KRISHI UPAJ MANDI SAMITI Vs. BABULAL

JUDGEMENT

(1.) THIS is an appeal against the order dated 7.12.1999 passed in Civil Writ Petition No. 2689 of 1994. The petition was directed against the Award made by the Industrial Tribunal, Bhilwara dated 10th Jan., 1994 by which the respondent had been directed to be reinstated with 50% back wages.

(2.) THE respondent has been appointed as Class IV Servant in June, 1983 as a daily rated employee. He continued to function as daily rated employee until January, 1986 when he was given regular appointment. However, his services were terminated vide order dated 17.5.1986 inter -alia on the ground that his appointment was not in accordance with law. The respondent has urged that since he was in continuous service for a period of more than one year, the termination amounted to retrenchment which is not in accordance with provisions of Section 25 -F and other provisions of the Industrial Disputes Act, 1947, and therefore, illegal. An industrial dispute was raised and referred to the Industrial Tribunal and Labour Court, Bhilwara, which was decided by the aforesaid Award in favour of the employee by holding that since the employee has worked for more than 240 days during 12 calendar months immediately preceding the date of terminating the service, he was entitled to protection under the Industrial Disputes Act, the termination having been made in violation of Section 25 -F was invalid. Consequently, the order of reinstatement with, 50% back wages was ordered.

(3.) WE are not impressed by this contention inasmuch as the right to termination has to be distinguished from the procedure required for such termination. Chapter V -B of the Industrial Disputes Act, applicability of which is not in dispute, only provides the condition before right of the employer to terminate the services of any employee is to be exercised as a measure of curbing the hire and fire policy of the employer as well as curbing the policy of illegal and arbitrary retrenchments. The question about the right of the employer to terminate the services is not involved when the termination is in violation of the provisions of Industrial Disputes Act particularly Chapter V -B in relation to the manner it provides. We may notice that the provision of Section 25 -J makes the provision of the protective umbrella under Chapter 5 -B available to the cases where it is applicable irrespective of other provisions of law or contract or rules. Therefore, the contention of learned Counsel that merely because the appointment was given in January 1986, may be suffering from some defect, it would not leave the employer free to terminate the services of the employee unceremoniously who has been in continuous service since 1983, they have to comply with the provisions of Section 25 -F before bringing about a valid termination.