Rajesh Balia, J.
1. The facts of this case are identical to the facts involved in Kailash Chandra v. State of Raj. and Ors., S.B. C.W.P. No. 5663 of 1993 = RLW 2005(1) Raj. 584. In addition thereto, another fact which has come on record and which has not been disputed is that after the termination on purported ground that work for which the petitioner have been appointed has come to end, another person namely one Prakash Chandra has been appointed as Driver to discharge the duty which the petitioners were discharging under the Municipal Board, Rajsamand until first week of December, 1993.
2. The other facts which emanate clearly from the record are that the petitioners were appointed as Driver on daily wages and continued as such for more than one year when their services were terminated verbally w.e.f. 02.12.1993. The petitioners performed their duties until first December, 1993, however, salary was paid to them only upto August, 1993. The immediate cause of termination was stated to be the demand for better service conditions by claiming fixation in the regular pay scale and the benefit of Dearness Allowance available to the regular employees. The appointment was on muster roll. It was alleged that before termination neither notice nor salary in lieu of notice nor retrenchment compensation has been paid, the remuneration in lieu of notice had been offered after terminating services vide letter dated 22.12.1993 stating that the services have already been terminated and salary in lieu of notice is being sent alongwith the letter. The cheque of Rs. 1,040/- dated 22.12.1993 had been attached alongwith the said letter.
3. About these facts there is no dispute except the bald assertion in the reply that as per the directions issued by the respondent in compliance of provisions of Section 25F of the Industrial Disputes Act notice and advance salary/wages were sent to the petitioner vide order dated 22.12.1993.
4. It may be noticed here that the petition was filed on 02.11.1993 initially for regularisation of services and for seeking payment in the regular pay scale of Drivers. However, after notices were issued on 08.11.1993 on admitting the writ petition, the service have been terminated thereafter by oral order, that led to the amendment of the writ petition claiming the relief against termination order also.
5. In reply, it has been clearly stated while admitting the factum of retrenchment that notice and advance salary were sent to the petitioner vide order dated 22.12.1993. Thus, since the compliance of provisions of Section 25F of the industrial Disputes Act has already been made, the present writ petition has become infructuous.
6. Apparently, the respondent were not well advised to take this plea when the law is settled by number of decision that the compliance of Section 25F is a condition precedent before retrenchment becomes effective. Both the conditions stated in Section 25F are conditions precedent and not the conditions subsequent which could be complied with after effecting retrenchment. The first condition for affecting a valid retrenchment is that the workman sought to be retrenched, must be given one month's notice before retrenchment is to be made effective. In case the services are required to be terminated immediately or before the expiry of one month, the employer is required to pay salary/wages in lieu of one month's notice before retrenchment is effected. That is not the only condition, the second and equally important condition is that at the time of retrenchment, the workman must be paid retrenchment compensation computed at the rate of 15 days wages for each completed year of services. If the payment required to be made is neither paid nor offered/paid before the retrenchment becomes effective or the amount offered is less than the required amount by any sum, the retrenchment becomes void.
7. In the present case, admittedly, the wages in lieu of notice had been sent to the petitioner on 22.12.1993 and the retrenchment has taken prior thereto, the compliance of Section 25F has been only in breach thereof. It has not been even averred in reply to the writ petition that retrenchment compensation has ever been paid or offered though in the connected (Kailash Chandra v. State and Ors.) (supra), it has been noticed that the retrenchment compensation has also been offered in Feb., 1994 and not prior to that date. Apparently, on admitted facts, the retrenchment is invalid and cannot be sustained.
8. The other vague stand taken by the respondents is that the petitioners were granted employment for a specific period in violation of the breach of the Rules, which is not supported by any material inasmuch as the admitted position is that the appointments were by entering the petitioners names in the muster roll and they have continued to work for more than one year.
9. The condition which exempts an employer from the rigors of the limited protective umbrella given to the workman is that where termination of the service of the workman is as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein, such termination does not fall within the expression 'retrenchment.' However, the necessary ingredients to take the termination out of the wide definition of retrenchment has not even been pleaded by the respondents. It has not been pleaded that the services of the petitioners came to an end because of non renewal of the contract of employment on its expiry or the services were terminated under a stipulation in the behalf contained in that contract. Since, the appointment was like an employment on work charged establishment on daily rated basis by entering the name on muster roll, both the conditions cannot be presumed to exist unless specifically pleaded and proved. Apart from such bald assertions, the services were terminated on the expiration of specific work having come to an end, nothing has been placed on record to support this plea, which is the basis of treating the case out of retrenchment. In fact, the plea that they have made compliance of Section 25F goes to show that even the respondents did not consider that the termination of the petitioners does not fall within the precincts of expression 'retrenchment.'
10. The petitioners in their additional affidavits filed subsequent to the reply clearly stated by giving the name of the person who has been employed within three weeks after termination of their services to discharge the same functions and which fact has not been refuted. This makes the action of the respondents not only contrary to the provisions of Industrial Disputes Act but also arbitrary and unjust apart from being in violation of clear provisions of Section 25H of the Industrial Disputes Act, 1947.
11. In this view of the clear facts emanating from the record produced before the Court, the respondents plea, at this juncture after 12 years of filing of the writ petition to non suit the petitioners on the ground of availability of alternative remedy by approaching the Labour Commissioner and then on failure report to be submitted by him to seek a reference to the Labour Court for adjudication of his dispute cannot be sustained. Undoubtedly, ordinarily, in the circumstances of availability of equally efficacious alternative remedy, this Court would not invoke its extra ordinary jurisdiction to intervene and leave the parties to avail the remedies available to them in the regular course, but at the same time, it is a rule a discretion and not rule against maintainability of the writ petition or a restriction on the discretion of the Court to entertain a petition even if the circumstances of the case so warrants.
12. In the present case, the fact that apart from the matter being pending from almost 12 years before the respondents have acted in violation of petitioner's right to be offered employment in priority even if the retrenchment were to be valid when appointment was made in third week of December, 1993 on the post of Driver, I am not inclined to sustain the preliminary objection and non suit the petitioner only on the ground of availability of alternative remedy at this stage.
13. As a result of the aforesaid discussion, the writ petition is allowed. Termination of the petitioners services is held to be invalid. The petitioners shall be reinstated with no back wages because they worked on daily rated basis and have not actually discharged the function. However, they shall be allowed to avail benefit of continuity of service and the seniority amongst like candidates who were working with them as daily rated workman. The claim of the petitioners to other relief namely to the regular pay scale or fixation of the regular pay being depended on variable facts which are not before the Court, the petitioner are left free to pursue remedies before appropriate authorities including of making representations to the respondents.