Sher Bahadur Singh vs U.P.Forest Corporation, Lucknow and Others

Devi Prasad Singh, J.—Heard Sri Y.S. Lohit and Sri L.P. Shukla for respondents as well as perused records.

The petitioners are retrenched employees of the U.P. Forest Corporation. On a mass retrenchment on 15.9.1993, bunch of writ petitions were filed challenging the retrenchment order. The matter had gone upto Hon''ble Supreme Court with the allegation that the respondents have not framed any scheme for absorption of retrenched employees. A writ petition No.880 (S/S) of 1995 was filed which was decided finally vide judgment and order dated 1.9.2005 contained in Annexure No.8 to the writ petition. Submission is that in spite of directions issued by this Court affirmed by Hon''ble Supreme Court as well as subsequent judgment and order dated 1.9.2005 (supra), the respondents have not taken any steps to absorb the retrenched employees. Attention has been invited to certain portion of the judgment and order dated 1.9.2005 (supra) which is reproduced as under:

�It is noteworthy that the U.P. Forest Corporation Service Regulations (for short ''Regulations'') notified vide Government Order dated February 25, 1987 came into force with effect from 1st April, 1985. As per provisions of Regulation 16, employees would be engaged on Daily Labour basis on consolidated monthly salary after conducting the written, oral, physical and medical examination. Even prior to this, the practice in vogue was that Daily Labour were engaged after holding a written test and the selected employees were placed in a select list in the order of seniority. They were to be regularized after completion of two years satisfactory service. Some of the labourers, who were engaged prior to the Regulations came into force, filed writ petition praying for various reliefs including confirmation etc. In those writ petitions being led by Writ Petition No.4209 (S/S) of 1988, this Court issued a Writ in the nature of mandamus commanding the Forest Corporation and the other authorities to prepare absorption/ regularization scheme and regularize the D.L. Staff against the then existing 755 posts. The direction postulated for regularization in a phased manner. The S.L.P. preferred by the Corporation against the judgment in that Bunch was dismissed. Till date, no such Scheme has been finalized, although learned Counsel for the Corporation submitted that a Scheme framed in pursuance of the Court''s Order was sent to the Government for approval. No plausible reason has been disclosed as to why the Government has not yet taken a final decision on such Scheme. Instead of complying with the Mandamus, the Corporation preferred a Review Petition, which was heard along with the bunch of Writ Petitions filed in the meantime by such staff working on D.L. basis who had been restrained from coming to work on the ground of their being seasonal labourers. The orders issued by the Corporation authorities terminating the services of such labourers were challenged on various grounds including the one that such termination orders were violative of the Regulations. In its judgment of July 12, 1994, this Court deprecated the action of the authorities of the Corporation of issuing enmass retrenchment orders. The alteration in the norms envisaged in the Regulations was also held to be illegal. It was observed in the abovereferred judgment that action was taken by the authorities without seeking permission of the Court. The authorities did not even care to inform the Court about the bulk retrenchment orders. The Court, therefore, decided the Writ Petitions in terms of the interim orders and as such, the D.L. Staffers were allowed to continue to work and be paid salary. A perusal of this judgment would reveal that the stand of the Corporation in violating the specific Mandamus issued by this Court in earlier bunch of cases was deprecated, although with an observation that an employer had to make retrenchment in strict adherence to the statutory provisions. The authorities without caring for interpreting the judgment in letter and spirit took shelter of the alternative clause and again retrenched the daily labours in the year 1995. The judgment of July 12, 1994 clearly stipulated that before making retrenchment, the authorities of the Corporation would make every effect to accommodate its employees and if not possible in the eastern region, then in any other region. Except verbal submission that such efforts were made, there is nothing on record to justify that sincere endeavour was taken recourse to by the Corporation to accommodate the D.L. Staffers in other regions. This was it mandatory direction but the authorities of the Corporation perhaps took it lightly and did not bother to explore the possibility of its D.L. Staffers going to be retrenched, being accommodated in other regions. It was an atrocious decision of the Corporation without undergoing such an exercise to have retrenched the D.L. Staff, some of them being engaged even prior to the year 1985. As can be observed, it was a deliberate and mischievous omission on the part of the authorities of the Corporation whereby this Court''s direction was circumvented. The direction may be reproduced as below:

�In case of reduction of work of shortfall in the work, the authorities of the Forest Corporation would make an endeavour to adjust them in alternative works available in the particular region. In which they are working or in any other region where work is available before giving them seasonal leave or terminating their services.�

The apathetic attitude of the authorities which compelled some of the petitioners to enter into third round of litigation deserves to be censured. In such circumstances, the Court is left again which no alternative except to set aside the retrenchment orders passed by the Corporation without caring for the Court''s earlier Mandamus.�

While concluding judgment dated 1.9.2005, Hon''ble Single Judge proceeded to observe as under:

�Accordingly, all the writ petitions of this instant bunch of cases are allowed and the Termination Orders of the Petitioners of the all the petitions are quashed. A writ of certiorari is issued to this effect. Further, a Writ of Mandamus is issued commanding the opposite parties to reinstate and allow all the petitioners to continue in service and regularize them in a phased manner in view of the directions given earlier in this Court''s Judgment dated 12th July, 1994. However, since a long lapse of time has intervened in between, they would not be entitled to the back wages but the Forest Corporation and the Government shall make their best endeavour to absorb them on permanent basis as early as possible. All the petitioners shall be entitled to get costs of the entire litigation from the Forest Corporation.�

Submission of the petitioners'' counsel is that in spite of repeated directions of this Court, the judgment has not been complied with. Through this writ petition, a writ in the nature of mandamus has been prayed for issuance of command to absorb as well as to quash the order dated 22.9.2007 followed by the order dated 17.10.2007 contained in Annexure No.13 to the writ petition, in violation of statutory provisions.

Sri L.P. Shukla, learned counsel defends action of respondents on two grounds. Firstly, that the writ petition is not maintainable and petitioners have alternative remedy to approach Labour Court. Secondly, that in pursuance of the judgment of this Court, already more than 700 vacancies have been created with permission of the State Government and absorption has already been done. Petitioners'' counsel refutes statement with regard to creation of posts and absorption.

So far as the submission of respondents counsel that the writ petition is not maintainable, I do not find any reason to relegate the matter to Labour Court keeping in view the previous litigations in this Court as well as the Apex Court. According to petitioners counsel, the judgment has been affirmed by Hon''ble Supreme Court. Once the litigants approach this Court with the allegation that the judgment of this Court has not been complied with in letter and spirit, then it shall neither be just and proper to relegate the matter to Labour Court. By catena of judgment of Hon''ble Supreme Court, it has been held that the alternative remedy is not bar and Court in appropriate cases, may entertain the writ petition to impart justice to litigants. Keeping in view the earlier litigation, adjudicated or pending in this Court, it shall not be appropriate to relegate the matter to Labour Court. Accordingly, the objection of respondents with regard to maintainability is rejected.

So far as the submission of Sri L.P. Shukla, that more than 700 posts have been created and the judgment and order has been complied with, it requires adjudication.

Sri L.P. Shukla, learned counsel submits that special appeal has been filed which is pending before this Court and the special appeal in response to earlier judgment is also pending.

Accordingly, writ petition is admitted.

Four weeks time is allowed to file counter affidavit and two weeks time is allowed to file rejoinder affidavit.

List along with the W.P.No.8322 (S/S) of 2007, 8129 (S/S) of 2007, 7526 (S/S) of 2007, 5581 (S/S) of 2007, 7296 (S/S) of 2007, 8130 (S/S) of 2007, 7243 (S/S) of 2007, 7242 (S/S) of 2007, 8323 (S/S) of 2007, 1230 (S/S) of 2008, 6692 (S/S) of 2008, 3321 (S/S) of 2008, 3946 (S/S) of 2008 after six weeks for peremptorily hearing.