Naveen Kumar vs The State of Rajasthan and Others

Rajesh Balia, J.—The petitioner was appointed on daily wages 28.9.1983. The petitioner continued thereafter. The petitioner continued to be so discharging his duties on daily wages until vide order 19th August, 1985, he was again appointed against a regular post in class IV cadre which was lying vacant, at the Government Hospital, Banner on daily wages and the petitioner continued as such, until 5.5.1987 through various orders. On 5.5.1987, the petitioner''s services were terminated but he was again appointed vide order dated 7.9.1987 and allowed to continue until 31st July, 1988 when the petitioner''s services were again terminated. The termination of the petitioner''s services on 5.5.1987 as well as on 31.7.1988 were both without complying with the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act of 1947''), though petitioner had fulfilled all the conditions necessary for getting the protective umbrella of the said provisions.

The above-facts are not disputed. However, in their return, the respondents have contended that the petitioner was appointed purely on temporary basis and he did not acquire any right to hold the post substantively. It was also contended that at the time of filing of the writ petition, the petitioner has already been offered a part-time appointment vide order 24.11.1988(Ex.R/1) and, therefore, the writ petition is not maintainable because at the time of filing of the writ petition, the petitioner was not under retrenchment.

In the rejoinder to the reply, it has been brought to the notice of the Court that even the part-time employment given vide order dated 24.11.1988 was brought to an end after some time.

In the face of admitted facts as stated above, it cannot but be said that the services of the petitioner have been terminated in gross violation of the provisions of Section 25F of the Act of 1947 and it can be treated as patent arbitrariness and unreasonableness in State action the petitioner who has been discharging duties against a vacant post of class IV servant, at least right from 19th August, 1985, if not before, has been paid salary not in the regular pay scale applicable to class IV servants but on daily wages; which obviously prescribed minimum subsistence allowance to the worker. The fact that the vacancy was lying vacant throughout and the petitioner was made to discharge the duties of regular class IV servant yet, a far lesser emoluments that than of a regularly appointed class IV servant was paid only goes to show that the vacancy was not filled merely to exploit the situation on persons like the petitioner who had no option but to accept the humiliation of working on less than regular pay against a regular post. These state of affairs on the part of the State cannot be countenanced.

To say the least, it amounts to unfair labour practice and also vitiates the termination brought about as being violative of the provisions of Articles 14 and 16, apart from being per se, illegal and void ab initio for being in violation of the provisions of Section 25F the Act of 1947.

The fact that the petitioner was only temporary, does not absolve the respondent State from complying with the provisions of law before services of the petitioner could be validly terminated and the same cannot be considered as lawful, merely because the appointment of the petitioner has been named as ''temporary''. Notwithstanding the fact that the post existed, the requirement to employ a person existed, through out this period and the petitioner is made to discharge the duties throughout that period except for a short spell as stated hereinabove.

In these circumstances, the petition deserves to be allowed. It is held that the termination of the petitioner''s services on 5.5.1987 as well as on 31st July, 1988 were void ab initio and the petitioner ought to be treated continuous in service without any break right from the date of his initial appointment. Since the petitioner had discharged duties against the regular vacancy of class IV servant, at least from 19th August, 1985, the fact which has not been disputed, the respondents are directed to pay the petitioner in the regular pay scale of class IV servant with effect from 19th August 1985. Since the petitioner has continued in the employment of the respondents since 1983 and had sufficient experience, the respondents are further directed to consider the case of the petitioner for regularisation on any existing vacancy under the present Department, within a period of 3 months from now.

The writ petition is, accordingly disposed off as indicated above.