Khangar Singh vs The State of Raj. and Others

J.R. Chopra, J.—The contention of the petitioner is that he has approached this Court for the second time. Earlier, he came to this Court when he was retrenched on 6.10.1986, though after this retrenchment being effected, appointment for a short period from 2.2.1987 to 28.2.1 987 was given to him. He has. submitted that this Court vide its order dated 17.7.1987 passed in D.B. Civil Writ Petition No. 914 of 1987, Khangarsingh v. State and Ors. found the retrenchment of the petitioner to be invaild and ordered that he be re-instated back in service and is entitled to his back wages, which have become due to him.

It has been contended that in spite of the order of this Court , by order dated 23.7.1 987, he has been appointed temporarily on daily wages basis and his services have been terminated by order Annexure-2 dated 29.2.1988. According to the petitioner, his termination could not have been brought about in non-compliance of the provisions of Section 25F(a) and [b) of the Act, when his earlier retrenchment was held to be invalid and he has been ordered to be reinstated back in service. He has already completed 240 days in a calendar year and, therefore, his services could not have been terminated vide order Annexure- 2. He could not have been given a temporary appointment vide order Annexure. 1. The petitioner has, therefore, prayed that he be paid salary of the post of L.D.C. in the pay scale of Rs. 880-1680; that he should be granted compensation to the tune of Rs. 5,000/- and that the respondents be further directed to pay the money due to him with interest @ 18% p.a. as and when and on and from the date though amount became payable but was not paid till the same is paid.

A return has been filed, in which, it has been claimed that the State Insurance and G.P.F. Department is not an Industry as the decision or Hon''ble S.C. Agrawal, J. [as he then was) in S.B. Civil Writ Petition No. 1720 of 1985 which was confirmed by a Division Bench of this Court in D.B. Civil Special Appeal No. 33 of 1986 is still subjudice before their lordships of the Supreme Court and as such, the SLP is pending adjudication in Supreme Court. According to the respondents, the petitioner is not entitled to any relief and this writ petition deserves to be dismissed with costs. It has been claimed that retrenchment has been brought about in exercise of the power conferred by Section 2(oo)[bb] of the Act and, therefore, provisions of Section 25F[a) and (b) of the Act are not at all attracted.

We have heard Mr. M. Mridul, the learned Counsel for the petitioner and Dr. S.S. Bhandawat and Mr. S.K. Vyas, the learned Addl. Government Advocates for the State.

When in the earlier writ petition the retrenchment of the petitioner from service has been held to be invalid, the petitioner is entitled to be reinstated back in service with all back wages and he should have been taken back in service and should have been continued in service. He could not have been granted any fresh appointment. This Court has already taken the view in State v. Arun Kumar D.B. Civil Special Appeal No. 33 of 1 986, decided on 19.3.1986 that the Department of State Insurance and G.P.F. of the Govt. of Raj. is an industry as defined in Section 2(j) of the Act and, therefore, the provisions of the Act are applicable to this department. If any appeal has been preferred against that order before Hon''ble Supreme Court but if the operation of the impugned judgment has not been stayed, that would not render that Division Bench Judgment to be invalid.

In this view of the matter, in view of the Division Bench decision of this Court in Khangarsingh''s case (supra), the petitioner is entitled to be reinstated back in service and all back wages have to paid to him. Consequently, his termination is held to be invalid because he has already put more than 240 days of service in a calendar year and this termination has been brought about in violation of the provisions of Section 25F[a) and [b] of the Act. The petitioner not being a regularly selected candidate is entitled only to the minimum of the pay scale of L.D.C. which is admissible to L.D.C. alongwith D.A. or Addl. D.A. for the period during, which he is kept in service. His service can only be terminated after complying with the provisions of Section 25F[a] and [b] of the Act. He is not entitled to any grade increments.

Consequently, this writ petition is allowed and the termination order Annexure-2 and fresh appointment order Annexure-1 are quashed. He will be treated to be inservice continuously from the date he was appointed till the date his services are terminated after complying with the provisions of Section 25F(a) and (b) of the Act. His earlier termination has already been held to be in-valid by this Court in Khangarsingh''s case [supra). He is entitled to the minimum of the pay scale of L.D.C. with D.A. and Addl. D.A. with effect from 11.4.1988, when he has filed this writ petition. The arrears be paid to him within a period of two months from today. As the State Govt. has contested the fact that the State Insurance & G.P.F. Department of the Govt. of Rajasthan is not an Industry and that matter is subjudiced before Hon''ble Supreme Court, we do not consider it reasonable to grant any compensation or damages or interest to the petitioner.

In the circumstances of the case, the parties are left to bear their own costs of this writ petition. The arrears be paid to the petitioner within a period of four months from today.