Chandra Pal Singh and vs State of U.P. and others

Devi Prasad Singh, J.—Heard the learned Counsel for the Petitioner and the learned standing Counsel. Both these writ petitions involve common questions of law and fact hence they are decided by his common judgment and order.

According to Petitioner''s Counsel, the Petitioner was appointed on 1.7.1987 as a Class IV employee under work-Charge Establishment. The services of the Petitioner were dispensed with orally by the order dated 19.5.1997 Feeling aggrieved, the Petitioner filed W.P. No. 5259 (S/S) of 1997 which was finally disposed of by the judgment and order dated 20.1.2000 contained in Annexure No. 1 to the writ petition. While deciding the controversy this Court had directed the Respondents to extend the benefit of earlier judgment of this Court reported in 1993 HVD (Allahabad) Vol. IV page 69: H.M. Rizvi and Ors. v. Rural Engineering Service U.P. and others. In the case of H.M. Rizvi (supra), the controversy before this Court was also relating to retrenchment of workmen. It was held by this Court that since the provisions of Industrial Disputes Act have not been followed while terminating services, the termination stands nullified. The operative portion of the judgment of H.M. Rizvi''s case is reproduced as under:

In view of what has been indicated herein above, the writ petitions succeed. A writ in the nature of mandamus is issued commanding the opposite parties to allow the Petitioners to work in the same posts held by them in the establishment of Rural Engineering Service ignoring the oral order of discharge/termination passed against them. The Petitioners would be deemed to be in service during the period they were not allowed to work in pursuance of the oral order of discharge/termination passed against them. But they would not be entitled for back wages. This order has been passed only for the reason that it would put the department of Rural Engineering Services to a great financial strain. The engineers who were engaged as work charge Engineers would be paid monthly salary @ 1750/- + 750/- as work charge employees who were engaged as Clerks/ Peon (Class IV employees) etc., would be paid the minimum scale of pay, which is being given to class III and IV employees working in the RES department. The opposite parties are directed to consider the cases of the Petitioners for regularization of the services in the light of the observations made above. Writ allowed.

According to Petitioner''s Counsel, since the Petitioner''s services were also terminated orally on 19.5.1997 and this Court while adjudicating the Petitioner''s earlier Writ Petition No. 5259 (S/S) of 1997, had directed to extend the benefit of the judgment of H.M. Rizvi (supra), the Petitioner was entitled for restoration of his service with all benefits. The Petitioner submitted representation along with a copy of the said judgment dated 20.1.2000 on 31:1.2000. In the meantime, the Government Order dated 30.5.2000 contained in Annexure No. 13 to the writ petition, was issued formulating the scheme relating to work charge establishment in the Rural Engineering services. In compliance of the judgment and order of this Court dated 20.1.2000, the Petitioner was reinstated in service on 3.11.2000. While passing the order dated 3.11.2000 contained in Annexure No. 5-A to the writ petition, it has been observed that between 1989 to 1997, the Petitioner discharged duty for more than 240 days and the Petitioner was also paid minimum pay scale admissible to his cadre in view i the H.M. Rizvi''s case (supra). The order also provided that steps shall be taken for regularization of services in pursuance of the Government Order issued from time to time. By the order dated 31.1.2001, contained in Annexure, No. 9 to the writ petition, the Petitioner was directed to receive salary payable to daily wage employee. However, the Petitioner declined to accept the salary payable to daily wage employee on the ground that in view of the Government Order dated 3.1.2000, the Petitioner was entitled for minimum pay scale admissible to his cadre. It appears that when the Petitioner failed to get salary in terms of the order dated 3.11.2000, he filed Crl. Misc. Case No. 273 (C) of 2001 for proceeding against the competent authority under the Contempt of Courts Act. Notices were issued on 22.1.2001 against the competent authority. It was in view of the aforesaid backdrop that by an order dated 16.3.2001 contained in Annexure No. 10 to the writ petition, the Executive Engineer had terminated Petitioner''s services in pursuance of power conferred u/s 6-N of U.P. Industrial Disputes Act. The order of termination dated 16.3.2001 has been impugned in the connected writ petition No. 6484 (S/S) of 2002. By an interim order this Court directed to decide the Petitioners representation in the aforesaid writ petition. The competent authority by the impugned order dated 11.12.2002 contained in Annexure No. 14 to the writ petition, has rejected the Petitioner''s representation. Hence, the present writ petition was filed by the Petitioner.

While assailing the impugned order, learned Counsel for the Petitioner submitted that the judgment and order of H.M. Rizvi (supra) has been complied with in letter and spirit in pursuance of other persons in the matter of regularization of service. While complying the provisions contained in Section 6-N of the U.P. Industrial Disputes Act, the Respondents have not followed the principle of first come last go. The submission is that in view of the provisions of Section 6-P of the U.P. Industrial Disputes Act, it was incumbent on the Respondents to retrench the workmen who were lastly employed unless reasons to be recorded in writing. The provisions of Section 6-P of the U.P. Industrial Disputes Act is reproduced as under:

6-P: Procedure for retrenchment - Where any workman in an industrial establishment who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.

A plain reading of the provisions of Section 6-P of the U.P. Industrial Disputes Act indicates that the order of retrenchment be passed only by following the principle of first come last go. In case the authorities deviate from this normal rule, then they have to assign specific reason. From the impugned order dated 16.3.2001 contained in Annexure No. 10 writ petition No. 6484 (S/S) of 2002, it is evident that the Executive Engineer has not assigned any the reason by over stopping ordinary course of retrenchment provided under law. Accordingly, the order dated 16.3.2001 seems to be violative of provisions of Section 6-P of the U.P. Industrial Disputes Act.

In para 25 of the Writ Petition No. 146 (S/S) of 2003, the Petitioner has given the name of work charge employees who are junior to him. It has been indicated in the counter affidavit that Phool Singh and Anil Kumar are full timer class-IV employees. The reply given in the counter affidavit seems to be vague. It has not been stated in the counter affidavit that Phool Singh and Anil Kumar are not work charge employees.

Learned Counsel for the Petitioner relied on the judgment in Secretary, State of Karnataka and Others Vs. Umadevi and Others, and submitted that since the Petitioner has served for more than 10 years, he is entitled for regularization. The averments contained in para 53 of Uma Devi''s case (supra), deals with the case which relates to pending matter which has gone upto Supreme Court relating to formation of Constitution Bench. Apart from the above, para 53 provides that employees should have discharged duties against sanctioned vacant post and are duly qualified for regularzation. Under this backdrop, the Constitution Bench given liberty for consideration of services of the employees for regularization. Their lordships further observed that period of 10 years must have been spent against sanctioned post and not under cover of orders of Courts or Tribunals, Apex Court provided that authority shall further ensure that the regular recruitment should be undertaken to be filled up the vacant sanctioned post in accordance with Rules where vacancies are occupied by temporary employees or daily wages. Accordingly, Uma Devi''s case (supra) does not rescue the Petitioner.

However, so far as the present case is concerned, it requires to be decided in terms of earlier judgment of this Court dated 20.1.2000 passed in W.P. No. 5259 (S/S) of 1997. contained in Annexure No. 1 to the W.P. No. 146 (S/S) of 2003. which attained finality. This Court had directed to extend the benefit of earlier judgment of this Court i.e., the judgment and order passed in H.M. Rizvi''s case (supra) which also seems to have attained finality. Accordingly, since the controversy in question attained finality in view of the previous judgment of this Court, it is now not open for the authorities to move otherwise for any reason whatsoever while deciding the controversy in question. The judgment and order which attained finality cannot be reopened nor can be circumvented by the authorities for one or the other reasons or on the basis of subsequent judgment of Hon''ble Supreme Court dealing with different matters. In the present case, it appears that feeling aggrieved with the stand taken by the Petitioner in not accepting the salary in contravention of the terms and conditions given in the office memo dated 3.11.2000 contained in Annexure No. 5-A to the writ petition, the impugned order was passed dispensng with the services which seems to suffer from malice and arbitrariness. Even otherwise also, it is settled proposition of law by catena of decisions of Apex Court that the principles of first come and last go should be followed while terminating services of employee, which is very well accepted norms in service jurisprudence. Accordingly, the Respondents were not entitled to terminate the Petitioner''s services without any specific reason ignoring the principles of first come last go.

To sum up, the impugned order of retrenchment, seems to suffer from vice of malice and arbitrariness. The order has been passed in an unjust and improper manner based on unfounded facts ignoring the Petitioners'' claim which was already settled by the judgment of this Court. The writ petition deserves to be allowed.

Accordingly, both the writ petitions are allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 16.3.2001 contained in Annexure No. 10 to the writ petition followed by order dated 15.11.2002 contained in Annexure No. 14 to the writ petition. A writ in the nature of mandamus is issued commanding the opposite parties to restore the Petitioner in service with all consequential benefits including salary in terms of the office memo dated 3.11.2000 contained in Annexure No. 5-A to the writ petition. There shall be no orders as to costs.