J. R. CHOPRA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE case of the petitioner is that he passed Higher Secondary Examinations in the year 1982 and is a holder of I. T. I. Certificate, which is a qualification requisite for appointment to the post of Surveyer. It is alleged that the petitioner was appointed on the post of Surveyer with effect from 1. 1. 1987 and his services were terminated with effect from 1. 1. 1989. THE contention of the petitioner is that this termination is in clear violation of s. 25-F (a) and (b) of the Industrial Disputes Act, 1947 (for short 'the Act' ). He has submitted that compliance of s. 25-F (a) and (b) of the Act is mandatory and, therefore, the termination of the petitioner is void ab-initio. On the other hand, the respondents have submitted that the petitioner was appointed in a particular scheme viz. , I. U. D. P. Scheme and when the work of that project was finished, his appointment came to an end and thereafter when another project was started, he was again re-appointed as Surveyer in I. U. D. P. Scheme. It is not denied that at the time of his appointment, no written order was made. It is also not denied that at the time of his termination, no termination order was passed. However, it is submitted that he was appointed in a particular Scheme for a specified period and when that scheme came to an end, his services came to an end and as soon as, the new scheme was floated, he was re-appointed and therefore, the termination of services of the petitioner cannot be categorised as retrenchment as per the provisions of s. 2 (oobb) of the Act. The petitioner has further raised a contention that he should be paid equal pay for equal work with effect from the date of his appointment. According to him, he was paid Rs. 20/- per day and has been treated as a daily-wage employee. I have considered the rival submissions made at the bar. It is an admitted fact that at the time of appointment or the alleged re-appointment, no specific order was passed and, therefore, it has to be treated as an appointment for a non-specified period and for a non-specified work. Hence, if an employee who had worked for 240 days in an year, his services cannot be terminated without complying the provisions of s. 25-F (a) and (b) of the Act. Admittedly, in this case no notice of termination specifying the reasons for his termination was given to the petitioner nor he was paid any compensation for retrenchment. The provisions of s. 2 (oobb) of the Act are not all applicable in this case because neither any appointment order was issued nor any termination order has been passed and as such, this termination has to be treated as retrenchment and therefore, the provisions of s. 25-F of the Act are fully applicable in the facts and circumstances of this case. Thus, the termination of services of the petitioner is void ab-initio and deserves to be set aside. The petitioner deserves to be reinstated to his job on which he was working prior to his termination. So far as the contention of Mr. Choudhary as regards equal pay for equal work is concerned, he is free to raise that controversy before the proper forum in appropriate proceedings.
(3.) IT was contended by Mr. Choudhary that termination of the services of the petitioner is being held to be void ab-initio, the petitioner should be paid all back wages. Mr. Gupta, the learned counsel for the respondent has vehemently controverted this submission ans has submitted that in this case, he has put in appearance way back in the month of April 1989 and thereafter, it was the petitioner who sought adjournments after adjournments and, therefore, he is not entitled to any back wages. I am not impressed by this argument of Mr. Gupta as the termination is challenged on the ground of non-compliance of s. 25-F of the Act. Mr, Gupta has further submitted that in case, his submission is not accepted and back wages are allowed to the petitioner then it should be ensured that the petitioner was not in gainful employment during this period. Mr. Choudhary has submitted that in case, it is held that the termination is void ab-initio, the employee is entitled to all back wages whether he was in gainful employment or he was out of employment. In this respect, reliance was placed on 1986 (2) SCC-362. (1 ). I have carefully considered the rival submissions made at the bar. In the light of the fact that the termination of the services of the petitioner is void ab-initio, I am of the view that the petitioner is entitled to all back wages irrespective of the fact whether he was in gainful employment or not. In the result, this writ petition is allowed and the termination order of the services of the petitioner With effect from 1. 1. 1989 is quashed. He shall be restored back in service and will be treated to be in continuous service and shall be paid all back wages. ;