- (1.) THE petitioner has claimed that he was appointed as Beldar in January, 1987. He has completed 240 days of working during last 12 calendar months. He was appointed in the P. W. D. and at the time of filing of the writ petition he was working at Sikar-Salasar Road. THE petitioner has enclosed Schedule 'a' in support of his assertion that he had worked for 240 days. THE work on which the petitioner was engaged comes under the jurisdiction of Executive Engineer, P. W. D. , Division Sikar. THEre are four sub-divisions under him. THE work under those sub-divisions has not been completed. Notwithstanding that, the petitioner has been retrenched by an oral order dated 16. 7. 88. No notice was given to the petitioner nor any compensation has been paid to him. THE rule of last come first go has not been followed. THE petitioner has stated that termination of his service is liable to be declared as void because of violation of Sec. 25 F read with Sec. 25 B of the Industrial Disputes Act, 1947. THEre has also been violation of the provisions contained in rules 77 and 78 of the Rajasthan Industrial Disputes Rules, 1958. Action of the respondents also amounts to violation of the rights guaranteed to the petitioner by Articles 21, 39 (a) and 41 of the Constitution of India. THE petitioner has been deprived of the only source of livelihood. His fundamental right of equality has been infringed. On that premise, the petitioner has made a prayer that the respondents be directed not to retrench him and to recognize the petitioner as a semi permanent employee under the Industrial Disputes Act. A further prayer has been made for quashing of the verbal order of retrenchment.
(2.) A reply to the writ petition has been filed by the respondents in which it has been asserted that the petitioner was engaged on daily wages on muster roll basis as Beldar. He was so engaged on purely temporary basis with effect from 1. 1. 87. The respondents have denied the statement of the petitioner regarding his having completed 240 days during last 12 calendar months. It has also been stated that the petitioner has himself stopped coming at work with effect from 1. 8. 88. He was not engaged in the P. W. D. He mostly worked under the schemes of the Government relating to famine relief works and thereafter for few days in the Maintenance Department. Regarding the period of working of the petitioner, a statement showing the actual days of working has been placed on record as Annexure R-l and on that basis it has been stated that the petitioner has worked for 215 1/2 days in Famine Relief Works and 9 days in Maintenance Department. There were 38 Sundays and one paid holiday. The working of the petitioner during Famine Relief cannot be treated as an employment under the Government. It has also been stated that the provisions of the Industrial Disputes Act are not applicable in view of the Government notification dated 21. 5. 88, It has then been stated that each sub-division is a separate and independent unit for the purposes of rule 4 of the Rajasthan P. W. D. (B&r) , including Gardens, Irrigation, Water Works and Ayurvedic Departments Work Charge Employees Service Rules, 1964. Reiterating that the petitioner has himself stopped coming on work from 1. 8. 88, the respondents have asserted that it cannot be treated as a case of retrenchment. Regarding the alleged date of retrenchment, the respondents have stated that the petitioner had worked between 16. 7. 88 to 30. 7. 88 and, therefore, it cannot be said that the petitioner was retrenched with effect from 16. 7. 88. The respondents have denied that the petitioner's fundamental or legal rights have been infringed on account of alleged termination of his service. The respondents have also averred that the petitioner has failed to avail a very effective remedy available to him under the Industrial Disputes Act, 1947. Shri Joshi, learned counsel for the petitioner has argued that the total period of working of the petitioner was 239 1/2 days during 12 calendar months counted from the date of termination of his service. Thus, it must be taken that the petitioner has worked for 240 days in 12 calendar months. Before effecting retrenchment of the service of the petitioner, neither any notice nor pay in lieu thereof nor the retrenchment compensation were either paid or offered to the petitioner. Thus, there has been a clear violation of the provisions of the Industrial Disputes Act. Shri Joshi argued that the termination of the service of the petitioner amounts to breach of the fundamental right of the petitioner guaranteed by Art. 21 of the Constitution of India. In support of his submission that even Sundays and holidays should be counted as the period during which the petitioner has worked, Shri Joshi invited my attention to the decision of the Supreme Court in Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation, (1) Babulal Sharma vs. University of Ajmer (2), Chaggan Lal vs. Panchayat Samiti and anothers He also referred to the decision of this Court in Devendra Salolia Shri Ashok Parihar, learned Addl. Govt. Advocate, argued that when disputed questions of fact are involved in this case and therefore, the High Court will not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India particularly when an effective alternative remedy is available to the petitioner for vindication for his alleged rights under the Act of 1947. Shri Parihar then argued that the pleadings in the petition are absolutely laconic and the petitioner has made erroneous and contradictory averments in the petition. Shri Parihar then submitted that the petitioner has himself stopped coming to the work and, therefore, it is not a case of retrenchment at all but a case of voluntary abandonment of service. Shri Parihar then urged that the provisions of Industrial Disputes Act are not applicable in view of the notification issued by the Government. Lastly Shri Parihar argued that it is a case which is clearly covered by Section 2 (00) (bb) of the 1947 Act. Before I deal with the contention of Shri Joshi in respect of the violation of sec. 25 F, I consider it proper to observe that the petition filed by the petitioner contains several contradictory pleadings. This petition was filed on 13. 3. 89. In para 4 of the petition the petitioner has stated that he is working at Sikar-Salasar Road. In para 9 he has stated that he has been retrenched by verbal order dated 16. 7. 88 without issuance of any notice. It is not possible to understand as to how the petitioner can be treated as working at Sikar-Salasar Road as on 13. 3. 89 when he had allegedly been retrenched by verbal order dated 16. 7. 88. The petitioner has made a prayer that the respondents be directed not to retrench him from service and to recognize him as a semi permanent workman under the Industrial Disputes Act and at the same time has prayed that the verbal order of retrenchment issued by respondent No. 1 be quashed. No provision of law has been cited under which the petitioner can claim declaration as a semi permanent workman. Learned counsel could not point out any provision of the Industrial Disputes Act which entitles him to claim such status. If a prayer has been made for quashing of the order of retrenchment it is not possible to comprehend as to how there could be a prayer for restraining the respondents from retrenching the petitioner. Admittedly, there has been a lack of care in the filing of the petition. Rather the petitioner has been prepared casually. Now coming to the contention of Shri Joshi it may be observed that before a person can claim that termination of his service by oral or written order be declared as unlawful and void on the ground of violation of Sec. 25f, he has to show by specific pleadings that he is a workman under Sec. 2 (S) of the 1947 Act; that he has been in continuous service for a period of one year; that no notice or pay in lieu thereof and retrenchment compensation have been given to him as required by Sec. 25f (a) and (b) of the Act of 1947. The term " continuous service" has been defined in Sec. 25b of 1947 Act. Section 25b (1) & (2) read as under :- "25-B : Definition of continuous service - For the purposes of this Chapter - (1) A workman shall be said to be in continuous service for a period if he is , for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman; (2) Where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than - (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than - (i) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case. " A perusal of the provision quoted hereinabove show that a workman shall be deemed to be in continuous service if he has actually worked under the employer, for a particular period. The crucial phrase is 'actually worked under the employer'. Can it be said that even though the employee does not perform his duties during Sundays and holidays, he should deemed to have worked under the employer. The dictionary meaning of the work 'actual' is "existing in act or fact, real" and the word "actually" is "in act or fact, really" (The Shorter Oxford Dictionary ). This question arose for consideration of the Supreme Court in Workmen of American Express International Banking Corporation's case (Supra ). Their Lordships of the Supreme Court examined the scope of Sec. 25b and 25f in the context of Secs. 16, 17 and 18 of the Delhi Shops and Establishments Act, 1954. Those provisions of Delhi Shops and Establishments Act postulated compulsory rest in every week and also the benefit of closed days to the workman and also that no deduction shall be made from the wages of the employees on account of closed days. After observing that sec. 25f of the '1947 Act' is plainly intended to give relief to retrenched workmen, the Court held that the expression 'actually worked under the employer' cannot mean those days only when the workman worked with hammer, sickle or pen, but necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders, etc. Their lordships further observed that there was no reason to give a restricted meaning to the expression 'actually worked under the employer'. In D. B. Civil Writ Petition No. 1070/88 Murari Lal vs. R. S. R. T. C. decided on 07. 12. 88, a Division Bench of this Court held that Sundays and holidays can be included within the expression 'actually worked under the employer'. That was a case in which the Standing Orders of the Rajasthan State Road Transport Corporation contained provisions which were similar to those of Delhi Shops And Establishments Act, 1954.
(3.) IN Babulal Sharma vs. University of Ajmer's Case (supra), a learned single Judge after placing reliance on the decisions of the Supreme Court in Workmen of American Express INternational Banking Corporation's case (supra) held that since the University is a 'state' under Article 12 of the Constitution, the persons working in the University regularly can claim benefit, just like other employees of gazetted holidays and Sundays and a person cannot be compelled to work throughout the week. He must get at least Sunday as rest day and this will also imply to the temporary worker who has worked in the University and the temporary worker in the University is also entitled to the benefit of holidays. In Chhagan Lal vs. Panchayat Samiti and another (supra), the workman had claimed that he had worked continuously between 27. 4. 88 to 10. 1. 89. He has produced a certificate of Vikas Adhikari which contained a mention that the employee had worked regularly between 27. 4. 88 to 10. 1. 89. Placing reliance on the decision of the Supreme Court in Workmen of American Express's case (supra), a learned single Judge of this Court held that Sundays and other paid holidays have to be taken into account for the purpose of reckoning the total number of days for which the workman is said to have actually worked. In D. B. Civil Special Appeal No. 41/89 University of Ajmer vs. Munna Lal Sain and another decided on 18. 10. 89, a Division Bench of this Court while reversing the decision of a single Judge held that learned Single Judge was not correct in counting the period during which the employee was not paid. After making a reference to the decision of the Supreme Court in Workmen of American Express's case, the Division Bench observed as under : - "in view of the said decision it must be held that the day for which the workman has been paid wages has to be counted as the period he actually worked under the employer even though the workman has not actually worked on that day on account of the day being a holiday or Sunday or other non-working day. In view of the said decision only the days for which the petitioners were paid their wages could be counted for calculating the period of 240 days required for invoking the protection of Sec. 25f of the Act and the days for which the petitioners were not paid any wages could not be included for calculating the said period. Shri Sharma, the learned counsel for the petitioners, has however, urged that the said decision of the Supreme Court only refers to Sundays and that in the present case the petitioners had actually worked on Sundays and they have been paid for Sundays and that they were given a holiday on another day in the week and, therefore, the said decision would not be applicable. In our view, it does not make any difference as to whether the non-woking is a Sunday or any other day in the week. What is to be seen is as to whether the workman has been paid wages for the non working days. If he has been paid wages for the non-working day they it has to be included but if he has not been paid for the non working day then it has to be excluded. " ;