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2013 DIGILAW 113 (GUJ)

Government of Gujarat v. Amarshi Hirabhai

2013-02-25

C.L.SONI

body2013
JUDGMENT : C.L. Soni, J. Since, the first appeals filed before the Lower Appellate Court by the defendants were heard and decided by common judgment and since identical and same substantial questions of law have been formulated in these appeals they are heard and decided together. 2. In all the appeals the respondents are the original plaintiffs, who filed suit seeking declaration that oral order dated 31st December 1987 terminating their services is illegal and against the principles of natural justice. They have prayed for decree of reinstatement with all consequential benefits. 3. The case of respondents is that they were appointed on permanent vacant posts. The respondent in Second Appeal No. 82/1998 and respondent in Second Appeal No. 83/1998 were appointed on 25th December 1978 whereas the respondent in Second Appeal 84/88 was appointed on 10th December 1985. It is their further case that they were appointed by oral order as daily wagers on nominal muster roll. So far as the respondents in Second Appeal No. 82 and 83 of 1998 are concerned, as on the date of filing of the suit by them, they had completed about 9 years of service as daily wager and so far as the respondent in Second Appeal No. 84/1998 is concerned he had completed only two years of service on the date of filing of the suit. 4. The suits of the plaintiffs were resisted by the defendants stating that the plaintiffs were daily wagers and since their services were not required, they were relieved from service. According to them they were asked on 31st December 1987 not to come for work from next day. It is further stated that Bapalal Gagubha who was stated to be junior was also asked not to come for work from 6th February 1988. It is further case of the defendants that the plaintiff were not appointed on permanent posts but were orally asked to work as daily wager and since the need of their work was for scattered duty, they were asked to work as daily wager and to sign in Scatter muster roll. It is further stated that simply because the plaintiffs signed on such muster roll, they did not acquire any right to any post. It is further stated that simply because the plaintiffs signed on such muster roll, they did not acquire any right to any post. The defendants further stated that the regular appointments are always made by calling names from employment exchange and since, the work of the plaintiffs was not required and since, the plaintiffs were also careless in discharging their duties, the plaintiffs were asked not to report for duty from the next day. For discontinuing the plaintiffs from work, no procedure was required to be followed as alleged by the plaintiffs. It is further stated that Civil Court has no jurisdiction to entertain and decide the suit of the plaintiffs and the dispute raised by the plaintiffs is squarely covered under the Industrial Dispute Act. 5. On appreciation of evidence, learned trial judge, though found that the plaintiffs were appointed purely as daily wager by oral order, came to the conclusion that since there was violation of statutory provisions of Section of 25F of the I.D. Act and since the action of the defendants in terminating the service of the plaintiffs can be said to be in violation of the statutory provision, the Civil Court has jurisdiction to examine the question about termination of service of the plaintiffs and the Civil Court can grant declaratory relief as prayed for by the plaintiffs. 6. On the above said conclusion raised by the learned trial judge, the suits of the plaintiffs were allowed and the oral order dated 31st December 1987 was declared null and void and not binding to the plaintiffs and the defendants were directed to reinstate the plaintiffs with backwages and all other consequential service benefits. 7. The defendants therefore filed Regular Civil Appeals No. 15/96, 16/1996 and 17/1996 against the judgment and decree passed in all the suits. It appears that during the pendency of appeals the respondent of Second Appeal No. 82/83-Ratilal Jerambhai passed away and his heirs were brought on record of the said Appeal. 8. Learned Appellate Judge came to the conclusion that since the respondent of the Second Appeal No. 82/98-Ratilal Jerambhai died pending the Appeal, the case of his heirs for compassionate appointment could be considered. 8. Learned Appellate Judge came to the conclusion that since the respondent of the Second Appeal No. 82/98-Ratilal Jerambhai died pending the Appeal, the case of his heirs for compassionate appointment could be considered. So far as the other plaintiffs were concerned, learned Appellate Judge came to the conclusion that the plaintiffs were continued for the work of daily wager from time to time and since after termination of the service of plaintiffs their juniors were permitted to work, it could be said that the services of plaintiffs were terminated with a view to accommodate their juniors. Learned Appellate Judge further observed that the plaintiffs could be said to have acquired status of temporary Government servant and their services could be terminated only by following procedure of BCSR. 9. On above such conclusion learned Appellate Judge dismissed the appeals by judgment and decree dated 20th January 1998 and confirmed the judgment and decree passed by the learned trial judge. So far as the heirs of the deceased Ratilal were concerned, learned Appellate Judge observed that the heirs of deceased Ratilal were at liberty to apply for appointment on compassionate ground in place of their deceased father and the defendant No. 2 was directed to consider such application sympathetically under the prescribed policy of the Government. Hence, these Appeals. 10. These Appeals were admitted by order dated 18th September 1990 on the following identical substantial questions of law. (1) Whether on the facts and circumstances of the case, and in view of the admitted position that the plaintiff was a dail rated workman on a nominal muster roll. Whether the Civil Court had jurisdiction to entertain and to adjudicate the suit ? (2) Whether on the facts and circumstances of the case the Civil Court had the jurisdiction and Power to direct the defendants to absorb the plaintiff in a particular position by way of consequential relief, even assuming that the termination order was bad? (3) Whether on the facts and circumstances of the case the Courts below were right in passing the decree in question ? (4) Any other question which may arise during the course of hearing ? 11. I have heard learned advocate for the parties. 12. Learned Assistant Government Pleader Mr. Rahul Dave appearing for the appellants submitted that the plaintiffs were appointed by oral order as Daily Wager. (4) Any other question which may arise during the course of hearing ? 11. I have heard learned advocate for the parties. 12. Learned Assistant Government Pleader Mr. Rahul Dave appearing for the appellants submitted that the plaintiffs were appointed by oral order as Daily Wager. He submitted that the plaintiffs were given scattered work as and when need for work had arisen. He submitted that the plaintiffs had never acquired any status of regular employees. He further submitted that the appointment of the plaintiffs was also not on permanent set up and therefore, it was open to the defendants to discontinue the plaintiffs as and when there was no work available for them. He submitted that the day from which the plaintiffs were discontinued as daily wagers, they ceased to be entitled to continue in the job. He submitted that for discontinuing the work of the daily wager, no procedure was required to be followed. He further submitted that the Courts below have seriously erred in entertaining the suit of the plaintiffs and declaring the oral order of terminating the services of the plaintiffs as null and void on the ground that such order was passed without following the principles of natural justice. Mr. Dave submitted that for discontinuing the work of the daily wager, principles of natural justice were not required to be followed nor any procedure under the law was required. He, thus, submitted that the judgment and decree passed by the Courts below cannot stand scrutiny of law and therefore, the appeal is required to be allowed on the substantial questions of law framed by this Court. 13. As against the above arguments learned advocate Mr. Nishant Lalakiya submitted that two of the plaintiffs have already completed 9 years of service as daily wager and in fact they had acquired status of regular employee. As regards the third plaintiff, he also put similar kind of work like other two plaintiffs and his appointment was also on permanent set up. Mr. Lalakiya, learned advocate pointed out that the need of the work of the plaintiffs was all through out there in the department and it was not that the plaintiffs were permitted to sign the muster roll without any need of the work. Mr. Lalakiya, learned advocate pointed out that the need of the work of the plaintiffs was all through out there in the department and it was not that the plaintiffs were permitted to sign the muster roll without any need of the work. He, submitted that the plaintiffs could be said to have acquired status of temporary employees and therefore their services could not have been terminated without following due process of law. He submitted that the Courts below have not committed any error in declaring the oral order dated 31st December 1987 terminating the services of the plaintiffs as null and void. He submitted that since the order terminating the services of the plaintiff was in breach of principles of natural justice, Civil Court has jurisdiction to declare the order of termination of service of the plaintiffs as illegal, null and void and since the Civil Court has on admitted facts found the action of the defendants as in violative of principles of natural justice, no substantial question of law could be said to have arisen in the Second Appeals. He, thus, urged to dismiss the appeals. 14. Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below with the record and proceedings of the case, it appears that the plaintiffs in their suit have come out with case that they were appointed as daily wagers. However, their claim in the suit was that since, their appointment as daily wager was on permanent set up, the defendants could not have put an end to their service without following due procedure of law. Learned trial judge has recorded that two of the plaintiffs having completed 9 years of their service, and third plaintiffs having completed two years of service, the order of termination dated 31st December 1987 was in violation of Section 25F of the Industrial Disputes Act. The learned trial Judge further recorded that if the order of termination was without following principles of natural justice, the Civil Court has got jurisdiction to give declaration to the effect that such order was against the principles of natural justice and thus invalid, null and void. 15. It is required to be noted that out of the two plaintiffs who put in 9 years of service, one of them deceased Ratilal Jerambhai died pending the Appeal. 15. It is required to be noted that out of the two plaintiffs who put in 9 years of service, one of them deceased Ratilal Jerambhai died pending the Appeal. The Appellate Court has directed the defendants to consider the case of his dependents for compassionate appointment and the direction issued by the Appellate Court was in the year 1988. It is not pointed out as to whether the case of the heirs of deceased Ratilal Jerambhai for compassionate appointment was considered or not. It appears that in Second Appeal the heirs of the deceased Ratilal Jerambhai are joined. There is no dispute about the fact that all the plaintiffs were appointed as daily wagers. From the admitted facts, it clearly appears that two of the plaintiffs rendered 9 years of service and one of the plaintiffs rendered 2 years of service as daily wager. There is no other right of the plaintiffs recognised by the Courts below. Therefore, the question would be whether the defendants were required to follow any procedure before terminating the service of the respondents-plaintiffs. 16. The plaintiffs have not come out with the case that they were made regular employees by the defendants. Therefore when the need of the work of the plaintiffs did longer survive and when the defendants found that the plaintiffs were careless in discharging their duties even as daily wager, it was the satisfaction and the discretion of the defendants to decide whether to continue the plaintiffs any further in service or not. The defendants have clearly stated that the services of the plaintiffs were not required any further and therefore they were asked not to come on work from 31st December 1987. If the plaintiffs were working purely as a daily wager and if the defendants had decided to discontinue the work of such daily wager, in my view no procedure was required to be followed before discontinuing the work of the plaintiffs. The plaintiffs were not either on temporary establishment or on regular establishment as permanent employee and therefore there was no need to follow any procedure before discontinuing the service of the plaintiffs. 17. The plaintiffs were not either on temporary establishment or on regular establishment as permanent employee and therefore there was no need to follow any procedure before discontinuing the service of the plaintiffs. 17. As per the judgments of the Hon'ble Supreme Court in the case of Rajasthan SRTC and others v. Ramdhara Indoliya, reported in (2006) 6SCC 287, and in the case of Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and Pharmaceuticals Ltd., reported in (2007) 1 SCC 408 the daily wagers do not acquire any right to hold the post and to continue in service. It is for the employer to decide whether to continue or discontinue the daily wager in service. In light of above settled principle of law by Hon'ble Supreme Court, in my view no procedure before discontinuing the work of respondent plaintiffs was required to be followed. 18. The Civil Court has entertained the suit of such daily wager and has declared the oral order dated 31st December 1987 as null and void. In my view, when the daily wagers do not acquire any permanent status and when such daily wagers could be discontinued from service as per the discretion of the employer, the Civil Court is not competent to entertain the suit of such daily wager for declaration that the termination of their service was null and void. The Civil Court, therefore, has clearly exceeded in its jurisdiction in entertaining the suit of the plaintiffs and in ordering their reinstatement. 19. For the reasons stated above, the appeals are required to be allowed on the above substantial questions of law framed by this court. 20. In the result Appeals are allowed, judgment and decree passed by the Courts below are quashed and set aside. 21. At this stage learned advocates requested that since the plaintiffs have waited for disposal of the appeal and in another case since, the heirs of deceased plaintiff-Ratilal Jerambhai were made entitled for consideration of their case for compassionate appointment, they may be permitted to approach the State Government for reasonable compensation as they had lost everything by virtue of oral order of termination of their services. 22. It is for the respondents to approach the State Government for any relief which they think proper to make before the Government and it is for the Government to consider their request in accordance with law. 22. It is for the respondents to approach the State Government for any relief which they think proper to make before the Government and it is for the Government to consider their request in accordance with law. No order on the above request is required to be made by this Court. Appeal allowed.