ORDER
Balia, J.
(1). Heard learned counsel for the parties. Matter has come up for orders on application moved by the learned counsel for the respondent for clarification of the order passed on application under Section 17-B of the Industrial Disputes Act, regarding payment to be made to the respondent who has been reinstated, after order dated 11.5.1995, was made by the Court directing the petitioner to pay last drawn wages to workman in terms of section 17-B of the Act.
(2). However, at the request of learned Counsel for the parties, the petition itself has been heard.
(3). The respondent-Mohammed Ali, who was employed as a Pump Driver on 14.9.88 on daily wages of Rs. 25/-per day, aggrieved with termination of his service on 1.7.90, raised an industrial dispute. The said workman was employed by the Principal Dungar College, Bikaner, for discharing the duties of the College. However, he was being paid from the Students Funds.
(4). Two fold arguments have been raised : firstly : he has voluntarily left the services and it was not the case of the termination of the services by the petitioner. Secondly, it was contended that the respondent workman has been appointed as Pump Driver and was being paid throughout from the 'Students Funds' which is governed by the Rules framed under Article 266(2), of the Constitution, therefore, the workman was not an employee, of the college and is not entitled to protection because in very nature of things services have been temporary and lasts only until funds existes. Learned counsel placed reliance on the Rajasthan State Students Funds (Government Colleges) Rules, 1970.
(5). The Labour Court to whom dispute was referred under Section 10 of the Industrial Disputes Act, 1947, found that the boys found is not an independent establishment from the Doongar College and the plea that there was no relationship of employer and employer between Doongar College and workmen, was negatived. The plea that the workman has voluntarily left the job on 30th June 90 was not accepted in view of the fact that the workman has immediately raised a dispute in respect of the alleged termination on 1.7.90 and the dispute has also been referred to adjudication by Labour Court on 28th Oct. 91, on submission of failure report by the conciliation officer. In these circumstances the plea that workman has left voluntarily job on 30th June 1992 was not accepted. As there was no dispute that no compliance of provisions of section 25-F was made and another person has been appointed on the termination of the service of the respondent workman, the retrenchment was held to be invalid and the workman was reinstated by award dated 20th Feb. 1996 but no back wages prior to date of award was allowed. The award was published on 4th Feb. 1997 and soon thereafter this petition was filed.
(6). On 4th of Sept. 1997, operation of the award was stayed by an ex parte ad interim stay order. However, an application was moved by the respondent workman on 11th May 98 u/Sec. 17-B of the Industrial Disputes Act, 1947, alongwith an affidavit that he is not employed anywhere. The Court directed the petitioner to pay last drawn wages to the workman in terms of Sec. 17-B of the Industrial Disputes Act. It appears that in these circumstances, workman in fact, has been reinstated thereafter, though he has still been paid last drawn wages. There is no justification for not paying the regular emolument of the post after reinstatement. Sec. 17B becomes operative onlyin case operation of award of reinstatement is stayed but the workman is unemployed notwithstanting the award. In case there is no interim order staying the operation of the award, question of operating Sec. 17-B simply does not arise in as much in such event the workman becomes entitled to full wages with effect from the date of award, whether the employer takes work from the workman or not. The award becomes operative and enforceable on expiry of 30 days from the date of its publication.
(7). So far as contention of the learned counsel for the petitioner that since workman has been paid out of the students fund under the Rules framed under Article 266 of the Constitution, and, he cannot be called employee of the College, does not sustain itself on scrutiny.
(8). Article 266 merely deals with the accountability of moneys received by Union of India or respective States. It envisages that money received by the Union of India as well as the State from different sources on different account of Revenue received by the Govt. shall form one consolidated fund to be called 'consolidated fund of India', and revenue received by the Govt. of a State, all loan raised by the Govt. by the issue of treasury bills, loan or ways and means advance and all money received by the Govt. in repayment of loan shall form one consolidated fund to be called 'consolidated fund of the State.' While receipt of the money referred in clause (1) of Article 266 forms part of consolidated fund of India or consolidated fund of the State as the case may be. Clause (2) deal with all other public moneys received by or on behalf of the Govt. of India or the Govt. of State is required to be credited to the public account of India or public account of the State as the case may be.
(9). The admitted case of the petitioner is that the money in question does not become part of the consolidated fund of State but is other moneys which is required to be credited to the public account and at the disposal of the State. I am unable to apprehend that what difference it would make so far as the relationship of the employer and employee between the State, any person employed by the State whether the money is paid from the consolidated fund of the State or out of the other public money transferred to the public account managed by the State for the accounts of which State is accountable. Difference may be in the matter of its management. Both refers to public funds and managed by State. That would not detract from the colour of employer and employee relationship and a person employed out of any fund available at disposal of the State shall be an employee of the State. At the best it may affect the terms and conditions on which such employment is offered. As is apparent from the provisions of Section 25-J of the Act, that the provisions of Chapter V-A and V-B are operated notwithstanding anything to the contrary contained in any of the law or rules or contracts. Therefore, operation of these provisions cannot be inhabitated by terms of employment under which the employment is offered. An employee may be either appointed on permanent basis or temporary basis it makes no difference on the enforceability of rights flowing from such provisions. It is further apparent that under Chapter V-A section 25-F of the Act does not prohibit employer to terminate the services of employee which otherwise he may be entitled to but only offers some protection against indiscriminate termination of services by providing protective umbrella of Conditions to be fulfilled before such termination takes effect. Even if temporary employee, who is in the employment for one year continuously or more, is discharged from service, he is entitled to protection of benefit of Section 25-F Chapter V-A, and before his service can be terminated he has to fulfill all these conditions so as to provide minimum protection to the retrenched workman. The relevant factors are the existence of employer- employee relationship; if the employer is State, the employment is or is not in discharge of sovereign function of the State, the period for which he was employed before the termination took place, the relative seniority of workman discharged vis-a-vis the other workman retained; special reason, if any, disclosed by the employer for overlooking the 'last come first go rule' having rational nexus with object of such deviation: and whether the termination is in anymanner excluded from the ambit of 'retrenchment' as defined in Section 2(00) of the Industrial Disputes Act of 1947. The fund from which his wages are paid and accounted for by the employer is of little relevance.
(10). It is not disputed that the petitioner was employed by the Principal, Dungar College. It is not in dispute and cannot be disputed that he was employed for the college activities and he was paid out of the public money. There is no separate establishment other than college for whose activities the fund can be utilised. The fund is not a separate entity as juristic person who could assume the role of an employer. The workman was indisputedly in service more than 2 years, at the time of alleged date of retrenchment. There is no contention that employment at College was in any way connected with sovereign function of the State,' nor payment of wages was out of consolidated fund of State. Therefore, compliance with the provisions of Section 25-F was the condition precedent before his service could be terminated. Rule 15 to which reference has been made only provides that the Principal may employ temporary labour on daily wages for maintenance of play grounds and gardens or for all purposes as required for their college activities. I am unable to find any provision under which the fund is invested with any independent district personality so as to be called establishment independent of the College: or to infer that such employment by term of employment was a fixed term employment within the meaning of Sec. 2(oo) (bb) of the Act of 1947. There is no warrant to assume that a temporary employment is necessarily a fixed term employment under which service stands terminated by efflux of time. Except perhaps voluntary leaving of job, ordinarily and other employment, in the absence of any term to that effect, do need an employer's positive action to bring an end to continued service of an employee, whether temporary or permanent.
(11). In the aforesaid circumstances, no error apparent is to be found in the award of the Labour Court which may call for interference by this Court. The writ petition filed by the petitioner is dismissed. Notices issued are discharged. Petitioner is further directed to pay full wages since the date of award. No costs.