Gujarat High Court
Sunilbhai Nanjibhai Baraiya vs State Of Gujarat on 11 March, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3954 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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 ?
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SUNILBHAI NANJIBHAI BARAIYA
Versus
STATE OF GUJARAT
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Appearance:
MR PJ KANABAR(1416) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,4,5,6,7,8,9
for the Respondent(s) No. 3
MR MEET THAKKAR, ASST GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR MITUL SHELAT, ADVOCATE FOR MS DISHA N NANAVATY(2957) for
the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 11/03/2022
ORAL JUDGMENT
1. Heard learned advocates appearing for the respective parties.
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2. The prayers in this petition read as under:
"B. YOUR LORDSHIPS may further be pleased to issue a writ of mandamus or any other appropriate writ, Order or direction in the nature of mandamus declaring that the Circular dated 05/05/'18 issued by respondent no. 1 permitting the recruitment by out sourcing by the respondent municipality is violative of the Act provisions and the oral termination of the petitioners effected by Respondent No. 4 on 27/09/'19 from the post of safai kamdar in the respondent municipality is dehors the ID Act provisions and ex-facie illegal, arbitrary, violative of principles of natural justice, perverse, unjust and unreasonable and are ab initio void and liable to be quashed and set aside in the facts and the circumstances of the case and in the interest of justice;
C. YOUR LORDSHIPS may further be pleased to issue a writ of mandamus or any other appropriate writ, Order or direction in the nature of mandamus and may kindly hold respondent no.3 and 4 responsible for violating the directive dated: 08/03/'19 Annexure C and effecting termination on 27/09/'19 and are therefore liable to face proceeding/s of disqualification of respondent President and disciplinary proceedings against respondent no.4 for the matters stated herein above and in the facts and the circumstances of the case and in the interest of justice;
3. Facts in brief would indicate that the petitioners are engaged as Safai Kamdars in Amreli Municipality. It is their case that they have been working diligently, punctually and accurately for the past more than 9 years. It is their case that by virtue of a circular dated 05.05.2018 which was issued by the State directing all the Chief Officers of the Municipalities to follow the procedure for appointment of employees in the municipalities and take care in the proceedings, the services of the petitioner under the misconception of the circular has been terminated.
4. Mr. P.J. Kanabar, learned advocate for the petitioners would Page 2 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022 C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022 submit that the oral termination of the petitioners by respondents no. 3 and 4 under the pretext of outsourcing the services is bad. Reliance is placed on an interim order of this court dated 05.09.2018 in Special Civil Application No. 13232 of 2018 by which para 3 of the circular of 05.05.2018 has been stayed. In compliance thereof, the Commissioner of Municipalities issued a communication dated 08.03.2019 directing all municipalities not to enforce the circular of 05.05.2018. In the rounds challenging the oral termination of the petitioners who were working as Safai Kamdars, it is the case of the petitioners that their services could not have been terminated in violation of provisions of Section 2(ra) of the Industrial Disputes Act, 1947 (for short 'the Act') as the same would amount to unfair labour practice inasmuch as the petitioners had completed 240 days in each year of service and therefore the violation of Section 25B of the Act. No procedure was followed before effecting termination on 27.09.2019.
4.1 Mr. Kanabar, learned advocate for the petitioners in support of his submissions would rely on the decisions of this court in the case of Parmar Rajesh Shivabhai and Others vs. State of Gujarat rendered in Letters Patent Appeal No. 107 of 2009. Reliance is also placed on the decision dated 11.03.2015 in the case of Gujarat Pollution Control Board vs. Navinbhai Dhirajbhai Kambli in Letters Patent Appeal No. 1203 of 2014. He has also relied on the oral orders passed by this court in Special Civil Application No. 5965 of 2017 dated 03.02.2020; in Special Civil Application No. 5285 of 2008 dated 22.04.2008; oral order dated 02.09.2014 in Special Civil Application No. 2155 of 2013 and oral order dated 13.08.2015 in the case of Special Civil Application No. 12338 of 2015 which was pressed into service to submit that when the orders of termination are passed in violation of principles of Page 3 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022 C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022 natural justice, the natural course thereof should be setting aside orders of termination and granting reinstatement in service. Mr. Kanabar would also rely on the decision in the case of State of Gujarat vs Prajapati Hitesh Mohanlal reported in 2018 JX (Guj) 134 and the decision in the case of Vinodbhai Shivrambhai Rathod vs. State of Gujarat reported in 2018 JX Guj 669.
5. Mr. Mitul Shelat, learned advocate appearing for Ms. Disha Nanavaty, learned advocate for the respondent Municipality would rely on an affidavit-in-reply filed on behalf of respondents no. 3 and 4. Reading the affidavit, Mr. Shelat would submit that the petitioners have an alternative efficacious remedy under the provisions of the Industrial Disputes Act, 1947. The petition under Article 226 of the Constitution of India is therefore not maintainable. He would submit that the resolutions passed by the Amreli Nagarpalika by which the appointments were authorized were subject matter of review by the State Government under the provisions of Section 258(1) of the Gujarat Municipalities Act, 1963. Reliance is placed on an order dated 07.09.2019 passed by the Regional Commissioner of the Municipalities. Pursuant to the order passed by the Regional Commissioner, the President of the Nagarpalika passed an order on 18.09.2019 directing implementation of the order passed by the Regional Commissioner. In compliance of the order, the Chief Officer by an order of 24.09.2019 directed the Nagarpalika to pass order and in view thereof a resolution was passed on 24.09.2019 by the General Body deciding that the services of the employees/daily wagers whose appointments were in violation of the government instructions be terminated.
5.1 With regard to the contention of the learned advocate Mr. Kanabar Page 4 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022 C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022
with regard to the circular of 05.05.2018, Mr. Shelat would submit that the resolution does not in any way affect the petitioners and the reliance therefore on the said circular is ill-founded. The termination of the services occurred only because of the directives of the Regional Commissioner, Bhavnagar. Merely because the resolution of 05.05.2018 has been stayed by a communication dated 08.03.2019 which pertains to the method of employment through outsourcing would not preclude the respondent municipalities from complying with the directions of the Regional Commissioner.
5.2 In context of the petition being barred by alternative remedy, Mr. Mitul Shelat would rely on the following decisions:
(I) Sunil Kumar Biswas vs. Ordnance Factory Board and Others reported in (2019) 15 SCC 617;
(II) Union of India and Others vs. Lieutenant Colonel Dharamvir Singh reported in (2019) 15 SCC 793;
(III) Yogesh Mahajan vs Professor R.C. Deka, Director, All India Institute of Medical Sciences reported in (2018) 3 SCC 218;
(IV) Rajasthan State Roadways Transport Corporation vs. Paramjeet Singh reported in (2019) 6 SCC 250;
(V) Oral order dated 20.08.2020 passed in Letters Patent Appeal No. 337 of 2020 in the case of Mahavirsinh Narapatsinh Jadeja vs. Saurashtra University and Another.Page 5 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022
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6. Rejoinder filed and pressed into service by Mr. Kanabar would indicate that the petitioners were getting the benefit of the Provident Fund inasmuch as contributions of and on behalf of the petitioners and that of the municipality were being deposited. He would also draw the attention of the court to the resolution no. 21 initially passed by the Nagarpalika which was taken in review which only indicated that the petitioners were entitled to benefit of minimum of wages and there was nothing contrary to law inasmuch to invite termination. An additional affidavit is also filed by the Nagarpalika.
7. Mr. Meet Thakkar, learned AGP would submit that the apprehension of the petitioners that their services are terminated only because of the circular dated 05.05.2018 and the communication dated 08.03.2019 is ill-founded inasmuch the resolution of 24.09.2019 does not in any manner refer to the policy of outsourcing nor is it remotely connected. In fact what the circular would indicate is that in compliance of the directions issued by the Government from time to time and looking to the financial burden by virtue of engaging such petitioners - daily wagers on the establishment of the Nagarpalika it was decided that the services of the petitioners and such similarly situated daily wagers should be retrenched. What is also submitted by learned counsels for both the Nagarpalika as well as the State is that pursuant to the instructions of the State, 178 adhoc employees have been terminated and only 34 have approached this court.
8. The issue of termination of services of these petitioners has to be examined in light of the prayers made in the petition and the grounds on which they have been assailed. The pleadings of the petition read with the prayers made in the petition indicate that the emphasis of the learned Page 6 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022 C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022 counsel for the petitioner is that the oral termination of the daily wagers of the respondent municipality is in violation of the provisions of the Act. The grounds in the petition to which Mr. Mitul Shelat, learned counsel for the respondents no. 3 and 4 had drawn the attention of the court would also indicate that essentially the challenge to the oral termination is based on the challenge to non compliance of the provisions of Section 25F of the Act.
9. That the circular dated 05.05.2018 is bad as it permits recruitment through outsourcing and the support drawn by the learned counsel for the petitioner to the order of this court in Special Civil Application No. 13232 of 2018 dated 05.09.2018 and the communication dated 08.03.2019 of the Commissioner of Municipalities would not be related to the issue of termination as is evident from reading the resolution of 24.09.2019. The said resolution by virtue of which the services of the petitioners have been terminated/the petitioners have faced retrenchment is on the basis of the State reviewing the orders of the resolution of the municipality under Section 258(1) of the Gujarat Municipalities Act.
9.1 Reading of the order dated 07.09.2019 which triggered the consequential action of termination of the petitioners would indicate that policies of the State indicated from time to time that the Nagarpalikas should not engage purely temporary and contractual employees on the establishment of the Nagarpalika so as to unnecessarily burden the financial resources of the Nagarpalika / Municipalities. It is based on this assessment of facts that the Regional Commissioner, Bhavnagar issued the orders directing the Municipalities to comply with the resolution and terminate the services of daily wagers who were engaged on a contractual basis. In compliance of such directions the chain of orders that succeeded Page 7 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022 C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022 were of 18.09.2019 that of the Chief Officer and thereafter of the General Body of the Amreli Municipality dated 24.09.2019. Based on these orders, the services of the petitioners who were working as daily wagers have been terminated or as the resolutions would indicate that they have been retrenched.
10. As far as reliance placed on the decision of this court by Mr. Kanabar in the case of Parmar Rajesh Shivabhai (supra), what is evident is that while admitting the appeal, the Division Bench had stayed the terminations of the petitioners. The appeal was of the year 2009. It came up for hearing in the year 2017. Based on the interim order, therefore, since the appellants therein were protected, the court disposed of the appeal that is evident on reading para 9 of the order which indicates that since the appellants were protected, their employment was to be continued in service and the appeal was disposed of accordingly.
10.1 So far as the decision in the case of Navinbhai Dhirajbhai Kambli (supra) is concerned, the relief that was prayed for essentially was of regularization as compared to the one in the present case which is of setting aside the order of termination on the ground of it being in violation of the provisions of the Act. Perusal of the decision of the learned Single Judge of this court in the case of Navin Kambli (supra) which was challenged by way of Letters Patent Appeal would indicate that the petitioners were engaged after requisitioning their names from the employment exchange and their appointments were extended from time to time and therefore on that ground regularization was sought. Nothing is brought on record in the present case to indicate that the appointments of daily wagers - Safai Kamdars were through the regular mode of recruitment.
Page 8 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022 10.2 In the case of Prajapati Hitesh Mohanlal(supra), the Division Bench of this court was concerned in deciding the fate of the judgement of the learned Single Judge where regularization was refused for contractual employees who were employed under the Mahatma Gandhi National Rural Employment Guarantee Act. Affirming the decision of the learned Single Judge as far as it refused regularization, the appeal confirmed that part of the order of the learned Single Judge which protected the contractual employment of the continuing employees under the scheme provided they satisfied the qualifications that were to be cleared by the contractual employees in terms of examinations.
10.3 The decision in the case of Vinodbhai (supra) though as Mr. Kanabar would like the court to have persuasive value inasmuch as it challenged the order of oral termination, the question therein that was addressed by the court was whether the petitioners' services could be regularized in view of the guidelines in the case of State of Karnataka vs. Umadevi reported in 2006 4 SCC 1 and whether the petitioners were entitled to the minimum wages.
11. That brings this court to the decisions cited by learned advocate Mr. Mitul Shelat on behalf of the respondents to oust the petitioners on the ground of the petition not being maintainable because of alternative remedy. Admittedly, as is evident from the prayers that have been reproduced hereinabove, the only ground of the oral terminations being assailed is that they are in violation of the provisions of the Act. Relevant pleadings in the petition also indicate that the emphasis of the challenge is that the orders were in violation of provisions of Sections 25F as well as 2(ra) read with Section 25B of the Act.
Page 9 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022 11.1 In the case of Sunilkumar (supra), the Apex Court was considering the case of a remedy available under the Industrial Disputes Act or before the Administrative Tribunal. The court in para 8 opined that the remedy under Section 10 of the Industrial Disputes Act was a remedy that was appropriate in the case of concerned employees.
11.2 In the case of Lt. Col. Dharamsinh (supra), though the dispute was with regard to the maintainability of the writ petition in context of the remedy under the Armed Forces Tribunal Act, since the respondent employee therein was of the uniformed service, para 17 of the decision of the Apex Court would indicate that the Apex Court categorically observed that in view of the alternative remedy available the assumption of jurisdiction by way of a writ petition by the High Court was misconceived.
11.3 A Division Bench of this court in Letters Patent Appeal No. 337 of 2020 by oral order dated 20.08.2020 extensively considered the case law on entertaining a petition under Article 226 of the Constitution of India in context of the Gujarat Education Services Tribunal Act. Paras 28 to 33 of the decision need to be reproduced and the same read as under:
"28. The Supreme Court in the judgement (Steel Authority of India Ltd vs. Union of India and others, (2006) 12 SCC 233 ) held that a mutually destructive plea is impermissible in law. At para 28, it has enunciated thus:
"28. The workmen whether before the Labour Court or in writ proceedings were represented by the same Union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the Page 10 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022 C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022 employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication."
29. It has time and again been held by the Constitutional Courts in India that writ petition should not be entertained if an alternative statutory remedy is available.
30. In the case of Commissioner of Income Tax v.
ChhabilDass Agrawal, (2014) 1 SCC 603 , the Supreme Court held that when a statutory forum is created by law for redressal of grievances, the writ petition should not be entertained ignoring the statutory dispensation subject to certain exceptions. The Apex Court further opined that non- entertainment of petitions under the writ jurisdiction by the High Courts where efficacious or alternative remedy is available, is a rule of self- imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. The Apex Court has also opined that undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India despite existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or if there is sufficient grounds to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India.
31. In the case of HarbanslalSahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107 , it was held that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ Page 11 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022 C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022 jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged.
32. Similar observation has been made by the High Court of Calcutta in a recent case of Mina Perween vs The State Of West Bengal &Ors (MAT 515 of 2018 decided on 25th June 2018). In this case, the Appellant had assailed High Court's order, whereby the Single Judge of the Court had dismissed the Appellant's writ petition holding, inter alia, that the same was not maintainable before the writ Court and relegated the writ petitioner to an appropriate statutory remedy which is available for a period of thirty days from the date of declaration of the election results. In the said case, the appellant/petitioner had challenged the election process for the post of a Gram Panchayat member. In appeal, the Court noted that the statutory mechanism for raising any dispute after participating in an election pertaining to Panchayats has been enumerated under section 79 of the West Bengal Panchayat Elections Act, 2003. The said provision allows any person who is entitled to vote in the Panchayat election to raise any dispute with regard to the validity of an election within a statutory time frame before such authorities as prescribed under section 79. With reference to the facts of the said case, the Court noted that the appellant can have her grievances adequately redressed before the competent statutory authority as provided under Section 79 of the West Bengal Panchayat Elections Act, 2003.
33. In the case of Sadhana Lodh vs. National Insurance Co.Ltd. and another, (2003) 3 SCC 524 , the Apex Court held that the right to appeal is a statutory right where the law provides remedy by way of filing an appeal on limited grounds and such challenge cannot be enlarged by filing a petition under Articles 226 and 227 of the Constitution of India. It would be profitable to reproduce the findings and observations of the Apex Court as under:-
"6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged Page 12 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022 C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022 by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd, Chandigarh vs. NicollettaRohtagi and others, (2002) 7 SCC 456 ). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution.
7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Page 13 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022 C/SCA/3954/2020 JUDGMENT DATED: 11/03/2022 Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.
34. If the learned Single Judge declined to entertain the writ application on the ground of alternative efficacious remedy of appeal being available to the writ applicant, then, in such circumstances, it cannot be said that the learned Single Judge committed a jurisdictional error resulting into a serious miscarriage of justice, warranting interference at the end of the appeal Court. In other words, the judgement and order of the learned Single Judge does not suffer from any such palpable infirmity of reasoning or perversity which would warrant interference in an intra-Court Appeal. "
12. The above paras indicate that whenever there is an alternative and efficacious remedy available this court would be committing a jurisdictional error by entertaining a petition under Article 226 of the Constitution of India. The decisions cited by Mr. Shelat in the case of Paramjeet singh (supra) and Yogesh Mahajan (supra) reiterate the same principle.
13. For all these reasons, therefore having found no merit in the petition only on the ground of having an alternative remedy, this petition is not entertained and is dismissed accordingly.
(BIREN VAISHNAV, J) DIVYA Page 14 of 14 Downloaded on : Sat Dec 24 12:37:00 IST 2022