BAJRANG LAL Vs. ASST ENGINEER PWD

JUDGEMENT

(1.) THE petitioner has claimed that he was appointed as Beldar in January, 1987. He has completed 240 days of working during last 12 calendar months. He was appointed in the P. W. D. and at the time of filing of the writ petition he was working at Sikar-Salasar Road. The petitioner has enclosed Schedule 'a' in support of his assertion that he had worked for 240 days. The work on which the petitioner was engaged comes under the jurisdiction of Executive Engineer. P. W. D. , Division Sikar. There are four sub-divisions under him. The work under those sub-divisions has not been completed. Notwithstanding that, the petitioner has been retrenched by an oral order dated July 16, 1988. No notice was given to the petitioner nor any compensation has been paid to him. The rule of 'last come first go' has not been followed. The petitioner has stated that termination of his service is liable to be declared as void because of violation of Section 25f read with Section 25b of the Industrial Disputes Act, 1947. There has also been violation of the provisions contained in Rules 77 and 78 of the Rajasthan Industrial Disputes Rules, ] 1958. Action of the respondents also amounts to violation of the rights guaranteed to the petitioner by Articles 21, 39 (a) and 41 of the Constitution of India. The petitioner has been deprived of the only source of livelihood. His fundamental right of equality has been infringed. On that premise, the petitioner has made a prayer that the respondents be directed not to retrench him and to recognize the petitioner as a semi-permanent employee under the Industrial: Disputes Act. A further prayer has been made for quashing of the verbal order of retrenchment.

(2.) A reply to the writ petition has been filed by the respondents in which it has been asserted that the petitioner was engaged on daily wages on muster roll basis as Beldar. He was so engaged on purely temporary basis with effect from January 1, 1987. The respondents have denied the statement of the petitioner regarding his having completed 240 days during last 12 calendar months. It has also been stated that the petitioner has himself stopped coming to work with effect from August 1, 1988. He was not engaged in the P. W. D. He mostly worked under: the schemes of the Goverment relating to famine relief works and thereafter for few days in the Maintenance Department. Regarding the period of working of the petitioner, a statement showing the actual days of working has been placed on record as Annexure R-1 and on that basis it has been stated that the petitioner has worked for 215 1/2 days in Famine Relief works and 9 days in Maintenance Department. There were 38 Sundays and one paid holiday. The working of the petitioner during Famine Relief cannot be treated as an employment under the Government. It has also been stated that the provisions of the Industrial Disputes Act are not applicable in view of the Government notification dated: May 21, 1988. It has then been stated that each sub-division is a separate and independent unit for the purposes of Rule 4 of the Rajasthan P. W. D. (Bandr), including Gardens, Irrigation, Water Works and Ayurvedic Departments Work Charge Employees Service Rules, 1964. Reiterating that the petitioner has himself stopped coming to work from August 1, 1988, the respondents have asserted that it cannot be treated as a case of retrenchment. Regarding the alleged date of retrenchment, the respondents have stated that the petitioner had worked between July 16, 1988 to July 30, 1988 and, therefore, it cannot be said that the petitioner was retrenched with effect from July 16, 1988. The respondents have denied that the petitioner's fundamental or legal rights have been infringed on account of alleged termination of his service. The respondents have also averred that the petitioner has failed to avail a very effective remedy available to him under the Industrial Disputes Act, 1947.

(3.) SHRI Joshi, learned Counsel for petitioner, has argued that the total period of working of the petitioner was 239 1/2 days during 12 calendar months counted from the date of termination of his service. Thus, it must be taken that the petitioner has worked for 240 days in 12 calendar months. Before effecting retrenchment of the service of the petitioner, neither any notice nor pay in lieu thereof nor the retrenchment compensation were either paid or offered to the petitioner. Thus, there has been a clear violation of the provisions of the Industrial Disputes Act. Shri Joshi argued that the termination of the service of the petitioner amounts to breach of the fundamental right of the petitioner guaranteed by Article 21 of the Constitution of India. In support of his submission that even Sundays and holidays should be counted as the period during which the petitioner has worked, Shri Joshi invited my attention to the decision of the Supreme Court in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation (1985-II-LLJ-539), Babulal Sharma v. University of Ajmer 1989 (1) RLR 624, Chagan Lal v. Panchayat Samiti and Anr. (1992-ILLJ-419 ). He also referred to the decision of this Court in Devendra Salolia 1990 (1) RLR 734. Shri Ashok Parihar, learned Addl. Govt. Advocate, argued that disputed questions of fact are involved in this case and, therefore, the High Court will not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India particularly when an effective alternative remedy is available to the petitioner for vindication of his alleged rights under the Act of 1947. Shri Parihar then argued that the pleadings in the petition are absolutely laconic and the petitioner 3 has made erroneous and contradictory averments in the petition. Shri Parihar then submitted that the petitioner has himself stopped coming to the work and, therefore, it is not a case of retrenchment at all but a case of voluntary abandonment of service. Shri Parihar then urged that the provisions of Industrial Disputes Act are not applicable in view of the notification issued by the Government. Lastly Shri Parihar argued that it is a case which is clearly covered by Section 2 (oo) (bb) of the 1947 Act.