impugned award of the Labour Court is required to be quashed and set aside since there were no documents produced by the respondent-workman to claim that he has worked for 240 days. It is

C/SCA/12973/2020 ORDER DATED: 13/12/2021

submitted that the respondent-workman was engaged only for seasonal work and there was no permanent work and since his service was not required, he was not called. It is submitted that the petitioner had produced the relevant muster rolls, which would reveal that the respondent- workman had not worked for 240 days and hence, the impugned award may be set aside.

4. Per contra, learned advocate Mr.Dave has submitted that it is the case of the petitioner before the Labour Court in view of the circular dated 10.02.2006 issued by the State Government, the appointments made on contractual basis were abolished. It is submitted that there is violation of provision of Sections 25G and 25H of the Industrial Disputes Act, 1947 (I.D. Act) since the work is still available and even as per the deposition of the representative of the petitioner-State before the Labour Court, it is admitted that before terminating the service of the respondent-workman, no notice was issued. It is submitted by him that the aforesaid circular dated 10.02.2006 was subject matter of challenge before this Court and by the judgement and order dated 21.12.2018 in Special Civil Application No.7462 of 2012, this Court has set aside the termination of the employees.

5. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

C/SCA/12973/2020 ORDER DATED: 13/12/2021

6. By the impugned award, the Labour Court has directed the petitioner-State to reinstate the respondent-workman without back wages. It is the case of the petitioner-State that the respondent has not worked for 240 days and hence, his termination was justified, which could not have been interfered by the Labour Court. Pursuant to the dispute with regard to the affidavit filed by the petitioner-State dated 25.10.2018, the Labour Court has recorded that in fact the respondent- workman was terminated in view of the circular of the State Government.

7. This Court has perused the written statement dated 25.10.2018 and Exh.22A, which reveals that the petitioner-State has specifically contended that since vide circular dated 10.02.2006 issued by the Finance Department, State Government, the appointments made on contractual basis was abolished, the respondent-workman was terminated from service. This Court has also perused the deposition of the representative of the petitioner-State, the same was recorded on 07.02.2019 below Exh.22. It is admitted by the representative of the petitioner-State that the respondent-workman was terminated in view of the instructions issued by the State Government, without issuing any notice or notice pay.

8. The aforesaid Circular dated 10.02.2006 and the subsequent Circular dated 02.04.2012 was

C/SCA/12973/2020 ORDER DATED: 13/12/2021

subject matter of challenge in writ petition being special Civil application No.7462 of 2012 and allied matters. The contractual employees like the present petitioner were terminated in view of the aforesaid policy, which resulted in filing of the aforesaid writ petition. The aforesaid group of petitions were allowed vide judgement and order dated 21.12.2018. It was carried in appeal by the State by filing Letters Patent Appeal No.1155 of 2019. The said appeals were dismissed vide judgement and order dated 09.05.2019. The Coordinate Bench of this Court has recorded the prayers and has observed thus:

"3 By way of these writ petitions under Articles 14,16,21,23 and 226 of the Constitution of India, by and large, the petitioners have prayed for the following reliefs:

A) Your Lordships may be pleased to issue a writ of certiorari to quash and set aside the Government Resolution dated 25.4.2012 directing the Government officers to terminate the services of Class-IV part-time employees from 31.5.2012 issued by respondent no. 3;

B) Your Lordships may be pleased to issue a writ of mandamus commanding the respondents not to terminate the services of the petitioners from 31.5.2012 pursuant to the Government Resolutions dated 25.4.2012 and its parent government dated 10.2.2006 issued by respondent no. 3;

C) Your Lordships may be pleased to pass a cease and desist order to permanently restrain the respondents from terminating the petitioners' service under Government Resolution dated 10.2.2006 and 25.4.2012 issued by the respondent no. 3;

C/SCA/12973/2020 ORDER DATED: 13/12/2021

D) Your Lordships may be pleased to issue a writ of mandamus directing the respondent no. 3 to give prospective effect to the Government Resolution dated 10.2.2006 issued by respondent no. 3 and further declare that the said Government Resolution cannot apply retrospectively to the petitioners who are appointed before 10.2.2006;

E) Your Lordships may be pleased to declare the action of the respondents to terminate the services of the petitioners in an unfair, unjust and unreasonable manner being inconsistent and incompatible with Article 14,16,21 and 23 of the Constitution;

F) In the alternative, Your Lordships may be pleased to direct the respondents to consider the cases of all the petitioners individually for regularizing their service in light of para 53 of the Uma Devi's case;

G) Pending admission and final hearing of the present petition, Your Lordships may be pleased to stay the implementation and operation of the Government Resolution dated 25.4.2012 issued by the respondent no. 3 terminating the services of the petitioners on 31.5.2012;

xxxxx

5 The Finance Department of the State Government on 10.2.2006 issued Government Resolution withdrawing the powers of all the departments to appoint and pay wages to the parttimers from the contingency fund. Further, it was decided that the work performed by the parttime employees to be given to the outsourcing agency. The object of the Government Resolution dated 10.2.2006 was to reduce the prospective huge financial burden arising out of regularizing part- time employees in service.

6 Though such resolution was passed, however, the departments of Government authorities were in need of

C/SCA/12973/2020 ORDER DATED: 13/12/2021

part-time employees and as the alternative arrangement of outsourcing was time consuming, Finance Department came with various Government Resolutions extending the time to keep the part-time employees in service. However, vide Government Resolution dated 25.4.2012 Finance Department gave final ultimatum to all the Government offices to terminate the service of class IV part-time employees on or before 31.5.2012.

7 The petitioners' services were to be terminated on or before 31.5.2012 and they were to be replaced by another set of ad hoc employees in the name of outsourcing. Apprehending such termination, the petitioners approached this Court by way of aforementioned petitions. Other similarly situated persons affected by the outsourcing policy of the Government also filed identical petitions before this Court which are being disposed of by this common judgment.

Xxxxx

32 As mentioned above, some of the petitioners are out of service after coming into force the Resolution of the State Government dated 31.5.2012. These petitioners were working along with their other counter part prior to 31.5.2012. Since number of Class IV employees of the State got affected because of the Resolution dated 31.5.2012, all the affected persons could not obtain the stay from the courts against their termination. There is no denning fact that all these petitioners are affected by the Resolutions of the State Government dated 25.4.2012 and 31.5.2012. They are to be treated at par with the employees who were lucky to get the stay against their termination from the courts. Accordingly, the relief granted by this Court in this judgment shall be extended to all the employees who are affected by the Resolutions of the State Government whether they are continued as outsource employees or are terminated in view of these resolutions.".

C/SCA/12973/2020 ORDER DATED: 13/12/2021

9. From the afore-noted observations, it is manifest the entire policy of the State Government introduced vide Government Resolution dated 10.02.2006 and 25.04.2012 and the termination of contractual employees were subject matter of challenge before this Court. This Court has held that the persons, who were unable to obtain stay cannot be discriminated since similarly situated employees were continued and they are to be treated at par with the employees, who were lucky to get the stay against their termination from the Courts. Finally, it is observed that the relief granted by this Court in the judgement shall be extended to all the employees, who are affected by the Resolutions of the State Government whether they are continued as outsource employees or are terminated in view of these resolutions. Thus, in wake of the aforesaid directions, the respondent, who is also victim of termination because of the unfair policy of the State Government cannot be discriminated, and he is also required to be extended the same relief which was extended by this Court to other similarly situated employees

10. The aforesaid judgement has become final. Thus, since the circular, due to which the respondent-workman was terminated, has been set aside and all the employees, who were terminated

C/SCA/12973/2020 ORDER DATED: 13/12/2021

in view of the said circular, are ordered to be reinstated by this Court, the award of the Labour Court does not require interference.

11. There is another aspect in the matter with regard to termination, which is held to be in violation of Sections 25G and 25H of the I.D. Act. It is not in dispute that the work was available and as on today also, the work is available and other persons were also retained.

12. In light of the foregoing facts and observations, the writ petition fails. Rule is discharged. Record and proceedings shall be returned to the Labour Court, Godhra.

Sd/-

(A. S. SUPEHIA, J) NVMEWADA