Judgment : Paritosh K. Mukherjee, J. 1. S/Sri Ashok Kumar Sharma and Brahmpal Singh, Joint Petitioners, have challenged the order of termination of their service, dated 21.12.1992 which is contained in Annexure 13 to the writ petition. 2. THE Impugned order of termination, dated 21.12.92, which is in Hindi, if translated into English, runs as follows : "THE services of Sri Brahma Pal Singh Rana Dally Scaler (Chlriyapur 1st) and Sri Ashok Kumar Sharma, Daily Scaler (Chlriyapur IIIrd) are being terminated, with immediate effect, in public Interest as well as in the interest of Forest Corporation with effect from the afternoon of 19th December, 1992. Sd/- Illegible Divisional Sales Manager, U. P. Forest Corporation, Kotdwar." Briefly stated, the facts of the case, as disclosed In the writ petition, are as follows : Way back In 1983, both the petitioners were temporarily appointed, on daily wage basis, as Scaler Assistant by the Regional Forest Manager, U. P. Forest Corporation, Najibabad, district Bijnor. The petitioners appeared in a Departmental Examination, conducted for the post of Scaler Assistant in 1985. On being declared successful, they continued to work on dally wages on the said post. However, they were given break of four months, during the off season. Thereafter, another examination for appointment to the post of Scaler Assistant was conducted In 1989 and in the said examination as well, the petitioners came out successfully. They continued to work on dally wages till 26th March, 1991. In the meantime. Managing Director, U. P. Forest Corporation issued a circular letter No. F 9927, dated 26th March, 1991. In the said circular letter, It was notified that the employees working for seven years or more on the post of Scaler Assistant/Chaukidar or on any other Seasonal post will be entitled for salary and clearness allowance for the period of nine months every year, w.e.f. 1.4.1991. In continuation of the aforesaid circular letter, another order was passed on 30.4.1991 to the effect that even if an employee works for more than 9 months, he will be entitled to only 9 months' pay. 3. THUS, according to the petitioners, their services stood regularised as Scaler Assistant In terms of aforesaid circular letter dated 17.5.1991. However, In spite of aforesaid position, the petitioners were not given the benefit of identical pay scales, leave, encashment of leave, group Insurance, gratuity and provident fund. 4. 3. THUS, according to the petitioners, their services stood regularised as Scaler Assistant In terms of aforesaid circular letter dated 17.5.1991. However, In spite of aforesaid position, the petitioners were not given the benefit of identical pay scales, leave, encashment of leave, group Insurance, gratuity and provident fund. 4. THIS drove the petitioners to file a writ petition before Lucknow Bench of this Court, being Civil Misc. Writ No. 4209 of 1988, Van Nigam Karmchari Kalyan Sangh, U. P. Gorakhpur v. U. P. Forest Corporation and others. The aforesaid writ petition was decided on 19.9.1991 and this court issued a mandamus commanding the respondents to make payment of the pay scales of Scaler and other employees, employed on daily wages, with all consequential benefits. It was further directed that the sanctioned 755 posts of temporary scalers should be filled up within a period of three months. A direction was also issued to fill up 361 vacancies of Class IV employees within the aforesaid period. The Corporation went up in Special Leave Petition before the Supreme Court which was dismissed by Apex Court on 19.9.1991. Thus, the judgment rendered by Lucknow Bench of this Court attained finality. 5. ACCORDING to the petitioners, the petitioner No. 1 is the President of their Union, namely, Van Nigam Karmchari Kalyan Sangh, U. P., Garhwal Region, and petitioner No. 2 is its Secretary. 6. SINCE the aforesaid judgment of Lucknow Bench of this Court was not being implemented by the Corporation, the employees filed a contempt petition against the Managing Director of the Corporation and Forest Secretary, U. P. Government Lucknow. On the aforesaid contempt petition, notices were issued to the contemnors. Despite all the aforesaid efforts, nothing was done in the matter and, therefore, the Union of the employees resolved for agitation and state-wide demonstration. They also resolved to go on strike from 7th December, 1992. 7. HOWEVER, historic Ram Janam Bhumi episode happened on 6th December, 1992 and owing to the changed circumstances, strike was called off and a circular to that effect was duly sent by the petitioners' Union on 7.12.1992, a copy whereof is available as Annexure IX to the writ petition. 8. THEREAFTER, respondent No. 2, namely. 7. HOWEVER, historic Ram Janam Bhumi episode happened on 6th December, 1992 and owing to the changed circumstances, strike was called off and a circular to that effect was duly sent by the petitioners' Union on 7.12.1992, a copy whereof is available as Annexure IX to the writ petition. 8. THEREAFTER, respondent No. 2, namely. Divisional Sales Manager, U. P. Forest Corporation, Kotdwar served the petitioners with a show cause notice, calling upon them to explain as to why they should not be removed from their service for causing loss of Chiriyapur Sales Depot on account of the aforesaid strike. The petitioners submitted their reply on 11.12.1992 to the aforesaid show cause notice. Thereafter, no written order was ever served on the petitioners. However, when they went to sign the Attendance Register on 22.12.1992, they found an endorsement to the effect that their service have been terminated w.e.f. 19.12.1992. The petitioners managed to get the termination order, somehow, and have annexed the same as Annexure 13 to the writ petition. 9. AFTER narrating the aforesaid factual position of the case, Smt. Poonam Srivastava, learned counsel for the petitioners, contended that the petitioners, who were in continuous service of the Forest Corporation ever since 1983, have been illegally terminated, without following due procedure of law. Apart from the petitioners, there are as many as 425 other employees in the Garhwal Region, who are junior to the petitioners as per seniority list distributed amongst the four divisions of Garhwal Region, namely, Sales Division Kotdwar ; Bijnor Logging Division ; Kalagarh Logging Division Katghar ; and Garhwal Logging Division, Pauri, who have been retained in service and the petitioners have been discriminated. According to Smt. Poonam Srivastava, it is only because of the fact that the petitioners were office-bearers of their Union, and at their instance the contempt petition was moved against the Managing Director of the Corporation, that the services of the petitioners were terminated. The impugned order of termination suffers from the vice of bias and prejudice. It smacks of malice. Therefore, it cannot be sustained in the eyes of law. 10. SHE next contended that even otherwise, the petitioners being protected workmen, within the meaning of Industrial Disputes Act, 1947, their services cannot be terminated in the manner it has been done in the instant case. It smacks of malice. Therefore, it cannot be sustained in the eyes of law. 10. SHE next contended that even otherwise, the petitioners being protected workmen, within the meaning of Industrial Disputes Act, 1947, their services cannot be terminated in the manner it has been done in the instant case. The next contention of Smt. Srivastava is that although a prior notice was given to the petitioners before passing of the impugned order of termination, calling upon them to explain as to why their services be not terminated, the same cannot form basis of issuance of the impugned order of termination since the notice related to the proposed strike of the employees with effect from 7th December, 1992, which never took place on account of Babri Masjid Episode. 11. INDEED, the law, as laid down by Apex Court till 1968 was that if a termination order is passed without assigning any reason, and, without casting any stigma, the Court is not entitled to go behind the order. But, the law underwent a drastic change after 1971, when Hon'ble Supreme Court delivered judgment in State of Bihar and others v. Shiva Bhikshuk Mishra, AIR 1971 SC 1011 , wherein the following observations of the Supreme Court are relevant: "..............There is no rigid principle that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government Officer it must be held to have been made in the ordinary course of administrative routine and the court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The form of order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order." 12. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order." 12. LASTLY, Smt. Poonam Srivastava further added that although the petitioners were working on 'seasonal post' since 1983 till the date of passing of the impugned order of termination, they have acquired a right, since other similarly circumstanced employees, who are junior to the petitioners, have been retained In service. Thus, it is a clear cut case of hostile discrimination meted out to the petitioners by the respondent-Corporation, solely on account of their involvement in the trade Union activities. At this juncture, this court is not unmindful of the decision of Hon'ble Supreme Court in West Bengal State Electricity Board and others v. Desh Bandhu Ghosh and others, AIR 1985 SC 722 , which came out of a Division Bench judgment of the Calcutta High Court in the case of Gaur Chandra Sarkar v. West Bengal State Electricity Board, 1979 CWN 474 : 1985 Cal HCN 294. In the aforesaid case, sitting with Hon'ble Mr. Justice M. M. Dutta (as his Lordship then was), I had struck down Regulation 34 of the West Bengal State Electricity Board Regulations, under which, an employee could be terminated without assigning any reason. Affirming our aforesaid views, their Lordships of the Supreme Court, namely, Hon'ble Mr. Justice O. Chinnappa Reddy, Hon'ble Mr. Justice E. S. Venkataramiah and Hon'ble Mr. Justice R. B Misra, in Paragraph 4 of the Judgment rendered in West Bengal State Electricity Board (supra) observed as follows : "We are not Impressed with the submission of the learned counsel for the Board. On the face of it, the regulation is totally arbitrary and confers on the Board a power which is capable of vicious discrimination. It is a naked 'hire and fire' rule, the time of banishing which altogether from employer-employee relationship is fast approaching. Its only parallel is to be found in the Henry VIIIth class so familiar to administrative lawyers. In Moti Ram Deka v. North East Frontier Railway. AIR 1964 SC 600 , Rules 148 (3) and 149 (3) of the Indian Railway Establishment Code were challenged on the ground that they were contrary to Article 311 (2) of the Constitution. Its only parallel is to be found in the Henry VIIIth class so familiar to administrative lawyers. In Moti Ram Deka v. North East Frontier Railway. AIR 1964 SC 600 , Rules 148 (3) and 149 (3) of the Indian Railway Establishment Code were challenged on the ground that they were contrary to Article 311 (2) of the Constitution. The challenge was upheld though no opinion was expressed on the question whether the rule offended Article 14 of the Constitution. Since then Article 14 has been interpreted in several decisions of this Court and confirment and exercise of arbitrary power on and by the State or its instrumentalities have been frowned upon and struck down by this Court as offending Article 14." 13. THE aforesaid decision of the Supreme Court in West Bengal State Electricity Board (supra) has been followed by the Apex Court in its subsequent decision in Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another, AIR 1986 SC 1571 . In interpreting Rule 9 (i) of Central Inland Water Transport Corporation Ltd. Service Discipline and Appeal Rules, 1979, the Apex Court held as under : "Clause ft) of Rule 9 is void. Under Section 23 of the Contract Act as being opposed to public policy and is also ultra vires Article 14 of the Constitution to the extent that it confers upon the Corporation the right to terminate the employment of a permanent employee by giving him three months' notice in writing or by paying him the equivalent of three months' basic pay and dearness allowance in lieu of such notice In that, besides being arbitrary and unreasonable, it wholly ignores audi alteram partem rule. It is also violative of directive principles contained In Articles 39 (a) and 41. It cannot be supported on the basis of mutuality on the ground similar right is conferred on employees also. THE right conferred on the employees by the clause to resign is, however, not void. THE Hon'ble Supreme Court further observed : 'THE principle deducible from various precedents is that the Courts will not enforce and will when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal In bargaining power. THE Hon'ble Supreme Court further observed : 'THE principle deducible from various precedents is that the Courts will not enforce and will when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal In bargaining power. For instance the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to" give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set rules as part of the contract, however, unfair unreasonable and unconscionable a clause in that contract or form or rules may be. THE types of contracts to which the principle formulated above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the court. They are opposed to public policy and require to be adjudged void." 14. SRI V. K. Singh, learned counsel for the Forest Corporation submitted that since it is an order of termination, simpliciter, this Court should not interfere with the same. In support of his aforesaid contention, he relied upon the case of State of U. P. and another v. Kaushal Kishore Shukla, 1991 (1) UPLBEC 152. In the aforesaid case, Supreme Court observed that principle of 'last come first go' would not apply when it is found that the work and conduct of the employee was not satisfactory. On the own showing of the respondents, it was order of termination simpliciter and, therefore, the principle laid down in the aforesaid case will not apply to the facts of the present case. On the own showing of the respondents, it was order of termination simpliciter and, therefore, the principle laid down in the aforesaid case will not apply to the facts of the present case. Sri Singh next drew my attention to the case of K.T. Huchgowda v. The Deputy Commissioner and others, JT 1994 (2) SC 694, wherein, it has been held by Apex Court that no where there is no stigma, the court cannot go behind the order. This case does not relate to service matter ; rather it relates to legality and validity of Sections 3 (b), 4 and 5 of Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. Thus, the facts of the aforesaid case are distinguishable from the facts of the instant case. 15. SRI Singh, also relied upon a decision in Tribeni Shankar Saxena v. State of U. P. and others, JT 1992 (1) SC 37, wherein the Supreme Court has held that if the order of termination is not punitive, and it is an order of termination simpliciter, the same cannot be challenged. 16. IN the present case, the petitioners have come with a definite case that the order of termination is punitive since it was passed after issuing a show cause notice for an Incident, which never took place, namely, the proposed strike w.e.f. 7.12.1992 and on account of the fact that the petitioners were office-bearers of their Union, it cannot be said that it is an order of termination simpliciter. Therefore, the principle laid down in the aforesaid case of Tribeni Shanker Saxena does not apply to the facts of the present case. In the light of aforesaid legal position, this Court has to consider as to whether the petitioners, who are working ever since 1983 till the date of their termination of service, are entitled to any relief on the basis of Division Bench judgment rendered by Lucknow Bench of this Court, as referred to hereinabove. 17. THIS court is of the view that since the petitioners had been working since 1983, as daily wagers, and on seasonal basis, they have acquired a right on the post of Scaler and their services cannot be terminated without terminating the service of other similarly circumstanced employees. 17. THIS court is of the view that since the petitioners had been working since 1983, as daily wagers, and on seasonal basis, they have acquired a right on the post of Scaler and their services cannot be terminated without terminating the service of other similarly circumstanced employees. The petitioners have been able to establish that their services have been dispensed with on account of their alleged involvement in the Trade Union activities. 18. THIS Court Is further of the view that the petitioners were/are 'protected workmen' within the meaning of Industrial Disputes Act, 1947 and their services cannot be terminated in the manner, as has been done in the present case. This Court Is conscious of the law laid down by Apex Court in State of Bihar v. Shiva Bhikshuk Mishra (supra) holding that court is entitled to lift the veil and look Into the attending circumstances. Since the order of termination has been passed after holding an ex parte enquiry, which is, on the own showing of the respondents, as contained in the form of Annexure C.A. 1 to the counter-affidavit, some report of two officers against the petitioners, is a document establishing misconduct on the part of the petitioners, it cannot be said that it is an order of termination simpliciter. It certainly casts stigma, without giving opportunity to defend. Thus, the impugned order has been passed by way of punishment without holding any proper enquiry and without any basis, solely on the collateral consideration that the petitioners are office-bearers of their Trade Union and were indulged in the so-called strike from 7th December, 1992, which was ultimately called of. 19. BEFORE parting with, this Court would like to refer a Division Bench judgment of Calcutta High Court in the case of termination of appointment of a Public Prosecutor. In Satyabroto Mahapatra v. State of West Bengal, 1981 (2) Cal HCN 20, a Division Bench of Calcutta High Court, led by Hon'ble Mr. Justice P. K. Banerjee (as his Lordship then was, and, later became the Chief Justice of Rajasthan High Court) held that a probationer has right to invoke provisions of Article 311 (2) of the Constitution in the event of termination of service from the post of Public Prosecutor. Aforesaid view was followed by me sitting in Division Bench in Devdas Ganguli v. Director Zoological Garden, 1991 12) CLT 353. Aforesaid view was followed by me sitting in Division Bench in Devdas Ganguli v. Director Zoological Garden, 1991 12) CLT 353. In the aforesaid case, Calcutta High Court interfered with the order of termination of petitioner, who was a Darban in the Calcutta Zoo. 20. IN the light of foregoing discussion, this court is of the view that though the petitioners were seasonal employees, working on daily wages, their services could not be terminated in the manner it has been done. Further, there was no justification for passing the impugned order since the alleged strike from 7.12.1992 never took place. In the result, the writ petition succeeds and is allowed. The impugned order of termination dated 21.12.92, contained in Annexure XIII, is hereby quashed. The respondents are directed to forthwith reinstate the petitioners in service as Scaler. It is made clear that the petitioners will not be entitled to back wages from the date of termination of their services till the date of joining. However, they will be entitled to all consequential benefits, including regularization of their services in the light of judgment of Lucknow Bench of this Court, referred to in the body of this judgment. Parties shall bear their own costs.