Rajasthan High Court - Jaipur
Rajendra Singh vs Uor & Ors on 9 April, 2013
Author: Mn Bhandari
Bench: Mn Bhandari
THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No. 6244/1997 Rajendra Singh versus University of Rajasthan & ors 9.4.2013 HON'BLE MR. JUSTICE MN BHANDARI Mr V Dangi, Sr Adv with Mr Kuldeep Verma for petitioner Mr VK Sharma for respondents BY THE COURT:
By this writ petition, a challenge is made to the order of termination. It is stated that petitioner was engaged as a Driver initially vide order dated 1.6.1991. It was under Special Assistance Programme receiving financial aid from the University Grants Commission so as the State Government. He continued thereupon and worked efficiently which has been testified by the Professors under whom petitioner had worked. The respondents subsequently appointed the petitioner on the post of Vehicle Cleaner vide order dated 15.2.1996 in regular pay scale of Rs.750-940. Petitioner however asked to work as driver only. The post was changed superficially while passing the order dated 15.2.1996. The petitioner got sick and remained on leave for five days and when he returned to join the duties, it was informed that his name has been struck out from the rolls and, now, pursuant to the reply to the writ petition, an order of termination dated 9.6.1997 has been placed on record. The aforesaid order has been passed in reference to the judgment of this court in the case of Jai Narain Meena versus University of Rajasthan & ors, SB Civil Writ Petition No. 6378/1993, decided on 6.1.1994. Aforesaid judgment was upheld by the Division Bench vide judgment dated 30.1.2004 in DB Special Appeal (Writ) No.424/1994. However, no direction was there to discontinue persons already working, that too, without observing the provisions of law. The petitioner has continuously worked for more than six years. Even if last post is taken note of, he has worked for more than a year yet his services have been terminated without following provisions of section 25-F of the Industrial Disputes Act, 1947 ( for short 'the Act of 1947'). In view of above, order of termination deserves to be set aside on the aforesaid grounds alone. It is apart from the fact that petitioner's services were terminated in reference of the judgment of this court, whereas, many persons appointed in the similar manner were regularised. Names of those persons have been mentioned in para 2 of the rejoinder. Thus, termination of the petitioner becomes illegal and otherwise not in consonance to the judgment of this court.
After discontinuance, petitioner could not get employment for surviving thus his old parents died during pendency of the writ petition for want of proper treatment in absence of money and his wife left him. Even after efforts, petitioner could not get the job. In view of aforesaid, direction for setting aside the order of termination and for reinstatement of the petitioner with full back wages may be granted.
Learned counsel for the respondents, on the other hand, submits that petitioner was initially engaged as Driver under Special Assistance Programme which was receiving financial aid from the University Grants Commission. The programme was for a period of five years. The payment of the wages on daily rated basis was made out of the contingency fund thus his appointment was not against regular post or by regular means. Petitioner has no right to continue on the post of Driver having been appointed under a particular scheme of the UGC. After completion of five years, petitioner was not continued on the post as Driver but was taken on the post of Vehicle Cleaner. It was for fixed term of three months or till further orders. In the background aforesaid, there is no violation of section 25-F of the Act of 1947.
This is more so when respondents even issued advertisement in the year 1995 calling applications for the post of Driver. The petitioner was not selected on the aforesaid post thus he has no right to continue as Driver. A candidate remaining unsuccessful, cannot ask continuance and so far as other persons continued on ad hoc basis are concerned, they have been given regular appointment pursuant to the directions of this court and in reference to the Rajasthan University Non-Teachers Employees Recruitment Rules, 1974. Thus petitioner cannot equate or compare his case with those who were appointed finally in accordance with the rules. In the background aforesaid, petitioner's discontinuance is not illegal, rather, it is in compliance of the judgment of this court.
I have considered rival submissions of learned counsel for parties and perused the record.
Initially, petitioner was appointed as Driver under Special Assistance Programme of the UGC. As per reply to the writ petition, programme aforesaid was for a period of five years. Payment of salary of the petitioner was accordingly made from the contingency fund. In the background aforesaid, petitioner was not entitled to continue after expiry of the period of five years i.e. till programme was available with the university. The period aforesaid came to an end in the month of June, 1996. If the petitioner would have been discontinued from service at that stage, things would have been different, however, respondents issued another order of appointment in respect of the petitioner on 15.2.1996, appointing him on regular pay scale on the post of Vehicle Cleaner. Prior to it, an advertisement was issued for regular appointment on the post of Driver on which he was not selected. The fact, however, remains that termination order was passed on 9.6.1997 and if even last appointment of the petitioner is looked into, it was for a period of more than one year, which has not been disputed by learned counsel for respondent-University.
The question for my consideration is as to whether termination of the petitioner in those circumstances is in violation of section 25-F of the Act of 1947? For ready reference, section 25-F of the Act is quoted hereunder:-
25F. Conditions precedent to retrenchment of workmen No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one months notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay130[for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate government107[for such authority as may be specified by the appropriate government by notification in the Official Gazette].
The perusal of the above quoted provision reveals that if an employee is continued in service for not less than a year, he may be retrenched by following clauses (a) and (b) of section 25F of the Act. The respondents have not come with the case that provision aforesaid were complied with or is not applicable. This is more so when case of the petitioner is that he falls under the definition of 'workman' and University in the definition of 'industry' given in the Act of 1947.
The only argument is in regard to terms of appointment given under the order dated 15.2.1996. The perusal of the order aforesaid reveals that appointment of the petitioner on the post of Vehicle Cleaner was for a period of three months or till further orders, whichever is earlier. I find that the period of three months came to an end on 15.5.1996. However, fact is that petitioner was continued with the respondents till 9.6.1997. In the background aforesaid, case of the petitioner does not fall under section 2 (oo) (bb) of the Act of 1947, thereby, termination of the petitioner falls under the definition of 'retrenchment' and compliance of section 25F of the Act of 1947 has not been. complied with. The order of termination thus becomes illegal in the light of the aforesaid discussion.
The fact however remains as to whether termination was effected pursuant to the directions of this court?
The perusal of the judgment in the case of Jai Narain (supra) reveals that if a candidate has completed 240 days of service, then he should be given preference for the purpose of selection and direction for termination is not of Driver or Vehicle Cleaner. In any case, if, at all, termination was to be made pursuant to direction of this court, it cannot be in violation of the provisions of law but has to be in consonance to it.
Looking to over all facts of this case, termination of the petitioner cannot be said to be as per directions of this court and otherwise held to be in violation of section 25F of the the Act of 1947.
It would be necessary to mention that generally this court does not interfere in the matters pertaining to violation of section 25F of the Act of 1947 in view of availability of alternative remedy but this matter was admitted by this court and is coming out for hearing after 16 years thus, at this stage, petitioner cannot be non-suited on account of availability of alternative remedy.
In view of discussion made above, termination of the petitioner is held to be illegal, accordingly, termination order dated 9.6.1997 is set aside. Petitioner may be reinstated in service within a period of two months from the date of receipt of copy of this order.
So far as wages for the intervening period is concerned, petitioner is given liberty to make an application before the labour court under section 33 (C ) (2) of the Act of 1947. The respondents would be at liberty to lead evidence as to whether petitioner was gainfully employed during intervening period or not. If he is found gainfully employed, then would not be entitled for wages of the intervening period, however, if he was not gainfully employed, then would be entitled to the back wages.
With the aforesaid directions/ observations, writ petition is allowed.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW