Smt. Raj Rani vs Guru Teg Bahadur Hosp.
2007 Latest Caselaw 588 Del

JUDGMENT

Rekha Sharma, J.

1. The petitioner, Smt. Raj Rani, has preferred this writ petition feeling aggrieved by the order passed by the Labour Court No. XII, Karkardooma Courts, Delhi in ID No. 237/2004 dated 13.4.2005.

2. It is the admitted case of the petitioner that she was engaged by the respondent, namely, Guru Teg Bahadur Hospital, as Nursing Orderly with effect from 20.1.1989 on casual/daily rated/muster roll basis and was being paid wages under the Minimum Wages Act. The appointment of the petitioner was made against a leave vacancy and her services were terminated after about four months on 14.4.1989.

3. According to the petitioner, she was liable to be continued in service as before passing the order of termination, the Management failed to comply with the provisions of the Industrial Disputes Act, 1947. She therefore raised an industrial dispute which came to be adjudicated upon by Labour Court No. XII, Karkardooma Courts, Delhi. The said Court vide order dated 11.3.2002 held that the petitioner was not entitled to any relief as her appointment was on daily-wage basis and she had worked only for a few days. Dissatisfied with the finding, she came to this Court vide Writ Petition No. 439/2003, wherein, she did not complain of infringement of Section 25 of the Industrial Disputes Act as admittedly she had not worked for 240 days. Her complaint was with regard to non-compliance of Sections 25G and 25H of the Industrial Disputes Act before her services were terminated. A Division Bench of this Court by an order dated 21.1.2004 remanded the case back to the Labour Court to examine the plea so raised by the petitioner. The matter then came to be examined by the Labour Court No. XII. The relief again alluded her. The Labour Court has held that the provisions of Sections 25G and 25H of the Industrial Disputes Act, 1947 were not attracted to her case. It is this order which has been impugned before me. Before I proceed further, it will be appropriate to have a look at Sections 25G and 25H of the Industrial Disputes Act. This is how they read:

25G. Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.

25H. Re-employment of retrenched workmen. - Where any workmen are retrenched, and the employer proposes to take into his employ any persons he shall, in such manner as may be prescribed, give an opportunity {to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen} who offer themselves for re-employment shall have preference over other persons.

4. The above provisions are based on the principle of 'last cum first go' which means, that if an employee working in an industrial establishment has to be retrenched, the employer shall ordinarily retrench the employee who was the last to be employed. The workman complaining violation of this principle must establish that he belongs to a particular category of workmen and that he had been removed from service before those workmen who were appointed later than him.

5. The petitioner was appointed against a leave vacancy. She has not furnished any details of other workmen who were similarly appointed like her against a leave vacancy as daily wager or on muster roll basis. It appears from paragraph 21 of the impugned award dated 13.4.2005 that she was comparing herself with those Nursing Orderlies who were appointed on regular basis. Such appointees are different from an appointee against a leave vacancy. The two categories are incomparable. The petitioner stands alone. She forms a class apart. She can claim no parity with the regular appointees. One could understand if she had placed material on record before the Labour Court or even before this Court that there were Nursing Orderlies working in the same capacity as her and that they had joined later than her yet they were being continued in service. There is nothing on the record to suggest so. Learned Counsel for the petitioner has laid some emphasis on the fact that she was appointed through employment exchange. This by itself is of no consequence. The fact remains that her appointment was against a leave vacancy and not on regular basis.

6. For the foregoing reasons, the writ petition has no merit and is dismissed accordingly. It is however hoped that if in future any vacancy of Nursing Orderly arises, the petitioner will be considered against that vacancy on sympathetic basis, but, of course, in accordance with law.