G. N. Ray, J. - (1.) Civil Appeal No. 833 of 1986 and Special Leave Petition (Civil) Nos.6597-6607 of 1986 and Special Leave Petition (Civil) No. 12528 of 1986 have been heard analogously as the common question of law and fact arise in these matters and all the above matters are disposed of by this common judgment. It appears that various persons joined service of the Government of Rajasthan in the Department of State Insurance and Provident Fund as Lower Division Clerks at the daily wage of Rs. 15 /-. Such appointment at the daily wage of Rs. 15/- was made pursuant to the approval given by the Central Administrative Department of Government of Rajasthan by Letter No. 13/ 10/ General/ Admn./ 3/84 dated 5-9-84. The persons getting such employment continued to work as Lower Division Clerk with breaks at times. But after some time their service were terminated. For example in the case of Surendra Kumar Gyani, appointment was made on 8-10-1984 and the impugned termination was effected on 30-9-1985 (afternoon) with break in service on 15-6-1985 and reappointment on 22-6-1985.
(2.) Civil Writ Petition No. 1720 of 1985 (Suresh Kumar Gyani v. State of Rajasthan) was taken up for hearing before Single Bench of the Rajasthan High Court along with a number of other Writ Petitions referred to in Schedule A to the judgment. It was contended at the hearing of the writ petition on behalf of the petitioner in the writ petitions that the Department of State Insurance and Provident Fund, Government of Rajasthan was an "industry" under S. 2(j) of the Act and the writ petitioners were workmen under S. 2(s) of the Act. The termination of the service of the writ petitioners constitute retrenchment under S. 2(oo) of the Act and the said order of retrenchment having been passed in contravention of the mandatory provisions of Cls. (a) and (b) of S. 25F of the Act inasmuch as writ petitioners were neither given one month's notice nor they had been paid the salary for a month in lieu thereof as required in Cl. (a) of S. 25F and they are also not paid retrenchment compensation as required under Cl. (b) of S. 25F of the Act. Accordingly, the impugned orders of termination passed against the writ petitioners were void and of no consequence and the writ petitioners should be treated as in service. The writ petitioners also contended that the impugned orders of termination had been passed in contravention of the provisions of S. 25G of the Act inasmuch as persons who had been recruited subsequent to the petitioners and became juniors to the petitioners in service had been retained while the services of the petitioners had been terminated. It was further contended that there was no need for retrenchment and even after the said illegal retrenchment other persons were employed on daily wage basis as Lower Division Clerks. Such writ petitions were contested by the respondents, namely, the State of Rajasthan and the Director of the State Insurance and the Provident Fund Department, Rajasthan. It was contended on behalf of the respondents that since the writ petitioners were employed in the discharge of the regal functions of the State in the department of State Insurance and the Provident Fund, Government of Rajasthan, the provisions of S. 25F of the Act were not applicable to such employees. Hence, the question of non-compliance with the requirement of retrenchment compensation and notice under S. 25F of the Act. did not arise. It was also contended that the appointments made to the writ petitioners were only a stop-gap-arrangement and was a conditional and tenure appointment and in terms of the conditions of appointment, the service of the writ petitioners was liable to be terminated without any notice. It was further contended on behalf of the respondents in the writ proceedings that since suitable persons duly recruited according to the rule by the Rajasthan Public Service Commission were not readily available and there 'was a temporary need to get the service of some Lower Division Clerks in the State Insurance and Provident Fund Department of the Government of Rajasthan, a request was made by the said Department to create certain temporary posts to stride over the temporary need of the Department. It was only on such request, about 180 posts were created by the Government purely as a temporary measure with the express condition that the service of the persons employed against such temporary posts should be terminated on the availability of the duly recruited persons by the Rajasthan Public Service Commission. It was expressly indicated in the letter of appointment that such appointment was intrinsically a temporary one and was liable to be terminated at any time without any notice. If in terms of the service, the orders of termination had been passed, no exception should be made to such orders and such orders cannot be treated as retrenchment within the meaning of S. 25F of the Act. It appears that a serious dispute was raised by the respondents that the Department of State Insurance and Provident Fund could not be regarded as 'Industry' under S. 2(j) of the Act. The learned Judge presiding over the single Bench relying on the decision of the Constitution Bench of this Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa, AIR 1978 SC 548 and also some other decisions of the Supreme Court had come to the finding that the said Department was an 'Industry' within the meaning of S. 2(j) of the Act. Accordingly, S. 25F of the Act was applicable in the matter of retrenchment and termination of service of the employees of the said Department. The learned Judge was of the view that as no specific tenure was fixed for determining the service of the Lower Division Clerks employed on daily wage basis, the respondents were required to give retrenchment compensation in accordance with the provisions of .S. 25F of the Act. But such retrenchment compensation not having been paid in accordance with the. Act, the impugned orders of termination were illegal and invalid. The learned Judge, therefore, quashed the orders of termination of service of the writ petitioners and directed that the writ petitioners would be entitled to be reinstated with full backwages.
(3.) The State of Rajasthan and the Director of the Department of State Insurance and Provident Fund thereafter preferred appeals before the Division Bench of the Rajasthan High Court. The Division Bench, however, accepted the finding of the learned single Judge that the State Insurance and the Provident Fund Department of the Government of Rajasthan was an 'Industry' within the meaning of Section 2(j) of the Act. But the Division Bench was of the view that since the termination was passed on the basis of the stipulation made in the orders of appointment, the provisions of clause (bb) of Section 2(oo) of the Act were attracted and as such the orders of termination could not be treated as retrenchment. Hence, such orders of termination could not be held as illegal and void and the Writ Petitioners were, therefore, not entitled to be treatd as in service. The Division Bench of the Rajasthan High Court considered the additional affidavit and the documents placed before the Bench. It was indicated by the Division Bench with reference to such affidavit and documents, that the State Insurance Department had received allotment orders of 80 Lower Division Clerks who had been duly selected by the Rajasthan Public Service Commission and all of them had been posted in different districts. It was also revealed that allotment of 100 more Lower Division Clerks regularly selected by Rajasthan Public Service Commission was going to be made immediately. The Division Bench has held that in view of the regular selection of the Lower Division Clerks by the Rajasthan Public Service Commission, the services of the petitioners who had been taken on daily wage basis against the temporary created 180 posts of Lower Division Clerks, had been terminated. So there was no question of any victimisation of the petitioners and they cannot claim any right to continue in service when regularly selected Lower Division Clerks by Rajasthan Public Service Commission were made available for appointments.;