Vaghela Gangaram Jivaji vs State of Gujarat

S.R. Brahmbhatt, J. (Oral)—Heard learned counsel for the petitioner, Mr. Mishra and learned AGP, Mr. Poojari for the respondents.

The petitioner who happened to be a daily wager with the respondents has approached this Court by this petition with following reliefs:

"(A) Your Lordships may be pleased to hold and declare that, the action of the respondent of terminating the services of the petitioner orally from 16.8.2004 to be illegal, arbitrary, unconstitutional and therefore, null and void.

(B) Your Lordships may be pleased to direct the respondent authorities to reinstate the petitioner into the services with full back wages.

(C) Your Lordships may be pleased to direct the respondents to extend all the benefits to the petitioner available under the Government Resolution dated 17.10.1988 and to pay the petitioners the arrears of such differences in salary by holding and declaring that the petitioner is entitled to the benefits under Government Resolution dated 17.10.1988.

(D) Your Lordships may kindly be pleased to pass any other further order/s as are deemed fit, just and proper in the facts and circumstances of the case and in the interest of justice."

Learned counsel appearing for the petitioner invited the Court''s attention to the documents placed on record of this petition namely, the wage slip and the communication which he was compelled to address on 8.9.2003 and subsequently on 29.10.2004. He also invited the Court''s attention to the Government Resolution dated 17.10.1988 and submitted that the consistent approach of the respondents was not to accord benefits of either permanency or the legitimate wages admissible to such an employee that constrained him to approach the Labour Commissioner under the appropriate provision of Minimum Wages Act as could be seen from the communication at page 25 dated 16.11.2004 which was issued by the Labour Officer to the concerned authority and the petitioner for fixing hearing in respect of the complaint of the petitioner qua non-payment of minimum wages. All these facts, according to him, would indicate that the petitioner''s contention qua he being in service as daily wager from 1.12.1990 to 16.8.2004 are not denied. He also relied upon the averments made in the reply affidavit in paragraph No.6 to indicate that in light thereof, one can submit that there was no abandoning of the job as sought to be made out.

Learned AGP, Mr. Poojari appearing for the respondents, submitted that the petitioner was not a daily wager but was a seasonal worker and in absence of any specific plea supported by documentary evidences, the case of the petitioner cannot be said to have been established. He further submitted that the plea of abandonment is sought to be supported by respondents as could be seen from the affidavit though the communication dated 16.8.2004 extensively referred to in affidavit has not been annexed. But that in itself should not militate against the plea of the respondents qua abandoning of the job. He showed that document from his file to the other side as well as the Court in support of his submission.

At this stage, Mr. Mishra urged the court that let there be an opportunity to the petitioner for making representation in detail in view of the judgment of the Hon''ble Supreme Court reported in the case of State of Gujarat v. Public Works Department(2013)12 SCC page 417 which has in unequivocal terms held that the Government Resolution dated 18.10.1988 is applicable to the persons like the petitioner also. He submitted that let there be a direction to the other side that in case such a representation is made, then the same shall be decided in accordance with law and within a stipulate time frame.

In view of the matter, the petitioner does not press this petition at this stage with a liberty to approach the Court in case if there is an adverse order on the representation and in that eventuality, all the grounds taken up in this petition be permitted to be urged.

Mr. Poojari submitted that there cannot be any objection to such a proposition as the ground and the reply or contention of the respondents also would be available in accordance with law.

The Court is of the considered view that in view of the aforesaid, let there be one more opportunity to the petitioner to make an appropriate representation to the concerned authority. The representation shall be made on or before 6.1.2017 and if the same is made, then the respondents shall decide the same in accordance with law and the record available with them and communicate the reply to the petitioner on or before 10.2.2017. It goes without saying that as the Court has not opined on merits and permitted the petitioner not to press this petition at this stage, in case if the order passed on the representation is adverse to the petitioner, the petitioner shall have liberty to challenge the same along with the grounds which have been pressed into service in this petition. The petition stands disposed of accordingly. Rule is discharged. Direct service is permitted.