1997 Supreme(Guj) 165

Gujarat High Court
Judgename :R.BALIA
VETERINARY OFFICER - Appellant
Versus
RAJENDRASINH R.JHALA - Respondent
S.C.A. 502 of 1995
Decided On : 03/21/1997

Headnote:Industrial Disputes Act, 1947 - Secs. 25-F, 25-G, 25-H read with Sec. 25-J - Tribunal considering termination of respondents service in violation of Sec. 25-F ordered reinstatement however denying the backwages - Against the award both the parties have approached the Court - Court having considered the facts found no fault with the order so far termination is concerned - Order of termination rightly held by Tribunal as not fulfilling conditions of valid termination - Objection mainly directed against direction by Tribunal to regularise the services of respondent - Court opined that so far as the post was continuing on which recruitment was necessitated & workman employed against is worked so satisfactory without giving an opportunity of preferential appointment he could not be denied benefit of continuing on the post - Court allowed reinstatement with full backwages restricted to emoluments he was receiving at the time of his first retrenchment.

       The respondent employee had been appointed against an existing vacancy to a post for which he was fully qualified and he has discharged the regular duties of the post, notwithstanding limited period of duty expressed in appointment order for almost a period of four years. His services during that period were not unsatisfactory. Thereafter, he has been unceremoniously discharged from service without fulfilling conditions of valid retrenchment which undisputedly apply. In that view of the matter, termination of service has rightly been held to be invalid.

       In fact the only objection to award has been in respect of direction to regularisation of services and to be paid in regular pay scale. Keeping in view the principle enunciated in State of Haryana and Others vs. Piara Singh and Others reported in (1992) 4 SCC 188 wherein the Supreme Court laid down that, if for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State, the order of the Tribunal was fully justified. It has further to be noticed that present is a case where there is only procedural irregularity in appointment of petitioner to an existing post for which he was fully eligible when appointed. After his appointment, no regular selections were held for regular appointment at which the workman could take his chance for regular selection. No such chance was offered to him while new person has been alleged to be appointed after regular selection. On equity, fairplay and justice the relief given to the petitioner was fully justified.

       [Para 4]

       The petitioner was working against the post of patawala since 1986. Even for his retrenchment on 19.6.1990 to be void, person employed against the post later than the petitioner were to go first in terms of Sec. 25-G. Instrument of a valid termination cannot be used merely for the purpose of recruiting new hands by getting rid of old hands who have not only protection against illegal retrenchment but protection against new recruitments against the post by securing preferential right to be appointed against new hands. It must be noticed that the parliament has been zealous to guard against such eventuality by providing preferential right to new appointments in future by the employer notwithstanding employer adopting different methodology by providing terms of employment by way of contract rules or other statutory measures. The legislative will is indicated in Sec. 25-J of the Act which makes provisions under Chapter V-A and V-B of the Industrial Disputes Act to be effective notwithstanding anything inconsistent therewith contained in any other law including standing orders made under Industrial employment (Standing Orders) Act, 1946.

       In Court opinion, so long as the post was continuing on which recruitment was necessitated and the workman employed against is worked so satisfactory without giving an opportunity of preferential appointment he could not be denied the benefit of continuing on the post by resorting to retnrechment once again, after, admittedly, he has been reinstated on regular basis as stated by the learned counsel for the District Panchayat in compliance with award under challenge.

       [Para 8]

       Court therefore allow this petition modifying the award to the extent it denies the workman backwages and direct that the reinstatement of the workman shall be with full backwages with effect from the termination to the date of reinstatement. However, the amount of backwages shall be restricted to the emoluments which he was receiving at the time of his first retrenchment and he shall be placed in regular employment only with effect from the date of his reinstatement and quash termination of his services vide order dated 25.11.1996 as the same would be clearly in contravention of Sec. 25-G and 25-H of the Industrial Disputes Act read with Sec. 25-J.

       [Para 9]