IFTIKAR AHMAD GAURI Vs. MUNICIPAL COUNCIL AMBAH

JUDGEMENT

(1.) THE Petitioner, a daily wages workman engaged from 11 -10 -1985, as driver for Fire Brigade of Municipal Council, Ambah, has approached this Court in writ Jurisdiction, for quashing of order of termination of his services from 24 -2 -88 vide order of same date (Annexure P/6) as non -est, being in violation of Section 25 -F of the Industrial Disputes Act, 1947 (for short 'the Act').

(2.) THE Municipal Council, Ambah and the Administrator, the Respondents No. 1 and 2, have contested the petition on the grounds, inter alia, that the Petitioner was appointed on muster -daily wages in contingency as the State Government did not create any post of driver for Fire Brigade; the Petitioner was appointed from time to time for 89 days; according to exigencies as per appointment order (Annexure R/1, R/2, R/3, R/4 and R/6. The State Government vide Circular No. 2218/16/C -M/18 -1 -1987 dated 27 -1 -1987 after the sanction of the post, ordered vide Annexure R/7 that till the quota of Scheduled Castes and Scheduled Tribes is not filled up, no appointment from General Category on the vacant posts in the Municipality be made. Therefore, on receipt of sanction of creation of two posts of driver, the Municipal Council advertised the posts vide Annexure R/12 dated 9 -12 -1987 and appointed vide Annexure R/13, Ramdayal s/o Kishanlal and Ramnath s/o Tikarara on probation for a period of two years. It was contended that the appointment of the Petitioner was made by the Respondent No. 1 who had no authority to create any post in the Municipality, such appointments were invalid, which do not give any right to the post. Further contract of employments of the Petitioner was for a stipulated period, and the last appointment having not renewed, termination could not be said to be retrenchment in view of Sub -clause (bb) of Section 2 (oo) of the Act.

(3.) THE Petitioner filed a rejoinder and contended that the Petitioner has worked as driver from 11 -10 -1985 to 24 -2 -1988, i e., for a period of two years and four months by the order of appointments of 89 days or even by verbal orders made by Respondents No. 1 and 2; the Petitioner brought the Fire Brigade vehicle manufactured at Mathura; the Respondents have not produced the record of attendance, and salary paid to the Petitioner, more denial of rendering of continuous service entitling the Petitioner for the benefits of Section 5 -F, will not disentitle to the declaration and benefits of service rendered by him. To this rejoinder no additional return was filed. From Annexure R/4, R/5 and R/6, it is evident that the appointment of Petitioner expiring on 15 -9 -1987 was renewed; the Petitioner was continued. On expiry of the extended period of 26 -11 -1987, the Petitioner was again appointed for 89 days from 28 -11 -1987, thereafter the services of the Petitioner were discontinued on the expiry of the period stipulated vide Annexure P/6. The avernment of the Petitioner of working from 9 -12 -1985, by giving appointments of 89 days till his discontinuation was not denied, which is evident from paras 1 and 3 of the return, It was also not denied in the return that the Petitioner has not rendered continuous service of 240 days preceding to retrenchment.