Veerender Singh Siradhana, J. - (1.) IN the instant intra -court appeal, the appellant/Jaipur Development Authority, Jaipur (hereinafter referred to as the 'JDA', for short), has assailed the legality, validity and correctness of the judgment and order dated 10th January, 2006, passed by the learned Single Judge on the writ application of the respondent/petitioner wherein termination of service of the respondent/petitioner has been quashed and set aside for violation of Section 25 -F of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act of 1947', for short). The learned Single Judge has allowed reinstatement and all consequential benefits notionally as extended to one Kamal Kaushik, who is identically situated and his case was adjudicated upon vide order dated 29th November, 1991.
(2.) BRIEFLY , the indispensable essential material facts necessary for appreciation of the controversy raised are: that the respondent/petitioner was initially engaged by the JDA on the post of Electrical Supervisor on work -charged basis in December, 1983 and worked for 3 months. The respondent/petitioner was again engaged in January, 1985 and worked upto May 1985. Again, the engagement was made on 15th September, 1987 on a consolidated amount of Rs. 750/ - per month, which continued upto 24th August, 1988, when the termination was given effect to. One Kamal Kaushik, who too was engaged along with the respondent/petitioner, his services were also dispensed with by the appellant/JDA; approached this Court by way of S.B. Civil Writ Petition Number 1810 of 1989. Vide judgment and order dated 29th November, 1991, the termination of service of Kamal Kaushik was held to be in violation of Section 25 -F of the Act of 1947 and therefore, a direction for reinstatement with consequential benefits was ordered. However, in regard to the claim of back wages and arrears, the matter was left to be determined before the forum under the Act of 1947. Intra -Court Appeal Number 168 of 1992, against the judgment and order dated 29th November, 1991; in case of Kamal Kaushik, was dismissed as infructuous on 13th July, 2001. Therefore, the respondent/petitioner prayed for same benefit and order as in the case of Kamal Kaushik. The prayer has been granted vide impugned judgment and order dated 10th January, 2006. The learned counsel for the appellant/JDA reiterating the pleaded facts strenuously argued that the respondent/petitioner was engaged on contract basis and for a fixed period as is evident from the order dated 15th December, 1987 (Annexure -3) and order dated 25th February, 1988 (Annexure -4). The learned counsel would further submit that but for the period as detailed out in the order of appointment, the respondent/petitioner did not work during the intervening period. According to learned counsel for the appellant/JDA, the services of the respondent/petitioner stood terminated as per the terms and conditions, specifically stipulated in the order of appointment, which also detailed out the period of engagement on contract basis. The statement made by the learned counsel for the respondent/petitioner for having continuously worked with effect from 1983 to 1988, was emphatically denied in absence of any documentary evidence and in the face of orders of engagement for a specific period on contract basis with specific terms and conditions mentioned therein. The judgment and order dated 29th November, 1991 passed by this Court in the case of Kamal Kaushik is, per incuriam, since the plea of applicability of Section 2(oo)(bb) of the Act of 1947 was not raised, which excludes the applicability of the Act of 1947, to the cases where the termination of service of a workman is a result of non -renewal of the contract of employment between the employer and the workman concerned, on its expiry or of such contract being terminated under a stipulation in that behalf contained therein. The learned counsel further contended that an illegality committed or a wrong order passed in one case, cannot be pleaded as a legally tenable plea for perpetuating an illegality. Moreover, such a plea cannot lay a foundation for an order contrary to law for compelling a public authority, even if an erroneous order passed by this Court in another case was complied with. The appellant/JDA cannot be precluded from challenging the order passed in the instant case at hand, on the ground that the identical issue decided in the case of another candidate was decided; though in ignorance of the mandate of Section 2(oo)(bb) of the Act of 1947. To reinforce the submissions put forth by the learned counsel for the appellant/JDA, reliance was placed on the opinion of the Hon'ble Supreme Court in the case of Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain & Ors.: : (1995) 1 SCC 638; M. Venugopal v. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh & Anr.: : (1994) 2 SCC 393 and State of Rajasthan & Ors. v. Rameshwar Lal Gahlot: : (1996) 1 SCC 638.
(3.) PER contra, learned Senior Counsel, Mr. R.K. Mathur, assisted by Mr. Aditya Mathur, supporting the impugned judgment and order of the learned Single Judge emphasized that the issue has already been raised, considered and decided in the case of Kamal Kaushik, as is evident from the order dated 29th November, 1991, which has been followed by the learned Single Judge while dealing with the case of the respondent/petitioner. Learned counsel further stressed that the Special Appeal preferred by the JDA against the judgment and order dated 29th November, 1991 in the case of Kamal Kaushik, was dismissed as infructuous by the Division Bench and therefore, there is no reason to take a view different from the one earlier adopted in the similar case of Kamal Kaushik. According to learned Senior Counsel, the appellant/JDA having accepted the verdict of this Court in case of Kamal Kaushik, is estopped to raise plea of exclusion of application of the provisions of the Act of 1947. Further, equals must be treated equally. Since the case of the respondent/petitioner is not different from that of Kamal Kaushik, the appellant/JDA cannot be allowed to approbate and reprobate.;