SHISH RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) PETITIONER was appointed on the post of Lower Division Clerk after a Selection by order dated 24 -3 -1988 (Annex.P/1) in the office of the Bal Vikas Pariyojna Adhikari, Sri Doongargarh in the first instance for a period of three months, In pursuance of the said order, the petitioner joined on 29th March, 1988. The petitioner thereafter was allowed to work on the post according to him upto 6th October, 1989 and by 7th Oct. 1989, he was told orally that his services are not being extended after 13 -9 -1989. The petitioner has also stated that during this period, following breaks were also given in his service: 29 -6 -88 to 5 -7 -88, 1 -10 -88 to 26 -10 -88, 28 -11 -88 to 5 -12 -88, 1 -3 -89 to 8 -3 -89, 10 -6 -89 to 14 -7 -89 and 15 -8 -89 to 17 -8 - 89. In support of his averments, the petitioner has produced the letter dated 21 -9 -1989 (Annex. P.11), issued by the Bal Vikas Pariyojna Adhikari, Sri Doongargarh to the Regional Dy. Director, Bal Vikas, Churu giving details about the petitioner's working in the office, and service breaks. In the said letter, it has clearly been stated that though the period of last appointment had expired on 13 -9 -1989, petitioner is still continuing on duty but no office order has been issued. The petitioner has contended that in immediately twelve months proceeding the date of his termination on 7th Oct. 1989, he was in continuous service for a period of one year and, therefore, his services could not have been brought to an end without complying with the mandatory provisions of Section 25F read with Section 25J of the Industrial Disputes Act, 1947 hereinafter referred to as 'the Act of 1947'. The petitioner has neither been given a notice or salary in lieu of notice before termination of his services as required by the aforesaid provisions nor he has been given compensation under the said provisions.

(2.) A return has been filed on behalf of the respondents in which correctness of facts stated in Annex. P/11 has not been disputed. However, it has been contended that petitioner's services came to an end on 13th September, 1989, he was not in continuous service in preceding twelve calender months and his intermittent working on the post was not for a period of two hundred and forty days or more so as to treat him in continuous service for one year under the provisions of the Act of 1947 in twelve months preceding 13th Sept. 1989.

(3.) ANNX . P/11 is an undisputed document. Respondents have also produced a chart of actual working by the petitioner on the post an Annex. R.4. The fact that the petitioner was allowed to discharge his duties after 13 -9 -1989, is not disputed and the fact that charge was taken from the petitioner only on 27 -9 -1989 is also not disputed. Taking these undisputed facts into consideration, there cannot be any dispute about the fact that petitioner's services came to an end atleast not before 27 -9 -1989, from the aforesaid facts and relevant documents. Annx. R/4 showing the period for which the petitioner has worked after 13 - 9 -1989 has admittedly been not taken into account nor the respondents have taken into account the weekly holidays and paid holidays which have to be counted for the purpose of calculating the actual days of work by the concerned employee in preceding twelve months. Reading of Annex. P/11 alongwith Annex. R/4 leaves no room of doubt that the petitioner has worked for more than two hundred and forty days in the period of twelve months immediately preceding 27 -9 -1989. Even if the date of termination is taken to be 13.9.1989, according to undisputed facts available on record, petitioner had completed two hundred and two days in twelve months before 13 -9 -1989 so as to secure the benefit of the provisions of the Chapter V -A of the Act of 1947. In this view of the matter, the petitioner's services could not have been terminated without compliance of Section 25F(a) and (b) of the Act of 1947. He had to be given one month's notice or one month's salary in lieu of notice in writing indicating the reasons for retrenchment and he had also to be paid retrenchment compensation as provided under the said provisions. These conditions have admittedly not been fulfilled in the present case, therefore, termination of the petitioner's services which has been brought about in violation of Section 25F of the Act of 1947 was illegal. Effect of which is that there is neither termination of service nor cessation of service. Hence, a declaration must follow that the petitioner continued to be in service with all consequential benefits.