Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 495 (PAT)

Suresh Kumar Mandal v. State Of Bihar

2000-03-29

SHIVA KIRTI SINGH

body2000
Judgment Shiva Kirti Singh, J. 1. This writ application under Article 226 of the Constitution of India has been filed on behalf of 67 petitioners who were engaged on daily wage basis on various class Ill/class IV posts within Irrigation Circle II, Jamui under the Superintending Engineer, Water Resources Department, Government of Bihar. Their grievance is against termination of their daily wage employment pursuant to impugned notices contained in Annexure-ll series. They have also sought quashing of order dated 7.12.1995 contained in Annexure-15 by which their representations were rejected and the decision to terminate their employment was maintained. Consequently the petitioners have prayed for a direction to the respondent authorities to reinstate the petitioner in service and to further direct them to grant to the petitioners the benefit of permanent absorption into government service with appropriate scale of pay and other benefits on account of their long engagement on daily wage basis and also on account of Governments policy decision dated 18.6.1993 as contained in Annexure-8. 2. The essential facts of the case lie within a narrow compass and are not much in dispute. The petitioners were engaged on daily wage basis between the year 1979-1985 but prior to 1.8.1985. This date is of considerable significance in view of Governments policy decision contained in Annexure-8 according to which all those daily wage employees who were engaged as such after 1.8.1985 have to be removed but those engaged earlier and had completed 240 days of continuous service were to be considered for absorption in the regular service under Government of Bihar depending upon availability of sanctioned posts and the requirement to fill up such posts. Even before the policy dated 18.6.1993 (Annexure-8) was published in the gazette, the petitioners and many other similarly situated persons had moved this Court through a batch of three writ petitions filed in the years 1988 and 1989. Those writ petitions were disposed of by order dated 12.3.1993 (Annexure-3) whereby this court directed the Secretary-cum- Commissioner, Irrigation Department, Government of Bihar to take a final decision regarding regularisation of petitioners service within four months and further directed that as long as the petitioners are working they must be paid wages at the rates equivalent to the minimum pay in the pay scales of the regular employed workers on the same or comparable posts. According to the petitioners, the later part of the direction of this court made the concerned authorities hostile to the claim of the petitioners for regularisation and hence, all those employees who had moved this Court were given show cause notices dated 1.2.1994 for termination of their employment. The show cause filed in the matter was rejected by an order dated 21.1.1994 contained in Annexure-7. By this order it was held that several projects in which daily wage employees had been engaged were on verge of closure and hence, due to this reason as well as due to shortage of funds, the Department was under compulsion to reduce its expenses on establishment and hence, petitioners services were decided to be terminated in accordance with Section 25 F of the Industrial Disputes Act. Against the order contained in Annexure-7, the petitioners and some others moved this Court through a writ petition bearing CWJC No. 11286 of 1994 which was finally disposed of by order dated 17.7.1995 (Annexure- 12). By this order this Court refused to interfere with the impugned notice/order contained in Annexure-7 inspite of noticing the plea for regularisation in terms of circular dated 18.6.1993. One of the grievances raised by the petitioners was violation of the well established principle of retrenchment i.e. "first come last go". While considering this plea the court held that this issue relates to a question of fact which should have been appropriately examined by Industrial Tribunal/Labour Court for which the petitioners should have sought remedy under the Industrial Disputes Act. However, this Court directed the Secretary of the Department to examine the aforesaid grievance of the petitioners i.e. the grievance relating to violation of the policy of "last come first go" or "first come last go" and with regard to another minor grievance relating to non-payment of bonus and washing allowance as a consequence of grant of regular pay scale in the minimum scale as per earlier order of this Court dated 12.3.1993 (Annexure 3). Thereafter, the petitioners filed thier representations contained in Annexure-13 and the same was rejected by the impugned order dated 7.12.1995 contained in Annexure 15. 3. Thereafter, the petitioners filed thier representations contained in Annexure-13 and the same was rejected by the impugned order dated 7.12.1995 contained in Annexure 15. 3. The aforesaid facts clearly show that the petitioners claim for regularisation on the basis of policy decision dated 18.6.1993 (Annexure-8) did not find favour with the Court and by order dated 17.7.1995 this Court gave a limited opportunity to the petitioners to raise their grievance before the Secretary only with regard to their plea of alleged violation of the principle of "first come last go". Such a principle governing retrenchment is well established in law but since necessary facts had to be examined hence, this matter was left to be decided by the Secretary of the Department who by his order dated 7.12.1995 has rejected this plea by holding that the decision of the Government to retrench such daily wage employees has been effected against all the daily wage employees working under the Chief Engineer, Deoghar zone of the Water Resources Department. In view of the earlier judgment and order of this Court contained in Annexure-12, I find myself unable to look into the grievance of the petitioners regarding denial of regularisation which they have claimed on the basis of circular dated 18.6.1993 (Annexure- 8) and also on the basis of alleged breach of Article 14 of the Constitution on the basis of an allegation that other departments of Government of Bihar have acted on the basis of Annexure-8 and have allowed regularisation of service of daily wage employees engaged prior to 1.8.1985. This plea in my view, is barred by res judicata or constructive res judicata. Further, the policy contained in Annexure-8 does not provide for automatic regularisation of the services of daily wage employees engaged piror to 1.8.1985. It provides considerable scope to the concerned department to take into consideration not only the availability of sanctioned posts but also the desirability of filling up all such posts as per requirement of work. The fact situation in different departments can be quite different and so far as the department of Water Resources is concerned, the notice and orders of retrenchment show that regularisation of petitioners services have been found to be not feasible on the basis of closure of schemes as well as paucity of funds. The fact situation in different departments can be quite different and so far as the department of Water Resources is concerned, the notice and orders of retrenchment show that regularisation of petitioners services have been found to be not feasible on the basis of closure of schemes as well as paucity of funds. It is difficult for this Court to interfere with such grounds of retrenchment as it quite apparent even from the earlier order of this Court dated 17.7.1995 (Annexure-12). For all these reasons, I do not find any necessity to discuss some judgments of the Supreme Court cited on behalf of the petitioners in support of submissions advanced on the basis of Article 14 of the Constitution of India. 4. The only other submission advanced on behalf of the petitioners which remains to be examined relates to the allegation that in effecting retrenchment the respondents have violated the principle of "last come first go" or "first come last go". This plea has been further elaborated by placing reliance upon a judgment of this Court dated 29.8.1995 (Annexure- 14) passed in a writ petition bearing CWJC No. 2475 of 1995 which related to some daily wage employees of the same department. 5. A perusal of the judgment contained in annexure-14 reveals two important facts. First, it is dated 29.8.95 that is later to the date on which this court passed an order in the case of petitioners as contained in annexure-12. Second, the directions contained in annexure-12 were reiterated in annexure-14 but with a significant clarification that while giving effect to the policy of "last come first go" the authorities concerned will take into consideration the State Level Seniority of the person concerned, as far as possible. On behalf of petitioners it has been contended that this clarification should have been applied to the case of the petitioners also and in view of annexure- 14 it was mandatory for the respondents to prepare a State level seniority list of the daily wage employees of the department before resorting to any retrenchment. On the other hand, on behalf of the respondents it has been submitted that the direction by way of clarification contained in annexure-14 was applicable to the case disposed of by said order and not to the case of the petitioners. On the other hand, on behalf of the respondents it has been submitted that the direction by way of clarification contained in annexure-14 was applicable to the case disposed of by said order and not to the case of the petitioners. It was further submitted that a State-wise seniority list was not possible to be prepared for the purpose of retrenchment because seniority is required to be maintained within a cadre or within a separate and distinct group of employees. According to respondents daily wage engagements, by their nature are offered to local people available at or near a project site so that they may be conveniently engaged or dis-engaged as per requirement of work in a project. Admittedly there is no State level cadre of daily wage employees in the department. 6. Having noticed the aforesaid facts and circumstances, this court is of the opinion that the clarification contained in annexure-14 was actually a distinct direction which could be strictly and technically, applicable only to the case covered by the judgment contained in annexure-14 and not to the case of the petitioners. However, the said clarification used the turn (sicterm ?) "as far as possible" and taking an over-all view of the relevant facts as noticed above the contention of the respondents appears to have substance that in the facts of the case it was not possible to take State level seniority of the persons concerned for the purpose of retrenchment. It is relevant to note that subsequently in 1998 the State has framed rules under which also cadre for class-Ill and class-IV posts in the department are circle level cadres. It is not in dispute that retrenchment in this case has been effected with regard to ail the daily wage employees of the department not only at circle level but in the entire Deoghar zone. Hence, in my view, the impugned order contained in annexure-15 cannot be held bad on account of order of this Court contained in annexure-14. 7. Lastly it was submitted on behalf of the petitioners, on the basis of a list of 31 persons, contained in annexure-17, who are allegedly still working on daily wage basis in the Secretariat Establishment at the Headquarter of the department, that petitioners retrenchment is bad in law on account of violation of the principle of "last come first go" because those 31 persons were engaged after the petitioners. The Secretariat Establishment is a different establishment altogether than the project site in different circles and hence, in my view, this submission on behalf of petitioners stands negatived by the discussions made in the preceding paragraphs. 8. On behalf of respondents an objection was taken to the maintainability of the writ petition on two grounds. Firstly, on the ground that as per observations of this court contained in annexure-12 the petitioners ought to have raised their grievance against retrenchment before the Industrial Tribunal/ Labour Court under the provisions of the Industrial Disputes Act and secondly, on the ground of estoppel and acquiescence as petitioners had admittedly received payments made under section 25-F of the Industrial Disputes Act. On behalf of the petitioners both the contentions were controverted. With regard to first contention it was submitted that once the writ application had been admitted it should not be thrown out on the ground of availability of alternative remedy. It was further submitted on behalf of the petitioners that since they had claimed regularisation on the plea of Article 14, a fundamental right, hence the writ petition was maintainable. For this proposition reliance was placed upon a judgment of the Apex Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 S.C.C. 1 . Since I have decided the writ application on its merit hence it is not deemed necessary to go into and decide the plea of maintainability of the writ application on the grounds noted above. 9. For all the aforesaid reasons, I find no merit in this writ application and the same is accordingly dismissed. However, in the facts of the case, there shall be no order as to costs.