Zamil Mohammed vs State of Rajasthan and Another

N.C. Sharma, J.—This is a writ petition by Zamil Mohammed Under Article 226 of the Constitution of India praying for a declaration that the verbal termination of his employment as Ward-boy with effect from January 25, 1989 made by respondent No. 2 may be quashed and respondents be directed to reinstate the petitioner in the cadre of Ward-boy (Class-IV) on regular post and in regular pay scale as admissible to the regularly appointed Class-IV employee with all consequential benefits According to the petitioner he was appointed as Class-IV employee as Ward-boy with effected from March 1, 1988 in Mahila Chikitsalaya, Sanganeri Gate, Jaipur and was continously working as such. How ever, without any case of justification his services were terminated by verbal orders with effect from January 25, 1989. It is the case of the petitioner that Mahila Chikitsalaya is an ''industry'' and the petitioner was a workman Consequently, according to him, there has been violation of Section 25F of the Industrial Disputes. Act in as neither one month''s notice not salary in lieu of notice and nor any compensasion had been given to the petitioner by the respondents.

Reply to the writ petition has been filed by the respondents. The respondents'' case is that Mahila Chikitsalaya is not an ''Industry'' and the provisions of the Industrial Disputes Act, 947 do not apply. It is also the case of the respondents that the petitioner was initially appointed as Class-IV employee only on daily wages on March 1, 1988. The petitioner habitually used to remain absent from his duty and, since January 25, 1989, the petitioner wilfully absent himself from his duties.

The learned Counsel for the petitioner referred to me a judgment of this Court in Amar Singh v. Stale of Rajasthan and Ors (D.B. Civil Writ Petition No. 4063/88, Decided April 10,1989). The petitioners in that case were also working in Mahila Chikitsalaya from various dates, since 1983 on daily wage basis On behalf of the State it was submitted that Sanwar Mal petitioner No. 2, had not joined the duty and was not working since 1986. As regards others, it was submitted that they were absent from various dates. It was observed by the Bench which decided Amar Singh''s case (supra) that the appointment of employees on daily wages itself is exploitation and more so when they are working since 1983. The Bench proceeded further to state cannot make submission that such employees are daily wage earners and they should not get regular salary of the equivalent post. So far as Sanwar Mal was concerned, it was observed that there were disputed questions of fact and, therefore, the remedy lay before the Industrial Tribunal. So far as other petitioners were concerned, it was stated that the question regarding absence of those employees can be decided by the authorities themselves and if they found that the other petitioners were absent, salary may not be paid in respect of that period. How ever, it was stated that the authority should look into the cause of absence and if the fact of absence becomes a disputed question, then the other petitioners will have a right to move the Industrial Tribunal for settlement of dispute. In the result, the Bench orderd that other petitioners Smt. Mohini Bai. Smt. Manohari Bai, Smt. Shakuntala and Smt. Kailashi would get the regular grade from the month of October, 1988 upto the disputed date of their leaving the service, and that they may join and would get the same regular salary.

On going the through the facts available in the judgment in Amar Singh'' case (Supra), I may mention that they do not disclose that it was a case where the petitioner complained of any retrenchment and, therefore, I do not think it proper to be guided by the ultimate decision given in that case. In the instant case that the petitioner has come with a specific case that he was initially appointed as Class-IV employees on March 1, 1988 on daily wages basis and his services were terminated by the employer by verbal orders on January 25, 1989. He has categorically pleaded that Mahila Chikitsalaya is an ''industry'' and there has been violation of Section 25F of the Industrial Disputes Act, 1947 in the termination of his services. A right therefore clearly arose not Under common law but solely Under the Industrial Disputes Act. remedy provided Under that Act for adjudication of industrial disputes or for their settlement should be pursued by the petitioner and this Court would not interfere in its extraordinary jurisdiction Under Article 226 of the Constitution of India when alternative remedy, equally efficacious and aqequate, available to the petitioner.

The writ petition is dismissed on this ground alone.