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1994 DIGILAW 317 (KER)

Anitha v. Asst Director Of Tea Development

1994-08-17

M.M.PAREED PILLAY, VILAS VINAYAK KAMAT

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JUDGMENT M.M. Pareed Pillay, J. 1. Petitioner was working in the office of the first respondent as a casual Typist-Clerk since 28th August 1987. She was selected for the post being sponsored by the Employment Exchange. Contention of the petitioner is that she has put in more than 500 days of service as casual Typist-Clerk in the office of the first respondent and that she apprehends termination of her service instead of regularisation. A writ of mandamus is sought directing the respondents to regularise her service as Typist-Clerk and also to give her salary and other attendant benefits as given to regularly employed Typist-Clerks with effect from 28th August 1987. A direction to the respondents not to terminate her service is also sought. 2. Ext. P-1 is the intimation received by the petitioner from the Employment Exchange. It shows that the job of Typist-Clerk was offered to her on daily wages at the rate of Rs. 20. Ext. P-2 reveals that though petitioner's standard was not entirely satisfactory, she was appointed purely on a temporary daily wage basis. Ext. P-2 in categoric terms shows that the appointment was till a permanent appointment is made to the post. 3. Respondents 1, 3 and 4 filed counter affidavit stating that on the date of petitioner's engagement as a Typist-Clerk she was about 26 years old, that there is no provision in any rules for relaxation of the age limit except in the case of Scheduled Castes or Scheduled Tribes and as the petitioner was over aged she cannot at any rate claim regularisation. It is also contended by them that the petitioner being appointed only on purely temporary basis she cannot make a claim for regularisation. 4. Learned counsel for the petitioner relying on State Bank v. M. S. Money AIR 1976 SC 1111 , contended that the respondents cannot terminate the service of the petitioner in violation of S.25 of the Industrial Disputes Act as the termination would amount to retrenchment as defined under S.2(oo) of the Act. To get over the cited decision of the Supreme Court S.2 (oo)(bb) was introduced under Act 49 of 1984. After the introduction of S.2(oo)(bb) the position is different. The question whether the casual employee can claim regularisation has to be considered in the light of S.2(oo)(bb) of the Act. To get over the cited decision of the Supreme Court S.2 (oo)(bb) was introduced under Act 49 of 1984. After the introduction of S.2(oo)(bb) the position is different. The question whether the casual employee can claim regularisation has to be considered in the light of S.2(oo)(bb) of the Act. In Director, Institute, of Management Development v. Pushpa Srivastava AIR 1992 SC 2070 the Supreme Court held that where the appointment is purely on adhoc basis and is contractual and by efflux of time, the appointment comes to and end, the person holding such post can have no right to continue in the post. 5. Admittedly petitioner is out of service from 4th June 1990. Petitioner's case is that she joined service on 28th August 1987 and continued till 4th June 1990. Contention of the respondents is that the petitioner continued to be in service on daily wages only till 22nd May 1990. Even if the petitioner war, in service as alleged by her, she cannot claim regularisation in service as she was appointed only on adhoc basis and that too on daily wages. 6. In Surendra Kumar Gyani v. State of Rajasthan AIR 1993 SC 115 the Supreme Court held that when the employees were appointed on daily wages as a stop-gap measure as there was temporary need to appoint them and as they were not given any permanent appointment or appointment on regular basis they cannot cling on to the service as against the legitimate claims of persons appointed on regular basis by the P.S.C. 7. S.2(oo) as it stood before the amendment as per Act 49 of 1984 cannot certainly have any application. The word 'retrenchment' as defined in S.2(oo) was really in a very wide sense and it applied to each and every case of termination of employment whatever be its nature and cause. Such a situation leading to drastic consequences need change and the legislature intervened and incorporated clause (bb). Subsequent to the amendment in 1984 and introduction of clause (bb) termination of the service of the workmen as a result of non renewal of the contract of employment on its expiry or of such contract being terminated such termination under a stipulation in that behalf will not come within the meaning of retrenchment. Subsequent to the amendment in 1984 and introduction of clause (bb) termination of the service of the workmen as a result of non renewal of the contract of employment on its expiry or of such contract being terminated such termination under a stipulation in that behalf will not come within the meaning of retrenchment. As noted earlier the amendment was introduced specifically to rectify the situation created by the wide meaning given to retrenchment in M. S. Money' s case. In view of S.2(oo)(bb) a casual employee cannot claim regularisation and validly challenge retrenchment. 8. As the petitioner was appointed purely on a temporary basis and that too on daily wages she is not legally entitled to any of the reliefs prayed for in the Original Petition. We find no merit in the O.P. Original Petition is dismissed.