J J SHRIMALI Vs. DISTRICT DEVELOPMENT OFFICER MEHSANA
HIGH COURT OF GUJARAT
J J Shrimali
District Development Officer Mehsana
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(1.)The short question which arises in this batch of petitions brought under Art. 226 of the Constitution of India is whether Muster Karkoons engaged on purely ad hoc and temporary basis for supervising scarcity relief works (or projects so called) started by the State Government and administered through the concerned District Panchayats are entitled to contend that their services cannot be terminated except in accordance with the provisions of the Industrial Disputes Act 1947 (hereinafter called the Act) notwithstanding the fact that their orders of appointment clearly stated that their employment will terminate on the winding up of the scarcity relief works. Is it necessary to follow the provisions contained in Chapter V-A or V-B of the Act for terminating the services of the petitioners on the promise that such termination amounts to retrenchment in law ? The orders of appointment issued by the District Development Officer Mehsana in terms provide that the appointments are made on purely ad hoc and temporary basis for the duration of relief works and shall automatically stand terminated on the closure of the relief works. Notwithstanding this condition of appointment the petitioners contend that since they have completed 240 days during a period of twelve calendar months preceding the date with reference to which calculation is to be made they must be treated as in continuous service for one year and would therefore be entitled to notice or wages in lieu of notice and retrenchment compensation before termination of their services.
(2.)In the counter filed on behalf of the respondent-Panchayat it is stated that having regard to the serious drought conditions prevailing in the district of Mehsana since 1985 86 the State Government had started relief works to provide relief to drought affected people. The main object of these relief works is to provide succour to the drought affected people and not to construct roads tanks etc. These relief works are undertaken by the Government on humanitarian considerations to ensure that drought stricken people do not die because of starvation or lack of maintenance. The principal object of the State is to provide relief during the period of drought and scarcity conditions prevailed with a view to fulfilling its obligations under Arts. 38 39 and 41 of the Constitution of India. The State as a sovereign power in a democratic set-up is charged with the duty to protect its people during severe drought and scarcity conditions. In response to these obligations the State Government undertook relief works in different Talukas of Mehsana District and entrusted the execution thereof to the District Panchayat. Since these relief works were started in discharge of the sovereign function of the State the respondents contend that such works cannot be termed industry within the meaning of Sec. 2(j) of the Act. It is therefore contended that the provisions of the Act have no application and it is not obligatory on the part of the respondent-Panchayat to follow the procedure for termination of service on the promise that it amounts to retrenchment within the meaning of Sec. 2 of the Act. Alternatively it is contended that even if it held that the provisions of the Act are attracted the termination of service on the completion of relief works would not amount to retrenchment as the case would be governed by the newly inserted clause (bb) in Sec. 2(oo) of the Act. Broadly stated the defence is two fold namely (i) that the relief works undertaken by the State Government and executed by the District Panchayat in discharge of the sovereign function of the State cannot therefore come within the meaning of industry defined in Sec. 2(j) of the Act; and (ii) alternatively even if it is assumed (though not admitted) that the petitioners have completed 240 days as alleged and the provisions of the Act apply the termination of service of the petitioners cannot be termed retrenchment within the meaning of Sec. 2(oo) of the Act as the case falls within the exception contained in clause (bb) of the said definition.
(3.)The agricultural economy of Gujarat is heavily dependent on rainfall. On account of erratic rainfall pattern large areas of the State are often subject to scarcity and drought conditions year after year. Gujarat had the misfortune of facing three successive droughts. Practically the whole of the State fell a prey to the spectre of drought and famine the ramifications whereof were far reaching so far as the agricultural economy was concerned. Valuable cattle perished in thousands for want of fodder and drinking water and out of exhaustion during their migration in search of fodder. The plight of agriculturists and cattle breeders was miserable; their lands lay parched and barren their cattle dead and gone their savings and valuables expended and their whole lives threatened by starvation and thirst for want of food grains and potable water. This was the unfortunate plight of people whose livelihood depended heavily on the vagaries of the monsoon. The District of Mehsana was one of those areas which was severely affected because of drought and famine conditions. The State Government was obliged to take immediate steps to provide succour and relief to the famine stricken people of such areas. The nature of problems faced by people living in scarcity affected areas must necessarily differ from area to area. In an area inhabited by agricultural labour the problem may be to provide them temporary employment while in an area inhabited by cattle-breeders the immediate task would be of providing fodder. Again in certain areas the problem may be of providing drinking water. A careful identification of the nature of problems is necessary for organising relief measures. Earlier relief measures during famine and scarcity were governed by the Famine Relief Code 1885 but after independence keeping in view the past experience and the roll to be played by a welfare State under the Constitution the Gujarat Relief Manual outlined the detailed procedure and policies of organising relief measures. In order to combat the problems arising on account of scarcity and drought conditions the State Government machinery as well as a large number of voluntary organisations public charitable trusts and humanitarian institutions teamed up to provide relief and succour to the unfortunate who were hard hit by natures wrath. Thousands of people in different parts of the State affected by drought and scarcity conditions had to be provided at least half a loaf if not the full to survive the difficult period. Cattle camps had to be organised to save precious livestock. Financial Assistance poured in from different sources besides the Central and State coffers. The State as well as panchayat machinery was geared up to meet the challenge. Relief works were opened in different Talukas of the District of Mehsana to provide sustenance to the drought-affected people. The number of such unfortunate persons ran into thousands. Their livelihood was robbed because there was no agricultural activity on account of the failure of three successive monsoons. Not to hurt human dignity by distributing doles the State Government started relief work or projects so called in different Talukas of Mehsana District to take work and pay wages for the same to the affected people. In order to supervise the activity at such relief works or projects an administrative machinery had to be set up. The District Panchayats were therefore charged with the duty to gear up their own machineries for the execution of relief works sanctioned by the State Government within their areas. As the existing machinery of the Panchayats was not sufficient to cope up with the enormity of the task assigned to it additional hands were required and for that purpose temporary and ad hoc appointments had to be made on each relief work or project. As Payment was to be made to the affected people working at such relief projects it was necessary to maintain musters to record their presence on day to day basis the out put of work etc. and for that purpose `Muster Karkoons became necessary. Since a large number of persons had to be engaged to meet the challenge thrown by the drought candidates who were on the waiting list of Talati-cum-Mantris were inducted as `Muster Karkoons on a clear understanding that the work was of a purely temporary nature and co-extensive with the duration of the scarcity conditions. Workcharged Clerks were also engaged on the same terms and conditions. It is clear from the appointment orders produced by the petitioners that the incumbents were told in no uncertain terms that they were engaged on a purely ad hoc and temporary basis till the scarcity works are in progress and that their employment will terminate as soon as the scarcity works are wound up. It is in this background that we must examine the contention urged by the petitioners that the provisions of the Act particularly Chapter V-A or V-B thereof would be attracted if their services are sought to be terminated.
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