S.B. MAJMUDAR, J. - (1.) THE Judgment of the court was delivered by -
(2.) LEAVE granted in these special leave petitions. We have heard learned counsel for the rival parties finally in these appeals and they are being disposed of by this judgment. These appeals on special leave bring in challenge the common judgment and order passed on 24/2/1998 by the division bench of the High court of Judicature at Allahabad in five special appeals allowing the same and dismissing their writ petitions. Appeals before the division bench arose out of the common Judgment rendered by the learned Single Judge of the High court on 7-12- 1993, allowing writ petitions filed by the petitioners concerned as the writ Petitions challenged identical orders of retrenchment passed by the Respondent-management against the petitioner-workmen concerned. In order to appreciate the nature of controversy posed for our consideration in these appeals, it will be necessary to note relevant background facts. Background facts While narrating these facts, we will refer to the present 25 appellants as original writ petitioner-workmen and the respondents as the Company. Respondent I-Company is a construction company wholly owned by the Government of India. It is carrying on various construction projects throughout the country and abroad. At the relevant time when the writ petitioner-workmen were employed. Respondent I-Company and Respondent 2, its Regional Manager had undertaken and were monitoring a project of construction of a railway line of 54 kms known as the Rihand Nagar Project in the State of Uttar Pradesh. It is the case of the 25 petitioner- workmen who were listed in Annx. P-l in the Special Leave Petition paper-book that the respondent-Company offered employment to these workmen in the Rihand Nagar Project on different dates during the period spread over from 26-12- 1983 up to 24/12/1985 and were assigned different jobs of work at the Rihand Nagar Project. The writ petitioners were appointed as clerks, account clerks, store clerks, store cashiers, non-technical supervisors, site supervisors etc. The petitioners contended that they were appointed in the service of the respondent-Company and were drafted to work in the Rihand Nagar Project in the Rihand area at different sites. It is their contention that initially they were required to undertake training and were, therefore, treated as appointed on ad hoc basis. Subsequently they were wrongfully not made regular employees of the respondent-Company though they were placed on regular timescale as such. That their services were liable to be transferred to any project of the respondent-Company in India. In short, they contended that though initially they were made to work in the Rihand Nagar Project at different sites, they became full-fledged employees of the Company and were treated for a number of years as such till August and September 1993 when some of the petitioners were served with retrenchment notices dated 20/8/1993 and others on 4-9-1993. These notices were identical in nature. It was recited in these notices that as most of the work in the Rihand Nagar Project was over and there was no other work available for the employees concerned on this project or any other project of the Company, namely, IRCON, they were rendered surplus and hence retrenchment benefits under Section 25-F(b) of the Industrial Disputes Act, 1947 (for short "the Act") were being offered as per the details given in the notices. They were advised to collect their other dues, namely, provident fund, gratuity, leave salary etc. in accordance with the rules of the Company in force at the time of the Project. These retrenchment notices were challenged by the petitioner and other workmen by filing five writ petitions under Article 226 of the Constitution of India against the common respondents who are the respondents in these appeals, being the Company and its Project Manager respectively. We will mention at this stage that the five writ petitions were filed before the High court covering a large number of workmen totaling up to 43. Writ Petition No. 18561 was filed by 16 writ petitioners. Writ Petition No. 32500 was moved by 7 writ petitioners and Writ Petition No. 32651 was filed by 18 writ petitioners while Writ Petition No. 34786 of 1993 and Writ Petition No. 44416 were filed by one petitioner each. However, in the present appeals, only 25 original writ petitioners have brought in challenge a common order passed against them by the division bench of the High Court. The aforesaid writ petitions were heard in common by the learned Single Judge of the High court as noted early. It was contended by the writ petitioners that they were workmen of the Company and not of any particular project and that their services were transferable anywhere within the country. The respondent-Company had issued fresh advertisement for recruitment of new hands and, therefore, the retrenchment notices were unjustified and uncalled for. That their retrenchments were illegal and also violative of Articles 14, 16 and 21 of the Constitution of India inasmuch as the respondent-Company was a government company which was a "State" within the meaning of Article 12 of the Constitution of India. They also challenged their termination orders on the additional ground that the respondents had illegally invoked the provisions of Ch. V-A of the Act and that in fact Ch. V-B of the said Act applied as more than hundred workmen were being employed by the respondents and therefore, the respondents, before retrenching the writ petitioners were required to follow the provisions of Section 25-N of the Act, which were not followed and hence the termination orders were ex facie null and void on that ground also.
(3.) THE respondent-Company resisted the writ petitions and submitted that the writ petitioners were only ad hoc employees. THEy were not regularly appointed after following due procedure of recruitment rules and were employed only at the Rihand Nagar Project and as the Project came to an end, the writ petitioners were liable to be retrenched and were accordingly retrenched on closure of the Project after complying with the provisions of Section 25-F of the Act. It was also contended that Section 25-N of the Act did not apply to the facts of the present cases as the Riband Nagar Project of the Company where the writ petitioners were employed, was not an "industrial establishment" as defined by Section 25-L of the Act read with Section 2(m) of the Factories Act, 1948 (for short "the Factories Act") as it was not a "factory" at all. It was also vehemently contended that the writ petitioners were not employees of the Company from the inception of their entry in service but they were recruited solely for the purpose of the Riband Nagar Project and their services were terminated after the said Project got closed and they could not urge for being absorbed in any other project of the Company. It was also submitted that the retrenchment orders were not arbitrary or illegal as submitted by the writ petitioners. Learned Single Judge who heard these five writ petitions in common, came to the conclusion that the respondent-Company had employed the writ petitioners initially on ad hoc basis but subsequently their services were regularised and they were absorbed in the services of the Company on permanent basis. That all the writ petitioners had worked with the respondent-Company for nearly nine years and in a few cases, even more than that, and that even if the Rihand Nagar Project had come to an end, such permanent employees like the writ petitioners could have been engaged in other projects as their services were transferable throughout the country. It was further held that as the respondent-Company is a "State" within the meaning of Article 12 of the Constitution of India, following the ratio of some of the judgments of this court to which reference will be made hereinafter, the respondent-Company was required to absorb the writ petitioners at one or the other projects instead of throwing them out of the job on the specious plea that the Project in which they were employed was on the verge of completion. The learned Single Judge lastly addressed himself to the question whether Section 25-N applied to the facts of the present cases. Repelling the contentions on behalf of the respondent- Company that Section 25-N will not apply because it is not a "factory", it was held that the Project in question where the writ petitioners were working at the time when two retrenchment notices were served, was a "factory" within the meaning of Section 2(m) of the Factories Act read with Section 25-L of the Act and as admittedly, provisions of Section 25-N were not complied with in the present cases, all the retrenchment notices were null and void. In the result, the learned Single Judge quashed the notices of termination dated 20/8/1993 and orders of termination dated 4/9/1993 issued to the writ petitioners concerned. They were ordered to be continued in their jobs and were to be paid salary due to them.;