Telangana High Court
M/S. Telangana State 108 Employees ... vs The State Of Telangana on 18 July, 2023
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
WRIT PETITION No.29486 OF 2018
Between:
M/s Telangana State 108 Employees Union
... Petitioner
And
The State of Telangana and others
... Respondents
JUDGMENT PRONOUNCED ON: 18.07.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
_________________
SUREPALLI NANDA, J
2
WP_29486_2018
SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.29486 OF 2018
% 18.07.2023
Between:
# M/s Telangana State 108 Employees Union
..... Petitioner
And
$ The State of Telangana and others
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : M/s Prabhakar Chikkudu
^ Counsel for Respondents 1 to 3 : G.P. for General Admn.
^ Counsel for respondent No.4: Mr A.Tulsi Raj Gokul
? Cases Referred:
1. AIR 1982 SC 149
2. 1984 (3) SCC 161
3. 2005 (8) SCC 1
4. 2005 (3) SCC 224
5. 1981 (1) SCC 72
6. 1998 (8) SCC 1
7. 1985 (3) SCC 545
8. 1985 (3) SCC 153
3
WP_29486_2018
SN,J
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.29486 OF 2018
ORDER:
Heard Sri Chikkudu Prabhakar, learned Counsel for the Petitioner, learned Government Pleader for General Administration appearing on behalf of Respondent Nos.1 to 3 and Sri A.Tulsi Raj Gokul, learned counsel for the 4th Respondent.
2. The Writ Petition is filed to issue a Writ of Mandamus declaring the action of the respondents in terminating the 1. Emergency Medical Technicians, 2. Pilot Drivers (Ambulance Drivers), 3. Emergency Response Officers through Whatsapp messages, dated 11.08.2018, 12.08.2018, 14.08.2018 and 15.08.2018 for demanding the Petitioners union to implement (8) hours work inspite of 12 hours work as illegal, arbitrary and unconstitutional and against to the provisions of the Bonded Labour System (Abolition) Act, 1976 (Act No.19 of 1976), the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and its Rules and consequently direct the 4th respondent to continue the services of the members of the Petitioners Union, who are working as 1. Emergency Medical 4 WP_29486_2018 SN,J Technicians, 2. Pilot Drivers (Ambulance Drivers), 3. Emergency Response Officers for the past one and half decade in the 4th respondent Organisation on contract basis.
3. The case of the Petitioner, in brief, as per the writ affidavit filed, is as follows:
a) Members in the petitioner's union are working in the 4th respondent organization on contract basis under the provisions of Contract Labour (Regulation and Abolition) Act, 1970 as 1. Emergency Medical Technicians, 2. Pilot Drivers (Ambulance Drivers), 3. Emergency Response Officersin the state of Telangana.
b) The members of the petitioner's union have been working in Emergency service as Para-Medical staff on contract basis in the 4th respondent organization, which is supported and funds are granted by respondent Nos.1 to 3 to those who were in emergency situations, in all over the State of Telangana. The impugned termination of the members of the petitioner's Union is highly arbitrary, discriminatory, non-
application of mind, and isunlawful.
c) The 4th respondent taking undue advantage of the employees, who belong to SC, ST, BC and downtrodden in the 5 WP_29486_2018 SN,J society had executed an agreement under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and its Rules as amended from time to time, to work 12 hours a day and are neither paying salary in accordance with the provisions of the Minimum Wages Act, 1948 nor fixed a time scale of the State Government Para Medical staff.
d) The members of the petitioner's Union have been working, 12 hours a day, for the past 1 ½ decades as bonded labour which is violative of the Article 23(1) of the Constitution of India and also Section 2(g) 4 and 5 of the Bonded Labour System (Abolition) Act, 1976, which has clearly stated that the Bonded Labour System has been abolished after the commencement of this Act.
e) The petitioner's Union had made many representations to respondent Nos.1 to 4, but they did not take any proper steps to avoid Bonded Labour System and to pay lawful salaries to them, due to which many employees died on various counts,due to this Bonded Labour System.
f) Further it is the case of the petitioner that after approaching the 1st respondent to take necessary steps to avoid Bonded Labour System and to provide job security, the 6 WP_29486_2018 SN,J 1st respondent had directed the 2nd and 3rd respondents to provide job security to the members of the petitioner's Union and to implement the G.O.Ms.No.14, dated 19.02.2016 through reference No.34/GEN-PR/2018, dated 24.03.2018, but the 2nd and 3rd respondents did not take any action on the directions of the 1st respondent even till today.
g) To avoid the Bonded Labour System, the petitioner's Union had made many representations to the respondent authorities that they will be able to work 8 hours, which is valid in the eye of law, but the 4th respondent by colluding with 2nd and 3rd respondents, without considering the representations of the petitioner and without issuing any notice, without following the principles of Natural Justice, ignored the same, which is a grave violation.
h) The 4th respondent had not been paying salaries to the members of the petitioner's Union for the past 45 days and had arbitrarily directed the petitioner's union, that if they will work 12 hours per day as Bonded Labour, only then they would be paid the salaries.The same brought to the notice of 2nd and 3rd respondents by the petitioner's Union, but the 2nd and 3rd respondent authorities didn't take any action on high 7 WP_29486_2018 SN,J arbitrary and discriminatory action of the 4th respondent, which is against to an Article 14 of the Constitution of India.
i) The 2nd and 3rd respondents, who are the principal employers should have more responsibility to protect the Fundamental Rights of the members of the Petitioner's Union, which is ensured under Article 23 of the Constitution of India, the same was upheld by the Apex Court in the case of BanduvaMukthi Morcha vs. Unionof India, which is reported in AIR 1992 SC 38.
i) The 4th respondent organization is having contracts with 16 State Governments for the past 1 ½ decade and its having more influence, by that influence exploiting the employees and also not implementing the statutory and mandatory provisions and also Judgments of an Apex Court in Labour Employment. Hence the writ petition.
4. Counter affidavit filed by the 4th respondent dated 24.09.2018, in particular, paras 4, 8, 14, and 20 read as under:
Para-4: It is submitted that the 4th Respondent is a non-profit organization established in the month of April, 2005. Later it was taken over by GVK group in the month of May, 2009 and 8 WP_29486_2018 SN,J renamed as GVK EMRI. The 4th Respondent is providing integrated emergency response services through toll free emergency number (108) and is also offering various training programs in Emergency Medicine to first responders, emergency medical technicians, paramedics and doctors in emergency skill building. The State Government has been providing Ambulances for providing the said facilities. It is also extending the financial benefits for operational expenditure which comprises of salaries to employees, fuel, repairs and maintenance, vehicle refurbishments, medical consumables, communications, administration expenses, marketing, travel expenses, training expenses, legal and statutory expenses, towards Ambulances which are used in operations. The Government has also been providing total autonomy and operational freedom to GVK EMRI as it is recognized as a State level Service Provider to provide emergency services across the State.
Para-8: It is submitted that this Hon'ble Court in W.P. No. 10504 of 2009 by its order dated 11.11.2009 held that the EMRI is a non-Government and non-profit organization registered under the Societies Registration Act and that the State Government except providing operational support does not have any overwhelming control over the working of the system. Therefore, it is 9 WP_29486_2018 SN,J neither a State nor an Agency of the State within the meaning of Article 12 of the Constitution of Indi and consequently, it is not open to the petitioner to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India; accordingly, dismissed the Writ Petition as not maintainable by granting leave and liberty to the Petitioner therein to work out appropriate remedy as available under law before the appropriate forum. The orders dt-11-11-2009 has attained finality as the same has not challenged before the Hon'ble Division Bench or before the Hon'ble Supreme Court. The said Judgment was also followed by Gujarat High Court in SCA No. 8973 of 2010 in respect of EMRI facilities being made available in that State. Thus, the present Writ Petition is not maintainable.
Para-14: It is submitted that the averments made in Para No. 8 that they have approached the 1st Respondent to take steps to avoid bonded labour system and to provide job security and to implement G.O. Ms. No. 14, dated 19-2-2016 is misconceived as the said GO is applicable to the contract and outsourcing services in certain Government departments. Since the 4th Respondent is not a Government department under the State Government, the application of G.O. Ms. NO. 14 does not arise. 10
WP_29486_2018 SN,J Para-20: It is submitted that the Writ Petition as filed by the petitioner is not maintainable as the aggrieved terminated employees have an alternative and efficacious remedy under the Industrial Disputes Act. Thus, the Writ Petition filed by the Trade Union is not maintainable and no relief can be granted to the Trade Union in the present Writ Petition.
5. Counter affidavit filed by the 4th respondent on 06.06.2019, in particular, para 5, reads as under:
I further submit that, by the date of disposal of the said WA, out of 947 terminated Employees about 524 employees of the petitioner union were appointed in compliance of the interim directions passed by this Hon'ble Court on 10-10-2018, since it was the specific direction of this Hon'ble Court that, if the vacancies are not already filed up and in the event of 4th respondent seeking to recruit persons from open market, first opportunity should be afforded to the persons who are terminated by imposing appropriate conditions. Further, even after the said recruitment drive held during the said period, as and when, terminated employees approached our Management with proper documents, many of such employees were reappointed, thus during November 2018 and March 2019, another 235 employees were reappointed, with altogether 760 terminated employees being reappointed 11 WP_29486_2018 SN,J till date, thus affording first opportunity to the terminated employees following the letter and spirit of the orders passed by this Hon'ble Court, as well as the orders passed by the Appellate Court in WA No.1478 of 2018 dated 26.11.2018. Curiously, the petitioner suppressed the factum of filing of Writ Appeal in the petition deliberately and filed the contempt petition on 29.11.2018, much after the writ appeal was dismissed on 26.11.2018, clearly demonstrating the unclean approach of the petitioner.
PERUSED THE RECORD
6. The 4th respondent's Head-HR addressed termination of services letter dated 12.08.2018 to the employee Ms.M.Jyothi and the same reads as under:
"You were appointed on the role of ERO for discharging 8 hours of duty in 'Emergency Response Centre' as mentioned in your appointment letter and you have acknowledged the terms and conditions of employment and have been rendering the services on 8 hours duty and receiving consideration in the form of salary every month.
You are well aware that, GVK EMRI is providing Emergency Ambulance Services to the people of Telangana State since 2005. The noble mission of GVK EMRI is to save human lives and you have been part of this organization and rendered services since long 12 WP_29486_2018 SN,J period and you are well aware of the consequences if emergency calls does not respond. The persons who are in distress position expect immediate help and GVK EMRI by providing ambulance service fulfill the need of distress persons.
You are participating in illegal strike and also instigating others to participate in illegal strike in order to support EMT/Pilot illegal strike which is already commenced on 11th August 2018, thereby affecting the noble mission of GVK-EMRI to save the lives. This is completely against the policies and procedures of GVK EMRI. The Act of obstructing delivery of Emergency Medicine to the needy public is quite deplorable and needs to be acted upon.
Therefore, you have violated material terms of appointment order and also service rules, regulations & procedure of GVK EMRI as mentioned in appointment order. Hence your service with GVK EMRI is hereby terminated with immediate effect.
Please acknowledge this letter and submit your ID and belongings of organization so that your full and final settlement will be processed as per terms of GVK EMRI Service rules."
DISCUSSION AND CONCLUSION
7. A bare perusal of the proceedings issued in August, 2008 to the members of the petitioner union individually on 13 WP_29486_2018 SN,J different dates by the 4th respondent herein clearly indicates that the members of petitioner union had been appointed as Emergency Response Officers for discharging (8) hours of duty in Emergency Response Centre and further that the employees acknowledged the said terms and conditions of the employment and had been rendering services and receiving consideration in the form of salary every month though the order impugned indicates that the employees rendered service on (8) hours duty. It is the specific grievance of the petitioner in the affidavit filed in support of the present writ petition that the employees were subjected to work for (12) hours a day in violation of Article 23 Clause (1) of the Constitution of India and also as per Section 2(g), 4 and 5 of the Bounded Labour System (Abolition) Act, 1976.
8. A bare perusal of the proceedings impugned in the present writ petition i.e. the termination of service, further indicates that the services of the members of the petitioners were dispensed with, without issuing any notice to the members of the petitioners on the ground that they were indulged in going on strike, disrupting the emergency services. Thus, back ground for termination is on account of 14 WP_29486_2018 SN,J protest lodged by by the employees against terms of employment. It is the specific contention of the 4th respondent that the action of the members of the petitioner union involving in strike affecting the noble mission of the 4th respondent to save the lives and the same was against the policies and procedures of the 4th respondent organisation.
9. This Court passed interim order dated 10.10.2018 in W.P.No.29486 of 2018 observing as under:
"This writ petition is filed praying to grant mandamus to declare the action of the respondents terminating various categories of employees by 4th respondent- GVKEMRI. When the writ petition is taken up for admission, learned senior counsel Sri G. Vidyasagar, appearing for 4 respondent raised preliminary objection on maintainability of the writ petition on two grounds. Firstly, 4th respondent is not an instrumentality of the State, therefore, not amenable to writ jurisdiction, more particularly with reference to conditions of employment and secondly, the petitioner is union and union cannot maintain a writ challenging the termination of individual employees.
With reference to first contention reliance was placed on the decision of the learned single Judge of this Court in W.P.No.10504 of 2009, The writ petition was filed 15 WP_29486_2018 SN,J against EMRI and the leamed single Judge held that writ is not maintainable.
Responding to the contentions on maintainability of the writ petition, learned counsel for petitioner Sri Prabhakar, by placing reliance on the judgment of the Division Bench of Madras High Court. where the 4th respondent is appellant, would submit that writ petition is maintainable. Madras High Court rejected the plea taken on behalf of the 4th respondent on maintainability of the writ petition. He has also placed reliance on the decision of the Supreme Court in Bandhua Mukti Morcha v. Union of India and others [(1984) 3 SCC 161] with reference to employment conditions wherein Supreme Court held that it is unconstitutional to subject an employee more than 8 hours per day. In support of his contentions that writ petition is maintainable by Union, he placed reliance on decision of the Division Bench of Bombay High Court in N.R.C. Employees Union and ors Vs The Government of Maharashtra (W.P.No.8505 of 2009 rendered on 28.11.2011).
With reference to first objection of learned senior counsel, it is seen from the decision of learned single Judge of this Court wherein it was observed that EMRI is a non-Government and non-profit service oriented organization registered under the Societies Registration Act. providing free emergency response service:
Government entered into public private partnership agreement for providing ambulance service for 16 WP_29486_2018 SN,J extending emergency services: EMRI has provided ambulances and role of the Government is only to the extent of providing financial support, therefore, not amenable to writ jurisdiction. Very same issue has come up for consideration before Madurai Bench of Madras High Court in W.A.(MD).No.380 of 2016, First respondent contended that he was made to do 12 hours daily duty, that his salary is not adequate and therefore submitted representation dated 12.6.2015 for reduction of working time and increase in salary and his representation was not acted upon. Leamed single Judge directed the appellant to consider the said representation and to pass appropriate orders in accordance with law. Writ Appeal was preferred contending that the writ petition is not maintainable against GVKEMRI. Reliance was placed on the decision of the learned single Judge of this Court in W.P.No.10504 of 2009 (referred to above), which was followed by the High Court of Gujarat.
The Division Bench of Madras High Court observed that appellant is running EMRI with the funds provided by the State Government and appellant is discharging public function. The Division Bench declined to follow the decision of the learned single Judge of this Court and held that the writ petition is maintainable.
In view of the subsequent decision of the Division Bench of Madras High Court holding that writ petition is 17 WP_29486_2018 SN,J maintainable against GVKEMRI, writ petition cannot be thrown out at the threshold.
Petitioner union challenges prescribing of work schedule of 12 hours per day to the employees as amounting to violating constitutional mandate, principle of law laid down by the Hon'ble Supreme Court in several decisions and also amounting to violating the provisions of The Bounded Labour System (Abolition) Act, 1976. Whether employees having accepted the terms of contract which stipulated 12 hours of work and also prescribed package of remuneration payable to such employees, is it open to the employees to contend that they should not be subjected to 12 hours of work schedule per day is a matter which requires consideration. Further, whether prescribing 12 hours of work schedule as mandatory to accept employment and the payment of remuneration and incorporating the condition of 12 hours of work schedule would amount to exploitation of labour and would be attracting the provisions of Act, 1976 are all matters which require consideration in the writ petition.
An objection on Union contesting the claims of individual employees was raised before the Division Bench of Bombay High Court in W.P.No.8505 of 2009 (referred to above). The Union contested the terms of settlement arrived at by the employer with some of the unions and employees. It was contended that said settlement is in breach of Section 12 of the Industrial 18 WP_29486_2018 SN,J Disputes Act and Rule 11 of the Industrial Dispute (Bombay) Rules. Objection on maintainability of writ petition was raised contending that remedy provided under the Industrial Disputes Act should be availed.
Following the decision of the Supreme Court in Oswal Agro Furane Ltd and another Vs Oswal Agro Furane Workers Union and Ors (2005 (3) SCC 224) Division Bench held that it is permissible for the Staff Union as well as individual workmen to maintain writ petition to challenge the settlement though signed before the Conciliation Officer.
It is no doubt true, as rightly contended by learned senior counsel Sri G.Vidyasagar against termination of service that individual workman has to work out remedies available in law and in writ petition under Article 226 of the Constitution of India. Union can not espouse the cause of termination of individual employee and may have to avail the mechanism created by the Industrial Disputes Act. However, the issue agitated in the writ petition is with reference to the working conditions prescribing 12 hours of work as mandatory and payment of meager remuneration to the members of the petitioner Union. The members of petitioner Union were agitating against the conditions of employment. Employer was insisting employees to work for 12 hours and when employees refused en-masse termination was resorted to. to work and resorted to strike, Material on record would disclose that the 19 WP_29486_2018 SN,J members of petitioner union were in employment for long time and their services were dispensed with on the ground that they were indulging in going on strike, disrupting the emergency services. Thus, background for termination is on account of protest lodged by the employees against terms of employment. The Union is also contesting that the conduct of employer would amount to violation of Act. 1976.
These issues have to be gone into in the writ petition. Therefore, writ petition cannot be thrown out on the two objections raised by the learned senior counsel for 4" respondent.
Notice before admission, returnable in four weeks. List on 12.11.2018 for admission - hearing. Pleadings if any be placed on record by the respective parties before the next date of hearing.
Meanwhile, if the vacancies are not already filled up and in the event of 4" respondent seeking to recruit persons from open market, first opportunity should be afforded to the persons whose services are terminated, by imposing appropriate conditions. However, such reemployment/ reengagement shall abide the result of the writ petition. According to the learned counsel for the petitioner, for the work period also salary and allowances payable to the petitioner were not paid. According to the learned counsel for 4" respondent, all the amounts payable to them are paid.20
WP_29486_2018 SN,J However, if any amount is due for the period for which service was rendered by the members of petitioner Union, the same shall be paid within three weeks.
10. The 4th respondent primarily contended as follows:
a) The 4th respondent is not an instrumentality of the State, therefore, the writ petition is not maintainable.
b) The petitioner is a union and union cannot maintain the writ challenging the termination of individual employees.
c) The petitioner has an alternative remedy under the Industrial Disputes Act.
11. In so far as the first contention of the 4th respondent that the writ petition is not tenable since the 4th respondent is not an instrumentality of the State, this Court opines that the said contention is not tenable for the reasons enumerated hereunder:
THE 4TH RESPONDENT IS AN AUTHORITY WITHIN THE MEANING OF ARTICLE 12
a) It is stated at para 8 of the counter affidavit filed by the 4th respondent that the 4th respondent herein is a non private 21 WP_29486_2018 SN,J organisation registered under the Societies Registration Act.
A bare perusal of the averments made in para 4 of the counter affidavit filed by the 4th respondent, (referred to and extracted above) clearly indicates that the 4th respondent herein is recognized as state level service provider to private emergency services across the State and the State has been providing ambulances for providing the said facilities and the State Government is providing all the operational support to the 4th respondent herein. It is also stated at para '4' of the counter affidavit filed by the 4th respondent herein that the State Government is also extending the financial benefits for operational expenditure which comprises of salaries to employees, fuel repairs and maintenance, vehicle refurbishments, medical consumables, communication administration expenses, marketing travel expenses, training expenses, legal and statutory expenses towards ambulances which are used in operation. The 4th respondent admittedly receives grants from the state Government, hence, the present writ petition is maintainable.
b) The Apex Court in the judgment reported in 1981(1) SCC 72 in Ajay Hasia and others v Khalid Mujib 22 WP_29486_2018 SN,J Sehravardi and others, in particular at para 15 observed as under:
"It is in the light of this discussion that we must now proceed to examine whether the Society in the present case is an "authority" falling within the definition of "State" in Article 12. Is it an instrumentality or agency of the Government? The answer must obviously be in the affirmative if we have regard to the Memorandum of Association and the Rules of the Society. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu & Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The Rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction. The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed of in any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board 23 WP_29486_2018 SN,J of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. It will thus be seen that the State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and to use the words of Ray, C.J. in Sukhdev Singh's case (supra), the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments. We must, therefore, hold that the Society is an instrumentality or agency of the State and the Central Governments and it is an 'authority' within the meaning of Art. 12.
c) This Court opines that providing emergency services is the duty of the State Government. It is a public duty and the 4th respondent herein is discharging the public functions though a specific plea is taken by the 4th respondent in para 8 of the counter affidavit filed by the 4th respondent that the 4th respondent is a non-profit organisation registered under the societies Act. In view of the 97th amendment of the Constitution conferring constitutional status on the co-operative societies and in view of the nature of functions designed and discharged by the 4th respondent and more particularly considering the main grievance 24 WP_29486_2018 SN,J voiced and putforth by the petitioner union in the affidavit filed in support of the present writ petition that the members of the petitioner union had been working for the past one and half decade for 12 hours per day, this Court opines that the writ petition against the 4th respondent is very much maintainable.
d) By the constitution (97th amendment) Act 2011, Part IX B has been incorporated into the constitutional text and this part specifically deals with the co-
operative societies. The Hon'ble Supreme Court of India in the decision reported in 2015 (8) SCC 1 in Vipulabhai M. Chaudhary v Gujarat Cooperative Milk Marketing Federation Limited and others observed that constitutional status has now been conferred on co- operative societies.
e) In a three judges Bench decision reported in 2007 (5) CTC in M.Kempraj v Prakashgoklaney, it was held that writ petitions can be maintained against the Co-operative Societies even in matters relating to service under certain circumstances. 25
WP_29486_2018 SN,J
f) The members of the petitioner union in the present writ petition complained forced labour, which is constitutionally forbidden under Article 23 of the Constitution and the locus standi of the members of the petitioner to move this Court is conclusively established by the decision of the Apex Court in S.P.Gupta v Union of India reported in AIR 1982 SC
149. The Apex Court in the judgment reported in 1984(3) SCC 161 in Bandhua Mukti Morcha v Union of India, with reference to employment conditions observed that it is unconstitutional to subject an employee to work more than eight hours per day.
12. In so far as the second contention of the 4th respondent herein that the petitioner union cannot maintain writ challenge the termination of individual employees. The Supreme Court in M/S Oswal Agro Furane Ltd. & Anr vs Oswal Agro Furance Workers Union & others reported in 2005 (3) SCC 224 held that it is permissible for the staff union as well as individual working men to maintain writ petition to challenge the settlement they signed before the conciliation officer 26 WP_29486_2018 SN,J and hence, the present writ petition is also maintainable.
13. In so far as the members of the petitioner availing alternative remedy, the Apex Court in Whirlpool Corporation v Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC page 1 at paras 14 and 15 observed as under:
"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for 'any other purpose.'
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three 27 WP_29486_2018 SN,J contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
14. The present writ petition would certainly fall in two contingencies pertaining to enforcement of Fundamental Rights and also violation of principles of natural justice. In view of the fact that as borne on record, that the services of the members of the petitioner union had been terminated without issuing notice to them and they urged that the working conditions prescribed 12 hours of work as mandatory and the same was itself in violation of the constitutional mandate.
15. Para 5 of the counter affidavit filed in C.C.No.3307 of 2018 in W.P.No.29486 of 2018 is extracted hereunder:
28
WP_29486_2018 SN,J "5. I further submit that, by the date of disposal of the said WA, out of 947 terminated Employees about 524 employees of the petitioner union were appointed in compliance of the interim directions passed by this Hon'ble court on 10-10-2018. since it was the specific direction of this Hon'ble Court that, if the vacancies are not already filled up and in the event of 4 respondent seeking to recruit persons from open market, first opportunity should be afforded to the persons who are terminated. by imposing appropriate conditions. Further, even after the said recruitment drive held during the said period, as and when, terminated employees approached our Management with proper documents, many of such employees were reappointed, thus during November 2018 and March 2019, another 29 employees were 222 reappointed, with altogether 760 terminated employees being reappointed till date. Thus affording first opportunity to the terminated employees following the letter and spirit of the orders passed by this Hon'ble Court, as well as the orders passed by the Appellate Court in WA No.1478 of 2018 dated 26-11-
2018. Curiously, the petitioner suppressed the factum of filing of Writ Appeal in the petition deliberately and filed the contempt petition on 29-11-2018, much after the writ appeal was dismissed on 26-11-2018, clearly demonstrating the unclean approach of the petitioner." 29
WP_29486_2018 SN,J
16. A bare perusal of the averments in the above para clearly indicate that this fact as borne on record that out of 947 terminated employees about 524 employees of the petitioner union were reappointed in compliance of the interim order passed by this Court on 10.10.2008. It is also a fact as borne on record even as putforth by the 4th respondent that during November, 2018 and March, 2019 another 236 employees were appointed with altogether 760 terminated employees being re-appointed till date. This Court opines that the members of the petitioner union/remaining terminated employees herein cannot be discriminated and they are also entitled for the relief as extended to other 760 terminated employees of the petitioner union.
17. The personal life on issue under Article 21 of the Constitution of India does not mean mere animal existence. It is a large alternate meaning which includes right to livelihood, better standard of life, hygienic conditions in work place and leisure in Olga Tellis & Ors vs Bombay Municipal Corporation & others reported in 1985 (3) SCC 545, it was held that no 30 WP_29486_2018 SN,J person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable. This Court opines that there is no justification in denying the relief as extended to 760 terminated employees being reappointed till date out of 947 terminated employees and they are entitled for the same benefit and denying the same would amount to violation of Article 14 of the Constitution of India.
18. The Apex Court in judgment reported in 2017 (1) SCC 14 in State of Punjab v Jagjit Singh and others, in particular para 54(1)(2) and (3) observed as under: 31
WP_29486_2018 SN,J "54 The Full Bench of the High Court, while adjudicating upon the above controversy had concluded, that temporary employees were not entitled to the minimum of the regular pay-scale, merely for the reason, that the activities carried on by daily-wagers and regular employees were similar. The full bench however, made two exceptions. Temporary employees, who fell in either of the two exceptions, were held entitled to wages at the minimum of the pay-scale drawn by regular employees. The exceptions recorded by the full bench of the High Court in the impugned judgment are extracted hereunder:-
"(1) A daily wager, ad hoc or contractual appointee against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates, shall be entitled to minimum of the regular pay scale from the date of engagement.
(2) But if daily wagers, ad hoc or contractual appointees are not appointed against regular sanctioned posts and their services are availed continuously, with notional breaks, by the State Government or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having 32 WP_29486_2018 SN,J worked for such long period of time, an equitable right is created in such category of persons. Their claim for regularization, if any, may have to be considered separately in terms of legally permissible scheme.
(3) In the event, a claim is made for minimum pay scale after more than three years and two months of completion of 10 years of continuous working, a daily wager, ad hoc or contractual employee shall be entitled to arrears for a period of three years and two months."
19. This Court observes that the observations at 54(2) of the above Apex Court judgment applies to the petitioner herein and the members of the petitioner union herein cannot be terminated unilaterally.
20. A bare perusal of the para 16 of the judgment of the Apex Court extracted below clearly indicates that the remaining 187 terminated employees out of 947 terminated employees of the petitioner union are entitled for the benefits as extended to the 760 terminated employees in pursuance to the interim orders of this Court dated 10.10.2018, applying para 16 of the judgment in Ajay Hasia and others v Khalid Mujib Sehravardi and others since Article 14 strikes at 33 WP_29486_2018 SN,J arbitrariness in state action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality.
21. The Apex Court in the judgment reported in 1981(1) SCC 72 in Ajay Hasia and others v Khalid Mujib Sehravardi and others, in particular at para 16 observed as under:
"If the Society is an "authority" and therefore "State"
within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14. The true scope and ambit of Article 14 has been the subject matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E.P. Royappa v. State of Tamil Nadu that this Court laid bare a new dimension of Article 14 and pointed out that Article has highly activist magnitude and it 34 WP_29486_2018 SN,J embodies a guarantee against arbitrariness. This Court speaking through one of us (Bhagwati, J.) said :
"The basic principle which therefore informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle ? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbled, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa's case and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India where this Court again speaking through one of us (Bhagwati, J.) observed :
"Now the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated is this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the 35 WP_29486_2018 SN,J foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits...............Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence."
This was again reiterated by this Court in International Airport Authority's case (supra) at page 1042 of the Report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not para- phrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non- arbitrariness pervades the entire constitutional scheme and is a golden thread which runs though the whole of the fabric of the Constitution.
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22. This Court opines that the remaining 187 terminated employees are entitled to the protection of equality in the matter of their employment in the 4th respondent organisation and they cannot be dealt with in an arbitrary manner. The action of the 4th respondent in extending relief of reinstatement of 747 terminated employees and denying the said benefit to others without any rhyme or reason is in clear violation of Articles 14 and 16 of the Constitution of India and the other 187 terminated employees are entitled to protection of their fundamental rights enshrined under Articles 14 and 16 of the Constitution of India.
23. A bare perusal of the material document dated 24.03.2018 No.34/GEN-PR/2018 of the Special Secretary to C.M. filed by the petitioner herein clearly indicate that responding to the representation of the Telangana 108 Employees Association, submitted to the Hon'ble Chief Minister, pertaining to their request for recognition of the employees of 108 ambulance services on par with contract/outsource employees and job security by implementing G.O.Ms.No.14, the Hon'ble 37 WP_29486_2018 SN,J Chief Minister desired that the request may be examined and necessary action initiated.
24. It is settled law that even a contractual appointment cannot be terminated without affording an opportunity of hearing, if founded on allegation and/or misconduct, which casts a stigma on the employee. The Supreme Court in K.C. Joshi v. Union of India and Others, reported in (1985) 3 SCC 153, held that contract of service has to be in tune with Articles 14 and 16 of the Constitution of India and if it is to be suggested that one can dismiss anyone without a semblance of inquiry or whisper of principles of natural justice, such an approach overlooks the well-settled principle that if State action affects livelihood or attaches stigma, punitive action can be taken only after an inquiry, in keeping with the principles of natural justice.
25. This Court opines that the services of the employees of the petitioner union were terminated without issuing notices to them in clear violation of principles of natural justice violating the protection guaranteed to temporary servants under Article 311 (2) of the Constitution of India. 38
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26. Taking into consideration the above referred facts and circumstances of the case and duly considering the view and the law laid down by the Apex Court in its judgment in S.P.Gupta v Union of India reported in AIR 1982 SC 149, judgment of the Apex Court reported in 1984(3) SCC 161 in Bandhu Mukti Morcha v Union of India, the judgment of the Apex Court reported in 2015 (8) SCC 1 in Vipulabhai M. Chowdhary v Gujarat Co- operative Milk Marketing Federationf Ltd. The judgment of the Apex Court in M/s Oswal Agro Furane Ltd and another Vs Oswal Agro Furane Workers Union and Ors reported in 2005 (3) SCC 224 and the judgment of the Apex Court reported in 1981 (1) SCC page 72 in Ajay Hasia and others v Khalid Mujib Sehravardi and others, the judgment of the Apex Court in Whirl Pool Corporation v Registrar of Trade Marks, Mumbai and others reported in 1998 (8) SCC page 1, judgment of the Apex Court in Olga Tellis and others v Bombay Municipal Corporation and others reported in 1985 (3) SCC page 545 and the judgment of the Apex Court reported in 2017(1) SCC 14 in State of Punjab v Jagjit 39 WP_29486_2018 SN,J Singh and others and the judgment in K.C. Joshi v Union of India and others reported in 1985(3) SCC 153, the writ petition is allowed and the 4th respondent is directed to consider the case of all the remaining 187 terminated employees out of 947 terminated employees and to re-instate them within a period of eight weeks from the date of receipt of a copy of this order, duly considering the letter dated 24.03.2018 vide No.34/GEN-PR/2018 of the Special Secretary addressed to Hon'ble Chief Minister, duly considering Para 5 of the counter affidavit filed in C.C.No.3307 of 2018 in W.P.No.29486 of 2018 and applying the law laid down by the Apex Court in its various judgments (referred to and extracted above). However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
__________________________________ MRS JUSTICE SUREPALLI NANDA Date: 18.07.2023 Note: L.R. copy to be marked b/o kvrm