Piparwadiya Smer Shabbirbhai vs Gujarat Water Supply And Sewerage ...
2023 Latest Caselaw 6896 Guj

                                                                          NEUTRAL CITATION




   C/SCA/16001/2023                        ORDER DATED: 18/09/2023

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

   R/SPECIAL CIVIL APPLICATION NO.         16001 of 2023

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             PIPARWADIYA SMER SHABBIRBHAI
                        Versus
       GUJARAT WATER SUPPLY AND SEWERAGE BOARD
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
 for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                       Date : 18/09/2023

                          ORAL ORDER

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :-

"(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondents to treat the petitioner as direct employee of the respondent No.1 and be further pleased to direct the respondents to grant all the benefits including pay-scale meant for Assistant Manager in the establishment of respondents with all other fringe benefits;

(B) Be further pleased to declare and hold the impugned action of the respondents in treating the petitioner on outsourcing basis, as illegal, unfair in law;

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(C) Pending admission and final disposal of this petition, Your Lordships be pleased to restrain the respondents their agent and servants from terminating and/or discounting the services of the petitioner;

(D) Any other and such further relief as the Hon'be court deems fit and proper in the interest of justice together with costs."

2. It is the case of the petitioner that the

Gujarat Water Infrastructure Limited -

respondent No.2 herein has sanctioned two posts

of Assistant Manager, vide letter dated

25.4.2018. Thereafter, the petitioner was

appointed on outsourcing basis through one

Presscott Infosis vide appointment letter dated

4.5.2018. The aforesaid appointment on the post

of Assistant Manager (Mechanical), was initially

for a period of one year was continued till

today i.e. 18.9.2023, with periodical renewal of

his appointment.

3. The entire petition is based on a premise that

though the petitioner's appointment in the

managerial cadre of Assistant Manager is a

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technical post, on the basis of outsourcing on

contractual basis and the nature of appointment

is temporary. Considering the fact that the

petitioner has continued to work on a sanctioned

post of Assistant Manager, for all these years

under respondent No.2, through different

employers. On the basis of apprehension of

termination, the present petition is preferred,

with the prayers which are already referred to

in the foregoing paragraphs.

4. Heard learned advocate Mr. T. R. Mishra

appearing for the petitioner.

4.1 Learned advocate Mr. T.R. Mishra

appearing for the petitioner submitted that the

petitioner was initially appointed in the year

2018, on the post of Assistant Manager through

one Presscott Infocis and subsequently, through

one M/s. M.J. Solanki and at present through

Rajdeep Enterprises, who all continued the

petitioner to work on the post of Assistant

Manager (Mechanical) to work under the

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respondent No.2 - Gujarat Water Infrastructure

Ltd., on temporary basis for a specific period

on contractual basis, as the contract for

providing the qualified persons by way of

outsourcing was given to aforesaid three

organizations, at the relevant point of time.

4.2 It is the case of learned advocate

Mr.Mishra appearing for the petitioner that

though the petitioner's services were outsourced

by the respondent No.2 - Corporation through

various agencies, considering the fact that the

petitioner has worked on sanctioned post of

Assistant Manager (Mechanical) since his date of

appointment i.e. 4.5.2018 and has worked

continuously and at present, he is not

considered for being regularized on the same

post. Presently he is drawing a salary of

Rs.23,000/- per month. As the petitioner is

apprehending his termination, he has preferred

this petition under Article 226 of the

Constitution of India.

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4.3 Learned advocate Mr. T.R. Mishra relied

upon two judgments of this Court as well as the

Hon'ble Supreme Court and made following

submissions:-

By relying upon the order of the Hon'ble

Supreme Court in case of Hussainbhai, Calicut

Versus Alath Factory Thozhilali Union, Calicut

and others reported in Special Leave Petition

No.1853 of 1978 : Equivalent Citation is 1978

(2) L.L.J 397, dated 28.7.1978, he submitted

that in paragraph No.3 of the aforesaid

judgment, the Hon'ble Supreme Court while

considering the question about who is an

employee as per the labour law as discussed in

paragraphs No.3 of the judgment, in paragraph

No.5 of the judgment observed that where a

worker or group of workers labours to produce

goods or services and these goods or services

are for business of another, the other is, in

fact, the employer, as he has economic control

over the workers' subsistence, skill and

continued employment.

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4.4 By relying upon the aforesaid judgment,

learned advocate Mr. T. R. Mishra submitted that

as per the aforesaid decision that though the

present petitioner was employed by various

agencies and was asked to work with the

respondent No.2 - Corporation, as he is working

under respondent No.2 - Corporation, through

various agencies, it is the respondent No.2

which can be said to be the real employer of the

present petitioner.

4.5 Learned advocate Mr. Mishra relied upon

the judgment of this Court in case of Gujarat

State Karmachari Sankalan Samiti Versus State of

Gujarat dated 25.7.2018 passed in Special Civil

Application No.12537 of 2011 with Civil

Application No.1 of 2018, and by relying upon

paragraphs No.8 and 9 of the judgment submitted

that there is no rational coming forward in

terminating the service of the present

petitioner and therefore, as observed by the Co-

ordinate Bench of this Court in case of Gujarat

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State Karmachari Sankalan Samiti (Supra) that

without there being any reasons for termination

if any termination is given effect to the same

would be contrary to the settled principles of

law and therefore, such termination can not be

permitted. By relying these two judgments,

learned advocate Mr. Mishra prayed for ad-

interim relief in favour of the present

petitioner by issuing notice to the respondents.

4.6 Learned advocate Mr. Mishra also relied

upon an order dated 26.2.2014 passed in Special

Civil Application No.3103 of 2014, wherein

according to learned advocate Mr. Mishra in

similar set of facts, Co-ordinate Bench of this

Court while issuing notice, directed the parties

to maintain statue-quo qua service condition of

the petitioner.

However, upon a specific query from the

Court, as to whether after passing the aforesaid

order, whether any final order has been passed

or not, learned advocate Mr. Mishra fairly

conceded that he is unaware about the fact that

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whether any further order, after the order dated

26.2.2014 in Special Civil Application No.3103

of 2014 is passed or not.

5. Heard learned advocate Mr. T.R. Mishra

appearing for the petitioner and perused the

record and considered the fact of the case. I

have considered the fact that the petitioner was

holding a managerial post and at present, he is

drawing a salary of Rs.23,000/-. I have also

considered the fact that today, there is no

termination notice or termination order on

record and the entire petition is based on

apprehension. Further, the judgments relied upon

by learned advocate Mr. T. R. Mishra are in

relation to labour law and as far as the

judgment in case of Hussainbhai, Calicut (Supra)

is concerned. Whereas other judgment of Gujarat

State Karmachari Sankalan Samiti (Supra), is in

respect of Class-III post. Considering the fact

that the present petitioner is holding a

managerial cadre post, the aforesaid post is an

important post in the organization and

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therefore, according to this Court, such post

are usually filled up by way of competitive

exams by issuing public advertisement and

following due procedure.

In the instance case, by challenging the

aforesaid apprehended termination and by praying

for other reliefs as stated in foregoing

paragraphs, the petitioner wants relief to

continue himself on a technical post without

competing with others or on the strength of his

appointment order issued by a private

person/entity which has posted the petitioner to

work under respondent No.2 - Corporation.

5.1 Fact remains that the petitioner is

holding a managerial cadre post and with an open

eyes, the petitioner has accepted his

appointment, purely on the contractual basis,

knowing fully well that his appointment is a

temporary appointment. From submissions made by

learned advocate Mr. Mishra as well as on

perusal of the record of the petition, it

transpires that from 2018 till today i.e.

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18.9.2023, there were three different employers,

under which the petitioner has worked and it is

purely a co-incident that each of the

outsourcing agency has posted the petitioner in

the respondent No.2 - Corporation.

5.2 Today, in absence of any order or

notice of termination either issued by

respondent No.2 - Corporation or the employer of

the petitioner, if any relief is granted to the

petitioner, in that case, that would amount to

entertaining a premature petition where cause of

action has not even arisen. Though the matter

has been circulated today by the petitioner,

upon an apprehension, that his service would be

terminated today, upon a specific query from the

Court, learned advocate Mr. Mishra fairly

conceded that he has no material to place before

the Court substantiating his apprehension. All

that is submitted is the fact that there is

likelihood that the petitioner's services would

be terminated today itself. When a petition is

based upon apprehension as well as considering

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the fact that there is no direct employer-

employee relationship between present applicant

and respondent - Corporation, whether the

present petitioner can be said to be the

employee of respondent No.2 - Corporation or not

is a matter of evidence, considering the fact

that it is specific case of the petitioner that

he was employee in the respondent No.2 -

Corporation through outsourcing agencies.

5.3 In view of above, as the post that the

petitioner is holding is a managerial cadre post

and the appointment of the petitioner was purely

on temporary basis for a specific period and in

these five years, the petitioner has worked

under three different employers who has posted

the petitioner to work under respondent No.2,

that will not create any equity in favour of the

petitioner. The petitioner has failed to

establish his right to work under respondent

No.2 prima-facie and therefore, no relief as

prayed for can be granted. Also considering the

fact that the present petition is premature, the

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Court cannot entertain such petition on the

basis of assumptions and presumptions.

It is an admitted position that the

petitioner was working under respondent No.2, on

the basis of outsourcing agency and considering

the fact that the petitioner was holding a

managerial post, which is required to be filed

up by way of a competitive examination

ordinarily and as the petitioner has failed to

produced any material on record to indicate that

the petitioner can be appointed on a sanctioned

post, without following due procedure, merely on

the basis of his initial appointment by way of

outsourcing, in absence of any material those

prayers also cannot be granted and therefore, in

respect of remaining prayers also the petition

is required to be dismissed.

In view of above, the present petition

requires to be dismissed and the same is

dismissed accordingly.

(NIRZAR S. DESAI,J) Pallavi