- (1.) THE submission of the learned counsel for the petitioner is that there is a gross violation of the provisions of Rules 77 and 78 of the Industrial Dispute (Central) Rules 1957 and Section 25-H of the Industrial Disputes Act, 1947.
(2.) BRIEF facts as alleged by the petitioner are that the petitioner was appointed as Ward Boy in Mobile Surgical Unit on 12. 09. 1989 and that his services were terminated on February 2, 1990 by a verbal order and that it is only on March 4, 1992 that the petitioner has come to know that other persons have been given fresh appointment w. e. f. 13. 10. 1990. Notice for demand of justice was sent by the petitioner on 11. 03. 1992, in which these facts were mentioned. The matter was examined by the Director, Mobile Surgical Unit Rajasthan, Jaipur and the counsel for the petitioner was informed vide letter dated 28. 03. 1992 that the petitioner was never appointed on the post of Ward Boy on daily wage basis as the post of Ward Boy was not lying vacant at that time. It was informed that he was engaged as casual labour on 14. 09. 1989 for loading and unloading work for the camps and his wages have already been paid to him for his working days against lump sum amount and that the petitioner remained absent from his duties thereafter. It was also informed that the question of maintaining any seniority list of the casual labour does not arise since the Surgical Camps are organised in the rural areas for providing medical facilities to the poor villagers and as and when casual labours are needed for loading and unloading work for the above purpose, the casual labour up to a particular number are engaged out of the available labourers in the campus of central store. Such labourers are paid their wages for the days they have actually worked and this type of casual labours are not engaged for a continuous period. The petitioner, thereafter has again written a letter on 1. 04. 1992 and the reply of that letter was sent with a request to send copy of the appointment order of the petitioner on the post of Ward Boy, by which he is alleged to have been appointed on 12. 09. 1989 and a copy of termination order may also be sent. The submission of the learned counsel for the petitioner is that in accordance with the provisions of Section 2 (oo) of the Act, the termination of service on 2. 02. 1989 amounted to retrenchment and that in accordance with the provisions of Section 25-H where any workman is retrenched and the employer proposes to take into his employment any person then he has to give opportunity to the retrenched workmen who offer themselves for re-employment, to give preference over the other persons. It has also been submitted that the petitioner has offered himself for the services and whenever there is a breach of the provisions of the statutory Act, the provisions of Articles 14 and 16 will be applicable. It is also submitted that it is the duty of the employer to maintain a list of seniority of the workmen in accordance with Rule 77 of the Industrial Disputes (Central) Rules, 1957 and to follow the procedure laid down under rule 78 of the said Rules. Reliance has been placed on a Division Bench decision of this court in the case of Rajasthan Pul Nigam Workers Union vs. Rajasthan State Bridge Construction Corporation Ltd. , D. B. Civil Special Appeal No. 6/90 decided on September 27, 1991, wherein the Division Bench have held that the delay in adjudication of the disputes not only causes injury to the individual employee but also inflicts avoidable loss to the employer. Public exchequer has to bear the burden of back wages which is required to be paid to the employees despite the fact that for the entire period he may not have worked. It is, therefore, in public interest also that the court must invoke its extra-ordinary jurisdiction and entertain the writ petition where violation of Section 25-F or Sec. 25-G of 1947 Act is apparent from the record of the case and no useful purpose is served by asking the party to avail the alternative remedy. It was also observed in the said judgment that when question of violation of Sections 25-H and 25- G is raised in the writ petition, the court has always to bear in mind that the basic principles on which these two provisions have been enacted are nothing but the principles which form part of the equality clause contained in Articles 14 and 16 of the Constitution of India. It was further observed that only in extremely rare cases where there is a serious controversy on the questions of fact, the Court cannot throw a writ petition involving violation of Sections 25-G and 25-H of the Act. Reliance has also been placed on the decision of Surya Prakash Sharma vs. Rajasthan Text Book Board, Jaipur, S. B. Civil Writ Petition No. 2829/89 decided on 04. 04. 1991, wherein this court has held that the provisions of Rules 76 and 77 are altogether different and they are in dependent of each other. It was observed that in Rule 78 there is a provision that even after the retrenchment a person who has been retrenched is having a right of re-employment and that a list is pasted on the notice board regarding seniority amongst the retrenched persons. Rule 78 directs that at least 10 days before the date on which the vacancies are to be filled, the employer shall arrange for the display on a notice board in a conspicuous place in the premises of the industrial establishment details of those vacancies and shall also give intimation of the vacancies by registered post to all retrenched workmen eligible to he considered. Reliance has also been placed on the decision of this court in Ram Dayal vs. R. S. R. T. C. (1), wherein it has been held that the rule envisages that the list which is required to be prepared under Rule 77 should be a complete list of the category of workers who work in a particular branch, so that it may be ensured that the provisions of Section 25-G have been complied with. It has been further held that if Section 25-G is deviated then specific reasons have to be recorded.
(3.) IN the present case, from the documents produced by the petitioner, it is evident that the petitioner was never appointed on the post of Ward Boy on 12. 09. 1989 as alleged by him. The petitioner was engaged as casual labour on 14. 09. 1989 for loading and unloading work for Camps of Mobile Surgical Unit. It is also clear that the petitioner has not continuously worked and in a case where the appointment is made of a casual labour on day to day basis then the contract would be considered for a day for which he has worked. It cannot be considered to be a continuous service. IN the judgment of Rajasthan Pul Nigam Workers (supra) it has been observed that in course of time the Courts have themselves evolved certain self imposed limitations on the exercise of the powers under Article 226 of the Constitution of INdia and the discretion to issue a writ, order or directions can be exercised for refusing issuance of such writ, order or direction if the writ petition suffers from delay or laches or the conduct of the petitioner disentitles him to any relief or issuance of writ would amount to restoration of illegality or violation of any constitutional or legal provision or when there are seriously disputed questions of fact which cannot be determined without evidence or where an equally efficacious alternative remedy is available. In the present matter, this itself is a disputed question of fact as to whether the petitioner was appointed as a casual labour or was appointed as Ward boy. The powers under Article 226 of the Constitution could be exercised when further investigation of facts is not required. The mistake should be patent from the record itself. The position, as it appears from the documents produced, is that the petitioner was not in the continuous service and was a casual labour for the period from 14. 09. 1989 to 2. 02. 1990. It is not known nor it has been stated in the writ petition as to for how many days during this period the petitioner has worked. Besides this, after 2. 02. 1990 the writ petition has been filed only on 6. 07. 1992 and even according to the petitioner, if other persons were appointed on 13. 12. 1990 then why he was sleeping for all this time and for this reason also, the petitioner is not entitled for any relief. It has been mentioned in the reply submitted by the respondents to the learned counsel for the petitioner that the petitioner was only a casual labour and the payment has already been made for the days he has worked. The question of maintaining the seniority list of a casual labourers who are appointed on day to day basis will not arise. Whether the petitioner was appointed as a casual labour for loading or unloading work on daily wage basis or was appointed as a Ward Boy itself is a disputed question of fact and the respondents have already denied the assertion of the petitioner that he was appointed as Ward boy. It has further been mentioned that there was no post of Ward boy lying vacant during the period for which the petitioner has worked. ;