SHANKER LAL MALI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner Shanker Lal was employed as a workcharged Nakedar in the Mining Department of the State of Rajasthan by the order dated October 11, 1968. He was a daily rated employee getting Rs. 3/- per day. As he became surplus to the requirement of the Mining Department, his services were terminated by the order of the Mining Engineer, Jaipur dated November 21,1970. Later on, taking a sympathetic view, the State Government referred his case to the General Administration Department and then he was appointed afresh as a Chowkidar in the Mining Department by the order dated December 8, 1970, again as a workcharged daily rated employee getting Rs. 3/- per day. Shankerlal joined his new duties on December 9, 1970. From the post of Chowkidar he was transferred to the post of workcharged Nakedar with effect from January 1, 1972 by the order dated January 6, 1972 and he continued to receive the same emolument of Rs. 3/- per day, as a daily rated employee. A show-cause notice for taking disciplinary action against him was given to Shankerlal on November 22, 1973, but before he filed his reply on December 1,1973 he was discharged from service with effect from November 28, 1973.

(2.) THE petitioner has challenged the order of termination of his employment with effect from November 28, 1973 in this writ petition. THE first submission of the learned counsel for the petitioner is that the petitioner was a temporary employee and the termination of his employment was contrary to the provisions of Rule 23-A of the Rajasthan Service Rules, 1951 (hereinafter referred to as "the Rules") and as such the order of termination of the service of the petitioner deserves to be set aside. In this respect, it may be observed that clause (g) of the Second proviso to rule 2 of the Rules lays down that the said Rules would not be applicable to workcharged employees. It cannot be denied that the petitioner was a workcharged employee, as it is apparent from the order of his appointment and transfer on the post of Nakedar. He was a workcharged daily rated employee getting Rs. 3/- per day plus usual allowances, as such the provisions of rule 23-A of the Rules were not applicable to the petitioner. In the year 1964, rules were made under the proviso to Art. 309 of the Constitution in respect of workcharged employees, but they were not applicable to the petitioner, for such rules apply only to the workcharged employees of the PWD. (B & R), Gardens, Irrigation, Water Works and Ayurvedic departments, but they have no application to the workcharged employees in the Mining Department. Thus, there being no provision in the Rules or any other law, governing the conditions of service of the petitioner, it was open to the employer to terminate his service at any time. Learned counsel was unable to show that the order of termination of the service of the petitioner dated November 28, 1973 was passed in contravention of any provision of law or Rules I, therefore, cannot accept the submission of the learned counsel that the service of the petit-oner could have been terminated only in accordance with the provisions of Rule 23-A of the Rules, as the said rule were not applicable to the petitioner.

(3.) THE aforesaid decision has been followed by their Lordships of the Supreme Court again in Rohtas Industries Ltd. vs. Rohtas Industries Staff Union (4), wherein their Lordships of the Supreme Court observed that the Industrial Disputes Act is a comprehensive and self-contained Code, so far as the enforcement of the rights created therein are concerned and such rights can only be enforced through the procedure laid down in that Act. After quoting the observations made in the Premier Automobiles' case (2), their Lordships made the following observations in Rohtas Industries' case (4): - "since, the Act which creates rights and remedies has to be considered as one homogenous whole, it has to be regarded uno flatu, in one breath, as it were. On this doctrinal basis, the remedy for the illegal strike (a concept which is the creature not of the common law but of Section 24 of the Act) has to be sought exclusively in Section 26 of the Act. " In view of the decisions of their Lordships of the Supreme Court in Premier Automobiles case (2) and Rohtas Industries case (4), with great respect to the learned Judges of the Kerala High Court, I am unable to follow the decision in Sasidharan's case (1 ). In my humble view the proper remedy for the petitioner, if he desires to take an objection regarding the alleged infringement of the provisions of Section 25 F of the Industrial Disputes Act, is to raise an industrial dispute and for this reason also this objection cannot be allowed to be raised in the writ proceedings in this Court.