Gujarat High Court
Divisional Controller, S T Corporation vs Sukhdevsinh Temubha Rana on 10 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16982 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 16982 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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DIVISIONAL CONTROLLER, S T CORPORATION
Versus
SUKHDEVSINH TEMUBHA RANA
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Appearance:
MS SEJAL K MANDAVIA(436) for the Petitioner(s) No. 1
ULLASH N GOHIL(8357) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 10/01/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Gohil
waives service of Rule on behalf of respondent.
2. This petition is filed under article 226 and 227 of the
Constitution of India challenging the award passed by
the learned presiding officer Labour Court, Bhavnagar in
reference (LCB) No.31/2012 dated 29.01.2022 whereby,
directions were issued to the petitioner, to reinstate the
respondent with continuity of service along with 10%
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back wages. The amount of Rs.2,000/- was awarded
towards the cost of litigation.
3. Facts needed to be discussed for disposal of the case is
that the petitioner-corporation has issued an
advertisement in the newspaper for filling up the post of
driver in the month of June, 1999. Pursuant to the
advertisement the respondent has applied and was
selected and was placed in the select list/waiting list at
serial no.273. It is alleged by the present petitioner that
while presenting himself on duty the leaving certificate
was produced wherein, the date of birth is mentioned as
01.03.1969. Appointment was given on ad-hoc basis vide
order dated 19.04.2001 at Palitana depot and
accordingly respondent has resumed the duty on the
post of driver vide base no.1772 from 18-19/4/2001. On
11.08.2004 the name of the respondent came to be
deleted from the waiting list/selection list on the ground
that the respondent has committed fraud with the
petitioner corporation by producing forged certificate
wherein, the year of the birth has been show as 1963.
The action of the petitioner corporation deleting the
name of the respondent from waiting list/selection list
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was challenged by raising the dispute before the learned
labour court no.2 Bhavnagar and same was registered as
reference (LCB) No.31 of 2012. The terms of the
reference appears to be with regard to the
reinstatement in the service to its original post and
learned labour court after assigning detailed reasons
has awarded the reference in favour of respondent by
holding the action of the petitioner-corporation illegal
and directing to reinstate the respondent with 10% back
wages which is subject matter of consideration before
this court.
4. Heard learned advocate Ms.Sejal Mandaviya for the
petitioner and learned advocate Mr.Ullash Gohil for the
respondent.
5. Learned advocate Ms.Mandaviya submits that the
respondent was appointed as badli kamdar and he
served for a period of five months only. Learned
advocate Ms.Mandaviya submits that as he was not a
temporary employee or a regular employee, no inquiry is
required with regard to the alteration of the birth
certificate which was alleged. Learned advocate
Ms.Mandaviya submits that despite the same, number of
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correspondences were addressed to the District Primary
Education Officer, Ahmedabad, however, it was informed
by the District Primary Education Officer on the basis of
the statement of the trustee that the school has been
closed since 1984-1985. Learned advocate
Ms.Mandaviya submits that the order passed by the
petitioner-corporation dated 18.11.2004 was challenged
in the year 2012 after a delay of eight years and
therefore, also reference was required to be dismissed
on the ground of time barred dispute. Learned advocate
Ms.Mandaviya submits that in the license which was
issued by the RTO, the birth year is mentioned as 1963
and thereafter, certificate which was issued by the
Chachana Prathamik Shala, Taluka Chuda District
Surendranagar, his birth year is mentioned as 1963.
Learned advocate Ms.Mandaviya submits that
considering these two certificates also, the birth year
which is mentioned in the leaving certificate appears to
be incorrect and only to take the advantage of the
advertisement which was issued, the alteration was
made in the school leaving certificate. Learned advocate
Ms.Mandaviya submits that as the respondent has
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worked as a badli kamdar and the badli kamdar cannot
be said to be a permanent worker, therefore, also the
award of reinstatement with 10% back wages which is
passed by the learned labour court requires to be set
aside and petition is required to be allowed.
5.1. Learned advocate Ms.Mandaviya has relied on the
decision rendered by this Court in the case of Gujarat
State Road Corporation versus Gunvantbhai Ratilal
Patel rendered in SCA No.1412 of 2001 and
submitted that at the best, award can be passed to
continue the name of the respondent in the waiting list
of badli workers. It is submitted that badli workers work
as stopgap arrangement in absence of regular
employees, therefore, award passed granting 10% back
wages alongwith relief of reinstatement deserves to be
set aside. Learned advocate Ms.Mandaviya submits that
without considering the status of the respondent, the
award is passed and therefore, the petition be allowed
and impugned order be set aside.
6. As against the same learned advocate Mr.Gohil
appearing for the respondent submits that the service of
the respondent was not terminated simply, the name of
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the respondent was removed from the waiting list on
alleged ground of alteration in the birth certificate. If
any misconduct is alleged by the petitioner-corporation
then petitioner ought to have initiated an elaborate
inquiry. In absence of any evidence adduced in support
of the charge and in absence of opportunity of hearing
the order passed by the petitioner-corporation deleting
the name from the waiting list/selection list would
amount to violation of principle of natural justice.
Learned advocate Mr.Gohil submits that misconduct
which was alleged without proving the same would have
a stigma effect for his lifetime and the same would affect
in getting the services with the other establishments. In
that scenario, learned labour court has rightly awarded
the reference in favour of the present respondent.
Learned advocate Mr.Gohil submits that reliance which
was placed on the license issued by the RTO wherein,
the birth year of 1963 is mentioned is subsequently
corrected, however, without giving any opportunity to
lead and adduce evidence in the defence of the
respondent, straightaway the order was passed deleting
the name of the present respondent from the waiting
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list/selection list.
6.1. Learned advocate Mr.Gohil submits that the last
school leaving certificate of the present respondent
which was issued by the Sadhana High School shows the
date of birth as 01.03.1969. Learned advocate Mr.Gohil
submits that infact in the certificate issued by the
Chachana Primary School mentioning the date of birth
as 01.03.1966 is incorrect and same was not proved by
the petitioner. Learned advocate Mr.Gohil submits that
the fresh license which was issued after the correction
of the birth certificate was produced before the learned
labour court alongwith the Aadhar Card and the PAN
Card wherein, the date of birth is mentioned as
01.03.1969. Learned advocate Mr.Gohil submits that the
leaving certificate on which the reliance was placed
stating that the birth year is interpolated was sent for
verification. However, as the school was already closed,
no opinion was given with regard to the alteration of the
birth year. Learned advocate Mr.Gohil submits that
multiple evidence was produced before the learned
labour court and therefore, learned labour court has
rightly held that without disciplinary proceedings the
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conclusion arrived by the petitioner-corporation that the
petitioner has altered the birth year in the certificate is
bad in law.
6.2. Learned advocate Mr.Gohil has relied on the decision
rendered by this court in the case of Gujarat State
Road Transport Corporation versus Chandulal
Rasadiya reported in 1993 (1) GLR 442 and
submitted that even the badli worker is also entitled for
the departmental inquiry in the event of any misconduct
alleged and in absence of the same the order passed by
the petitioner-corporation is illegal. Learned advocate
Mr.Gohil submits that learned labour court after
considering the evidence in detail has awarded the
reference in favour of the respondent and therefore, no
interference is required and petition deserves to be
dismissed. Learned advocate Mr.Gohil submits that in
the event if the service of the respondent was not
terminated, then he could have got the benefit of the
settlement which was referred by the Division Bench in
the order passed in Civil Application No.89 of 1990
where the badli workers who completed one year of
service were appointed as daily rated workers and on
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completion of 240 days of the daily rated workers,
corporation has appointed them on the time scale if
there is a vacancy after taking into consideration his
service and conduct.
6.3. Learned advocate Mr.Gohil submits that due to the
illegal termination or deletion of the name of the present
respondent from the waiting list/selection list he was
deprived from the above benefits and therefore, also the
award passed by the learned labour court is just and
proper and no interference is required.
7. Having considered the arguments advanced by the
learned advocate for the respective parties and on
perusing the records it emerges that pursuant to an
advertisement issued by the petitioner-corporation in
the month of June, 1999, petitioner was appointed as a
badli worker on 17.04.2001 and was ordered to resume
the duty at Palitana Center on the post of Driver. At the
time of resuming the duty, respondent has submitted the
school leaving certificate, driving license, medical fitness
certificate etc. and on verification of the above
documents, the appointment of the respondent was
made. It was alleged by the petitioner-corporation that
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the leaving certificate which was produced, the birth
year is altered and instead of 1963, the birth year is
stated as 1969. The said certificate was sent for the
verification with the concerned school, however, it was
informed by the Trustee that the school had already
been closed in the year 1984-1985. This was not the only
document with the petitioner-corporation, the petitioner-
corporation thereafter, has examined the driving license,
however, in the driving license which was old, there too
the birth year is wrongly mentioned i.e. of 1963. Another
document which was produced by the respondent below
Exh.20 i.e. of school leaving certificate issued by the
Sadhana High School, Zanzarka wherein, the birth date
is mentioned as 01.03.1969. So far as the incorrect date
of birth in the license, the petitioner stated that as it was
old license, there was some mistake in mentioning the
date of birth, however, the same was rectified and fresh
license was also produced which was exhibited at
Exh.37. However, petitioner-corporation came to the
conclusion that there is an alteration in the leaving
certificate and therefore, by alleging the fraud the name
of the respondent was deleted from the waiting
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list/selection list. It is undisputed fact that before
passing of the order, deleting the name of the present
respondent, no inquiry was initiated, neither the
explanation was called from the respondent regarding
the charge of forgery. By deleting the name from the
waiting list/selection list chances for the appointment in
the terms of selection has been forfeited. In that event,
the opportunity of explanation is required to be given as
it would affect his right of future employment. It is true
that the service of the badli worker could be put to an
end to like a service of the probationer, however, when
the service were to be put an end to by alleging any
misconduct, the opportunity to explain the misconduct
as alleged is required to be given. Corporation may not
hold a full fledged inquiry, however, principle of natural
justice is certainly required to be followed by giving him
a chance to explain the misconduct as alleged. If one
would peruse the judgment which was relied by the
learned advocate for the petitioner rendered in SCA
No.1412 of 2001, then it comes on the record that, that
was not the case if any misconduct and any stigmatized
termination, therefore, in that event this Court has held
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that no reinstatement award can be passed for the
employees who are appointed as badli worker. The
contention with regard to the delay caused in raising the
dispute before the learned court is concerned, it
emerges from the record that the suit came to be filed
before the learned civil court and on withdrawing the
same, immediately the dispute was raised before the
learned reference court, therefore the said contention is
unfounded.
8. As per the submission made by the learned advocates,
the respondent has worked from 19.01.2001 to
31.10.2001 in the place of the employee who was not
available. The reliance which was placed by the learned
advocate for the respondent on the judgment rendered
in Civil Application No.89 of 1990 wherein, it is held that
the principle of natural justice is required to be followed
even in removing the name from the waiting list on the
alleged ground of misconduct. This Court is of the view
that as due to said alleged misconduct, the respondent
would loose the chance of getting the service in future
with the corporation by not holding any inquiry and
passing this order of deleting the name of the
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respondent from the waiting list, petitioner corporation
committed an error.
9. In view of the same, this Court did not find any infirmity
in the impugned award passed by the learned labour
court by directing to reinstate to his original post.
However, by directing the same learned labour court has
awarded 10% back wages. This Court is of the view that
as the service of the respondent was taken as a badli
worker and in absence of the regular employee, no back
wages can be awarded to the respondent, hence the
impugned award is modified to the above extent and the
petitioner is directed to reinstate the respondent to his
original post without any back wages.
10. Considering the above, this petition is partly allowed to
the above extent.
11. Rule is made absolute.
ORDER IN CIVIL APPLICATION NO. 1 of 2023
In view of the order passed in Special Civil Application
No. 16982 of 2022, the application is also disposed of.
(M. K. THAKKER,J)
NIVYA A. NAIR
