STATE OF RAJASTHAN Vs. BABU KHAN

JUDGEMENT

(1.) THIS review petition has been directed against the judgment dated January 13, 1992 passed by the Division Bench of this Court consisting of Hon'ble Justice Miss. K. Bhatnagar, who has now retired, and Hon'ble Mr. Justice Rajendra Saxena in D. B. Civil Special Appeal No. 473/91, "state of Raj v. Babu Khan", whereby appellants' Special Appeal was dismissed and the order dated February 2, 1990 passed in S. B. Civil Writ Petition No. 898/89 "babu Khan v. State 'of Raj. " was confirmed.

(2.) SUCCINCTLY stated, the relevant facts are that respondent Babu Khan filed a writ petition alleging that he was appointed as L. D. C. temporarily on daily wages in the Rehabilitation Section of the Collectorate, Churu vide order dated November 2, 1987 (Annex. 1) till February 29, 1988 and thereafter his services were extended upto October 3, 1988, when his services were brought to an end. Thereafter, he was again appointed from November 2, 1988 to November 30, 1988 and further a fresh appointment was given to him on December 2, 1988 for a term ending on December 31, 1988 and that in between this period, he was transferred from the Famine Relief Section Collectorate, Churu to the Distt. Rural Development Agency, Churu under the National Rural Employment Programme. He contended that he was a workman within the meaning of Section 2 (s) of the Industrial Disputes Act (in short, "the Act") and that his retrenchment was effected without complying with the mandatory provisions of Section 25f of the Act, which is ex facie illegal and void. He claimed that he was subjected to unfair labour practice and prayed that on the principle of "equal pay for equal work", he is also entitled to be paid in the regular pay scale of LDC. Petitioners in their counter controverted those facts and pleaded that Babu Khan was appointed as a daily rated LDC temporarily in the Famine Relief Section of the Collectorate and that when the famine work was discontinued, he submitted a fresh application and accordingly, the Addl. Collector (Development) - cum - Project Director, Distt. Rural Development Agency, Churu by his order dated October 3, 1988 Annex. R/1 appointed him as L. D. C. on daily wages in the National Rural Employment Programme (NREP) till October 31, 1988. It was asserted that the State Govt. and the D. R. D A, Churu are two different entities and as such there was no question of transferring the petitioner from Famine Relief Section of the Collectorate to the DRDA It was specifically denied that the petitioner was either engaged on substantive vacant post or he was a workman within the meaning of Section 2 (s) of the Act or his services were retrenched within the meaning of Section 2 (oo) of the Act or the provisions of Section 25 F of the Act applied in his case. It was specifically pleaded that Babu Khan's services were not covered under the provisions of the Act and that there was no violation of Articles 14,15, 23 read with Article 39 (d) of the Constitution of India. Respondent Babu Khan in his rejoinder reiterated that he was appointed as a L. D. C. in the Collectorate, Churu and was deputed in Legal Section vide order dated December 3, 1987 Annex. 4, transferred to Tehsil Office, Churu by order dated December 23, 1987 Annex. 3 and was again deputed in the Collectorate, Churu vide order dated May 31, 1988 Annex. 6. He also submitted a certificate dated September 30, 1988 Annex. 5 issued by the officerin-charge Relief Section (Addl. Collector, Churu) to the effect that he had worked in the Relief Section of the Collectorate from November 2, 1987 to September 30, 1988 continuously as a daily wages L. D. C. He asserted that he had submitted an application to the Collector for giving regular appointment on the post of L. D. C. on August 25, 1988; that the said application was forwarded to the D. R. D. A and thereupon he was appointed as daily wages L. D. C. w. e. f. October 3, 1988 in the D. R. D. A. Churu against the N. R. E. P. Scheme.

(3.) THE learned single Judge was of the opinion that it was not necessary to enter into the controversy as to whether the petitioner had been given a fresh appointment on October 3, 1988 by the Addl. Collector (Development) or it was in continuation of his earlier employment vide office order Annex. 1 dated November 2, 1987 or still further was it only a transfer from one employer to the other on the same terms and conditions, because even before the order dated October 3, 1988, Annex. R. 1, the petitioner had already put in 240 days continuous service with the Collector, Rehabilitation, where he had been appointed initially on November 2, 1987 and, therefore, his services could not have been terminated without following the procedure laid down under Section 25f of the Act and as such his termination from service before October 3, 1988 was invalid. He accordingly by his order dated February 2, 1990 allowed the writ petition and ordered for his reinstatement with back wages. He further directed that the petitioner be paid minimum salary in the pay scale of LDC from the date of filing the writ petition i. e. March 17, 1989.