Gujarat High Court
Nagabhai Jethabhai Vand vs State Of Gujarat on 16 January, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1906 of 2021
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NAGABHAI JETHABHAI VAND
Versus
STATE OF GUJARAT
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Appearance:
MS VIDHI J BHATT(6155) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 16/01/2024
ORAL ORDER
1. Rule returnable forthwith. Learned AGP waives
service of notice of rule on behalf of the respondent -
State.
2. Heard learned advocate Ms. Vidhi J. Bhatt on behalf
of the petitioner and learned AGP Mr. Sahil Trivedi on
behalf of the respondent - State.
3. By way of this petition, the petitioner was working as
a daily wager Peon-cum-Driver with the respondent Nos.2
& 4, has challenged the decision of the respondents of
orally terminating his services after 20 years of
employment and further seeks reliefs for grant of benefit
under G.R. dated 17.10.1988.
4. The prayers as sought for in the petition are as
follows:-
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"(A) Your Lordships may be pleased to issue a writ of
certiorari or any other appropriate writ, order or
direction, declaring the oral termination of the
petitioner on 05.04.2020 by the respondent no.4 as
bad in law, illegal, arbitrary, capricious and violative
of their fundamental rights guaranteed under Article
14, 16 and 21 of the Constitution of India and thus
null and void;
(B) 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 petitioner in service with
all the consequential benefits, including continuity of
service and other consequential benefits that flow
from such continuity of service, including arrears of
wages;
(C) Your Lordships may be pleased to issue a writ of
certiorari or any other appropriate writ, order or
direction, declaring the inaction on the part of the
respondent authorities in considering the case of the
petitioner for grant of the benefits of Government
Resolution dated 17.10.1988 as bad in law, arbitrary,
capricious and violative of petitioners fundamental
rights guaranteed under Articles 14, 16 and 21 of the
Constitution of India;
(D) Your Lordships may be pleased to issue a writ
of mandamus or any other appropriate writ, order or
direction, commanding the respondents herein to
reinstate the petitioner in service and extend him the
benefits of the scheme contained in Government
Resolution dated 17.10.1988;
(E) Your Lordships may be pleased to issue a writ
of mandamus or any other appropriate writ, order or
direction commanding the respondents to release the
wages of the petitioner from 01.01.2020 till the date
of his oral termination on 05.04.2020;
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(F) Your Lordships may be pleased to issue a writ
of certiorari or any other appropriate writ, order or
direction, declaring the egregious action on the part
of the respondent authorities of replacing the
petitioner and ad hoc employee by another ad hoc
employee and engaging contract labourer through an
outsourcing agency as opposed to the mandate of the
Directive Principles contained in Articles 38, 39, 41,
42, 43 and 47 of the Constitution, and thus violative
of Articles 14, 16 and 21 of the Constitution and
quashing and setting aside the same;
(G) Pending admission and final hearing of the
present petition, Your Lordships may be pleased to
direct the respondents to reinstate the petitioners in
service immediately;
(H) Pending admission and final hearing of the
present petition, Your Lordships may be pleased to
direct the respondents to release the wages of the
petitioners from 01.01.2020 till the date of his oral
termination on 05.04.2020 immediately; and
(I) Your Lordships be pleased to pass any other
appropriate order as deemed fit in the interest of
justice."
5. At the outset, learned AGP Mr. Sahil Trivedi raises a
preliminary objection as regards maintainability of the
present petition interalia submitting that the petitioner
challenging his oral termination, has an alternative
efficacious statutory remedy under the Industrial Disputes
Act and whereas under such circumstances, the present
petition may not be entertained.
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5.1 As against the same, learned advocate Ms. Bhatt
for the petitioner would rely upon decision of learned
coordinate bench of this Court in Special Civil Application
No.17721 of 2015 dated 15.03.2016 and would submit that
in the said decision, a learned coordinate bench of this
Court, Justice Mr. J.B. Padiwala (as his lordships then
was) has interalia taken a view that in cases like the
present with regard to oral termination, even when an
alternative efficacious remedy is available yet, the petition
would be entertained and the petitioner would not be
relegated to avail of the alternative remedy. Learned
advocate would submit that the said decision had been
assailed by the State by filing Letters Patent Appeal
No.899 of 2016 and whereas vide a decision dated
23.11.2016, Division Bench of this Court had affirmed the
decision of learned coordinate bench. Learned advocate
Ms. Bhatt would submit that since the learned coordinate
bench after analyzing decision of the Hon'ble Apex Court
has come to a conclusion that in cases like the present,
the petitioners should not be relegated to avail of the
alternative remedy and since the said decision is confirmed
by Division Bench, this Court may follow the view taken
by the learned coordinate bench. Learned advocate would
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submit that the plea of alternate remedy may not be
countenanced.
5.2 Considering the submissions made by the learned
advocates and having perused the decision of the learned
coordinate bench as confirmed by Division Bench, it would
prima facie appear that in similar circumstances, after
analyzing the law laid down by the Hon'ble Apex Court in
case of invoking writ-jurisdiction of the High Court under
Article 226, in light of availability of alternative remedy,
the learned coordinate bench appears to have observed as
thus, paragraph Nos.13, 14 & 15, being relevant for the
present purpose are being reproduced hereinbelow for
benefit:-
"13. In Union of India v. T.R. Varma, reported in
AIR 1957 SC 882, the Supreme Court held that it is
well-settled tht 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.
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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 tht falls for my consideration is
whether the oral termination could be said to be
legal and justified."
5.3 It would also appears that the said decision had
been challenged by the State before Division Bench and
whereas in so far as the preliminary objection, raised by
the State even before the Division Bench, did not find
favour with the Division Bench and whereas the decision
of the learned Single Judge of entertaining the petition
since there were good grounds, had been confirmed by the
Division Bench. In view of the above position, more
particularly, since it appears that the decision of the
learned coordinate bench is in exactly similar
circumstances, the plea of alternative remedy as raised by
learned AGP is not entertained.
6. In so far as the merits is concerned, learned advocate
Ms. Bhatt would submit that the petitioner had been
appointed as a daily wager Peon-cum-Driver, vide an order
dated 24.08.2000 initially for a period of 28 days on daily
wage basis and whereas as per the learned advocate, the
said employment had continued till the year 2020. It is
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submitted by learned advocate that the only difference
being that in the interregnum, the wages which were
being given to the petitioner had increased a little bit.
Learned advocate would submit that while the position
continued, vide an order dated 07.03.2020, the Additional
Director, Food and Civil Supply Department, State of
Gujarat had communicated to the Director as well as the
respondent No.4 as regards the Policy of the State to
employee persons on outsourcing basis even if there are
vacancies available in the setup and whereas it was
intimated that in case if the Policy of outsourcing is not
followed and persons are employed then the financial
burden on account thereof would be the responsibility of
the Officer concerned. Learned advocate would submit that
while the respondent No.4 had sought for clarification
from the respondent No.2 as to the position of the
petitioner and whereas it also appears that later on, the
respondent No.4 had also requested respondent No.2 to
take the services of the present petitioner under him yet,
nothing appears to have been done. Learned advocate
would submit that thereafter somewhere in the month of
April 2020, the services of the petitioner were terminated
orally and whereas one Shri Karshan D. Makwana had
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been appointed on outsourcing basis, a communication
dated -/04/2020 issued by the District Supply Officer to
one M/s Success Services Porbandar, is being relied upon.
Learned advocate would submit that in the interregnum,
the respondents had also tried to question the present
petitioner as regards signing the log-book and whereas
according to learned advocate, considering the
communications referred to hereinabove, it would clearly
appear that atleast till the month of March 2020, the
petitioner was in service of the respondents.
7. Learned advocate would submit that the petitioner
having worked as Peon-cum-Driver on daily wage basis
would be entitled to be granted the benefits available
under G.R. dated 17.10.1988. It is submitted by learned
advocate that had the respondents granted the benefit to
the petitioner as and when it fell due then the petitioner
would have probably, attained the status of a permanent
employee upon completion of 10 years and which situation
would have ensured that the petitioner is not terminated
on oral basis. Learned advocate would further submit that
as it is, terminating an employee, who has worked for 20
years on daily wage basis, without any rhyme or reason,
may not be countenanced by this Court.
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8. Learned advocate would further submit that the
reason for terminating is also very clear since the
respondents wanted to employee persons through outsource
basis. In this regard, learned advocate would submit that
as such, the Policy of outsourcing, has been held to be an
exploitative Policy, being an unfair labour practice by a
learned coordinate bench of this Court. Learned advocate
in this regard would rely upon a decision of learned
coordinate bench in case of Vinodbhai Shivrambhai Rathod
v. State of Gujarat in Special Civil Application No.7462 of
2012 and allied matters, dated 21.12.2018. Learned
advocate would submit that the respondents were acting
absolutely arbitrarily in terminating the services of the
petitioner to accommodate a person on outsourcing basis.
Having regard to such submissions, learned advocate
would request this Court to allow this petition and to
direct the respondents to forthwith reemploy the present
petitioner and whereas thereafter the petitioner may be
deemed entitled for benefit of G.R. dated 17.10.1988.
9. This petition is vehemently opposed by learned AGP
Mr. Sahil Trivedi for respondent - State. Learned AGP
would submit that the petitioner being a daily wager
employee, would not be entitled to any protection of his
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services and whereas as a matter of Policy, when the State
had decided to employ persons only through outsourcing
basis, the services of the petitioner were terminated to
facilitate such Policy. Learned AGP would submit that the
respondents have not acted arbitrarily since the petitioner
had never been confirmed in services. Under such
circumstances, learned AGP would request this Court not
to interfere in this petition.
10. To a pointed query by this Court, learned AGP could
not dispute the proposition that G.R. dated 17.10.1988
would also be applicable to employees of the Revenue
Department in which the present petitioner was working.
11. Heard learned advocates for the respective parties and
perused the documents on record. The question that arises
for consideration of this Court is whether the respondents
were justified in terminating the services of the petitioner
on oral basis, more particularly, to facilitate appointment
of another persons on the very post on outsourcing basis.
A further question that arises for consideration is whether
the petitioner would be entitled to benefits under G.R.
dated 17.10.1988.
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12. In so far as the Policy of outsourcing is concerned,
before making any observations or whether the termination
of the petitioner was correct or not. This Court seeks to
rely upon observations made by learned coordinate bench
(Justice Mohindar Pal.J) in Special Civil Application
No.7462 of 2012. Paragraph No.13, 14 and 15 being
relevant for the present purpose are reproduced
hereinbelow for benefit:-
"13. This Court has considered the submissions made
by both the sides and gone through the decisions relied
upon by the learned counsels. The endeavor of the
State Government in shifting to the policy of
outsourcing appears to be an effort to reduce the
expenditure. However, the cost at which the State will
be saving this money seems to be too heavy. The
country like India where due to high rate of
unemployment, many people may be prepared to work
for remuneration which may be extremely low
amounting to exploitation. The law, however, does not
permit such exploitation even at the hands of private
employer. Can the State Government which is wedded
to Constitutional philosophy of implementing the
Directive Principles of the State Policy which under
Article 43 provides that the State shall endeavour to
secure by suitable legislation or economic organization
or in any other way to all workers, a living wage and
just conditions of working, ignore all such principles
when it comes to remunerating its own workers ? The
answer has to be in the negative. This Court is
conscious that ipso-facto, minimum wage prescribed for
the private employers would not govern the
Government employees.
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14. In the case of Gujarat Electricity Board, Thermal
Power Station, Ukai,Gujarat vs. Hind Mazdoor Sabha
(supra), it has been held that:
"The only ostensible purpose in engaging the contract
labour instead of the direct employees is the monetary
advantage by reducing expenditure. Apart from the fact
that it is an unfair labour practice, it is also an
economically short-sighted and unsound policy, both
from the point of view of the undertaking concerned
and the country as a whole. The economic growth is
not to be measured only terms of production and
profits. It has to be gauged primarily in terms of
employment and earnings of the people. Man has to be
the focal point of development. The attitude adopted by
the undertakings is inconsistent with the need to reduce
unemployment and the Government policy declared
from time to time, to give jobs to the unemployed.
This is apart from the mandate of Directive Principles
contained in Articles 38,39, 41,42, 43 and 47 of our
Constitution...."
15. Thus, the work for which the petitioners have been
engaged, being work for perennial nature, outsourcing
the same is judicially established to be an unfair labour
practice, besides being an unsound and unreasonable
policy and hence, the decision of the Government as
contained in Government Resolutions dated 10.2.2006
and 25.4.2012 to outsource the same with the
consequential termination of the service of the
petitioners, requires to be considered seriously."
13. Considering the above observations, it would appear
that the learned coordinate bench has observed that the
Policy of outsourcing is exploitative and whereas a State
Government which is wedded to the constitutional
philosophy of implementing the directive principles of the
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State Policy under Article 43, could not ignore the
principles with regard to securing economic organization
and a living wage and just condition of working to its
employees. The learned coordinate bench also observed
that since the work for which the petitioners therein had
been engaged being perennial in nature, and since
outsourcing is established to be an unfair labour practice,
the termination of services of employees for facilitating
outsourcing, had also been deprecated. It would also
appear that in the scenario therein, the learned coordinate
bench had directed reinstatement of all such employees
who were terminated to facilitate the outsourcing process.
14. Considering the fact situation from the view point of
law laid down by the learned coordinate bench in decision
of the Vinod Rathod (supra), it would clearly appear that
the Policy of outsourcing does not behove a State which is
wedded to the constitutional principles under Article 43 of
the Constitution of India. In this regard it is required to be
noted that there is no semblence of order in the oral
termination. The termination was not on account of any
fault on part of the petitioner or on account of any
misconduct by the petitioner. Resorting to the policy of
outsourcing is the only criteria. Again it requires to be
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mentioned that outsourcing is not being resorted to for
any purpose beneficial for public at large, rather the only
idea appears to be to ensure that which the work profile
of the employee remains the same, he does not get the
minimal protection afforded to such workmen under the
Industrial Disputes Act. In the considered opinion of this
Court, the State cannot and should not resort to a policy
which is intended to bypass a legislation, more so when
the legislation is a beneficial one conferring certain
protections to one of the most vulnerable class of its
citizens. In the considered opinion of this Court, the oral
termination of the petitioner, more particularly, after the
petitioner had put in more than 20 years of services,
cannot be countenanced and is hereby required to be
interfered.
14.1 At this stage, this Court also requires to observe
that there is one more reason for interfering in the
decision of oral termination, the same observations made
by the learned coordinate bench in Special Civil
Application No.17721 of 2015 as relied upon by learned
advocate for the petitioner. Paragraph No.17, 18, 19 & 20
of the said decision, being relevant for the present purpose
are reproduced hereinbelow for benefit:-
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"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
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."
14.2 The observations of the learned coordinate bench
of an oral termination being highly arbitrarily,
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unreasonable and reflecting a feudalistic approach which
does not get sanction from our Constitution is relied upon.
For the said reason also, the oral termination of the
petitioner requires interference.
15. In so far as G.R. dated 17.10.1988 is concerned, it
would appear that the said G.R. interalia envisages that an
employee upon completion of certain number of years,
more particularly, wherein the employee completes 240
days per year as per Section 25(B) of the Industrial
Disputes Act, is entitled to certain benefits. Relevant to the
facts of the present case would be the benefit that upon
completion of 10 years of service, where an employee has
completed more than 240 days in each year, then the
employee be entitled to grant of permanency and whereas
upon granted the said benefit, the employee would stand
at par with other employees who have been appointed by
way of direct selection through open recruitment. The said
observation being relied upon from the judgment of the
Hon'ble Apex Court in case of PWD workers (2).
16. The fact of the Department in which the petitioner is
working being amenable to G.R. dated 17.10.1988 and the
petitioner having worked for approximately 20 years,
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would definitely persuade this Court to direct the
respondents to undertake a scrutiny as regards the
entitlement of the petitioner for the benefit of G.R. dated
17.10.1988.
17. It requires to be observe here that the respondents
after the services of the petitioner are restored would be
required to undertake an exercise to scrutinize the
entitlement of the petitioner under G.R. dated 17.10.1988
and to consequently grant to the petitioner all the benefits
that the petitioner would be entitled under the said GR.
18. Having regard to the above discussions, observations
and conclusions, the following directions are passed:-
(i) The oral termination of the petitioner is declared bad
in law.
(ii) The petitioner shall be forthwith reinstated in service
within a period of 2 weeks from the date of receipt of this
order and whereas while the petitioner would not be
entitled to back wages, yet, the petitioner would be
entitled to the continuity of service as if the order of oral
termination had not been passed at all.
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(iii) Upon reinstating the present petitioner, the
respondent No.4 in consultation with respondent No.2 shall
undertaken an exercise for grant of benefit under G.R.
dated 17.10.1988. Such scrutiny shall be undertaken and
completed within a period of 8 weeks from the date of
reinstatement.
(iv) All the benefits as per the entitlement of the
petitioner shall be granted to the petitioner within a
period of 4 weeks thereafter.
19. In case, the petitioner is aggrieved by the decision
that would be taken by the respondent Nos.2 and 4 as
regards entitlement of the petitioner for grant of benefit
under G.R. dated 17.10.1988, in whole or in part, then
the petitioner would be at liberty to challenge the same
before appropriate forum in accordance with law.
20. Furthermore, in so far as the relief of wages for the
period in 2020 prior to oral termination, respondent No.2
and respondent No.4 shall examine the grievance of the
petitioner and if found reasonable, wages for the said
period shall also be paid to the petitioner. The said
exercise to be conducted alongwith the exercise for
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considering the case of the petitioner for grant of benefit
under the G.R. dated 17.10.1988.
21. With the above observations and directions, the
present petition stands disposed of as allowed. Direct
service is permitted.
(NIKHIL S. KARIEL,J)
Manoj Kumar Rai
