JUDGMENT 1. - Petitioners, in all these writ petitions, have approached this Court aggrieved by the order dated 23.4.2013 passed by respondent no.2 by which their services on the post of Loader cum Loco Operator (Trainee)/Loader cum Loco Assistant (Trainee) were terminated. 2. The facts of the writ petition no.7264/2013 filed by petitioner-Ram Niwas Saini are taken as the basis for deciding all these writ petitions. 3. The respondent-Hindustan Copper Ltd., Khetri Copper Complex issued an advertisement dated 24.6.2011 inviting applications for the post of Loader cum Loco Operator (Trainee). The eligibility for appointment on the said post was middle with four years experience in underground mines, out of which experience of one year was required in Loco Training operations of loaders. Besides, high reflex quality and capacity for sustained work was essential. Petitioners submitted application with which he enclosed his experience certificate of different dates. Petitioners acquired such experience by working with the Hindustan Copper Ltd. itself as they were employed with a company which did vocational training and also gave them the job. This company was awarded the work by the respondent-HCL. In the case of petitioner-Ram Niwas Saini, certificate dated 5.10.2009 has been issued by Teknomin Construction Ltd. certifying the fact that petitioner worked with them from 1.5.2006 to 1.7.2009 in mine like operation of Loader/Loco Mucking, Drilling and Blasting in underground mining project, at Khetri Copper Mine of Hindustan Copper Ltd., Khetri Nagar. Another certificate dated 20.6.2011 was issued by TCL-MMPL Consortium in which too, it has been certified that petitioner worked in mine like operation of Loader/Loco Mucking. Drilling and Blasting in underground mining project at Khetri Copper Mine of Hindustan Copper Ltd. for a period from 1.8.2009 till the date of issuance of certificate i.e. 20.6.2011. 4. On the basis of the application submitted by the petitioners, the respondents accepting the correctness of the experience certificate produced therewith, called the petitioners for interview and trade test on 10.10.2011. A total of 84 applications were received for the post of Loader cum Loco Operator (Trainee) and Loader cum Loco Assistant (Trainee), but after scrutiny, the respondents called only 27 candidates for interview, which included the petitioners also. After the interview and trade test held on 10.10.2011, appointment letters was issued to the petitioners on 18.10.2011. A total of 84 applications were received for the post of Loader cum Loco Operator (Trainee) and Loader cum Loco Assistant (Trainee), but after scrutiny, the respondents called only 27 candidates for interview, which included the petitioners also. After the interview and trade test held on 10.10.2011, appointment letters was issued to the petitioners on 18.10.2011. In the appointment letter, it was indicated that petitioner-Ram Niwas Saini was appointed for a period of 18 months and after completion of training of 18 months, he was to be granted regular pay scale. Petitioners underwent induction training from 25.10.2011 to 31.10.2011 and thereafter reported on duty on 31.10.2011. Petitioners have been performing their duties with utmost sincerity and satisfaction. When the petitioners were about to complete the training of 18 months, show cause notice was served upon them on 13.3.2013 alleging that in the enquiry made by the respondents, it has been found that the experience certificates of different dates annexed by them with their application are not correct. It was further stated therein that under Regulation 39 of the Metalliferous Mines Regulations, 1961, petitioner has not been authorised to operate Loader and Loco by the competent person by the Mines Manager, Khetri Copper Complex. 5. Petitioner-Ram Niwas submitted reply to the show cause notice on 21.3.2013 stating that the advertisement dated 24.6.2011 required the experience of four years in the underground mine out of which one year should be on Loco Training operation of Loaders. The experience certificates submitted by the petitioner clearly mentioned that the petitioner has performed all the work of mine like operation of Loader/Loco Mucking etc., and therefore, he fulfilled the eligibility qualification. It was further stated that Regulation 39 of the Regulations of 1961 deals with the appointment of officials and competent persons. Mere perusal of the definition of official and competent persons show that the petitioner does not fall in that category. According to Regulation 39(2), no person shall be so ; appointed unless he is paid by the owner or agent and is answerable to the Manager. In the case of petitioner, he was never paid by the respondents, but was paid by their contractors namely; Teknomin Construction Ltd. and TCL-MMPL Consortium. Neither Regulation 39 nor the advertisement dated 24.6.2011 required the authorisation from the Mines Manager of the Hindustan Copper Ltd. 6. In the case of petitioner, he was never paid by the respondents, but was paid by their contractors namely; Teknomin Construction Ltd. and TCL-MMPL Consortium. Neither Regulation 39 nor the advertisement dated 24.6.2011 required the authorisation from the Mines Manager of the Hindustan Copper Ltd. 6. While the petitioner expected that his reply to the show cause notice would be considered satisfactory, but he was surprised and shocked to receive another show cause notice dated 11.4.2013 on the same ground as earlier, in which it was again stated that petitioner does not have the required 5 qualification and experience as the certificates produced by him do not show that he has experience of one year in Loco Training operation of Loaders, it was further stated that under Regulation 39 of the Regulations, petitioner does not have the authorisation of the competent person to operate the Loader or Loco, petitioner again submitted a reply dated 22.4.2013 stating to that he has already submitted his reply to the previous notice and issuance of notice again to him clearly suggests that the authorities had made up their mind to remove the petitioner. It is stated that petitioner has been selected after proper scrutiny of all the documents and after going through the process of interview and trade test and after undergoing 18 months of )5 training. Petitioner was part of this composite crew and used to perform all kind of mining work like drilling, blasting, operation of loader and loco training. It was further stated that on 21.3.2013, he was called by the higher authorities and forcefully made to sign few papers. The respondents without applying their mind to either of replies to the show cause notice, terminated 40 services of the petitioner on 23.4.2013 on the premise that he does not have experience of one year of Loco Training Operation of Loader. In the termination order, it was stated that petitioner along with other Loco Operators went on leave on 17.4.2013 without any prior intimation and this amounted to indiscipline, whereas according to the petitioner, he sought prior 45 permission from the authorised officer for proceeding on leave on 17.4.2013. Similar show cause notices were served on other writ petitioners to which they submitted similar reply. 7. I have heard the petitioners present in person and Shri Pratap Singh, representative of respondents. 8. Similar show cause notices were served on other writ petitioners to which they submitted similar reply. 7. I have heard the petitioners present in person and Shri Pratap Singh, representative of respondents. 8. Petitioners present in person submitted that they did not conceal any information inasmuch as they did not provide any false information to the respondents when they applied for appointment and were duly selected. I Clause 8 of the appointment order is not at all attracted as there has been no concealment on their part. Petitioners served around 18 months on the post of Loco Operator (Trainee) and gave higher performance and no accident or complaint was ever made against them. In fact, the petitioners were also granted incentive bonus in appreciation of their outstanding performance. Petitioners have been discontinued from service when they were about to complete the training of 18 months, which was when they were to be granted regular pay scale. It is contended that service condition of the employees/workmen in Hindustan Copper Ltd. is governed by the Settlement dated 17.5.1990 arrived at between the management and workman-union known as "Recruitment and Promotion Rules for Workmen-1990". Initially, there were different posts by designation of Loader Operator and Loco Driver and Loco Assistant, but subsequently in view of the recommendations of the Job Evaluation Committee, amendment was made in the Rules of 1990 and now the posts of Loco Operator and Loco Assistant have been merged into one and re-designated as Loader cum Loco Assistant. As per job description of the Loader cum Loco Operator, the incumbent is required to operate pneumatic loader loader in loading ore/stones, drives locomotive and carries out such duties as acquired under the Regulation 57 of the Act of 1961. A Loader cum Loco Assistant does coupling/de-coupling and shunting of locos and mine car and keeps track free of obstacles, holds and guides the movement of compressed air pipe as the loader moves along its path. It is contended that petitioners are having requisite experience of this kind of work, which they acquired while working with the different contractors, who were awarded such contract by none other than the respondents at their site. It is insignificant whether they were authorised by the Manager or not. The approach of the respondents clearly show that they have not dealt with the issue from a right perspective and objective mind. 9. It is insignificant whether they were authorised by the Manager or not. The approach of the respondents clearly show that they have not dealt with the issue from a right perspective and objective mind. 9. Petitioners contended that they were appointed on substantive basis after due process. If the respondents wanted to do away with the services of the petitioners, they should have initiated regular disciplinary enquiry and provided opportunity to hearing to the petitioners, rather than discharging them from service after mere show cause notice and receiving reply thereto. Thus, action of the respondents is violative of principles of natural justice. It is contended that the respondents have failed to consider the relevant provision under Regulations of 1961 that the experience should be under the order of competent person. Neither the advertisement dated 24.6.2011, nor the Regulations of 1961 stipulates that for the post of Loader cum Loco Operator and Loader cum Loco Assistant, experience should be in a particular form. Petitioners were posted at Khetri Copper Mines and used to do entire work related to mining and thus certificates were rightly issued to them. Not only the petitioners had experience of working prior to their appointment, but they acquired such experience by effectively working during the period of 18 months with the respondents as well, where for they were awarded appreciation certificates and bonus. Initial show cause notice and subsequent one, both clearly show that the respondents had made up their mind from before to get rid of the petitioners. The respondents failed to appreciate that while the petitioners were working for 18 months on the post of Loader cum Loco Operator, they gave their outstanding performance and no complaint about their working was ever received. The impugned order has thus been passed allegedly and arbitrarily. 10. Shri Pratap Singh, Manager (Law) representative of Hindustan Copper Ltd., opposed the writ petitions and submitted that the petitioners ought to avail the alternative remedy before the Industrial Court under the Industrial Disputes Act. Petitioners were mainly undergoing training when they were removed from service and, therefore, they had not right to continue on the post. Petitioners submitted vague experience certificates so as to mislead the respondents regarding their requisite qualification and experience. Petitioners were mainly undergoing training when they were removed from service and, therefore, they had not right to continue on the post. Petitioners submitted vague experience certificates so as to mislead the respondents regarding their requisite qualification and experience. In the enquiry conducted by the respondents, 16 cases were prima facie scrutinised and it was found that 7 candidates have submitted false and fabricated documents in order to obtain appointment. While the services of six candidates were immediately terminated, show cause notices were served on other trainees including petitioners. They were given full opportunity of hearing. The certificates submitted by them did not indicate that they had requisite experience of one year of Loco Training Operation of Loaders. The impugned order is, therefore, perfectly just and valid. It is contended that there is a stipulation in the appointments order itself that if any Information given is found to be false, services, shall be liable to be terminated without notice. Personal hearing was given to the petitioners by the Chief Manager (HR) and their statements were also recorded in question and answer form. In their statement, they have admitted that they mainly did the work of mucking and used to operate loader only when supervisor asked them to do and did not have any professional experience in operating loaders. Reference is made to the copy of the statement of petitioners at Annexure-R/1 in writ petition no.7264/2013. It is contended that in order to evaluate the job qualification or experience, a Committee consisting of representatives of Management and Labour Union was constituted, which in his meeting held on 28.9.2011 agreed for job evaluation of various posts. Separate posts of Loader and Loco Operator were merged in a single post of Loader and Loco Operator. Likewise, separate post of Loader and Loco Assistant were merged into a single posts of Loader cum Loco Assistant. The job specification of the said post were also agreed upon by them. It was, therefore, that the Recruitment and Promotion Rules for Workmen, 1990 were amended. Neither any legal nor any fundamental right of the petitioners has been violated. 11. Likewise, separate post of Loader and Loco Assistant were merged into a single posts of Loader cum Loco Assistant. The job specification of the said post were also agreed upon by them. It was, therefore, that the Recruitment and Promotion Rules for Workmen, 1990 were amended. Neither any legal nor any fundamental right of the petitioners has been violated. 11. Petitioners, who are present in person, have rejoined and submitted that one Sita Ram was appointed on the post of Loader cum Loco Operator (Trainee) pursuant to the same advertisement and his experience is similar to that of the petitioners and still he is being continued on the said post. In this connection, petitioners have invited attention of the court towards two identical certificates issued to Sita Ram dated 26.4.2010 (Annexure-14) by Teknomin Construction Ltd. for the period from 20.5.2006 to 4.5.2009 and certificate issued by TCL-MMPL Consortium dated 2.7.2011 for the period from 2.11.2009 till the date of issuance of certificate dated 2.7.2011. This clearly shows that the respondents have adopted the pick and choose method. Petitioner-Ram Niwas was called by the respondents and was forcefully made to sign the few papers, which they are now using to show that he does not have the requisite qualification and experience. It is contended that the respondents have verified the contents and correctness of the certificates from the companies/contractors referred to above, which letters are placed on record to above, which letters are placed on record with the rejoinder. Those respondents by their letter dated 9.2.2012 addressed to the Project Manager of Teknomin Construction Ltd. and another letter dated 9.2.2012 addressed to Project Manager, TCL-MMPL Consortium. Teknomin Construction Ltd. by their letter dated 18.2.2012 conveyed to the respondents that the experience certificate issued to the petitioners are fully true and correct as per their records. The similar confirmation has been made by M/s. TCL-MMPL Consortium in their letter dated 20.2.2012. 12. I have given my anxious consideration to the rival submissions and perused the material on record. 13. The condition of the advertisement for the two posts with which we are concerned, provided the following eligibility requirements:- Details of Posts and Requirements Posts With Emoluments Qualification Posts qualification in line Experience Age Limit Leader-dum-Loco Optr. 12. I have given my anxious consideration to the rival submissions and perused the material on record. 13. The condition of the advertisement for the two posts with which we are concerned, provided the following eligibility requirements:- Details of Posts and Requirements Posts With Emoluments Qualification Posts qualification in line Experience Age Limit Leader-dum-Loco Optr. (Trainee) Stipend during training period L 9000/- per month Scale of Pay after training L 11080-3%-20350/- Middle with 4 years experience in underground mines out of which one year on Loco Tramming operations of loaders. High reflex quality and capacity for sustained work essential. 04 years 35 years Loader-cum-Loco Assistant (Trainee) Stipend during training period L 8000/- per month Literate with 3 years experience in underground mines out of which 06 Months on Loco Tramming operation of loaders. High reflex quality and capacity for sustained work essential. 03 years 30 years Scale of Pay after training L 10280-3%-18880/- 14. Bare perusal of the afore extracted cause would make it evident that while for the post of Loader cum Loco Operator (Trainee), the experience of 4 years in underground mines is required, out of which 1 year on Loco Training operation of Loaders, would be necessary. Similarly, for the post of Loader cum Loco Assistant (Trainee), the experience of 3 years in underground mines is required, out of which 6 months should be on Loco Tramming operation of Loader. The advertisement further stipulates that the selected candidates shall be required to undergo training for the period of 18 months. The respondents are not disputing the fact that petitioners have worked with them through the contractors Teknomin Construction Ltd. and TCL-MMPL Consortium. The identical certificate in the case of Ram Niwas dated 5.10.2009 (Annexure-2) shows the fact that he has worked as all the work of mine like operation of Loader/Loco Mucking, Drilling & Blasting in underground mining project at Khetri Copper Mine of Hindustan Copper Ltd., Khetri Nagar. Another certificate dated 20.6.2011 (Annexure-3) issued by TCL-MMPL Consortium shows that petitioner-Ram Niwas has been doing the work of mine like operation of Loader/Loco Mucking, Drilling & Blasting in our underground mining project at Khetri Copper Mine of Hindustan Copper Ltd. The two certificates thus broadly mention "operation of loader" undertaken by the petitioners for the spell from 1.5.2006 to 20.6.2011. Similar experience certificates have been issued to all other petitioners. Similar experience certificates have been issued to all other petitioners. The respondent- Hindustan Copper Ltd. has verified the fact about the genuineness of all the aforesaid certificate from their contractor-Teknomin Construction Ltd., who in their letter dated 18.2.2012 confirmed that the experience certificates of the petitioners are fully true and correct as per their details. Similar confirmation has been made by TCL-MMPL Consortium with their letter dated 20.2.2012 to the effect that experience certificates of those persons are fully true and correct as per their details. In the first place, the respondents appointed the petitioners after scrutiny of their certificates and other eligibility qualification on the date of appointment on 18.10.2011. Moreover, the respondents received such confirmation of the genuineness of the certificate produced by the petitioners more than a year before they issued a show cause notice to the petitioners on 13.3.2013. 15. The respondents sought to justify their action by citing two reasons; firstly that petitioners in their statement before the officer of the respondents admitted that they have done all the work of mucking and used to operate the loader when Supervisor asked them to do so. And secondly that as per Regulation 39 of the Metalliferous Mines Regulations, 1961, petitioners have not been authorised to operate Loader and Loco by the competent person i.e. the Mines Manager, Khetri Copper Complex. Taking the second issue first, the advertisement did not require that the experience certificates of operating loader ad loco had to be under the authority of Mines Manager, Khetri Copper Complex. The respondents are not disputing the fact that Teknomin Construction Ltd. and TCL-MMPL Consortium, the two companies were working with them. They have not disputed the fact that those two companies have hired the petitioners, who employed them after vocational training and also provided job. Genuineness of the experience certificates issued in their favour by these companies has not been disputed. 16. The Regulation 39 has been relied by the respondents to buttress their plea, which inter alia provides as under:- "39. Genuineness of the experience certificates issued in their favour by these companies has not been disputed. 16. The Regulation 39 has been relied by the respondents to buttress their plea, which inter alia provides as under:- "39. Appointment of Officials and competent persons-(1)(a) The owner, agent or manager shall appoint such number of competent persons, including officials and technicians as is sufficient to secure, during each of the working shifts- (i) adequate inspection of the mine and the equipment thereof; (ii) a thorough supervision of all operations in the mine; (iii) the installation, running and maintenance, in safe working order, of all machinery in the mine; and (iv) the enforcement of the requirements of the Act and these regulations and orders made thereunder: Provided that if the Regional Inspector finds that those appointed are inadequate, he may require the appointment of such number of additional competent persons by the owner, agent or manager as he considers necessary. (b) Without prejudice to the requirement of clause (a), where the mine is worked on more than one shift, the owner, agent or the managers shall arrange that during the afternoon shift and the night shift, the mine is under the general supervision or an under manager or assistant manager, if any, and of an experienced mine foreman in other cases. (2) It shall be the responsibility of the manager to see that the persons so appointed are competent to perform the duties assigned to them. No person shall be so appointed unless he is paid by the owner or agent and is answerable to the manager. (3) Copies of all appointments made under sub- regulation (1) shall be entered in a bound-paged book kept for the purpose. A list of all such competent persons shall also be maintained. (4) Without prejudice to the requirements of sub-regulation (2), every manager on taking over charge of a mine, shall satisfy himself that all persons already appointed under sub-regulation (1) are competent to perform the duties assigned to them; and if he finds them competent, he shall either countersign their authorisations or issue fresh ones." 17. Reading of the aforesaid Regulation 39 would show that this Regulation deals with appointment of official and competent persons and provides that the owner, agent or manager shall appoint such number of competent persons. Reading of the aforesaid Regulation 39 would show that this Regulation deals with appointment of official and competent persons and provides that the owner, agent or manager shall appoint such number of competent persons. Competent person is defined in Regulation 2(9) according to which competent person, relation to any work or any machinery, plant or equipment, means a person who has attained the age of 20 years and who has been duly appointed by the Manager as a person competent to supervise or perform that work or to supervise the operation of that machinery, plant or equipment, who is responsible for the duties assigned to him and includes a blaster. 18. The definition of "official" has also been defined in Regulation 2(23) means a person appointed in writing by the owner, agent or manager to perform duties of supervision in a mine or part thereof and includes an assistant manager, an underground manager, a mine foreman, a mining mate, an engineer and a surveyor. 19. As the very language of Regulation 39 would show that agent has been described as separate entity than the manager and, therefore, the manager is by necessary implication excluded in a case where an agent has taken his place, like in the present case where the respondents have awarded the contract of undertaking such activities to the private companies. Such private companies in that event would be construed as their agent and therefore the Mines Manager of HCL would not be a competent person defined in Regulation 2(9) because competent person in relation to any work or any machinery. As already noted above, herein the competent persons would be the one, who has been duly appointed in writing by the manager as a person competent to supervise or perform that work or to supervise the operation of that machinery, plant or equipment. 20. From the definition of "official" given in Regulation 2(23), it is evident that such official can even be a person, who has been appointed in writing by the owner, agent or manager to perform duties of supervision in a mine and also includes an Assistant Manager, an underground Manager, a Mining Mine, and Engineer and a Surveyor. Analysis of the relevant provisions thus shows that definition of "official" has been very widely worded and such "official" shall also be a person appointed by agent and not necessarily by owner or manager. 21. Analysis of the relevant provisions thus shows that definition of "official" has been very widely worded and such "official" shall also be a person appointed by agent and not necessarily by owner or manager. 21. Moreover, Manager for that matter used not be the Mines Manager of Khetri Copper Complex alone, which becomes evident from the definition of "Manager given in Regulation 2(16). According to that definition, Manager' means a person possessing the prescribed qualifications and appointed in writing by the owner or agent to be in charge of a mine under the Act, and includes a Mine Superintendent if appointed under Section 17 of the Act. Although, I am not concerned with the later part of this definition, but for the present purpose, definitely persons appointed by the two contractors In the present case to be Incharge of a mine, may also be construed a Manager and not necessarily Mines Manager of the Khetri Copper Complex alone. Thus, a person engaged by the two contractors to supervise the work of the petitioners, who may have assigned duties to them in mine like operation of Loader/Loco Mucking, Drilling and Blasting in underground mining project at Khetri Copper Mine of Hindustan Copper Ltd., Khetri Nagar, would also be construed as Manager. 22. Adverting now to the first of the aforesaid two pleas set up by the respondents that the certificate produced by the petitioners does not show that they have any experience of performing Loader/Loco Mucking and do not fulfill the job specifications of the posts as laid down by the Job Evaluation Committee, the advertisement issued by the respondents requires the experience of one year for the post of Loader-cum-Loco Operator (Trainee) on Loco Tramming operation of Loaders, out of four years experience in underground mines and for the post of Loader-cum-Loco Assistant (Trainee) experience of six months on Loco Tramming operation, out of total experience of three years in underground mines. The certificates issued to the petitioners, which have been confirmed to be genuine on verification being made by the respondents from the contractors, who worked for them, are very widely worded in the terms that petitioners worked as Loader cum Loco Operator (Trainee) in mine like operation of Loader/Loco Mucking, Drilling and Blasting in underground mining project, at Khetri Copper Mine of Hindustan Copper Ltd. In the case of petitioner-Ram Niwas Saini the experience certificate is for the period from 1.5.2006 to 31.7.2009 with Teknomin Construction Ltd. and from 1.8.2009 till 20.6.2011 from TCL-MMPL Consortium, thus experience of the petitioners working from 1.5.2006 to 20.6.2011 for more than five years is fully proved. Even after the appointment, the petitioners have admittedly been undertaking the work of this nature with the respondents for as long as 18 months. The respondents have not alleged any compliant about their working and have not asserted in any manner that there was any kind of deficiency or lack of efficiency in their working. They have also not alleged that there was any irregularity or illegality in their appointment. The requirement of experience, which is proved from the certificates issued to the petitioners by the two companies referred to above, should even otherwise, be taken to have been fully satisfied now by their working in the later spell as well. Besides, the respondents themselves treated the similar certificates in the case of Sitaram as valid and allowed him to continue. Their action is thus discriminatory being violative of Article 14 and 16 of the Constitution of India. 23. In the result, the writ petitions succeed and are accordingly allowed. The impugned orders are quashed and set aside and the action of the respondents in terminating services of the petitioners by mere serving show cause notice is declared as wholly illegal and arbitrary and violative of right of equality before law and equal opportunity in the matter of public employment guaranteed by Articles 14 and 16 of the Constitution of India. The petitioners are held entitled to reinstatement with consequential benefits throughout. 24. Compliance of the judgment be made within one month from the date copy of this judgment Is produced before the respondents.Writ Petition Allowed. *******