Dhanpal Jain vs State of Raj. and Others

R.S. Verma, J.—The matter has been heard for final disposal at admission stage in pursuance of order dated 12.1.1989. The case has a chequered history. The petitioner was appointed as Gram Sewak by District Education Officer, Doongarpur vide order dated 4.11.1981.The appointment was purely temporary for a period of six months. The services of the petitioner were extended from time to time. The last extension was granted on 13.5.1983 vide Annx.1. On 12.4.1984 a notice was served on him intimating that his services shall stand terminated on expiry of one month from the date of notice Annx.2. Against this notice, petitioner went in appeal before Rajasthan Civil Services Appellate Tribunal, Jaipur. The Tribunal stayed the operation of the notices served on the petitioner on 12.4.1984, with the result that petitioner continued to be in service. The appeal before the Tribunal did not meet with success and the same was rejected on 10.1.1986. Consequently, District Education Officer, Doongar Pur issued order Annex.4. terminating services of the petitioner with effect from 10.1.1986, the date of which petitioner filed a civil suit in the Court of Munsif Doongar Pur and also obtained ad-interim stay order on 24.3.1986. This interim order was vacated on 20.8.1986. The petitioner went in appeal to the Court of learned District Judge, who rejected his appeal vide order dated 16.7.1987. Eventually, on 22.2.1988, petitioner withdrew the civil suit by moving proper application before the Court of Munsif, Doongar Pur and thereafter, the present writ petition was instituted on 11.4.1988.

In this writ petition, the only ground taken before me is that the petitioner was a workman and notice Annx.2 by which his services were sought to be terminated read with Annex.4. amounted to retrenchment of the petitioner and since he had already completed 240 days, his services could not have been dispensed with without complying with the provisions of Section 25F(a) & (b) which required one months notice and payment of compensation equivalent of 15 days average pay for every completed year of continues service or any part thereof in excess of this month. It is therefore, submitted that it should be declared that petitioner continues in service and order of retrenchment should be declared to be null and void. It is also prayed that respondent be directed to absorb the petitioner in service from the date his services were terminated and he be given all consequential benefits.

The respondents have.... Learned counsel for the respondents has urged that since one month''s notice had been given to the petitioner on 12.4.1984, it was not necessary to comply with provisions of Section 25F(b) of the Industrial Disputes Act, and at any rate compensation can be paid now to the petitioner and therefore his retrenchment should not be held to be invalid.

Learned Counsel for the petitioner elaborating his contentions submits that order dated 12.4.1984 Annex.2 was set at naught or superseded by order Annex,3 is sued by Joint Director [Informal Education) whereby District Education Officer, Doongar Pur was directed to continue petitioner in service. It is submitted that by issuing Annex.3 respondent by necessary implication revoked Annex.2 and therefore Annex.2 could be of no avail to the respondents. It is submitted that viewed in this light Annex.4 is also rendered invalid as much as prior to issue of Annex.4 no notice of retrenchment had been issued at all, and required by Section 25F(a) of the Industrial Disputes Act.

I have considered rival contentions and have perused the material available on record. It is not in dispute before me that the petitioner was appointed as Gram Sewak by District Education Officer, Doongar Pur on 4.11.1981. His services were purely temporary but the appointment was extended from time to time. The last extension was made on 13.5-.1983 by Annex.1. On 12.4.1984 one month''s notice was given to him, intimating that his services shall stand terminated on expiry of one month from the said notice. This notice was however revoked/sperseded by necessary implication by Annex.3 issued by Joint Director [Informal Education). The petitioner thereafter, also continued to be in service also on account of a stay order passed by Civil Services Tribunal, Jaipur. Actually, when Annex.2 had been superseded by issuing Annex.3, there was no necessity for the petitioner to approach Civil Services Tribunal only by way of abundant caution. He legally continued or is in Service till 21.3.1986. when Annx.4 was issued.

It is not dispute before me that petitioner was a workman and the organisation in which he was serving was an ''industry''. Retrenchment of the petitioner could not have been revoked without complying with the provisions of Section 25F(a) & (b) of the Industrial Disputes Act. Both these provisions are mandatory in nature, I therefore, find that termination of the services of the petitioner by issuing Annex.4. is invalid in law, and petitioner continues to be in service notwithstanding order Annex.4. In my opinion, the petitioner is entitled to the declaration sought by him and the respondents are liable to pay him emoluments with effect from the date on which his services were purported to have been terminated with interest 18% per annum. However, respondents shall be free to make an enquiry if the petitioner had been in gainful employment, during the period he was out of job. In case after making proper enquiry, respondents come to conclusion that the petitioner had been in gainful employment during this period, they shall be entitled to deduct such amount as is reasonable from the arrears of salary of the petitioner.

Now, the question that comes up for consideration is whether direction should be issued to the respondents to regularise the services of the petitioner! It is an unfortunate and hard case. Petitioner has already become over age. Experience in service in given circumstances of the case can be deemed equivalent to requisite qualifications for post of Gram Sewak, averred by the petitioner in para (B)/7/C, he has already passed LD.C. Examination held by Rajasthan Public Service Commission. In view of these facts, it would be just and proper to direct the respondents to absorb the petitioner as L.D.C. and regularise his services for the entire period. Hence, the writ petition is accepted as indicated above. Respondents should take all necessary steps within period of three months from today. In the circumstances of this case, parties are left to bear their own costs.