BALIA, J. - (1.) THE facts of this case are identical to the facts involved in Kailash Chandra vs. State of Raj. & Ors. (1), In addition thereto, another fact which has come on record and which has not been disputed is that after the termination on purported ground that work for which the petitioner have been appointed has come to end, another person namely one Prakash Chandra has been appointed as Driver to discharge the duty which the petitioners were discharging under the Municipal Board, Rajsamand until first week of December, 1993.
(2.) THE other facts which emanate clearly from the record are that the petitioners were appointed as Driver on daily wages and continued as such for more than one year when their services were terminated verbally w. e. f. 02. 12. 1993. THE petitioners performed their duties until fir. 12. 1993, however, salary was paid to them only upto August, 1993. THE immediate cause of termination was stated to be the demand for better service conditions by claiming fixation in the regular pay scale and the benefit of Dearness Allowance available to the regular employees. THE appointment was on muster roll. It was alleged that before termination neither notice nor salary in lieu of notice nor retrenchment compensation has been paid, the remuneration in lieu of notice had been offered after terminating services vide letter dated 22. 12. 1993 stating that the services have already been terminated and salary in lieu of notice is being sent alongwith the letter. THE cheque of Rs. 1,040/- dated 22. 12. 1993 had been attached alongwith the said letter. About these facts there is no dispute except the bald assertion in the reply that as per the directions issued by the respondent in compliance of provisions of Section 25-F of the Industrial Disputes Act notice and advance salary/wages were sent to the petitioner vide order dated 22. 12. 1993. It may be noticed here that the petition was filed on 02. 11. 1993 initially for regularisation of services and for seeking payment in the regular pay scale of Drivers. However, after notices were issued on 08. 11. 1993 on admitting the writ petition, the service have been terminated thereafter by oral order, that led to the amendment of the writ petition claiming the relief against termination order also. In reply, it has been clearly stated while admitting the factum of retrenchment that notice and advance salary were sent to the petitioner vide order dated 22. 12. 1993. Thus, since the compliance of provisions of Section 25-F of the Industrial Disputes Act has already been made, the present writ petition has become infructuous. Apparently, the respondent were not well advised to take this plea when the law is settled by number of decision that the compliance of Section 25-F is a condition precedent before retrenchment becomes effective. Both the conditions stated in Section 25-F are conditions precedent and not the conditions subsequent which could be complied with after effecting retrenchment. The first condition for affecting a valid retrenchment is that the workman sought to be retrenched, must be given one month's notice before retrenchment is to be made effective. In case the services are required to be terminated immediately or before the expiry of one month, the employer is required to pay salary/wages in lieu of one one month's notice before retrenchment is effected. That is not the only condition, the second and equally important condition is that at the time of retrenchment, the workman must be paid retrenchment compensation computed at the rate of 15 days wages for each completed year of services. If the payment required to be made is neither paid nor offered/paid before the retrenchment becomes effective or the amount offered is less than the required amount by any sum, the retrenchment becomes void.
(3.) IN the present case, admittedly, the wages in lieu of notice had been sent to the petitioner on 22. 12. 1993 and the retrenchment has taken prior thereto, the compliance of Section 25-F has been only in breach thereof. It has not been even averred in reply to the writ petition that retrenchment compensation has ever been paid or offered though in the connected (Kailash Chandra vs. State & Ors.) (supra), it has been noticed that the retrenchment compensation has also been offered in Feb. , 1994 and not prior to that date. Apparently, on admitted facts, the retrenchment is invalid and cannot be sustained. The other vague stand taken by the respondents is that the petitioners were granted employment for a specific period in violation of the breach of the Rules, which is not supported by any material inasmuch as the admitted position is that the appointments were by entering the petitioners names in the muster roll and they have continued to work for more than one year. The condition which exempts an employer from the rigors of the limited protective umbrella given to the workman is that where termination of the service of the workman is as a result of the 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, such termination does not fall within the expression `retrenchment. ' However, the necessary ingredients to take the termination out of the wide definition of retrenchment has not even been pleaded by the respondents. It has not been pleaded that the services of the petitioners came to an end because of non renewal of the contract of employment on its expiry or the services were terminated under a stipulation in the behalf contained in that contract. Since, the appointment was like an employment on work charged establishment on daily rated basis by entering the name on muster roll, both the conditions cannot be presumed to exist unless specifically pleaded and proved. Apart from such bald assertions, the services were terminated on the expiration of specific work having come to an end, nothing has been placed on record to support this plea, which is the basis of treating the case out of retrenchment. In fact, the plea that they have made compliance of Section 25-F goes to show that even the respondents did not consider that the termination of the petitioners does not fall within the precincts of expression `retrenchment. ' ;