Smt. Sahida vs State of Rajasthan and Others

R.S. Verma, J.—Brief facts giving rise to the writ petition are as follows:

The petitioner Smt. Sahida was initially appointed as work-charge employee on 5.6.1986 on daily wages at Rs. 11/-per day by respondent No. 2 vide Annex. 1. This appointment was for a fixed period of 28 days. However, her appointment was renewed from time to time and as admitted by the respondents she entitled to serve with same intermittent breaks from 5.6.1986 to September 88. Her services were purely temporary and on daily wages. The petitioner''s case is that she was workman within the meaning of Section 2(f) of the Industrial Disputes Act, 1947 (hereinafter called ''the act''). The respondent No. 2 was an industry within the meaning of Section 2(j) of the Act. The services of the petitioner were terminated on expiry of 28 days from the date of last extension granted by Annx.3 dated 26.8.1988 and this termination amounted to retrenchment within the meaning of Section 2(00) of the Act. The case of the petitioner is that she was selected as a regular basis vide annexure 3, yet she was retrenched on completion of 28 days thereafter she was not allowed to join her duty and she was asked orally not to came to attend the job in future.

The termination was made without complying with the provision of Section 25F(a) and (b) of the Act. The case of the petitioner further was that and feeling aggrieved, the petitioner moved an application before the Labour Commissioner, Jodhpur conciliation proceedings under Sections 12(4) of the Act. Due to indifferent attitude of respondent in conciliation proceedings, the same failed as would be evident from Annx.4 dated 9.4.91. Thereafter, no action has taken by respondent No. 1 to refer the matter to Industrial Tribunal. On the aforesaid premises, the petitioner submitted that termination of her services was ex facie being in contravention of the provision of Articles 14 & 16 of the Constitution of India. It was submitted that posts are lying vacant with the respondents and she was entitled to be reinstated. Upon such pleadings, the petitioner has claimed the following reliefs:

1) It be declared that petitioner stands substantively appointed on the post on and from 5th June, 1986 and the respondent be directed to give all the benefits consequent to such declaration being given.

2) That the order of termination of the services of the petitioner be declared to be invalid and be quashed and it be declared that the petitioner to be continued in services as if aforesaid termination was never made. The respondent be directed to pay the petitioner accordingly.

3) Further the respondent be directed to pay the petitioner in the pay scale of Class IV employees on and from the 6th August 1988 and be paid her all that becomes due on this account with interest at the rate of 18% per annum on and from as and how the amount become due till the same is paid.

The writ petition was opposed on behalf of the respondents. It was averred that petitioner though allowed to continue on daily wages basis from 5.6.1986 till 28.9.88, she never completed 240 days in any financial year, namely 1986, 1987 and 1988 and therefore it was not necessary to comply with the provisions of Section 25F(a)(b) of the Act. It was averred that petitioner was paid her wages in terms of her engagement while discharging duty on casual labour. The respondents did not deny that number of posts were lying vacant with them. However, the case of the respondents was that work of the petitioner was not satisfactory and hence her services were not continued beyond 28.9.1988. It was averred that the feet that posts were lying vacant with the respondent, had no connection with the present controversy and the petitioner could not take advantage of these vacant posts lying with the respondents, because petitioner was then engaged on daily wages basis only.

It may here be stated that respondents admitted that conciliation proceedings were initiated and failure report was also made on 9.4.91. It was pleaded that since final order had not been passed by the State Government u/s 2 of the Act, the writ was premature and on this ground, the writ was liable to be dismissed.

It may be stated that the petitioner filed a stay application in this Court along with writ petition on 19.7.91. The learned Single Judge of this Court passed interim stay order as follows:

The petitioner will be re-employed, if vacancy exists and her work and conduct are satisfactory.

It appears that petitioner was never re-employed in pursuance of the aforesaid direction. It may also be noticed that writ petition was heard finally on 25.11.1991 and case had been adjourned to 26.11.91 for dictation of orders. However, before the order could be dictated the respondent filed an application on 27.11.91 stating that Govt. has taken steps as provided u/s 12(5) of the Act, and the dispute between the petitioner and respondent No. 2 has been sent to Labour Court & Tribunal, Jaipur vide Annx.R/3. The learned Counsel for the respondent prayed by this application that Annx.3 may be taken on record. This application has been opposed on behalf of petitioner and it is urged that it is too late for respondent to contend that Annx.3 may be taken on record and by necessary implication, the writ petition may be dismissed. Learned Counsel for the petitioner contends that once writ petition has been admitted and heard finally on merits, respondent should not be permitted to use this advise to non suit the petitioner who has been out of job for quite some time.

Learned Counsel for the respondents submits that petitioner herself was to be blamed for this state of affairs, because conciliation proceedings were initiated quite late and she herself slept over her matter for an inordinate period. It was submitted that no notice for demand of justice was given to the petitioner before filing the writ petition. It is further, submitted that even though reference has been made by the State Government to Industrial Tribunal on 22.11.1991, the petitioner herself did not bring this fact to the notice of the Court and on this ground also writ petition should be dismissed.

I have heard the learned Counsel for the parties at length and have considered the rival contentions, as also the facts and circumstances of this case appearing from record. There is no dispute that initially, the petitioner was appointed as casual labour in daily-wages for a fixed period of 28 days w.e.f. 5.6.1986 on wages of Rs. 11/- per day as would be evident by Annx.1. Her wages are increased from Rs. 11/- to Rs. 14/-per day vide order Annx.2 dated 15.5.87. Thereafter with intermittent breaks, her services were continued from time to time till she came to be interviewed and selected by selection committee and was appointed on 26.8.88 vide Ex.3. However, it appears that when the term for which she was appointed by Annx.3 expired, her appointment was not renewed and she was verbally given marching order.

Before, I touch merits of the case, I may consider the preliminary objection raised by the learned Counsel for the respondents. The first objection is that no notice for demand of justice was given. This is true that notice for demand of justice was not given by the petitioner to respondent No. 2 but it is an admitted position that the matter was taken to the Conciliation Officer making grievance of the termination of services of the petitioner. In my opinion, when proceedings were taken before Conciliation Officer, and respondent No. 2 had put appearance in such proceeding, of formal notice of demand of justice was not required. Taking the matter for conciliation proceeding, to my mind, was in substance a notice to the respondent No. 2 that the petitioner was making a grievance of termination of her services. This objection is therefore overruled.

Next contention was that the petitioner slept over for a quite long period before approaching this Court and there has been inordinate delay in filing this writ petition. Suffice it to say, when writ petition has been admitted and heard on merits it would not be just and proper to threw away the writ petition, on the ground that it was belated. It has to be recalled that the petitioner is an illiterate lady thus, she belongs to weaker section of the society. It would not be expert that she was aware of the right to bring a writ petition immediately or to bring for conciliation proceeding immediately. To impute her with this knowledge would be unfair. I, therefore, find that this objection also deserves to be overruled. Moreover, delay by itself is not a jurisdictional bar. It depends upon facts and circumstances of each case if delay should be allowed to non suit a legitimate claim. In my opinion, in the facts and circumstances of the case, delay should not be allowed to defeat a claim which is otherwise just and proper.

Last objection was that the petitioner was intimated that the Government has finally agreed to refer the matter to the Industrial Tribunal. It is submitted that it ought to have been brought to notice of the court by the petitioner and in not doing as, she has suppressed a material fact. The learned Counsel for the petitioner submits that the order of government making reference to the Tribunal was brought to the notice of the petitioner only on 27.11.91. The writ petition itself had been heard on 25.11.91 and therefore there was no occasion for the petitioner to bring to the notice of the court that reference had been made by the State Government. I do not find that there has been such suppression of a material fact which may justify me in dismissing the petitioner.

Learned Counsel for the respondent vehemently urged that in this case an alternative and equally efficacious remedy was available to the petitioner. In my opinion, this argument deserves to be noticed only for the sake of rejection. A remedy before a Labour Court is likely to be a dilatory one. It can hardly be said to be an equally speedy or efficacious remedy.

In L. Hirday Narain v. Income Tax Officer Bareilly AIR 1971 S 3 a statutory remedy was available to the petitioner. However, High Court entertained writ petition and gave hearing on merits. It was held that petition could not have been rejected on the ground that statutory remedy was not availed of.

In B.K. Sharma v. State of Raj and Ors. ILR 1979 515 the writ petition was contested on two grounds. Firstly, that the writ petition was greatly belated and secondly alternative remedy was available to the petitioner. Both the objections were negatived, keeping in view the fact that the writ petition had been entertained and had been heard on merits. On the first point it was observed:

It is true that a litigant is supposed to remain vigilant about this cause and the courts do not enssurage entertainment of the writ applications after inordinate delay. It is equally true that once the writ applications are entertained and heard on merits, the courts should not easily reject them on the ground of delay when it is found that on merits the petitioner has get a among case, warranting interference by the Court.

In Prabhudan Charan v. State of Raj. and Ors. 1990 RLR 532 a departmental .appeal against impugned order of punishment was pending for more than one year. The petitioner challenged the impugned order by also filing a writ petition. It was held that pendency of appeal for a long time could not operate as a bar in deciding controversy relating to impugned order of punishment in writ petition.

In Rajendra Singh v. The Municipal Board, Nagore 1990 RLR 332 the writ petition was opposed on the ground that alternative remedy was available and therefore, the writ petition should not be decided on merits. The contention was negatived and it was observed:

The upshot of the entire discussion is that even if alternative remedy was available to the petitioner, this petition has been heard finally after show cause notice cannot be thrown out on the ground

In Municipal Council, Khurai and Anr. v. Kamal Kumar and Anr. it was held that:

It is true High Court would not ordinarily entertain a petition under Article 226 of the Constitution where an alternative remedy is open to the aggrieved party, it has jurisdiction to grant relief to such a party, if it thinks proper to do so in the circumstances of the case.

In M.R. Arjuna v. Union of India and Ors. 1970. ILR Rajasthan 1024, the petitioner had been removed from services. The petitioner''s appeal against his removal to superior authority according to its own circular was required to be disposed of within one month. Yet it slept over the appeal of the petitioner for about 11 months. During the pendency of the appeal, the petitioner approached this Court by filing the writ petition which was inter alia resisted on the ground that alternative remedy was available to the petitioner and he had also sought the same and therefore it would not just to grant relief to him. Hon''ble Justice V.P. Tyagi, as he then was, negatived this contention and observed:

The considerations of expediency which are not permitted by law can have no relevance whatever, when dealing with the question of liberty and the livelihood of a citizen. In the matters which relate to the livelihood of a person and which ultimately go to deprive him of his livelihood must be zealously guarded by the courts of law.

It was further observed that the petitioner was entitled to take further steps by approaching this Court to remove against of unemployment and remedy available under the rules could not be taken as a bar to file the writ petition. The writ petition was eventually accepted, notwithstanding the fact, that a right of appeal was available to the petitioner and he had already sought the same.

I need not multiply rulings on this point and suffice it to say that even if an alternative remedy is available to a petitioner, it depends upon facts of individual case if the writ petition should be refused on the ground of existence of such a remedy. In the present case, if the writ petition were to be dismissed on the ground of existence of alternative remedy, the petitioner shall have to pursue a dilatory and protrated remedy before the Labour Court. She is already out of employment since 1988. Asking the petitioner to pursue such a remedy before the Labour & Industrial could aggravate the hardship of unemployment which the petitioner is already suffering. Therefore, when I have already heard writ petition on merits, I do not think it proper to threw out the writ petition on the ground that the petitioner has an alternative remedy available to her.

This takes me to the consideration of the merits of the case. The petitioner has served with respondent No. 1 from 5th June, 1986 to 28.9.88. As admitted by respondent No. 2 in its reply, the petitioner has serve with the respondent during the course of three financial year namely 1986, 1987 and 1988. The appointments were granted to the petitioner with intermittent and artificial breaks, and for no fault of hers. It appears that these breaks were actuated with the intention of ensuring that she could not complete 240 days in any particular year. This is definately an unfair labour practice and has been deprecated by the court as well as by the Apex Court. It has not been shown by the respondent that the petitioner''s services were not required during the period of various intermittent breaks which have been spelt out in great details in para 2 of the reply. It has, therefore, to be taken that petitioner had completed 240 days of services in 1987 as well as 1988, for computing 240 days. For the purpose, the various artificial and intermittent breaks have to be excluded for consideration.

It is an admitted position that compliance with the provisions of Section 25F of the Act had not been made by the respondents before terminating services of the petitioner.

Learned Counsel for the respondents urged that the work of the petitioner was not satisfactory and therefore her services were terminated. I specifically asked the learned Counsel for the respondent to show if any material existed, which may go to show that the services of the petitioner were not found satisfactory. Learned Counsel for the respondents very fairly and frankly admitted that no such material was available on record.

In Dr. Mrs. Sumati P. Shere v. Union of India and Ors. AIR 1989 SC 431 Dr. Mrs. Sumati P. Shere had been appointed as an ad hoc employee for a period of six months but she was continued in services from time to time. The last extension was upto 15th Feb. 1985. She was informed that her services would stand terminated with effect from 15th February, 1985, She thereupon challenged the said order by filing writ petition before High Court of Bombay. The writ petition was transferred to Central Administrative Tribunal. The Tribunal during the course of hearing of the case perused the confidential file relating to the appellant. There, it was said to have been recorded that the authorities were hot satisfied with the performance of the appellant and so her re-appointment after the expiry of the term was not recommended. In view of this matter, the Tribunal held that the removal was not by way of penalty and so it dismissed the application of the appellant. The petitioner approached the Supreme Court and once again challenged order of termination. The stand taken by the respondent was that they were not satisfied with the performances of the appellant and hence his services were terminated. Their Lordships of the Apex Court considered the contention and observed:

We must emphasize that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal, give and take on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies; indifference or indiscreation may be with the employee by inadvertance and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right rack. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability

The Apex Court on the aforesaid promises allowed the appeal and sat aside the order of the Tribunal. In my opinion the observations made in the aforesaid case also apply to the facts of the present case. The petitioner served with respondent for three financial years but it was never communicated to her that any defect or deficiency has been found with her performance. One fine morning she was given marching order and was asked to go to home on the supposed ground that her work was not satisfactory. In my opinion, this was unjust and improper exercise of power coupled with the fact and that compliance with the provisions of Section 25F(a)(b) of the Act has not been made. I therefore, find that retreanchment of the petitioner is ex-facie illegal and deserves to be set aside.

Learned Counsel for the petitioner urged that services of the petitioner should . be regularised on the post of Class IV Employee on the ground that petitioner has been serving from 1986. The learned Counsel for the respondent opposes this request, I have gone through Annx.3 whereby petitioner claims to have been selected. I find, that this is not a regular selection process for the post of Class IV Employee in the regular pay scale under the respondents. It is a selection for daily rated ''Majdur''. Annx.3 in my opinion this selection does not entitle the petitioner to be regularised against a regular Class IV Employee borne on the sanctioned strength of the respondents. On the matter placed before me, I do not find that petitioner can be regularised against the post of Class IV Employee at all. In Smt. Sumati P. Sherle''s case, the Apex Court also refused to grant such a relief.

No other point was urged before me.

In view of above discussion, the writ petition is partly accepted, retrenchment of petitioner is set aside and she will be reinstated on the post of casual labour under respondent No. 2 from the date her services were terminated. She will also get back wages from the date'' of her termination at the post of Class IV Employee according to prevalent rates. The arrears of salary shall be paid to her with interest at the rate of 12% per annum within a period of three months from today. In case payment is not made within aforesaid period of three months, the arrears of back wages shall carry interest of 24% per annum. The petitioner shall also get costs of this writ petition which is assessed as Rs. 5,000/-