Pwd And Forest Employees Union vs State Of Gujarat on 23 March, 2022

[Cites 13, Cited by 1]

Gujarat High Court

Pwd And Forest Employees Union vs State Of Gujarat on 23 March, 2022

Bench: Biren Vaishnav

     C/SCA/2888/2020                               CAV JUDGMENT DATED: 23/03/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2888 of 2020
                                   With
           CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2021
                                   With
                R/SPECIAL CIVIL APPLICATION NO. 2889 of 2020
                                   With
                R/SPECIAL CIVIL APPLICATION NO. 2891 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================

1       Whether Reporters of Local Papers may be allowed
        to see the judgment ?

2       To be referred to the Reporter or not ?

3       Whether their Lordships wish to see the fair copy
        of the judgment ?

4       Whether this case involves a substantial question
        of law as to the interpretation of the Constitution
        of India or any order made thereunder ?

==========================================================
                       PWD AND FOREST EMPLOYEES UNION
                                    Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MS ADITI S RAOL AND
MS SHIKHA PANCHAL for the Petitioner(s) No. 1,2
MR MEET THAKKAR, ASST GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5,6,7
==========================================================
     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 23/03/2022

                               CAV JUDGMENT

1. Rule returnable forthwith. Mr. Meet Thakkar, learned AGP waives service of notice of rule on behalf of respondent State.

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2. All these petitions are filed by the PWD and Forest Employees' Union being the petitioner no. 1 in all these petitions. In Special Civil Application No. 2888 of 2020, petitioner no. 2 is the concerned employee/daily wager. In Special Civil Application No. 2889 of 2020, petitioners no. 2 and 3 are concerned employees/daily wagers. In Special Civil Application No. 2891 of 2020, petitioners no. 2 to 5 are concerned employees/daily wagers.

3. The prayer in the petitions is common which is to direct the respondents to grant the benefits of resolution dated 17.10.1988 in terms of the Apex Court judgement in the State of Gujarat vs. PWD and Forest Employees' Union and Others [2019 (3) SCALE 642] and further to quash and set aside the impugned letter dated 25.06.2019. By the impugned letter dated 25.06.2019, the employees petitioners who were since terminated have been informed by the concerned Range Forest Officer that they were engaged as seasonal workers with effect from 01.04.2019. The seasonal work is over and therefore with effect from 15.06.2019, their services were no longer required. The letter further indicates that these petitioners do not complete 240 days in any year of service and based on future records, if there is any evidence found with regard to the work, then they would be called for re-engagement. The letter was given with the details of their days of engagement with an indication that as and when there is need for re-engaging the petitioners for seasonal work they shall be given priority. The petitioners have also prayed that the oral termination on 17.03.2015 with effect from 15.03.2015 also be quashed and set aside. The petitioners be reinstated with all consequential benefits and be granted the benefits of the resolution dated 17.10.1988.

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4. Facts in brief would indicate that the petitioners were appointed as Vansanrakshaks (Forest Protector). In the year 2015, their services were terminated. They had put in five years of service on daily wage basis and therefore were entitled to the benefits of the resolution dated 17.10.1988.

4.1 Special Civil Application No. 10818 of 2014 was filed by the petitioners praying that the benefits flowing from the Government Resolution dated 17.10.1988 be granted to them. In the petition, the petitioner no. 1 was the Union, petitioners no. 2 to 23 were daily wage workers working in the Forest Department who had put in more than 5 years of continuous and uninterrupted service in the forest department as daily wagers. Relying on the decision in the case of PWD and Forest Employees' Union (supra), they prayed for the benefits of the resolution dated 17.10.1988. The court by an oral judgement dated 26.08.2014 directed that the respondent shall examine the case of the petitioners individually and if found eligible shall extend the benefits of the Government Resolution dated 17.10.1988 as per the directions of the Apex Court. The court further directed that the needful exercise be done within a period of four months from the date of receipt of the copy of the order.

4.2 It appears that rather than taking a decision on the entitlement of the petitioners for the benefits of the resolution dated 17.10.1988, the petitioners were orally terminated with effect from 15.03.2015. Accordingly, the Employees' union on 17.03.2015 addressed a letter to the competent authority that they had received instructions that with effect from 17.03.2015 oral orders of termination were issued and this was in breach of the directions given by the Court in the respective Special Civil Applications and its order dated 26.08.2015.

4.3 The petitioners then approached this court by filing Special Civil Page 3 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 Applications No. 16993 of 2015 and allied petitions with a prayer to quash and set aside the orders of oral termination dated 15.03.2015 and 04.09.2015. A further direction was prayed for on similar lines as in the present petition to direct the respondents to reinstate them with continuity of service and extend the benefits of resolution dated 17.10.1988 in accordance with the decision of the Apex Court in the case of PWD and Forest Employees' Union (supra). The court disposed of the petitions holding that since the petitioners were not given the reasons for rejection of the claim and so also with regard to their termination, the concerned authorities shall take a decision keeping in view the directions of the Apex Court in PWD and Forest Employees' Union (supra). The court gave a direction that the reasons shall be given within four weeks from the date of receipt of the copy of the order and shall be communicated within a week thereafter. Reminders were sent by the petitioners on 15.11.2015 for seeking reasons for not being given the benefits of resolution dated 17.10.1988. It appears that since no orders were passed in compliance of directions of 16.10.2015 order, the petitioners moved respective Misc. Civil Applications under the Contempt of Courts Act. Those applications were disposed of by order dated 24.04.2019 with certain directions. Based on these directions, the impugned communication dated 25.06.2019 was issued.

5. Mr. Shalin Mehta, learned Senior Advocate appearing with Ms. Shikha Panchal, learned advocate for the petitioners would extensively read the resolution dated 17.10.1988 and submit that the respondents are under a misconception that the concept of regularization would only trigger in on completion of five or ten years of service. Reading clause 1 of the resolution of 17.10.1988, he would submit that there is a categorical provision that on and from 01.10.1988, on completion of five years of service, a daily wager engaged so will be entitled to the minimum wage and the benefits of counting holidays and Sundays as Page 4 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 part of 240 days of service. He would refer to the history of the litigation in the case of the judgement in Special Leave Petition (C) No. 13619 - 13620 of 2012 i.e. the decision in the case of State of Gujarat vs. PWD and Forest Employees' Union [2013 (8) SCALE 579] and submit that in accordance with paras 25 and 26 of the judgement dated 09.07.2013 there was a specific direction to grant the benefits of the scheme as contained in the Government Resolution dated 17.10.1988 to all daily wage workers in the Forest and Environment Department.

5.1 Mr. Mehta, learned Senior Advocate would submit that it is not in dispute that each of the petitioners had worked for 240 days in each year of service and therefore their termination was bad. He would submit that when the petitioners approached this court by filing Special Civil Application No. 10818 of 2014, a specific direction was issued based on the observations of the Apex Court in the case of PWD and Forest Employees' Union (supra) that their case be considered for granting the benefits of the resolution dated 17.10.1988. Rather than complying with these orders and granting the benefits, the services of the petitioners were orally terminated by oral communication of 17.03.2015 which was contrary to the provisions of the Industrial Disputes Act, particularly Section 25F and the court should therefore step in and direct reinstatement. He submitted that no reasons were assigned except oral communication of terminating their services. When the petitioners approached this court by filing Special Civil Application No. 16993 of 2015 and allied petitions, a specific contention was raised that even if they wanted to take legal recourse to the termination and denial of the benefits of resolution dated 17.10.1988, in absence of any reasons given by the respondent authority, they were handicapped to take such legal recourse. Mr. Mehta submitted that it was as a result of this that the court directed that let reasons be given by the respondent authorities in case of rejection of claims of the petitioners. The reasons were to be given Page 5 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 within four weeks from the date of receipt of the order and communicated within one week thereafter.

5.2 With respect to termination Mr. Mehta would submit that the court specifically observed that in respect of the termination being without following due process, it was open for the petitioners to raise such contentions before the authorities keeping in view the principles of natural justice. Mr. Mehta would therefore submit that admittedly having found that the termination of services of the petitioner being in violation of the principles of natural justice, the petitioners ought to be reinstated in service.

5.3 As far as the alternative relief of being granted the benefits of resolution dated 17.10.1988, Mr. Mehta would submit that since that would require examination of evidence with regard to each employee daily wager completing 240 days, the petitioners can be relegated to an appropriate remedy before the Labour Court with regard to computation of period of 240 days for granting the benefits of resolution dated 17.10.1988. He would therefore submit that once the termination was bad as being in violation of law, reinstatement should follow as a matter of course. Once reinstated, the petitioners would pursue their remedy for being granted the benefits of the resolution dated 17.10.1988 before the Labour Court by leading appropriate evidence.

5.4 With regard to the jurisdiction of this court under Article 226 of the Constitution of India in dealing with matters of oral termination notwithstanding the fact that a remedy under the Industrial Disputes Act could be exhausted, Mr. Mehta would rely on the decision in the case of Jayantibhai Khevjibhai Chaudhary and Others vs. State of Gujarat in Special Civil Application No. 8298 of 2000 where the court, dealing with the contention of the jurisdiction to decide under Article 226 of the Page 6 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 Constitution of India with regard to setting aside oral termination in context of a daily wage employee who was praying of benefits of resolution dated 17.10.1988, negated the opposition of the State for relegating the petitioner with regard to oral termination before the Labour Court and held that a petition under Article 226 was maintainable. Paras 12 to 19 thereof read as under:

"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 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 Page 7 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 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 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;

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C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 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 presume to have been appointed a month or year after the date of the resolution, the same would be of no Page 9 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 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 Page 10 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 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 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 Page 11 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 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 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."

Mr. Mehta would submit that the decision of this court in Special Civil Application No. 17721 of 2015 dated 15.03.2016 also categorically dealing with contention of oral termination of a daily wager who wanted the benefits of resolution dated 17.10.1988 held as under:

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C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 "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 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.

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C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 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 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 Page 14 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 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 Page 15 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 adjudication so far as all the aspects are concerned, at this stage, in this petition.

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 Page 16 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 in lieu thereof and retrenchment compensation is null and void/illegal/inoperative.

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;

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 Page 17 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 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.

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 respondents have to grant benefits of 17.10.1988 resolution to the Page 18 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 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 Page 19 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 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.

18. In view of the aforesaid facts and circumstances, the petition is partly allowed. Rule is made absolute to the aforesaid extent.

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 Page 20 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 consequential benefits without any back wages. The petitioner shall be reinstated forthwith with continuity in service. The benefits flowing from the Government th Resolution dated 17 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 th Resolution dated 17 October, 1988 within a period of two weeks therefrom. Direct service is permitted.

5.5 Mr. Mehta would submit that, that decision of the co-ordinate bench of this court was confirmed in Letters Patent Appeal No. 899 of 2016 by an order dated 23.11.2016 and therefore the petitioners of the present petition deserve to be reinstated in service and for the remaining prayer of being extended the benefits of resolution dated 17.10.1988, they could be relegated to the Labour Court.

6. Mr. Meet Thakkar, learned AGP appearing for the State would submit that the petition cannot be dealt with in part inasmuch as allowed in terms of setting aside the oral termination of March 2015 and for the part relief of resolution dated 17.10.1988 be relegated to the Labour Court. He would submit that once the petitioners' oral termination took place in the year 2015, the only remedy available to the petitioners was to approach the Labour Court even for setting aside the orders of oral termination. He would rely on the details of the number of days that the petitioners have worked for five years in the past and submit that in no case did the petitioners complete 240 days in each year of service and therefore they were not entitled to the benefits of the resolution dated 17.10.1988. This was the position of law even in the case of PWD and Forest Employees' Union (supra).

6.1 With regard to the proceedings under the Contempt of Courts Act, he would submit that the petitioners were time and again communicated Page 21 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 that their work was seasonal in nature and that they had been so communicated that since the work being seasonal their services were no longer required and therefore entailed termination.

7. In the background of these facts, the court needs to consider whether the petition could be held maintainable in part insofar as oral termination is concerned and with regard to the benefits of the resolution dated 17.10.1988, the petitioners be relegated to the Labour Court. It is in this background that the facts may be appreciated.

7.1 It is the case of the petitioners they were engaged as daily wagers with the forest department as Vanrakshaks (Forest Protectors). For being extended the benefits of the Government Resolution dated 17.10.1988, in accordance with the decision of the Apex court in PWD and Forest Employees' Union (supra), the petitioners had approached this court by filing various petitions, one of them being Special Civil Application No. 10818 of 2014. That petition was disposed of with a direction which reads as under:

"9. In view of the above, the following order is passed:

The respondents shall examine the cases of petitioners Nos.2 to 23, individually and, if found eligible, shall extend the benefits of the Government Resolution dated 17.10.1988, to them, as per the directions of the Supreme Court. The needful be done within a period of four months from the date of the receipt of a copy of this order."

7.2 The direction was given by the court to consider and decide the cases of the petitioners therein within four months. From a communication dated 17.03.2015 addressed by the Union to the concerned Forest Officer, which is on record, what is indicated is that the Page 22 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 services of the petitioners were orally terminated with effect from 17.03.2015. The case of the petitioners was that this was not in compliance of the directions of the court as contemplated by the order dated 26.08.2014.

7.3 The petitioners therefore approached this court once again by filing Special Civil Application No. 16993 of 2015. In reading the prayers of the petitions so filed from the papers which were called from the Registry, what is evident is that in those petitions namely Special Civil Application No. 16993 of 2015, the Court in context of the apprehension of the learned counsels for the petitioners, on their handicap to take a legal course, in absence of any decision in the communications as to why the petitioners were terminated or not extended the benefits of the resolution dated 17.10.1988, observed as under:

"5. Government Resolution dated 17.10.1988 also deals with the situation in which the workmen who have claimed to have worked for more than five years. Let the reasons be given by the respondent authority in case of rejection of the claim of the petitioners. The same shall be given within four weeks from the date of receipt of the copy of this order outcome shall be communicated within one week thereafter.

6. In respect of the termination being without following the due process, such contention may be raised before the concerned authorities which shall also keep in view the principles of natural justice alongwith directions issued by the Apex Court while dealing such a plea."

7.4 The court directed that in respect of termination being without following due process the same may be raised before the concerned authorities. The petitioners pursued their remedy of raising this contention before the authorities by representations.

8. What is evident from the order of 16.10.2015 passed by this court Page 23 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 in Special Civil Application No. 16993 of 2015 and allied matters is that a reference is made to a communication dated 24.07.2015 passed by the Chief Conservator of Forest, which according to the petitioners, did not provide for reasons but merely stated that the petitioners are not entitled to the benefits of the Government Resolution. That communication is on record at page 67 of Special Civil Application No. 2889 of 2020. Perusal of the communication would indicate that what was communicated to the petitioners was that in accordance with the decision of the Apex Court and the resolution dated 15.09.2014, the petitioners were not entitled to the benefits of the Government Resolution dated 17.10.1988. The order of 16.10.2015 therefore has to be read in two parts; one being the aspect of denial of benefits of resolution dated 17.10.1988 which the order of 24.07.2015 reflected was that in view of the resolution dated 15.09.2014 the petitioners were not entitled to resolution dated 17.10.1988. With regard to the oral termination the petitioners were left to avail remedy before the concerned authorities.

8.1 In absence of compliance of the order dated 16.10.2015, the petitioners approached this court by filing petitions under Contempt of Courts Act, 1971 being Misc. Civil Application No. 233 of 2016 and allied applications. The papers were called for from the Registry during the course of hearing of which the learned counsels were made aware of. The prayer in the contempt petition was to frame charge for non- compliance of the order dated 16.10.2015. Initially, the Division Bench of this court had issued notice in the proceedings. Affidavits were filed by the State in those proceedings annexing relevant communications informing the petitioners of the reasons for they not being considered the resolution dated 17.10.1988. One of the communications addressed to the petitioners of the present petition would indicate that on 05.02.2016 the petitioners were informed that since the work on which they were engaged was seasonal in nature and piece rated in the nurseries etc. and Page 24 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 since the work is over, their services were no longer required. The communication further stated that in the district, work of a temporary nature for NREGA and other schemes was in progress and it was open for the petitioners to approach the authorities for being engaged in such projects for which the petitioners could get in touch with the authorities namely the Deputy Conservator of Forests, Vyara. With the other additional affidavits filed in the Contempt Proceedings in case of all the petitioners, tabulated statements have been produced which on perusal would indicate that none of the petitioners of the present petitions had completed 240 days in the five years preceding their appointment on which ground they were denied the benefits of the resolution dated 17.10.1988. That tabulated statements are also produced with the affidavit-in-reply in the present petitions.

9. Perusal of the communication dated 05.02.2016, when read in the context of oral termination in the year 2015, in conjunction with the impugned communication of 25.06.2019 which is a subject matter of challenge in these petitions, and when co-related to the tables produced in the affidavit in the contempt proceedings two significant factual details come forth namely that it is the case of the petitioners that they had completed 240 days in each year of service and therefore the termination was in violation of the provides of Section 25F of the Industrial Disputes Act; that it was the case of the respondents as is evident from the affidavit filed in the present petition and also from the records of the Contempt proceedings together with the tables annexed therewith and communications of 05.02.2016 that the work which the petitioners were engaged in was temporary and seasonal in nature and once that work was over, there was no point in continuing their engagement. In the event the petitioners were willing to work in alternative schemes of NREGA etc., they could approach the Deputy Conservator of Forests. Unfortunately, these communications though were addressed to the petitioners do not Page 25 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022 C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022 form part of the petitions. This is no manner to suggest that the petitioners are guilty of suppression. The only conclusion that therefore can be drawn to answer the submission of learned Senior Advocate Mr. Mehta that the oral termination of 2015 is bad on the ground of it violating the provisions of Section 25F and therefore this court in view of the decisions referred to hereinabove should entertain these petitions as the terminations were void ab-initio and in violation of principles of natural justice is a claim which is not acceptable. In the year 2015, according to the petitioners, which is even evident from their letter of 17.03.2015, the case of the petitioners was that they have faced oral termination. For want of valid reasons on termination, it is their case that they pursued various remedies before this court, essentially by filing a Special Civil Application, in which this court on 16.10.2015 relegated the petitioners in context of their termination to the concerned authorities. The observations of the court in the order of 16.10.2015 by itself will not give a leverage to the petitioners to contend that it is open for them to approach this court directly in a petition under Article 226 of the Constitution of India.

10. From the records of the contempt proceedings and the affidavit therein where statements were annexed extensively suggesting that each of the present petitioners had not completed 240 days in each year of service, in fact some had completed less than even 100 days, the question of adjudicating the validity of termination becomes a disputed question of fact that therefore need not be and cannot be adjudicated in a petition under Article 226 of the Constitution of India. It is somewhat contradictory to submit that for the assessment of termination a petition be entertained and for extending the benefits of resolution dated 17.10.1988, the petitioners be relegated to the Labour Court since the dispute of assessment of working days is a matter of evidence. The argument itself is contradictory and self defeating.

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C/SCA/2888/2020 CAV JUDGMENT DATED: 23/03/2022

11. The petitioners therefore cannot be expected to contend that the court set aside the order of oral termination in the present petitions and relegate them for the benefits of resolution dated 17.10.1988 to the Labour Court. Both these aspects are interwoven and as is evident from the perusal of the records a matter of disputed question of facts and can only be taken up before the appropriate Labour Court and/or Industrial Tribunal as the case may be. For all these reasons, therefore, the petitions being Special Civil Applications No. 2899 and 2891 are dismissed. Rule is discharged.

12. As far as Special Civil Application No. 2888 of 2020 is concerned, a Civil Application is filed which indicates that the petitioner no. 2 has died on 22.01.2020. Obviously, therefore, since the relief of reinstatement and the benefits of the resolution dated 17.10.1988 will not be a cause of action that can survive and is personal to the petitioner no. 2, Special Civil Application No. 2888 of 2020 will stand abated. Orders accordingly. Rule is discharged. Civil Application is disposed of.

(BIREN VAISHNAV, J) DIVYA Page 27 of 27 Downloaded on : Sat Mar 26 22:29:57 IST 2022

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