SHIVSHANKAR S PATHAK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) As the facts and grounds which have been taken by the petitioners in these Special Civil Applications are common, the same are being disposed of by this common order. In Special Civil Application No. 3006/83, the learned Counsel for the petitioner made a statement before this Court that he does not press this Special Civil Application for petitioners No. 2, 3, 15, 16 and 19. Writ petition on behalf of these petitioners accordingly stands dismissed.

(2.) The petitioners in both these Special Civil Applications were engaged as Karkoons in the irrigation scheme relating to Karjan Dam. It is admitted case of the petitioners that they were appointed on daily wages. In Special Civil Application No. 3006/83, the petitioners have given the date of their employment. In Special Civil Application No. 4174/83, the petitioners have given their date of appointment in para-3 of the petition. These writ petitions have been filed by the petitioners challenging therein the action of the respondents to terminate their services. Challenge to the termination has been made by the petitioners in both these Special Civil Applications, on the ground that the same have been made in violation of provisions of Sec. 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act 1947'). The next ground of challenge has been taken that the termination of services of the petitioners is arbitrary and violative of Arts. 14 and 16 of the Constitution of India as the termination is stated to be made wholly on arbitrary and perverse reasons. Reply to the Special Civil Applications has been filed by the respondents wherein the details of the working of the petitioners as daily wagers at the Karjan Dam Project has been given. The Court on the last date of hearing of the matters has given a direction to the State Government to file a concise statement of actual working days of the petitioners during the period from 21st June 1982 to 20th June, 1983 and in compliance of the said direction, further affidavit-in-reply has been filed by Shri Y.I. Dhundia, Executive Engineer. In Special Civil Application No. 4174/83, no such statement has been filed. From the further affidavit filed in the Special Civil Application No. 3006/83, it is clear that petitioners No. 1, 6, 8, 10, 13, 15, 16, 17 and 19 have completed 240 days' actual working during the aforesaid period, but as the learned Counsel for the petitioner has made a statement that he does not press this petition in respect of petitioners No. 2, 3, 15, 16 & 19, in Sp. Civil Application No. 3006 of 1983, and the petition so far as these petitioners are concerned is dismissed, it can be said that only the petitioners No. 1, 6, 8, 10, 13 & 17 have completed 240 days' actual working. The rest of the petitioners have not completed 240 days' actual working during the aforesaid period. This affidavit has not been controverted by the petitioners. The learned counsel for the petitioners contended that as per the chart filed by the respondents, many of the other petitioners have completed 240 days of actual working in the year earlier to the period in dispute and as such, the provisions of Sec. 25-F of the Act, 1947 have to be complied with in their cases also. The learned Counsel for the petitioners, in support of his contention placed reliance on the following decisions : 1. 1986 0 GLH 1024 - PWD Employees' Union vs. State of Gujarat. 2. 1984 (II) Lab. IC 974 - The Kapurthala Co-operative Bank Ltd., Kapurthala vs. The Presiding Officer, Labour Court, Jullundur & Ors.. 3. 1982(11) LLJ 186 - Ramasamuz Upadhyaya vs. Vinubhai M. Mitra. 4. 1986 Lab. 1C 98 = 1985 (II) LLJ 539 - The Workmen of American Express International Banking Corporation vs. The Management of American Express International Banking Corporation.

(3.) On the other hand, the learned Counsel for the respondents firstly raised a preliminary objection that this Special Civil Application is not maintainable as the petitioners have an efficacious alternative remedy under the provisions of the Act 1947 by way of raising the industrial dispute. Carrying further this contention, the learned Counsel for the respondents contended that the petitioners are challenging the validity of the termination of their services on the ground of violation of Sec. 25F of the Act 1947 and in such case, the petitioners have to avail of the remedy provided under the said Act and not this writ petition under Art. 226 of the Constitution of India. It has next been contended that otherwise also, the provisions of Sec. 25-F of the Act, 1947 are not attracted in the present case as the construction of dam by the State Government through irrigation department are sovereign functions. It is urged that the provisions of Sec. 25-F of the Act, 1947 will be attracted only in case of those petitioners who have worked for 240 days in the twleve calendar months preceding the date of termination and not in the case of those petitioners who have not completed 240 days. It has next been contended that even if it is accepted by this Court that the provisions of Sec. 25F of the Act 1947 are attracted in the present case, then too the relief of reinstatement may not be granted as the project in which the services of the petitioners were engaged has already been closed in the year 1986. In support of this contention, the learned Counsel for the respondents placed reliance on the following decisions of Hon'ble Supreme Court as well as this Court.