Ashok Kumar Srivastava v. State of U. P. — 1990 DIGILAW 875 (ALL)

JUDGMENT M. L. Bhat, J. - Six petitioners seek a writ of certiorari for quashing the orders of respondent No. 1 dated 31121989 and 111990. By a writ of mandamus it is prayed that the petitioners to be directed to be treated in continuous service and the respondents be directed to regularise the petitioners' services on their respective posts. 2. The brief facts as set up in the pleadings of the parties may be given herein below. 3. Petitioner No. 1 was appointed on 3151986 On the post of Diploma Holder Superviser on daily wages at the rate of Rs. 18 per day which is increased now to Rs. 25 per day. Petitioner Nos. 2 to 4 were also appointed on the same post on 151987. Petitioner No. 5 was appointed on 2641989. Petitioner No. 6 was appointed on the same post on 1551986. The petitioners state that since the dates of their appointment they have worked on the post of Diploma Holder Supervisors without any break. True copies of the certificates to this effect issued by their superior authority are annexed as Annexures I, II, III, IV, V and VI to the writ petition. Since the petitioners have worked for a period of 240 days of each year for more than three years, they are said to have attained the status of permanent workmen and are entitled to be regularised on their posts. 4. The State of U.P. is said to have issued a Govefnment order dated 2411989 for regularisation of all employees who have Worked for a period of 240 days of each year for three years continuously and the Nagar Mahapalikas were further directed to submit a list of posts which were to be regularised within a period of 15 days. Copy of the G. O. is Annexure VII to the writ petition. On the basis of this Government Order the petitioners wanted regularisation of their services. The services of the petitioner Nos. 1 to 5 are governed by the provisions of Rule 31 of the Centralised Rule framed by the State Government in exercise of the powers conferred under the provisions of the U.P. Nagar Mahapalika Adhiniyam, whereas the services of petitioner No. 6 are governed by the provisions relating to the Employees of the Nagar Mahapalika. The respondents normally used to get extension to the petitioners for three months which was to expire on 31121989. The respondents normally used to get extension to the petitioners for three months which was to expire on 31121989. On the basis of a letter of Assistant Engineer, the services of the petitioners and other daily wages employees were extended for another three months i. e. till 3131990. The extension granted to the petitioners by the Nagar Mahapalika is recorded in AnnexureVIII to the writ petition. Surprisingly enough another communication was addressed by the Nagar Mahapalika to the Executive Engineer directing him to retrench the services of the employees w. e. f. 111990. The two orders of the Nagar Mahapalika are contradictory. By one order the extension of the petitioners' services was desired and by another order the retrenchment of the petitioners was desired. The order dated 31121989 by which the petitioners have been removed from service is impugned in the writ petition. 5. The petitioners submitted that they are the workers in respondent No. 2's Industry in terms of 6N of the Industrial Disputes Act. The petitioners seek protection of the said Act. The petitioners' retrenchment was without any compensation and without any notice, which renders the order of retrenchment illegal and bad. 6. The petitioners have submitted a list of all the employees who were to be regularised. Regularisation to be made for three posts of the supervisors and nine posts of Junior Engineers. A copy of the list submitted by the Nagar Mahapalika to the State Government indicating the number of posts on which regularisation was sought, is Annexure X to the writ petition. The petitioners state that they are fully qualified to be approved against the posts. They are competent to hold the post of Junior Engineers. The petitioners have mentioned names of some employees who have been retained and whose appointments were made on 111987, 2561986 and 2761986. These per ons are junior to the petitioners and they were retained in service. The impugned order is said to be discriminatory. It is said that the respondents should have followed the Rule of last come first go or first come last go. Some political statements alleged to have been given by the Minister concerned are relied upon. 7. In their reply affidavit, the respondents have contended that the petitioners have an alternative remedy to raise the dispute before the Labour Court, therefore, this petition is not maintainable. Some political statements alleged to have been given by the Minister concerned are relied upon. 7. In their reply affidavit, the respondents have contended that the petitioners have an alternative remedy to raise the dispute before the Labour Court, therefore, this petition is not maintainable. However it is admitted that the petitioners were engaged on daily wage basis from time to time as and when their services were required. In respect of petitioner No. 5, he is said to have been given work only on 2641989 initially for a period of three months on daily wage basis. None of the petitioners is said to have acquired any right to continue with the respondents because they were engaged casually on daily wage basis. They have no right to continue in service. None of the petitioners is said to have completed three years of service except petitioner No. 6 and that too with certain breaks. It is contended that the petitioners may have worked for 240 days in a year but it was not continuous. It is wrong that they have attained the status of permanent worker and are entitled to be regularised on the posts on which they have worked. The regularisation of the post is subject to the availability of regular post. There is no regular post available with Nagar Mahapalika, Gorakhpur, therefore, the petitioners cannot be considered. None of the petitioners is said to have worked for three years, therefore, the Government Order cannot give them any benefit. Extension of the petitioners upto 3131990 is denied. Power to make appointment and sanction the posts vests in the State Government. Therefore, unless the State Government sanctions the post, the petitioners' claim cannot be considered. It Is denied that any junior has been retained. 8. In the rejoinderaffidavit, it is stated that only the petitioner No. 5 has not completed 240 working days and all ethers have completed 240 working days as laid down in the Government Order. 9. Learned counsel for the parties were heard at length. The objection regarding the maintainability of the writ petition need to be taken up first. It is not the case of the respondents that the petitioners' services were terminated afler following the procedure laid down in Section 6N of the Industrial Disputes Act. 9. Learned counsel for the parties were heard at length. The objection regarding the maintainability of the writ petition need to be taken up first. It is not the case of the respondents that the petitioners' services were terminated afler following the procedure laid down in Section 6N of the Industrial Disputes Act. The provisions contained in U.P. Industrial Disputes Act require to serve a notice on the worker and to pay them compensation. That has not been done. Therefore, in such a situation this Court can entertain the writ petition. I am supported in this view by an authority of this Court Shafqat Ullah Khan v. U. P, State Electricity Board, reported in (1989) 1 UPLBEC 641. The respondents have not shown that they have followed the procedure laid down under law for termination of the petitioners' services. Therefore, the alternative remedy will not bar the filing of the present writ petition. The preliminary objection is, therefore, overruled. 10. The second question which needs to be considered is whether the petitioners are required to have worked continuously for 240 days, or 240 working days are required even though there may have been intermittent break in their working period. 11. Law requires that a person who has put 240 working days in a year and has worked for three years has right to seek consideration on regular basis. 12. Amongst the petitioners, except petitioner No. 5 each of the petitioners has worked for 240 working days and has rendered qualifying service sa as to take benefit of the Government order on which both sides have relied. In the case of petitioner No. 5, his appointment as daily wage worker is said to have taken place for the first time on 2641989 and the appointment was to continue only for three months. Even if he has been engaged continuously for three months from 2641989 for any period thereafter (which is not known), he does not appear to have completed 240 working days for being eligible to seek consideration on regular basis. Therefore his case is slightly different from the case of others petitioners, i. e. the petitioner Nos. 1 to 4 and 6, These petitioners have rendered qualifying service and have worked for 240 working days though not continuously, are eligible for consideration. Therefore his case is slightly different from the case of others petitioners, i. e. the petitioner Nos. 1 to 4 and 6, These petitioners have rendered qualifying service and have worked for 240 working days though not continuously, are eligible for consideration. It is not necessary that one must have put 240 working days continuously without break, What is required is 240 working days. There may have been intermittent break between these working period, that would not affect a worker's right who has completed 240 working days and rendered a qualified service under the Government Order. I would, therefore, hold that petitioners Nos. 1 to 4 and 6 are eligible for consideration on regular basis. Petitioner No. 5 has attained this qualification. 13. It was contended that there are no posts available against which the petitioners could be considered on regular basis. The creation of posts is said to be in the hand of the State Government and unless posts are created the petitioners cannot claim consideration. 14. It may be true that at a given time no post may be available against which the petitioners could be considered, but the moment the posts are available the petitioners shall have to be considered against the posts on priority basis. It is not the case of the respondents that there is stagnation and no post will be ever available. Availability of post is related to the need of the respondents. The moment respondents need the posts they can ask the State Government to create the post. Therefore, nonavailability of the post at the moment will not affect the rights of the petitioners to seek consideration in future. 15. The petitioners' case is that their juniors have been retained and the principle last come first go has not been followed, does not appear to be correct. The respondents have denied this fact. Therefore, it is difficult to disbelieve the respondents in this behalf. 16. The impugned order whereby the petitioners' services are terminated or retrenched is rendered bad for more than erne reasons. The retrenchment order is not in accordance with the provisions of U.P. Industrial Disputes Act. In so far as petitioners Nos. The respondents have denied this fact. Therefore, it is difficult to disbelieve the respondents in this behalf. 16. The impugned order whereby the petitioners' services are terminated or retrenched is rendered bad for more than erne reasons. The retrenchment order is not in accordance with the provisions of U.P. Industrial Disputes Act. In so far as petitioners Nos. 1 to 4 and 6 concerned they have put more than 240 working days and they should heve been considered for regularisation on the posts, instead they have been removed from the posts which they held on daily wage basis. 17. Therefore, the impugned order, so far as it retrenches the petitioners is rendered bad and petitioner Nos. 1 to 4 and 6 are entitled to be considered on regular basis against the posts which they hold immediately before the issuance of impugned order. 18. Accordingly, the writ petition succeeds. The impugned order dated 31121989 and 111990 are quashed so far as these orders relate to petitioner Nos. 1 to 4 and 6. It is further directed that the petitioners, except petitioner No. 5 (who has not completed 240 working days and has not put in qualifying service to seek benefits of the Government Order) shall be considered on regular basis against the posts whick they held at the time of their retrenchment i. e. on 31121989. 19. The writ petition is allowed in the light of the directions given feeteinabove. 10. There shall be no order as to costs.