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Gujarat High Court
Judgename :DEV KANT TRIVEDI, K.M.MEHTA
EMPLOYEES STATE INSURANCE SCHEME - Appellant
Versus
DAMJIBHAI CHAKUBHAI PATEL - Respondent
L.P.A. 1200 of 2001
Decided On : 01/28/2005
Appointment - Temporarily for fixed period - Reinstatement with back-wages - Sustainability.
Head Note :
(a) Letters Patent Appeal - Clause 15 - Order of learned Single Judge - Appeal against - Maintainability - The learned Single Judge has considered earlier order of this Court passed while exercising power under Article 226 of Constitution as well as order of Supreme Court - That apart when the learned Single Judge has reduced the back-wages from 100% to 40% then also he has exesused power under Article 226 and not under Article 227 of the Constitution - So the present LPA filed by State was maintainable.
Held :
It is no doubt true that the State had originally challenged the judgment and order of Tribunal and, therefore, nomenclature was that the petition under Article 227 of the Constitution of India. However, in these set of circumstances, earlier, the order of this Court was passed thereafter, Honble Supreme Court order was passed and, therefore, the Tribunal was not only concerned about the Industrial Dispute raised by the respondent, but also both the Tribunal as well as the learned Single Judge have considered earlier order of this Court as well as order of the Supreme Court. When it is examined, the High Court exercised power under Article 226 of the Constitution of India. Over and above when the learned Single Judge has reduced the back wages from 100% to 40%, then also, the learned Single Judge has exercised power under Article 226 of the Constitution of India. [Para 8]
So the present Letters Patent Appeal filed by the State is maintainable. [Para 8.1]
Head Note :
(b) Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sections 2(oo), 2(oo)(bb), 10(1)(c), 25-F, G & H - Constitution of India, 1950 - Articles 320, 320(1), 320 Clauses (2), (3) & (5) - In the earlier round of litigation writ petition filed by present respondent was dismissed by the Court and also by Supreme Court and only condition imposed on the respondent (Present petitioner) that it had only liberty to consider the case of petitioner in case any future vacancy occur after giving him an opportunity to appear in the examination held by GPSC - Admittedly respondent did not clear the GPSC examination, therefore, there was no question of his reinstatement - Court also held that order of relieving the respondent is quite legal, valid and in consonance with provisions of the Act and also in consonance with order of the Court and Supreme Court - It appears that Court below have not properly appreciated the facts and circumstances of the case and on the Court both the impugned order of Tribunal and Learned Single Judge not sustainable - In the facts of the case provision under Section 25-F has no application and his services were liable to be terminated in terms of his appointment order - However, respondent has made representation and the Govt. has not passed any order to the representation - Court, therefore, allowing respondent to continue in service in view of subsequent Division Bench order till petitioners decides the representation of the respondent - The order of the Tribunal dated 27.04.1989 and judgment and order of Learned Single Judge dated 14.08.2001 are quashed and set aside.
Held :
It may be noted that this Court also dismissed the writ petition of the petitioner with a liberty to make representation and the Honble Supreme Court also dismissed the writ petition filed by the respondent on merit and only imposed condition on the respondent (before writ petition-present petitioner) that it had only liberty to consider the case of petitioner (respondent herein), in case any future vacancy occur, after giving him an opportunity to appear in the examination that may be held by the GPSC. We have considered the facts and circumstances of the case and admittedly the respondent has not cleared the GPSC examination and he has not been selected by the GPSC. Here by the impugned orders dated 15th April 1989 and 27th April 1989, the authority has appointed only persons who have cleared the examination of GPSC and selected by the GPSC. In our view the order of relieving the respondent is quite legal, valid and is in consonance with provisions of the Act, and also in consonance with the order of the Division Bench of this Court as well as the order of the Honble the Supreme Court. In our considered view, once the Division Bench and the Honble Supreme Court have passed the order and the authority has acted as per the order of the Honble Supreme Court. both the Tribunal as well as the learned Single Judge had no jurisdiction to consider any other aspect in this behalf. In our view the Court below have not properly appreciated the present facts and circumstances of the case and, therefore, on this count, both the order of the Tribunal as well as the order of the learned Single Judge granting relief of reinstatement and back-wages is liable to be quashed and set aside. [Para 30.2]
In view of the appointment order and in view of definition of Clause bb of Section 2(oo) and in view of the aforesaid decisions, in our view, the provisions of Section 25F will not be applicable in this case and, therefore, the findings of the Tribunal as well as of the learned Single Judge, order of removing the respondent is contrary and inconsistent with provisions of Section 25-F, is illegal and bad in law. [Para 30.3]
The respondent has also filed affidavit dated 12th July 2004, by which resolution dated 8th May 1999 has been produced, wherein large number of doctors were exempted from appearing in the competitive examination to be conducted by the G.P.S.C. and their services have been regularized and made permanent. It may be noted that the Government has not clarified why this resolution has been passed and whether this resolution will be applicable to the case of the respondent or not. [Para 30.10]
It may be noted that all these aspects have not been considered by the learned Single Judge or by the Government in this behalf. We are, therefore, direct the State Government to decide this issue in accordance with law. It will be open for the petitioner as well as the respondent to produce any additional evidence and thereafter, the same issue has to be adjudicated. Till the said adjudication is done, the respondent will be continued in service.
[Para 30.12]
Letters Patent Appeal is partly allowed. The order of the Tribunal dated 27th April 1989 as well as judgment and order of the learned Single Judge dated 14th August 2001 are quashed and set aside. However, in view of the subsequent order of the Division Bench dated 1st December 2003, by which Division Bench has granted reinstatement, the respondent will continue in service till petitioner decides the representation of the respondent. [Para 31]
Law Laid Down :
Where appointment is absolutely temporary with condition of removal on availability of regular appointee the provisions under Section 25-F of ID Act 1947 not applicable.
Case Law Analysis :
Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad, 1999 (6) SCC 275 [Para 7.1];; Kanhaiyalal Agrawal & Ors. vs. Factory Manager, Gwalior Sugar Company Ltd., 2001 (9) SCC 609 [Para 7.1];; Sharada Devi vs. State of Bihar, AIR 2002 SC 1357 [Para 7.1];; Gujarat Water Supply and Sewerage Board & Anr. vs. Ketanbhai Dinkarray Pandya, 2003 (3) GLR 2281 [Para 7.2];; Ishwarbhai Narottambhai Patel vs. K.H. Trivedi & Ors., 2003(3) GLR 1878 [Para 5];; M. Venugopal vs. LIC of India, 1994 (1) LLJ P.597 [Para 9.6.1];; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh & Ors., 1990 (3) SCC, 682 [Para 9.6.2];; Escorts Limited vs. Presiding Officer & Anr., 1997 (11) SCC 521[Para 9.6.3];; Uptron India Ltd. vs. Shammi Bhan & Anr., 1998 (6) SCC 538[Para 9.6.3];; J.J. Shrimali vs. District Development Officer, Jilla Panchayat & Ors., 1989 22(1) Labour & Industrial Cases 689 [Para 9.6.4];; Mukhtyar Singh vs. Food Corporation of India & Ors., 1994 (2) Labour Law Journal 488 [Para 9.6.5];; The Deputy Director of Health Services, Nasik & Anr. vs. Sau. Latabai Rajdhar Paturkar, 1996 (1) Labour & Industrial Cases 428[Para 9.6.6].-Relied on
Case Referred :
State of Maharashtra vs. Labour Law Practitioners Association, 1998(2) GLR 1079 (SC) = AIR 1998 SC 1233;; Keshao Meshram vs. Radhikabai, 1986 Supp SCC 401;; Kanhaiyalal Agrawal & Ors. vs. Factory Manager, Gwalior Sugar Company Ltd., 2001 (9) SCC 609;; Umaji Keshao Meshram vs. Radhikabai, 1986 Supp SCC 401;; Ratnagiri Distt. Central Coop. Bank Ltd. vs. Dinkar Kashinath Watve, 1993 Supp (1) SCC 9 and Suhilabai Laxminarayan Mudliyar vs. Nihalchand Waghajibhai Shaha, 1993 Supp (1) SCC 11;; Sharada Devi vs. State of Bihar, AIR 2002 SC 1357;; Gujarat Water Supply and Sewerage Board & Anr. vs. Ketanbhai Dinkarray Pandya, 2003 (3) GLR 2281;; M. Venugopal vs. LIC of India, 1994 (1) LLJ P.597;; M. Venugopal vs. LIC of India, 1994 (1) LLJ P.597;; C.M. Jitendra vs. Management, B.E. Movies, 1985 LIC 1833;; Heavy Engineering Corporation Ltd. vs. Presiding Officer, Labour Court & Ors., 1996 11 Supreme Court Cases 236;; Delhi Development Horticulture Employees Union vs. Delhi Administration, Delhi & Ors., 1992 (4) SCC 99;; State of Haryana & Ors. vs. Piara Singh & Ors., AIR 1992, SC 2130 and 1992 (4) SCC 118;;
State of M.P. & Anr. vs. Dharam Bir, 1998 (6) SCC 165;; K.D. Vora & Ors. vs. Kamleshbhai Gobarbhai Patel & Ors., 2003 (1) GLH 312;; Premgiri Devgiri Goswami vs. State of Gujarat, Special Civil Application No. 807 of 2001;; Amreli Municipality vs. Gujarat Pradesh Municipal Employees Union, 2004 (3) GLR 1841;; Premjibhai Gamit vs. Executive Engineer (Panchayat) R&B Division II, Surat & Anr., 1998 (3) GLR 2550, Jagdhsh U. Nanavaty & Ors. vs. State of Gujarat & Ors., 2000 (2) GLR 1703;; Jashtantkumar J. Desai vs. Sabarkantha District Panchayat & Ors., 42(1) GLR 860;; State of Gujarat vs. P.J. Kampavat, 1993 (1) GLR 848;; Arjunbhai J. Chauhan vs. State of Gujarat, 1997 (3) GLR 2461;; Arun Mills Ltd. vs. Dr. Chandraprasad C. Trivedi, 1976 (32) Indian Factories and Labour Reports 323;; Visramadittya Pande vs. Industrial Tribunal, 2001 Lab IC 646;; Deputy Executive Engineer vs. Jiviben V. Pandya, 2000 (2) CLR 881;; Management of M.C.D. vs. Prem Chand Gupta & Anr., AIR 2000 SC 454.
Decided in Favour of :
Partly in favour of Respondent
Appeal Partly Allowed
( 1 ) THE State of Gujarat, through the Employees State Insurance Scheme, through its Director of Medical Services, E. S. I. Scheme, Ahmedabad, appellant - original petitioner (herein after referred to as petitioner) has filed this appeal under clause 15 of the Letters Patent against the judgment and order dated 14. 8. 2001 passed by the learned single Judge in Special Civil Application No. 9316 of 1993. The learned single Judge, by the impugned judgment and order, has partly allowed the petition filed by the petitioner. The learned Judge also modified the award dated 28. 12. 1992 passed by the Labour Court, Valsad, in Reference (LCV) No. 1718 of 1990, to the extent that Damjibhai Chakubhai Patel - opponent original respondent (hereinafter referred to as respondent), Medical Officer in Ayurvedic Division, shall be entitled to 40% back wages for the period from 27. 4. 1989 till he is reinstated in service. The learned Judge confirmed the rest of the award and made the rule absolute to that extent and the interim relief granted earlier by the Court was vacated.
( 2 ) IT may be noted that the tribunal by its award pleased to accept the reference of the respondent and pleased to hold that the order dated 27. 4. 1989 by which respondent was relieved from service be quashed and set aside and he is reinstated with full back wages from 27. 4. 1989 till he is reinstated and also awarded costs of Rs. 200/- by his order dated 28. 12. 1992.
( 3 ) THE relevant facts giving rise to this appeal are as under:- BACK GROUND OF THE MATTER:-3. 1 petitioner appointed the respondent to the post of Ayurvedic Insurance Medical Officer, Class-II (Ayurvedic Division) on ad-hoc basis. Though order is dated 23. 12. 1983, the respondent commenced services from 29. 12. 1983. In the appointment order it was expressly stipulated that the services of the respondent were liable to be terminated either on completion of one year or the Government appoint any officer through Gujarat Public Service Commission, whichever is earlier. It may be noted that the appointment was absolutely on ad-hoc and the said can be terminated without giving any notice. 3. 2 it may be noted that the post to which the respondent was appointed was a post of Ayurvedic Insurance Medical Officer, ESI Scheme. The said post fell within the purview of Gujarat Public Service Commission Recruitment (hereinafter referred to as "gpsc" ). The said post is therefore required to be filled in by the GPSC. However, the petitioner is entitled to make temporary ad-hoc appointment to the said post for a period not exceeding one year or time till the regular candidate selected by GPSC becomes available. 3. 3 it is the case of the petitioner that the respondent joined the duty on 29. 12. 1983, appointment was due to come to an end on 28. 12. 1984. Since the post was one of Medical Officer and patients who suffer, if there were to occur any vacancy in the post of the practice of the Directorate is to inquire of the incumbent of the post in advance whether the incumbent would want to continue in service and if so to apply in good time before the expiry on the period of appointment. The Director also receives performance report from the superior officer concerned. Following this practice, the petitioner was given fresh appointment for a period of six months in accordance with direction of the Government in that behalf. The second appointment was for period from 2nd January, 1985 to 1st July, 1985. Likewise on expiry of the said period of six months following the aforesaid practice the petitioner gave appointment to the respondent for a further period of six months from 3rd July, 1985 to 2nd January, 1986. In view of the same, appointment came to be end after the office hours on 2nd January, 1986. 3. 4 as the respondent apprehended that his appointment may not be continued, the respondent filed Special Civil Application No. 5 of 1986 before this Court on 2nd January, 1986. On that day, this Cou
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