ARUN MADAN, J. - (1.) THIS writ petition has been filed under Article 226 of the Constitution of India in the matter of violation of the fundamental rights of the petitioner under Article 14,16, 21 and 31(d) of the Constitution of India, wherein the petitioner has challenged the verbal order of retrenchment dated 1st March, 1989, whereby the services of the petitioner, who was appointed as a Beldar on daily wage basis, were terminated by the respondents without providing any opportunity of hearing to the petitioner or even issuing any show -cause notice to the petitioner.
(2.) THE facts giving rise to the filing of this writ petition, briefly stated, are that the petitioner was appointed as Beldar on daily -wage basis @ Rs. 14/ - per day, on 1 -2 -87 in the office of the respondents at Bharatpur and he was under the charge of Assistant Engineer.PWD Sub -Division, Nadbai, District Bharatpur. During the period 1.2.87 till March, 1989 the petitioner was made to work with artificial breaks in service. It is contended by the petitioner that during the aforesaid period the petitioner had continuously discharged his duties as Beldar for a period of 25 months. There was no complaint against the petitioner during the course of his employment till 1.3.89 when the services of the petitioner were terminated by an oral order passed by the respondents. It has been further contended in the writ petition that striking out the name of the workman from the Juster Roll of the Management amounts to termination of service and such termination can be termed as retrenchment within the meaning of Section 2(00) of the Industrial Disputes Act, 1947(hereinafter to be referred as 'the Act'). It has been further contended by the petitioner tha't the provisions of Section 25F (a) and (b) are mandatory and any order of retrenchment passed in violation of these two clauses is invalid and the termination order is illegal since no notice or pay or compensation in lieu of notice as required by the Act was given to the petitioner and hence the petitioner has prayed for reinstatement with full backwages and has further prayed for quashing the impugned order of termination dated 1.3.89 passed by respondent No. 4, namely. The Assistant Engineer, P.W.D, Sub - Division, Nadbai, District Bharatpur. In the reply to the writ petition filed on behalf of the respondents, it has been contended that the petitioner was engaged on daily -wages as per Muster -Rolls(Temporarily) on an oriented employment programme under the Rural Landless Employment Guarantee Programme sponsored by the Government of India and implemented by/the District Rural Development Agency, Bharatpur through PWD, Sub -Division Kama, District Bharatpur in February, 1987. It has been further stated in the reply that for the period March and April, 1987 the petitioner was engaged by the Assistant Engineer,PWD,Kama,District Bharatpur(respondent No. 4) on the watch and ward duties of temporary stores. It has been further contended in the reply that the petitioner had worked with breaks in service and he did not work for a single day in August, 1987 hence the petitioner having not completed 240 days of continuous service, he is not entitled to be given benefit of continuous service and, therefore, the impugned order of termination passed by the respondents was justified and that the writ petition is not maintainable before this Court. It has been further contended that the alternative remedy of moving to the Tribunal is available to the petitioner by raising an industrial dispute first before the Labour Court and then on a reference by the State Government to the Tribunal which remedy the petitioner should avail. In this regard the reliance has been placed upon the Constitution Bench decision of this Court in the matter of Gopal Lal Teli v. State of Rajasthan and Ors. SBCWP No. 3011/90 decided on 1st March, 1995, wherein while answering the reference made by the learned Single Judge, the Constitution Bench of this Court held that for violation of the provisions of Chapter -V -A of the Act or for violation of the principles of natural justice the normal course is to pursue the remedy provided under the Act and the exercise of powers under Article 226 of the Constitution of India in such cases should be sparingly exercised. In the said judgment the Constitution Bench has also observed that it is difficult to lay down the conditions/grounds exhaustively as the facts of each case may vary and the conditions may be different, hence the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India cannot be confined in a water -tight compartment.
(3.) DURING the course of hearing reliance was placed by the learned Counsel for the respondents on Annex -R/1 and Annex -R/2 annexed with the reply to the writ petition which contains the Muster Roll of actual working days of the petitioner from February, 1987 till November, 1988 totalling 292 days in all. It has been further contended that the requirement ofjhe minimum number of actual working days should be 240 days in a calender year as against which the petitioner had worked for 205 1/2 days from April, 1988 to March, 1989.;