Gujarat High Court
Sambhubhai Sardarsing Rathod vs Sardar Sarovar Narmada Nigam Ltd on 7 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/3017/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3017 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
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SAMBHUBHAI SARDARSING RATHOD....Petitioner(s)
Versus
SARDAR SAROVAR NARMADA NIGAM LTD.....Respondent(s)
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Appearance:
NANAVATY ADVOCATES, ADVOCATE for the Petitioner(s) No. 1
MR DIPAK R DAVE, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/06/2016
ORAL JUDGMENT
1 By this writ application under Article 226 of the Constitution of Page 1 of 6 HC-NIC Page 1 of 6 Created On Thu Jun 09 01:09:48 IST 2016 C/SCA/3017/2004 JUDGMENT India, the petitioner, a former contractual employee of the Sardar Sarovar Narmada Nigam Limited, has prayed for the following reliefs:
10(i) issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent to issue appropriate orders giving posting to the petitioner to the post of Extension Officer.
(ii) issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents not to withhold petitioner salary or other emoluments without following due process of law namely B.C.S. Rules, 1959, G.C.S. Rules, 1971 consequently direct the respondent to release salary and other benefits available from 13.10.2003 forthwith.
(iii) By way of interim relief direct the respondent to issue appropriate orders giving posting to the petitioner to the post of Extension Officer and also to release his salary and other benefits available from 13.10.2003 forthwith.
(iv) Grant such other and further relief as may be deemed fit in the interest of justice."
2 It appears from the materials on record that the petitioner herein was appointed sometimes in the year 1991 purely on contractual basis. The periods of contract were being renewed from time to time. Ultimately, in the year 2003, the respondent decided not to extend the period further, and accordingly, passed an order relieving the petitioner from service.
3 An affidavitinreply has been filed on behalf of the respondent inter alia stating as under:
"4 It is submitted that the petition is required to be rejected on the ground that the petitioner has suppressed material facts and has not come forward with the true and correct facts before this Hon'ble Court. The petitioner has suppressed the fact that the petitioner is the employee of Sardar Sarovar Punarvashvat Agency (hereinafter referred to as the agency) and long back i.e. in the year 1992, the respondent ceases to be an employee of S.S.N.N.L. It is submitted that the petitioner has not his Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu Jun 09 01:09:48 IST 2016 C/SCA/3017/2004 JUDGMENT employer i.e. his agency has party respondent. Though petitioner was not serving with the S.S.N.N.L. and he was the employee of the agency without joining the agency as party, he has preferred this petition. The petition is, therefore, not maintainable in eye of law and the petitioner may kindly be rejected only on the ground that the petitioner has not made agency as partyrespondent, which is absolutely necessary party.
5 Though referring to the petition parawise, I state and submit that since the petitioner was not the employee of the S.S.N.N.L. is not in a position to answer the contents raised by the petitioner in this petition. It is submitted that however, the contentions which are raised against the S.S.N.N.L. are denied hereby in toto. It is submitted that the petitioner was appointed on purely temporary and adhoc basis for 1 year by the order of the S.S.N.N.L. dated 17.03.1991. It is submitted that by resolution of Narmada Water Resources, Water Supply and Kalpasar Department being resolution No.RHB1092141K dated 05.12.1992, the agency namely Sardar Sarovar Rehabilitation agency came to be created. It is submitted that the agency is independent autonomous body. The agency consist of several members, and the Chairman of the agency is Honourable Chief Minster. In the general body several members of Non Government Organisation, Officers of the Government etc have been included. A copy of resolution dated 05.12.1992 along with the constitution of agency is already placed on record at page No.17 of the petition. From the aforesaid fact, it is very clear that the agency is having independent autonomous structure and looking to the resolution dated 05.12.1992 since the petitioner employee had become employee of the agency. It is submitted that even looking to the annexures produced by the petitioner, the last order of contract which has been produced by the petitioner dated 04.04.2002, and the petitioner appointment was not existed upto 31.03.2004. It is submitted that the said contract is between the agency and the petitioner, and the S.S.N.N.L. has nothing to do with the appointment of the petitioner. It is submitted that thus long back petitioner ceases to be the employee of S.S.N.N.L. and now, he cannot raise any claim against the S.S.N.N.L. It is submitted that in view of the fact that S.S.N.N.L. is neither the employer of the petitioner nor there is any term of contract existed between the petitioner and the S.S.N.N.L. No relief is claimed by the petitioner is required to be granted against the S.S.N.N.L. In view of this fact, rule issued against the S.S.N.N.L. may kindly be discharged with costs."
4 Mr. Buch, the learned counsel appearing for the petitioner submitted that his client was appointed by the Sardar Sarovar Narmada Nigam Limited, whereas the impugned order came to be passed by the Page 3 of 6 HC-NIC Page 3 of 6 Created On Thu Jun 09 01:09:48 IST 2016 C/SCA/3017/2004 JUDGMENT Sardar Sarovar Punarvashvat Agency, Vadodara. He further submitted that his client continued in service from 1991 to 2003, and therefore, the respondent ought to have continued the petitioner in service.
5 I am not impressed by any of the submissions canvassed on behalf of the petitioner. It may be true that the initial appointment may be by the Sardar Sarovar Narmada Nigam Limited. It has been further pointed out that later on, one of the agencies of the Nigam passed an order of extension of contractual period, and thereafter, the final order was passed relieving the petitioner from service. This submission would hardly stand to any ground.
6 The position of law is well settled. I may quote the observations made by the Supreme Court in the case of Gridco Limited and another v. Sadananda Doloi and others [AIR 2012 SC 729]:
"23. We may also refer to the decision of this court in Satish Chandra Anand v. Union of India (AIR 1953 SC 250), where the petitioner, an employee of the Directorate General of Resettlement and Employment, was removed from contractual employment after being served a notice of termination. The contract of service in that case was initially for a period of five years which was later extended. A fiveJudge Bench hearing the matter, dismissed the petition, challenging the termination primarily on the ground that the petitioner could not prove a breach of a fundamental right since no right accrued to him as the whole matter rested in contract and termination of the contract did not amount to dismissal or removal from service nor was it a reduction in rank. The Court found it to be an ordinary case of a contract being terminated by notice under one of its clauses. The Court observed :
"10. There was no compulsion on the Petitioner to enter into the contract he did. He was as free under the law as any other person to accept or reject the offer which was made to him . Having accepted, he still had open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract, which has been denied to him, assuming there are any, and to pursue in the ordinary Courts of the land, such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim?
Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu Jun 09 01:09:48 IST 2016 C/SCA/3017/2004 JUDGMENT 11. ...
The Petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance when analysed, not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them , even as the State is bound."
24. In Parshotam Lal Dhingra v. Union of India (AIR 1958 SC 36), this court followed the view taken in Satish Chandra's case (supra). Any reference to the case law on the subject would remain incomplete unless we also refer to the decision of the Constitution Bench of this court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. (1991) Supp (1) SCC 600 : (AIR 1991 SC 101), where this Court was dealing with the constitutional validity of Regulation 9(b) that authorized termination on account of reduction in the establishment or in circumstances other than those mentioned in clause (a) to Regulation 9(b) by service of one month's notice or pay in lieu thereof. Sawant, J. in his concurring opinion held that the provision contained the much hated rules of hire and fire reminiscent of the days of laissez faire and unrestrained freedom of contract and that any such rule would have no place in service conditions.
25. To the same effect was an earlier decision of this Court in Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. (1986) 3 SCC 156 : (AIR 1986 SC 1571), where the Court had refused to enforce an unfair and unreasonable contract or an unfair and unreasonable clause in a contract entered into between parties who did not have equal bargaining power.
26. A conspectus of the pronouncements of this court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a Page 5 of 6 HC-NIC Page 5 of 6 Created On Thu Jun 09 01:09:48 IST 2016 C/SCA/3017/2004 JUDGMENT writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the armchair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge."
7 In view of the above, this writ application fails and is hereby rejected. Rule stands discharged.
(J.B.PARDIWALA, J.) chandresh Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu Jun 09 01:09:48 IST 2016