Gujarat High Court
Rameshkumar Jethalal Thakkar vs District Development Officer & 2 on 15 March, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/15702/2007 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15702 of 2007
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RAMESHKUMAR JETHALAL THAKKAR....Petitioner(s)
Versus
DISTRICT DEVELOPMENT OFFICER & 2....Respondent(s)
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Appearance:
MR PH PATHAK, ADVOCATE for the Petitioner(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1 - 2
RULE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 15/03/2017
ORAL ORDER
1. This is a petition under Articles 226 and 227 of the Constitution of India by the petitioner, who is a representative of the workmen, who as also the member of the Union, has approached this Court, challenging the termination of their services by Respondent Nos.1 and 2. The petitioners were the Second Party before the Labour Court, Kalol, in Reference (LCK) Nos. 60 of 2006, 53 to 57 of 2006 and 62 of 2006. It was their say that their financial condition is very weak and therefore, they individually cannot knock the door of justice.
2. The facts in capsulized form are that the petitioners-workmen in the reference before the Labour Court were employed by the Respondents after following the due procedure. They were Page 1 of 14 HC-NIC Page 1 of 14 Created On Mon Aug 14 10:31:30 IST 2017 C/SCA/15702/2007 ORDER given the artificial breaks in service to deny them the continuity of service and the exploitation was experienced by the petitioners. They were appointed in the year 1982 and they used to be continued for a period of 29 days and with artificial breaks in service, they continued to serve the respondents till their services came to be terminated on 12.08.1988.
3. It is the say of the petitioners that the management produced appointment orders and contended that there was no continuous service and the artificial breaks were given for denying the benefit of continuity of service to the petitioners. It is, further, the say of the petitioner that after the last order of 1983, no subsequent order was issued, and thereafter, to show the nature of duties performed by the the petitioners, the service book of the concerned workmen had been pressed into service. It is their say that service books could be only of the permanent employees. They were granted the benefit of revised pay-scale. The service book shows an endorsement that on the regularization, benefit of revised pay-scale has been given to them. It is, therefore, their say that termination cannot be effected without following mandatory provisions of the Industrial Disputes Act, 1947 (for short, 'the ID Act').
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4. The stand of the Respondents has been denied that they had been appointed for scarcity work and on completion of the same, their services were terminated without repatriation to the parent department. The order dated 18.08.1986 specifically stated that on completion of the work, they should be repatriated to their original post. On the one hand, according to the petitioners, they were continued in service as Workcharge employees and on the other hand same nature of the work, which was performed by the petitioners, the Respondents appointed fresh persons. A copy of the order issued by the Department is also brought on record and those seven employees, who were appointed in September, 1986 and who were junior to the present petitioners, it is, therefore, their grievance that due to non-availability of work, the respondents ought to have followed the principle of 'First Come, Last Go' in terminating the services of the petitioners. However, in a mechanical and arbitrary manner, the evidence has been recorded and the reference has been rejected. Therefore, this petition seeking following reliefs:
"8. This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or certiorari Page 3 of 14 HC-NIC Page 3 of 14 Created On Mon Aug 14 10:31:30 IST 2017 C/SCA/15702/2007 ORDER or other appropriate writ, order or direction, declaring the impugned award of Hon. Labour Court rejecting the References of the workmen bearing Ref. 60/06, 53 to 57/2006 &62/06, as arbitrary, illegal, unjust, non-application of mind and be pleased to quash and set aside the same and direct the respondents to reinstate the workmen in service with all consequential benefits as if services of the concerned workmen were not terminated.
B. Be pleased to declare that termination of services of concerned workmen were ex facie illegal, unjust, arbitrary and be pleased to direct the respondents to treat the petitioner workmen in continuous service and grant all benefits which were extended to the juniors to the petitioners and grant the amount of arrears to the petitioners with all consequential benefits.
C. Pending admission and final hearing of this petition be pleased to allow the petitioners to discharge their duties forthwith.
D. ..."
5. No reply is filed by the Respondent-
authorities in this petition.
6. This Court has heard the learned
Advocate Mr. Pathak, appearing with learned
Advocate, Ms. Rina Kamani, for the petitioners. It is fervently urged by him that there was no Page 4 of 14 HC-NIC Page 4 of 14 Created On Mon Aug 14 10:31:30 IST 2017 C/SCA/15702/2007 ORDER actual brake in the services of the petitioners from the year 1982. They certainly were not employed for the scarcity work. Even if, there was a brake in their service that was not due to any fault on their part and their services should be treated as continuous under Section 12B of the ID Act. It is urged that any cessation of work by the employer should be treated as continuous work to claim 240 days of service. The Service Books also reflect the revised pay-scale granted to them, which is indicative that their services were regularized and only for the regular employees, the Respondents would have Service Books. This is a clear case of violation of Section 25F of the ID Act read with Section 25B, G and H. The violation of the principle of 'First Come, Last Go' is pressed into service. It is further their say that the appointments of the petitioners had been made as Workcharge clerk, as the work of scarcity had been initiated, they had been asked to work in the said department. However, once the scarcity was over, they ought to have been repatriated to their parent department. Instead of doing that Respondent had in complete contravention of the law terminated their services treating them as surplus.
7. It is the stand of the Respondent- Panchayat that workmen had been appointed in the Page 5 of 14 HC-NIC Page 5 of 14 Created On Mon Aug 14 10:31:30 IST 2017 C/SCA/15702/2007 ORDER year 1981, 1982 and 1983 as Workcharge Clerk for the period of 29 days. The orders of extensions, which had been passed periodically, also indicate that it was not a continuous service of 240 days nor is it the case of giving artificial breaks in the services of the petitioners. None of the employees has been appointed following the recruitment rules by the Respondents. It is, further, their say that appreciating the evidence, which had been adduced before the Labour Court, the Reference has been dismissed. The workmen being appointed in absence of the procedure, which is, otherwise, required to be followed by the Respondents and the extensions that had been given to the initial appointments were for the specific duration, this Court may not interfere and the Labour Court has rightly appreciated the entire issue. It is, further, urged that this Court is not sitting in appeal against the award of the Labour Court. It is only when there is a material illegality in appreciating the evidence or there is a serious jurisdictional error that has been committed or it has chosen not to appreciate the evidence, which, otherwise, has come on record, the Court would show any indulgence.
8. Having heard both the sides, it can be noticed that the challenge is to the termination Page 6 of 14 HC-NIC Page 6 of 14 Created On Mon Aug 14 10:31:30 IST 2017 C/SCA/15702/2007 ORDER of services of the petitioners by the Respondents. Undoubtedly, the appointment orders, which were brought on record, indicate that there were breaks for a day or two in the services of the petitioner, this can be called artificial breaks.
9. The Labour Court, while appreciating their evidence, has mainly been influenced by the fact that one of the petitioners, namely Rameshbhai Jethalal Thakkar, in his deposition in Reference (LCK) No. 60 of 2006, had agreed that he had joined the services as Workcharge Clerk on 16.09.1983 and his name had been called from the employment exchange. Advertisement also needs to be issued for Workcharge employee in the local newspapers. Neither any application that he had made pursuant to such an advertisement nor any other document indicated his application was produced by him. He agreed that there was no order for making him permanent as Workcharge clerk. The office order had been made appointing him for a period of 29 days. He also had not details about having worked for 240 days in the institution. Yet, another employee, namely Rameshbhai Bhalabhai Patel, also had given his affidavit in lieu of his examination-in-chief following the decision of the Apex Court in the case of "SECRETARY, STATE OF KARNATAKA VS. UMA Page 7 of 14 HC-NIC Page 7 of 14 Created On Mon Aug 14 10:31:30 IST 2017 C/SCA/15702/2007 ORDER DEVI", AIR 2006 SC 1806. The Court held that it was a contractual / casual employment, which would come to an end with the expiry of the stipulated time period. Again, since, same had not been done following the principles of employment is not acceptable under the law. The order of termination in no manner would require interference. In such a view of the matter, the Labour Court did not allow the Reference. The Labour Court had noticed that the petitioners had earlier approached this Court by way of Special Civil Application No. 3467 of 1987, where this Court had directed the Reference to be taken before the Labour Court. A review petition had also been filed, as much time had elapsed before the High Court, the Court had directed the Reference to be decided at the earliest before the end of December, 2006.
10. Yet, another aspect, which deserves reference at this stage, is of no recruitment having taken place in the post 1998 period, as per the direction of the State Government. The question that would arise is that whether the award, which has been passed by the Labour Court, is mainly on two counts, (i) all the employees being not permanent and (ii) the recruitment, which was not pursuant to having followed the due process under the law, whether requires to be Page 8 of 14 HC-NIC Page 8 of 14 Created On Mon Aug 14 10:31:30 IST 2017 C/SCA/15702/2007 ORDER upheld.
11. Service book of each of the employees, which were before the Labour Court, has been the part of the record. This Court notices that these persons had been taken in service and on the very day, their appointment were as Workcharge clerk. So far as the Pandya Lakhabhai Kantilal is concerned, his initial appointment, as per the office order dated 31.12.1983, was on 03.02.1984 and his services came to be terminated on 21.02.1984 after office hours. Once again, on 15.05.1984 he was permitted to resume his duties pursuant to the office order dated 30.04.1984. He also remained present on 07.01.1986 for the purpose of scarcity work. On 18.08.1986, he was placed to serve under the Construction Department of the District Panchayat Mehsana. He remained present before the District Panchayat on 29.09.1986. By order dated 21.11.1986, since, he was transferred, his services came to an end after office hours. He, therefore, remained present on 25.11.1986 and vide office order dated 20.12.1986, he was assigned to the office of the TDO for scarcity work. He was also granted revision of pay under the Gujarat Civil Services (Revision of Pay) Rules, 1987, on the post of Workcharge Clerk in pay-scale of 950-20-1150-25- EB-1500 with effect from 01.01.1986 and his pay Page 9 of 14 HC-NIC Page 9 of 14 Created On Mon Aug 14 10:31:30 IST 2017 C/SCA/15702/2007 ORDER was fixed at Rs.950/-. The necessity of increment had also been specified by the TDO vide his order dated 01.01.1986. Again vide order of the TDO from his office, he was directed to join his parent department and such an order came to be passed on 18.07.1988. He was declared surplus on 11.08.1988 and his services came to be terminated.
12. It appears that from the year 1982, the concerned person was taken as Workcharge clerk and in the interregnum, he was sent for scarcity work. His services in between were taken by his parent department and he was also taken to work at the scarcity department continuously, barring some breaks, which had been given by the Respondent authority. It appears that the Labour Court has not at all taken into consideration the record of service book and also the aspect of pay-scale under the Gujarat Civil Services (Revision of Pay) Rules, 1987. The order passed by the TDO in respect of this employee and others are the part of the record, which not only grant, particular, pay-scale to the petitioners but also decides their date of increment. In case of some of the employees, particularly, dates also have been given for the next increment, which would become due to the concerned person. Their Earned Leave, Half Pay Leave etc. also have been Page 10 of 14 HC-NIC Page 10 of 14 Created On Mon Aug 14 10:31:30 IST 2017 C/SCA/15702/2007 ORDER calculated, which would not have happened, had their services were meant only for the scarcity work, as is contended by the Respondent- authority. Having once prepared service book of all these employees and also having given them the regular pay-scale with periodical increments without following due procedure, when their services came to be terminated all of a sudden that vital aspect has been ignored by the Labour Court. In case of all the employees, it would be necessary for this Court to reproduce the details, which has been done in case of two of the employees. However, it would be sufficient to note that they have worked from nearly 1983 to 1988. The details also have been provided of some of the Workcharge clerks, who have been, from the Workcharge converted to the temporary employee.
Appendix The list of the Workcharge posts under the Panchayat Irrigation Department, District Panchayat, Mehsana, to be converted into temporary posts, as per the Resolution of the State Government, Panchayat Rural Construction and Rural Development Department, Gandhinagar, bearing No. NKM/3099/4522/Kh, Dated: 29.09.2001.
(1) Workcharge Clerk-7 Sr. Name of the Employee Date of Appointment Page 11 of 14 HC-NIC Page 11 of 14 Created On Mon Aug 14 10:31:30 IST 2017 C/SCA/15702/2007 ORDER No. 1 Shri. V.B. Gurjar 30.09.1986 2 Shri. H.C. Goswami 30.09.1986 3 Shri. B.K. Mochi 01.10.1986' 4 Shri. G.H. Thakor 19.11.1969 5 Shri. B.K. Chauhan 21.06.1980 6 Shri. B.V. Nayak 01/10/86 7 Shri. D.L. Chavda 01/10/86 (2) Workcharge Driver-3 Sr. Name of the Employee Date of Appointment No. 1 Shri. V.S. Nayak 20.12.1975 2 Shri. K.C. Prajapati 23.02.1979 3 Shri. K.B. Thakor 27.10.1960 (3) Workcharge Oilman-8 1 Shri. B.G. Rabari 01.08.1986' 2 Shri. S.K. Solanki 01.01.1986' 3 Shri. B.M. Bhil 03.11.1969' 4 Shri. M.A. Thakor 01.11.1969' 5 Shri. R.K. Ghanchi 28.09.1965 6 Shri. G.B. Makwana 01.11.1972' 7 Shri. M.J. Desai 01.08.1986' 8 Shri. M.M. Solanki 01.08.1986' (4) Workcharge Chowkidar-2 1 Shri. N.M. Parmar 03.12.1980' 2 Shri. S.S. Vairagibava 01.01.1982' (5) Workcharge Wireman-5 1 Shri. M.J. Patel 30.07.1960 2 Shri. S.S. Patel 01.02.1967' 3 Shri. L.C. Thakor 21.07.71' 4 Shri. R.V. Solanki 25.03.1971 5 Shri. B.G. patel 14.03.1967 Page 12 of 14 HC-NIC Page 12 of 14 Created On Mon Aug 14 10:31:30 IST 2017 C/SCA/15702/2007 ORDER
13. In the cross-examination of Rameshbhai Bhalabhai Patel, who appeared on behalf of the Respondents vide Exhibit-173, it is stated that for converting workcharge employee into temporary employee, those, who were working as workcharge have to work as temporary and they can also eventually be made the permanent. By a resolution, some of the workcharge employees have been given the benefit of making them temporary employee and Exhibit-176 before the Tribunal also indicates the same. Thus, it is clear from the oral deposition as well as the documents, more particularly, the schedule of Resolution dated 29.09.2001 that many of the workcharge employees have been made the temporary employees and barring two of them, the rest were juniors to the present petitioners. The stand on the part of the Respondent-authority is in complete contravention of the provisions of the ID Act.
14. The Labour Court has failed to notice in its order dated 29.01.2007, the aspect of continuity of some of the workcharge employees and also of their conversion into temporary employees. The petitioners as discussed above, since, have been deprived of the benefits, which have been given to their juniors, these petition succeeds.
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15. Under the circumstances, this petition deserves to be allowed and is ALLOWED. The order of the Labour Court dated 29.01.2007 is QUASHED and set aside and the Respondent-authorities are directed to reinstate the petitioners with continuity of service with 25% backwages and other consequential benefits, which have been made available to their juniors. Rule is made absolute to the aforesaid extent.
(MS SONIA GOKANI, J.) UMESH Page 14 of 14 HC-NIC Page 14 of 14 Created On Mon Aug 14 10:31:30 IST 2017