IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5686 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Labour Judge and Industrial Member ? : --------------------------------------------------------- NALINKUMAR A THAKAR Versus GUJARAT STAE CIVIL SUPPLIES CORPORTION LTD -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5686 of 1991 MR DC RAVAL for MR MR ANAND for Petitioners MR KM PATEL for Respondent No. 1 NOTICE SERVED for Respondent No. 2-5 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 11/04/2002 ORAL JUDGEMENT What is obvious is always known and what is known is not always present. ... John Preface Dictionary. 1. Heard the learned counsel for the petitioner Mr. D.C. Raval for Mr. M.R.Anand Sr. Advocate, for the petitioner and Mr. K.M. Patel, learned advocate on behalf the respondent. 2. In the present case, the petitioners have challenged the order of termination passed by the respondent with a prayer to reinstate them with all consequential benefits along with back wages for the interim period. This Court has issued the rule on 6-12-1991 and the following order has been passed : "Rule. Interim relief restraining the respondents from confirming the persons mentioned in paragraphs 4 and 5 of the petition and directing the respondent to give preference to petitioners as and when temporary and adhoc appointments are to be made to the post in question. It is also directed that the petitioners will be considered for the post in question for regular appointments if and when regular vacancies arise in accordance with the rules and regulations applicable to the post in question. Liberty to the petitioners to join persons named in paragraphs 4 and 5 as party respondents." 3. The respondent has filed the affidavit-in-reply on 3-8-2000. Against that the rejoinder has been filed by the petitioner on 29-6-2001 and the additional affidavit-in-reply has been filed by the respondent on27-12-2001. Thereafter, additional rejoinder has been filed by the petitioner on 20-3-2002. 4. The case of the petitioners is that the respondent Corporation is the State authority and services of the petitioners have been terminated while continuing the juniors. All the petitioners started their services in May, 1990 by the orders dated 4-5-1990. The appointments orders were issued in favour of the petitioners on temporary basis and for the fixed period. They have been continued by the periodical orders of extension of service. The services of the petitioners were terminated on 23-11-1990 on the ground that their services are not needed. The services of the petitioners were terminated without any notice and without giving any opportunity of being heard to the petitioners. The nature of the work which was performed by the petitioners as delivery boy/packers. They have to fill the patrol in the vehicles coming to the patrol pump of the respondent. Their services were terminated without giving any reason in the termination order and without any justification by the respondent whether the juniors to the petitioners were continued in service even subsequently new employees on the same terms were employed on the same place of the respondent. According to the petitioners, Kishanbhai H. Solanki was recruited on 4-10-1990 and one Karshanbhai S. Vankar was recruited on 12-11-1990. Both these persons are continued when the services of the petitioners were terminated by the respondents. According to the petitioners, they are very hard workers and many times they were working upto 15/16 hours every day and still they are treated in this fashion and discriminated against the appointment order of Kishanbhai H. Solanki and Karshanbhai S. Vanker. The appointment orders of these persons will be produced by the petitioners at the time of hearing of the petition. According to the petitioners, they made a representation to the higher authority against the said termination. Meanwhile, one Hareshkumar Natvarlal Parekh was appointed in the petitioners' post by the order dated 3-12-1990. Not only that one Bipinkumar D. Bhatt has been recruited on 16-7-1991. These all persons were directly recruited identically in the same manner as the petitioners were recruited by the respondent. Last person Shri Bhatt was even age bar but he was taken up while continuing the services of the petitioners and keeping silence about the representation of the petitioners. According to the petitioners, the order of termination is illegal, unconstitutional and null and void. The order of termination is arbitrary and violative of Articles 14 and 16 of the Constitution of India on the ground of discrimination and malafide and the respondents have continued the juniors to the petitioners and their recruitment is made in the same manner and in the place of the petitioners. According to the petitioners, so far as one Kishanbhai Solanki is concerned, his only qualification was that he was working at the residence of the Chief Managing Director Shri Jagdishan. The petitioners are sacrificed by a public sector unit to satisfy the personal needs and whims of the Managing Director. The order of termination is contrary to the principles of natural justice which resulted into hardships and livelihood of the petitioners and it amounts to gross abuse of powers by the State authority. Therefore, the prayer is made to quash and set aside the order of termination and grant all the benefits as if the termination order is never passed with all back wages of interim period. 5. Annexure - A is the appointment order issued favour of the petitioner wherein it is mentioned that the petitioner was appointed on the basis of 29 days fixed salary on daily rated basis and his services can be terminated at any time without any reason. 6. Annexure-B is the order of the petitioner on the same terms and Annexure-C is also the appointment order in favour of the petitioner in the same term. Page 15 is the order of termination of one Shri N.R. Thakar. Identical orders 23-11-1990 have been issued in favour of other petitioners which are at Page 16 and 17. The appointment order of the petitioners is dated 4-5-1990. Therefore, the petitioners were working continuously with the respondent from 4-5-1990 to 23-11-1990 in the prescribed scale. Page 18 Annexure-C is the representation of the petitioners wherein the petitioners were appointed with Kishanbhai H. Solanki and Karshanbhai S. Vanker and both these persons were appointed on 4-10-1990 and 12-11-1990 and they are continued with the respondent. According to the petitioners, the said representation remained unanswered and without any response from the respondent. 7 The affidavit-in-reply has filed by the respondent, wherein it is averred that the petitioners were appointed as packers/delivery boy on purely temporary basis and all the petitioners have worked for less than six months. Their appointments were made without following procedure for selection required to be followed for making permanent appointment. The petitioners have no right to continue in service as their disengagement from service is with effect from 23-11-1990. Therefore, the termination order is not in any way illegal or unjustified. The appointment in favour of Kishanbhai S. Vankar, Karshanbhai S. Vanker, Hareshkumar N. Parekh and Bipinbhai D. Bhatt subsequent to termination of the petitioners does not vitiate the action of the respondent in not renewing the term of the employment of the petitioners. According to the respondent, no discriminatory treatment has been given to the petitioners and the order of termination is not arbitrary or violative of Article 14 and 16 of the Constitution of India. 8. In the rejoinder of the petitioners, they have narrated almost the same facts which were narrated in the petition. Therefore, it is not necessary to refer to the same averments which were made in the petition. It is necessary to note that five persons K.B. Girnar, M.K. Acharya, J.R. Thaker, Parmabhai B. Patel and Haresh P. Thakkar were made permanent in the same post by the respondent on 19-6-1991, 11-7-1991, 11-7-1991, 16-2-1993 and 3-4-1993 respectively. 9. The respondent has filed additional affidavit-in-reply wherein it is mentioned by the respondent that the petitioners has no right to hold substantive post. So far as the case of Kishanbhai H. Solanki, he was made permanent on 14-6-1991 prior to passing of the interim order by this Court. It is not correct and therefore denied that Hareshkumar N. Parekh and Bipinkumar D. Bhatt were appointed in place of the petitioners. The petitioners were appointed due to exigency of the work on 4-5-1990 because some of the employees working on the patrol pump were placed under suspension and in order to ensure that that the work does not suffer, the petitioners came to be employed as temporary employees. The petitioners were relieved by the order dated 23-11-1990 and they had put hardly about six months' service. If the temporary employees working with the respondent on different establishment and are continued, it does not confer any right on the petitioners to continue in service. 10. Thereafter, the petitioners have filed additional rejoinder pointing out that Kishanbhai H. Solanki was recruited on 4-10-1990 and Karshnabhai S. Vanker was recruited on 12-11-1990 prior to termination of the petitioners as daily wages. Both these persons are juniors to the petitioners were working as daily rated employees when the services of the petitioners were terminated and they were continued in service on the same terms and on the same post. Shri Hareshkumar N. Parekh was appointed on 3-12-1990 on the same post which was holding by the petitioners. Shri Bipinbhai D. Bhatt was appointed on 16-7-1991 on the same terms subsequent to the termination of the petitioners. Both these persons were appointed as delivery boy/packers on the same terms for which the petitioners were working with the respondent. Along with the additional rejoinder, the petitioners have produced the appointment order of Kishankuamr H. Solanki dated 4-10-1990 wherein it is mentioned that he was appointed as daily rated employee at patrol pump at Gandhinagar on the same terms as the petitioners were appointed. Second order dated 12-11-1990 Karshan S. Vanker who was appointed as daily rated employee at patrol pump at Gandhinagar on the post of packers/delivery boy on the same terms which were applied to the petitioners. Third order is respect of Shri Hareshkumar N. Parekh who was appointed on 3-12-1990 as daily rated at the patrol pump, at Gandhinagar. The fourth order is of Mr. Bipinbhai D. Bhatt dated 16-7-1991 who was appointed as adhoc employee at the patrol pump at Gandhinagar. 11. Learned counsel for the petitioners Mr. Raval on the basis of this factual aspect which has been narrated in the petition, replies and rejoinders submitted that it is an undisputed situation that two junior persons were continued at the time of termination of the petitioners and no reasons have been given by the respondents at the time of termination of the petitioners and no reasons have been incorporated in the order of termination. In the termination it is only mentioned that the petitioners' services are not required or needed by the respondents. During the services of the petitioners, the junior persons were appointed and they remained continue with the respondent and subsequently they were confirmed by the respondent. Therefore, it is clear case of discrimination, arbitrariness and Article 14 and 16 of the Constitution of India which is having mandate against the State Authority to act in any just, right and fair manner and not in arbitrary manner. He also submitted that in para 5 of the rejoinder the names of such persons have been given by the petitioners at page 23. He also submitted that all these junior persons were subsequently appointed on the same post at patrol pump at Gandhinagar. Therefore, he submitted that the respondent has given reason for appointment of the petitioners that because of suspension of some workmen they require the work and therefore and therefore the petitioners were appointed. Similarly, no reason has been given by the respondent while terminating the services of the petitioners. He also submitted that it is a burden upon the respondent to justify the termination of the petitioners when challenge to the termination of the petitioners is made by the petitioners on the ground of discrimination, arbitrariness, malafide, the respondent should have disclosed the correct reason before this Court. But in the reply as well as the additional reply, respondents have not given any reason or any justification for terminating the services of the petitioners which hit by Article 14 of the Constitution of India. 12. He also submitted that the principle of last come first go is also violated by the respondent and therefore also termination of the petitioners is also illegal and contrary to Article 14 and 16 of the Constitution of India and therefore the same is required to be quashed and set aside. He relied on certain decisions of the Apex Court as well as this Court, which are as under : i. In the case of the Manager, Govt. Branch Press and Another V. D.B. Belliappa, reported AIR 1979 SUPREME COURT 429, para 23-24. ii. In the case of Harijan Govind Jadav Vs. The State of Gujarat & Others, reported in 1987 G.L.H. 200, para 2 and 3. iii. In the case of Patel Ashokkumar Babulal Vs. State of Gujarat, reported 1996 (2) G.L.R. 535, (para 9). iv. In the case of Lashiben Amitji Vs. O.N.G.C. and others, reported in 2002 (4) G.L.R.3372, Head Note. B & pr.15. v. In the case of Surendranagar District Panchayat Employees Union and Others Vs. Surendranagar District Panchayat through the Secretary and others, reported in 1988 (2) G.L.H. UJ 15, principle of last come, first go, has been examined by this Court. vi. In the case of Rajkot Municipal Corporation Vs. Kishor Govind reported in 1996 (1) GCD 281. 13. Learned Advocate Mr. K.M. Patel appearing on behalf of the respondent submitted that the appointments of the petitioners were not after selection and after following the regular procedure of recruitment. He also submitted that the appointments were conditional for prescribed period for 29 days and as per the said conditions services of the petitioners were terminated by the respondent. The petitioners were daily rated employees as required to be appointed just to meet with the exigency occurred due to suspension of some of the employees working at different patrol pumps. Duration of the service of the petitioners is less than six months. He also submitted that the names of the persons mentioned in para 5 of the affidavit-in-rejoinder and the said five persons are not covered by the interim order passed by this Court. He also submitted that the petitioners were daily rated and were appointed on periodical basis and hence they have no legal right to remain continue in the post in question and it was not the case of retrenchment as none of the petitioners have completed 240 days within a period of 12 months. 14. He also submitted that the seniority of such employees is not kept and it is very difficult to maintain seniority of temporary employees because they were appointed in the entire Gujarat on various establishments. He also submitted that none of the provisions of the Industrial Disputes Act, 1947 has been violated by the respondent. he also submitted that there is no discrimination or arbitrariness in exercise of the powers by the respondent as daily rated employees have no legal right to remain in service. He has relied on the decision in the case of Himanshu Kumar Vidyarthi and others V. State of Bihar and others, reported in AIR 1997 SC 3657. He also relied on the decision of the Apex Court in the case of Ratan Singh V. Union of India and Another, reported in 1997 (II) SCC 396 15. He also relied on the decision of the Apex Court in the case of Ashwani Kumar and others V. State of Bihar and others, reported in AIR 1997 SC 1628 Head Note-B. 16. He also relied on the decision of the Apex Court in the case of Chandigarh Administration and another Vs. Jagjit Singh and another, reported in AIR 1995 SC 705 para 8 and AIR 1980 SC 2054. 17. In the decision of the Supreme Court in the case of Birla VXL Ltd. Vs. State of Punjab and Others, reported in AIR 1998 SCW 3899. 18. I have considered the submissions made by learned both the advocates and also authorities which are cited by both the advocates. 19. The question to be examined by this Court is legality and validity of termination order which has been passed by the respondent; whether the respondent has acted in arbitrary manner, discriminatory, colourable exercise of power, mala fide or not and whether the respondent has justified the termination of the petitioners or not. 20. Most of the facts which are mentioned in the petition, affidavit-in-reply and rejoinder are not in dispute. The date of appointment of the petitioners, date of termination of the petitioners and date of appointment of juniors to the petitioners and confirmation of the persons those who were subsequently appointed, are not in dispute between the parties. It is also not in dispute that two persons namely Kishanbhai H. Solanki who was recruited on 4-10-1990 and Karshanbhai S. Vankar was recruited on 12-11-1990 during the tenure of the petitioners and they were continued at the time of termination of the petitioners. It is not the case of the respondent that their services were also terminated along with the petitioners. It is also not in dispute that Hareshkumar N. Parekh was appointed on 3-12-1990 and Bipinbhai D. Bhatt was appointed on 16-7-1991 on the same post for the same work, same terms and in the same pay scale as well as at the same place. Therefore, one question arises that what is the justification with the respondent to terminate the services of the petitioners while retaining aforesaid junior persons and subsequently fresh hands means new persons were recruited in the place of the petitioners. One thing is very clear that the nature of the work which was being performed by the petitioners was permanent in nature. The petitioners were not appointed to any specific work nor they were appointed on any specific project. Initially, the petitioners were appointed on the basis of 29 days. Thereafter, no order of extension has been produced by the respondent because no such extension was given but they were remained in service upto 23-11-1990. In the impugned termination orders no reasons have been given by the respondent and in the two replies filed by the respondent, the respondent is not able to justify the termination order of the petitioners. It is the duty of the respondent being a State Authority when their action is under challenge, they shall have to justify the termination orders of the petitioners as to why the services of the petitioners were terminated by the respondents while continuing the juniors to the petitioners working on the same post and same place. Therefore, apparently the termination of the petitioners amounts to discrimination, arbitrariness and colourable exercise of powers. Absence of the reasons and justification by the respondent this Court is having no option except to believe the fact that the respondent remained silent behind the back of the petitioners which has become foundation to terminate the services of the petitioners. But the real reasons have not been disclosed by the respondent that clear intention that they have to face other consequences. Therefore, the respondent remained silent about the reasons and justification of termination of the petitioners purposely and not disclosed any reason for termination of the petitioners. The respondent has disclosed the reason for appointment of the petitioners that because some of the persons were suspended by the respondents working on the same post which required appointment of the petitioners. If the appointment of the petitioner has been justified but the termination of the petitioners is not justified by disclosing the reasons by the respondents. Therefore, something has been concealed by the respondent from the Court not to disclose the reason to the Court that terminating the services of the petitioners. Article 14 and 16 of the Constitution are applicable to the case of temporary employees or daily rated employees if their services are terminated without any reason and without any justification while continuing the juniors in service on the same post and same place and subsequently the new persons have been recruited in the same post and same place and same terms. 21. Therefore, considering this aspect the matter requires to be considered on some of the observations made by the Apex Court and various High Courts. (i) In the case of M.S. Grewal and Another Vs. Deepchand Sood And others, reported in 2001 (8) Supreme Court cases 151, wherein it has been observed as under : "Para 27 : The decision of this Court in D.K. Basu Vs. State of W.B. comes next. This decision has opened up a new vista in the jurisprudence of the country. The old doctrine of only relegating the aggrieved to the remedies available in the civil law limits stands extended since Anand, J. (as His Lordship then was) in no uncertain terms observed : SCC p. 439, para 45) "The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim - civil action for damages is a long-drawn and a cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen, is therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family." (para 28 - Currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system affectation of the people has been taken note of rather serious and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of the civil court's obligation to award damages. As a matter of fact the decision in D.K. Basu has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual felicity of expression firmly established the current trend of "justice-oriented approach". Law courts will lose their efficacy if they cannot possibly respond to the need of the society technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice." (ii) Rajkot Municipal Corporation Vs. Kishor Govind reported in 1996 (1) GCD 281 (Guj), wherein it has been observed as under : "The Scheme envisage that the provisions of section 25C to 25F applies only to the establishments mentioned in section 25A and not to every industry generally falling under section 2 (j) of the Act. However, sections 25F, 25G and 25H are not hit by section 25A. Therefore, the provisions of Section 25B, 25F, 25G and 25H of the Act are applicable to every establishment to which the provisions of the Industrial Disputes Act apply. section 25B merely defines what is meant by continuous service for the period for the purpose of Chapter VA of the Act, that is to say,