Gujarat High Court
Thakor Balaji Prabhatji vs State Of Gujarat on 19 April, 2023
Bench: Hasmukh D. Suthar
C/LPA/216/2023 ORDER DATED: 19/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 216 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 18863 of 2021
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THAKOR BALAJI PRABHATJI
Versus
STATE OF GUJARAT
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Appearance:
MR UT MISHRA(3605) for the Appellant(s) No.
1,10,2,3,4,5,6,7,8,9
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 19/04/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. This Letters Patent Appeal is directed against
the order dated 26.07.2022 rendered by the learned
Single Judge in Special Civil Application No.18863 of
2021 and allied matter, whereby, the learned Single
Judge has dismissed the petition filed by the present
appellants - original petitioners.
2. The brief facts leading to filing of the present
appeal are as under:
2.1. It is the case of the original petitioners in
special Civil Application No.18863 of 2021 that they
were working with the respondents since the year 2001
C/LPA/216/2023 ORDER DATED: 19/04/2023
and therefore they are entitled to the benefits of
G.R. dated 17.10.1988 issued by the State Government.
It is further the case of the petitioners that the
said benefit was not granted to the petitioners and
therefore they filed Special Civil Application
No.6450 of 2017 before this Court. The learned Single
Judge issued notice in the said petition. Thereafter,
the respondents orally terminated the services of the
petitioners. The petitioners, therefore, filed Civil
Application No.5700 of 2017 in the said pending
petition. The learned Single Judge passed an order on
27.04.2017 and thereby granted ad-interim relief in
favour of the petitioners.
2.2. It is stated that the respondents filed Letters
Patent Appeal No.1921 of 2017 before the Division
Bench of this Court wherein the respondents
challenged the order dated 27.04.2017 passed by the
learned Single Judge. The Division Bench of this
Court, vide order dated 15.11.2017, disposed of the
said appeal as the learned advocate for the present
appellants - original petitioners declared before the
Division Bench that he does not press Civil
Application No.5700 of 2017 and therefore the said
application came to be withdrawn. The Division Bench
of this Court, thereafter, directed the Registry to
list Special Civil Application No.6450 of 2017 filed
by the petitioners for granting the benefit of G.R.
dated 17.10.1988.
C/LPA/216/2023 ORDER DATED: 19/04/2023
2.3. It is further the case of the petitioners that
thereafter they filed another Civil Application No.1
of 2021 in pending Special Civil Application No.6450
of 2017, wherein, once again, the applicants -
petitioners prayed for quashing and setting aside the
oral order of termination of services of the
applicants - petitioners. The learned Single Judge
dismissed the said application vide order dated
24.11.2021. However, while dismissing the said
application, learned Single Judge clarified that it
is open for the petitioners - applicants to file
substantive proceedings challenging the termination
before appropriate forum by filing appropriate
proceedings.
2.4. It is, therefore, the case of the petitioners
that they filed separate Special Civil Application
No.18863 of 2021 and the learned Single Judge, vide
common impugned order dated 26.07.2022, dismissed
both the petitions filed by the petitioners and
therefore the petitioners have challenged the said
order by filing present appeal.
3. Heard learned advocate Mr. U. T. Mishra for the
appellants - original petitioners and learned
Assistant Government Pleader Mr. Ronak Raval for the
respondent.
4. Learned advocate Mr. Mishra assailed the
impugned order passed by the learned Single Judge
C/LPA/216/2023 ORDER DATED: 19/04/2023
mainly on the ground that the learned Single Judge
has wrongly held that there is no employer - employee
relationship between the petitioners and the
respondents and therefore they cannot seek any
benefit similar to that of the other appointees of
the State Government or the Department of the State
Government. It is submitted that the petitioners
produced sufficient documentary evidence before the
learned Single Judge including the identity cards
issued by the respondents from which it can be
established that the petitioners are the employees of
the respondent - State Government, in spite of that,
the learned Single Judge has discarded the said
documentary evidence produced by the petitioners and
given the aforesaid finding. Learned advocate Mr.
Mishra would further submit that the learned Single
Judge has wrongly placed reliance upon the vouchers
produced by the respondents along with the affidavit.
It is submitted that the said vouchers are forged and
therefore learned Single Judge ought to have
discarded the said documents. Learned advocate,
therefore, urged that the impugned order passed by
the learned Single Judge be set aside.
5. At this stage, learned advocate Mr. Mishra
contended that alternative remedy is no bar in filing
the petition before this Court in the facts of the
present case. It is submitted that in the present
case, the petitioners filed Special Civil Application
No.6450 of 2017 claiming the benefits of G.R. dated
C/LPA/216/2023 ORDER DATED: 19/04/2023
17.10.1988. However, during the pendency of the said
petition, the services of the petitioners came to be
terminated, and therefore, petitioners have filed the
petition before this Court challenging the order of
termination, and more particularly, when the learned
Single Judge has granted liberty to the applicants -
petitioners to file the proceedings before the
appropriate forum while passing the order dated
24.11.2021 in Civil Application (For Direction) No.1
of 2021.
6. Learned advocate Mr. Mishra has placed reliance
on the judgment and order dated 23.11.2016 passed by
the Division Bench of this Court in Letters Patent
Appeal No.899 of 2016. Learned advocate has referred
to the relevant observations made by the Division
Bench of this Court in the said order. After
referring to the same, it is submitted that in the
facts of the said case, the Division Bench
entertained the matter filed by the concerned
employees challenging their order of termination.
Learned advocate, therefore, urged that the impugned
order passed by the learned Single Judge be set
aside.
7. On the other hand, learned Assistant Government
Pleader Mr. Raval has opposed this appeal. Learned
AGP has mainly contended that there are serious
disputed questions of facts involved in the present
matter and therefore learned Single Judge has rightly
C/LPA/216/2023 ORDER DATED: 19/04/2023
made observations that the petition filed under
Article 226 of the Constitution of India before this
Court is not maintainable in the facts of the present
case. Learned AGP has pointed out the facts of the
present case and submitted that when the petitioners
have made specific allegations with regard to the
forgery of the vouchers produced by the respondents,
evidence is required to be led before the concerned
Labour Court and therefore the learned Single Judge
has rightly observed that the stand of the
petitioners themselves taken on the issue of vouchers
gives rise to serious disputed questions of fact,
which this Court may not examined under Article 226.
8. Learned AGP thereafter would submit that there
is no employer-employee relationship between the
respondents and the petitioners and the said aspect
can be established before the concerned Labour court
after the dispute is raised by the petitioners by
filing Reference before the concerned Labour Court.
It is further submitted that the petitioners have
placed reliance upon the identification cards issued
by the concerned Department in support of their
contentions before this Court. However, the said
identification card is not the proof that the
petitioners are appointed by the State Government. It
is clarified by learned AGP that said identification
card was issued for the purpose of facilitating the
petitioners to enter into the Government VIP premises
like Sachivalaya, Minister Bungalow, Raj Bhavan etc.
C/LPA/216/2023 ORDER DATED: 19/04/2023
for security purpose. It is also pointed out that the
petitioners were working as driver/helper and
therefore they used to go to the VIP premises.
However, merely because the identification cards were
issued, the petitioners cannot take advantage of the
said identification cards.
9. At this stage, learned AGP has referred the
vouchers, which are produced along with the
affidavit-in-reply filed on behalf of respondent Nos.
1 and 2 before the learned Single Judge. Learned AGP
has referred to the said vouchers as well as the bank
passbook of the concerned petitioners. From the said
documents, it is pointed out that the salary has been
deposited in the account of the petitioners by one
Elite Security Services. Learned AGP, therefore,
urged that learned Single Judge has rightly dismissed
the petition filed by the petitioners and therefore
this Court may not interfere with the said order.
10. We have considered the submissions canvassed by
learned advocates appearing for the parties. We have
also perused the material produced on record. It is
the specific case of the petitioners on the basis of
the identification card that they were employed by
the respondents as daily-wager and the benefits of
G.R. dated 17.10.1988 were not given to them and
therefore they filed Special Civil Application
No.6450 of 2017 before this Court. It would further
reveal from the record that this Court issued notice
C/LPA/216/2023 ORDER DATED: 19/04/2023
in the said petition. Now, it is alleged by the
petitioners that after the issuance of the notice in
the said petition, the services of the petitioners
came to be terminated by the respondents and
therefore they filed Civil Application No.5700 of
2017. In the said application, learned Single Judge
passed an order on 27.04.2017 by which ad-interim
relief in terms of para 6(A) of the said application
was granted in favour of the applicants -
petitioners. It further transpires from the record
that the present respondents challenged the said
order by filing Letters Patent Appeal No.1921 of
2017, wherein, the Division Bench, vide order dated
15.11.2017, observed as under:
"1. Present Appeal has been preferred against
the impugned ad-interim order passed by th
learned Single Judge dated 27/04/2017 in Civil
Application No.5700/2017 in Special Civil
Application No.6450/2017.
2. We have heard Shri Dhawan Jayswal, learned
Assistant Government Pleader appearing on
behalf of the appellants and Shri Mishra,
learned advocate appearing on behalf of the
respondents - original applicants at length.
There are allegations and counter allegations.
We were ready to pass a detail reasoned order
suspending the impugned adinterim order passed
by the learned Single Judge, more particularly,
when it is the case on behalf of the appellants
that the concerned respondents were never the
employees of the State Government and they were
the employees of the Contractors, however, at
the end, Shri Mishra, learned advocate
appearing on behalf of the respondents -
original applicants does not press Civil
C/LPA/216/2023 ORDER DATED: 19/04/2023
Application No.5700/2017 pending before the
learned Single Judge and has stated that the
question with respect to the interim relief be
kept open to be considered by the learned
Single Judge while considering the hearing of
main Special Civil Application No.6450/2017.
Shri Mishra, learned advocate appearing on
behalf of the respondents - original applicants
does not invite any further reasoned order
while quashing and setting aside the impugned
ad-interim order passed in Civil Application
No.5700/2017 as he is not pressing Civil
Application No.5700/2017 filed in the main
Special Civil Application.
3. In view of the above stand taken by Shri
Mishra, learned advocate appearing on behalf
the respondents - original applicants,
respondents - original applicants are permitted
to withdraw Civil Application No.5700/2017.
Consequently, Civil Application No.5700/2017 in
Special Civil Application No.6450/2017 stands
dismissed as withdrawn. Adinterim relief
granted on 27/04/2017 in Civil Application
No.5700/2017 stands quashed and set aside as
the main Civil Application itself is withdrawn.
Now, the learned Single Judge to pass a formal
order of withdrawal in Civil Application
No.5700/2017 permitting the respondents herein
- original applicants to withdraw Civil
Application No.5700/2017. For the aforesaid
purpose, Registry is directed to notify Civil
Application No.5700/2017 on board on
28/11/2017. With the consent of the learned
advocates appearing on behalf of the respective
parties, Registry is directed to notify main
Special Civil Application No.6450/2017 for
admission hearing before the learned Single
Judge on 28/11/2017. All the contentions
/defences, which may be available to the
respective parties, are kept open to be
considered by the learned Single Judge. With
this, present Letters Patent Appeal stands
disposed of.
C/LPA/216/2023 ORDER DATED: 19/04/2023
Civil Application No.14420/2017
In view of disposal of Letters Patent Appeal,
Civil Application stands disposed of."
11. From the aforesaid order passed by the Division
Bench of this Court, it is clear that the Division
Bench heard learned AGP as well as learned advocate
Mr. Mishra at length and the Division Bench was
inclined to pass order in favour of the present
respondents - appellants of the said appeal. However,
learned advocate Mr. Mishra appearing for the present
appellants - respondents of the said appeal requested
the Division Bench that he does not press Civil
Application No.5700 of 2017 pending before the
learned Single Judge and the present appellants -
respondents of the said appeal did not invite any
further reasoned order while quashing and setting
aside the ad-interim order passed by the learned
Single Judge in Civil Application No.5700 of 2017.
The Division Bench has further permitted learned
advocate for the appellants - original petitioners -
respondents of the said appeal to withdraw the said
application which was pending before the learned
Single Judge and Registry was directed to notify
Special Civil Application No.6450 of 2017 on a
particular date.
12. Thus, from the aforesaid order of the Division
Bench of this Court, it is clear that the stand of
C/LPA/216/2023 ORDER DATED: 19/04/2023
the present respondents in the said appeal was that
present appellants - original petitioners are not the
employees of the respondents and in the said appeal
also reliance was placed on the vouchers, which are
produced by the respondents along with the affidavit
filed in the present proceedings. The Division Bench
has specifically recorded the submissions of the
present respondents that the appellants - original
petitioners were never the employees of the State
Government and they were employees of the
contractors.
13. It is further revealed from the record that
though liberty was not granted by the Division Bench
to file an application for interim relief, the
appellants - original petitioners filed Civil
Application (For Direction) No.1 of 2021 in the
petition being Special Civil Application No.6450 of
2017. Learned Single Judge dismissed the said
application on 24.11.2021. Copy of the said order is
placed on record at page 58 of the compilation.
14. It is pertinent to note that while dismissing
the said application filed by the present appellants,
learned Single Judge clarified that it will be open
for the applicants - present appellants to file
substantive proceedings challenging the termination
before appropriate forum by filing appropriate
proceedings.
C/LPA/216/2023 ORDER DATED: 19/04/2023
15. Thus, from the aforesaid observations, it is
clear that learned Single Judge did not grant
permission to file petition before this Court under
Article 226 of the Constitution of India challenging
the termination, in spite of that, the petitioners
filed captioned petition being Special Civil
Application No.18863 of 2021.
16. Learned Assistant Government Pleader has
specially raised the contention that the petitioners
have made allegation with regard to forgery of the
vouchers produced by the respondents before this
Court. The petitioners have also alleged fraud
against the respondents. Learned AGP, therefore,
contended that when such allegations are levelled,
the said allegations are required to be proved by
leading evidence before the concerned Court and this
Court is not empowered to examine the said issue in
the petition filed under Article 226 of the
Constitution of India. On the other hand, learned
advocate Mr. Mishra appearing for the appellants -
original petitioners has placed reliance on the
judgment and order dated 23.11.2016 passed by the
Division Bench of this Court in Letters Patent Appeal
No.899 of 2016. Copy of the said order is placed on
record at page 61 of the compilation. It is submitted
by learned advocate Mr. Mishra that in the said
proceedings the petition challenging the oral
termination order was entertained and therefore
learned Single Judge ought to have entertained the
C/LPA/216/2023 ORDER DATED: 19/04/2023
petition filed by the petitioners.
17. We have gone through the order dated 23.11.2016
on which reliance is placed by learned advocate Mr.
Mishra for the appellants. In the said case, it was
the specific case of the concerned petitioners that
they were working in the Forest & Environment
Department and they preferred petition before this
Court seeking direction to grant the benefit of G.R.
dated 17.10.1988. In the said case, the services of
the concerned petitioners came to be terminated and
therefore the petition was filed challenging oral
termination. Thus, in the said case, it was not
disputed by the concerned respondents that the
concerned petitioners were the employees of the
Forest & Environment Department and therefore the
Division Bench of this Court has made specific
observations in para 8 that, "Thus, the contention of
the learned AGP with regard to the alternative
efficacious remedy available to the petitioner is
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...."
17.1. Thus, the Division bench of this Court
passed the said order considering the peculiar facts
of the said case.
18. However, in the present case, the respondents
C/LPA/216/2023 ORDER DATED: 19/04/2023
are specifically denying and disputing that the
petitioners are their employees. It is the specific
case of the respondents that the petitioners were not
appointed by Department of the State Government and
there is no employer-employee relationship between
the respondents and the petitioners. It is the
specific case of the respondents that the petitioners
were engaged by Rajesh G. Patel and Elite Security
Services by way of outsourcing service. Further, in
the present case, the petitioners have specifically
alleged against the respondents that they have forged
the documents i.e. vouchers and produced before this
Court and thereby they have played fraud with the
Court.
19. Thus, we are of the view that in the facts and
circumstances of the present case, aforesaid decision
on which the reliance is placed by learned advocate
Mr. Mishra, would not be applicable and this Court
cannot examine these disputed questions of fact in
the petition filed under Article 226 of the
Constitution of India.
20. Further, it is pertinent to note that the
petitioners have not produced any appointment order
and they have placed reliance only on the
identification cards given by the respondents.
However, the respondents have clarified that for what
purpose the said identity cards were issued. On the
other hand, the respondents have produced the
C/LPA/216/2023 ORDER DATED: 19/04/2023
vouchers as well as bank passbook of the concerned
petitioners from which it is revealed that the salary
was paid by Elite Security Services in the account of
the concerned petitioners.
21. We have also gone through the reasoning recorded
by the learned Single Judge and we are of the view
that learned Single Judge has not committed any error
while dismissing the petition filed by the
petitioners and therefore no interference is required
in the present appeal. Accordingly, the appeal is
dismissed.
(VIPUL M. PANCHOLI, J)
(HASMUKH D. SUTHAR,J)
LAVKUMAR J JANI
