G.S. Singhvi, J. - (1.) THIS writ petition has been filed under Article 226 of the Constitution with the prayer that the termination of the service of the petitioner be declared as illegal & be quashed & the Respondents be directed to allow the petitioner to continue on the post of daily wage casual worker & they be directed to make payment of arrears of salary as well as payment of salary for future period regularly.
(2.) THE case with which the petitioner has approached this Court is that he was initially appointed on the post of casual worker on daily wage basis with effect from 1.6.88. Thereafter he has been continuously working on full time basis as a causal worker on daily wages. He has completed more than 210 days of service without any break. In respect of this assertion that the petitioner has completed more than 240 days of continuous service, the petitioner has placed on record Annexures 1 and 2. Annexure -1 is a letter written by the Chief Officer of the Respondent Bank to the Manager of the Bandikui Branch of the Bank and Annexure -2 is a copy of the letter dated 15 -3 -90 written by the Manager of the Bandikui Branch of the Bank to the Personnel Department of the Divisional Office of the Bank at Jaipur. The petitioner's case is that as per the provisions contained in settlement dated 12 -10 -90 arrived at between the Management of the Respondent Bank and the representatives of the Union the petitioner has acquired a right to be absorbed on regular basis in service of the Bank because he fulfils the minimum required conditions specified in the agreement/settlement which makes him eligible to be absorbed in the service of the Bank. The petitioner had submitted an application for the purpose of his absorption in pursuance of the settlement dated 12 -10 -89. Instead of absorbing him in sevice, the manager of the Bandikui Branch of the Respondent Bank all of a sudden removed the petitioner from service on 3 -7 -91 by directing the petitioner not to mark his attendance. No order has been passed by him in writing but he simply prevented the petitioner from entering the office and marking his attendance. No work is being allotted to the petitioner and he is not being paid salary. The petitioner has stated that the action of Respondent No. 3 in not allowing him to mark attendance in not allowing him to work and in not paying him salary clearly shows that the petitioner's service has been terminated. This action of Respondent No. 3 in terminating the service of the petitioner clearly amounts to retrenchment interim of Section 2(00) of the Industrial Disputes Act, 1947 (for short '1947 Act'). Before terminating the service of the petitioner, the Respondents have not complied with the mandatory requirements of Section 25F of 1947 Act and therefore, the action of the Respondents in terminating the service of the petitioner is liable to be declared as void. The further case of the petitioner is that he has acquired a right to be absorbed in the service of the Bank in accordance with the conditions contained in the settlement date 1 -10 -89. He has completed more than 240 days of service oh the date of settlement and, therefore, he is entitled to be absorbed in the service of the Bank.
(3.) THE first argument advanced by Shri Sharma, learned Counsel for the petitioner, is that after his appointment from 1 -6 -88, the petitioner has been regularly discharging the duties as a casual worker. He is being paid salary on per day basis. He has been doing full time work. He has completed more than 240 days of service. The petitioner falls within the scope of the term workman as defined in Section 2(s) of 1947 Act. The Respondent Bank is an 'industry'. Termination of service of the petitioner or his removal from service amounts to retrenchment and therefore, before bringing about termination of the service of the petitioner on 3 -7 -91, it was imperative for the respondents to have given him a notice or pay in lieu of notice, as required by Section 25F(a) and also to have paid him compensation in terms of Section 25F(b). These two provisions have not been complied with by the Respondent No. 3 before directing the petitioner not to mark his attendance and before stopping payment to salary to the petitioner. Shri G.K. Garg and Shri Vijay Singh, learned Counsel for the Respondents on the other hand argued that the very appointment of the petitioner was illegal. The Manager of the Respondent Bank who was posted at Bandikui Branch, was not authorised to engage a casual worker on daily wage basis. Since the appointment of the petitioner itself was invalid the petitioner is not entitled to claim any relief from this Court under Article 226 of the Constitution of India.;