ORDER
T.S. Doabia, J.
1. Heard counsel.
The circumstances under which this petition has arisen be noticed.
The petitioner was appointed as sub-engineer on November 15, 1995. The resolution by which he was so appointed has been placed on the record as Annexure P/2. The requisite averments have been made in para 5.3 of the petition. It is the further case of the petitioner that on August 5, 1996, vide order Annexure P/3, his services were brought to an end. It is this order which is being challenged in this petition.
2. The basic argument which has been raised is that the petitioner had completed more than 240 days of service, and therefore, he became entitled to the retrenchment compensation. The argument raised is that as the retrenchment compensation has not been paid, the order of termination would be bad, and the petitioner would be entitled to reinstatement.
3. The proposition that if there is non-compliance of Section 25F of the Industrial Disputes Act, 1947 ( hereinafter referred to as the Act), then the employee is entitled to reinstatement with back wages cannot be disputed. There are series of decisions in this regard. These may be serialised.
(i) State Bank of India v. N. Sunder Money (1976-I-LLJ-478)(SC); (ii) Hindustan Steel Ltd. v. Presiding Officer, Labour Court, Orissa, (1977-I-LLJ-1)(SC); (iii) Santosh Gupta v. State Bank of Patiala, (1980-II-LLJ-72)(SC); (iv) Mohanlal v. Bharat Electronics Ltd. (1981-II-LLJ-70)(SC);(v) Karnataka SRTC v. M. Baraiah (1984-I-LLJ-110) (SC) and (vi) Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors., (1990-II-LLJ-70)(SC).
4. The learned counsel for respondent, however places reliance on a decision given by the Supreme Court in the case reported as Himanshu Kumar Vidyarthi v. State of Bihar 1997 Lab. I.C. 2075. He submits that where appointment is need based and services of that employee are brought to an end when the need comes to an end then the concept of Section 25F of the Act would not be attracted. In the above case, it was observed that when the appointments are regulated by statutory rules, the concept of ‘industry’ to that extent stands excluded. It was also observed that as the petitioners in this case were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work, therefore, the concept of retrenchment would not be attracted.
5. The learned counsel for the petitioner, however, relied upon the decision referred to above and more particularly the one in N. Sunder Money’s case (supra). The facts and the legal arguments raised in the above case as would in para 5 be noticed:
“….. This respondent was appointed off and on, by the State Bank of India between July 31, 1973 and August 29, 1973. The intermittent breaks notwithstanding, his total number of days of employment answered the test of ‘deemed’ continuous service within Section 25B(2) and both sides accept that fact situation.”
Taking note of the above factual position, in para 8 it was observed as under:
“Without further ado, we reach the conclusion that if the workman swims into the harbour of Section 25F, he cannot be retrenched without payment, at the time of retrenchment, compensation computed as prescribed therin read with Section 25B(2)…”
6. The above authority i.e., N. Sunder Money’s case (supra) has been consistently followed in the other decision referred to in paragraph 3 of this order. If the facts in the above case are perused, then it becomes clear that if a workman completes 240 days of service, then he would be entitled to the protection of Section 25F of the Act. At this stage, reference be made to another portion of the judgment in para 5. This reads as under at P481:
“This nine days’ employment, tacked on to what has gone before, has ripened to a continuous service for a year on the antecedent arithmetic of 240 days of broken bits of service.”
7. Thus, on the above mathematical calculations , the workman was able to show that he had completed 240 days of service. Therefore, he would be entitled to protection of Section 25F of the Act.
8. The situation in this case is no different. The decision given in Sunder Money’s case (supra) is by a Bench of three Judges whereas the one on which reliance has been placed by the respondent is given by a Bench of two Judges. Apart from this in Himanshu Kumar Vidyarthi’s case (supra), the position was entirely different. The appointments were made on the basis of need of the work. This is not the situation in the present case. This decision even otherwise is distinguishable.
9. The question as to whether interference can be made under Article 226 of the Constitution of India, when an employee was not given protection of Section 25F of the Act, be examined now.
10. It is settled view of this Court that interference can be made by this Court when protection under Section 25F of the Act is to be afforded. Reference in this regard be made to two Division Bench decisions of this Court reported as (i) Mukhtyar Singh v. Food Corporation of India (1994-II-LLJ-488). and (ii) Mahesh Bhargawa v. State of M.P. (1994-I-LLJ-1113). The aforementioned two decisions were followed in Letters Patent Appeal No. 354 of 1996 decided on July 2, 1997, Yogendra Kumar Parashar v. Municipal Council, Morena. It was held that relief can be granted under Article 226 of the Constitution of India by this Court.
11. In this view of the matter, this petition is allowed. The petitioner would be entitled to reinstatement. However, nothing is being said regarding back wages. This aspect of the matter would be determined by the respondent Municipal Council, Aron, District Guna, itself. The factual situation as to whether the workman was gainfully employed or not would be determined by it. The petitioner, if the decision goes against him can challenge in the appropriate forum.
Disposed of accordingly.