SCA/4079/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4079 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= DADUBHAI UNNADBHAI KOHAR - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR PH PATHAK for Petitioner(s) : 1, MR KD PANDYA, ASST. GOVERNMENT PLEADER for Respondent(s) : 1-3. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 07/07/2008 ORAL JUDGMENT Rule. Mr. KD Pandya, learned AGP appears for the respondents and waives service of notice of rule on behalf of the respondents. At the request of and with the consent of the parties the petition is taken up for final hearing today. SCA/4079/2008 2/8 JUDGMENT Mr. Pathak appears for the petitioner. In this petition, the petitioner has challenged a communication / order dated 7.11.2007, which came to be passed after the direction issued by this court by order dated 7.8.2007. It is the case of the petitioner that he has been working under the respondent authority since July – 1986 and that he has been engaged by the respondent authority as watchman for protection of plantation. It is also the case of the petitioner that he has been working regularly and continuously since July – 1986 and has completed actual work of more than 900 days. In this backdrop of facts, the petitioner is relying on an award dated 11.5.1992 passed by the Industrial Tribunal, Ahmedabad in reference (IT) No.386 of 1988 whereby, the learned tribunal was pleased to ask the respondent authority to extend the benefit of regularization to the persons who completed 960 days of work preceding 1.1.1989 or who would complete such continuous service on a date SCA/4079/2008 3/8 JUDGMENT subsequent to 1.1.1989. Mr. Pathak has also claimed that the petitioner is similarly placed to Mr. Amin Jitani, Mr. Ishwarnath H. Jogi and Mr. Khimabhai Ramabhai. Since the said three persons and the petitioner herein were denied the benefit of the said award despite having completed actual service of 960 days in terms of the directions given by the learned tribunal, the said three persons and the petitioner herein were constrained to prefer a writ petition being SCA No.7554 of 1998 wherein, the court [Coram: Mr. N.N.Mathur, J. (as his Lordship then was)] passed an order dated 13.11.1998. The said order was passed on the basis of the statement made by the learned advocate for the respondent stipulating, inter alia, that in respect of three persons orders of regularization were already passed and so far as fourth person i.e. the petitioner in this case was concerned, decision would be taken within a period of four weeks. SCA/4079/2008 4/8 JUDGMENT On the said statement, the said petition was disposed of. Mr. Pathak submitted that even after the said order, his service was not regularized and that therefore, the petitioner was constrained to prefer another petition being SCA No.11381 of 2007. The said petition came to be disposed of by order dated 7.8.2007 whereby, the respondents were directed to specifically address the three issues expressly mentioned in paragraph 5 of the said order and to pass detailed and reasoned order within a period of three months. Mr. Pathak submitted that it is in pursuance of the said order by the court that the order impugned in present petition is passed whereby, without addressing the issues expressly mentioned by the court in order dated 7.8.2007, the case of the petitioner is arbitrarily rejected. While assailing the said order on the ground that the concerned authority has not addressed the issues mentioned by the court in the order dated 7.8.2007, Mr. Pathak also relied upon the details of petitioner's working SCA/4079/2008 5/8 JUDGMENT under the respondent authorities certified by the RFO (Annexure – G Page – 33) and he submitted that the respondent No.2 has not taken into account those details also. On perusal of the said order, it transpires that the respondent No.2 has not dealt with the said three issues mentioned by the court in the order dated 7.8.2007 and has not recorded any specific findings, on the basis of record, in the impugned order dated 7.11.2007. Further, the said order also does not refer to the record of petitioner's working certified by the RFO. It further appears from the perusal of the impugned order dated 7.11.2007 that the respondent No.1 has merely observed that the petitioner was engaged as a purely temporary hand and on ad-hoc or casual basis and that therefore, he would not be entitled to the benefit of the direction given by the learned tribunal in the award dated 11.5.1992. The respondent No.2 has passed the order on the premise that the petitioner's category is different than the category of persons qua whom the award is applicable, however, the respondent has not SCA/4079/2008 6/8 JUDGMENT shown basis of such categorization or differentiation. In other words the basis of the view taken and differentiation made is not coming out. On perusal of the order, it does not become clear that on what basis the respondent No.2 has construed that the benefit of the said award is not to be extended to the persons engaged on temporary basis. Though the respondent No.2 has recorded, in the preface of the order, the points which were required to be decided as per this court's direction dated 7.8.2007, he has lost sight of the said aspect and has not recorded any findings in that regard. In this backdrop, it is difficult for this court to decide at this stage whether the petitioner herein is, on factual basis, entitled to the benefit flowing from the award or not and/or whether his case is distinguishable from other persons, more particularly, the three persons referred to hereinabove. If that is so, then the authority should have clearly recorded findings in that regard and that too on the basis of cogent material. The respondent No.2 appears to have passed the order SCA/4079/2008 7/8 JUDGMENT without proper application of mind to the relevant facts including the petitioner's working certified by RFO and the direction given by this court. It aslo appears that the order is passed mechanically and in haste only with a view to meeting with the time – schedule prescribed by the court (of 3 months) in the order dated 7.8.2007 and to comply with the said direction inasmuch as the order is passed on 7.11.2007 i.e. the last day of the time limit fixed by the court. In this petition, this court (Coram: Mr. H.K.Rathod, J.) issued notice on 4.3.2008 and since then, the respondents have not filed affidavit even after seeking adjournment and the respondents have failed to explain or justify the impugned order. Today also, when the learned AGP was asked as to how the respondent No.2 has differentiated the case of the petitioner from the case of other persons, more particularly, the aforesaid three persons, the learned AGP is not in position to explain the said aspect. Hence, there is no other alternative but to ask the respondent No.2 to pass the order afresh. SCA/4079/2008 8/8 JUDGMENT Under the circumstances, the impugned order dated 11.5.1992 is set aside. The matter is remanded to the respondent No.2 with a direction to pass reasoned and speaking order dealing with the issues mentioned by the court in the order dated 7.8.2007 and if the competent authority arrives at the same finding again or to a finding that the petitioner is not entitled for the benefit, then, the competent authority shall expressly record the basis and reasons for the findings with supporting material in that regard. The respondent No.2 is directed to undertake and complete the said process within six weeks from today. With the aforesaid direction, present petition is disposed of. Rule made absolute in above terms. Direct Service is permitted. [K.M.Thaker, J.] kdc