Gujarat High Court
Pwd And Forest Employees Union vs State Of Gujarat on 18 April, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7638 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 7638 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
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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PWD AND FOREST EMPLOYEES UNION & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SHALIN MEHTA SENIOR ADVOCATE WITH MR. NINAD P SHAH WITH
ADITI S RAOL(8128) for the Petitioner(s) No. 1
MS VIDHI J BHATT(6155) for the Petitioner(s) No.
10,11,12,13,14,15,2,3,4,5,6,7,8,9
MR JAY TRIVEDI AGP for the Respondent(s) No. 1,2,3,4,5
RULE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 18/04/2024
ORAL JUDGMENT
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1. The petitioners have preferred present petition
under Articles 14, 16, 21 and 226 of the Constitution of
India challenging the inaction on the part of respondents
with below mentioned relief/s:-
"23(A) Your Lordships may be pleased to issue a writ of
certiorari or any other appropriate writ, order or
direction, declaring the oral order dated 01.11.2015
passed by the respondent no. 5 terminating the services
of the petitioners no. 2 to 15, as bad in law, illegal,
arbitrary, capricious and violative of their fundamental
rights guaranteed under Articles 14, 16 and 21 of the
Constitution of India and quashing and setting aside the
same;
B. Your Lordships be pleased to issue a writ of certiorari
or any other appropriate writ, order or direction
declaring the impugned letter dated 04.06.2015 issued
by the respondent no. 4 rejecting the case of the
petitioners no. 2 to 15 for grant of the benefits as
contained in Government Resolution dated 17.10.1988
as per the decision of the Hon'ble Supreme Court of
India dated 9.7.2013 as arbitrary, unreasonable,
irrational, bad in law and, thus, violative of Articles 14,
16, 21 and 23 of the Constitution of India and quashing
and setting aside the same;
C. Your Lordships may be pleased to issue a writ of
mandamus or any other appropriate writ, order or
direction, commanding or directing the respondent
authorities to reinstate the petitioners no. 2 to 15 in
service with all the consequential benefits, including
continuity of service and other benefits that flow from
such continuity of service;
D. Your Lordships may be pleased to issue a writ of
mandamus commanding the respondent authorities to
extend the benefits as contained in Government
Resolution dated 17.10.1988, as per the decision of the
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Hon'ble Supreme Court dated 9.7.2013 (reported in
2013 (8) Scale 579) to the petitioners no. 2 to 15 from
the date they became eligible for such benefits with all
the consequential benefits, including arrears of pay and
allowances;
E. Pending admission and final hearing of the present
petition, Your Lordships may be pleased to direct the
present respondents to reinstate the petitioners no. 2 to
15 in service immediately; and
F. Your Lordships be pleased to pass any other
appropriate order, as deemed fit, in the interest of
justice."
2. The short facts giving rise to present petition are that
petitioner Nos. 2 to 15 were working in Nursery on daily-
wage basis in the Forests and Environment Department.
They were appointed between 1.1.2006 and 1.8.2007. The
petitioner Nos. 2 to 15 hd put more than 7 yers of service
as daily wagers and despite of this servce, they were
getting only the minimum wages as per the Minimum
Wages Act, 1948. No other benefits were extended to
them. Even regular pay scale was also not given to them.
They were also not entitled to any kind of leave i.e. casual
leave, earned leave or medical leave. On reaching the age
of superannuation, they were not entitled to any
retirement benefits.
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2.1 The Hon'ble Supreme Court vide its judgment dated
9.7.2013 reported in 2013(8) SCALE 579 directed the
State of Gujarat to grant the benefits of the scheme as
contained in Government Resolution dated 17.10.1988 to
all the daily-wage workers of the Forests and
Environment Department working for more than five
years.
2.2 In light of the said decision the petitioners along
with other similarly situated employees approached this
Court by filing Special Civil Application No.1698 of 2015
and this Court disposed of the said petition vide order
dated 11.2.2015 and directed the respondent authorities
to consider the cases of each of the petitioners
individually, and if found eligible, the benefits of the
Government Resolution dated 17.10.1988 be extended to
them. Thus, the petitioner Nos. 2 to 15 along with other
petitioners, became entitled to get the benefits of the
scheme contained in Government Resolution dated
17.10.1988. The said order was not complied with by the
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respondent authorities and therefore, the petitioners filed
Misc. Civil Application (For Contempt) No. 2828 of 2015
in Special Civil Application No.1698 of 2015 and in view
of the communication dated 4.6.2015 the petitioners did
not press the said contempt application and this Court
disposed of the said Misc. Civil Application (For
Contempt) No. 2828 of 2015 vide order dated 26.10.2015
as not pressed. Thereafter, respondent No.5 orally
terminated the services of the petitioner Nos. 2 to 15 on
1.10.2015.
2.3 Hence, by way of present petition the petitioners
have challenged the action of the respondent No.5 of
orally terminating the services of the petitioner Nos. 2 to
15 on 1.11.2015 and the action of the respondent No.4
rejecting the case of the petitioner Nos. 2 to 15 for
extending the benefits of the Government Resolution
dated 17.10.1988.
3. Heard Mr. Shalin Mehta, learned Senior Counsel
assisted by Ms. Aditi Raol and Ms. Vidhi J. Bhatt learned
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advocates for the petitioners and Mr. Jay Trivedi, learned
Assistant Government Pleader for the respondents.
3.1 Mr. Mehta, learned Senior Counsel for the petitioner
has relied upon the judgment of this Court in Special Civil
Application No. 17721 of 2015 with Civil Application
No.9035 of 2016. Learned Senior Counsel has more
particularly emphasized on paragraph Nos. 21, 22 and 23
which read as under:-
"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 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
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promulgated and implemented in respect of the dailywagers
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 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 Staterespondent
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
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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 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
nonsuiting 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 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
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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;
Para17: Section 25F 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.
Para18: This Court has repeatedly held that the
provisions contained in Sections 25F(a) and (b) are
mandatory and termination of the service of a
workman, which amounts to retrenchment within the
meaning of Section 2(oo) withoutgiving one month's
notice or pay in 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 ab initio. 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 hereinbelow;
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S.C.A. No.15670 of 2005
Para11: 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 would have meant to
Government employing unfair labour practice
which would have been highly depreciable.
Para12: 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
backwages 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 in case of Deepali Gundu Surwase Vs.
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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 backwages 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
employerrespondents to produce evidence to show that the
employees were gainfully employed besides the passage of
time, would indicate that the employeespetitioners 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 otherside for
bringing their evidence on 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
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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 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."
3.2 In view of the above decision, Mr. Shalin Mehta,
learned Senior Counsel for the petitioners has submitted
that the oral termination is declared as null and void and
therefore, the same principle requires to be applicable in
present case also. Learned Senior Counsel for the
petitioners has further submitted that in light of the said
decision, the oral termination order dated 1.11.2015 may
be quashed and set aside.
3.3 Mr. Shalin Mehta, learned Senior Counsel for the
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petitioners also relied upon the decision of the Hon'ble
Apex Court in case of State of Gujarat and ors. vs. P.W.D.
Employees Union and Ors. reported in 2013(8) SCALE
579 submitted that in the said decision the Hon'ble Apex
Court has extended the benefits of Government
Resolution dated 17.10.1988 to the daily wagers working
in the Forest and Environment Department. He has
further submitted that in light of the said decision the
petitioner Nos. 2 to 15 are entitled to get the benefits
under Government Resolution dated 17.10.1988 as the
petitioners have competed more than 5 years of service
before they were illegally terminated from the service.
3.4 In view of the above facts, Mr. Shalin Mehta, learned
Senior Counsel for the petitioners urges before the Court
that present petition may be allowed and order dated
1.11.2015 passed by respondent No.5 and order dated
4.6.2015 passed by respondent No.4 may be quashed and
set aside.
4. On the other hand, Mr. Jay Trivedi, learned Assistant
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Government Pleader for the respondents has objected the
petition mainly on the ground that decision of the
respondent is in consonance with the settled principle of
law and therefore, no interference is required to be called
for in present petition. However, candidly he has
submitted that the issue is now not remained as
res-integra. So far as the oral termination is concerned,
he has fairly submitted that in view of the order of this
Court dated 23.11.2016 passed in Letters Patent Appeal
No.899 of 2016 he cannot make any submission on the
ground of maintainability of present petition.
5. I have perused the material available on record as
well as the relevant papers along with other documents
placed on record.
6. It appears from the record that the respondent
authorities have not issued any notice to the petitioner
Nos. 2 to 15 before terminating their services. It further
appears that so as to deprive the benefits of Government
Resolution dated 17.10.1988, the petitioners have thrown
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out of service. The said act of the respondent authorities
terminating service of the petitioner Nos. 2 to 15 is illegal
and contrary to the principles of natural justice and thus,
the said action of the respondent authorities requires to
be quashed and set aside. Further, respondent No. 4
Conservator of Forest, in his letter dated 4.6.2015 has not
disclosed the details on what basis it has come to the
conclusion that the petitioner Nos. 2 to 15 have not
completed 240 days in 5 years for getting the benefits of
Government Resolution dated 17.10.1988.
7. In view of the above, the order 01.11.2015 passed by
the respondent no. 5 and impugned letter dated
04.06.2015 issued by the respondent no. 4 require to be
quashed and set aside.
8. For the foregoing reasons, so far as prayer 23(A) is
concerned, the concerned respondent authority is hereby
directed to reinstate the petitioner Nos. 2 to 15 in service
with all consequential benefits and continuity of service
but without backwages from the date of their oral
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termination within period of 6 weeks from the date of
receipt of copy of the order.
9. So far as prayer No. 23(B) regarding benefits of
Government Resolution dated 17.10.1988 is concerned,
the petitioner Nos. 2 to 15 may make appropriate
representation to the respondent authorities with
compete details showing their working days in the
department as a daily wager, within period of two weeks.
10. The respondent authorities, after giving proper
opportunity to the petitioner Nos. 2 to 15, may decide the
said representation in light of the different judgments of
the Court and in light of the facts of the present case,
within period of six weeks from the date of receipt of copy
of such representation.
11. In view of the above discussion and considering the
facts and circumstances of the case, impugned order
01.11.2015 passed by respondent no. 5 and impugned
letter dated 04.06.2015 issued by the respondent no. 4
are hereby quashed and set aside. Rule is made absolute
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to the aforesaid extent. Direct service is permitted.
12. In view of the order passed in the main petition, Civil
Application does not survive and the same stands
disposed of accordingly.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
