Research › Search › Judgment

Gujarat High Court · body

2001 DIGILAW 337 (GUJ)

HITESHKUMAR BABUBHAI CHUNARA v. AHMEDABAD MUNICIPAL CORPORATION

2001-06-12

RAVI R.TRIPATHI

body2001
RAVI R. TRIPATHI, J. ( 1 ) ). THESE two petitions are filed by two individual petitioners, namely, Hitesh Babubhai Chunara and Priteshkumar Dipakbhai Dutta. The case of the petitioners is that the petitioners were appointed as car cleaners by administrative Resolution No. 1693 dated 15. 3. 1995 on daily-wage basis. It is also stated in the petition that the respondent has in all 18 cars and for the purpose of cleaning them there was only one permanent employee and the present petitioners were employed as daily-wagers. It is the case of the petitioners that the petitioners were given only weekly off and were not given public holidays. The petitioners were required work in place of permanent employee also whenever there was public holiday or when teh permanent employee was not available on account of being on leave. It is the case of the petitioners that the petitioners were given artificial break after every six months in order to see that they do not get benefits of continuous service. The petitioners have produced various resolutions at Annexure-A (in Petition No. 6404 of 1999) starting from 3. 4. 1999 till 31. 11. 1999 as tehy were readily available and has also stated in the petition that even thereafter an order was passed whereby the services of the petitioners were continued up to July 2000 and on 1st July 2000 the petitioners were asked orally not to come on job in view of the ensuing elections. ( 2 ) ). The present petitions are filed for the relief that the action of the respondent-authorities giving artificial break to the services of the petitioners be declared as discriminatory and as unfair labour practice and the respondents be directed not to give artificial break and to absorb the petitioners as regular employees as they have completed 900 days service on completion of five years of their service with the respondent-corporation in view of the policy of the Corporation. ( 3 ) ). The Court issued Rule on 10. 7. 2000. Thereafter on 25. 7. 2000 issued fresh notice to the respondents making the same returnable after four weeks. The matter is thereafter adjourned from time to time. Today when the matter is called out, the learned advocate appearing for the petitioner submitted a draft amendment along with Annexure-D and Annexure-E collectively. The Court issued Rule on 10. 7. 2000. Thereafter on 25. 7. 2000 issued fresh notice to the respondents making the same returnable after four weeks. The matter is thereafter adjourned from time to time. Today when the matter is called out, the learned advocate appearing for the petitioner submitted a draft amendment along with Annexure-D and Annexure-E collectively. The learned counsel for the petitioners submitted that as mentioned in Annexure-D i. e. a circular bearing No. 11 issued by the Planning and Finance Cell of the respondent-corporation dated 22. 3. 1999 it is the policy of the respondent-corporation that the daily-rated employees who have completed the service of five years or more with the respondent-corporation and if during the period of consecutive service five years an employee has worked has 900 days or more he is to be regularised. As is mentioned in Annexure-D, this policy was decided by a Resolution No. 1491 dated 1. 9. 1982 passed by the Planning Department of the respondent-corporation and also by the Resolution No. 1110 dated 27. 9. 1982 of the General Board. The learned counsel for the petitioner has also relied upon the orders passed by this Court (Coram: H. K. Gokhale, J.) in Special Civil Application No. 996 of 1998 with Civil Application No. 6747 of 1998 dated 18. 9. 1998 and also the order passed by this Court (Coram: A. R. Dave, J.) in Special Civil Application No. 12444 of 2000 dated 2. 3. 2001. ( 4 ) ). Mr K. I. Patel, learned counsel for the respondent-corporation, vehemently opposed the present petitions on the ground that the policy referred to in Annexure-D bearing No. 334/1997 is not produced on record. He also submitted that the present petitioners have not completed the service of five years as per the document at Annexure-C to the petition as the years shown are 1995-96 to 1998-99. However, Mr KI Patel learned advocate for the petitioners has not been able to satisfy the Court as to why year 1995-96 should be treated as one year instead of two calendar years. Mr Patel submitted that the present petitioners have no legal right of getting their services regularised particularly when the Corporation does not have the work in question and the services of the petitioner are not required. Mr Patel submitted that the present petitioners have no legal right of getting their services regularised particularly when the Corporation does not have the work in question and the services of the petitioner are not required. Mr Patel has also not been able to as to why the services of the petitioners are not required though it is not the case of the respondent-corporation that car fleet consisting of 18 cars is disposed of by the Corporation. Mr Patel submitted that three cars are scrapped. Even according to him there are still 16 cars. Now if for 18 cars three persons - one permanent employee and two daily-rated employees - were employed, how can it be said that no work is available for the petitioners when 16 cars are available with the Corporation. Mr Patel further submitted that as the elected members of the Corporation were not in office during the period in which the election was to take place, there was no work available with them. On his own submission it can be inferred that soon after the election the elected members will be available and the car fleet of the Corporation will be put to use. It is very much doubtful that during the absence of the elected members whether the cars can be allowed to dust in the garages or they are required to be cleared and maintained even in absence of the elected members. Be that as it may, the fact remains that this Court has taken a view in the aforesaid two matters that a direction is required to be issued and it is issued accordingly to the accused respondent-corporation directing to scrutinise the record of the petitioners and to regularize their services if they are found to have completed 900 days of service with the respondent-corporation within five consecutive years as per the policy of the Corporation. Mr Patel submitted that 900 days service is to be counted coupled with the fact that the employee must have put in five years of service with the Corporation. ( 5 ) ). Mr Patel further submitted that so far as the policy of regularizing the services of the daily-wagers who have put in five years of service and during five years he has no quarrel on that. ( 5 ) ). Mr Patel further submitted that so far as the policy of regularizing the services of the daily-wagers who have put in five years of service and during five years he has no quarrel on that. Mr Patel could not point out any ground on which similar directions cannot be issued by this Court directing the respondent-corporation to give a similar treatment to the present petitioners if on facts they have worked for five years and for more than 900 days during that period with the respondent-corporation. ( 6 ) ). Mr Patel has also submitted that the petitioners have not disclosed the fact regarding the petitioners having approached the Civil Court. The petitioners have filed a draft amendment and in that they have stated that the petitioners had filed a Regular Civil Suit No. 3277 of 2000 as the petitioners were apprehending that their services were likely to be terminated and authorities will continue to give them artificial break. However, said proceedings are withdrawn by filing a purshis exh. 14 with a liberty to file fresh suit after serving a statutory notice upon the respondent. It is also stated that the respondent-corporation was served with a statutory notice by the petitioners but before the petitioners could file a fresh suit, the services of the petitioners were terminated orally on 1. 7. 2000 and therefore the petitioners were constrained to approach this Court by filing the present petition on 4. 7. 2000. ( 7 ) ). In the result, the present petitions are allowed. The respondent-corporation is directed to scrutinise the record of both the petitioners and to regularize them after ascertaining the factum regarding their having put in five years of service with more than 900 days of working with the respondent-corporation. It is also directed that in case the petitioners are found to be eligible for regularisation, they should be given their due seniority and consequential benefits. Mr Patel, learned counsel for the respondent-corporation, submitted that the said process is likely to take some time and therefore he requested that the Corporation should be given two months time to complete the said exercise. Mr Patel, learned counsel for the respondent-corporation, submitted that the said process is likely to take some time and therefore he requested that the Corporation should be given two months time to complete the said exercise. He also submitted that even after having found that the petitioners are eligible for regularisation, the same may take some more time and therefore the Corporation be given liberty to regularize the services of the petitioners in due course as per the policy of the Respondent-Corporation. The request of Mr Patel is reasonable. The Corporation is directed to complete the exercise of ascertaining the factum whether the petitioners have put in five years of service with more than 900 days of working with the respondent-corporation within eight weeks from the date of receipt of this order. The Corporation is also directed to regularize the service of the petitioners in due course as per the policy of the Corporation. The petitions are accordingly allowed. Rule is made absolute. .