Harbans Lal, J. - (1.) THIS petition has been moved by Ramesh Chander under Articles 226/227 of the Constitution of India for directing the Respondents' No. 1 to 3 to appoint him on daily wages and quash the appointments of Chhabila, Respondent No. 4 and Gaja Nand, Respondent No. 5 and for declaring his retrenchment as void.
(2.) THE brief facts giving rise to this petition are that Petitioner was appointed as daily wage worker in July, 1988 at Sub Division No. 3, Division No. 1, Public Health at Boisting Station Dhirana. He continued to work under the supervision of Respondents No. 2 and 3 till 30th November, 1990 with notional break. Before his retrenchment, he completed 240 days of continuous service. He was not allowed to work after 30th November, 1990 nor he was given retrenchment compensation. The Public Health Department, where the Petitioner worked, being an Industry, the Petitioner is a 'workman' and, as such, entitled to the benefit of the provisions of the Industrial Disputes Act, 1947 (for brevity, the Act). After his retrenchment, the Respondents -authorities have appointed other daily wage workers without complying with the provisions of the Act. Chhabila and Gaja Nand Respondents were also appointed as daily wage workers including others whose particulars are not known to the Petitioner. They as well as many others, who were appointed after the Petitioner's retrenchment, are fresh candidates. Chhabila and Gaja Nand were appointed on 1st January, 1991 and are continuing in service. While appointing them, no intimation was given to the Petitioner by any means including registered post as required under Rule 78 of the Industrial Disputes (Central) Rules, 1957 (for short, the Rules). The Respondents -authorities were bound to employ the Petitioner instead of Chhabila as well as Gaja Nand, being a retrenched employee. He was not given an opportunity while appointing Chhabila and Gaja Nand, though in view of the provisions of Section 25 -F of the Act, the Respondents -authorities were bound to appoint the Petitioner on daily wage in, preference to other persons who were retrenched employees. Dhoop Singh, Brahma Nand, Tul Bahadur and Jai Bhagwan were appointed in 1989 at Sub Division No. 3. They are still continuing in service while the Petitioner, who joined in July, 1988 has been thrown out from service in violation of Articles 14 and 16 of the Constitution. The Petitioner being a retrenched employee is being ignored just to accommodate their favourites. The vacancies of daily vage workers are there which are being filled without complying with Rule 78 of the Rules. The main questions of law involved in this writ petition are as under: (a) Whether the Respondents authorities can appoint other persons, when the services of retrenched employee like the Petitioner are available to them ? (b) Whether appointment made in violation of Rule 78 of the Rules is valid ? (c) Whether the Respondents authorities are bound to appoint the Petitioner on daily wage basis in preference to other person being retrenched employees ? (d) Whether the retrenchment of the Petitioner can be sustained without complying the provisions of Section 25F of the Industrial Disputes Act ? In joint written statement filed on behalf of Respondents No. 2 and 3, it has been admitted that the Petitioner has been engaged on daily wages/muster rolls/one month sanction basis for different periods from different dates. The period of the service rendered by him during 12 calendar months immediately preceding the date of termination of his services, works out only to 212 days as per Annexure R -l showing the breaks in his service. He has not completed 240 days of continuous service in 12 calendar months from the date he was initially appointed in July, 1988. No regular appointment letter was required to be issued to the Petitioner as he was engaged on above mentioned basis. He has been paid his wages as per rates fixed by the Deputy Commissioner, Bhiwani. He does not come within the definition of 'workman' nor the renewal of daily engagement amounts to retrenchment within the meaning of the Act. The daily wages workers are appointed keeping in view the volume of work. The Petitioner's services were terminated being no longer required. The Public Health Department is not Industry and, as such, he does not come within the definition of 'workman' and, thus, not entitled to the benefits of the provisions of the Act. Chhabila was engaged on daily wages/muster rolls/one month sanction basis on 1st December, 1990. GajaNand was engaged on daily wages/muster rolls/one months sanction basis on 8th December, 1990. His services have been dispensed with effect from 1st April, 1991. The Department has not violated any provisions of law. While engaging Respondents No. 4 and 5 on daily wages, no such intimation was required to be given to the Petitioner. Rule 78 of the Rules is not applicable to the facts of the present case. As the Petitioner was not appointed on regular basis, so he is not entitled to claim for fresh appointment. Dhoop Singh was engaged on daily wages basis on 11th September, 1989 and on account of stay granted by this Court in CWP No. 9315 of 1990, he was allowed to continue in service. Similarly, Brahma Nand, Tul Bahadur and Jai Bhagwan, who were engaged on daily wages on 7th May, 1989, 11th September, 1989 and April, 1989 were allowed to continue in service on account of stay granted by this Court in CWP Nos. 681 of 1990, 9315 of 1990 and 681 of 1990 respectively. In view of these circumstances, the action of the answering Respondent is justified and does not violate the principle of 'first come last go.' Lastly, it has been prayed that this petition may be dismissed with costs.
(3.) I have heard the learned Counsel for the parties.;