By means of the present petition, the petitioners are seeking following reliefs:-
(i) issue a writ, order or direction including a writ in the nature of mandamus commanding the respondents to bring on record the order of termination if any and quash the same.
(ii) issue a writ, order or direction including a writ in the nature of mandamus commanding the respondent to take the petitioner back in service with effect from 10.10.1994 and pay the entire salary and other benefit admissible to the post.
(iii) issue a writ, order or direction including a writ in the nature of mandamus commanding the respondents to regularise the services of the petitioners on the post of Peon and pay the same equal pay and other benefit as admissible to other regular Class-IV employees.
(iv) issue any other and further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(v) award cost of the petition through out to the petitioners.
The brief facts, as stated in the writ petition, are that the petitioner no. 1 was appointed vide order dated 16.10.1987 on the post of peon. His initial appointment/engagement was for ninety days, which was extended from time to time and he worked till 9.10.1994. Thereafter, the petitioner was not engaged.
Likewise, the petitioner no.2 was engaged on the post of peon with effect from 4.8.1989 on daily wage basis, initially for eighty five days, which has been extended from time to time. He has worked till 9.10.1994. Thereafter, he has not been engaged.
It is the case of the petitioner no.1 that he has worked for more than 240 days since 1988 and it is the case of the petitioner no.2 that he has worked for more than 240 days since 1990. They were workmen with the respondent. Their services have been terminated without giving any notice as required under Section 25-N(a) of the Industrial Disputes Act, 1949. It is contended that several other persons, who were junior to the petitioners, are working on the post of peon and their services have also not been terminated, but the petitioners' services have been illegally terminated.
Learned counsel for the respondent submitted that the petitioners' engagement was only as a daily wager for a fixed period which had come to an end after expiry of the period of the engagement. The petitioners had an alternative remedy to raise dispute under the Industrial Disputes Act, therefore, the writ petition is not maintainable. The petitioners were never appointed against any sanctioned post and as such they cannot claim their regularisation as held by the Apex Court in the case of Secretary, State of Karnataka and others vs. Uma Devi (3) and others, reported in (2006) 4 SCC 1. Further, several such employees of the respondent-corporation, whose services were dispensed with, filed writ petitions, such as Writ Petition No. 16744 of 1994, Shashi Deo Rai and another vs. UPSIC and others, before this Court and the same were dismissed. Another writ petition was filed by Mukesh Bajpayee and some other persons, which was also dismissed by the Hon'ble Single Judge and the Special Appeal No.817 of 1998, filed by Mukesh Bajpayee and others against the said order, was also dismissed by this Court on 10.9.2007.
Learned counsel for the petitioners submitted that availability of alternative remedy is not an absolute bar for entertainment of the writ petition. Reliance is being placed on the decisions reported in 2010(3)SCC, Harjindra Singh vs. PSWC, page 192, 2011(3) ESC, Devindra Singh vs. MCS, page 514, 1971(1) SCC, State of West Bengal vs. North Adjou, page 309, 1991 (1) UPLBEC, UP Chalchitra Nigam Ltd. vs. State of U.P., page 163, 1987, LIC, Shailendra Nath Singh vs. V.C., page 1607, 1993 (67) FLR, D.K. Yadav vs. Union of India, page 111, 1990 (60) FLR, Smt. Shipra Ghoshal vs. Secretary, page 870 and 1994 (69) FLR, Prabhu Narayan vs. Secretary cum General Manager, page 288.
I have considered rival submissions and perused the materials on record.
The appointment letter of the petitioner no.1 is Annexure-1. The petitioner no.1 was initially engaged as a daily wager for ninety days by the letter dated 16.10.1987. In the said letter itself it was clearly stated that in case of unsatisfactory work and in the event if the work will not be required, the services would be dispensed with without any notice even prior to the expiry of period of ninety days. It appears that by the subsequent letters, the period of engagement has been extended from time to time. The initial appointment letter dated 11th September, 1989 of the petitioner no.2 is Annexure-2. The initial engagement of the petitioner no.2 was as a daily wager for a period of eighty five days from 4.8.1989 to 26.10.1989. In the said letter itself it was clearly stated that in case of unsatisfactory work and in the event if the work will not be required, the services would be dispensed with without any notice even prior to the expiry of period of eighty five days.
It appears that the engagement of the petitioners were subsequently not extended. No interim order has been granted. The petitioners are out of job since 1994. Perusal of the appointment letters, referred hereinabove, shows that the engagements of the petitioners were on the daily wages for a stipulated period only. The engagements were neither made against any sanctioned post nor by following the proper procedure. The engagements of the petitioners were as per the need and requirement. Since the engagement of the petitioners was for a stipulated period, it was contractual in nature and on expiry of the said period, unless extended, the engagement automatically ceased to continue. The petitioners, being daily wagers and the engagement being contractual, had no legal right to claim continuance of their engagement.
In view of the principles laid down by the Constitution Bench decision of the Apex Court in the case of Secretary, State of Karnataka and others vs. Uma Devi (3) and others (supra), the petitioners cannot claim their engagement and regularisation of their services.
In case if the petitioners fall within the purview of the workmen and claimed to have worked for more than 240 days, they could have raised dispute under the Industrial Disputes Act. Whether the petitioners worked for more than 240 days or not is a question of fact, which cannot be gone into writ jurisdiction. The petitioners had an alternative remedy by way of reference under the Industrial Disputes Act. If the petitioners had any grievance, being workmen under the Industrial Disputes Act, the same could be raised in reference. It is true that the alternative remedy is not an absolute bar, but the Apex Court has consistently held that where the disputed question of fact is involved and where a statutory remedy is provided under the Act, the writ petition should not be entertained.
My view finds support from the decision of the Apex Court in the case of Raj Kumar Shivhare vs. Assistant Director, reported in JT 2010 (4) SC, 54.
In view of above, the writ petition is devoid of merits and is accordingly dismissed.
No order as to cost.
Order Date :-27.11.2012 bgs/