Shish Ram vs State of Rajasthan and Others

Rajesh Balia, J.—Petitioner was appointed on the post of Lower Division Clerk after a Selection by order dated 24-3-1988 (Annex.P/1) in the office of the Bal Vikas Pariyojna Adhikari, Sri Doongargarh in the first instance for a period of three months, In pursuance of the said order, the petitioner joined on 29th March, 1988. The petitioner thereafter was allowed to work on the post according to him upto 6th October, 1989 and by 7th Oct. 1989, he was told orally that his services are not being extended after 13-9-1989. The petitioner has also stated that during this period, following breaks were also given in his service: 29-6-88 to 5-7-88, 1-10-88 to 26-10-88, 28-11-88 to 5-12-88, 1-3-89 to 8-3-89, 10-6-89 to 14-7-89 and 15-8-89 to 17-8- 89. In support of his averments, the petitioner has produced the letter dated 21-9-1989 (Annex. P.11), issued by the Bal Vikas Pariyojna Adhikari, Sri Doongargarh to the Regional Dy. Director, Bal Vikas, Churu giving details about the petitioner''s working in the office, and service breaks. In the said letter, it has clearly been stated that though the period of last appointment had expired on 13-9-1989, petitioner is still continuing on duty but no office order has been issued. The petitioner has contended that in immediately twelve months proceeding the date of his termination on 7th Oct. 1989, he was in continuous service for a period of one year and, therefore, his services could not have been brought to an end without complying with the mandatory provisions of Section 25F read with Section 25J of the Industrial Disputes Act, 1947 hereinafter referred to as "the Act of 1947''. The petitioner has neither been given a notice or salary in lieu of notice before termination of his services as required by the aforesaid provisions nor he has been given compensation under the said provisions.

A return has been filed on behalf of the respondents in which correctness of facts stated in Annex. P/11 has not been disputed. However, it has been contended that petitioner''s services came to an end on 13th September, 1989, he was not in continuous service in preceding twelve calender months and his intermittent working on the post was not for a period of two hundred and forty days or more so as to treat him in continuous service for one year under the provisions of the Act of 1947 in twelve months preceding 13th Sept. 1989.

The fact that charge from the petitioner was taken on 27- 9-1989, has not been disputed, though it has been disputed that he was allowed to work after 27-9-1989. The respondents contend that since the petitioner has hot completed two hundred and forty days in twelve months preceding 13th Sept. 1989, he is not entitled to the benefit of the provisions of the Act of 1947 concerning retrenchment. Applicability of the Act of 1947 particularly of Chapter V-A to the petitioner''s case is otherwise not disputed. It is also not disputed that if it be held that petitioner was in continuous service for one year at the time when his services were terminated, he is entitled to protection of Chapter v. A and compliance for bringing about a valid retrenchment has not been made.

Annx. P/11 is an undisputed document. Respondents have also produced a chart of actual working by the petitioner on the post an Annex. R.4. The fact that the petitioner was allowed to discharge his duties after 13-9-1989, is not disputed and the fact that charge was taken from the petitioner only on 27-9-1989 is also not disputed. Taking these undisputed facts into consideration, there cannot be any dispute about the fact that petitioner''s services came to an end atleast not before 27-9-1989, from the aforesaid facts and relevant documents. Annx. R/4 showing the period for which the petitioner has worked after 13- 9-1989 has admittedly been not taken into account nor the respondents have taken into account the weekly holidays and paid holidays which have to be counted for the purpose of calculating the actual days of work by the concerned employee in preceding twelve months. Reading of Annex. P/11 alongwith Annex. R/4 leaves no room of doubt that the petitioner has worked for more than two hundred and forty days in the period of twelve months immediately preceding 27-9-1989. Even if the date of termination is taken to be 13.9.1989, according to undisputed facts available on record, petitioner had completed two hundred and two days in twelve months before 13-9-1989 so as to secure the benefit of the provisions of the Chapter V-A of the Act of 1947. In this view of the matter, the petitioner''s services could not have been terminated without compliance of Section 25F(a) and (b) of the Act of 1947. He had to be given one month''s notice or one month''s salary in lieu of notice in writing indicating the reasons for retrenchment and he had also to be paid retrenchment compensation as provided under the said provisions. These conditions have admittedly not been fulfilled in the present case, therefore, termination of the petitioner''s services which has been brought about in violation of Section 25F of the Act of 1947 was illegal. Effect of which is that there is neither termination of service nor cessation of service. Hence, a declaration must follow that the petitioner continued to be in service with all consequential benefits.

It has further been contended by the learned Counsel for the petitioner that he has discharged regular duties of LDC throughout this period but instead of being paid emoluments in the regular pay scale of LDC, he was being paid salary only on daily rated basis. On the principle of equal pay for equal work, the petitioner has claimed that he should also be paid the salary for the period in the same pay scale which is applicable to the regularly appointed LDC in the department of Dy. Director, Women, Children and Nutrition. He has placed reliance on a decision of this Court in Nathu Ram Rao v. The State of Raj. and Anr. 1991 WLN (UC) 484 wherein the like circumstances, the petitioner after being reinstated as a result of holding his termination to be invalid being reinstated as a result of holding his termination to be invalid being in violation of Section 25F, it Was directed as under:

It is further directed since the petitioner has discharge duties as LDC, there-fore, he must be paid the minimum of the pay scale applicable to the LDC with dearness allowance and other allowances admissible except increment from the date of filing of the writ petition i.e. from 6-11-1989.

Learned Dy. Govt. Advocate while does not dispute the principle of equal pay for equal work has placed reliance on another decision of this Court in Nand Kishore v. State and Ors. 1991 WLN (UC) 596 wherein it was held that the controversy to fix salary in the regular pay scale can be decided on the basis of evidence and appropriate remedy is available to the petitioner u/s 33C(2) of the Industrial Disputes Act.

Reliance on Nand Kishore''s case (supra) in support of respondents'' contention is misplaced. That was a case where the petitioner was appointed as a helper and he was allowed to discharge the duties of LDC during the period of his tenure/While refusing to grant the relief for giving regular pay scale of LDC to the petitioner, the Court directed that the petitioner is entitled to get the emoluments in the regular pay scale of helper, the post on which he was appointed but as far as the question of grant of regular pay scale of LDC was concerned, the matter required going into determination of disputed question of fact about the actual nature of duties which the petitioner was required to discharge while appointed as a helper. Thus, the decision relied-on by the learned Dy. G.A also supports the case of the petitioner that he is entitled to be fixed in the regular pay scale of the post against which he was appointed.

In support of his contention that the petitioner is not entitled to be fixed in the regular pay scale, learned Dy. Govt. Advocate has placed reliancean another decision of this Court in Chhagan Lal v. Panchayat Samiti and Anr. reported in 1989 (2) RLR p. 692.

Ratio of this decision is also not applicable to the present case. In Chaggan Lal''s case (supra), the petitioner was not qualified and it was held that he was not eligible for regularisation on the post. It was further held that he was appointed only as a stop gap arrangement and, therefore, prayer for regularisation was refused and it was held that he was bound by the contract of his service. In that case, the question of fixing the petitioner in the regular pay scale of a driver was not at all decided. The only contention raised before the Court was whether termination of petitioner''s services Was invalid for violation of Section 25F of the ID Act. It had been contended by the respondents in defence of the termination order that the regular driver was already in the Panchayat Samiti and due to his illness, the petitioner was appointed as a Casual Worker on leave vacancy and the incumbent was not even qualified to be regularly appointed as Driver and, therefore, he could not be absorbed in the Panchayat Samiti. He was, therefore, bound by the contract of service. This argument of the respondents was repelled that while petitioner may not be entitled to claim regular-appointment and all consequential benefits of regular appointment but his services have been terminated in non compliance of Section 25F(a) and (b) of the ID Act. The petitioner Was entitled to the wages which he was drawing at the time of his retrenchment. Apart from above, that was a case in which the incumbent was not eligible to hold the post. Present is a case in which the incumbent is fully eligible to hold the post, he has been appointed in a regular manner by holding interview and is eligible to be regularly selected for holding the post.

Petitioner, in my opinion, is, therefore, entitled to the relief for getting salary in the regular pay scale of LDC also.

Writ Petition is, therefore, allowed and termination of the petitioner''s services being in violation of Section 25F of the Industrial Disputes Act is held to be invalid and ineffective. The respondents are directed to reinstate the petitioner with full back wages and other consequential benefits including continuity in service. It is further directed that petitioner who is undisputedly appointed as LDC and discharging the duties of LDC., must be paid the minimum of pay scale applicable to the LDC with clearness allowance and other allowances admissible except increment from the date of filing of the writ petition i.e. 6-11-1989. There will be no order as to costs.