1997 Supreme(Guj) 25

Gujarat High Court
Judgename :S.K.Keshote
Kana Ruda Bharwad - Appellant
Versus
Gujarat Water Supply AND Sewage Board - Respondent
S.C.A. 4710 of 1983
Decided On : 01/13/1997

Headnote:(a) Constitution of India, 1950 - Arts. 16 & 226 - Order of termination - Defence of delay & laches as order made giving effect from 7.7.1976 while petition filed in year 1983 - Court considered the facts & found that petitioner had not slept over the matter all this period but had filed Civil Suit & was taking proceedings in Civil Court wherein he was directed to seek redress by raising industrial dispute - As such petitioner can not be faulted on ground of delay & laches.The petitioner in the present case cannot be blamed for delay and laches. The order of termination of his services has been challenged by the petitioner admittedly, by filing a civil suit and in the civil suit, the civil court (Trial Court) decided the matter in his favour and the order of termination was held to be invalid and inoperative as being violative of provisions of Sec. 25F of the I.D. Act, 1947. The matter was taken up in the appeal by the respondent-State and there the contention appears to have been that the petitioner being a workman and the case has been made out of violation of Sec. 25F of the Act, 1947, the proper remedy would have been of raising an industrial dispute and not the civil suit. That contention found favour with the appellate court and the suit has been dismissed. So taking into consideration these facts, it cannot be said that the petitioner has slept over his right, but he was vigilant and he agitated his right though not before the labour court, but before civil court. In view of this fact, on which there is not dispute, the preliminary objection raised by the learned counsel for the respondent Shri D.G. Chauhan is devoid of any substance.[Para 6](b) Industrial Disputes Act, 1947 - Sec. 25F - Termination in violation of provision under - Condition - Claimant has to establish as a fact that he has worked for 240 days in twelve calendar months preceding the date of termination - Petitioner having failed to make out any case of his working for 240 days challenge to order on ground of violation of provision under not sustainable.Where the petitioner pleads it to be a case of violation of provisions of Sec. 25F of I.D. Act, 1947 then he has to establish as a fact that he has worked for 240 days in twelve calender months preceding the date of termination. It is true that the petitioner may not have worked continuously for 240 days or there may be break in the services also, but he has to establish as a fact that during twelve calender months preceding the date of termination he worked in the establishment for 240 days. That is the mandatory requirement and unless it is established as a fact, the termination of the services of the petitioner cannot be held to be in violation of Sec. 25F of the I.D. Act, 1947. The petitioner has to stand on his own merits or has to stand on his legs and he cannot shift his burden on the respondent which initially heavily lies upon him. Merely stating that the petitioner has worked for 240 days, it is not sufficient more so when the respondent has come up with a case that the petitioner has not worked for 240 days. It is a disputed question of fact otherwise also, on which this court will not make an inquiry. In the petition under Art. 226 of the Constitution if a fact is in dispute, then this court will not make an inquiry and the petition deserves to be dismssed on this ground. As the petitioner has failed to make out any case of his working for 240 days in the twelve calendar months preceding the date of termination of his services, the challenge to the order of termination on the ground of violation of provisions of Sec. 25F of the I.D. Act, 1947 is not sustainable.[Para 9](c) Service & Employment - Termination - Temporary appointment for a fixed period - No notice or opportunity of hearing is required to be given while terminating his services - Petitioner was given appointment for fixed term of 29 days - No order of extension produced by him - So there may be possibility of further appointments also for fixed terms - No enforceable right to the post had accrued to petitioner - Order of termination of his service cannot be termed arbitrary or illegal.The petitioner has been given fixed term appointment for 29 days and the petitioner has not produced the order of extension as it is a case where the services of the petitioner were continued by giving some break. So there may be possibility of giving appointment all the time for fixed term. So appointment comes to an end by efflux of time. Until the temporary service matures into permanent, the holder thereof has no right to the post. At any time or at any point of time before that right accrues to the employee, it is open to the employer to terminate the services in terms of the order of appoinetment. It is not the case of the petitioner that the respondents have no power to terminate his services. The petitioner has no right to the post and in case when the work was not available and his services were terminated, it cannot be said to be arbitrary or illegal.[Para 11]