Full Judgment Text
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PETITIONER:
STATE OF RAJASTHAN & ORS.
Vs.
RESPONDENT:
RAMESHWAR LAL GAHLOT
DATE OF JUDGMENT14/12/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1996 AIR 1001 1996 SCC (1) 595
JT 1995 (9) 621 1996 SCALE (1)11
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard the counsel for both the parties. This
appeal by special leave arises from the order of the
Division Bench of the Rajasthan High Court in Civil Special
Appeal No.292/92 dated April 26, 1994.
The undisputed facts are that respondent was appointed
for a period of three months or till the regularly selected
candidate assumes office. He was appointed on January 28,
1988 and his appointment came to be terminated on November
19, 1988. When the writ petition was filed, the learned
single Judge held that since he had completed more than 240
days, the termination is in violative of Section 25F of the
Industrial Disputes Act, 1947 (for short, ‘the Act’) and
directed to make fresh appointment of the respondent. When
appeal was filed against the latter part of the order, the
Division Bench set aside the latter part of the order and
directed reinstatement with back wages. As against the order
altered by the Division Bench, the present appeal came to be
filed.
The controversy now stands concluded by a judgement of
this Court reported in M. Venugopal vs. Divisional
Manager,LIC., [(1994) 2 SCC 323]. Therein this Court had
held that once an appointment is for a fixed period. Section
25F does not apply as it is covered by clause (bb) of
Section 2 (oo) of the Act. It is contended for the
respondent that since the order of the learned single Judge
was not challenged, the termination became final.
Consequently, the appellant would be liable to pay back
wages on reinstatement. In our considered view, the opinion
expressed by learned single Judge as well Division Bench are
incorrect in law. When the appointment is for a fixed
period, unless there is finding that power under clause (bb)
of Section 2 (oo) was misused or vitiated by its mala fide
exercise, it cannot be held that the termination is illegal.
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In its absence, the employer could terminate the services in
terms of the letter of appointment unless it is a colourable
exercise of power. Unfortunately, neither the learned single
Judge nor the Division Bench recorded any finding in this
behalf. Therefore, where the termination is in terms of
letter of appointment saved by clause (bb), neither
reinstatement or fresh appointment could be made. Since the
appellant has not filed any appeal against the order of the
learned single Judge and respondent came to be appointed
afresh on June 27, 1992, he would continue in service, till
the regular incumbent assumes office as originally ordered.
The question then is whether the respondent is entitled
to payment of back wages. Since the order is found to be in
terms of letter of appointment, respondent is not entitled
to back wages. The Division Bench was incorrect in directing
payment of back wages.
The appeal is allowed to the extent indicates above. No
costs.