STATE OF RAJASTHAN AND ORS.versusRAMESHWAR LAL GAHLOT

                   STATE OF RAJASTHAN AND ORS.                                      A
                                        v.
                      RAMESHWAR LAL GAHLOT

                              DECEMBER 14, 1995

                                                                                    B
             [K. RAMASWAMY AND B.L. HANSARIA, .I.I.]

      Labour Law :

       l11dustrial Disputes Act, 1947: Sections 2(oo)(bb) 25F. Temporary
appoi11tment for 3 months or till regularly selected candidate assumes of- C
[ice-Employee's appoi11tme11t tenni11ated after 240 days' service in tenns of
letter of appci/lfme11t-W!it pctitio11 agai11st tenninatio11 filed-Single Judge
held tmni11atio11 ;·:olativc of S.25F of the Act and ordered employee's ap-
pointme11t afresh-Appeal filed agai11st latter pan of order-Divisio11 Be11ch
ordered reinstatement of employee with back wages-Held: since tenninatio11 ,
was ill tenns.of letter of appoi11tme11t 11either rei11statement 11or fresh appoillt- D
me11t could be made-He11ce, tenni11atio11 was not illegal-Since employee
was appoillled afresh and order of Single Judge was not chall<i11ged he would
continue in service till regular incunibent assunies offic~However, he was
not entitled to back wages.
                                                                                    E
      The respondent was appointed for a period of three months or till the
regularly selected candidate assumed office. His appointment was ter-
minated after 240 days. The respondent filed a writ petition in the High
Court which was allowed by a Single Judge on the ground that since the
respondent had completed more than 240 days in service, the termination
was violative of Section 25F of the Industrial Disputes Act, 1947. The              F
appellants were directed to make fresh appointment of the respondent. The
appellants filed against the latter part of the order before the Division
Bench of the High Court which set aside the latter part of the order and
directed reinstatement with back wages.

      On behalf of the respondent it was contended that since the appellant
                                                                                    G
did not challenge the order of the Single Judge the termination became final
and, therefore, the appellant was liable to pay back wages to the respondent
on reinstatement.

      Allowing the appeal, this Court                                               H
                                       673
    674                    SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A         HELD : 1.1. When the appointment was for a fixed period unless
    there is finding that power under Section 2(oo)(bb) of the Industrial Dis-
    putes Act, 1947 was misused or vitiated by its ma/a fide exercise, it cannot
    be held that the termination is illegal. In its absence, the employer could
    terminate the services in terms of the letter of appointment unless it is a
B   colonrable exercise of power. It must be established in each case that the
    power was misused by the manager or the appointment for a fixed period
    was a colonrable exercise of power. Neither the 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 nor fresh appointment could be made. Since the
C   appellant has not filed any appeal against the order of the Single Judge and
    respondent came to be appointed afresh he would continue in service, till
    the regular incumbent assumes office as originally ordered. [675-E-F]

          M. Venugopal v. Divisional Manager, LIC., [1994] 2 SCC 323, relied
    on.
D
          1.2. 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. [675-G]

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12056 of
E 1995.
         From the Judgment and Order dated 26.4.94 of the Rajasthan High
    Court in D.B.C.S.A. No. 292 of 1992.

          Manoj Kr. Das for Aruneshwar Gupta for the Appellants.
F
          Ms. Pratibha Jain for the Respondent.

          The following Order of the Court was delivered :

          Leave granted.
G
           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
H of three mo'lths or till the regularly selected candidate assumes office. He
                           STATEv. R.L.GAHLOT                             675

was appointed on January 28, 1988 and his appointment came to be                 A
terminated on November 19, 1988. When the writ petition was filed, the
learned single Judge held that since he had c0mpleted 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      B
Division Bench set a'ide the latter part of the order and directed reinstate-
ment 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 judgment of this Court
reported in M. Venugopal v. Divisional Manager, LIC., [1994] 2 SCC 323. C
Therein this Court has 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 i> contended for the respondent that since the order of the
learned si11i;1e Judge was not challenged, the termination became final.
Consequently, the appellant would be liable to pay back wages on reinstate-
ment. In our considered view, the opinion expressed by learned single D
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 fade exercise, it cannot
be held that the termination is illegal. In its absence, the employer could
terminate unless it is colourable exercise of power. It must be established E
in each case that the power was misused by the management or the
appointment for a fJXed period was a colourable exercise of power. Unfor-
tunately, 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 F
 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 G
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 indicated above. No costs.

v.s.s.                                                       Appeal allowed.