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Judgment
Bhawani Singh, Chief Justice.
Through this Letters Patent Appeal, petitioner has challenged the judgment of Single Judge passed in SWP No. 218/1988 dated 22051993.
Before proceeding to deal with the questions arising for determination in this case, narration of material facts of the case may be given.
Petitioner was appointed Cleaner in 1973. Therefore, he was promoted Driver on October 23, 1974 in the Government Lumbering
Undertaking and continued to serve there upto 1978, when he handed over the charge of Truck No. JKB5379 to Janki Nath, Driver and
proceeded on medical leave. In 1979, Government Lumbering Undertaking was converted into Jammu and Kashmir State Forest Corporation.
Petitioner approached this authority and he was reemployed vide order SFC 44 of 1987 dated 28051987. Petitioner claimed seniority from his
initial appointment as Driver on October 23, 1974 and the arrears of pay for the unpaid period. Defence of respondents is that petitioner worked
in Government Lumbering Undertaking as Driver till 1974, whereafter he abandoned the work and did not join the service despite the fact that he
was asked to do so repeatedly. Accordingly, the vehicle was handed over to Janki Nath, Driver. Petitioner was taken into service at his request
and net sequel to the filing of writ petition No. 90.7 1987. It is also submitted that petitioner waived his claim for seniority and arrears through an
affidavit and undertaking. That is why, his case for reemployment was considered. Therefore, petitioner is estopped from demanding arrears of pay
and seniority. This contention stands repudiated by the petitioner when he states that he did not accept conditional order of employment.
Single Judge rejected the claim of petitioner holding interalia that petitioner had waived his right to past arrears and seniority by execution of
undertaking, which specified three conditions subject to which the petitioner has joined the service of respondents.
Shri A.M. Khan contended that the petitioner had proceeded on medical leave, therefore, respondents were not justified in stating that the
petitioner had absconded the service. Learned counsel contended that inquiry in case of abscondence by petitioner is essential. Reliance was
placed on Jai Shanker V. State of Rajasthan (1986 1 SCR 825). Alappat Narayana Menon Vs. State of Kerala represented by the Chief
Secretary to Government Trivan drum and others (1977 (2) SLR 656). Tek Chand Vs. State of Himachal Pradesh and others (1987 (3) SLJ 210.
National Insurance Co. Ltd. Vs. Sh. Romesh Kumar Gandotar (1988 SLJ NOC 1). State Vs. S. Qamar Ali (1994 SLJ 372) and Ahmad Hussain
Vs. State (1996 SLJ 282). Except for supporting the judgment of Single Judge, respondents have not produced any record demonstrating that the
petitioner had absconded the service and the lapse was inquired into by the Government Lumbering Undertaking. Therefore, it is not difficult to
conclude that petitioner had gone on medical leave due to accident during service in 1978 and he had not absconded the service. Thereafter, State
Forest Corporation came into being and all the employees of Lumbering Undertaking became the employees of the State Forest Corporation.
Contention that petitioner has absconded after giving up his service and was reemployed with the corporation at his request does not convince us
in case the matter is examined in the context of facts giving rise to the formation of State Forest Corporation form State Lumbering Undertaking.
When all other employees of the Lumbering Undertaking became the employees of State Forest Corporation on its formation, petitioner also
became the employee of State Forest Corporation. It appears that at the time of formation of State Forest Corporation, the petitioner was not
taken to be in the service of State Lumbering Undertaking taking him absent form the department. He was reemployed so that payment of arrears
and giving of past seniority could be avoided. That is why undertaking was taken from him. Can there by wavier of fundamental right ? Certainly
not, proposition being well settled in Behran Vs. State of Bombay (AIR 1955 SC: 123), BashesharVs. I.T. Commissioner (AIR 1959 SC: 149)
and Olga Vs. Bombay Corporation (AIR 1986 SC: 180). Further, being out of employment, petitioner could hardly negotiate with the respondents
at his terms. With this background, he may have agreed to terms, which were definitely prejudicial to his interest as contended by Shri A.M. Khan,
learned counsel for him. Consequently, the contention that the petitioner was permitted to join the Forest Corporation on reemployment, after
waiving his right to past arrears and seniority cannot be accepted in the totality of the circumstances brought to our notice by the learned counsel
for the parties.
What emerges out of the examination of the matter is that petitioner was in the service of State Lumber Undertaking and continued to be so till
State Forest Corporation was formed. Like other employees, he became employee of the State Forest Corporation as per Government Order
No. 187FST of 1979 dated June 30, 1979. Therefore, he shall be entitled to the following service benefits:
(a) His seniority as Driver shall be reckoned from 23101974 and fixed accordingly without interruption;
(b) He shall be entitled to salary of Driver for the period it remained unpaid by the State Lumbering Undertaking till its existence and thereafter by
State Forest Corporation upto 28051987 when he reported for duty. However, in both cases, ultimately responsibility for payment of all the
arrears including pay revisions, allowances etc. shall be of State Forest Corporation which took over the assets and liabilities of the erstwhile State
Lumbering Undertaking.