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SCA/8316/2008 10/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8316 of 2008
=========================================================
THAKORE
JAHAJI AMRAJI & 5 - Petitioner(s)
Versus
STATE
OF GUJARAT THRO. SECRETARY, & 12 - Respondent(s)
=========================================================
Appearance
:
MR
H.S.MULIA for
Petitioner(s) : 1
- 6.
MR KRUNAL D PANDYA, AGP for
Respondent(s) : 1,
None
for Respondent(s) : 2 -
13.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 19/06/2008
ORAL
ORDER
1. Heard
learned advocate Mr. H.S. Mulia appearing on behalf of petitioners
and learned AGP Mr. Pandya appearing on behalf of respondent ?
State Authority.
2. Learned
advocate Mr. Mulia submitted that this Court has passed an order in
group of petitions being Special Civil Application No.2307 of 2008 to
Special Civil Application No.2361 of 2008 on 7th February
2008, where, this Court has directed to respondents to re-engage the
petitioners and to provide work to petitioners as a daily wagers on
the same terms and conditions on which they were earlier working with
the respondents. He also submitted that this being an identical
petition of same group and the workmen and therefore, identical order
may be passed.
3. Therefore,
following order is passed by this Court :
4. As
per the case of the petitioners herein, their services were
terminated by the respondents on15.9.1999. Therefore, they filed
petitions before this Court being Special Civil Application Nos.
12255 of 2001 and 10162 to 10344 of 2002 wherein this court directed
on 22.4.2003 to raise an industrial dispute against the termination.
Accordingly, disputes were raised by the petitioners and were
referred to for adjudication to the Labour Court, Kalol being
Reference No. 246/03 to 300/03 and 301/03 to 413/03, in all, total
168 references were made by the petitioners and other employees.
Labour Court, Kalol decided all the said references on 23.1.2004 and
declared that the termination in question is illegal and not granted
actual reinstatement and back wages for interim period but directed
the first party establishment Dharoi Canal Irrigation Executive
Engineer Division-1 and Executive Engineer Division-3 Visnagar to
prepare the seniority list of those who are entitled to work and
thereafter, if any work is available under the control of the
Executive Engineer, Division-1 and Division-3, then they should
have to be given the work on the same terms and conditions on which
they were working with the respondents. Said award of the labour
court was challenged by the petitioners as well as the present
respondents before this court by filing Special Civil Application
Nos. 6828 of 2004 with Special Civil Application No. 8067 of 2004
with Special Civil Application No. 7649 of 2004 to 7816 of 2004 with
Special Civil Application NO. 15208 of 2005 to 15327 of 2005 with
Special Civil Application No. 15329 of 2005 to 15340 of 2005 which
were decided by this court (Hon’ble Mr. Justice M.R.Shah,J.) by
common oral CAV Judgment dated 10.5.2005. In the said group of
petitions filed by the petitioners and the State, at page 140, para
18 sub para 14, a concession was given by the learned Additional AG
with regard to the directions issued by the labour court for
preparation of the seniority list etc. Said directions were not
disturbed as held by the learned Single Judge. However, learned
Single Judge of this Court has come to the conclusion that there is
no breach of section 25F,G or H of the ID Act, 1947 and the workmen
were also not completing 240 days continuous service. In view of such
conclusion, petitions filed by the State were partly allowed
accordingly as regards breach of section 25F,G and H Of the ID Act,
1947 and continuous service as per section 25B of the ID Act by
setting aside those findings given by the labour court and
accordingly, petitions filed by the petitioners were dismissed by the
learned Single Judge of this Court. Superintending Engineer,Sujlam
Suflam Circle No.2, Mehsana has, as per letter date 21.11.2007 page
143, given details to the Under Secretary where, according to him,
after giving all the details of existing posts, item in respect of
daily wager page 144, according to him, in all 198 daily wagers are
required against the sanctioned posts of 127 and, therefore, 71 posts
are required to be created additionally and there is no surplus
employee available in his office. Page 145 is a letter written by the
Administrative Manager, Gujarat Water Resources Development
Corporation dated 4.12.2007 addressed to the Chief Election
Commissioner, Gujarat State, Gandhinagar wherein item 3 is relating
to the Superintending Engineer, Palanpur Irrigation Circle,Palanpur
and establishment of 150 Rojamdar has been demanded by the
Administrative Authority of the Gujarat Water Resources Development
Corporation Limited. Thereafter, seniority list was prepared on
29.11.2007 by the respondents Superintending Engineer, Sujlam Suflam
Circle II Mehsana. Learned Advocate Mr. Mulia for the petitioner has
placed on record two orders passed by this Court in SCA No. 3588 of
1995 and 3863 of 1995 and 3864 of 1995 dated 16.2.2004 wherein,
similar award was passed by the labour court not granting
reinstatement and ultimately petitions were filed before this Court
and after considering the submissions made by the learned advocates
for both the sides, this court has issued the following directions as
per page 166:
?SIn
view of above discussion, the respondents are directed that now
onwards if any work is pending with the respondents where
additional daily rated employees are required or any future new
project/work or existing work, whenever the daily rated workers
are required by the respondents, they shall give first priority to
the petitioners herein while intimating them in writing
seeking their willingness to report on work and the workmen
concerned are ready and prepared to report on work, they shall be
given first priority to employ on such work site and so long the
work remain, they shall be made continued in service. The
respondents are also directed not to engage any other workman
except first engaging the workmen herein which, in my opinion,
would also satisfy the requirement of Section 25-H of the I.D.
Act, 1947 and would meet the ends of justice between the parties.
It
is also made clear that so long the work is available with the
respondents, no artificial break shall be given to any of the
workmen herein.?S
5. Thereafter,
in similar circumstances, learned Advocate Mr. HS Mulia for the
petitioenrs has annexed order of this Court dated 22nd
March, 2007 in SPECIAL
CIVIL APPLICATION No. 7491 of 2007 With SPECIAL CIVIL APPLICATION
No. 7710 of 2007 to SPECIAL CIVIL APPLICATION No. 8071 of 2007
wherein also daily wagers about more than 565 were working with the
respondents. Ultimately, after considering various aspects of the
matter and back ground, following order was passed by this Court :
?S9. In
view of this back ground and detailed legal fight which ultimately
resulted in nil, looking to the case of the petitioner, it is the
duty of the State authority to consider case of petitioners, those
who are without work since 15/20 years, for re-engagement.
Petitioners are having award in their favour wherein the termination
is set aside. Therefore, though relief of reinstatement or
re-engagement has not been granted, since the termination has been
set aside, it automatically includes reinstatement and/or
re-engagement but specific direction has not been issued by the
labour court and, therefore, they are not able to move any machinery
for implementation of the award.
10. Therefore,
considering the entire facts and circumstances of the case and the
submissions made by the learned Advocates for the parties, it is
directed to the respondents to consider case of petitioners for
re-engagement of petitioners as daily wagers as and when work is
available at above referred places and also consider that these are
all tribal daily wagers not living in better condition in the
society and therefore, it is directed to the respondents to examine
grievance of petitioners raised in their notice dated 7.12.2006 with
sympathetic approach purely on humanitarian ground and pass
appropriate reasoned order in accordance with law within three
months from the date of receipt of copy of this order and to
communicate same to the petitioners immediately thereafter.
Therefore, respondents are directed to consider case of petitioners
with sympathetic approach purely on humanitarian approach and to see
that the petitioners may be able to get work in the near future from
the respondents and to pass appropriate reasoned order in accordance
with law within three months from the date of receipt of copy this
order and to communicate decision to the petitioners immediately
thereafter. If the decision that may be taken by the respondents
pursuant to these directions is adverse to the petitioners, then, it
will be open for the petitioners to challenge the same before the
appropriate forum in accordance with law.
11.Rule
in each of the petitions is made absolute in terms indicated herein
above with no order as to costs. ??
6. It
is also required to be noted that the order of this court as referred
to above dated 22nd March, 2007 has been fully implemented
by the respondents by issuing orders dated 4th August,
2007 from the Under Secretary, Narmada Water Resources and Kalpasar
Department addressed to the Superintending Engineer, Ukai
Circle-C,Ukai, meaning thereby, about more than 300 employees have
been taken back as a daily wagers on the basis of the seniority list
prepared by the respondents. Therefore,learned Advocate Mr. HS Mulia
for the petitioners submitted that when the vacancy is available and
the work is also available with the respondents, then, it is the duty
of the State Authority to re-engage the petitioners by providing work
to them, those who are prepared to work at any place in any division
of the respondent on the same terms and conditions on which they were
earlier working. He also submits that the petitioners are old
workmen, remained unemployed though seniority list is prepared on
29th November, 2007. He also submitted that instead of
providing work to new strange daily wagers by the State Authority, it
is better that the old daily wagers are re-engaged by the State
Authority and old employees are employed as daily wagers who were
working since 1981, 1982 and 1983 who are still prepared to work with
the respondents on the same terms and conditions and the State
Authority should not discriminate them in the matter of their
re-engagement in the same capacity while providing work because,
otherwise, as per his submission, right under section 25H is also
available to the petitioners. He submits that even if their
termination has not been held to be violative of section 25F, G and H
and even if it has been held that they have not been completing 240
days continuous service within the meaning of section 25B of the ID
Act, 1947 as held by the learned Single Judge of this Court, then
also, their termination is covered by section 2(oo) of the ID Act.
Section 2(oo) of the ID Act, 1947 is reproduced as under:
?S2(oo):
‘retrenchment’ means the termination by the employer of the
service of a workman for any reason whatsoever, otherwise, than as a
punishment inflicted by way of disciplinary action, but does not
include-xxx??
7. So,
termination of the petitioners is amounting to retrenchment within
the meaning of section 2(oo) of the ID Act, 1947. It is not
necessary that unless the workman completes 240 days, then only, it
has to be considered as retrenchment but any kind of termination
after any kind of service, any number of days service would amount to
retrenchment and case of the petitioner is covered by section 2(oo)
of the ID Act, 1947.
8. If
any workman who has been retrenched by the employer has been
completing 240 days service, then, he would be entitled for the
protection of section 25F of the ID Act, 1947 but if the retrenched
workman is not entitled for such protection of section 25F of the ID
Act, 1947, then also, such workman would be the retrenched employee
as per section 2(oo)of the ID Act, 1947 and in case when new employee
is to be taken by the respondent authority as a daily wager, such
retrenched workman will be having legal right under section 25H of
the ID Act. Section 25H of the ID Act, 1947 is providing for
re-employment of retrenched workmen. Same is quoted as under:
?S25-H.
Re-employment of retrenched workmen.- Where any workmen are
retrenched and the employer proposes to take into his employ any
persons, he shall, in such manner as may be prescribed, give an
opportunity to the retrenched workmen who are citizens of India to
offer themselves for re-employment, and such retrenched workmen who
offer themselves for re-employment shall have preference over other
persons.??
9. Therefore,
considering the provisions of section 25H of the ID Act, 1947,
retrenched workmen are entitled for preference over other persons
without considering as to whether they are entitled for protection
under section 25F of the ID Act, 1947 or not. Such preferential
treatment under sec. 25H has no connection whatsoever with the
protection of section 25F of the ID Act, 1947.
10. A
statement was made by the learned Advocate Mr. HS Mulia before this
court that the petitioners are prepared to work at any place in any
division on the same terms and conditions on which they were working
earlier.
11. Therefore,
considering the submissions made by the learned Advocate Mr. HS Mulia
on behalf of the petitioners and also considering the submissions
made by the learned AGP Ms. Chandarana and other AGPs on behalf of
the State Authority and also considering the various orders annexed
by the petitioners to the petition as per which it is clear that
certain posts of daily wagers are vacant and work is available with
the respondent authority, it is directed to the respondents to
re-engage the petitioners in any division including Palanpur, Mehsana
or nearby Division, if the work is available and vacancies are
available, and then to re-engage the petitioners and to provide work
to the petitioners as daily wagers on the same terms and conditions
on which they were earlier working with the respondents. It is
directed to the respondents to complete the exercise within the
period of one month from the date of receipt of copy of this order as
the petitioners are prepared to work in any division where ever work
is available with the respondents, therefore, to pass appropriate
orders for re-engagement of the petitioners and to provide work to
them as daily wagers where ever work is available with them in any
division within the period of one month from the date of receipt of
copy of this order and inform the petitioners accordingly.
12. With
these observations and directions, the petition is disposed of
without expressing any opinion on merits of the matter.
13. Direct
service is permitted today.
[H.K.
RATHOD, J.]
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