Gujarat High Court
Rajkot Municipal Corporation vs Pravinkumar Danabhai Parmar on 28 October, 2021
Bench: A.S. Supehia
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15479 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 15480 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 15481 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 15482 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAJKOT MUNICIPAL CORPORATION
Versus
PRAVINKUMAR DANABHAI PARMAR
================================================================
Appearance:
MR KV GADHIA(319) for the Petitioner(s) No. 1
HARSHIT M KARATHIA(7916) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 28/10/2021
COMMON ORAL JUDGMENT
[1] Since the common issues are involved in the
present writ petitions, the same are heard and
decided analogously by this common judgment.
[2] In the present writ petitions, the petitioners
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
have challenged the award dated 27.06.2019 passed
in Reference (LCR) No.65 of 2017, whereby and
wherein the Labour Court, Rajkot, has directed the
present petitioner to reinstate the respondent
workmen on their original posts with continuity of
service with 30% back wages.
[3] Learned advocate Mr.K.V.Gadhia has submitted
that the petitioner Rajkot Municipal Corporation
had appointed the respondent workmen as
Encroachment Removal Officer/Inspector on purely
contractual basis for a period of six months only
and thereafter, it was extended till regular
recruitment procedure undertaken by the
Corporation. It is submitted that the respondents
have no right to continue in the post in view of
the appointment order as well as affidavit of the
contract filed by the respondents. While referring
to the appointment order dated 29.11.2014, it is
submitted that the respondent workmen were
appointed as Encroachment Removal Officer/Inspector
for a period of six months only on fixed pay of
Rs.7,500/-. Learned advocate for the petitioner has
further referred various clauses of the contract
given by the petitioner on 20.12.2014. It is
further submitted that since the regular
recruitment process was undertaken by the
Corporation, the respondent workmen were terminated
by the order dated 21.04.2017 by paying one month
notice pay along with compensation. He has
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
submitted that the advertisement was issued by the
petitioner Nagarpalika for filling up the posts of
Encroachment Removal Officer/Inspector on
19.04.2017, however, the respondents did not choose
to appear in the same.
[3.1] Learned advocate Mr.Gadhia has submitted
that the Labour Court has erroneously allowed the
Reference on the ground that there is violation of
provision of Sections 25F, 25G and 25H of the
Industrial Disputes Act, 1947, (I.D. Act). It is
submitted that the order terminating the services
of respondent itself depicts that the notice pay
along with compensation was paid to the respondents
by cheque through RPAD, however, the respondents
did not accept the same. With regard to the
findings of the Labour Court for violation of
Sections 25G and 25H of the I.D. Act is concerned,
it is submitted that since the services of the
respondent workmen were purely contractual and
fresh recruitment process was undertaken by the
Nagarpalika, and when it was open for the
respondents to apply for the same, it cannot be
said that there is violation of provision of
Sections 25G and 25H of the I.D. Act. Thus, he has
submitted that since the respondent workmen were
appointed on purely contractual basis, they have no
rights to continue in the post even if their
service was extended.
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
[3.2] Learned advocate Mr.Gadhia has further
submitted that during pendency of these writ
petitions, another recruitment process was
undertaken vide advertisement dated 14.10.2020 for
filling up the same posts, however the respondents
did not choose to appear in the recruitment
process. Finally, it is submitted that the
respondents do not fall within the definition of
workmen as defined in section 2(s) of the I.D. Act
as they were appointed as Encroachment Removal
Officer/Inspector for a period of six months only
on fixed pay of Rs.7,500/-.
[4] In response to the aforesaid submissions,
learned advocate Mr.Karathaia has submitted that
the award of the Labour Court need not be
disturbed. He has submitted that the Nagarpalika in
fact passed the Resolution by creating the
permanent post of Encroachment Removal Officer
after the respondents were terminated from the
services. It is submitted that the respondents
could have been continued in service since there
was requirement of work. It is submitted that
there was no need for the respondents to appear in
the recruitment process as the posts were already
vacant and they were working and hence, the
respondents could have appointed them on the very
same posts. It is further submitted that the
petitioner Nagarpalika had continued the
respondents beyond the period of six months and,
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
since all the respondent workmen have completed
more than 240 days and worked for more than 2.5
years, it was not appropriate for the Nagarpalika
to terminate the services of the respondents.
[4.1] So far as non-appearance of the
respondents in the second recruitment process is
concerned, learned advocate Mr.Karathia has
submitted that since the respondents were waiting
for the result of the present writ petitions, they
thought it fit not to appear in the recruitment
process. Thus, it is submitted that in fact the
Nagarpalika has engaged itself in unfair labour
practice by adopting such procedure and services of
the respondents.
[5] Heard the learned advocates for the respective
parties. All the relevant documents as well as the
award are also perused by this Court.
[6] The facts which are not in dispute are that
vide order dated 29.11.2020, the respondents were
appointed on contractual basis as Encroachment
Removal Officer/ Inspector in the fixed pay of
Rs.7,500/-. The Condition No.3 of the appointment
order specifically states that the appointment
would be for six months only and after completion
of six months, they would be relieved
automatically. The Condition No.8 specifically
mentions that the Nagarpalika has right to
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
terminate the service of the respondents by giving
one month notice/notice pay along with
compensation. Pursuant to the aforesaid appointment
orders, all the respondents filed an affidavit
dated 20.12.2014 and accepted all the conditions,
more particularly the Condition No.1 of the
contract which specifically mentions that
Nagarpalika can terminate the contract by giving
one month notice or notice pay along with
compensation. Thus, the respondents had with all
their consciousness accepted the terms and
conditions of the appointment order. However, their
services were continued precisely for 2.5 years.
[7] At this stage, it would be apposite to refer
to the judgement of the Constitutional Bench of the
Apex Court in the case of Satish Chandra Anand vs.
Union of India reported in AIR 1953 SC 250, wherein
the Apex Court has observed thus:
"Article 16 (1) is equally inapplicable. The whole
matter rests in contract. When the petitioner's
first contract (the five year one) came to an end,
he was not a permanent Government servant and
Government was not bound either to re-employ him or
to continue him in service. On the other hand, it
was open to Government to make him the offer it did
of a continuation of his employment on a temporary
and contractual basis. Though the employment was
continued, it was in point of fact, and in the eyes
of the law, under a new and fresh contract which was
quite separate and distinct from the old even though
many of its terms were the same. Art. 16 (1) deals
with equality of opportunity in all matters relating
to employment or appointment to any office under the
State. The petitioner has not been denied any
opportunity of employment or of appointment. He has
been treated just like any other person to whom an
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
offer of temporary employment under these conditions
was made. His grievance, when analysed, is not one
of personal differentiation but is against an offer
of temporary employment on special terms as opposed
to permanent employment. But of course the State can
enter into contracts of temporary employment and
impose special terms in each case, provided they are
not inconsistent with the Constitution, and those
who chose to accept those terms and enter into the
contract are bound by them, even as the State is
bound. When the employment is permanent there are
certain statutory guarantees but in the absence of
any such limitations Government is, subject to the
qualification mentioned above, as free to make
special contracts of service with temporary
employees."
In the case of Yogesh Mahajan vs. R.C.Deka
reported in (2018) 3 SCC 218 the Apex Court has
observed thus:
"It is settle law that no contract employees has a
right to have his or her contract renewed from time to
time. That being so, we are in agreement with the
Central Administrative Tribunal and the High Court that
the petitioner was unable to show any statutory or
other right to have the contract extended beyond 30th
June, 2010, at best, the petitioner could claim that
the concerned authorities should consider extending his
contract. We find that in fact due consideration was
give to this and in spite of a favourable
recommendation having been made, the All India
Institute of Medical Sciences did not find it
appropriate or necessary to continue with his services
on a contractual basis. We do not find any
arbitrariness in the view taken by the concerned
authorities and therefore reject this contention of the
petitioner."
The Apex court has held that the employee who
chooses to accept the terms of contract and enter
into contract is bound by such terms and they do
not have any right to renew the contract from time
to time. Thus, the respondent was bound by the
terms of their contract, and their termination
cannot be said to be invalid since they are
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
terminated as per the conditions attached to their
appointment order. Merely, because their contract
was renewed from time to time, the same will not
create any right in their favour unless such right
is recognized by any rule or regulation of the
petitioner Nagarpalika.
[8] I may with profit also refer to the decision
of the Apex Court in case of Punjab Electricity
Board vs. Sudesh Kumar Puri, 1992 (4) S.C.C. 33,
while examining the provision of section 2(oo)(bb)
of the I.D. Act, which defines retrenchment has
held thus:
"8 Section 2(oo)(bb) reads as follows:
"2(oo) retrenchment means the termination by the employer
of the service of a workman for any reason whatsoever,
otherwise than as a punishment inflicted by way of
disciplinary action, but does not include -
(a)......
(b)......
(bb) termination of the service of the workman as a
result of the non-renewal of the contract of employment
between the employer and the workman concerned on its
expiry or of such contract being terminated under a
stipulation in that behalf contained therein; or"
9 The material on record clearly established that the
engagement of the respondent was for specific period and
conditional. It appears that on the appointment of
regular meter readers, the engagement has been dispensed
with. The contracts clearly governed the terms of
engagement."
[9] Sub-section (bb) of section 2 of the I.D. Act,
excludes termination of an employee from the
definition of "retrenchment". The termination of a
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
workman as result of non-renewal of contract or due
to any stipulation contained in the contract will
not amount to retrenchment. The Apex Court has
upheld the termination of a contractual workman on
the availability of a regular appointee since the
contract clearly governed the terms of engagement.
In the instant case, the services of the
respondents were dispensed with as per the
condition stipulated in the contract. Such action
was necessitated since the petitioner-Nagarpalika
had decided to fill up the concerned post by
regular recruitment process.
[10] It is a specific case of the Nagarpalika and
the same is not denied by the respondents that the
advertisement dated 19.04.2017 was issued by the
Nagarpalika for filling up the aforesaid post by
regular recruitment process and in view of such
advertisement, which was contemplated, the service
of the respondents were terminated by giving one
month notice / notice pay along with compensation.
It is also not denied and also established on
record that such notice pay along with compensation
was sent through RPAD, however, the respondents did
not accept the same. Thus, in wake of the
aforesaid undisputed facts, it cannot be said that
there is violation of Section 25F of the I.D. Act
as the termination order 21.04.2017 specifically
refers to payment of notice pay along with
compensation to the respondents as per the
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
condition mentioned in the appointment order. Thus,
the Labour Court has misdirected itself in
declaring the retrenchment of the respondent as
illegal on the premise of the violation of
provisions of section 25F of the I.D.Act.
[11] The Labour Court in the impugned award has
also held the termination of the Respondent workmen
in violation of provisions of section 25G and H of
the I.D.Act. The same are incorporated as below:
"SECTION 25G : Procedure for retrenchment
Where any workman in an industrial establishment, who is a
citizen of India, is to be retrenched and he belongs to a
particular category of workmen in that establishment, in
the absence of any agreement between the employer and the
workman in this behalf, the employer shall ordinarily re-
trench the workman who was the last person to be employed
in that category, unless for reasons to be recorded the
employer retrenches any other workman.
SECTION 25H : Re-employment of retrenched workmen
Where any workmen are retrenched, and the employer pro-
poses to take into his employment any persons, he shall,
in such manner as may be prescribed, give an opportunity
[to the retrenched workmen who are citizens of India to
offer themselves for re-employment, and such retrenched
workmen] who offer themselves for re-employment shall have
preference over other persons."
[12] In order to attract the rigours of section
25G of the I.D. Act, it is necessary to prove the
quintessential condition that the employer had
retained the junior workers in the employment.
There is no evidence established on record that any
Encroachment Removal Officer, who is junior to the
respondent was retained while terminating him from
service. The section also refers to the expression
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
'in absence of agreement' between the employer and
employee, and it stipulates that the employer shall
ordinarily retrench the workman who was the last
person to be employed. In the present case, the
respondent-workmen had entered into a written
contract/ agreement, agreeing or accepting their
termination at any time as per the discretion of
the petitioner-Nagarpalika. When a workman accepts
such terms of contract and agrees to the condition
of his termination at 'any time' at the discretion
of the employer subject to the fulfillment of
provisions of section 25F of the I.D. Act; the
termination cannot be said to be in violation of
provision of section 25G of the I.D. Act even if
while affecting termination, the juniors are
retained. The Labour Court has failed to appreciate
the true nature and import of the section 25G of
the I.D Act, hence, the findings of the Labour
Court with regard to the violation of the provision
of section 25G of the I.D. Act is illegal.
[13] With regard to the finding by the Labour Court
in relation to the violation of the provision of
section 25H of the I.D. Act, I am of the view that
the same is also illegal and suffers from non-
application of mind. A plain and simple reading of
section 25H of the I.D. Act will suggest that the
same stipulates of offering an opportunity to the
retrenched workmen for re-employment and giving
preference to them if they prefer to apply. In the
C/SCA/15479/2019 JUDGMENT DATED: 28/10/2021
instant case, the petitioner-Nagarpalika has
undertaken recruitment process by issuing two
advertisements on 19.04.2017 and 14.10.2020,
however, the respondent did not participate in the
recruitment process voluntarily. The respondent
also refused to participate in the interview to be
held on 22.10.2020 vide letter dated 21.10.2020,
though they were called by the petitioner. It is
not their case, that the Nagarpalika in any manner
did allow them to participate. Thus, the
requirement of section 25H of the I.D. Act can be
said to have been fulfilled by the Nagarpalika once
an opportunity was extended to the respondents to
participate in the recruitment process. The
respondents could have participated in the
recruitment process when such opportunity was
available to them, but they did not choose to avail
such opportunity. Hence, the termination of the
respondents cannot be said to be in violation of
the section 25H of the I.D. Act as well as in view
of the aforesaid facts and proposition of law, the
Labour Court has misdirected itself in passing the
impugned award.
[14] In view of the foregoing reasons and analysis,
the writ petitions are allowed. The impugned awards
are quashed and set aside. Rule is made absolute.
Registry shall return the R & P.
(A. S. SUPEHIA, J)
NABILA
