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Gujarat High Court · body

2022 DIGILAW 1654 (GUJ)

Himanshu Vinodbhai Gandhiyat v. State Of Gujarat

2022-11-30

NIRZAR S.DESAI

body2022
ORDER : 1. By way of this petition, the petitioner has prayed for direction to the respondents to grant the minimum pay scale of class IV employees of their respective cadre to the petitioners from retrospective date with 12% interest and has further prayed for declaring that the decision of the respondent no. 2 to replace the petitioners by outsourcing contract basic employee as unfair. The petitioners have further challenged the termination of the petitioners from the services from 04.05.2018 and has also prayed for directing the respondents to grant the benefits of resolution dated 17.10.1988 to the petitioners. 2. Heard learned advocate Mr. P. H. Pathak for the petitioners and learned AGP Mr. Kurven Desai for the respondent – State. 3. It is the case of the petitioners that the petitioner no. 1 joined the services as Class IV employee from 07.07.2010 and petitioner no. 2 joined the services as Computer Operator from 01.08.2013 and both are continuously working on a post which was of permanent nature. 4. A notice dated 04.04.2018 was issued by the respondent stating that the work of peon and computer operator are no longer required and hence, by following the procedure under section 25 (F) of the Industrial Disputes Act by giving one months notice and notice pay, the petitioners’ services were terminated. 5. It is the case of the petitioners that earlier also the petitioners’ services were terminated. However, the petitioners challenged the aforesaid action by way of Special Civil Application No. 17603 of 2014 wherein on 07.08.2015, learned AGP made a statement that the petitioners shall be reinstated by 08.08.2015 and accordingly, the aforesaid petition was withdrawn. Thereafter, an order dated 09.12.2016 was passed, whereby the petitioner was given Rs. 4400/- grade pay + Rs. 1300/- DA and it was ordered that the petitioners will be paid the salary on the basis of his daily presence. He will be paid the wages for Sunday, 12 casual leaves and 2 optional leaves and festival leaves and the petitioners shall be entitled to the medical facilities and shall be paid contributory pension as per 2005 scheme. 1300/- DA and it was ordered that the petitioners will be paid the salary on the basis of his daily presence. He will be paid the wages for Sunday, 12 casual leaves and 2 optional leaves and festival leaves and the petitioners shall be entitled to the medical facilities and shall be paid contributory pension as per 2005 scheme. After the aforesaid order was passed, the petitioners were served with notice dated 04.04.2018 and in the notice, it is specifically stated that pursuant to the order dated 07.08.2015 passed in Special Civil Application No. 17603 of 2014, the petitioners were reinstated in the services and they have continued to work as daily wagers, at present there is no work available from them and since, as per the seniority list, the present petitioners were amongst the junior most workmen, their services are no longer required and accordingly alongwith the aforesaid notice, the cheques of amount of Rs.54184/- and 22,920/- was sent to the petitioners no. 1 and 2 respectively, in compliance of provisions of section 25 (F) of the Industrial Disputes Act. 6. Being aggrieved by the aforesaid action of termination, the petitioners have preferred this petition alleging the violation of section 25 (F) of the Industrial Disputes Act and section 25 (N) of the Industrial Disputes Act and by terming the termination of the petitioners as malafide, this petition is preferred. 7. Learned advocate Mr. Pathak for the petitioners submitted that nature of work that the petitioners were performing is very much available in the office of the respondent as there are various departments, the persons junior to the petitioner are reinstated in the office of the respondent and yet the petitioner’s services are terminated, which would clearly established that there is a violation of provisions of section 25 (F) of the Industrial Disputes Act. He further submitted that even the seniority list is also not made available and no final seniority list was published and yet the petitioner’s services are terminated which would amount to violation of Rule 81 of the Gujarat Rules r/w section 25 (F) of the Industrial Disputes Act. 8. Learned advocate Mr. Pathak for the petitioners submitted that as there are more than 100 workers are working in the respondent organization there is a clear violation of section 25 (N) of the Industrial Disputes Act. Learned advocate Mr. 8. Learned advocate Mr. Pathak for the petitioners submitted that as there are more than 100 workers are working in the respondent organization there is a clear violation of section 25 (N) of the Industrial Disputes Act. Learned advocate Mr. Pathak for the petitioners submitted that the averments made in the petition are not disputed by the respondents and which would indicate that the persons junior to the petitioners are retained in the job. Learned advocate Mr. Pathak further submitted that though the petitioners are entitled to the benefits of Government Resolution dated 17.10.1988, the same also has not been paid to the petitioners and therefore, appropriate directions are required to be issued to the respondent. 9. Learned advocate Mr. Pathak for the petitioners pointed out from the page no. 18 of the petition and submitted that even if the provisional seniority list published by the respondents as on 01.01.2016 is considered, there are two persons namely Rinaben Parmar and Rakeshkumar Pandaya’s name figure at serial no. 2 and 3 and thereafter, the name of Sunilkumar Patel i.e. petitioner no. 2 would come which would indicate that the petitioner no. 1 was senior most amongst all four persons. However, serial no. 2 and 3 are retained in the services. 10. By making the aforesaid submissions, learned advocate for the petitioners has prayed for grant of relief as prayed for in the petition. 11. Learned AGP Mr. Kurven Desai appearing for the respondent – State has vehemently opposed the petition and submitted that the seniority list shown by the petitioner is showing the position as on 01.01.2016 and points out from the affidavit in reply filed by the respondent wherein in paragraph no. 25 it is categorically stated that retrenchment has been carried out as per the seniority list published by the respondent no. 3 on 12.02.2018 and therefore, placing reliance upon a seniority list of the year of 2016 is misplaced. 12. Learned AGP Mr. Kurven Desai for the respondent – State from the record points out that after reinstatement of the petitioners, pursuant to the statement made by learned AGP in the earlier round of litigation once the petitioners were reinstated vide order dated 09.12.2016, the petitioners were placed in a fix pay of Rs. 4440/- and were held entitled for certain benefits including contributory pensions scheme. 4440/- and were held entitled for certain benefits including contributory pensions scheme. Thereafter, it is only upon reassessing the situation and it was found that the petitioners duty performed by the petitioners are no longer required and considering the fact that the petitioners were the junior most daily wager working in the organization, their services were terminated by following due procedure of law. 13. Learned AGP Mr. Desai appearing for the respondent – State submitted that the petitioners could have challenged that termination before the Labour Court by leading the evidence about seniority and all the contention raised by learned advocate Mr. Pathak. However, considering the fact that in the writ petition under Article 226 of the Constitution of India, not permitted to lead the evidence and therefore, once when the order itself states that the petitioners were amongst to junior as per the seniority list and onus to prove that the persons junior to the petitioners were retained in the service is upon the petitioners coupled with the fact that the respondents has stated on oath that the retrenchment has been carried out lawfully as per the seniority list published by the respondent no. 3 on 12.02.2018, the present petition is required to be dismissed. 14. Learned AGP Mr. Desai further submitted that though the petitioners are claiming the benefits as per the Government Resolution dated 17.10.1988, the aforesaid Government Resolution is not placed on record by the petitioners. 15. Learned AGP Mr. Desai further pointed out that the petitioners were granted benefits vide order dated 09.12.2016 passed by Principal Chief Conservator of Forest, however, the aforesaid order has never been challenged by the petitioners and today, for the first time, the grievance is made that the petitioners are entitled to the benefits as per Government Resolution dated 17.10.1988 and therefore, also the petition is not required to be entertained. 16. Learned AGP Mr. Desai further submitted that the affidavit in reply clearly indicates that the averments made in each and every paragraphs are specifically denied by the respondent and therefore, once the averments are denied by the concerned authority, it cannot be said that the averments made in the petition have remain uncontroverted. 17. By making the aforesaid submissions, learned AGP has prayed for dismissal of the petition. 18. 17. By making the aforesaid submissions, learned AGP has prayed for dismissal of the petition. 18. In the rejoinder, learned advocate Mr.Pathak appearing for the petitioners drew attention of this Court to the further affidavit filed on 02.03.2019 and from that pointed out that the petitioners have stated that most of the persons junior to him are retained on contractual basis on the post of Computer Operator and Peon and submitted that the aforesaid affidavit has not been answered by the respondent and hence, it can be presumed that the averments made by the petitioners have remain uncontroverted. 19. I have heard learned advocates for the respective parties and perused the record and considered the submissions made by the learned advocates for the parties. 20. The record indicates that upon reinstatement in the year 2015 vide order dated 09.12.2016, the respondent granted certain benefits to the petitioners and thereafter, it is vide show notice dated 04.04.2018 as the respondents came to the conclusion that the duty performed by the petitioners are not required and they were amongst the junior most, considering the seniority list the services of the petitioners were terminated by issuing them notice and one month’s notice pay, the cheque were sent alongwith notices and photocopy of the cheques are also produced before this Court. 21. It prima facie would indicate that the respondents have complied with provisions of section 25 (F) of the Industrial Dispute Act as far as the seniority list or publication of seniority list is concerned, considering the fact that in a writ petition, there is no provision for leading the evidence and when the respondents have stated on oath something by stating that the retrenchment has taken place by adhering to the seniority list dated 12.02.2018, I do not see any reason to call for the seniority list or to carry out any fishing inquiry, once the order of termination itself categorically states that the termination has taken place as per the seniority list and the petitioners are amongst the junior most. Further though the petitioners have raised various contentions about violation of various sections of the Industrial Dispute Act considering the fact that all those contentions the petitioners could have raised by filing a reference before the Labour Court as for substantiating those contentions, evidence are required to be lead as in a writ petition no evidence can be lead, this Court has deemed it appropriate to believe the affidavit filed by respondent authority which would indicate that the termination of the petitioners is absolutely just, legal and proper and in accordance with law. 22. As far as the claim of benefits of Government Resolution dated 17.10.1988 is concerned, this Court is of the view that if the petitioners claim any benefit on the basis of any government resolution, it is the duty of the petitioners to produce the aforesaid Government Resolution alongwith the petition. Here in the instant case, the petitioners have not produced Government Resolution dated 17.10.1988 nor he has challenged the order dated 09.12.2016 whereby certain benefits are given to the petitioners, in absence of there being any material as to how the Government Resolution dated 17.10.1988 would be applicable in the case of the petitioners, it would not be proper to issue any directions straightway without examining the facts and the eligibility of the petitioners that they are entitled to get the benefits as per the Government Resolution dated 17.10.1988 and hence, the aforesaid claim of the petitioners also is required to be rejected and the same is rejected. 23. In view of the aforesaid petition, the petition is required to be dismissed and the same is dismissed. Notice is discharged. No order as to costs.