ASHWIN C INAMDAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Ms. Sangeeta Pahwa for Mr.P.M. Thakkar for the petitioner and Ms. D.S. Pandit, the learned Asstt. G.P. for the respondent authorities. In this petition, the petitioner has challenged the vires of section 2(oo) of the Industrial Disputes Act, 1947 as per the prayer clause 13(a) of the memo of petition.

(2.) Today when the matter has come up for hearing, learned advocate Ms. Pahwa appearing for the petitioner has submitted that the petitioner is not pressing for the said relief. In view of the said statement made by Ms. Pahwa, the matter was taken up by this court for final hearing. Brief facts of the present petition are to the effect that both the petitioners have been working as a clerk cum typist with the respondent no.2; that the petitioner no.1 is working continuously since 1.11.1985 while petitioner no.2 is working continuously since 3.9.1985; that the petitioner no.1 was appointed vide appointment letter dated 18/29.10.1985. Similar order was issued for petitioner no.2. It is the case of the petitioners that they were appointed through employment exchange of Nadiad; that their names were duly forwarded to the hospital authorities by the employment exchange; that the petitioners were selected by a duly constituted selection committee consisting of respondent No.2, Chief Physio Therapist of Paraplegia Hospital and the Senior Administrative Officer of Paraplegia Hospital. It is the case of the petitioners that many candidates were considered for selection while the petitioners were amongst those who were declared successful and were issued the orders of appointment; that they have continuously served since the above mentioned dates and have never been issued any charge sheet, show cause notice or any adverse remarks throughout their career till the date of the present petition; that their service career is spotless and they have always worked hard. That both the petitioners are belonging to Other Backward Class enumerated by the Baxi Commission. That the petitioner no.2 is physically handicapped and is having serious walking defect in the left leg due to some permanent damage to the calf muscle since his birth. According to the petitioners, in view of the above, they are entitled to be treated as permanent employees and the respondents are not entitled to treat them as employees appointed merely for 29 days and, therefore, the respondents are also not entitled to terminate their services on that basis. It is their case that they have worked on all the working days but have been issued series of appointment orders for a duration of 29 days but in reality, they have worked on the 30th day also but are given merely a paper break. The petitioners have specifically submitted that the muster rolls will also reflect this fact clearly. The petitioners have further submitted that since they were duly selected by a properly constituted selection committee, there is no logical reason to remove them from service. According to the petitioners, on many occasions, they were even issued the appointment orders much after the date of paper break and in such cases, the appointments were treated as retrospective by the authorities. The last orders dated 15.12.1986 are also similar orders. Thus, according to the petitioner, whole arrangement of these appointment orders is nothing but a paper arrangement and in reality, they are being treated as continuing in employment. According to the petitioners, they were not given any retrenchment compensation on the evening of 15.12.1986 and they were told that they will have to hand over charge on the next day and should come for completing these formalities on 16.12.1986. Therefore, apprehending the termination of their services, they have filed the present petition before this Court. This Court has, while issuing notice pending admission on 16.12.1986, has granted ad.interim relief in terms of para 13(f) of the petition and, thus, the petitioners were protected. Thereafter, this Court has, by order dated 24.12.1986, admitted this petition by issuing rule thereon and has ordered to continue the ad.interim relief. In view of these facts, in para 13(b) of the petition, the petitioners have made a prayer to set aside the purported action of respondent authority in seeking to terminate the services of the petitioner on the ground that it is violative of section 25-F of the Industrial Disputes Act, 1947 and it amounts to unfair labour practice, hit by Art. 14 and 16 Constitution of India. The petitioners have also prayed for restraining the respondents from terminating their services and to direct the respondent authorities to regularize their services.

(3.) The respondents have filed affidavit in reply on 30/12/1986, by one Govind N. Parmar, Senior Admn. Officer. The deponent in the affidavit in reply, has not disputed the facts narrated by the petitioner in the petition as regards date of appointment, periodical appointments and the date of termination i.e. 15th December,1986; that the petitioners have not received order of termination from the respondents and prior to that, both the petitioners approached this court by way of this petition and obtained interim orders on 16th December, 1986. In the reply filed by respondent NO.2, the only contention raised by respondent No.2 is that they were appointed on periodical basis from time to time and ultimately, their services were terminated on 15th December, 1986. It has been denied that the artificial breaks were given as alleged. It has been contended that the post in questions are required to be filled in through Centralized Recruitment Scheme ("CRS" for short) by the Collector and therefore, the petitioners are not entitled to continue in service. Except that, there is no other averments made in the affidavit in reply filed by respondent NO.2.