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TMI Blog1999 (12) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Officer (Civil) on 5.5.1964 with the condition that he would be considered for confirmation after one year of satisfactory service. It is the case of the appellant-Corporation that the respondent-workman was never considered for confirmation. On 1.8.1964 he was informed that his services were not required by the Corporation w.e.f. 1,9.1964. Thus he ceased to be the employee of the appellant-Corporation from that date However, from 1.10.1964 he was re-appointed on a vacant post Caused by the termination of services of another employee. It is not in dispute between the parties that he continued to be in the service of the appellant-Corporation without any break till 31.3.1965. According to the appellant-Corporation, he was again re-employed on 1.4.1965 and he continued to be in service till 29.4.1966 when his services were terminated. It becomes at once clear that though, according to the appellant-Corporation, the respondent-workman's services were terminated on 31.3.1965 and he was re-employed on the next day i.e. 1.4.1965, in substance there was no break in his service. It is, therefore to be taken as a well established fact on record that from 1.10.1964 till 29.4.1966 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal No.93 of 1982 before the Division Bench of the High Court. As noted earlier, the Division Bench of the High Court allowed the said appeal by taking the view that the respondent-workman's termination was contrary to Rule 5 of the Rules which was analogous to Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as the `latter Rules'). For taking that view; the Division Bench of the High Court in the impugned judgment heavily relied upon a decision of this Court in the case Senior Superintendent R.M.S.Cochin Anr. v. K.V. Gopinath, Sorter, [1973] 3 SCC 867. As the Division Bench reached the aforesaid conclusion, it did not examine another ground placed for consideration by the respondent-workman to the effect that the impugned termination was violative of Section 25-F of the I.D. Act. The Letters Patent Appeal was allowed accordingly and the relief, as noted earlier, was ordered to be granted to the respondent- workman. Rival Contentions: Learned counsel, Ms. Binu Tamta, appearing for the appellant-Corporation vehemently contended that the Division Bench of the High Court was patently in error in relying upon the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as part materia with Rule 5 of the Rules of 1949 and consequently the Division Bench had rightly held the termination of the respondent-workman to be- violative of Rule 5 of the Rules, it was alternatively contended that the Labour Court on facts had found that the condition precedent to retrenchment of the respondent-workman was not satisfied when his services were terminated on 29.4.1966, That by that time, in any case, he had completed 1.8 months of continuous service starting from 1.10.1964 which obviously was for more than 240 days in a calendar year immediately preceding 29.4.1966. That there is no dispute between the parties that retrenchment compensation was not offered to the respondent-workman simultaneously with the termination order, though it was a condition precedent and hence the termination became null and void. He submitted that though factually the Labour Court held that Section 25-F would have been violated, it was in error when it took the view that because termination was not on account of the respondent-workman being an excess staff there was no retrenchment within the meaning of Section 25-F of the I.D. Act. He submitted that this view of the Labour Court rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven simultaneous payment of the sum laid down therein. It is this payment as a condition precedent that can snap forthwith the relationship of employer and employee. It, therefore, becomes clear that any order of termination which is not simultaneously supported by payment of requisite amount as laid down by the proviso would not result in legal termination of the service of the concerned government servant as per the said Rule. It is not in dispute between the parties that along with the termination order the requisite compensation was not simultaneously offered by the appellant-Corporation to the respondent-workman. The Division Bench of the High Court took the view in the light of the said Rule that as it was analogous to Rule 5 of the said Rules of 1965 and as the latter Rule also provided a similar condition precedent to termination of service of temporary government servant, the termination of the respondent-workman was illegal and void. However, what was missed by the Division Bench, with respect, was the Salient fact that the respondent- workman's service were terminated on 29.4.1966 when the Rules of 1949 were no longer on the statue book. They stood superseded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the government servant to the appointing authority or by the appointing authority to the Government servant; (b) the period of such note shall be one month: Provided that services of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services or, as the case may be for the period by which such notice falls short of one month: A mere look at the earlier un-amended Rules 5 of the latter Rules shows, as laid down by its the then un-amended proviso, that service of a temporary government servant could not be terminated forthwith without payment to him of the compensation equivalent to the sum provided therein Such offer of compensation, therefore, was a condition precedent to such termination prior to the amendment of the proviso to the said Rule with retrospective effect by the latter amended Rule, as seen above. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay and allowances for the period of the notice at the rate at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short. The government servant concerned is only entitled to claim the sums hereinbefore mentioned: Its effect is that the decision of this Court in Gopinath's case (supra) is no longer good law, There is no doubt that this rule is a valid rule because it is now well established that rules made under the proviso to Article 309 of the Constitution are legislative in character and therefore can be given effect to retrospectively. It follows that the decision of Delhi High Court dismissing the appellant's writ petition is correct and this appeal will have to be dismissed. The same View was taken in a later decision of this Court in the case of Union of India and Ors. v. Arun Kumar Roy, (supra) wherein Khalid, J. speaking for the two Judge Bench of this Court reiterated the view of this Court in the case of Raj Kumar v. Union of India (supra) for holding that the decision of this Court in Senior Superintendent, R.M.S., Cochin and Anr. v. K.V. Gopinath, Sorter's, case (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers at the relevant time as expressly mentioned in Regulation 4(1). Therefore, whenever the question of regulation of conditions of service of the municipal officers comes up for consideration, the relevant Rules in force at that time have to be looked into. This is the clear thrust of Regulation 4(1). Its scope and ambit cannot be circumscribed and frozen only to the point of time in the year 1959, when the Service Regulations were promulgated. If such was the intention of the framers of the Regulation, Regulation 4(1) would have employed a different phraseology, namely, rules at present in force instead of the phraseology rules for the time being in force . The phraseology rules for the time being in force would necessarily means rules in force from time to time and not rules in force only at a fixed point of time in 1959 as fried to be suggested by learned counsel for the respondent-workman. As a result of the aforesaid discussion, it must be held that the termination of the respondent-workman from service on 29.4.1966 was riot violative of amended Rule 5 of the latter Rules of 1965 which only applied in his case. Therefore, there was no obligation, on the part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recapitulate, it is a well established fact on the record of this case that the respondent-workman though initially appointed for one year from 5.5.1964 on a temporary post of Section Officer (Civil) was continued in service after expiry of that year. His Very appointment order of 5.5.1964 mentioned that he could be considered for confirmation after one year of satisfactory service. Even though he was never confirmed, the appellant- Corporation did not terminate his services but continued him in service. Not only that, but on 1.10.1964 after giving a short break in service and he was re-appointed against a vacant post caused by termination of service of another employee. Thus, at least from 1,10,1964 even though in temporary service, he continued to work on a vacant permanent post of Section Officer (Civil) and continued to serve as such for further 18 months up to 29.4.1966 when he was visited with the impugned termination order. By that time he had completed not less than 240 days of continuous service for one calendar year immediately proceeding 29.4.1966 i.e. from 1.4.1965 to 29.4.1966. Consequently, Section 25-F of the I.D. Act, 1947 got squarely attracted in his case. It read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal position, therefore, it must be held that termination of services of the respondent-workman on 29.4.1966 which was admittedly not by way of punishment clearly amounted to retrenchment attracting Section 25-F of the I.D. Act. Learned counsel for the appellant-Corporation, Ms. Binu Tamta, in order to salvage the situation invited our attention to a decision of this Court in the case of Birla VXL Ltd. v. State of Pujab and Ors,, [1998] 5 SCC 632 and submitted that when the appointment is given for a fixed period, on expiry of the said period the appointment would ceased by efflux of time and it could not be said to be a retrenchment. In the aforesaid case, a two Judge Bench of this Court was concerned with appointment order given to the third respondent before this Court on 1.1.1983 which clearly stated that it was appointment for two years up to 31.12.1984. When the said termination by efflux of time took place, Section 2(oo) of the I.D. Act had already got amended by insertion of exception Clause (bb) therein which reads as under. termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r., (1983) Vol. 16 LAB.I.C.1139. This decision also cannot be of any avail to her for the simple reason that the said decision proceeded on its own facts. In para 14 of the report, it has been clearly mentioned by the learned Single Judge that the employee in that case was not a workman and again there was no evidence to show that all the requirements of Section 25-F were complied with for its applicability. It Was a direct writ petition in the High Court and in absence of relevant data the said Section was held to be not applicable, The said judgment rendered on its own facts, therefore, cannot be pressed in service in the light of clear findings of fact reached by the Labour Court in the present case, which have remained well sustained on record, as seen by us earlier for applicability of Section 25-F to the impugned termination of the respondent-Workman's services. As a result of the aforesaid discussion, it must be held that termination of the respondent-workman's service on 29.4.1966 was violative of Section 25-F of the I.D. Act and was therefore, null and void. The second point for determination is answered in affirmative against the appellant-Corporation and in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court at SLP stage itself while granting leave stayed re-instatement order on 17,11.1997. Two more years since elapsed during the pendency of this appeal before this Court. All these factors together point in the direction of not saddling the appellant-Corporation, a public body, with the burden of entire full back-wages to be granted to the respondent-workman after the passage of 33 years since his order of termination. The second reason is that the respondent-workman for all these years could not have remained totally unemployed though there is no clear evidence that he was gainfully employ and was so well off that he should be denied complete back-wages. But keeping in view the fact that for all these long years fortunately the respondent-workman had survived and has still two more years to reach the age of superannuation as we are told, not granting him full back-wages on the peculiar facts of this case, would meet the ends of justice, We, therefore, pass the following order: 1. The impugned order of Division Bench of the High Court insofar as it holds that the termination order of the respondent-workman dated 29.4.1966 was violative of Rule 5 of the relevant Rules is set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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