Gujarat High Court
Thakore vs State on 22 July, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/9111/2011 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9111 of 2011
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THAKORE
JAYANTIBHAI MAHOTJI & 14 - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
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Appearance
:
MR
DM DEVNANI for
Petitioner(s) : 1 - 15.
MR MAULIK NANAVATI, AGP for Respondent(s)
: 1,
None for Respondent(s) : 2 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/07/2011
ORAL
ORDER
Heard learned advocates appearing on behalf of respective parties.
In respect of present petitioner, earlier this Court has passed following order on 19th March, 2010, page 14 in Special Civil Application No.3425 of 2010.
"1. Heard learned advocate Mr.H.S.Mulia for petitioners and learned AGP Ms.Mathur for respondent No.1.
2. The petitioners are the left out workmen of the award dated 23.1.2004 passed by Labour Court, Kalol in Reference (LCK) Nos.246 to 300 of 2003 and 301 to 413 of 2003, in all 168 references, Exh.244.
3. Against the alleged illegal oral termination, aforesaid references have been preferred by petitioners along with other workmen and the Labour Court has directed to respondents to prepare the seniority list and further directed the respondents to re-employ the petitioners on their respective posts, if work and vacancy is available. The said finding of Labour Court is not disturbed by this Court in SCA Nos.7649 to 7816 of 2004 preferred by respondents. Therefore, direction given by labour Court vide award dated 23.1.2004 has attained the finality.
4. On the basis of aforesaid direction issued by labour Court in its award dated 23.1.2004, the respondents have prepared seniority list on 29.11.2007. As per the seniority list, sufficient sanctioned posts are vacant and available but, respondents are not complying with the direction issued by labour Court, which has been confirmed by this Court.
5. In similar set of petitioners, some of have approached to this Court by filing SCA No.2307 with 2308 to 2361 of 2008 on 7.2.2008 wherein this Court has given direction to the concerned authority and respondents to consider the case of concerned workmen keeping in view the direction given by Labour Court. Therefore, present petition is filed by petitioners to pass identical order which has been passed in aforesaid SCA on 7.2.2008.
6. Learned AGP Ms.Mathur also not disputing averments made by learned advocate Mr.Mulia. Therefore, following order is passed :
"6.1 As per the case of the petitioners herein, their services were terminated by the respondents on15.9.1999. Therefore, they filed petitions before this Court being Special Civil Application Nos. 12255 of 2001 and 10162 to 10344 of 2002 wherein this court directed on 22.4.2003 to raise an industrial dispute against the termination. Accordingly, disputes were raised by the petitioners and were referred to for adjudication to the Labour Court, Kalol being Reference No. 246/03 to 300/03 and 301/03 to 413/03, in all, total 168 references were made by the petitioners and other employees. Labour Court, Kalol decided all the said references on 23.1.2004 and declared that the termination in question is illegal and not granted actual reinstatement and back wages for interim period but directed the first party establishment Dharoi Canal Irrigation Executive Engineer Division-1 and Executive Engineer Division-3 Visnagar to prepare the seniority list of those who are entitled to work and thereafter, if any work is available under the control of the Executive Engineer, Division-1 and Division-3, then they should have to be given the work on the same terms and conditions on which they were working with the respondents. Said award of the labour court was challenged by the petitioners as well as the present respondents before this court by filing Special Civil Application Nos. 6828 of 2004 with Special Civil Application No. 8067 of 2004 with Special Civil Application No. 7649 of 2004 to 7816 of 2004 with Special Civil Application NO. 15208 of 2005 to 15327 of 2005 with Special Civil Application No. 15329 of 2005 to 15340 of 2005 which were decided by this court (Hon'ble Mr. Justice M.R.Shah,J.) by common oral CAV Judgment dated 10.5.2005. In the said group of petitions filed by the petitioners and the State, at page 140, para 18 sub para 14, a concession was given by the learned Additional AG with regard to the directions issued by the labour court for preparation of the seniority list etc. Said directions were not disturbed as held by the learned Single Judge. However, learned Single Judge of this Court has come to the conclusion that there is no breach of section 25F,G or H of the ID Act, 1947 and the workmen were also not completing 240 days continuous service. In view of such conclusion, petitions filed by the State were partly allowed accordingly as regards breach of section 25F,G and H Of the ID Act, 1947 and continuous service as per section 25B of the ID Act by setting aside those findings given by the labour court and accordingly, petitions filed by the petitioners were dismissed by the learned Single Judge of this Court. Superintending Engineer,Sujlam Suflam Circle No.2, Mehsana has, as per letter date 21.11.2007 page 143, given details to the Under Secretary where, according to him, after giving all the details of existing posts, item in respect of daily wager page 144, according to him, in all 198 daily wagers are required against the sanctioned posts of 127 and, therefore, 71 posts are required to be created additionally and there is no surplus employee available in his office. Page 145 is a letter written by the Administrative Manager, Gujarat Water Resources Development Corporation dated 4.12.2007 addressed to the Chief Election Commissioner, Gujarat State, Gandhinagar wherein item 3 is relating to the Superintending Engineer, Palanpur Irrigation Circle,Palanpur and establishment of 150 Rojamdar has been demanded by the Administrative Authority of the Gujarat Water Resources Development Corporation Limited. Thereafter, seniority list was prepared on 29.11.2007 by the respondents Superintending Engineer, Sujlam Suflam Circle II Mehsana. Learned Advocate Mr. Mulia for the petitioner has placed on record two orders passed by this Court in SCA No. 3588 of 1995 and 3863 of 1995 and 3864 of 1995 dated 16.2.2004 wherein, similar award was passed by the labour court not granting reinstatement and ultimately petitions were filed before this Court and after considering the submissions made by the learned advocates for both the sides, this court has issued the following directions as per page 166:
"In view of above discussion, the respondents are directed that now onwards if any work is pending with the respondents where additional daily rated employees are required or any future new project / work or existing work, whenever the daily rated workers are required by the respondents, they shall give first priority to the petitioners herein while intimating them in writing seeking their willingness to report on work and the workmen concerned are ready and prepared to report on work, they shall be given first priority to employ on such work site and so long the work remain, they shall be made continued in service. The respondents are also directed not to engage any other workman except first engaging the workmen herein which, in my opinion, would also satisfy the requirement of Section 25-H of the I.D. Act, 1947 and would meet the ends of justice between the parties. It is also made clear that so long the work is available with the respondents, no artificial break shall be given to any of the workmen herein."
6.2 Thereafter, in similar circumstances, learned Advocate Mr. HS Mulia for the petitioners has annexed order of this Court dated 22nd March, 2007 in SPECIAL CIVIL APPLICATION No. 7491 of 2007 With SPECIAL CIVIL APPLICATION No. 7710 of 2007 to SPECIAL CIVIL APPLICATION No. 8071 of 2007 wherein also daily wagers about more than 565 were working with the respondents. Ultimately, after considering various aspects of the matter and back ground, following order was passed by this Court :
"9. In view of this back ground and detailed legal fight which ultimately resulted in nil, looking to the case of the petitioner, it is the duty of the State authority to consider case of petitioners, those who are without work since 15/20 years, for re-engagement. Petitioners are having award in their favour wherein the termination is set aside. Therefore, though relief of reinstatement or re-engagement has not been granted, since the termination has been set aside, it automatically includes reinstatement and/or re-engagement but specific direction has not been issued by the labour court and, therefore, they are not able to move any machinery for implementation of the award.
10. Therefore, considering the entire facts and circumstances of the case and the submissions made by the learned Advocates for the parties, it is directed to the respondents to consider case of petitioners for re-engagement of petitioners as daily wagers as and when work is available at above referred places and also consider that these are all tribal daily wagers not living in better condition in the society and therefore, it is directed to the respondents to examine grievance of petitioners raised in their notice dated 7.12.2006 with sympathetic approach purely on humanitarian ground and pass appropriate reasoned order in accordance with law within three months from the date of receipt of copy of this order and to communicate same to the petitioners immediately thereafter. Therefore, respondents are directed to consider case of petitioners with sympathetic approach purely on humanitarian approach and to see that the petitioners may be able to get work in the near future from the respondents and to pass appropriate reasoned order in accordance with law within three months from the date of receipt of copy this order and to communicate decision to the petitioners immediately thereafter. If the decision that may be taken by the respondents pursuant to these directions is adverse to the petitioners, then, it will be open for the petitioners to challenge the same before the appropriate forum in accordance with law.
11. Rule in each of the petitions is made absolute in terms indicated herein above with no order as to costs. "
6.3 It is also required to be noted that the order of this court as referred to above dated 22nd March, 2007 has been fully implemented by the respondents by issuing orders dated 4th August, 2007 from the Under Secretary, Narmada Water Resources and Kalpasar Department addressed to the Superintending Engineer, Ukai Circle-C,Ukai, meaning thereby, about more than 300 employees have been taken back as a daily wagers on the basis of the seniority list prepared by the respondents. Therefore,learned Advocate Mr. HS Mulia for the petitioners submitted that when the vacancy is available and the work is also available with the respondents, then, it is the duty of the State Authority to re-engage the petitioners by providing work to them, those who are prepared to work at any place in any division of the respondent on the same terms and conditions on which they were earlier working. He also submits that the petitioners are old workmen, remained unemployed though seniority list is prepared on 29th November, 2007. He also submitted that instead of providing work to new strange daily wagers by the State Authority, it is better that the old daily wagers are re-engaged by the State Authority and old employees are employed as daily wagers who were working since 1981, 1982 and 1983 who are still prepared to work with the respondents on the same terms and conditions and the State Authority should not discriminate them in the matter of their re-engagement in the same capacity while providing work because, otherwise, as per his submission, right under section 25H is also available to the petitioners. He submits that even if their termination has not been held to be violative of section 25F, G and H and even if it has been held that they have not been completing 240 days continuous service within the meaning of section 25B of the ID Act, 1947 as held by the learned Single Judge of this Court, then also, their termination is covered by section 2(oo) of the ID Act. Section 2(oo) of the ID Act, 1947 is reproduced as under:
"2(oo):
'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise, than as a punishment inflicted by way of disciplinary action, but does not include- xxx"
6.4 So, termination of the petitioners is amounting to retrenchment within the meaning of section 2(oo) of the ID Act, 1947. It is not necessary that unless the workman completes 240 days, then only, it has to be considered as retrenchment but any kind of termination after any kind of service, any number of days service would amount to retrenchment and case of the petitioner is covered by section 2(oo) of the ID Act, 1947.
6.5 If any workman who has been retrenched by the employer has been completing 240 days service, then, he would be entitled for the protection of section 25F of the ID Act, 1947 but if the retrenched workman is not entitled for such protection of section 25F of the ID Act, 1947, then also, such workman would be the retrenched employee as per section 2(oo)of the ID Act, 1947 and in case when new employee is to be taken by the respondent authority as a daily wager, such retrenched workman will be having legal right under section 25H of the ID Act. Section 25H of the ID Act, 1947 is providing for re-employment of retrenched workmen. Same is quoted as under:
"25-H. Re-employment of retrenched workmen.- Where any workmen are retrenched and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons."
6.6 Therefore, considering the provisions of section 25H of the ID Act, 1947, retrenched workmen are entitled for preference over other persons without considering as to whether they are entitled for protection under section 25F of the ID Act, 1947 or not. Such preferential treatment under sec. 25H has no connection whatsoever with the protection of section 25F of the ID Act, 1947.
6.7 A statement was made by the learned Advocate Mr.HS Mulia before this court that the petitioners are prepared to work at any place in any division on the same terms and conditions on which they were working earlier.
6.8 Therefore, considering the submissions made by the learned Advocate Mr. HS Mulia on behalf of the petitioners and also considering the submissions made by the learned AGP Ms. Mathur and other AGPs on behalf of the State Authority and also considering the various orders annexed by the petitioners to the petition as per which it is clear that certain posts of daily wagers are vacant and work is available with the respondent authority, it is directed to the respondents to re-engage the petitioners in any division including Palanpur, Mehsana or nearby Division, if the work is available and vacancies are available, and then to re-engage the petitioners and to provide work to the petitioners as daily wagers on the same terms and conditions on which they were earlier working with the respondents. It is directed to the respondents to complete the exercise within the period of one month from the date of receipt of copy of this order as the petitioners are prepared to work in any division where ever work is available with the respondents, therefore, to pass appropriate orders for re-engagement of the petitioners and to provide work to them as daily wagers where ever work is available with them in any division within the period of one month from the date of receipt of copy of this order and inform the petitioners accordingly.
6.9 With these observations and directions, these petitions are disposed of without expressing any opinion on merits of the matter. Direct Service is Permitted Today."
This order and direction which has been issued by this Court has not been complied with by other side, therefore, a legal notice dated 4th May, 2011 has been served to other side, page 23, Annexure 'B' by petitioner.
In response to said legal notice, answer has been given to advocate of petitioner by Superintending Engineer on 11th May, 2011 that whatever representation is to be made, that should have to be made personally after obtaining necessary permission. On page 34, Superintending Engineering, Sujalam Sufalam Circle II, Mehsana addressed a letter to Under Secretary of respondent No.1 dated 13th May, 2010, wherein, decision given by this Court in respect of present petitioner has been accepted and respondents are prepared to consider direction issued by this Court, because, these all 15 daily wagers are to be accommodated or absorbed in irrigation work. Therefore, request was made by Superintending Engineer to Under Secretary - respondent No.1 to pass appropriate orders or issue appropriate direction, for that, recommendation was made by Superintending Engineer.
In light of this back ground, it is directed to respondent No.1 - Secretary, Water Resources and Irrigation Department to take appropriate decision in respect of letter dated 13th May, 2010 from Superintending Engineer, Sujalam Sufalam Circle II, Mehsana as early as possible and extend benefits as per direction issued by this Court in order as referred above within a period of two months from date of receiving copy of present order and communicate decision to petitioner immediately.
In view of above observation and direction, present petition is disposed of by this Court without expressing any opinion on merits.
Direct service is permitted.
[H.K. RATHOD, J.] #Dave Top