STATE OF RAJASTHAN Vs. KAILASH CHANDRA JAIN

JUDGEMENT

(1.) THIS is a special appeal directed against the judgment of a learned single Judge of this Court dated 23-3-68 whereby he quashed the order of transfer Ex. 1 dated 11-9-67

(2.) IN the State Roadways Department of the Government of Rajasthan (hereinafter called "the Department") Kailash Chandra Jain was appointed as a conductor on April 7, 1960. Under the Road Transport Corporation Act, 1950, Rajasthan State Roadways Corporation (hereinafter called "the Corporation") was constituted on 1-10 64. By Notification dated November 18, 1964 employees of the Department, including Kailash Chandra Jain, were placed at the disposal of the Corporation. Clause 6 of the said Notification provided that the services of ail Government employers holding whole or part time posts in the Department shall be temporarily placed at the disposal of the Corporation on deputation for a period of three months or for such period as it may be extended from time to time by the Government on the terms and conditions then governing them till the Corporation framed its own regulations in respect of services of their employees. No deputation allowance was to be given to the employees for the period of deputation. State Government was to exercise all powers regarding disciplinary proceedings or appeals pending immediately before the 1st October, 1964 but the administrative control was to vest in the Corporation. This period of 3 months was extended from time to time and it was on 15th April, 1966 that a notice was issued to all the employees of the Department deputed to the Corporation whether they would opt for the services of the Corporation or not. The time for the exercise of the option was also extended. Kailash Chandra Jain found the Notification of 15 4 66 vague and sought clarification and never exercised his option to become the servant of the Corporation. On 11-9-67 the Corporation declared Kailash Chandra Jain as surplus and the State appointed him as a Survelience Worker of the National Malaria Eradication Prevention Unit, Barmer and directed him to report. He never reported. He presented a writ petition u/art. 226 of the Constitution contending that he was a"workman" in an industry governed by the INdustrial Disputes Act, 1947 and by the Standing Orders framed and duly certified by the Depart, and he could not be transferred to an establishment which was not an industry. His submission in the alternative was that if he was an employee of the Corporation then the State of Rajasthan had no power to transfer him as a Survallience Worker. The State Roadways Workers Union, Jaipur also challenged the transfer orders of such employees by means of a writ application. The State contested the contention of Kailash Chahdra Jain and that of the. Union on the ground that Jain having been declared surplus by the Corporation he was no longer its servant; that the State created supernumerary posts in the Directorate of Transport, maintained the lien of Jain and other servants and that the State in exercise of its powers under R. 20 of the Rajasthan Service Rules (hereinafter called "the Rules") was competent to transfer Jain and others. The learned single Judge dismissed the petition of the Union but allowed Jain's petition holding that the State Govt. was not competent to transfer him and other employees who had been employed in the department to other Establishments of the State because Jain as a workman was entitled to certain benefits under various statutes such as Workrnen Compensation Act (Act No. 8/1923), the Payment of Wages Act (Act No. IV of 1936), the Minimum Wages Act (Act No. XI of 1948) and conditions of services under Standing Orders framed under the INdustrial Employment (Standing Orders) Act, 1946 and he could not be deprived of those advantages by being transferred to a post where he would cease to be a workman and accordingly the learned Judge quashed the order Ex. 1 dated 11-9-67 whereby Jain and others were absorbed to the posts indicated in the order and further restrained the State from giving effect to it. Aggrieved by this judgment the State has come up in appeal.

(3.) IN our opinion, therefore, the conclusion of the learned single Judge that the order Ex. 1 was invalid because it converted a workman under the INdustrial Disputes Act to a non-workman in the Malaria Department is correct and calls for no interference.