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SCA/1030/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1030 of 2010
=========================================================
HEMA
RITESH THAKKER (MAIDEN NAME HEMA H RATHOD) & 16 - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
HARDIK C RAWAL for
Petitioner(s) : 1 - 17.MRS MH RAWAL for Petitioner(s) : 1 - 17.
MR
SHIVANG SHUKLA ASSTT GOVERNMENT PLEADER for Respondent(s) : 1,
MR
NILESH A PANDYA for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 10/02/2010
ORAL
ORDER
1. Petitioners
approached this Court on 03.02.2010 with a request to urgently
circulate the petition for hearing and grant of mandatory relief so
as to restrain the respondent concerned from discharging the
petitioners from service. The Court, however, ordered to issue urgent
notice as to admission and interim relief, pursuant to which learned
A.G.P. has appeared for respondent No.1 and learned counsel
Mr.N.A.Pandya appears for respondent No.2 and learned counsel on both
sides are heard in extenso. At the end of arguments on both
sides, learned counsel Mr.Pandya declared that respondent No.2 has
conveyed to him instructions to support the petitioners and hence he
no longer wanted to represent respondent No.2.
2. The
petitioners are 17 clerks and peons employed by respondent No.2 since
the year 1992 to 1995 and they have rushed to this Court to prevent
illegal termination of their service pursuant to the order dated
29.01.2010, made under section 160 of Gujarat Co-operative Societies
Act, 1961 by Registrar for Co-operative Societies. That order is also
called into question on the grounds that it is arbitrary, illegal,
without jurisdiction and made in violation of principles of natural
justice. Each of these grounds has been substantiated on the basis of
material on record and by arguments of learned counsel Mr.Rawal.
Respondent No.2 bank has admittedly sought to terminate service of
the petitioners only on the basis of the directions contained in the
aforesaid order dated 29.01.2010 of the Registrar. Since legality of
that order and jurisdiction of the Registrar to make such order is
seriously disputed and in doubt, petition is required to be admitted
as far as challenge to that order is concerned. The action of
respondent Bank based upon the said order was sought to be defended
only on the basis that the order was not illegal. In reply to the
query as to whether any provision of law were attracted and applied
in the matter of termination of service of the petitioners, the bland
answer by learned counsel Mr.Pandya was that no other provision of
any other law applied in the facts of the case as the very
appointments of the petitioners were held to be illegal in the
impugned order of Registrar.
3. Learned
counsel Mr.Rawal, relying upon judgment of this Court in Arvindbhai
M.Bhutaiya v. Amreli District Central Co-op. Bank Ltd. [(1998) 1 GLH
846], submitted that the petitioners’ service could
not have been terminated in the manner it was sought to be done and
Article 226 of the Constitution confers wide power on the High
Courts to reach injustice wherever it is found. He submitted that the
facts and ratio contained in the said judgment squarely applied in
the facts of the present case. It was further submitted that, in
that case employees were ordered to be reinstated by an order
granting mandatory interim relief, and that order as well as the
final judgment mentioned hereinabove were carried in appeal. He
pointed out from the impugned order of the Registrar that the order
was, ex facie, not only illegal but made in contempt of an
earlier judgment of this Court, insofar as the decision reported in
Parmar Dipubhai B. v. Registrar of Co-operative
Societies, Gujarat State [2006 (2)
GCD 1341 ] was cited before and disregarded by the
Registrar only by observing that an L.P.A. was pending against that
judgment. He further submitted that the plea of availability of
alternative remedy could not be entertained in the peculiar facts of
the present case and relied upon judgments of the Supreme Court in
Committee of Management v. Vice Chancellor
[(2009) 2 SCC 630 and Whirlpool
Corporation v. Registrar of Trade marks, Mumbai [(1998)
8 SCC 1]. He submitted that, in fact service of the
petitioners was sought to be terminated in flagrant violation of
mandatory provisions of the Bombay Industrial Relations Act as well
as section 25-J of the Industrial Disputes Act. Since service is the
only source of livelihood for the petitioners, it could not be
snatched away, except in accordance with law and after following the
procedure prescribed by law. There is not even an averment or
argument to the effect that any procedure, much less any legal
procedure prescribed by law, was complied by the respondent Bank in
seeking to terminate services of the petitioners. Learned counsel
Mr.Pandya only submitted in this context that undated Resolution No.1
passed in a meeting of the executive committee of the employer bank
had already authorized en- mass termination of service of 18
employees. Perusing a copy of the resolution, which was placed on
record, it appears that the resolution which is supposed to be
unanimous is as yet to be approved in a regular meeting and it
purported to have been signed by eight members of the Board of
Directors. As against the submission of Mr.Pandya, learned counsel
Mr.Rawal placed on record affidavits of seven Directors, out of total
12 Directors, of the respondent Bank stating in substance that
termination of service is illegal and service of the petitioners is
required by the bank. Curiously it was also the case of the
respondent Bank before the Registrar that appointment of the
petitioners were legal and their services were required by the bank.
It was further stated at the bar that, out of total staff of 38
employees, 18 employees were sought to be discharged by the impugned
action of the bank. Therefore, it is, prima facie, clear that
the bank has sought to terminate service of the petitioners in hot
haste only on the basis of the impugned order of the Registrar and
without following any procedure worth the name. Observations of the
Apex Court in recent decision in Harjinder Singh
v. Punjab State Warehousing Corporation [2010 (1) SCALE 613]
are apposite in the present context.
4. In
the facts and circumstances briefly narrated hereinabove, it, prima
facie, appears that respondent No.2 Bank is a house divided
against itself and there is no valid reason to terminate service of
the petitioners, except the impugned order of Registrar; and the bank
has sought to terminate service of the petitioners without following
any procedure, except sending letters dated 03.02.2010 to the
petitioners to collect their legal dues. In such circumstances, mere
admission of the petition and denial of interim relief would render
the petition infructuous and the impugned action of terminating
services would be harmful both to the petitioners as well as the
respondent bank. Therefore, the Court finds it to be an exceptional
case in which mandatory injunction is required to be granted in the
interest of justice and to prevent multiplicity of proceedings as
also violation of fundamental rights of the petitioners.
5. Accordingly,
PETITION IS ADMITTED and, by way of interim relief, respondent
No.2 bank is directed not to operate or execute the orders
terminating service of the petitioners and, even if they are relieved
by now, reinstate them in their original post, on the same terms and
conditions on which they were serving before 03.02.2010, till and
subject to further orders of this court. It would, however, be open
for the respondent bank to initiate necessary legal procedure for
termination of service of any of the petitioners in accordance with
law. RULE returnable on 09.03.2010. Notice of Rule is
waived by learned A.G.P. for respondent No.1 and notice of Rule may
be served upon respondent No.2 by way of direct service as learned
counsel Mr.Pandya has expressed his inability to waive service of
Rule.
Sd/-
(
D.H.Waghela, J.)
(KMG
Thilake)
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