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1995 DIGILAW 404 (RAJ)

Virendra Kumar v. The State Of Rajasthan

1995-04-25

ARUN MADAN

body1995
JUDGMENT 1. 1. This writ petition has been filed under Article 226 of the Constitution of India in the matter of violation of the fundamental rights of the petitioner under Article 14,16, 21 and 31(d) of the Constitution of India, wherein the petitioner has challenged the verbal order of retrenchment dated 1st March, 1989, whereby the services of the petitioner, who was appointed as a Beldar on daily wage basis, were terminated by the respondents without providing any opportunity of hearing to the petitioner or even issuing any show-cause notice to the petitioner. 2. The facts giving rise to the filing of this writ petition, briefly stated, are that the petitioner was appointed as Beldar on daily-wage basis @ Rs. 14/- per day, on 1-2-87 in the office of the respondents at Bharatpur and he was under the charge of Assistant Engineer.PWD Sub-Division, Nadbai, District Bharatpur. During the period 1.2.87 till March, 1989 the petitioner was made to work with artificial breaks in service. It is contended by the petitioner that during the aforesaid period the petitioner had continuously discharged his duties as Beldar for a period of 25 months. There was no complaint against the petitioner during the course of his employment till 1.3.89 when the services of the petitioner were terminated by an oral order passed by the respondents. It has been further contended in the writ petition that striking out the name of the workman from the Juster Roll of the Management amounts to termination of service and such termination can be termed as retrenchment within the meaning of Section 2(00) of the Industrial Disputes Act, 1947(hereinafter to be referred as 'the Act'). It has been further contended by the petitioner that the provisions of Section 25F (a) and (b) are mandatory and any order of retrenchment passed in violation of these two clauses is invalid and the termination order is illegal since no notice or pay or compensation in lieu of notice as required by the Act was given to the petitioner and hence the petitioner has prayed for reinstatement with full back wages and has further prayed for quashing the impugned order of termination dated 1.3.89 passed by respondent No. 4, namely. The Assistant Engineer, P.W.D, Sub- Division, Nadbai, District Bharatpur. 3. The Assistant Engineer, P.W.D, Sub- Division, Nadbai, District Bharatpur. 3. In the reply to the writ petition filed on behalf of the respondents, it has been contended that the petitioner was engaged on daily-wages as per Muster-Rolls(Temporarily) on an oriented employment programme under the Rural Landless Employment Guarantee Programme sponsored by the Government of India and implemented by/the District Rural Development Agency, Bharatpur through PWD, Sub-Division Kama, District Bharatpur in February, 1987. It has been further stated in the reply that for the period March and April, 1987 the petitioner was engaged by the Assistant Engineer,PWD,Kama,District Bharatpur(respondent No. 4) on the watch and ward duties of temporary stores. It has been further contended in the reply that the petitioner had worked with breaks in service and he did not work for a single day in August, 1987 hence the petitioner having not completed 240 days of continuous service, he is not entitled to be given benefit of continuous service and, therefore, the impugned order of termination passed by the respondents was justified and that the writ petition is not maintainable before this Court. It has been further contended that the alternative remedy of moving to the Tribunal is available to the petitioner by raising an industrial dispute first before the Labour Court and then on a reference by the State Government to the Tribunal which remedy the petitioner should avail. In this regard the reliance has been placed upon the Constitution Bench decision of this Court in the matter of Gopal Lal Teli v. State of Rajasthan & Ors. SBCWP No. 3011/90 decided on 1st March, 1995 , wherein while answering the reference made by the learned Single Judge, the Constitution Bench of this Court held that for violation of the provisions of Chapter-V-A of the Act or for violation of the principles of natural justice the normal course is to pursue the remedy provided under the Act and the exercise of powers under Article 226 of the Constitution of India in such cases should be sparingly exercised. In the said judgment the Constitution Bench has also observed that it is difficult to lay down the conditions/grounds exhaustively as the facts of each case may vary and the conditions may be different, hence the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India cannot be confined in a water-tight compartment. 4. In the said judgment the Constitution Bench has also observed that it is difficult to lay down the conditions/grounds exhaustively as the facts of each case may vary and the conditions may be different, hence the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India cannot be confined in a water-tight compartment. 4. During the course of hearing reliance was placed by the learned Counsel for the respondents on Annex-R/1 and Annex-R/2 annexed with the reply to the writ petition which contains the Muster Roll of actual working days of the petitioner from February, 1987 till November, 1988 totalling 292 days in all. It has been further contended that the requirement of the minimum number of actual working days should be 240 days in a calender year as against which the petitioner had worked for 2051/2 days from April, 1988 to March, 1989. 5. In reply to the aforesaid contention it has been contended by the learned Counsel for the petitioner that if Sundays and other holidays are also counted then the actual working days in a calender year comes to 258 days and thus the petitioner is entitled to the benefits under the Act. In this regard, learned Counsel for the petitioner has placed reliance on the decision of this Court in the matter of Chaggan Lal v. Panchayat Samiti & Anr., reported in RLR 1989 (2) 692 , wherein similar question had arisen for determination of this Court. This Court held that Sundays and other paid holidays have to be taken into account for the purpose of reckoning the total number of days on which the workman can be said to have actually worked and once it is held that the petitioner has worked for 240 days then the services of the petitioner cannot be terminated without compliance of the provisions of Section 25F(a)(b) of the Act. The Workman has to be given one month's notice in writing indicating the reasons for retrenchment and if the period of notice has expired the workman must be paid pay in lieu of notice and secondly workman has to be paid retrenchment compensation which shall be equivalent to 15 days of the average pay for every completed year of continuous service or any part thereof in 6 months. Applying the ratio of the aforesaid judgment to the present case, it has been contended by the learned Counsel for the petitioner that this having admittedly not been complied with, the termination or retrenchment of the workman is illegal and deserves to be quashed and set aside. Reliance was also placed upon the judgment of this Court in SBCWP No. 1170/90 titled as Padam Singh v. State of Rajasthan & Ors., decided on 3.1.92 . In this case as well similar question had arisen for consideration of this Court where the services of the Workman had been discontinued as a dally wager by the PWD, Bharatpur where he was working as Chowkidar. In this case the petitioner had completed 24O days of service and the grievance of the petitioner was that his services could not be brought to an end without complying with the provisions of Section 25F of the Act and the petitioner had prayed for reinstatement with full back-wages and allowances as admissible to the post of Chowkidar with effect from the date of termination. While placing reliance upon the D.B. judgment of this Court in the matter of Shiv Kumar v State of Rajasthan, S.B.Civil Special Appeal No. 25/91, decided on 1/10/91 , the Division Bench of this Court held that merely because the petitioner worked in different sub-devisions of the same Department, it will not make any difference i.e., in case the Department is same and the total period of work as daily-wages in different sub-divisions of the Department also comes to 240 days in all, the employee is entitled to promotion. The writ petition was consequently allowed and the petitioner was deemed to have been continuously in service from the date he was discontinued from service with back-wages from the date of the filling of the writ petition with other consequential benefits to which he would have been entitled in accordance with the work- charge Rules of the concerned Department. 6. The writ petition was consequently allowed and the petitioner was deemed to have been continuously in service from the date he was discontinued from service with back-wages from the date of the filling of the writ petition with other consequential benefits to which he would have been entitled in accordance with the work- charge Rules of the concerned Department. 6. Reliance was also placed by the learned Counsel for the petitioner on the judgment of the Apex Court in the matter of Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation, AIR 1986 Supreme Court 458 , wherein the question which had arisen for consideration of the Apex Court was as to whether Sundays and every paid holidays should be taken into account for the purpose of reckoning the total number of days on which the Workman could be said to have actually worked. It was held by the Apex Court that the principles of statutory considerations are well-settled and has held as under: "The expression which we are required to construe is actually worked under the employer This expression according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wager either under express or implied contract of service or by compulsion of statute, standing orders, etc." 7. After hearing learned Counsel for the parties and examining the rival claims and contentions and perusing the relevant documents placed on the record, I am of the considered opinion that the petitioner is entitled to succeed and the ratio of the above referred Judgments of the Apex Court as well of this Court are fully applicable to the facts of the present case. 8. In the result the writ petition is allowed and the impugned order of verbal termination dated 1.3.89 passed by the respondents is quashed and set aside and it is directed that the petitioner shall be treated as having been continuously in service from the date he has been discontinued from service. 8. In the result the writ petition is allowed and the impugned order of verbal termination dated 1.3.89 passed by the respondents is quashed and set aside and it is directed that the petitioner shall be treated as having been continuously in service from the date he has been discontinued from service. It is further directed that the petitioner shall be entitled to full back wages with effect from 19.4.89 i.e. the date of the filing of this writ petition in this Court and the petitioner shall be entitled to all other consequential benefits to which he is eligible in accordance with the Work-charge Rules of the Department concerned taking him to be in continuous service since the date of his initial appointment. Parties are left to bear their own costs.Petition allowed. *******