Case: Daulat Singh  Vs. Railway Emps.Co-Op.Banking Soc.Ltd.&amp;Anr

The appellants are the employees. The first respondent is the employer. The termination of services of the appellants was held to be illegal and the first respondent was directed to reinstate them in service with all consequential reliefs in terms of the order made by the prescribed authority constituted under the Rajasthan Shops and Commercial Establishments Act, 1958 (Act No. 31 of 1958) (for short, the Act).2. Writ petitions filed by the first respondent were dismissed by a learned Single Judge of the High Court, inter alia, holding that the prescribed authority after elaborate consideration of evidence has rightly come to the conclusion that the employees had been working continuously for six months.3. The Division Bench of the High Court by the impugned judgment has allowed the appeals and set aside the judgment of the Single Judge as also the order made by the prescribed authority on the ground thatfor invoking Sectionof the Act has not been established and, therefore, appellants could not make a complaint before the prescribed authority challenging the termination of their services. The employees are in appeal on grant of leave.

Reasoning:
The case of the employer/first respondent before the prescribed authority was that the employees had not been in employment for a continuous period of six months as there was a break of about two months in their service, their services having been terminated on 20th August, 1992 and they were againin October, 1992. This case set up by the first respondent has not been accepted even by the Division Bench while coming to the conclusion that the employees have not been in continuous employment for a period of not less than six months. The Division Bench has reached the said conclusion by holding that there was a break of service for four days, namely from 16th July, 1992 to 19th July, 1992. The Division Bench held that their was hiatus of four days between employment under letter dated 16th June, 1992 and new appointment by letter dated 19th July, 1992.The case of the appellants before the prescribed authority was that they had been getting regular salary from June 1992 and worked continuously upto 31st December, 1992 on the post of Peon in the office of the first respondent; they marked their attendance upto 7th December, 1992 but thereafter though they worked upto 31st December but were not allowed to mark the attendance and on 1st January, 1993, the employer refused to take them on duty and terminated their services by an oral order without giving one months notice and compensation for retrenchment and that they worked for a period of more than six months from the date of their appointment. It is not in dispute that the appellant Daulat Singh was appointed as a casual labourer in terms of appointment dated 16th June, 1992. It was a temporary appointment for specific period of one month from 16th June, 1992 to 15th July, 1992. The Division Bench has noticed that the actual date of commencement of employment has not been disputed by the employer but the employer has alleged that the services came to an end on 20th August, 1992 and no attendance was marked after the said date. An appointment letter dated 19th July, 1992 in the case of appellant Daulat Singh was has been reproduced in the impugned judgment. Admittedly, the case of other two appellants isDivision Bench, it is evident, lost sight of the second paragraph of the aforesaid letter which stipulates the confirmation of the services of the employees from the initial date of joining as casual labour provided there is no complaint and/ or adverse report against the employee during the period of 50 days. It is not in dispute that the initial date of joining as casual labour was 16th June, 1992. It has also been established that on completion of satisfactory work for 50 days, confirmation orders were issued. One such order dated 5th August, 1992 has been placed on record. The issue of the said letter is also not in dispute.8. The prescribed authority, on detailed examination of evidence, oral as also documentary including the appointments letters, the attendance register, payment of salary etc., came to the conclusion that the employer had failed to prove that the services of the employees have been terminated on 20th August, 1992 and that employees had proved that they continued in service upto December, 1992 and had completed services with the first respondent for a period of not less than sixplea of the first respondent that the employees were reappointment in October, 1992 was not accepted by the prescribed authority. The complaint under Sectionwas held to be maintainable and as earlier noticed, the writ petition of employer wasfrom the fact that the plea that the employees being not in continuous service for six months was not based on break of their service for these four days, even otherwise the conclusion of the Division Bench was contrary to the terms of the letter of initial appointment, letter of appointment after selection and the letter of confirmation of service. According to the appointment letter dated 19th July, 1992, the employees were deemed to be in service from the date of their initial appointment as a casual labour, i.e. since 16th June, 1992.Learned counsel for the respondent contends that in the complaint as also in evidence, the employees themselves stated that the first appointment was made on 19th July, 1992 and, therefore, it is evident that the employees had not completed six months continuous service. That is not the ground on which the Division Bench has reversed the judgment of learned Single Judge. Moreover, the pleadings and the evidence cannot be construed in a hyper technical manner as sought to be contended by learned counsel for thepresent case is just reverse. The appointment in terms of the letter of appointment dated 19th July, 1992 itself postulates continuity from 16th June, 1992. It was never the case of the employer that for computing six months service, the starting point of service was 20th July, 1992 and not 16th June, 1992. We cannot permit the employer to set up a new case at this stage. The cited decision has no applicability to the case in hand.12. Thus, the learned Division Bench committed serious illegality in a reversing the finding of fact recorded by the prescribed authority affirmed by the learned Single Judge on a point that was not pleaded by the employer at any stage and was even otherwise untenable.