JUDGMENT U.C. Srivastava and S.H.A. Raza, JJ.
1. In this bunch of writ petitions, the petitioners who are employees of the U.P. Co-operative Cane Union Federation Limited, Lucknow and who were initially employed for a period of 90 days, which period was extended from time to time, but ultimately it was not extended and their services were terminated, have approached this Court challenging the orders of termination.
2. In Writ Petition No. 2284 of 1988, the petitioners, who are seven in number, were appointed in various months in the year 1985 on different posts, including that of Clerk, Stenotypist etc. In the initial appointment letters which were issued to them, pay scale and dearness allowance was mentioned but it was not mentioned that they are being appointed in a particular and their appointments will subsist so long as the scheme is in force.
3. In Writ Petition No. 2310 of 1988, the petitioners were appointed in the same manner; two of them as clerks and the third as peon. In their appointment letters it was mentioned that they were being appointed with the concurrence of the Cane Commissioner under the Rural Construction Scheme.
4. In Writ Petition No. 2386 of 1988, the petitioner Nos. 1 and 2 were appointed as Godown Incharge and petitioner Nos. 3 and 4 were appointed as Chaukidars without any reference to any particular scheme. Their appointments were made in the year 1983.
5. In Writ Petition No. 2387 of 1988, the petitioners were appointed as Godown Incharge in the year 1985 and their appointment letters also did not indicate that their appointments were in respect of a particular scheme.
6. In Writ Petition No. 2554 of 1988, the two petitioners were appointed as Go-down Incharge in the year .1983. In their appointment letters also it was not indicated that they were being appointed under a particular scheme. It was mentioned in the appointment letter that their appointments were purely temporary and terminable at any time, but there was no break in the service and they continued to discharge their duties without any break and only in the year 1988 their services were terminated.
7. In Writ Petition No. 3145 of 1988, the two petitioners were appointed in the year 1986 on the post of Clerks. The termination order was challenged by means of amendment as earlier the termination order was not served.
8. This Court granted interim order, but as salary was not being paid a Contempt Petition under the Contempt of Courts Act was moved and subsequently the opposite parties started paying salary to the petitioners.
9. The petitioners have challenged the termination orders on a variety of grounds. It has been stated by them that the posts on which they are working are permanent in nature and they have been earning increments in pay and certain other benefits which are given to permanent employees accrued to the like allowances and leaves etc. and they were also transferred to certain other places and like any other regular employee they were given work. It has also been stated by them that regular appointments were made subsequent to their appointment and the posts against which they were working are permanent posts and permanent posts are lying vacant still they have not been considered for being regularised though some of the persons similarly situated have been regularised.
10. In Writ Petition No. 2310 of 1988 in which reference to a scheme was made, it has been stated, that the Petitioner No. 1 was transferred and he was also getting benefits like other permanent employees. The petitioners have also given names of persons who were appointed subsequent to their appointment but they have been regularised. It has also been stated that there are several persons like the petitioners who were appointed for 20 days and their services are still continuing. The termination orders have also been challenged on the ground that the posts against which the petitioner are working are permanent in nature and the posts still exist. It has been stated that certain other persons like the petitioners have been regularised but they have been discriminated and persons appointed subsequent to their appointment have been regular appointment, while they were given appointment for ninety days and, thus, they are entitled for absorption and regularisation and their services could not have been terminated. Besides this the petitioners have stated that they were workmen and termination of their services amounts to retrenchment within the meaning of Industrial Disputes Act and the provisions of Sections 25-G, 25-N, 25-T and 25-U of the Industrial Disputes Act have been violated and the procedure prescribed has not been followed and the termination orders, which suffer from unfair labour practice, are illegal and without jurisdiction. It has also been stated that those who were appointed in a particular scheme have been sent to another scheme.
11. Short counter-affidavits on behalf of the opposite parties have been filed and the plea which has been taken is that the petitioners were appointed for a particular scheme and the scheme have ceased to exist and as such the petitioners cannot be allowed to continue in service. It has been stated that because of loss suffered by the Federation certain schemes were put to end. There is no denial of the fact that persons appointed subsequently were given regular appointment and some of the persons like the petitioners have been regularised. It has been pleaded that the petitioners were appointed for 90 days and merely because they were allowed to continue in service, they cannot claim any right for regularisation and absorption. The applicability of the U.P. Co-operative Societies Services Regulations, 1975 has also been denied. It has been stated that the U.P. Co-operative Cane Unions Federation has framed its own Regulations in the year 1975 by virtue of powers conferred under Section 122 of the U.P. Co-operative Societies Act.
12. The petitioners have denied the closure of the schemes or of the centres. The petitioners have pleaded that the U.P. Cooperative Cane Unions Federation has framed its own Regulations, but have stated that the provisions of the U.P. Co-operative Services Regulations, 1975 will prevail over the Regulations by virtue of Section 102 of 1975 Regulations.
13. With respect of the employees of the U.P. Co-operative Bank Limited, Lucknow in which case initially the petitioners were appointed on daily wage basis and thereafter were given ad hoc appointments which were made to continue for years together, the Court held that the provisions of Section 6-N of the U.P. Industrial Disputes Act are applicable Jai Kishun and Ors. v U.P. Co-operative Bank Ltd., Lucknow and Ors. 1989 2 U.P.L.B.E.C. 144. The Court also considered the legal position of such appointments which were made in violation of the provisions of U.P. Co-operative Employees Service Regulations and held that Regulation 103 of the Regulations of 1975 makes the provisions of Industrial Disputes Act and other labour laws applicable even though they may be some inconsistency in the Regulations.
14. We are in agreement with the observations made by the Division Bench in Jai Kishun's case (supra). The petitioners worked for 240 days continuously in a calendar year. Notwithstanding the fact that their appointments were initially made for a period of 90 days, but they continued to remain in Service, and, as such, provisions of Section 6-N of the U.P. Industrial Disputes Act are applicable. In the instant case, the provisions of Section 6-N of the Industrial Disputes Act have not been followed in all the cases and as such the orders of termination are manifestly illegal and cannot be sustained.
15. The termination order, obviously, is also arbitrary and illegal in as much as the case of the petitioners for regularisation was not considered though certain persons were regularised and subsequently regular appointments were also made meaning thereby that the posts existed. The services of the petitioners have been terminated without giving them an opportunity of hearing and thus the termination order are equally bad on this ground also. It is to be noticed that all the petitioners were not appointed for a particular scheme and they were transferred from one place to another place. Those who were not appointed in a particular scheme could not be axed out on the ground that their appointments were made in a particular scheme particularly when there is nothing in their appointment letters to this effect. Merely because they were sent to work in a particular scheme and that scheme came to an end, their services could not be terminated on this ground.
16. In the result, the writ petitions succeed and are hereby allowed and orders of termination of services of the petitioners of Writ Petition No. 2284 of 1988, dated 4.5.1988 contained in Annexure Nos. 21 to 27 to the writ petition; orders of termination of petitioners of Writ Petition No. 2310 of 1988, dated 4.5.1988 contained in Annexure Nos. 10, 11 and 12 of the writ petition orders of termination of services of petitioners in Writ Petition No. 2386 of 1988, dated 4.5.1988 contained in Annexure Nos. 3 and 4 to the writ petition orders of termination of services of petitioners of Writ Petition No. 2387 of 1988, dated 4.5.1988 contained in Annexure Nos. 4 and 5 to the writ petition; orders of termination of services of the petitioners of Writ Petition No. 2554 of 1988, dated 4.5.1988 contained in Annexure Nos. 4 and 5 to the writ petition and orders of termination of services of the petitioners of Writ Petition No. 3145 of 1988, dated 11.5.1988 contained in Annexure Nos. A-7 and A-8 to the petition are hereby quashed. The opposite parties will consider the case of the petitioners to all these writ petitions along with those who were appointed along with them or subsequent to their appointments, that is, those whose services have not been terminated and some of whom have been regularised or directly appointed on regular basis in the same manner as the petitioners to these writ petitions were appointed and only thereafter if it is considered necessary and the petitioners are found to be juniors, their services will be terminated, in accordance with law.
There will be no order as to costs.