Rule.
Notice as to interim relief returnable on 11.6.2012.
2.0 In this group of petitions, petitioners, most of whom are serving from years, ranging between 4 years to 30 years and most of whom are being paid an amount around Rs.1350 per month, as contingent expense of the Government, are sought to be terminated by their respective offices, under the written instructions of the Government of Gujarat, Finance Department, with effect from today i.e. 31st May, 2012 after office hours. In these emergent circumstances, present petitions are heard and considered by this Court, at this stage for the limited purpose as to, till this Court considers the question of interim relief, whether the petitioners are entitled to any ad-interim protection from this Court or not.
3.0 Learned advocates for the petitioners Mr. Shalin Mehta, Mr. Mehul S. Shah and Mr. P.H.Pathak have addressed the Court at length, on merits, as well as for grant of interim relief. Mr. Prakash Jani, learned Government Pleader has appeared on behalf of state authorities and contested the petition, at this stage for the limited purpose of opposing grant of any interim/ ad-interim protection in favour of the petitioners, and while doing so, he has also addressed the court on merits, as to how and why the petitioners are not entitled to any relief, much less any interim relief.
4.0 Though both the sides have addressed the Court at length, only those facts and arguments, which are relevant for the purpose of deciding the question of grant of interim protection or otherwise, till the question of interim relief is decided by this Court, are briefly recorded in this order.
5.0 Petitioners have challenged the legality and validity of the Government Resolution dated 25th April 2012, issued by Finance Department of the State of Gujarat, on various grounds. The impugned Government Resolution dated 25th April 2012 has two fold effects. One, that the work which is permanent / perennial in nature is sought to be outsourced at all government offices in the State, including at Community Health Centres where the petitioners of SCA 7462 of 2012 are working, and second effect is that, all employees who are paid as contingent expense, from the consolidated fund of the State, may be since years, may be for more than 20 years, will go home this evening i.e. from the evening of 31st May 2012.
6.0 Other issues are also involved in the matter such as, whether Government Resolution dated 25th April 2012 can travel beyond what was envisaged by Government Resolution dated 10th February 2006. Whether employees who are appointed prior to 10th February 2006 shall be governed by Government Resolution dated 10th February 2006 at all, and, therefore, whether Government Resolution dated 25th April 2012 or any part thereof, can have any applicability to those employees, who are petitioners before this Court.
7.0 Learned Counsel for the petitioners have submitted that, whether Government can legally be permitted to outsource these services is also a question raised in this petition, but so far the second part of the Government Resolution dated 25th April 2012, whereby it is mandated by Government that all contingent paid employees shall be terminated with effect from 31st May 2012, can not be permitted to stand even for a day. It is because of this second part of the impugned Government Resolution, urgent consideration was required by this Court today.
8.0 Reliance is placed on behalf of the petitioners on the judgement of the Hon'ble Supreme Court of India, in the case of Air India Statutory Corporation Limited and Others vs. United Labour Union and others in [(1997) 9 SCC 377, at page 445 Para:70], which reads as under:
"70.
Before parting with this judgment, it has to be appreciated that engagement of contract labour has been found to be unjustified by a catena of decisions of this Court. When the work is of perennial nature and instead of engaging regular workmen, the system of contractor labour is resorted to, it would only be for fulfilling the basic purpose of securing monetary advantage to the principal employer by reducing expenditure on work force. It would obviously be an unfair labour practice and is also an economically short-sighted and unsound policy, both from the point of view of the undertaking concerned and the country as a whole. Such a system was tried to be put to an end by the legislature by enacting the Act but when it found there are certain activities of establishment where the work is not of perennial nature then the contract labour may not be abolished but still it would be required to be regulated so that the lot of the workmen is not rendered miserable. The real scope and ambit of the Act is to abolish contract labour system as far as possible from every establishment. Consequently, on abolition which is the ultimate goal, the erstwhile regulated contract labour cannot be thrown out of establishment as tried to be submitted on behalf of the management taking resort to the express language of Section 10 of the Act. Such a conclusion reached by the two-member Bench in Dena Nath case, flies in the face of the very scope and ambit of the Act and frustrates the very scheme of abolition of contract labour envisaged by the Act. Such a conclusion, with respect, cannot be countenanced, as it results in a situation where relatives of the patient are told by the operating surgeon that operation is successful but patient has died."
9.0 The impugned action of the Government, prima-facie does not answer the above test and therefore I am prima-facie, of the view that the impugned action of the Government, is not likely to stand the test of legality, atleast that of reasonableness.
10.0 After hearing Learned Counsels for both the sides, this Court finds that the petitioners have strong prima-facie case in their favour. Therefore it will have to be ascertained, whether the balance of convenience is in favour of the petitioners or not, and for that purpose, the following factors are taken into consideration.
11.0 It is not that the work is not there and therefore the petitioners are to be terminated. The work is there, and the said work is perennial in nature. That work is not such that, if not carried out on a particular day, can be kept pending and can be done the next day, since many of the petitioners are watchmen, sweepers etc. It is not even the case of the Government that because of no work or less work, the termination is required.
12.0 The intention of the Government as reflected in the impugned Government Resolution is that the work which is done by present petitioners and similarly situated persons, shall be got done through contractor by outsourcing. No details regarding this outsourcing is coming on record, as to whether these persons will be continued with the same work, with an interpolation of the contractor, and if yes, whether the petitioners who are even otherwise paid Rs. 1350/- per month will be made to work even for lesser amount, or whether the contractor will have full free hand to employ altogether new persons. If that is to happen, in effect, it would be replacing, if not regular, atleast present adhoc employees with new adhoc employees, the situation which is not only deprecated but is held to be impermissible in law.
13.0 At this juncture, reference may be made to the order passed by this Court in Letters Patent Appeal No: 107 of 2009, on Civil Application No: 1014 of 2009 dated 16.12.2009. By the said order, Division Bench of this Court, while granting mandatory reinstatement order in favour of an employee, who was terminated because of outsourcing, observed that it is a settled law that employer can not replace an ad-hoc employee by another ad-hoc employee, as laid down by the Supreme Court in case of State of Karnataka vs. Umadevi [(2006) 4 SCC 1.] Further, under almost identical circumstances, this Court on 16.11.2011 passed an order on Special Civil Application No. 17050 of 2011 restraining respondent authorities from terminating the service of a person, on the ground that arrangement of outsourcing the work violates Articles 14, 16 and 21 of the Constitution of India. This court while granting protection, observed that the Government has evolved a policy which indirectly compels the petitioner to accept the work at cheaper rate.
14.0 Considering the totality of the facts and circumstances, some of which are briefly recorded hereinabove, this court finds that the Government would not suffer any loss, much less any irreparable loss, if status quo as of today noon, is ordered to be maintained, on the other hand, if the same is not granted, the petitioners, who are even otherwise meagerly paid, will loose their livelihood, hundreds of families would starve and only few contractors who may be even otherwise rich, will become richer. Considering these aspects, as well as the orders of the Division Bench and learned Single Judge of this Court as referred above, it is ordered that the impugned Government Resolution dated 25th April 2012, issued by Finance Department of the Government of Gujarat, shall not be given effect to, until further orders by this Court and status quo as prevailing today noon, qua all petitioners, shall be maintained until further orders by this court. Direct Service permitted.
[PARESH UPADHYAY, J.] Amit Top