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1989 Supreme(Raj) 175
High Court Of Rajasthan
Judgename : D.L.MEHTA,S.S.VYAS
PRABHA DAYAL JAT - Appellant
Versus
AIWAR SAHAKARI BHUMI VIKAS BANK LTD - Respondent
IX B. Civil Writ Petition 2859 Of 1987
Decided On : 05/01/1989
M.K.SHAH, R.M.LODHA
A workman who has worked for 240 days within the period of 12 calendar months preceding the date of retrenchment, under the same employer, earns continuous service even if he works in different capacities during that period.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 25-B, 25-F - RETRENCHMENT - CONTINUOUS SERVICE - WORKMAN - INTERPRETATION - A workman who has worked for 240 days within the period of 12 calendar months preceding the date of retrenchment, under the same employer, earns continuous service even if he works in different capacities during that period.
Fact of the Case:
The petitioner, initially appointed as an L.D.C. on daily wages, was later appointed as a Class IV employee in the regular pay scale. His services were terminated on the grounds that his appointment was irregular. The petitioner challenged the termination, arguing that it amounted to retrenchment without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947.
Finding of the Court:
The court held that the petitioner's termination amounted to retrenchment and that the provisions of Section 25-F of the Act were not complied with. The court also held that the petitioner had earned continuous service by working for 240 days within the period of 12 calendar months preceding the date of retrenchment, even though he worked in different capacities during that period.
Issues: 1. Whether the petitioner's termination amounted to retrenchment. 2. Whether the provisions of Section 25-F of the Industrial Disputes Act, 1947 were complied with. 3. Whether the petitioner had earned continuous service.
Ratio Decidendi: 1. The definition of retrenchment in the Act is wide and comprehensive to include all types of terminations of service unless the termination falls within any of the excepted categories mentioned therein. 2. The petitioner's termination did not fall within any of the excepted categories and hence amounted to retrenchment. 3. The definition of continuous service in Section 25-B of the Act requires the workman to have been in continuous service under the same employer, not necessarily in the same capacity. 4. The petitioner had worked for 240 days within the period of 12 calendar months preceding the date of retrenchment under the same employer and hence had earned continuous service.
Final Decision: The court allowed the writ petition, quashed the impugned order of termination, and directed the respondents to reinstate the petitioner on the post he was working on October 12, 1987. The court advised the petitioner to initiate legal proceedings under Section 33-C(2) of the Act for back wages.
BYAS, J.
( 1 ) THE petitioner challenges the order dated October 12, 19s7 (sic 1987) (Annexure-6) by which his services were terminated. The petition was originally filed against the respondent-Bank and its Secretary. Subsequently, the Registrar Co-operative Societies, Government of Rajasthan, jaipur was impleaded as party.
( 2 ) BRIEFLY recalled the relevant facts are that the petitioner was initially appointed as L. D. C. in the respondent-Bank on January 24, 1987 on daily wages. While he was so working on the post of L. D. C. , he was appointed a Class IV employee in the regular pay scale on May 15, 1987 by order annexure-5. By the impugned order, Annexure-5 (sic 6) dated October 12, 1987 his services were terminated. It appears from Annexure-6 that the petitioners appointment was found irregular and as such the Registrar, co-operative Societies, Government of Rajasthan (respondent No. 3) issued directions to terminate his services. In compliance of those directions, the administrator of the Bank issued the impugned order Annexure-6.
( 3 ) THE grievance of the petitioner was that he had actually worked for more than 240 days within a period of 12 calendar months proceding the day of termination of his service (October 12,1987 ). The termination of his service amounts to retrenchment. This retrenchment was made whithout the compliance of the mandates of Section 25-F of the Industrial Disputes act. 1947 (For short, the Act ). It is also alleged that the respondent bank is an industry and is a State within the meaning of Article 12 of the constitution. The relief claimed is that the order Annexure-6 be quashed and he be reinstated with back wages.
( 4 ) THE petition is opposed by the respondents on the grounds that the respondent-Bank is not a State within the meaning of Article 12 of the Constitution and hence not amenable to the writ jurisdiction. It is stated that the respondent-Bank is also not an indastry and as such neither the petitioner can be treated to be a workman nor the provisions of the Act are attracted. It is further stated that since the appointment of the petitioner was irregular, his services were terminated.
( 5 ) WE have heard learned counsel for the parties at length.
( 6 ) WE may state at once that the Sahkari Bhumi Vikas Banks in the state of Rajasthan have been taken to be industries as defined in the Act in a number of decisions given in the writ petitions by this Court. Again it is not disputed that the entire control and management of Sahkari Bhumi vikas Banks in Rajasthan vests in the State Government and the Registrar, co-operative Societies, Government of Rajasthan is the controlling head. The Sahkari Bhumi Vikas Banks have been held to be amenable to the writ jurisdiction. These two positions stand well established. Mr. Lodha does not controvert these positions. We find no merit in the contention of the respondent that since the appointment of the petitioner was not valid, the termination of his service does not amount to retrenchment. The defination of retrenchment as given in the Act is wide and comprehensive to include all types of terminations of service unless the termination falls within any of the excepted categories mentioned therein. The petitioners case is not covered by any of the exceptions contained in the definition of retrenchment. As such, the termination of the petitioners service amounts to retrenchment.
( 7 ) THE petition is also opposed on the ground that the petitioner has not put 240 days service during the period of 12 calendar months preceding the date of retrenchment. The contention of Mr. Lodha is that the petitioner first worked as L. D. 0. from January 24, 1987 to May 14, 1987 and thereafter from May 15, 1987 to October 12,1987 as Class IV employee. It is argued that the petitioner worked in different capacities and as such the two periods of his service; first of L. D. C. and then of the Peon cannot be clubbed together to arrive at a conclusion that he h
