Service Law; Manoj Ambaram Kahar Vs. Indian Red Cross Society [Gujarat High Court, 12-07-2016]

Constitution of India – Article 311 – Gujarat Civil Services (Punishment and Appeal) Rules, 1971 – The employees of the District Branches of the Red Cross Society cannot be said to be members of a Civil Service of the Union or a Civil Service of a State or holding a civil post under the Union or a State. The Indian Red Cross Society is an autonomous body having been created by the Indian Red Cross Society Act and is not a “State” within the meaning of that expression in part XIV of the Constitution of India and the provisions of Article 311 and the applicability to the employees of the Society. The employees of the Society, cannot claim the benefit of the safeguards embodied for a government servant in Article 311 of the Constitution.


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 12/07/2016

SPECIAL CIVIL APPLICATION NO. 7328 of 2014

MANOJ AMBARAM KAHAR….Petitioner(s) Versus INDIAN RED CROSS SOCIETY & 2….Respondent(s) Appearance: MR AK CLERK, ADVOCATE for the Petitioner(s) No. 1 NANAVATI ASSOCIATES, ADVOCATE for the Respondent(s) No. 2.

JUDGMENT

1. By this writ application, under Article 226 of the Constitution of India, the petitioner – a former part­time ‘Pathologist’ serving with the Indian Red Cross Society, Navsari District Branch, seeks to challenge the order of termination dated 30th June 2008 passed by the respondents.

2. The case of the petitioner may be summarized as under:

2.1 The respondent No.1 is one of the District Branches of the Indian Red Cross Society in the State of Gujarat. The respondent No.2 is the Secretary of the Society, Navsari District Branch. The respondent No.3 is the State Branch of the Society.

2.2 The Indian Red Cross Society is established under the Indian Red Cross Society Act, 1920.

2.3 He was appointed as a part­time Pathologist on 1st August 1998. He was given appointment letter dated 5th June 2001 appointing him as a Pathologist in the services of the Blood Bank of the respondents.

2.4 He was working as a part­time Pathologist in a day between 8.00 A.M. and 10.00 A.M. and 4.30 P.M. to 6.00 P.M.

2.5 He was also working on Sundays and public holidays. He was also required to attend the blood donation camps both indoor and outdoor. He was paid the overtime for working beyond his fixed duty hours.

2.6 He was performing duties like examining the blood donors, check over the machines meant for the collection of blood, check as regards the temperature of the BBR / Deep Feezer, track of the stock of blood in the Blood Bank, conduct of the blood donation camps, participation in the qualitative programmes like IQC / IQAS, attending the workshop & conferences, creating public awareness for the purpose of blood donation, etc.

2.7 It is his case that he was working efficiently and diligently and to the satisfaction of his superiors.

2.8 According to the petitioner, the respondents were not given the benefit of the Provident Fund and other benefits to its staff. The staff of the respondents, therefore, had to join the Surat District Engineering and General Workers’ Union, Surat. Through the said Union, an industrial dispute was raised, which was referred for adjudication by order of Reference dated 19th April 2008, to the Labour Court, Navsari. The said Reference was numbered as Reference (LCND) No.1 of 2008 before the Labour Court, Navsari.

2.9 It is his case that the respondents, keeping a spite on the assumption that he had instigated the other employees of the Society, terminated his services by letter dated 30th May 2008.

2.10 As the Reference (LCND) No.1 of 2008 was pending, he challenged his termination by filing a complaint (ID) No.1 of 2008 in the said Reference. The respondents therein raised a preliminary issue as to whether the petitioner would fall within the definition of the term “workman” under the Industrial Disputes Act. The Labour Court, by order dated 21st April 1991, held that the petitioner is a workman as defined under Section 2(s) of the Industrial Disputes Act.

2.11 The order of the Labour Court dated 21st April 2011 was challenged by the respondents herein before this Court by filing a Special Civil Application No.14392 of 2011, which came to be disposed of by a learned Single Judge vide judgment and order dated 12 th October 2011. The learned Single Judge, in the operative part, observed as under:

“4. Taking into consideration the rival submissions, this Court is of the opinion that the interest of the petitioner will stand protected by reserving its right to challenge this order along with the final order and award, which may be passed by the learned Judge of the Labour Court in Complaint No.1 of 2008.

5. The petition is disposed of with the aforesaid observations.”

2.12 It appears that the Society challenged the order passed by the learned Single Judge by filing a Letters Patent Appeal No.230 of 2012, which came to be disposed of by order dated 27th March 2012 in the following terms:

“Since present intra Court appeal is preferred from order dated 12.10.2011 of learned Single Judge of this Court in Special Civil Application No.14932 of 2011, wherein an interim order in a Reference pending before the labour Court was under challenge and the Court has protected the appellant in paragraph 4 of the impugned order, the appeal is not required to be entertained and it is disposed as not maintainable, without prejudice to the rights and contentions of the appellant. Civil Application does not survive and stands disposed accordingly.”

2.13 The complaint (I.D.) No.1 of 2008 filed by the petitioner was allowed by the Labour Court vide judgment and award dated 25th March 2013. The Labour Court directed the respondents to reinstate the petitioner in service with the continuity of service without back wages.

2.14 The respondents herein preferred a Special Civil Application No.8577 of 2013 before this Court. A learned Single Judge of this Court, by judgment and order dated 26th March 2014, held that the petitioner would not fall within the definition of the term “workman”. While allowing the writ application filed by the respondents, the learned Single Judge observed in para – 13 as under:

“13. As a result of above discussion, it has to be held that the respondent would not fall within the purview of definition of Section 2(s) of the Industrial Disputes Act, 1947, and he could not be treated to be a ‘workman’. No other aspects of the matter were, therefore, required to be gone into. In view of what is held herienabove, order dated 21.04.2011 passed below Exhibit 28 by Labour Court (S.D.), Navsari in Complaint No.01 of 2008 in Reference (LCND) No.01 of 2008 is hereby set aside. Also set aside is the order dated 25.03.2013 passed by Labour Court (S.D.), Navsari whereby it partially allowed Complaint (I.D. Act) No.01 of 2008.

13.1 Accordingly Special Civil Application No.8577 of 2013 is allowed. Rule is made absolute.”

2.15 In such circumstances referred to above, the petitioner was left with no other option, but to come before this Court by way of present writ application.

3. Mr. Clerk, the learned counsel appearing for the petitioner vehemently submitted that the impugned order dated 30th June 2008 terminating the services of his client is a penal order and a stigma is attached to the said order. According to Mr. Clerk, such an order could not have been passed without following due procedure of law and without holding any inquiry in that regard. According to him, the impugned order of termination is a flagrant violation of the principles of nature justice. He submitted that the passing of the impugned order is an act of malice on the part of the respondents. According to Mr. Clerk, as his client had led the staff of the respondents – Blood Bank to the Labour Court for the purpose of the Provident Fund’s benefit, the respondents terminated the services of his client.

4. In such circumstances referred to above, Mr. Clerk prays that there being merit in this writ application, the same may be allowed and the impugned order be quashed. He prays that his client should be reinstated in service with back wages.

5. On the other hand, this writ application has been vehemently opposed by Mr. Keyur Gandhi, the learned counsel appearing for the respondents. Mr. Gandhi has raised a preliminary issue as regards the maintainability of this writ application against his client.

6. According to Mr. Gandhi, the Indian Red Cross Society, is not a “State” or an instrumentality of a “State” within the meaning of Article 12 of the Constitution of India. Mr. Gandhi submits that the Society is a voluntary organization. He would submit that the Red Cross Societies, all over the world, are acknowledged as impartial organization. According to Mr. Gandhi, none of the objects of the Society can be said to be closely related to the governmental function. In such circumstances, according to Mr. Gandhi, the petitioner could not have invoked the writ jurisdiction of this Court under Article 226 of the Constitution. Mr. Gandhi submits that although the provisions of the Industrial Disputes Act are not applicable as the petitioner could not be termed as a “workman”, yet the only remedy available for him is to file a civil suit for enforcing his personal contract of service and damages.

7. Mr. Gandhi, in support of his principal submission, has placed strong reliance on the decision of the Supreme Court in the case of