On 18th December 2020, a Single Judge Bench consisting of Hon’ble Mr. Justice Sudhir Mittal heard the case of Rishpal Singh Gill v. State of Haryana And Others.
A writ petition in the nature of prohibition was filed by the petitioner, to restrain the respondents from replacing the petitioner with another contractual employee.
Facts of the case
The petitioner was appointed against the sanctioned post of a Driver in the office of the respondent who was the Director General of Department of Horticulture, Haryana in the year 2015, but on contract basis. The petitioner possessed the necessary qualifications as required under the Haryana Horticultural (Group-B) Service Rules, 1998.
He worked with utmost devotion and sincerity, and was even assigned with work when the office was closed during the Covid-19 pandemic. But he was suddenly replaced by another employee, the respondent, who was also appointed on contractual basis. Considering that replacement of one contractual employee with another contractual employee is illegal, the writ petition was filed.
Contentions of the petitioner
Learned Counsel for the petitioner contended that one contractual employee cannot be replaced by another contractual employee, and that the petitioner was the employee of the Department of Horticulture was evident from the fact that the Department was directly allocating work to him.
The Counsel placed reliance on the following cases:
- Chandigarh and others vs. Central Administrative Tribunal, Chandigarh Bench and others, 2011(1) SCT 777
- Shiv Kumar and another vs. State of Haryana and another, 2017(1) SCT 197
- Sangeeta vs. State of Haryana and others, 2020
Contentions of the respondent
Learned Counsel for the State contended that the petition was not maintainable as the petitioner was the employee of a private entity-service provider i.e., a contractor who was assigned the job of manpower provision through an agreement signed under outsourcing policy part-I of Government of Haryana.
Further, it was contended that the petitioner was not appointed directly on contractual basis. The Department signed an agreement with the respondent for provision of manpower. In accordance to this, the petitioner was deployed as a driver. Also, a communication of the date of replacement was addressed to the petitioner and accordingly he was replaced by the respondent on the same date.
It was further contended that replacement was sought because there were complaints that the petitioner was making false entries in the log-book of the vehicle allotted to him.
Court’s Analysis
The Court observed that, at the time of appointment of the petitioner, there was no intermediary and that he was appointed directly.
The Court emphasized that employees are equal partners in the progress of a society, and that the employer was duty bound to ensure their welfare. Further, a number of laws provide for social security, minimum wages, health and pensionary benefits. which were enacted on account of constitutional mandate enshrined in A.14 (Equality before law), A.16 (Equality of opportunity in matters of public employment), A.19 (Protection of certain rights regarding freedom of speech), A.21 (Protection of life and personal liberty) and A.23 (Prohibition of traffic in human beings and forced labour) of the Indian Constitution. A.38 (State to secure a social order for the promotion of welfare of the people), A.39 (Certain principles of policy to be followed by the State), A.43 (Living wage, etc, for workers) and A.43-A (Participation of workers in management of industries) also provide for taking positive action for ensuring that a just and equitable social order prevails in the country. Thus, the Courts are duty bound to ensure that employees are treated fairly.
The Court opined that one contractual employee cannot be replaced by another contractual employee as it would permit the employer to keep a sanctioned post vacant and make a person work on reduced remuneration against the said post. But the Court observed that the said principle would not apply in this case as the agreement was for provision of manpower and in case of such an agreement it is natural for the Department to allocate specific duties.
Court’s Decision
The Court held that if the manpower supplied was replaced by a contractor, he would continue to be the employee of the contractor and could be deployed elsewhere. He would not become jobless and in case wages were not being paid to him, he can invoke the jurisdiction of the Industrial Adjudicator. Thus, the Court dismissed the writ petition and held that the petitioner had the liberty to approach the Industrial Adjudicator for redressal of his grievances.
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