Ghansham vs Chief Conservator of Forests and Others

T.S. Doabia, J.—1. This order shall dispose of Writ Petition No. 486 of 1997 and Writ Petition No. 122 of 1998. Both have been

preferred by the same person.

The petitioner is seeking regularisation. This has been denied to him.

Facts have been noticed from SWP 486/1997.

The petitioner was given initial appointment in the year 1988. He continued to work in the year 1989. He also worked in the year 1990. He

performed duties for some months in the year 1991. As per the petitioner, he fell sick. He remained absent for some time. He was again given

appointment as Range officer, on October 1, 1994. He continued in service till the end of November, 1996. Thereafter, his services were

discontinued. This led him to approach this Court. Aforementioned Writ Petition No. 486 of 1997 was filed. This Court on April 1, 1997 passed

following order:

Notice as above. Reply within the same time. Subject to hearing the other side, respondents are directed not to terminate the services of the

petitioner and he be paid his dues regularly. Past unpaid wages be paid within a month from today.

Apart from the above relief, his case be considered for regular absorption.

The petitioner submits that he is continuing in service. He seeks regularisation.

It be seen that during the pendency of the aforementioned writ petition, the respondent-authorities have taken a decision on December 24,

1997, they have decided not to regularise the services of the petitioner. This order has been passed in pursuance of the interim directions given by

this Court in Writ Petition No. 486 of 1997. This order is being challenged in Writ Petition No. 122 of 1998. Therefore, the question as to

whether that order is good or bad is also being examined in Writ Petition No. 486 of 1997.

The State of Jammu and Kashmir has framed Rules known as Jammu and Kashmir Daily Rated Workers/Work Charged Employees'

Regularisation Rules 1994. The eligibility for regularisation has to be considered in terms of Rule 4. This Rule reads as under:

Eligibility for Regularisation: A Daily Rated Worker/Work Charged Employee shall be eligible for regularisation on fulfilment of the following

conditions, namely:

a) That he is a permanent resident of the State;

b) That on the date of his initial appointment his age was within the minimum and maximum age limit as prescribed for appointment in Government

service;

c) That he possesses the prescribed academic and/or technical qualification for the post against which he is required to be regularised;

Provided that in case of eligible Daily Rated Workers to be regularised against Class IV posts, relaxation of qualification and/or age shall be

considered on merits by the concerned Administrative Department;

d) That he is not a retiree from any State or Central Government service or any local body, Public Sector Undertaking or Autonomous body in or

outside the State;

e) That his work and conduct has remained satisfactory during the period he worked as Daily Rated Worker as Work Charged employee and no

disciplinary proceedings are pending against him; and

f) That he has completed seven years' continuous period of working as Daily Rated Worker or Work Charged Employee or partly as Daily Rated

Worker and partly as Work Charged Employee.

Rule-8 is also relevant, this reads as under:

Application of rules to existing Daily Rated Worker and Work Charged Employee:

The policy of absorption of Daily Rated Workers and Work Charged Employees shall also apply to such of the existing Daily Rated Workers and

Work Charged Employees who may not have completed seven years on March 31, 1994 but may complete by the end of subsequent financial

years and their absorption shall be considered in that financial year in accordance with these rules.

The learned Counsel appearing for the respondents submits that the petitioner is a casual worker and is not Daily Rated Worker and therefore,

his case is not covered by the Rules referred to above.

It be seen that in the order passed on December 24, 1997 in para 2(a), the petitioner has been described as Daily Worker. Petitioner in this

capacity had worked for almost three years. He was again re-employed. It is at the time of re-employment, i.e. on October 1, 1994, he has been

described as Casual Labourer. Again while passing the order dated December 24, 1997, what led the authorities to not to regularise his services

was not that he was Casual Worker, but the fact that he came to be appointed in breach of some direction issued by Chief Conservator of

Forests. This order is not in terms of Rule-4 referred to above. While passing the order dated December 24, 1997, the respondent authorities

have taken note of the services of the petitioner only after October 1, 1994. They have decided not to take note of the earlier service rendered by

the petitioner. Thus the consideration on the 1 part of respondents is not valid. The respondents-authorities in terms of Rule-8 are supposed to

regularise the services as and when an employee completes seven years of service. This is apparent from the plain reading of Rule-8. The words

used are ""but may complete by the end of subsequent financial years"". The word ""years"" has been used in plural. Therefore, as and when an

employee completes seven years then his services are to be regularised by the end of financial year. This aspect of the matter has not been noticed

by the respondents. This is required to be looked afresh.

There is another aspect of the matter.

The Supreme Court of India in the case of Des Raj and Ors Vs. State of Punjab and Ors, has held that Public Works Department is an

Industry. Telecommunication Department was held to be an industry in the case reported as G.M. Telecom v. A. Srinivasa Rao 1998 I LLJ 255

(SC). The petitioner is thus a workman for the purposes of Industrial Disputes Act, 1947.

What happens when a workman completes 240 days of service in one calendar year. This aspect of the matter be examined.

Under the Industrial Law, it is well-settled that if services of a workman who has completed more than 240 days of service in one calendar

year are terminated he is entitled to reinstatement, if his services are brought to an end without complying with:

Section 25F of the Act. As to how this period is completed is totally irrelevant. As a matter of fact, where by arithmetical count, a workman is able

to demonstrate that he had completed this period, the relief of reinstatement has to be granted. It would be apt to notice the decision given by the

Supreme Court of India. In the case reported as Santosh Gupta Vs. State Bank of Patiala, wherein the earlier view expressed in the The State

Bank of India Vs. Shri N. Sundara Money, and Hindustan Steel Ltd, v. Presiding Officer, Labour Court, Orissa 1977 I LLJ l (SC) was approved.

The relevant observations are as under:

In State Bank of India v. N. Sundara Money, (supra), a Bench of three Judges of this Court consisting of CHANDRACHUD, J. (as he then was)

KRISHNA IYER, J. and GUPTA, J. considered the question whether Section 25F of the Industrial Disputes Act was attracted to a case where

the order of appointment carried an automatic cessation of service, the period of employment working itself out by efflux of time and not by an act

of employer KRISHNA IYER, J. who spoke for the Court observed:

Termination .... for any reason whatsoever are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is

has the employee's service been terminated. Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either

by the active step of the matter or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive

definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever

produced. True, the section speaks of retrenchment by the employer and it is urged that some act of violation by the employer to bring about the

termination is essential to attract Section 25F and automatic extinguishment of service by efflux of time cannot be sufficient. Words of multiple

import have to be winnowed judicially to suit the social philosophy of the statute. So screened we hold that the transitive and intransitive senses are

covered in the current context. Moreover an employer terminates employment not merely be passing an order as the service runs. He can do so by

writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic

pull of the provision. A pre-emptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction

cannot defeat the articulated conscience of the provision.

In Hindustan Steel Ltd, v. Presiding Officer, Labour Court, Orissa, (supra), the question again arose whether termination of service by efflux of

time was termination of service within the definition of retrenchment in Section 2(oo) of the Industrial Disputes Act. Both the earlier decisions of the

Court in Hariprasad Shivshankar Shukla v. A.D. Divekar, AIR 1957 SC 121 and State Bank of India v. N. Sundara Money, (supra) were

considered. There was also a request that N. Sundara Money's case conflicted with the decision in Hariprasad Shivashankar Shukla v. A.D.

Divekar and therefore, required reconside-ration. Bench of three Judges of this Court consisting of CHANDRACHUD, J. (as he then was),

GOSWAMI, J. and GUPTA, J. held that there was nothing in Hariprasad Shivshankar Shukla v. A. D. Divekar which was inconsistent with the

decision in N. Sundara Money's case. They held that the decision in Hariprasad Shivshankar's case was that the words for any reason whatsoever

used in the definition of retrenchment would not include a bonafide closure of the whole business because it would be against the entire scheme of

the Act. The learned Judges then observed that on the facts before them to give full effect to the words for any reason whatsoever would be

consistent with the scope and purpose of Section 25 of the Industrial Disputes Act and not contrary to the scheme of the Act. In Delhi Cloth and

General Mills Ltd. Vs. Shambhu Nath Mukherji and Others, S. GOSWAMI SHIGHAL and JASWANT SINGH, JJ. held that striking off the

name of a workman from the rolls by the management was termination of the service which was retrenchment within the meaning of Section 2(oo)

of the Industrial Disputes Act.

The above view stands reiterated in later decisions in Management of Karnataka State Road Transport Corporation, Bangalore Vs. M. Boraiah

and Another, ; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and

Others, . Thus once an employee completes more than 240 days of services and there is failure to comply with the provisions of Section 25F of

the Act, then he is entitled to reinstatement and this relief can be granted even in a writ petition.

If above be the situation then petitioner who had completed more than 240 days of service in one calendar year had some rights under the

Industrial Disputes Act also.

In this regard, it would again be pertinent to refer to another decision of the Supreme Court of India reported as Workmen of American

Express International Banking Corporation Vs. Management of American Express International Banking Corporation, , wherein it has been

observed that the paid holidays and Sundays are also to be counted for determining as to whether a person has completed 240 days of service in a

calendar year.

In the face of the above situation it can again be said that a right did accrue in favour of petitioner. As his services were terminated without

compliance of provisions of Section 25F of the Industrial Disputes Act, therefore, his termination would be bad.

There are decisions to the effect that interference can be made on writ side, if a case is made out that Section 25F of the Industrial Disputes

Act, 1947 has been violated. See Mukhtyar Singh Vs. Food Corporation of India and Others, , Mahesh Bhargawa v. State 1993 MPLJ 586.

In this case the petitioner did complete more than 240 days of service. It is also apparent that the provision of Section 25F of the Industrial

Disputes Act of 1947 were not complied. Retrenchment compensation was not paid. Thus in view of the decision given by the Supreme Court of

India same thing can be said in favour of the petitioner.

These petitions are thus disposed of with the following directions.

1) The respondents would reconsider the case of the petitioner in terms of Rules of 1994 and more particularly Rule 8 of the Rules.

2) If services of the petitioner are to be terminated then this should be done after due compliance, of Section 25F of the Industrial Disputes Act.

3) If any adverse order is to be passed the petitioner be heard and adverse order if any passed be kept in abeyance.

Disposed of accordingly.