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2016 Supreme(Guj) 244

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Gujarat Mazdoor Sabha – Appellant
Vs.
State of Gujarat and Ors. – Respondents
Special Civil Application Nos. 10829 of 2003, 4575, 4621, 4982 of 2014, Civil Application No. 10855 of 2014 in Special Civil Application No. 3992 of 2014, Civil Application No. 3999 of 2015 in Special Civil Application Nos. 3992 of 2014, 1083 of 2015, 4189, 10308, 13670, 13675, 15279, 15280, 15282, 17027, 17252 to 17275, 17279, 17293 to 17328, 17346, 17347 to 17455 of 2012, 582, 583, 638, 639, 1235, 1261, 3247, 3309, 3344, 3652, 4046, 8450, 13079, 14153, 15839 of 2013, 2206, 2229, 8596, 8717, 8718, 8719, 10811, 12398, 12424, 14826, 15094, 15109, 15110, 16645, 16651, 18532, 18533, 18556, 18557 of 2014, 2106, 3042, 3071, 4688 to 4694, 5255, 8783, 8788 to 8792, 11154, 11155 to 11157 of 2015, 18385 of 2013, 6157, 7108 of 2014, 17223 of 2012, 616, 617, 3357, 6045, 6046, 12114 of 2013, 23, 24, 9840, 9841, 12783 of 2014, 1678 of 2012, 18019 of 2014, 355 to 361 of 2015, 11474 of 2013, 87, 16864, 18201 of 2014, 5266, 5352, 7612, 7614 of 2015, 12117 of 2013, 11330, 11331 of 2015, 9112 and 9495 of 2014
Decided On: 04.02.2016

Advocates:
Advocate Appeared:
For Appellant :M.P. Prajapati, Advocate
For Respondents:Prakash K. Jani, Addl. Advocate General, Manisha Lavkumar Shah, G.P. andSwapneshwar Gautam, A.G.P.

Headnote:

Constitution of India, 1950 - Articles 14,16, 32, 226 - Industrial Disputes Act, 1947 - Section 9(A) - Petitioners working in different departments of State Government in work charge establishment for long - No step taken for absorbing petitioners in temporary establishment - Benefit claimed by petitioners in view of Resolution 1973 of State Government - Before benefit given to petitioners Resolution revoked by Government - Revocation amount to unfair labour practise and exploitation of employees - For absorption in temporary establishment as per circular of State Government - Change in conditions of Service - Notice Applicability - Held, writ applications are maintainable and are not liable to be rejected on ground of availability of alternative remedy - Action of State Government, in not absorbing writ applicants in temporary establishment from work charged on completion of five years of continuous service and fulfilment of other conditions, is contrary to concept of social and economic justice - State should not have guillotined legitimate aspirations of employees - Section 9A of the Industrial Disputes Act, 1947 has no role to play as such and issue raised is of no significance - Government Resolution in these writ applications being policy matter is not disturbed, but at same time, writ applicants are entitled to benefits of earlier policy, more particularly, when such policy remained in force for forty one years and writ applicants have been serving past almost thirty years - all the writ applications are allowed in part - State Government is directed to absorb writ applicants in temporary establishment from work charged and grant them benefits - State Government is directed to absorb them on work charged establishment from date they were otherwise eligible to be absorbed - petitioners retired/expired shall also be entitled to benefits and they or their legal heirs, as case may be, shall be paid amount falling due by virtue of this order - Government Pleader appearing made request that judgment be stayed from its operation - Judgment and order pronounced today is stayed from its operation for period of time - Writ Application and Civil Applications Disposed.

JUDGMENT :

J.B. Pardiwala, J.

1. Since the issues raised in the above captioned bunch of the writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.

2. The following are the observations made by the Supreme Court, speaking through His Lordship Dipak Mishra, J., in a very recent pronouncement in the case of State of Jharkhand and another vs. Harihar Yadav and others [2014 (2) SCC 114]:

"How does a constitutional court respond to a situation when a human problem of great magnitude frescoed on constitutional canvas gets painfully projected with intense sincerity, possibly realizing pain is one of the "sovereign masters of mankind"? How is the Court required to react in law when the workmen are forced to grapple with a colossal predicament of sense of belonging due to a situation created making them feel that they are neither here nor there? We consider it as an unbearable tragedy faced by the unfortunate employees warranting serious attention of this Court, for some employees have breathed their last due to starvation, constant stress being unable to meet the keen demands of appetite, and the impecuniosity that hampered them to avail timely treatment, and some families have been unwillingly driven to a state of unmeaningful survival - an animal existence - sans proper food, sans clothes and sans real shelter."

3. I am confronted with almost a similar situation wherein about more than 700 employees, working in the different departments of the State Government, have complained that they are in the work charged establishment past almost 30 years. Till this date, the authorities concerned have not taken any steps to put them on the temporary establishment. It is complained that as a result of such inaction on the part of the State Government, they have been deprived of the benefits which an employee otherwise derives working on the temporary establishment. Few of the petitioners have complained that although they have been absorbed in the temporary establishment, yet the same was at a very belated stage rather than absorbing them in the temporary establishment on completion of the five years of service in the work charged establishment, according to the policy of the State Government, as laid down in the circular dated 6th August, 1973.

4. It appears that the entire claim put forward by the petitioners to absorb them in the temporary establishment from the work charged establishment is on the basis of the policy of the State Government which was prevailing at a point of time in the form of a resolution dated 6th August, 1973 issued by the Public Works Department. It also appears that before the benefit could be given to the petitioners of the resolution of 1973, the State Government thought fit to cancel the same or rather revoke vide Government Resolution dated 20th August, 2014. Thus, it appears that now, the stance of the State Government is that since the earlier resolution of 1973 has been cancelled, there is no question of giving effect to the same for the purpose of absorbing the work charged employees on the temporary establishment.

5. In such circumstances, the petitioners have more or less prayed for the following reliefs:

"13(A). Your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondents to treat the petitioners on temporary establishment on completion of 5 years of service as workcharge employees and further be pleased to direct the respondents to grant them higher grade on completion of 9, 18 & 27 years of service from the date the petitioners completed 9 years of service on temp










































































































































































































































































































































































































































































































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