Chetnaben Harishchandra Solanki vs Executive Engineer, Panam ...
2022 Latest Caselaw 434 Guj

          C/SCA/5899/2021                                ORDER DATED: 13/01/2022



                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/SPECIAL CIVIL APPLICATION NO. 5899 of 2021
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                 CHETNABEN HARISHCHANDRA SOLANKI
                               Versus
        EXECUTIVE ENGINEER, PANAM IRRIGATION DIVISION, GODHRA
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     Appearance:
     MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
     NOTICE SERVED(4) for the Respondent(s) No. 1
     MR HARDIK MEHTA, AGP for the Respondent
     ================================================================
      CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 13/01/2022
                        ORAL ORDER

Rule. Learned AGP Mr.Hardik Mehta waives service of notice of rule for and on behalf of the respondent No.1.

1. In the present writ petition, the petitioner has challenged the award dated 19.01.2021 passed by the Labour Court, Godhra in Reference (T) No.54 of 2014. By the impugned award, the Labour court held that termination of the petitioner as illegal and in violation of section 25F of the Industrial Disputes Act, 1947 and awarded compensation of Rs.35,000/- along with cost of Rs.5,000/-.

2. Learned AGP Mr. Hardik Mehta for the respondent has submitted that the respondent-State has not challenged the impugned award.

3. Learned advocate Mr.Dave has submitted that it is the case of the respondent before the Labour Court that in view of the circular dated 10.02.2006 issued by the State Government, the appointments made on part time 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 Respondent-State before the Labour Court, it

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is admitted that before terminating the service of the petitioner- workman, no notice was issued and no compensation was paid. It is submitted by him that the aforesaid circular dated 10.02.2006 was subject matter of challenge before this Court and by the judgment and order dated 21.12.2018 in Special Civil Application No.7462 of 2012, this Court has set aside the termination of the employees.

4. Learned Assistant Government Pleader for the Respondent-State has submitted that the impugned award of the Labour Court is just and proper and may not be interfered with. Learned AGP would contend that the respondent is not entitled for reinstatement since he is not the permanent employee. Learned AGP would further contend that the petitioner-workman was engaged only for part time work and there was no permanent work and in view of circular of Finance Department dated 10.02.2006 since appointments of part time employees were stopped, the petitioner was terminated from service. It is submitted that the Labour Court has rightly granted compensation of Rs.35,000/-.

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

6. By the impugned award, the Labour Court has directed the respondent-

State to pay compensation of Rs.35,000/- along with cost of Rs.5,000/- to the petitioner-workman. It is the case of the respondent-State that the respondent has terminated the petitioner in view of circular of Finance Department dated 10.02.2006. The office of the State filed an affidavit dated 23.09.2014, Exh.20 and in his examination in chief dated 23.09.2015 it is specifically stated that the petitioner has been terminated in view of resolution of Finance Department dated 10.02.2006. The Labour Court, after appreciating the evidence, has held that the

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termination of the petitioner was done in view of the resolution dated 10.02.2006.

7. This Court has perused the written statement dated 23.09.2014 and Exh.20 i.e examination-in-chief of the witness of respondent-state, which reveals that the respondent-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 were abolished, the petitioner-workman was terminated from service. This Court has also perused the deposition of the representative of the respondent-State, the same was recorded on 23.09.2015 below Exh.24. It is admitted by the representative of the respondent-State that the petitioner -workman was terminated in view of the instructions issued by the State Government, without issuing any notice or notice pay. It is also stated that the work is still available with the respondent.

8. The aforesaid Circular dated 10.02.2006 and the subsequent Circular dated 02.04.2012 were subject matter of challenge in the 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 petitions. 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

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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;

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 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

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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.".

9. From the aforenoted observations, it is manifest that the entire policy of the State Government introduced vide Government Resolutions 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 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. Thus, in wake of the aforesaid directions, the petitioner, 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.

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10. The aforesaid judgment 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 in view of the said circular, are ordered to be reinstated by this Court, the award of the Labour Court requires to be modified.

11. There is another aspect in the matter with regard to termination, which is held to be in violation of Sections 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. Thus, the reinstatement cannot be denied to the petitioner. When similarly situated part time employees have been granted reinstatement in the aforementioned judgments by this court, it will be unjust not to grant reinstatement to the petitioner.

12. At this stage Mr. Dave has fairly suggested that if reinstatement with continuity of service is granted to the petitioner-workman, he will forgo the back wages.

13. In the above circumstances, this court is of the considered opinion that the payment of compensation, in lieu of reinstatement, would be detrimental to the interest of the petitioner.

14. Under the circumstances, the impugned award passed by the Labour court, Godhra is misconceived to the extent of granting compensation. The respondent is directed to reinstate the workman in service with continuity of service. However, it is clarified that he will not be entitled to any back wages. The order, reinstating the petitioner workman, shall be passed within a period of three months from the date of receipt of this order.

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15. With the aforesaid directions, the present writ petition is partly allowed.

The impugned award dated 19.01.2021 passed by the Labour Court, Godhra in Reference (T) No. 54 of 2014 is modified to the aforesaid extent. Rule is made absolute accordingly.

(A. S. SUPEHIA, J) ABHISHEK/19