Gujarat High Court
Vasava Laxmiben Nareshbhai vs State Of Gujarat on 28 January, 2022
Bench: Biren Vaishnav
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15938 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 15938 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 15939 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 15939 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 15940 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 15940 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 15941 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 15942 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 15942 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 15941 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV Sd/-
================================================================
1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
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 ?
================================================================
VASAVA LAXMIBEN NARESHBHAI
Versus
STATE OF GUJARAT & 2 other(s)
================================================================
Appearance:
MR JOY MATHEW(448) for the Petitioner(s) No. 1
Page 1 of 21
Downloaded on : Sun Apr 24 11:04:40 IST 2022
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
MR MEET THAKKAR, AGP for the Respondent(s) No. 1,2
RULE NOT RECD BACK for the Respondent(s) No. 3
================================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 28/01/2022
COMMON ORAL JUDGMENT
1. In all these petitions, under Article 226 of the
Constitution of India, the petitioners have prayed for a
direction to the respondents to pay all benefits as per the
GR dated 17.10.1988 and 15.9.2014 and the judgment
passed the Hon'ble Supreme Court in the case of State
of Gujarat v. PWD Employees Union reported in
2013(8) Scale 579.
2. Heard Mr. Joy Mathew learned advocate for the
petitioners and Ms. Vidhi Bhatt, learned advocate for one
of the petitioners in these petitions, as well as Mr. Meet
Thakkar, learned Assistant Government Pleader for the
respondent - State. Perused the record.
3. The facts are taken from Special Civil Application
No.15938 of 2016:
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
3.1. It is the case of the petitioners that she belongs
to a Scheduled Tribe Community. On 1.8.2010, the
petitioner was engaged as Mali Guard on daily wage basis
by the respondent - Forest Department at Rajpipla. She
continued to work for over 240 days in a year with no fix
timings. Details of number of days on which she is
continuously engaged is set out in the petition. At the
relevant time, a statement was made in the petition that
she is not in possession of muster roll. Benefits of the GR
dated 17.10.1988 are claimed.
3.2. Reliance is placed on several decisions of this
Court, however, pursuant to a direction given by this
Court in Special Civil Application No.2346 of 2016 dated
15.2.2016, the respondent No.2 has taken a decision that
the petitioner is not entitled to the benefits of the GR
dated 15.9.2014 as she has not completed 240 days
service in a continuous period of five years.
4. Affidavit-in-reply filed by the Assistant Conservator
of Forest indicates that since the petitioner was
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
appointed as daily wager on 1.8.2010, she had not
completed five years of service with 240 days in a year
and as per the Service Record from the year 2010 to 2016
annexed to the reply, she is not entitled to the benefits of
GR dated 17.10.1988.
5. During the pendency of the petition, it appears that
the services of the petitioners were orally terminated on
1.11.2017. Civil Application, hence filed assailing such
termination holding that the same is only with a view to
deprive her the benefit of service. Prayers therefore in
the Civil Application were to set aside the oral
termination. For the said purpose, reliance is placed on a
decision of this Court in SCA No.17721 of 2015 dated
15.3.2016 which was confirmed in Appeal by the Division
Bench in Letters Patent Appeal No.899 of 2016 dated
23.11.2016.
6. Mr. Mathew and Ms. Bhatt, learned advocates for
the petitioners would contend that admittedly, after the
reply was filed, rejoinder was filed clearly mentioning
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
that the petitioners had started working from 1.4.2009.
Service details by producing copies of the muster roll are
produced and relying on the decision in the case of Moti
Ceramic Industries v. Jivuben Rupabhai reported in
2000(2) GLR 1558, it is contended that benefit of
Section 25(B) of the Industrial Disputed Act ought to be
granted.
7. Having perused the muster rolls annexed to the
rejoinder by the petitioners, it becomes evident that the
petitioners had worked for 240 days in each year of
service from the year 2010. Admittedly, therefore, they
had completed 240 days even in accordance with the
stipulated requirement of the Government Resolution
dated 15.9.2014. When the petitions were filed, the
petitioners were in service. This Court on 8.8.2017
admitted the matters. The first order of 21.9.2016 was for
issuing notice. It appears that pending the petitions, the
petitioners were orally terminated w.e.f. 1.11.2017.
Therefore, obviously, when the petitions were pending for
consideration, for granting the benefits of Government
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
Resolutions dated 17.10.1988 and 15.9.2014, the services
came to be terminated orally with effect from 1.11.2017.
8. This Court in Special Civil Application No.17721 of
2015 in an order order dated 15.3.2016 (Coram: J.B.
Pardiwala-J.) held as under:
"9 Having heard the learned counsel appearing for
the parties and having considered the materials on
record, the only question that falls for my
consideration is whether the action of the
respondents in orally terminating the services of the
petitioners is legal.
10 I may first deal with the preliminary objection as
regards the maintainability of this petition on
the ground of an alternative efficacious remedy.
11 It is true that power of the High Court to issue
prerogative writs under Article 226 of the
Constitution of India is plenary in nature and
cannot be curtailed by other provision of the
Constitution of India or a Statute but the High
Courts have imposed upon themselves certain
restrictions on the exercise of such power. One of
such restrictions is that if an effective and
efficacious remedy is available, the High Court
would not normally exercise its jurisdiction
under Article 226 of the Constitution of India.
But again, this rule of exclusion of writ jurisdiction
on account of availability of an alternative remedy
does not operate as an absolute bar to entertain a
writ petition but is a rule of discretion to be
exercised depending on the facts of each case. On
this aspect, the following observations by the
Constitution Bench of the Supreme Court in A.V.
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
Venkateswaran, Collector of Customs v.
Ramchand Sobhraj Wadhwani and another,
reported in AIR 1961 SC 1506, which still holds
the field, are quite apposite :
"The passages in the judgment of this Court we have
extracted would indicate (1) that the two
exceptions which the learned Solicitor General
formulated to the normal rule as to the effect of the
existence of an adequate alternative remedy were by
no means exhaustive, and (2) that even beyond them
a discretion vested in the High Court to have
entertained the petition and granted the
petitioner relief notwithstanding the existence of an
alternative remedy. We need only add that the broad
lines of the general principles on which the Court
should act having been clearly laid down, their
application to the facts of each particular case must
necessarily be dependent on a variety of individual
facts which must govern the proper exercise
of the discretion of the Court, and that in a matter
which is thus preeminently one of the discretion, it
is not possible or even if it were, it would not be
desirable to lay down inflexible rules which should
be applied with rigidity in every case which comes
up before the Court."
12 In Harbanslal Sahnia and another v/s. Indian
Oil Corporation Limited and others, reported in
(2003)2 SCC 107, enumerating the contingencies
in which the High Court could exercise its writ
jurisdiction in spite of availability of the alternative
remedy, the Supreme Court observed thus :
"...that the rule of exclusion of writ
jurisdiction by availability of an alternative
remedy is a rule of discretion and not one of
compulsion. In an appropriate case, in spite of
availability of the alternative remedy, the High
Court may still exercise its writ
jurisdiction in at least three contingencies;
(i) where the writ petition seeks enforcement of
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
any of the fundamental rights; (ii) where there
is failure of principles of natural justice or,
(iii) where the orders or proceedings
are wholly without jurisdiction or the vires of
an Act is challenged."
13 In Union of India v. T.R.Varma, reported in
AIR 1957 SC 882, the Supreme Court held that it is
well-settled that when an alternative and equally
efficacious remedy is open to litigant, he should be
required to pursue that remedy and not invoke the
special jurisdiction of the High Court to issue a
prerogative writ. The Bench proceeded
further to observe that it will be a sound exercise
of discretion to refuse to interfere in a petition
under Article 226 of the Constitution of India unless
there are good grounds to do otherwise.
14 I hold that there are good grounds in the present
case so as to entertain this petition despite the fact
that there is a remedy under the Industrial Disputes
Act.
15 Thus, having taken the view that this petition is
maintainable and should not be rejected on
the ground of the alternative efficacious
remedy, the second question that falls for my
consideration is whether the oral termination could
be said to be legal and justified.
16 The respondents have not disputed that
the services of the petitioner No.2 have been
terminated without passing any order in
writing or without giving any opportunity of hearing.
17 An order of termination of service passed orally
is a highly arbitrary act on the part of the
authorities. It is settled law that the right of
livelihood is a fundamental right guaranteed under
Article 21 of the Constitution of India. It is also
settled law that in case the authorities passes an
order affecting a person's civil right or right to
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
livelihood, they have to act clearly and in a
reasonable manner. The termination of the services
of the employee by an oral order is a feudalistic
approach and does not get sanctioned from our
Constitution.
18 Even the services of the temporary government
servant may be dispensed with in accordance
with the provisions of the Industrial Disputes
Act, 1947.
19 There is evidence on record to indicate that the
petitioner was working past more than ten years
with the department. An oral order or instructions
passed by the authority terminating the
services of an employee is arbitrary, unjust and
improper act, and would be hit by Article 14 of the
Constitution of India. The procedure to terminate
the service by an oral order or instructions cannot
be approved under our Constitutional frame and
such practice is highly objectionable and
deprecated in the strongest of the words.
20 The authorities are expected to adopt the
recourse while taking such action in accordance
with law or statutory provisions. Even if there is
statutory provision, it shall always be necessary for
the authority to pass a written order instead of
acting in an autocratic way.
21 Let me look into the decision of this Court
rendered by a learned Single Judge in the case of
Jayanti Chaudhary v. State of Gujarat [Special
Civil Application No.8298 of 2000 decided on
15th January, 2016]. In the said case, the challenge
was to the termination of the petitioner orally and
also seeking benefits of the Government Resolution
dated 17th October, 1988. The learned Single Judge,
after an exhaustive review of the case law,
allowed the writ application and ordered
reinstatement of the petitioner with continuity
in service and all consequential benefits. The
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
learned Single Judge also overruled the
preliminary objection as regards the
alternative remedy before the Labour Court. I
may quote the observations made by the learned
Single Judge as under:
"10 The Court has heard learned counsels
appearing for the parties and perused the
documents on record. The few
indisputable aspects emerging therefrom
needs to be set out as under in light of the
submissions of the learned counsels.
(i) The petitioner no.1 has claimed that he was
appointed on 01.10.1989 i.e. not disputed by
the respondents. Petitioner no.2 was appointed
on 01.10.1988, which has been disputed by the
respondents, as according to the respondents
the petitioner no.2 was appointed on
01.11.1988.
(ii) The Government Resolution dated
17.10.1988 was promulgated and implemented
in respect of the daily-wagers appointed prior
thereto.
(iii) The documentary evidence coming forward
on record in form of the documents on page
nos.20, 23, 61 would indicate that the process
of according benefits of Government Resolution
dated 17.10.1988 had in fact been started at
the end of the respondents. In the aforesaid
factual backdrop, question arises as to whether
this Court should relegate the petitioners to
seek redressal of the grievances in the
alternative forum, as provided under the
Industrial Disputes Act, 1947.
11 The Court has in fact noticed that the
petitioners were appointed on the date mentioned
by both the parties, which in any case, would not
militate against the petitioners' contention of
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
they being continuously performing their duties
so as to attract the provisions of Industrial
Disputes Act, 1947.
12 It is also not disputed that the petitioners had not
completed 240 days, when the oral termination was
being brought about, nor it is a case of the State-
respondent hereinabove, that the petitioners were
required to be non-suited only on the ground that
they had worked for more than 240 days when their
services came to be terminated. On the contrary,
the respondents' affidavits are conspicuously
silent on this aspect and the documentary
evidence, which have been brought on record
including the correspondents under which the
process is established, have been initiated for
according the benefit of Government Resolution
dated 17.10.1988 to the petitioners. The petitioners
have unequivocally established that they had been
continuously working for more than 240 days prior
to the oral termination so as to be entitled to
receive the protection under the provision of
Industrial Disputes Act, 1947, namely; the
retrenchment process, the notice prior to the
termination and the compensation in the form of
retrenchment compensation before effecting the
termination by way of retrenchment.
13 The Court is of the view that the documentary
evidence in form of the communications, which
the respondents are annexed namely
communications dated 01.07.2000, 21.07.2000
and 11.09.2000, indicating that the petitioners
were called upon to collect the wages and the
compensation itself would indicate that the
Industrial Disputes Act provisions were not strictly
complied with, as the date of termination has been
clearly mentioned and the communication is
subsequently dated. Meaning thereby, the
conditions precedent for bringing about valid
termination by way of retrenchment had remained
to be fulfilled. In other words, it can well be said
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
that the documentary evidences coming forward
from the respondents' side well establishes that the
respondents have by way of afterthought sent a
communication to the petitioners so as to infuse
some semblance of legality in their action of
termination of services, which in fact was brought
about without following any procedure of law, much
less, procedure of Section 25F of the Industrial
Disputes Act and other provisions.
14 Against the factual backdrop of these findings,
question arises as to whether any purpose would be
served relegating the petitioners to the alternative
remedy. The answer would be emphatic 'No', as the
relegating of the petitioners to alternative remedy is
a self imposed restriction or modality, which in a
given case may not warrant its adoption. On the
contrary, the facts of the case speaks for
themselves, so far as present case is concerned,
which would persuade this Court not to adopt the
path of relegating the petitioners to the alternative
forum. Besides, the long time elapsed from the date
of the termination and filing of the petition till the
date when the matter is heard, is also being a
relevant factor, in case, if the submission canvassed
on behalf of the State is accepted, then it would add
number of years to the realm of uncertainty, which
has been fasten upon the petitioners, which would
rather amounting to deny them the opportunity of
seeking appropriate relief at appropriate stage and
time. Thus, this also being a relevant factor in not
relegating the petitioners to the alternative remedy
under the Industrial Disputes Act. Therefore, the
Court is not inclined to accept the submission
canvassed on behalf of the respondents for non-
suiting the petitioners on the ground of alternative
remedy and proposes to embark upon the
adjudication so far as all the aspects are concerned,
at this stage, in this petition.
15 The Court has already recorded hereinabove
that the breach of Section 25F is established
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
beyond doubt, as the documents indicate that the
subsequent action of proposing to pay the
compensation and the notice pay would be of no
avail in light of the judgment cited at the bar
namely; in case of Devinder Singh Vs. Municipal
Council, Sanaur, (supra) and in case of Anoop
Sharma Vs. Executive Engineer, Public Health
Division No.1, Panipat (Haryana) (supra).
From the case of Devinder Singh Vs.
Municipal Council, Sanaur, (supra),
paragraph Nos.17 and 18 are reproduced as
under;
Para 17:
Section 25-F is couched in a negative
form. It imposes a restriction on the
employer's right to retrench a workman and
lays down that no workman employed in any
industry who has been in continuous service
for not less than one year under an employer
shall be retrenched until he has been given one
month's notice in writing indicating the reasons
for retrenchment and the period of notice has
expired or he has been paid wages for the
period of notice and he has also been paid, at
the time of retrenchment, compensation
equivalent to fifteen days' average pay
for every completed year of continuous
service or any part thereof in excess of six
months and notice in the prescribed manner
has been served upon the appropriate
Government or the authority as may be
specified by the appropriate Government by
notification in the Official Gazette.
Para 18:
This Court has repeatedly held that the
provisions contained in Sections 25-F(a) and (b)
are mandatory and termination of the service
of a workman, which amounts to retrenchment
within the meaning of Section 2(oo) without
giving one month's notice or pay in
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
lieu thereof and retrenchment
compensation is null and
void/illegal/inoperative. Thus, the condition
precedent for bringing about valid
retrenchment being not fulfilled the
termination by way of retrenchment would
be of no consequence and the same is void
abinitio. This brings the Court to consider the
case of the petitioners so far as the other
relief of 17.10.1988 resolution
recommendations are concerned. The reliance
is placed upon the decision of this Court
passed in S.C.A. No.15670 of 2005 on
08.10.2014 as well as that of Division
Bench passed in L.P.A. No.1381 of 2015 on
04.01.2016 and Supreme Court, to indicate that
the petitioner even if presume to have been
appointed a month or year after the date of the
resolution, the same would be of no
consequence as their case much more
better than number of employees who have
in fact been appointed after the year 1988 and
who have granted benefits. This Court's
observations as well as Division Bench's
observations are set out herein-below:
S.C.A. No.15670 of 2005;
Para - 11:
The Court is of the considered view that the GR
dated 17/10/1988 was no doubt containing
reference to the future employment but the
subsequent course of action and developments
as it indicate that the Government
continued employing daily wagers,
temporary hands irrespective of those
conditions which gave rise to a situation
where litigations came up and hence as Shri
Pathak has pointed out clarificatory GR came to
be issued and over all facts & circumstances of
the case indicate that the benefits of GR dated
17/10/1988 were to be extended to all, else it
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
would have meant to Government
employing unfair labour practice which
would have been highly depreciable.
Para 12:
The Court is also of the view that the decision
cited at the bar in case of State of Gujarat
And Others Vs. PWD Employees Union
And Others will have applicability to
the facts & circumstances of the case and
counsel of the petitioners submission qua
some of the workmen were employed
after GR dated 17/10/1988 would be of
no avail as the judgment itself has
answered that contention squarely. L.P.A.
No.1381 of 2015 Para6: The Labour Court has
directed for conferment of benefits by the
impugned award as per the Govt.
Resolution dated 17.10.1988. We do not find
that the learned single Judge has committed
any error in not interfering with the said
award. Under the circumstances, no case is
made out for interference. Hence, the appeal is
dismissed.
In view thereof, the Court is of the view that
the respondents have to grant benefits of
17.10.1988 resolution to the petitioners after
taking into consideration their services.
16. The Court is, therefore, of the considered
view that the termination being void ab initio,
is required to be quashed and set aside and as
a result thereof the order of reinstatement is
required to be made. However, at this stage,
the question arises as to whether the
petitioners' claim of back-wages would be just
and proper, as the learned counsel for the
petitioners Ms. Bhatt submitted that the back
wages are required to be granted as a matter
of course, as could be seen from the decision
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
in case of Deepali Gundu Surwase Vs.
Kranti Junior Adhyapak Mahavidyalaya
(D.ED.) And Others, reported in (2013) 10
Supreme Court Cases 324; and in case of
Mackinon Mackenizie & Company Ltd. Vs.
Mackinnon Employees Union, reported in
AIR 2015 Supreme Court 1373; the back-
wages in such a situation is a matter of
course. Learned AGP has contended that the
back wages cannot be granted for asking in
absence of any particular pleadings.
There was no opportunity to the employer-
respondents to produce evidence to show that
the employees were gainfully employed
besides the passage of time, would indicate
that the employees-petitioners cannot be
presumed to have been without any earnings
for sustaining themselves and the family
members.
The Court is of the considered view that the
affidavits have been on the record to cover the
contentions, so far as, the merits of the case
are concerned. One of the petitioner had filed
affidavit in the year 2014 to bring on record
the clarificatory circular or resolution,
which was submitted today itself by Ms.
Bhatt, which was permitted to be taken, as
nothing really turned upon it so as to delay the
hearing of the matter. But even on that affidavit
also and the memo of the petition there exists
no, even plain averments on oath, stating that
they have not been gainfully employed.
Though, at this stage, Ms. Bhatt, did inquire
of one of the petitioner, who is present in the
Court, who indicate that he was not gainfully
employed. But that in itself was not found to be
sufficient, as the bare statement if not coming
forward on record when the final hearing
started, would not be accepted to be taken on
record, as it would deny opportunity to the
other-side for bringing their evidence on
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
record. At the same time, it is required to be
noted that the pendency of the matter for 15
years, would indicate that the petitioners could
not have remained idle without their efforts to
earn their wages and their sustenance.
17. Therefore, the Court is inclined to accept
the submission of learned AGP, so far as, back
wages are concerned. In absence of any
pleadings on affidavit or proper submission qua
the petitioners remaining unemployed, the
Court would not be in a position to order back
wages. Hence, the back wages are not ordered.
18 In view of the aforesaid facts and
circumstances, the petition is partly allowed.
Rule is made absolute to the aforesaid extent.
19 The termination is declared to be null and
void, which will have effect of reinstating the
petitioners and continuing them with all
consequential benefits, but back wages shall
not be granted. The petitioners are to be
reinstated forthwith and the continuity of
service to be granted based thereupon. The
benefits flowing from 17.10.1988 are to be
worked out and accorded to the petitioners.
The reinstatement be made within a week from
the date of receipt of this order and the
benefits be granted within two weeks
therefrom. Direct service is permitted."
22 Thus, having regard to the facts of this
case and also the position of law, I hold that the
oral termination of the petitioner No.2 is
absolutely illegal.
23 For the foregoing reasons, this petition
succeeds and is hereby allowed. The oral
termination is declared to be null and void
which will have the effect of reinstating the
petitioner No.2 and continuing him with all
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
the consequential benefits without any
back wages. The petitioner shall be
reinstated forthwith with continuity in service.
The benefits flowing from the Government
Resolution dated 17th October, 1988 are to be
worked out and accorded to the petitioner
No.2. The reinstatement shall be made within a
period of one week from the date of receipt of
the writ of this order and the benefits of the
Government Resolution dated 17th October,
1988 within a period of two weeks
therefrom. Direct service is permitted."
9. The Division Bench of this Court in Letters Patent
Appeal No.899 of 2016 while dismissing the appeal on
23.11.2016 held as under:
"7. Now the grievance of the petitioners is
that the services of the petitioners came to be
terminated orally on 15.3.2015 and therefore
the petitioners filed the captioned petition
before the learned Single Judge. It is relevant
to note that the original respondent no.4 filed
the affidavit-in-reply in the petition. However, it
was not pointed out in the said reply or during
the course of the arguments on behalf of the
respondents that the petitioner has not
completed 240 days in a year and there is no
denial to the averments made in the petition
that the petitioner no.2 was appointed as a
Forest Protector in the Forest and Environment
Department of the State of Gujarat on 1.4.2004.
The petitioner no.2 has served for a period of
more than ten years on daily wage basis in the
Forest and Environment Department. The
petitioner has produced the chart at Annexure
`A' with the petition at page 31 of the
compilation. Thus, the aforesaid averments
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
made in paragraph 4 of the petition are
uncontroverted.
8. At this stage, it is also relevant to note
that when the petitioner no.2 and other
similarly situated daily wagers filed petition
being Special Civil Application No.6879 of 2014
for grant of benefit of Government Resolution
dated 17.10.1988, the learned Single Judge
disposed off the said petition by giving
direction to examine the cases individually and
if found eligible, direction was given to extend
the benefit of Government Resolution dated
17.10.1988 to the petitioner nos.2 and 3 of the
said petition. Even thereafter, as observed
hereinabove, when said direction was not
complied with, the application under the
Contempt of Courts Act came to be filed which
came to be disposed off on the basis of the
affidavit filed by the concerned respondent by
observing that the eligible labourers shall be
granted benefit of Government Resolution
dated 17.10.1988. It is the specific case of the
petitioners that petitioner no.2 was never
informed that he is not eligible for the benefits
flowing from Government Resolution dated
17.10.1988 nor the benefits under the said
resolution was granted to him. If the present
case is considered in the aforesaid background,
the petitioner has approached before this Court
when his services came to be orally terminated
without following procedure. It is not in dispute
that the respondents have not followed any
procedure before orally terminating the
services of the petitioner no.2. The petitioners
have also prayed to grant the benefit of
Government Resolution dated 17.10.1988 to
the petitioner no.2, in view of the decisions
rendered by the Hon'ble Supreme Court as well
as this Court. Thus, the contention of the
learned AGP with regard to the alternative
efficacious remedy available to the petitioner is
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
concerned, we are of the opinion that in the
facts and circumstances of the present case,
learned Single Judge has rightly considered the
petition on merits after relying on the decisions
rendered by the Supreme Court. We have also
gone through the reasoning recorded by the
learned Single Judge on merits and we are of
the opinion that no error is committed by the
learned Single Judge while allowing the
petition and giving direction to the
respondents-present appellants to reinstate the
petitioner no.2 with continuity of service and to
grant consequential benefits without any back
wages. Similarly, no error is committed by the
learned Single Judge by directing the
respondents to work out the benefits flowing
from the Government Resolution dated
17.10.1988 and grant to the petitioner no.2
inasmuch as when the learned single Judge in
the order dated 7.5.2014 passed in Special
Civil Application No.6879 of 2014 had already
given the direction to examine the cases of the
concerned petitioners. However, thereafter, it
was never informed to the petitioner no.2 that
he is not entitled to get the benefit of the said
Government Resolution."
10. Accordingly, the present petitions as well as Civil
Applications are allowed. The oral terminations dated
1.11.2017 are set aside in accordance with the law laid
down in Special Civil Application No.17721 of 2015. The
respondents are directed to reinstate the petitioners on
their original position as if the order of termination was
never passed and extend the benefits of the Government
C/SCA/15938/2016 JUDGMENT DATED: 28/01/2022
Resolutions dated 17.10.1988 and 15.9.2014.
11. Rule is made absolute to that extent. Direct Service
is permitted.
Sd/-
[ BIREN VAISHNAV, J. ]
VATSAL S. KOTECHA
