Judgment:
B.R. Arora, J.
1. The petitioner was appointed as a Jeep Driver in the Office of the Vikas Adkhkari, Panchayat Samiti, Raisinghnagar, vide order dated 19-8-78. The appointment of the petitioner was made on temporary basis for a period of six months. This term of appointment of the petitioner was extended upto 20.8.79. Thereafter the term of the petitioner's appointment on the post of Jeep Driver was not extended but, however, he was allowed to continue on the post upto 1.10.80. One Mr. Raghunath was working as a driver with the respondents, whose services were terminated on 1.9.75, by the Vikas Adhikari and he filed an appeal before the State Government challenging the termination of his services. The appeal, filed by Raghunath was allowed by the State Government vide order dated 26.9.90, and while allowing his appeal, the State Government directed the respondent to re-employ Raghunath, Driver, immediately on the post in question. Certain other directions were, also, issued by the State Government while allowing the appeal filed by Raghunath. As there was only one post available with the respondent, the respondent gave appointment to Raghunath vide order dated 1.10.80, and by another order dated 1.10.80 (Annexure, 50), terminated the services of the petitioner. The petitioner has challenged the order Annexure.5 dated 1.10.80, terminating his services on the ground that the petitioner served with the respondent for more than 240 days in a calendar year and, therefore, his services could have been terminated only after complying with the procedure provided under Section 25F of the Industrial Disputes Act, 1947, and as the mandatory provisions of Section 25F of the Act, 1947, have not been complied with, the order Annexure. 5 deserves to be quashed and set-aside. In support of its contened learned Counsel for the petitioner has placed reliance over: Chhutan Lald v. The State of Rajasthan and Ors. 1981(1) RLR 649 and Satyendra Singh Rathore v. The Rajasthan Rajya Fathiya Pustak Mandal, Jaipur 1988(2) WLN 690. Learned Counsel for the respondent, on the other hand, has supported the order Annexure.5, passed by the Vikas Adhikari and submitted that the appointment of the petitioner was a fixed-term appointment and after the expiry of the period for which he was provided appointment, the term of his appointment was not extended. The appointment was, also, temporary in nature and was till the period the duly selected persons are made available. The appeal filed by one Raghunalh was allowed by the State Government and the order for his reinstatement in service was passed and as there was only one post available with the respondent, Raghunath was taken on duty and the services of the petitioner were terminated as the duly selected candidate was made available. In these circumstances the provisions of Section 25F of the Act, 1947, are not applicable to the case of the petitioner. His further contention is that the continuation of the petitioner beyond the period of six months was contrary to Rule 23(5) of the Rajasthan Panchayat Samities and Zila Parishads Rules, 1959, as the extension was not made with the prior permission of the Commission. In support of contention, learned Counsel for the respondent has placed reliance over: Prabhu Dayal Sharma v. The State of Rajasthan and Ors. 1985 WLN (UC) 529 and Surendra Kumar Gyani v. the Sate of Rajasthan and Ors. AIR 1983 SC 115.
2. I have considered the submissions made by the learned Counsel for the parties.
3. The appointment of the petitioner was made on the post of Jeep-Driver vide order dated 19.8.78, for period of six months. This term of appointment was extended upto 20.8.79. Thereafter the petitioner was allowed to continue on the post of Director and his case for regularisation was referred to the Commission. The case of the petitioner for regularisation on the post of Jeep-Driver was pending consideration and in the meanwhile the State Government allowed the appeal filed by Raghunath and ordered for reinstatement of his services. The Commission neither gave nor refused his concurrence with regard to continuation of the petitioner in service but the fact is that the petitioner continued in the service of the respondents till 1.10.80, when his services were terminated. The petitioner, thus, served the department for more than two years and as such his services could not have been terminated without following the mandatory provisions of Section 25F of the Industrial Disputes Act, 1947. The term appointment came to an end when he was allowed to continue in service after 20.8.79. Admittedly, the provisions of Section 25F of the Act, 1947, were not complied-with. Neither the petitioner was given one month '$ notice nor was he paid the salary in lieu of the notice period nor was he paid 'retrenchment compensation', as required under Section 25F(b) of the Act, 1947. The order Annexure, 5, passed by the respondent, terminating the services of the petitioner, was, therefore, passed in violation of the provisions of Section 25F (a) and (b) of the Act, 1947. The petitioner, therefore, deserves to be reinstated in service. The judgment given in Prabhu Dayal Sharma's case, on which reliance has been placed by the learned Counsel for the respondent, is not applicable in the present case because in that case the petitioner Prabhu Dayal Sharma gave an undertaking that if he is allowed to continue in service then he will not claim any salary if the concurrence of the Commission is not given. The Commission renuval concurrence and, therefore, this Court observed that while allowing the petitioner to continue in service it was specifically mentioned by the respondents that they can not extend the term under Rule 23 of the Rules, 1959. The controversy whether the provisions of Section 25F. of the Act, 1947, arc applicable in the facts and circumstances, has not been decided. The judgment in Prabhu Dayal Sharma's case is, therefore, not applicable in the case of the petitioner. So far as the judgment of the Supreme Court given in Surendra Kumar Gyani's case is concerned, that is, also, not applicable in the present case because in the case of Surendra Kumar Gyani, it was mentioned in the appointment order that the appointment is subject to the availability of the duly selected person and in that case duly selected persons were made available and only after that day the services of the petitioner in that case were terminated, but in the present case, in the initial appointment order there was no such condition. In the second order, of course, it was mentioned that the appointment of the petitioner is for a period of six months or till the duly selected persons are made available, but thereafter no order was passed and the petitioner was allowed to continue and his services have not been terminated on account of availability of the duly selected persons but his services were terminated on account of the fact that the appeal filed by Raghunath was allowed and he was ordered to be reinstated in service and as there was only one post, Raghunath was reinstated in service and the services of the petitioner were terminated. The services of the petitioner could have been terminated but that will ....absolve the respondent from the liability to strictly comply- with the provisions of Section 25F of the Act, 1947. This judgment of the Supreme Court is, therefore, not applicable in the present case. The petitioner is, therefore, entitled for reinstatement. But so far as the back wages are concerned: whether the petitioner remained in gainful employment after retrenchment till today or not, that requires an adjudication on the question of facts and the evidence produced by the respective parties and, therefore, the petitioner should approach the Labour Court under Section 33C(2) of the Act, 1947, for determination of his claim regarding wages and for computation of the amount of money due against the respondents.
4. In the result, the writ petition, filed by the petitioner, is allowed and the respondents are directed to reinstate the petitioner immediately on the most of Jeep Driver. For the determination of the wages and computation of the amount due against the respondent, the petitioner may approach the Labour Court under Section 33C(2) of the Act, 1947, in respect of the arrears of his salary. The respondents will however, be free to take action against the petitioner after complying-with the provisions of Section 25F of the Industrial Disputes Act, 1947.