Hardeo Lal Jat vs Alwar Sahkari Bhumi Vikas Bank Ltd Alwar and Another

S.S. Byas, J.—The petitioner challenges the order dated 12-10-1987 (Annexure-5), by which his services were terminated. The petition was originally filed against the respondent-Bank and its Secretary; Subsequently, the Registrar, Co-operative Societies, Government of Rajasthan, Jaipur was impleaded as party.

Briefly recalled the relevant facts are that the petitioner & initially appointed as LDC in the respondent-Bank on 13-2-1987 on daily wages by order, Annexure-1. While he was no working on the post of LDC, he was appointed a Class IV employee in the regular pay scale on 27-4-1987 by order, Annx 4. By the impugned order Annexure-5 dated 12-101987 his services were terminated. It appears from Annexure-5 that the petitioner''s appointment was found irregular and as such the Registrar, Co-operative Societies, Government of Rajasthan (respondent No. 3) issued directions to terminate his services, In compliance of these directions, the Administrator of the Bank issued the impugned order, Annexure-5

The grievance of the petitioner was that he had actually worked for more than 240 days within a period of 12 calendar months preceding the day of termination of his service (12-10-1987). The termination of his service amounts to retrenchment. This retrenchment was made without the compliance of the mandates of Section 25F of the Industrial Disputes Act, 1947 (For short, as ''the Act''). It is also alleged that the respondent-Bank is an ''industry'' and is a State within the meaning of Article 12 of the Constitution. The relief claimed is that the order, Annexure-5 be quashed and he be reinstated with back wages.

The petition is opposed by the respondents on the grounds that the respondent-Bank is not a State within the meaning of Article 12 of the Constitution and hence not amenable to the writ jurisdiction. It is stated that the respondent-Bank is also not an industry and as such neither the petitioner can be treated to be a workman nor the provisions of the Act are attracted. It is further stated that since the appointment of the petitioner was irregular, his provides were terminated.

We have heard learned for the parties at length.

We may state at once that the Shakari Bhumi Vikas Banks in the State of Rajasthan have been taken to be industries as defined in the Act in & number of decisions given in the writ petitions by this Court. Again it is not disputed that the entire control and management of the Sahkari Bhumi Vikas Banks in Rajasthan vests in the State Government and the Registrar Co-operative Societies, Government of Rajasthan in the controlling head. The Sahkari Bhumi Vikas Banks have been held to be amenable to the writ jurisdiction. These two positions stand well established. Mr Lodha does not controvert these positions. We find no merit in the contention of the respondents the since the appointment of the petitioner was not valid, the termination of his service does not amount to retrenchment. The definition of retrenchment as given in the Act is vide and comprehensive to include all types of terminations of service unless the termination falls within any of the excepted categories mentioned therein. The petitioner''s case is not covered by any of the exceptions contained in the definition of retrenchment. As such, the termination of the petitioner''s service amounts to retrenchment.

The petition is also opposed on the ground that the petitioner is not put 240 days service during the period of 12 calender months proceeding the date of retrenchment. The contention of Mr. Lodha is that the petitioner first worked as LDC, from 13-2-1987 to 27-4-1987 and thereafter from 28-4-1987 to 12-10-1987 as Class IV employee. It is argued that the petitioner worked in different capacities and as such the two periods of his services; first of the LDC and then of the Peon cannot be clubbed together to arrive at a conclusion that he had worked for a requisite period of 240 days. We are not at all impressed by the contention of Mr. Lodha.

The definition of "continuous service" has been given in Section 25B of the Act. Sub-section (2) lays down that what is required is that the workman should have been in continuous service under an employer. The employer must be one and the once. It is not at all necessary that the workman should work in the same capacity during the required period in order to earn the continuous service as defined in Section 25B of the Act. If the contention of Mr Lodha is accepted, it would result to anamalous position and create unforeseen hardship to the workman. The legislature while defining: the "continuous service" never intended so. In our opinion; in order to earn the continuous service by a workman what is required is that he should work under that same employer. It is not necessary that he should continue to do the work in the same capacity. If he is a workman as defined in the Act and the employer is the same, he earns the continuous service by working for 240 days within the period of calendar months preceding ''the date of retrenchment. The petitioner has worked from 13-2-1987 to 12-10-1987 i.e. to say 242 days in total. He has thus work for 240 days during the 12 calendar months preceding the date of his retrenchment. He had thus earned the continuous service at his credit.

Admittedly, the provisions of Section 25F of the Act were not complied with. A by retrenchment in violation of the provisions of Section 25F of the Act is bad and non-est. Such a retrenchment is invalid.

In the result, we allow the writ petition and quash the impugned order dated 12-10-1987. Annexure-5. The respondents are directed to forth with reinstate the petitioner on the post he was working on 12-10-1987. As regards the back wagon, the petitioner is advised to initiate the legal proceedings u/s 33C(2) of the Act because it is a disputed question whether he remained in gainful employment or not for the period from 13 10-1987 till today.

No order as to costs.