Tirth Raj Misra vs State of U.P. and others

Devi Prasad Singh, J.—Heard learned Counsel for the petitioner and the learned Standing Counsel.

The brief facts giving rise to the present writ petition are that the petitioner was engaged as daily wager on 1.1.1987 and he continued to discharge duty up to 31.1.1998. However, on 1.2.1998, the services of the petitioner were orally terminated. In paragraph 10 of the writ petition the petitioner has mentioned the names of those three persons, namely, Rajendra Kumar Misra, Jitendra Pratap Singh and Merai Ram, who were subsequently appointed to the petitioner, have been retained in service.

The submission of the learned Counsel for the petitioner is that oral order of termination by which services of the petitioner have been dispensed with is not sustainable under law and the petitioner is entitled to get the benefit of Section 6N of the U.P. Industrial Disputes Act.

While filing reply to the contents of writ petition, the respondents have categorically not denied that the petitioner was engaged as Daily Wager in the year 1987. The reason assigned in the counteraffidavit is that on account of no work the services of the petitioner has been dispensed with orally. A plea has also been taken that in absence of work the respondents were having right to dispense the services of the petitioner and it was not necessary for them to pass a written order.

It is settled proposition of law declared by Hon''ble Supreme Court that the Irrigation Department is an Industry.

Learned Counsel for the petitioner has relied upon the judgment of Hon''ble Supreme Court reported in 2000(84) FLR 896, State of U.P. and another v. Rajendra Singh Butola and another, where the Hon''ble Supreme Court has ruled but that the Irrigation Department is an Industry. The other case relied upon by the petitioner''s Counsel is a Division Bench judgment of this Court reported in 2004(2) LBESR 29 (All.), State of U.P. and others v. Deep Chandra and others. The Division Bench of this Court after considering various judgments of Hon''ble Supreme Court reiterated the law that the Irrigation Department is an Industry.

Since in view of the settled proposition of law there appears to be no dispute that Irrigation Department is an Industry, the provisions contained in U.P. Industrial Disputes Act shall govern the service conditions of the petitioner. Section 6N of the Industrial Disputes Act specifically provides for notice of retrenchment and payment of compensation. In the present case, neither any notice has been served nor payment of compensation has been made. In case, the authorities wanted to proceed, they should have proceeded in accordance with law and not otherwise. A plea has been taken by the respondents in the counteraffidavit that since the petitioner was engaged as Daily Wager to meet out exigencies of services, the respondents were entitled to terminate his services even by oral order. The argument advanced by the learned Standing Counsel through plea taken in the counteraffidavit seems to be not sustainable. Whenever the service conditions of an incumbent are governed by some statutory provisions, rules or regulations then it shall always be incumbent upon the authorities to pass appropriate written order while dispensing the services. Passing of a oral order depriving a person from his/her source of livelihood, which is guaranteed under Article 21 of the Constitution of India, is an arbitrary exercise of power and shall be hit by Article 14 of the Constitution of India. Termination of service orally without complying the provisions of Industrial Disputes Act shall suffer from vice of arbitrariness and against the constitutional mandate. Accordingly, the writ petition deserves to be allowed.

The writ petition is allowed. A writ in the nature of mandamus is issued commanding the opposite parties to restore the petitioner in service forthwith providing the same status, which he was occupying in the month of January, 1998. Further, the petitioner shall be given all service benefits including continuity of service for the purpose of regularisation etc. However, the petitioner shall not be entitled for payment of arrears of salary as he has not discharged duty.

The writ petition is allowed accordingly. No order as to costs.