YADAV, J. - (1.) - This special appeal is directed against the judgment of learned Single Judge rendered in SB Civil Writ Petition No. 1933/1980 Hari Ram Vs. Vikas Adhikari, Panchayat Samiti, Raisinghnagar, District Sriganganagar whereby the writ petition of the contesting respondent Hariram was allowed and the present appellant was directed to reinstate the contesting respondent on the post of Jeep Driver. It is further directed by learned Single Judge that for determination of wages and computation of amount due against the present appellant, the contesting respondent may approach the Labour Court under section 33-C (2) of Industrial Disputes Act, 1947.
(2.) FACTS necessary to be noticed for disposal of this appeal briefly stated are that initially the contesting respondent was temporarily appointed as Jeep driver for a period of six months by the appellant Vikas Adhikari vide order dated 19. 8. 1978 (Anx. l) to the writ petition. Thereafter again the services of the contesting respondent were extended upto 20. 8. 1979 which is marked as Anx. 2 to the writ petition. The services of the contesting respondent were terminated by the appellant Vikas Adhikari vide his order dated 1. 10. 1980 which was impugned by the contesting respondent under Article 226 of the constitution of India before the learned Single Judge. After service of notice upon the appellant a return was filed on behalf of the Appointing Authority and it was alleged that the contesting respondent was continued in temporary service without any valid order after 20. 8. 1979 as contemplated under the Rajasthan Panchayat Smities and Zila Parishads Rules, 1959 (hereinafter referred as 'service Rules, 1959' ). It is further alleged by the appellant that there is only one sanctioned post in the Panchayat Samiti against which a permanent driver namely Raghunath was working who was dismissed from service in the year 1975. After his dismissal in the year 1975 an another person was temporarily appointed as driver between the period 1975 to 1978 who died in accident and after his death the contesting respondent was temporarily appointed on the said post. Shri Raghunath driver preferred a revision against his dismissal which was allowed by a competent authority, therefore, after reinstatement of Raghunath driver on his post, the services of the contesting respondent will be deemed to have been automatically terminated under sub rule (6) of rule 23 of the Service Rules, 1959. It is also alleged that the contesting respondent made an application for amendment in his writ petition which was allowed by the court and by way of amendment the contesting respondent raised a new plea to the effect that his services cannot be terminated without complying with the mandatory provisions as contemplated under sec. 25-F of the Industrial Disputes Act, 1947. According to learned single Judge the contesting respondent served with the appellant for more than 240 days, therefore, his services could have been terminated only after complying with the procedure prescribed under Sec. 25-F of the Industrial Disputes Act, 1947. According to the learned Single Judge since the mandatory provisions of the aforesaid Act is not complied with, therefore, the impugned termination order Anx. 5 deserves to be quashed. Learned single Judge had also recorded a finding of fact to the effect that the appointment of the contesting respondent was made on the post of Jeep Driver vide order dated 19. 8. 1978 for a period of six months and the term of appointment was extended upto 20. 8. 1979 thereafter the contesting respondent was allowed to continue on the post of driver and his case for regularisation and extension was referred to Commission. It is also held by the learned single Judge that the case of the contesting respondent for regularisation was pending consideration meanwhile the State Government allowed the revision filed by Raghunath driver and ordered for his reinstatement. The Commission neither refused his concurrence with regard to continuence of the contesting respondent and his regularisation in service nor approved for extension and regularisation of the services of the petitioner made by the Panchayat Samiti but fact remains that the contesting respondent continued in service of the appellant upto 1. 10. 1980. We have heard learned counsel for the appellant Shri Vijay Bishnoi and the learned counsel for the contesting respondent Shri O. K. Vyas at length and perused the relevant material on record. Almost all the points urged before us and also almost all the decisions cited in support thereof had been argued and placed before the learned single Judge and the learned Single Judge rightly addressed himself to those points. The learned Single Judge has given cogent and convincing reasons in support of his judgment holding that admittedly the provisions of Sec. 25-F of the Industrial Disputes Act, 1947 have not been complied with irrespective of the fact that the contesting respondent has fulfilled the condition precedent by serving the appellant continuously for more than (wo years. It is correctly held after analytical discussion by the learned Single Judge that neither the contesting respondent was given one month notice nor he was paid retrenchment compensation as required under Scc. 25-F of the Industrial Disputes Act, 1947. We are in general agreement with the finding recorded by the learned Single Judge and the instant special appeal is liable to be dismissed on this ground alone. But we propose to give additional reasons of our own in support of the judgment given by the learned single Judge extending benefit of sec. 25-F of the Industrial Disputes Act, 1947 to the contesting respondent and in quashing the impugned termination order (Anx. 5) passed by the appellant appointing authority.
(3.) IN the instant case, main thrust of the argument of the learned counsel for the appellant is that the instant case is squarely covered by the judgement given by the learned single Judge in Prabhu Dayal's case (1) according to which if request for extension of service made by the Panchayat Samiti is refused by the Commission and incumbent still continued the such continuation after six months become illegal. Therefore, such employee is not entitled to get the benefit of see. 25-F of the INdustrial Disputes Act, 1947. A close scrutiny of the Prabhu Dayal's case (supra) leads towards an irresistable conclusion that the learned Single Judge ruled that the Panchayat Samiti by its resolution to the Zila Parishad made a request for granting extension but the same was refused, therefore, continuence in service after refusal become illegal and as such benefit of Sec. 25-F of the Industrial Disputes Act, 1947 was denied in that case. In the instant case the Panchayat Samiti had made a request to the Commission for regularising and also for extending the services of the contesting respondent which was pending on the date of termination. In the present case request of extension and regularisation of service made by the Panchayat Samiti to Commission had neither been approved nor refused. According to the learned counsel for the appellant in such a circumstance, it may be presumed that the request for extension and regularisation of service of the contesting respondent made by the Panchayat Samiti was refused. The aforementioned contention of the learned counsel for the appellant is not acceptable to us inasmuch as, if in such a situation there can be two interpretation, one in favour of subject and other in favour of Stale the court of law will prefer an interpretation which is beneficial to the subject in order to avoid penal consequences to the subject and also to save him from serious prejudice which is likeky to occasion due to acceptance of an interpretation which is based on ad-hoc presumption. ;