J.D. Biswas vs Indian Airlines
1999 Latest Caselaw 811 Del

ORDER

N.G. Nandi, J.

1. In this petition under Article 226 of the Constitution of India the petitioner has been seeking to quash the termination of the petitioner being illegal, in contravention of Sections 25F and 25G of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") read with Rule 77 of the Industrial Disputes (Central) Rules, 1957 and also being contrary to the judgment dated 9.5.1997 by this Court in C.W. 2155/95.

2. It has been the case of the petitioner that the petitioner has been working with the respondent, a "State" within the meaning of Article 12 of the Constitution of India, as casual worker from 26.7.1986 in various capacities against work of permanent nature: that in the year 1989, the petitioner was called for interview for the post of helper and was advised vide letter dated 3.12.1990 that his name has been empanelled in the select list of employees and his appointment as regular employee will be subject to the availability of vacancies during the validity period of the panel on terms and conditions related to the post; that on failure of the respondent to offer the petitioner regular job, the petitioner filed Civil Writ Petition being C.W.P. No. 2155/95 in this court, praying inter-alia, for ap-

pointment as regular employee in terms of Government of India's Circular dated 8.2.1982, that vide interim order dated 26.5.1995, the High Court directed the respondent to consider the petitioner for casual job during the pendency of the writ petition. Persuant to the aforesaid interim order, the petitioner worked as a casual commercial helper w.e.f. 21.2.1996 to 24.4.1997 i.e. for 397 days and from May 1997 to 30.8.1997 i.e. for 84 days, both as Loader; that the High Court, vide its judgment dated 7.5.1997 in C.W. 2155/95 set aside the 1993-95 panel as arbitrary and directed the respondent to appoint the petitioner as casual worker in order of seniority till regular appointments are made; that suddenly, on 13.8.1997 the respondents orally asked the petitioner not to report for duty from 14.8.1997 and identity card was taken back. It is this order of termination of petitioner's service, which is questioned in the present writ petition.

3. The respondent vide affidavit in reply inter-alia contended that this petition under Article 226 of the Constitution of India is not maintainable as the petitioner has been alleging violation of Sections 25F and 25G of the Act since the jurisdiction would be with the Industrial Tribunal; that the petitioner was given casual engagement on daily-rated basis and thereafter continued in view of the interim orders of this court in C.W.2155/95 and other connected writ petitions. However, after final decision/judgment in the aforesaid writ petitions, the petitioner's service has been discon-

tinued in view of the directions by which the respondent has been directed to firstly engage casuals from pre-existing 1990 panel according to seniority. Hence, all casuals, who were otherwise engaged, were discontinued to comply with the directions of the High Court, hence the petitioner cannot allege that the respondent has violated any law; that the issue of petitioner's employment and those similarly placed as the petitioner, has already been decided by this court by the judgment dated 7.5.1997 in C.W. 4113/94 and C.W. 2155/95 filed by the present petitioner; that as per the judgment dated 7.5.1997, the petitioner and other persons from the preexisting 1990 panel are to be given casual work in order of their seniority in the panel; that the petitioner had unsuccessfully carried the judgment and order dated 7.5.1997 passed in C.W. 4113/94 and C.W. 2155/95 with other connected matters, to the Supreme Court by filing SLP No. 16392-16399/97.

4. It has been submitted by Mr. Hans, learned counsel for the petitioner that in breach of Sections 25F and 25G of the Act, the impugned termination order is liable to be quashed as the mere fact of petitioner having worked for 240 days is sufficient; that it is irrelevant that the petitioner worked as casual worker under the interim orders of the High Court in CW 2155/95 and that the petitioner on completion of 240 working days in a calendar year, gets a vested right and the services of the petitioner could not have been terminated by the respondent. As against this, it has been submitted by Ms. Anita Abraham, learned counsel for the respondent that it was only an interim arrangement arrived at in CW 2155/95 vide order dated 26.5.1995 by which the petitioner worked as casual worker and that would not give the petitioner any legal right to continue in the employment; that in the judgment dated 7.5.1997 in CW 2155/95 the respondent is directed to firstly engage casuals from pre-existing 1990 panel according to the seniority and that is why all casuals which were otherwise engaged were required to be discontinued and the petitioner's service came to be discontinued to comply with the directions of this Court and, therefore, the question of violation of Sections 25F and 25G of the Act does not arise.

5. On behalf of the petitioner, reliance is placed on the decision in the case of State Bank of India Vs. N. Sundra money reported in (1976) 1 L.L.J. p. 478 wherein it is held by the Supreme Court that "it is the substance and not the form of the termination order, which would be decisive whether the termination is outside the species of the retrenchment "for any reason whatsoever" making the retrenchment compensation payable to the worker."

In the present petition, the challenge is to the order terminating the petitioner's services alleging violation of Sections 25F and 25G of the Act and the consequent reinstatement in service with full back wages.

In the case of Santosh Gupta Vs. State Bank of Patiala 1980 SCC p. 340 while considering the provisions of Section 2(oo), 25F, 25FF and 25FFF of the Act the Supreme Court held that "retrenchment" includes all kinds of termination of service by employer for any reason whatsoever except those not expressly included in Section 25FF and 25FFF. The discharge of workman on the ground of his/her failure to pass confirmation test amounted to retrenchment requiring compliance with Section 25F of the Act.

It may be appreciated that in the instant case the termination of the petitioner's services is not by the employer for any reasons. The termination of petitioner's service has been necessitated on account of the directions issued by the Division Bench of this court in C.W. 2155/95.

6. It is the admitted position that this petitioner filed CW 2155/95. Pending the writ petition, the Division Bench of this Court passed an interim order dated 26.5.1995 directing the respondent to consider the petitioner for casual job during the pendency of the writ petition. In compliance with the said interim order the petitioner was appointed casual commercial helper w.e.f. 21.2.1996 to 29.4.1997 and from May 1997 to 13.8.1997. Thus, the petitioner admittedly worked as casual helper from 21.2.96 to 29.4.97 i.e. for 397 days by force of the interim order passed by this court as the respondent was directed to consider the petitioner for casual work during the pendency of the writ petition No. 2155/95. But for the interim order passed on 26.5.1995 the petitioner would not have been able to work eve as casual worker for the period aforesaid and the respondent was obliged to absorb the petitioner as a casual worker by force of said interim order. C.W. 2155/95 was disposed by vide order dated 9.5.1997 whereby the Division Bench of this court quashed/set aside the 1993-95 casual workers' panel as arbitrary and directed the respondent to firstly engage casuals from pre-existing 1990 panel according to the seniority which led to termination/discontinuance of the petitioner's service. Thus, the termination of petitioner has been in compliance with the directions issued in CW 2155/95. It is also not disputed that judgment and order passed by the Division Bench of this Court in C.W. 2155/95 was unsuccess-

fully carried to the Supreme Court by way of SLP No. 16392-16399 of 1997 and the said SLP came to be dismissed on 15.9.1995.

7. It need hardly be said that the interim order dated 26.5.1995 being an arrangement pending the final decision in the writ petition, would endaur only during the life of the writ petition and not beyond and neither party can claim as of right the benefit obtained under interim arrangement. Now, simply because the petitioner worked as casual worker under the interim order passed by the Division Bench, that would not vest any legal right in the petitioner claiming benefit at par with a casual worker appointed in normal course. The provisions contained in Sections 2(oo), 25F and 25G of the Act would come into play provided the casual employment and termination thereof are the acts of volition on the part of the employer and not in the case of the casual employment which is by force of interim order by the Court and, the termination thereof consequent upon the direction by the court in the petition wherein the rights of the parties to the petition got crystalised on the out-come of the petition. Termination of service consequent upon the directions to the respondents, cannot be equated with retrenchment as to attract Section 2(oo) of the Act by making Section 25F of the Act applicable.

8. In the above view of the matter, I do not find any merit in the present writ petition and, therefore, exercise of jurisdiction under Article 226 of the Constitution of India is not necessitated.

9. In the result, the petition fails.