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Gujarat High Court · body

2022 DIGILAW 580 (GUJ)

Hiteshkumar Navinbhai Patel v. State Of Gujarat

2022-04-25

VIPUL M.PANCHOLI

body2022
ORDER : 1. This petition is filed under Article 226 of the Constitution of India, in which the petitioner has prayed for the following reliefs : “9(A) The Hon’ble Court may be pleased to admit and allow this petition; (B) The Hon’ble Court may be pleased to quash and set aside the order of termination dtd.17th April, 2013 at Annx.A by considering the Govt. Notification dtd.14th July, 2004 at Annx.B and further be pleased to direct the respondent no.2 to reinstate with continuity of service to the petitioner with all benefits including wages. (C) The Hon. Court may be pleased to direct the resdt.no.1 to implement the Govt. Notification dtd.14th July, 2004 at Annx.B against the resdt.no.2 and on that basis set aside the termination order dtd.17/4/13 at Annx.A And further be pleased to direct the resdt.no.2 to instate the petitioner with continuity of service with all benefits including wages. (D) Pending admission, hearing and final disposal of this petition direct the resdt.no.1 to implement the Govt. Notification dtd.14/7/04 at Annx.B against the resdt.no.2 and on that basis stay the order of termination dtd.17/4/13 at Annx.A passed by the resdt.no.2 and further be pleased to direct the resdt.no.2 to reinstate the petitioner with continuity of service with all benefits including wages. (E) To award cost of this petition from the respondent. (F) xxx” 2. Heard learned advocate Mr.Sunil Shah for the petitioner, learned AGP Mr.Hardik Mehta for respondent no.1 and learned advocate Mr.Yogi Gadhia for respondent no.2. 3. Learned advocate for the petitioner submitted that the petitioner was appointed as Safety Engineer with the respondent no.2 with effect from 22.2.2013 on certain terms and conditions. It is further submitted that after a period of 55 days of his service, the petitioner was terminated by the respondent no.2 vide order dated 17.4.2013, copy of the said order is placed on record at page no.18. Learned advocate for the petitioner would contend that at the time of terminating the services of the petitioner, the respondent no.2 has not followed the provisions contained in the notification dated 14.7.2004 issued by the Labour and Employment Department. Learned advocate has referred to the said notification, copy of which is placed on record at page no.19. Learned advocate for the petitioner would contend that at the time of terminating the services of the petitioner, the respondent no.2 has not followed the provisions contained in the notification dated 14.7.2004 issued by the Labour and Employment Department. Learned advocate has referred to the said notification, copy of which is placed on record at page no.19. Learned advocate for the petitioner has, more particularly, referred to page no.21 of the compilation and submitted that as per the said clause, any employer who intends to dismiss or terminate the services of the Safety Officer has to inform to the government and take prior permission of the government. Learned advocate submits that in the present case, respondent no.2 has not followed the said procedure and did not obtain the prior permission of the respondent no.1-government and therefore the action of the respondent no.2 in terminating the services of the petitioner is required to be quashed and set aside. Learned advocate, at this stage, submitted that the petitioner informed the respondent no.2 vide communication dated 26.4.2013 about the termination of his services by the respondent no.2. However, respondent no.1, vide communication dated __6/13, informed the petitioner that the action of termination of service by respondent no.2 does not fall within the jurisdiction of the respondent no.1. The petitioner, therefore, filed the present petition. 4. Learned advocate submits that the respondent no.2 was required to obtain prior permission of the respondent no.1 before terminating the services of the petitioner as per the notification dated 14.7.2004 and when the respondent no.2 has not followed the procedure prescribed under the said notification, the action of the petitioner is required to be quashed and set aside and thereby direction be issued to the respondent no.2 to reinstate the petitioner with continuity of service. 5. On the other hand, learned advocate Mr.Gadhia has vehemently opposed this petition. Learned advocate has referred to the averments made in the affidavit-in-reply filed by respondent no.2, copy of the reply is placed on record at page no.27. Learned advocate Mr.Gadhia has pointed out from the record that after the termination of services of the petitioner by the respondent no.2, the petitioner raised the industrial dispute which was referred to the Labour Court, Ahmedabad and was registered as Reference Case No.508 of 2013. Learned advocate Mr.Gadhia has pointed out from the record that after the termination of services of the petitioner by the respondent no.2, the petitioner raised the industrial dispute which was referred to the Labour Court, Ahmedabad and was registered as Reference Case No.508 of 2013. It is pointed out from the award passed by the Labour Court that similar type of contention was taken by the petitioner before the Labour Court that no prior sanction was obtained from the office of the Factory Inspector at the time of his appointment nor any permission was sought for at the time of termination and the Labour Court has specifically observed that the petitioner was not appointed as Safety Officer and therefore the rules and notifications produced by the present petitioner before the Labour Court are not relevant and applicable to the facts of the case. It is further contended that the Labour Court has, after considering the documentary as well as oral evidence placed before it and after considering the submissions canvassed by the parties, observed that the petitioner was not appointed as Safety Officer and he was appointed as Safety Engineer and therefore the reference of the petitioner is rejected vide award dated 7.12.2015, copy of the said award is placed on record at page no.34. Learned advocate Mr.Gadhia would further submit that the petitioner challenged the said award by filing petition before this Court being Special Civil Application No.12344 of 2017 and this Court has dismissed the said petition vide order dated 4.7.2017. While dismissing the said petition, no liberty was granted to the petitioner to file separate petition, inspite of that, the present petition has been filed by the petitioner with similar type of contentions and therefore this Court may not entertain the present petition. 6. Learned advocate Mr.Gadhia, at this stage, has referred to the appointment order of the petitioner and thereafter contended that the services of the petitioner have been terminated as per the terms and conditions of the appointment order and after following procedure prescribed in the said appointment order. It is also pointed out from the record that one month salary in lieu of notice period is paid to the petitioner and the petitioner has accepted the amount of Rs.34,800/-, copy of the receipts as well as the cheque and necessary details are produced on record. 7. It is also pointed out from the record that one month salary in lieu of notice period is paid to the petitioner and the petitioner has accepted the amount of Rs.34,800/-, copy of the receipts as well as the cheque and necessary details are produced on record. 7. Learned advocate Mr.Gadhia appearing for respondent no.2 further submits that the notification dated 14.7.2004 upon which the reliance is placed by the petitioner is a draft notification. Even assuming that the said notification is applicable, even then the said notification is issued by the concerned department of the state government for appointment of Safety Officer and the procedure for the same. It is submitted that the present petitioner was appointed as Safety Engineer and at that time the procedure prescribed in the notification dated 14.7.2004 was not followed and therefore the petitioner cannot rely upon the relevant clause of the said notification which is for termination of services of the Safety Officer. 8. At this stage, learned advocate has placed reliance on the decisions rendered by the Calcutta High Court in the case of Debesh Kumar Bhattacharya Vs. M/s Rishra Steel ltd. And others, reported in 1995 (70) FLR 905 . Learned advocate Mr.Gadhia has also placed reliance upon the decision rendered by the Hon’ble Supreme Court in the case of Dena Nath & Others V/s National Fertilisers Ltd. & Ors., reported in 1992 (1) GLH 144 (SC), more particularly, on paragraph 22 of the said decision. Learned advocate, therefore, urged that the present petition may not be entertained. Learned AGP has also supported the submissions canvassed by learned advocate Mr.Gadhia appearing for respondent no.2 and urged that the present petition may not be entertained. 9. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it emerges that the present petitioner was appointed on 22.2.2013 on the post of Safety Engineer, copy of the appointment order is placed on record at page no.73 of the compilation. The petitioner was appointed on the said post on certain terms and conditions. After a period of 55 days, his services were terminated vide order dated 17.4.2013. While terminating the services of the petitioner, the respondent no.2 has followed the procedure mentioned in the terms and conditions of the appointment order. The petitioner was appointed on the said post on certain terms and conditions. After a period of 55 days, his services were terminated vide order dated 17.4.2013. While terminating the services of the petitioner, the respondent no.2 has followed the procedure mentioned in the terms and conditions of the appointment order. It further transpires from the record that the petitioner challenged the action of the respondent no.2 of terminating his services by raising the dispute which was referred to the Labour Court. Before the Labour Court, specific contention was taken by the petitioner that no prior sanction was obtained from the office of the Factory Inspector at the time of appointment of the petitioner nor any permission was sought for at the time of his termination. During the course of arguments, representative of the petitioner also placed reliance upon paragraph 3(e) of the notification dated 14.7.2004 issued by the Government of Gujarat and it was contended that before terminating the services of the petitioner, prior permission of the state government was not obtained. Thus, similar contentions were taken before the Labour Court by the petitioner. The Labour Court, after considering the documents placed before it and after considering the submissions canvassed by learned advocate appearing for the parties, specifically held that the petitioner was appointed on the post of Safety Engineer and not in the capacity of Safety Officer and thereafter, held that the rules and notification produced by the petitioner are not relevant and applicable in the present case. After recording the said finding, the reference of the petitioner was rejected. It is further revealed from the record that the petitioner filed Special Civil Application No.12344 of 2017 before this Court in which the petitioner challenged the award dated 7.12.2015 passed by the concerned Labour Court. This Court, vide order dated 4.7.2017, dismissed the said petition and the said order of this Court has attained finality. 10. Now, after dismissal of the said petition, the present petition has been filed by the petitioner wherein the petitioner has prayed that the order of termination dated 17.4.2013 be quashed and set aside in view of the notification dated 14.7.2004 and thereby direction be issued to the respondent no.2 to reinstate the petitioner with continuity of service and with all the benefits including wages. It is pertinent to note that similar reliefs were prayed for by the petitioner before the Labour Court and reference filed by the petitioner was not entertained and this Court has also dismissed the petition which was filed challenging the award passed by the Labour Court and therefore this Court is of the view that the present petition is misconceived and reliefs prayed for in the present petition cannot be granted to the petitioner. 11. Learned advocate for the petitioner has placed reliance upon clause 3(e) of the notification dated 14.7.2004 issued by the concerned department of Government of Gujarat, copy of the said notification is placed on record at page no.19. If the said notification is carefully seen, it is revealed that the said notification is a draft notification whereby objections and suggestions were invited from the concerned parties. Learned advocate for the petitioner has failed to point out that thereafter final notification has been issued by the state government or not after receiving suggestions and objections from the concerned parties. Even otherwise, the said draft notification dated 14.7.2004 is issued for the appointment of Safety Officer and the procedure for appointment of Safety Officer and procedure which is to be followed at the time of dismissal or termination of the Safety Officer. As observed hereinabove, it is an admitted position that the petitioner was appointed on the post of Safety Engineer and not on the post of Safety Officer and therefore this Court is of the view that notification upon which the reliance is placed by the petitioner is not applicable to the facts of the present case. Further, respondent no.1 has also informed to the petitioner vide communication dated __6/13, copy of which is placed on record at page no.23 that the matter, after terminating the services of the petitioner, does not come within the jurisdiction of the respondent no.1. Thus, no error is committed by the respondent no.1 by issuing the said communication to the petitioner. 12. In the case of Dena Nath & Others (supra), the Hon’ble Supreme Court has observed in paragraph 22 as under: “22. It is not for the High Court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not. 12. In the case of Dena Nath & Others (supra), the Hon’ble Supreme Court has observed in paragraph 22 as under: “22. It is not for the High Court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not. It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10 of the Act. The only consequences provided in the Act where either the principal employer or the labour contractor violates the provision of Sections 9 and 12 respectively is the penal provision, as envisaged under the Act for which reference may be made to Sections 23 and 25 of the Act. We are thus of the firm view that in proceedings under Article 226 of the Constitution merely because contractor or the employer has violated any provision of the Act or the rules, the Court could into issue any mandamus for deeming the contract labour as having become the employees of the principal employer. We would not like to express any view on the decision of the Karnataka High court or of the Gujarat High court (supra) since these decisions are under challenge in this court, but we would place on record that we do not agree with the aforequoted observations of the Madras High Court about the effect of non-registration of the principal employer or the non-licensing of the labour contractor not with the view of Bombay High Court in the aforesaid case. We are of the view that the decisions of the Kerala High Court and Delhi High court are correct and we approve the same.” 13. In the case of Debesh Kumar Bhattacharya, the Calcutta High Court has observed as under: “The present Revisional Application is directed against an Order dated 16th July, 1990, passed by the Deputy Secretary, Labour Department, an appellate authority under Rule 7 (6), of the West Bengal Factories (Safety Officers) Rules 1978, dismissing the appeal preferred by the revisional petitioner against the termination of his service. The petitioner claims to be a Safety Officer of J. K. Synthetics Limited, Rishra, and was appointed as such with effect from February 5th, 1991, the petitioner possessed the requisite training certificate; on or about 26th May, 1984, the petitioner's services were terminated and such termination is the subject-matter of challenge being violative of the provisions of the West Bengal Factories (Safety) Officers Rules 1978. The petitioner challenged the said order of termination in appeal, which stood dismissed by the order dated 6th October, 1986, against which the petitioner preferred an appeal to the State Government under provisions of sub-Rule (6) of the Rule (7) of the aforesaid Rules, which ultimately stood dismissed by the impugned order dated 16th July, 1990. In the present Revisional Application, Mr. Guha and Mr. Ganguly, appearing for the contesting parties, have endeavoured to construe Section 40-B of the Factories Act in support of the cases of their respective clients relating to the applicability of the provisions of West Bengal Factories (Safety) Officers Rules 1978. Mr. Guha has contended that the petitioner being a Safety Officer within the meaning of Rule 3 (b), of the said Rules, his termination, without compliance with requirements of different provisions of the said rules, is illegal and invalid. Mr. Gangully, on the other hand has contended that the petitioner, though designated as a Safety Officer, was not a Safety Officer within the meaning of the said Clause and as such the termination of his service did not require compliance with the provisions of the Rules. Rule 3 (b), defines a Safety Officer as one appointed under Section 40-B, of the Act. Section 40-B of the Factories Act imposes an obligation on the occupier to employ Safety Officers under certain circumstances. Section 40-B runs as follows: 40-B (1) In every factory, (i) wherein one thousand or more workers are ordinarily employed, or (ii) wherein, in the opinion of the State Government, any manufacturing process or operation is carried on, which process or operation involves any risk of bodily injury, poisoning or disease, or any other hazard to health, to the persons employed in the factory, the occupier shall, if so required by the State Government by notification in the Official Gazette, employ such number of Safety Officers as may be specified in that notification. (2) The duties, qualifications and conditions of service of Safety Officers shall be such as may be prescribed by the State Government. A plain reading of the said section clearly indicates that in every factory, the occupier is mandatorily obliged to appoint one or more Safety Officers on existence of two conditions. (i) wherein one thousand or more workers are ordinarily employed and the State Government issues notification in the official Gazette, requiring the occupier to employ Safety Officer or Officers, (ii) wherein, the State Government is of opinion that the manufacturing process or operation is carried on, which involves any risk of bodily injury, poisoning or disease, or any other hazard to health, to the persons employed in the factory, an issuance of notification in the above manner. It may be noticed that issuance of a notification is an indispensable condition for employment of Safety Officers in terms of Section 40-B of the Factories Act in both the cases. In the instant case, admittedly, no such notification was issued and as such the mandatory requirement of Section 40-B cannot be said to have been fulfilled to make employment of the petitioner as Safety Officer within the meaning of Clause 3 (b), of the West Bengal Factories (Safety Officers), Rules, 1978. The reasons given in the impugned order rejecting the petitioner's contention that the termination not being violative of the Rules does not call for any interference. The revisional Application must, therefore, fail and we dismiss the same accordingly.” 14. Keeping in view the aforesaid decisions rendered by the Hon’ble Supreme Court as well as the Calcutta High Court, if the facts of the present case as discussed hereinabove are carefully examined, this Court is of the view that the petitioner is not entitled to claim any relief prayed for in the present petition. Accordingly, this petition is required to be dismissed and accordingly dismissed.