MUNICIPAL COUNCIL Vs. SARLA DEVI

JUDGEMENT

(1.) SMT . Sarla Devi (the original petitioner), who is a member of Scheduled Caste, was given appointment on the post of Lower Division Clerk in the Office of the Municipal Council, Jodhpur, for 28 days on daily wages basis by the order dated 2 -5 -84. This period of twenty -eight days was further extended for another twenty -eight days on 21 -7 -84. Therefore vide order dated 27 -8 -84. she was given appointment for the period of one year on the post of Lower Division Clerk in the Office of the Municipal Council, Jodhpur, in the pay scale of Rs. 490 -10 -550 -15 -640 -20 -840 till the duly selected candidates from the Servic Selection Commission are mad available, whichever is earlier. The petitioner continued on the post of Lower Division Clerk upto 30 -11 -86 and thereafter she was not allowed to continue in service. The petitioner, therefore, by way of filing the writ petition, challenged her removal from the service by the Municipal Council, Jodhpur. The writ petition filed by the petitioner was contested by the Municipal Council. The learned Single Judge, by His judgment dated 12 -2 -90, allowed the writ petition filed by petitioner Smt. Sarla Devi and held that the termination of her service w.e.f. 30 -11 -86 is in violation of the provisions of Section 25F of the Industrial Disputes Act, 1947 (For short 'the Act'), which has been passed without a specific order and the learned Single Judge, therefore, quashed the order of termination of the services of the petitioner and directed the respondent -appellant Municipal Council, Jodhpur to take her on duty and she be treated continuous in service from the date the tenure of her service was not extended and she will be entitled for all the consequential benefits flowing therefrom as per the law. The learned Single Judge further directed that if any post of Lower Division Clerk exists then her services may be regularised adjudging her suitability in accordance with the order Annexure. 18 dated 18 -4 -87. It is against this judgment passed by the learned Single Judge that the Municipal Council, Jodhpur, has filed the present appeal.

(2.) IT is contended by the learned Counsel for the Municipal Council that the appointment of Smt. Sarla Devi was for a fixed term and, therefore, her case does not fall within the purview of 'retrenchment' in view of the provisions of Section 2(oo)(bb) of the Act and the judgment, passed by the learned Single Judge, deserves to be set -aside. Learned Counsel for Smt. Sarladevi, on the other hand, has supported the judgment passed by the learned Single Judge. He has, however, challenged the judgment only on the ground that the learned Single Judge was not justified in not awarding the back wages to the petitioner.

(3.) SMT . Sarla Devi was initially appointed for twenty -eight days and this period was further extended. Thereafter she was appointed for a period of one year. No order for extending her services was passed. On 22 -11 -86, an order was passed, by which the services of about fifty temporary employees, employed in the Municipal Council, Jodhpur, were extended upto 30 -11 -86 and thereafter their services were not extended. This order dated 22 -11 -86, passed by the Commissioner, Municipal Council, Jodhpur, extending the period of appointment upto 30 -1186, appears to have been issued in order to make the appointment of the persons, including the petitioner, as fixed term employment. The petitioner continued in service and on the basis of this order, an argument has been made that the appointment of Smt. Sarla Devi was for a fixed term. This argument cannot be accepted. No order extending the service tenure of Smt. Sarla Devi was passed immediately after the expiry of the period of her appointment or preceding that period and she continued in service. She has served the Municipal Council, Jodhpur, for more than 240 days in a Calendar Year and as such the provisions of Section 2(oo)(bb) of the Act do not apply in the present case and it is simply a case of retrenchment and the termination of the services of Smt. Sarla Devi, which could have been done only after following the procedure provided under Section 25F of the Act. Neither any notice nor any retrenchment compensation, as required under Section 25F(a) and (b) of the Act, have been served and paid to Smt. Sarla Devi before her services were terminated. The order of termination of the services of Smt. Sarla Devi was passed in violation of the provisions of Section 25F of the Act and the learned Single Judge was, therefore, justified in directing the respondent Municipal Council to reinstate her forthwith treating her as continuing in service and to screen her case by the Screening Committee. We do not see any reason to interfere in the order/judgment passed by the learned Single Judge so far as these aspects of the case are concerned.