DILIPBHAI GOVINDBHAI CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard the learned Advocate, Mr. U.I. Vyas, appearing on behalf of petitioners and learned AGP, Mr. Dabhi, appearing on behalf of respondent No. 1.

(2.) Looking to the facts which are on record, the petitioners were appointed on 1.3.1997 as a Safai Kamdar and their term was extended from time to time. Since then, the petitioners have been working with the respondent department without there being any break in service till the date of termination i.e. 5.5.2006. The order of termination wherein the service of petitioners was terminated as part time Safai Kamdar by respondent No. 3 herein.

(3.) Learned Advocate, Mr. Oza, submitted that petitioners were continuously working with respondent more than 9 years, even though service of the petitioner was not regularized by respondent. He also submitted that looking to the Government Resolution dated 26.12.1980, the State Government has decided to consider the case of part time employees after a period of three years, to be regularized their services as a full time employees. He also submitted that this Resolution dated 26.12.1980 has been kept in abeyance by another Resolution dated 21.8.1995. However, the case of the petitioners was not considered by the respondent after a period of three years as a full time employee. He also submitted that at the time of appointment some sort of procedure was followed by the respondent while giving appointment to the petitioners. He also submitted that the petitioners are qualified to the post of Safai Kamdar and also eligible for the post of Safai according to Recruitment Rules. He submitted that at the time of making appointment, no procedure was followed by respondent, for that petitioners should not have to be penalized. He also submitted that it is a duty rather legal obligation on the part of the respondents to make appointment as per Service Rules / Recruitment Rules. Not to make appointment as per Service / Recruitment Rules, then, it is not a fault on the part of the petitioners but, it was a fault on the part of respondent. Meaning thereby that respondents failed in discharging legal obligation. Therefore, he submitted that respondents should have to consider the case of the petitioners for regular employee in the post of Safai Kamdar as a full time employee. He also submitted that it is a settled principle of law that in case if any adverse civil consequence is required to be effected to any employee, at least principle of natural justice is required to be followed by respondents. The service of the petitioners has been terminated without following the principles of natural justice which hit by Articles 14 and 16 of the Constitution of India. He also submitted that it is not the case of the respondent that termination is result of non-working or no work. He submitted that perennial work is available with the respondent during last more than 9 years but, no work was given to the petitioners. Meaning thereby that work is available with the respondent, even though service has been abruptly terminated by respondent. He also submitted that respondent is now taking some work through agency, therefore, requirement of work is there but, persons will be appointed through agency. Therefore, ultimately, respondent -State Government may not have any burden either financial or administrative to continue such employee for a long period. He submitted that it amounts to State Government applying the business brain with colourful device to terminate the service of such employees, those who have continued for more than 9 years with the respondents. He also submitted that if work is available and work is permanent in nature, then to terminate the service of such employee which amounts to unfair labour practice by the state authority, who has acted as a private employer. He relied upon the decision of Apex Court (i) Mineral Exploration Corporation Employees' Union v. Mineral Exploration Corporation Ltd. and Anr. and also of this Court (Coram : D.H. Waghela, J.) in SCA No. 4355 of 2006 and group of matters dated 18.9.2006