Gujarat High Court
Mukundbhai Mangaldas Shrimali vs State Of Gujarat on 30 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11028/2001 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11028 of 2001
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MUKUNDBHAI MANGALDAS SHRIMALI....Petitioner(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR PH PATHAK, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 30/06/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, a daily wager has prayed for the following reliefs :
"(A) This Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order quashing and setting aside the impugned oral termination of the petitioner w.e.f. 01.10.2001 as illegal and further be pleased to direct the Respondent Authorities to regularise the service of the petitioner, for his having rendered more than 6 years of service and being a Scheduled Caste candidate.
(B) Pending hearing and final disposal of this application, this Honourable Court may be pleased to direct the respondent to continue the petitioner on the post of Peon, as if the impugned oral termination order is never passed and to pay the petitioner his salary and wages regularly, as the petitioner who is a Scheduled Caste person and possessing requisite qualification and having rendered 6 years of continuous service, can earn his livelihood.
(C) Be pleased to pass such other and further orders as this Page 1 of 16 HC-NIC Page 1 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER Hon'ble Court may deem fit.
(D) Be pleased to award exemplary costs to the petitioner recoverable from the respondent."
This writ-application was heard and allowed on 11th November 2011 by a learned Single Judge. The order reads as under :
"1. This Court has passed an order dismissing this petition on 8th July 2011. It was brought to the notice of this Court that two judgments delivered by the Apex Court, directly applicable to the facts of the present petition, though were pressed into service were not considered which were directly applied to the facts of the present case and therefore, it was urged that the earlier order passed by this Court requires reconsideration.
2. On having heard both the sides and on having considered the request made in this regard, the earlier order passed dated 7th July 2011 requires to be recalled.
3. Admittedly, the petitioner has worked as a Daily wager and has only worked in different departments from the year 1995 till the year 2001. In the affidavit in reply also the facts get culled out. Different officers had engaged the petitioner by giving break intermittently from the years 1995 to 1999 and from the year 2000 January, till the date of his termination. It has been emphatically pointed out by the learned advocate that in the pleadings, this aspect has been emphatically brought on record and the same has not been denied. On the contrary, in the affidavit-in-reply. there is no dispute with regard to petitioner having served the respondent continously for more than 240 days gets reflected.
4. Although, the Apex Court in the case of Secretary, State of Karnataka & Ors Vs Umadevi & Ors.,reported in 2006(4) SCC 1, has not endorsed to the employment without following the regular process of recruitment till the later judgment sought to be relied upon. Even while dealing with the case of the judgments in the case of Umadevi (supra) in the case of those employees who have completed 240 days prior to the date of termination and if such termination of service is done by the employer or by way of retrenchment without complying with the requirement of one month's notice, or paying in lieu thereof the compensation in terms of Section 25F (a) (b) of the Industrial Disputes Act, 1947, the same would render against Page 2 of 16 HC-NIC Page 2 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER the employer as nullity. It is also further mentioned that in the case of public employment although the ratio laid down in the case of Umadevi (supra) still holds the field and yet it is incumbent upon the employer to comply with the requirements of the provisions of the Industrial Disputes Act,1947. The Apex Court in the case of Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana), reported in [(2010)5 SCC 497) in para 25 has held as under :
"The judgment of the Constitution Bench in State of Karnataka V. Umadevi(3) and other decisions in which this Court considered the right of casual, daily wage, temporary and adhoc employees to be regularised/ continued in service or paid salary in the regular timescale, appears to have unduly influenced the High Court's approach in dealing with the appellant's challenge to the award of the Labour Court. In our view, none of those judgments has any bearing on the interpretation of Section 25-F of the Act and employer's obligation to comply with the conditions enumerated in that section."
5. The Court had extensively dealt with the term "retrenchment" defined under section 25(b) and Section 25F
(a)(b) of the Industrial Disputes Act to reach to a safe conclusion. Reference is also made of the judgment of Apex Court in the case of Devinder Singh V. Municipal Council, Sanaur reported JT 2011(5) SC 333 wherein it is observed that-
Section 25: 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 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.
The provisions contained in Section 25F(a) and (b) are mandatory and termination of the service of a workman, Page 3 of 16 HC-NIC Page 3 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/ illegal/inoperative."
6. It is not disputed that in the instant case, the petitioner had been engaged by different officers from the year 1995 till 2001. It is not in dispute that he had been given artificial breaks from 1995 to 1999. But, he has served the respondent for specific period for all these years. From January 2000 till 2001, when his services were terminated by an oral order, no break had been given, and that fact is also reflected in the affidavit-in- reply filed by the respondent. Thus, a part from the record as well as from the admission, as could be seen from the pleadings of the parties, that the person was in continuous service. The respondent had worked for 240 days' in the preceding year when his termination was orally directed. Admittedly, he was neither served with any notice nor paid any amount in lieu thereof, nor any retrenchment compensation. Rejoinder-affidavit also states that the Shri Kantilal Shah has been newly appointed in place of the present petitioner, after his services were terminated and also his juniors have been retained and with this action of the respondent, it is clear a violation of the provisions of Industrial Disputes Act. In light of this and in the light of the fact that the employer has not following the required recruitment procedure that would not take away the requirement stipulated in the provisions of the Industrial Disputes Act and as it is amply clear by the judgment of the Apex Court in the case of Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana) (supra),as the respondent has not followed this mandatory requirement and as other criteria, otherwise laid down are duly fulfilled by the petitioner, in the opinion of this Court, the order passed by the respondent terminating the service of the petitioner w.e.f 1st October 2001 from the post that he worked from 10th October 1995 and appointing other persons in his place, needs to be held contrary to the provisions of law and this action which is required to be in complete contravention of the laid down provisions, and therefore, this is a fit case for quashing and setting aside the order of the oral termination of the petitioner.
7. Resultantly, this petition is allowed. The order of termination dated 1st October 2001 is hereby set aside. The petitioner is directed to be reinstated in service with all consequential benefits. Rule is made absolute with no order as to costs."
The State of Gujarat preferred Letters Patent Appeal Page 4 of 16 HC-NIC Page 4 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER No.1400 of 2012. The appeal came to be allowed by order dated 21st April 2014. The order reads as under :
"1. The present appeal has been filed under Clause 15 of the Letters Patent by the appellant-original respondent against the judgment 11.11.2011 passed by the learned Single Judge of this Court in Special Civil Application No.11028 of 2001, whereby the learned Single Judge heard the matter and allowed the same though the writ petition was already dismissed on 8th July, 2011.
2. Ms. Thakor, learned AGP appearing for the appellant submitted that the learned Single Judge has committed an error in allowing the petition and recalling the order dated 8th July, 2011 without there being any application for recalling of the aforesaid order. She further submitted that after passing of the impugned order, the respondent-original had filed Miscellaneous Civil Application No.755 of 2012 for recalling and modifying the order dated 8th July, 2011, but the same was not entertained by the learned Single Judge.
3. Mr. Pathak, learned advocate for the respondent-original petitioner supported the impugned order passed by the learned Single Judge. He submitted that in view of the observations made by learned Single Judge more particularly in paragraph Nos. 1 and 2, this Court may not interfere with the impugned order passed by the learned Single Judge of this Court.
4. We have heard learned advocate appearing for both the sides and perused the material on record. As per the High Court Rules, any order cannot be recalled without there being any substantive application being Miscellaneous Civil Application on record. In the case on hand, the learned Single Judge has recalled the order dated 8th July, 2011 without there being any application for recalling of the aforesaid order. Therefore, we are of the opinion that the learned Single Judge has committed an error in recalling the order dated 8th July, 2011.
5. In that view of the matter, we are of the considered opinion that the present appeal deserves to be allowed and the same is accordingly allowed. The impugned order dated 11.11.2011 passed by the learned Single Judge in Special Civil Application No.11028 of 2001 is hereby quashed and set aside. However, keeping in mind the fact that Miscellaneous Civil Application No.755 of 2012 filed by the respondent-original petitioner is not entertained in view of the impugned order, we are of the Page 5 of 16 HC-NIC Page 5 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER opinion that the aforesaid Application is required to be allowed. Therefore, Miscellaneous Civil Application No.755 of 2012 filed by the respondent-original petitioner is hereby allowed.
6. Office is directed to place the main petition being Special Civil Application No.11028 of 2001 before the learned Single Judge on 5th May, 2014 for passing appropriate order after hearing the parties."
In view of the order passed by the Division Bench, this matter is once again placed before me.
The petitioner was working as a daily wager. He worked in different departments from the year 1995 till the year 2001. All of a sudden, one day he was orally terminated. It is his case that after his oral termination, one Kantilal Shah came to be appointed in his place. It is also his case that even juniors were retained. This action on the part of the authorities, according to the petitioner, is in violation of the provisions of the Industrial Disputes Act.
Mr.Goutam, the learned AGP appearing for the respondent has raised a preliminary objection as regards the maintainability of this writ-application. According to him, the remedy lies in approaching the Labour Court for reinstatement.
I am not impressed by the preliminary objection raised by the learned AGP as regards the alternative remedy. So far as this issue is concerned, I have dealt with it at length in the case of PWD Forest and Employees Union and another v. State of Gujarat and others (Special Civil Application No.17721 of 2015, decided on 15th March 2016).
"10. I may first deal with the preliminary objection as regards the maintainability of this petition on the ground of an Page 6 of 16 HC-NIC Page 6 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER alternative efficacious remedy.
11. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and cannot be curtailed by other provision of the Constitution of India or a Statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution of India. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertain a writ petition but is a rule of discretion to be exercised depending on the facts of each case. On this aspect, the following observations by the Constitution Bench of the Supreme Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani and another, reported in AIR 1961 SC 1506, which still holds the field, are quite apposite :
The passages in the judgment of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre- eminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.
12. In Harbanslal Sahnia and another v/s. Indian Oil Corporation Limited and others, reported in (2003)2 SCC 107, enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, the Supreme Court observed thus :
...that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in Page 7 of 16 HC-NIC Page 7 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies; (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
13. In Union of India v. T.R.Varma, reported in AIR 1957 SC 882, the Supreme Court held that it is well-settled that 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.
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 that falls for my consideration is whether the oral termination could be said to be legal and justified."
The learned counsel appearing for the petitioner submitted that the service of the petitioner could not have been terminated orally, and that too, without giving any opportunity of hearing. This issue has also been dealt with by me at length in the above referred decision.
"16. The respondents have not disputed that the services of the petitioner No.2 have been terminated without passing any order in writing or without giving any opportunity of hearing.
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 persons civil right or right to livelihood, they have to act clearly and in a reasonable manner. The termination of the services of the Page 8 of 16 HC-NIC Page 8 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER 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.
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.Page 9 of 16
HC-NIC Page 9 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER
(ii) The Government Resolution dated 17.10.1988 was promulgated and implemented in respect of the daily-wagers 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 State- respondent 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 Page 10 of 16 HC-NIC Page 10 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER 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 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 25-F 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 non-suiting 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 25-F is established beyond doubt, as the documents indicate that the subsequent action of Page 11 of 16 HC-NIC Page 11 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER 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 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;
"Para-17: Section 25-F 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.
Para-18: This Court has repeatedly held that the provisions contained in Sections 25-F(a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving 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 Page 12 of 16 HC-NIC Page 12 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER 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;
S.C.A. No.15670 of 2005 Para-11: 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.
Para-12: 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 Para-6: 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 Page 13 of 16 HC-NIC Page 13 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER 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. 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 employer- respondents to produce evidence to show that the employees were gainfully employed besides the passage of time, would indicate that the employees-petitioners 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 Page 14 of 16 HC-NIC Page 14 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER 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 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."
I have also considered the decision of the Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi and others, (2006)4 SCC 1, Anoop Sharma v. Executive Engineer, Public Health Division No.1, Panipat (Haryana), (2010)5 SCC 497, and Devinder Singh v. Municipal Council, Sanaur, JT 2011(5) SC 333.
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 and Page 15 of 16 HC-NIC Page 15 of 16 Created On Sun Jul 03 05:03:09 IST 2016 C/SCA/11028/2001 ORDER continuing him in service. The petitioner shall be reinstated forthwith with continuity in service. The reinstatement shall be made within a period of four weeks from the date of receipt of the order. The backwages as prayed for by the learned counsel appearing for the petitioner is refused.
Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 16 of 16 HC-NIC Page 16 of 16 Created On Sun Jul 03 05:03:09 IST 2016