Gujarat High Court
Prahladbhai Shantibhai Pandya vs District Collector & on 16 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10378/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10378 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
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PRAHLADBHAI SHANTIBHAI PANDYA....Petitioner(s)
Versus
DISTRICT COLLECTOR & 1....Respondent(s)
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Appearance:
MR PH PATHAK, ADVOCATE for the Petitioner(s) No. 1
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
NANAVATI & NANAVATI, ADVOCATE for the Respondent(s) No. 2
RULE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/09/2016
ORAL JUDGMENT
1 By this writ application under Article 226 of the Constitution of India, the writ applicant, a former employee of a Trust, has prayed for the following reliefs:
Page 1 of 11HC-NIC Page 1 of 11 Created On Wed Sep 21 02:04:23 IST 2016 C/SCA/10378/2003 JUDGMENT "13 (A) This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or certiorari or other appropriate writ, order or direction, declaring the impugned decision on the part of respondents not to regularise the petitioner in service as Poojari and to deprive him the benefits and status of permanent employee and also denying him the payment of salary etc at par with his juniors refereed to in the petition, as arbitrary, illegal, unjust and in violation of Article 14 and 16 of the Constitution of India and be pleased to direct the respondents to grant him all consequential benefits as per the resolution dt. 17.10.88 from retrospective date and pay him arrears with 18% interest.
B. Pending admission and final disposed of this petition be pleased to restrain the respondents from termination, discharging and/or discontinuing the services of petitioner and further direct the respondents to pay to the petitioner all the benefits of resolution dt. 17.10.88 forthwith.
C. Any other relief to which this Court deems fit and proper in interest of justice together with cost."
2 On 21st September 2004, the following order was passed:
Rule.
Heard Mr PH Pathak, learned counsel for the petitioner and Ms Mita S Panchal, learned AGP for the respondents on the question of interim relief.
2. The petitioner is a daily wager pujari at the temple run by the respondents. When the petitioner joined the service as daily wager pujari in the year 1983, the petitioner was aged 38 years. It appears that when the respondents considered the case of a number of employees for regularization and for placing them in the payscale of Rs.25503200 which is the payscale of ClassIV employees, the respondents did not consider the petitioner to be eligible for such regularization on the ground that the petitioner had crossed the upper age limit of 40 years and also on the ground that the petitioner did not possess the requisite qualifications for the post of pujari. Hence, the petitioner has approached this Court.
3. As far as the age limit is concerned, there is no dispute about the fact that when the petitioner joined as daily wager pujari in the year 1983, the petitioner was within the age limit because at that time the petitioner was 38 years old and, therefore, the petitioner was within the age limit of 28 and 40 years. When the petitioner was already within the age limit at the time of initial employment under the respondents, may be as a daily wager, the petitioner will have to be considered as within the age limit at the time of subsequent regularization of service.Page 2 of 11
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4. As far as the qualification is concerned, Mr Pathak for the petitioner states that the petitioner possesses the qualification also because for the post of pujari a person is required to have the knowledge of Yagna and Karmakand and experience of Tantrik pooja. The petitioner has been performing the Yagna, Karmakand and Tantrik pooja for the last 16 years. The respondents have not prescribed any particular educational qualification being awarded by any particular institution which must be possessed by a pujari.
5. It is the case of the respondents that there are two other regular priests and one daily wager pujari and sagrid over and above the petitioner. It is the petitioner's case that the daily wager pujari and sagrid are junior to the petitioner and that although they are junior, they are regularized.
6. It also appears that the peons, watchmen and other employees are being paid salary in the payscale of Rs.25503200. However, because the petitioner is being treated as a daily wager, the petitioner is paid wages according to the Minimum Wages Act which comes to about Rs.83/ per day and, therefore, the petitioner, who is a pujari, is paid salary which is much lower than the salary being paid to the peons, watchmen or to the cook or even to the persons who are cleaning the utensils. It, therefore, appears that the respondent authorities have not at all considered the petitioner's case for regularization on the basis of the relevant considerations.
7. In the facts and circumstances of this case, the respondents are, by this interim order, directed to consider the petitioner's case for regularization in light of the observations made in this order within two months from the date of receipt of the writ of this Court or a certified copy of this order. It is directed that the petitioner's case is required to be considered for regularization and there can be no question of termination of the petitioner's services merely because the petitioner has approached this Court. The respondents shall not terminate the petitioner's services during pendency of this petition.
Direct Service is permitted."
3 It appears that pursuant to the interim relief granted by this Court, the writ applicant to continue to serve as a daily wager 'Pujari'. However, after sometime, he left the service and I am told that as on date, he is not serving as the 'Pujari' in the Temple.
4 The short point for my consideration is whether the Trust is a
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"State" within Article 12 of the Constitution of India or an instrumentality of a "State" so as to make this writ application maintainable.
5 A learned Single Judge of this Court in the case of Jagdishbhai S. Vyas vs. District Collector, Mehsana [Special Civil Application No.3931 of 2004 decided on 21st July 2004] took the view that the Baucharaji Mataji Temple Trust at Mehsana cannot be said to be a "State" withing the meaning of Article 12 of the Constitution of India. I may quote the observations made by the learned Single Judge as under:
"Heard the learned advocates.
1. Draft amendment in each petition is allowed.
Amendment shall be carried out forthwith.
2. These two petitions have arisen from the order of retrenchment dated 23rd March 2004 made by the respondent no.2 Shree Bahucharaji Mataji Temple Trust (hereinafter referred to as 'the Trust').
3. It is not in dispute that the Trust manages the administration of Shree Bahuchraji Mataji Temple, Mehsana district and the activities attached to the Temple. It is not in dispute that the petitioners were engaged by the Trust to carry out various activities. By the impugned order the Trust has retrenched the petitioners and has paid retrenchment compensation in accordance with the Industrial Disputes Act, 1947. Feeling aggrieved the petitioners have preferred the present petition.
4. Learned advocate Mr. Mehta has relied upon the Scheme for administration and management of the Trust. He has submitted that the said scheme stipulates that the properties of the Trust shall vest in the State Government; that one of the members of the managing committee of the Trust shall be appointed by the State Government; that the power to supersede the committee is vested in the Government. Hence in the submission of Mr.Mehta the Government exercises all pervasive control over administration and management of the Trust. The functions carried out by the Trust are Governmental functions. The Trust is, therefore, a State within the meaning of Article 12 of the Constitution of India. Mr. Mehta has submitted that the petitioners have been employed by the Trust for a long time. Some of the petitioners have been serving for more than 30 years. Petitioners' services have been terminated with a view to engaging man power on Page 4 of 11 HC-NIC Page 4 of 11 Created On Wed Sep 21 02:04:23 IST 2016 C/SCA/10378/2003 JUDGMENT contract basis. Thus the petitioners are clearly exploited. The impugnedretrenchment lacks bonafide and the same, therefore, requires to be quashed and set aside.
5. The petitions are contested by the Trust. It is denied that the Trust is a State within the meaning of Article 12 of the Constitution of India. It is stated that no financial assistance is extended by the State Government to the Trust. Mr. Nanavati has submitted that in the subject matter of the present petition the petitioners being apprehensive of their service had earlier preferred Special Civil Application No. 1288 of 2004 which the petitioners withdrew, reserving "the right of petitioners to challenge the apprehended action at appropriate stage before the appropriate forum." Mr. Nanavati has submitted that what was probably intended was that in the event of retrenchment / termination of service the petitioners should avail of the remedy available before the court / tribunal other than the petition under Article 226 of the Constitution of India. However, the said fact has been suppressed and a misleading statement is made in paragraph no. 3.4 of the petition. It is stated that " the petitioners withdrew the said petition reserving their right to challenge the apprehended action of the respondents ". He has submitted that the words "before the appropriate forum" have been deliberately not referred to in the said paragraph. He has further submitted that in view of the loss incurred by the Trust, the Trust has decided to curtail its activities and, therefore, the excess staff have been retrenched. Though the Trust is not an industry within the meaning of section 2 (j) of the Industrial Disputes Act,1947; by abundant caution the Trust has paid retrenchment compensation to each petitioner. He has submitted that the retrenchment has been effected in order of seniority. The junior employees have been retrenched first.
6. It is evident that the management of the Temple was taken over by the State Government and was entrusted to the Trust. One of the members of the managing committee is the officer of the State. State Government has also framed certain rules requiring the Trust to pay wages to the employees as directed. However, this alone would not make the Trust a State within the meaning of Article 12 of the Constitution of India; nor the Trust performs governmental functions of the State. The Trust can not be said to be a State within the meaning of Article 12 of the Constitution of India. The retrenchment has been effected after approval of the State Government in order of seniority. Each of the petitioners has been paid retrenchment compensation. There is nothing on record to indicate that the petitioners' service has been terminated with a view to engaging another set of employees.
7. Mr. Nanavati has further submitted that though the order of retrenchment was made on 23rd March, 2004; the said order was served upon the petitioners on 23rdMarch, 2004; retrenchment Page 5 of 11 HC-NIC Page 5 of 11 Created On Wed Sep 21 02:04:23 IST 2016 C/SCA/10378/2003 JUDGMENT compensation was paid to each petitioner; the petitioners have filed civil application no. 2063 of 2004 on 25th March, 2004 without disclosing the fact that the order of retrenchment was served upon the petitioners and that the retrenchment compensation was also paid to them.
8. In above view of the matter, neither the Trust can be said to be a State within the meaning of Article 12 of the Constitution of India, nor the order of retrenchment can be said to be contrary to any law or to the conditions of service of the petitioners. Hence the petitions are dismissed. Notice in each petition is discharged.
Civil application stands disposed of. Ad interim relief stands vacated.
9. Mr. Mehta states that the adinterim relief may be extended for a period of one week. The petitioners have already been retrenched from service, hence the request is rejected."
6 It appears that the judgment passed by the learned Single Judge was carried in appeal before the Division Bench. The Letters Patent Appeal No.1524 of 2004 came to be dismissed vide judgment and order dated 3rd February 2006, which reads as under:
"In both these appeals, the appellants, original petitioners, have challenged the validity of a common judgment delivered in Special Civil Applications Nos. 3931 and 3667 of 2004 dated 21st July, 2004. In view of the said fact, at the request of the learned advocates, both the appeals have been heard together.
2. The facts giving rise to the said petitions, in a nutshell, are as under: 2.1 The original petitioners were working under Bahucharaji Mataji Temple Trust, respondent No. 2 herein in different capacities like peons and watchmen. Respondent No. 2Trust wanted to reorganize its activities and, therefore, it retrenched the petitioners and other similarly situated persons, by orders dated 23rd March, 2004 upon payment of retrenchment compensation as per the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the ID Act'). It was specifically stated in the retrenchment orders that the provisions of the ID Act were not applicable to the Trust, but for sake of abundant caution, the Trust had paid retrenchment compensation to the petitioners. The said orders were challenged in the aforesaid writ petitions, which have been rejected, and being aggrieved by the order of rejection, the petitioners have filed these Page 6 of 11 HC-NIC Page 6 of 11 Created On Wed Sep 21 02:04:23 IST 2016 C/SCA/10378/2003 JUDGMENT appeals.
3. Learned advocate Shri Saurabh Mehta appearing for the petitioners has submitted that respondent No.2Trust is a 'state' within the meaning of Art.12 of the Constitution of India. As the Trust is a 'state' within the meaning of Art. 12 of the Constitution of India, the petitions filed by the petitioners were maintainable and the petitioners should not have been retrenched from service. According to him, the Trust has made an effort to fill up the posts held by the petitioners by giving contracts to some other persons. In fact, the intention of the employer Trust was to relieve the petitioners from their posts and to appoint other persons under the guise of giving contract for the same work. He has drawn our attention to the advertisement issued by the Trust for inviting offers from persons interested in doing the work which the petitioners were doing and has submitted that such an action on the part of the Trust is not permissible in law.
4. He has relied upon the judgment delivered in the cases of Gujarat State Fertilizer Co. Ltd. & Anr. v. Association of officers, GSFC, Fertilizernagar, 1995(2) GLH 179; Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others, AIR 1989 SC 1607; and Uptron India Ltd. v. Shammi Bhan and anr., AIR 1998 SC 1681.
5. So far as the judgment delivered in the case of Gujarat State Fertilizer Co. Ltd. (supra) is concerned, it has been relied upon to show that the petitioners have a right to livelihood and, therefore, their services ought not to have been terminated by the Trust, which is a state.
6. So far as the judgment delivered in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others (supra) is concerned, it has been relied upon to submit that mandamus could have been issued by the learned single Judge.
7. It has been thereafter submitted that according to the law laid down by the Hon'ble Supreme Court in the case of Uptron India Ltd. (supra), when the 'State' is the employer, service of a person cannot be terminated except in accordance with law.
8. He has also relied upon the judgments delivered in the case of R.D. Shetty v. International Airport Authority of India, AIR 1979 SC 1628; and in the case of Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 :
AIR 1981 SC 487 to substantiate his above submissions.
9. He has thereafter submitted that the learned single Judge has committed an error by coming to a conclusion that the Trust is not a Page 7 of 11 HC-NIC Page 7 of 11 Created On Wed Sep 21 02:04:23 IST 2016 C/SCA/10378/2003 JUDGMENT 'State'. It has been submitted by him that the District Collector of District Mehsana is one of the trustees, who is managing the affairs of the respondent Trust and he is the main person on the Board, which has been constituted by the State of Gujarat. As the said Board is having control over the temple managed by the Trust, the Trust is a 'State' within the meaning of Art. 12 of the Constitution of India and, therefore, the learned single Judge should not have held that the Trust is not a 'State'.
10. For the aforesaid reasons, it has been submitted that the impugned judgment delivered by the learned single Judge is bad in law and the said judgment should be quashed and set aside and the petitioners should be reinstated in service.
11. On the other hand, learned advocate Shri D.G. Shukla appearing for respondent No.2Trust has submitted that the impugned judgment is just, legal and proper. He has also submitted that if the petitioners desire to challenge the orders of retrenchment by having recourse to the provisions of the ID Act, the Trust would not raise any objection about the maintainability of their cases before the Labour Court.
12. It has been thereafter submitted by him that, in fact, respondent No.2 Trust is not a 'State' as rightly held by the learned single Judge. So as to substantiate the said submission, he has relied upon the following observations made by the Hon'ble Supreme Court in the case of Chander Mohan Khanna v. National Council of Educational Research and Training and others, (1991) 4 SCC 578. Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression ?State?. A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern concept of /Welfare State, independent institution, corporation and agency are generally subject to State control. The State control, however vast and pervasive is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is ?State.? If the government operates behind a corporate veil, carrying out governmental activity and governmental functions of vita public importance, there may be little difficulty in identifying the body as ?State' within the meaning of Article 12 of the Constitution.?
13. It has been submitted by him that in the instant case there is no financial contribution of the State in the management of the Trust as the Trust is being managed and run only on the donations received from the general public.Page 8 of 11
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14. Thereafter he has submitted that even a Division Bench of this Court in the case of Dr. C.A. Shah v. Gujarat Cancer & Research Institute, Ahmedabad, 33(1) 1992(1) GLR 687 has taken a similar view. In the said case, the question was whether Gujarat Cancer & Research Institute, Ahmedabad can be said to be a 'State' within the meaning of Art. 12 of the Constitution of India. It is pertinent to note that in the aforestated case decided by this court, substantial financial assistance was being rendered to Gujarat Cancer and Research Institute by the State government and yet it was not treated as a 'State' by this court. In the instant case, the Trust is also not performing any public duty or function of the State.
15. He has also relied upon the judgment delivered by this court in the case of Gujarat State Fertilizer Co. Ltd. & Anr. (supra) wherein it was held that Gujarat State Fertilizer Co. Ltd., which had been promoted by the State of Gujarat and though its majority shares were held by the government financial institutions and nationalized banks, it was not a ? State? within the meaning of Art. 12 of the Constitution of India.
16. He has thereafter submitted that the petitioners ought to have exhausted equally efficacious alternatively statutory remedy available under the provisions of the ID Act. He has submitted that whenever there is any equally efficacious alternative statutory remedy available to a litigant, the litigant must, first of all, exhaust such a remedy. So as to substantiate the said submission, he has relied upon the judgments delivered by the Hon'ble Supreme Court in the case of U.P. Jal Nigam and Anr. v. Nareshwar Sahai Mathur and Anr., (1995) 1 SCC 21 and in the case of Scooters India & Ors. v. Vijai E. Eldred, (1998) 6 SCC
549.
17. Thus, learned advocate Shri Shukla appearing for the Trust has submitted that the judgment delivered by the learned single Judge is just, legal and proper and the appeals deserve to be dismissed.
18. We have heard the learned advocates at length and have also considered the judgments cited by them. We have also gone through the record pertaining to the case, and in our opinion, the view expressed by the learned single Judge is just and proper.
19. It is pertinent to note that the employer Trust cannot be said to be a "State" within the meaning of Art. 12 of the Constitution of India. If one looks at the observations made by the Hon'ble Supreme Court in the case of Chander Mohan Khanna (supra), it is very clear that the Trust can never be treated as a State. The Hon'ble Supreme Court has considered several factors which should be considered before considering a particular institution as a 'State' within the meaning of Art. 12 of the Constitution. Looking to the observations of the Hon'ble Supreme Court, which have been reproduced hereinabove, we are of the view that the learned single Page 9 of 11 HC-NIC Page 9 of 11 Created On Wed Sep 21 02:04:23 IST 2016 C/SCA/10378/2003 JUDGMENT judge has rightly come to the conclusion that the Trust is not a 'State'.
20. In the instant case, it is an admitted fact that the Trust is not getting any financial aid from the State of Gujarat. On the Board, which manages the Trust, there is only one member who is a government officer and other members of the Board are respected citizens or residents of a particular area. Simply because one of the members of the Board is the Collector of the District, it cannot be said that the said Trust is a ?State?, especially when no financial assistance is given to the Board for managing the Trust and no function of the State is performed by the Trust. We, therefore, agree with the findings arrived at by the learned single Judge that respondent No.2Trust is not a ?State?.
21. We are in agreement with the submission made by learned advocate Shri Shukla appearing for the Trust that the petitioners ought to have approached the Labour Court under the provisions of the ID Act. He has fairly submitted that though in the orders, whereby the petitioners were retrenched from service, it has been stated that the provisions of the ID Act are not applicable to respondent No.2Trust, no objection with regard to jurisdiction would be raised before the Labour Court if the petitioners approach the Labour Court for challenging the validity of the retrenchment orders.
22. We are also of the view that very often in the matter of retrenchment, disputed questions of fact are involved and, therefore, it is always better for a litigant to exhaust equally efficacious alternative statutory remedy at the first instance as observed by the Hon'ble Supreme Court in the case of U.P. Jal Nigam & Anr. (supra)and in the case of Scooters India & Ors. (supra).
23. For the aforesaid reasons, we see no reason to interfere with the judgment delivered by the learned single Judge. We, therefore, dismiss the appeals. There shall be no order as to costs.
In view of dismissal of the appeals, the civil applications do not survive and they are disposed of as rejected."
7 In view of the above, I hold that this writ application is not maintainable. Even otherwise, by virtue of the interim order, the writ applicant continued in service upto 2007 and has retired. This writ application is accordingly disposed of. Rule is discharged.
(J.B.PARDIWALA, J.)
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chandresh
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