MADAN, J. - (1.) IN this special appeal, order dated 03/08/1998 of the learned Single Judge passed in SBCWP No. 6999/93 has been challenged by the appellant workman. IN the writ petition the appellant had assailed order of his termination dt. 23/11/93. Undisputably the appellant was initially appointed as Driver on-daily wages by order dt. 20/6/1987, whereafter his services were dispensed with on 03/09/1987, but again appointed by another order dt. 10/9/1987 on daily wages basis as Driver and he continued till his services were dispensed with on 04/05/88. It is the case of the appellant that under artificial breaks, again and again he was given fresh appointments and his services were dispensed with. After his services were dispensed with on 04/05/88, he was then appointed on 07/05/88 and he continued in service but without assigning any reason, his services were terminated by order dt. 07/11/88, against which he had filed writ petition No. 4654/88, which was allowed by this Court on 9/10/1991 quashing order of his termination dt. 07/11/88 & directing his reinstatement with consequential benefits, against which, Special Appeal No. 564/92 was filed but the same was dismissed on 08/09/93. It is the case of the appellant that despite the contempt petition, no order reinstating him with consequential benefits. was issued by the respondent department till the SLP was dismissed by the Supreme Court. Ultimately he was taken in service but on daily wage Rs. 24/- inasmuch as the payment was made by deducting wages of national holidays and Sundays. However, back wages were directed by the respondent department to be paid to the appellant by order dated 23/11/1993 and by another order of the same date, his services were dispensed with by giving one months' wages in lieu of notice u/s. 25f of the INdustrial Disputes Act, 1947 (for short the Act ). Against his termination order dt. 23/11/93 the appellant filed writ petition No. 6999/93 which was dismissed by the learned Single Judge under the impugned order. Hence this special appeal.
(2.) WE have heard the learned counsel for the parties and perused the impugned order of the learned Single Judge so also other documents brought on record. As per initial appointment order dt. 20/06/87 it was specifically stated that the appellant was given purely temporary appointment under N. R. E. P. scheme on some terms & conditions, inasmuch as he was on daily wages basis on administrative exigency viz. as and when the work was required under the N. R. E. P. scheme, the employees were taken an work and dispensed with whenever not required. Hence it was the case of he respondent department that it cannot be said that the appellant was purposely given artificial breaks in service and that apart, since the appellant was kept or a work which had come to end, so his services were rightly terminated. According to the respondent Department as stated in the counter to the writ petition, since there was no permanent post available, as was made clear to the appellant, he could not have been given appointment in regular pay scale, and as a matter of right, the appellant cannot claim permanent absorption or appointment in regular pay scale. As regards the appellant's contention that in earlier writ petition decided by this Court on 09/10/91, he was ordered to be reinstated on the post which he was holding prior to his termination, in our considered view, this Court allowed writ petition only on the ground that he would be entitled to benefit of Section 25f of the Act because provisions thereof were not followed while terminating him. This Court has never observed that his appointment was regular or that he is, entitled to continue as permanent employee of the department. Thus it is clear from the order of this Court that his prayer with regard to giving him regular absorption or regularisation of his service was declined. Hence it is not open to him to claim benefit of earlier judgment of this Court on the ground that he is entitled to regularisation since he was given temporary status or that he should be reinstated by giving him regular pay scale. In our opinion, it is not open to the appellant to raise issue which stood decided by this Court in earlier writ petition. Thus only benefit which he was given by judgment in earlier petition was with regard to compliance of Section 25f of the Act. The same question has now been agitated again by way of the writ petition as well as this appeal, which cannot be allowed. Moreover the petition since involves disputed questions of fact which require adjudication on appreciation of the evidence by raising an industrial dispute before the appropriate forum, which cannot be done by way of the writ petition,as rightly held by the learned Single Judge in the light of the decision of the Full Bench in Gopal Lal Teli's case (1), the ratio of which is fully attracted to the present case. We have perused the decision relied upon by the learned counsel for the appellant, viz. Deepak Srivastava vs. Oil India Ltd. It was a case where the writ petition was dismissed by the learned Single Judge on the ground that the petitioner had alternative remedy before the Labour Court, which he did not avail of, but in special appeal preferred against it, the Division Bench of this Court set aside the judgment of the Single Judge rejecting petition in limine and thereby the case was remanded for being heard out on merits. Since the learned Single Judge in that case had declined to go into the merits and placed reliance upon the ratio of Gopal Lal Teli's case (supra) the Division Bench of this Court remanded the matter back to the Single Bench, but the Division Bench took note of the fact that it was a case where there was no proper inquiry in case of the petitioner in accordance with law and rather in utter disregard to the mandatory provisions of a just and proper enquiry and depriving him of an adequate opportunity to defend himself in the domestic inquiry and to record his statement tendered in defence against the allegations given out in the charge sheet issued against him. Thus it was a case where after the disciplinary authority had punished the petitioner, the appellate authority when took up the matter had also affirmed the findings of the disciplinary authority. In this view of the matter, the Division Bench held that the writ petitioner had really made out a prima facie case for trial which warranted a full throated hearing in a contested proceedings. But in the present case, the termination has resulted after compliance of Section 25f of the Act as is the case pleaded by the respondent department, therefore, against which only remedy is to approach the Labour Court as rightly pointed out by the learned Single Judge, in view of the disputed questions of fact raised by the petitioner. So without disputing the law laid down by the Division Bench in the decision cited by Ms. Gayatri Rathore (supra), the facts being distinguishable, the decision in Deepak Srivastava's case (supra) does not render any help in advancing the case in favour of the appellant. In this view of the matter, we do not find any error in the impugned judgment of the learned Single Judge which warrants no interference in this special appeal.
(3.) RESULTANTLY, we find no merit in any of the contentions raised by the learned counsel for the appellant and consequently, this special appeal fails and is hereby dismissed. The impugned judgment of the learned Single Judge is affirmed. No order as to costs. .;