- (1.) SUNIL Ambwani, J. By these writ petitions, 48 petitioners in Writ Petition No. 29545 of 2001 and one petitioner, namely, Anand Kanan in Writ Petition No. 29547 of 2001, have prayed for quashing the newspaper publication dated 7-7-2001 by which they have been intimated that their services have been terminated with effect from 16-6-2001. They have also prayed for a direction to the respondents not to interfere in peaceful functioning of petitioners as Class IV Muster Roll employee in the irrigation department and to pay their salary.
(2.) I have heard Sri B. K. Singh Raghuvanshi, learned Counsel for petitioners and learned Standing Counsel for respondents. Brief facts, giving rise to these petitions are that petitioners were engaged as daily waged muster roll employees in Gandak Region of Irrigation Department in its various divisions in the year 1982 and onwards. They were disengaged, including other employees, totalling 58 daily waged muster roll employees in the year 1990 on the ground of non-availability of work. Petitioners filed Writ Petition No. 45755 of 1999 and Writ Petition No. 45752 of 1999 which were disposed of by this Court on 21-3-2001 with a direction to dispose of their representation keeping in view the principle of last come first go. In compliance of the said orders, the Executive Engineer, Drainage Khand, Gorakhpur, engaged petitioners by his order dated 1-6-2001 pending decision by the State Government. By a subsequent order passed by the Chief Engineer (Gandak), Irrigation Department U. P. , Gorakhpur, impugned in these writ petitions, the services of petitioners were terminated with effect from 16-6-2001. Learned Counsel for petitioners submitted that each of petitioners had completed 240 days of service in a calendar year during the period of their engagements from 1982 to 1990. A chart giving days of petitioners' engagement from 1980 to 1991 has been annexed as Annexure RA-1 to the rejoinder affidavit which has not been denied by the respondents. Petitioners, however, were retrenched without giving any notice and retrenchment compensation as well as informing the State Government as provided under Section 6-N of the U. P. Industrial Disputes Act, 1947. After terminating the services of petitioners in the year 1991, respondents engaged fresh hands as daily waged employees. Petitioners were not given an opportunity to serve and that the principle 'last come first go' was not followed causing hostile discrimination between petitioners and the persons, who were engaged subsequently.
(3.) LEARNED standing Counsel, appearing for the respondents, stated that petitioners are not Class IV employees. They were engaged as muster roll daily waged employee from time to time when their services were required. The Superintending Engineer (Gandak) Flood Circle, Gorakhpur was forced to issue letter dated 20-4-1999 to the Chief Engineer Gandak on account of the pressure put by the employees' Union to solve the problems of employees. The letter, however, nowhere states that petitioners have worked for more than 240 days in a calendar year. Petitioners never worked continuously for a period of eight years. Their representations were decided pending decision by the State Government, the Chief Engineer subsequently, after receiving the orders from higher authorities and giving through the contents of the letter, dispensed with their services as they were not entitled to be re-employed. The questions whether petitioners' services were terminated as against the provisions of the U. P. Industrial Disputes Act, 1947 and whether they were completed 240 days in a calendar year, are questions of facts which can be adjudicated upon by the forum provided by the said Act. These facts cannot be investigated in writ jurisdiction. In Des Raj and others v. State of of Punjab and others, 1988 (57) F. L. R. 176 (SC), the Supreme Court in the context of the activities of irrigation department in the State Government of Punjab, held that the Irrigation Department is an 'industry' and that the services of workmen-employees could not have been terminated without following the conditions precedent to the retrenchment and for which such workers had right to approach the labour Court. The Supreme Court has, however, in its latter decision Executive Engineer (State of Karnataka) v. K. Somasetty and others, 1997 (76) F. L. R. 176, held that Irrigation Department performs sovereign functions and cannot be treated to be an 'industry'. This Court in State of U. P. v. Presiding Officer, Industrial Tribunal (V), Meerut and another, 1999 (83) F. L. R. 497, had choosen to follow the decision in Des Raj's case (supra), treating it to be correct decision. By an order dated 20-12-2002 in Civil Misc. Writ Petition No. 52256 of 2002, between State of U. P. and another v. Santosh Kumar and another, the matter has been referred by this Court to a larger Bench. These developments, however, need not be detailed further to decide the issue raised in the present writ petitions.;