R.R.K.Trivedi - (1.) IN both the aforesaid writ petitions counter and rejoinder affidavits have been exchanged and learned counsel for the parties are agreed that both the petitions may be disposed of finally at this stage, Sri Anil Kumar Tyagi, petitioner in second writ petition is also petitioner no. 40 in first petition. The common- questions of law and facts are involved in both the writ petitions and they may be decided conveniently by a common judgment. Civil Misc. Writ Petition No. 32980 of 1993 will be the leading case.
(2.) 40 petitioners in Civil Misc. Writ Petition No. 32980 of 1993 are employed with respondent no. I Ghaziabad Development Authority as clerks, Pump operators, Peons etc. A chart giving date of employment and the posts on which petitioners are working has been filed as Annexure- 1 to the writ petition and perusal of the aforesaid chart shows that out of 40 petitioners 13 are working on their posts since 1990, 26 are working since 1991 and one is working since 1992. Petitioners are aggrieved by order of the Vice-Chairman of resp6ndent no. 1 dated 13th August, 1993 which is being reproduced below for better appreciation : "Dinank 29-12-89 ke bad ke samast W.C./D.W. Intard basic karma-charion ko hatakar 16-8-93 ko avagat karaen." D. K. Mittal Vice Chairman G.D.A. 13-8-93 Learned counsel for the petitioners has submitted that all the petitioners have put in more than 240 days Service with the respondent no. 1 and they have acquired certain rights under law and they cannot be legally terminated by a general order of the nature passed by the Vice-Chairman. It has also been submitted that the petitioners were appointed against sanctioned posts which has not been denied in the counter affidavit. It has also been submitted that six persons who were employed after petitioners and are juniors to them have been regularised. The names of the persons have been disclosed in paragraph no. 21 of the second writ petition. Learned counsel for the petitioners has submitted that after working for such a long time with the respondents, petitioners are entitled to be regularised on their posts and the petitioners are entitled for a direction from this Court against respondent no. 1, to regularise on their posts. Reliance has been placed on the judgment in case of Sri Ram Kishan v. Union of India, (1991) 2 UP LB EC 1149. The claim of the petitioners has been resisted by respondents by filing counter affidavit on various grounds. Learned counsel for the respondents has submitted that the petitioners are simply casual labourers and they were employed against the particular project and since the work on the project is over their services are being dispensed with and there is no violation of any provisions of - law. Learned counsel has placed reliance in case of L. Robert D' Souza v. The Executive Engineer, Southern Railway, AIR 1982 SC 854. Learned counsel for the respondents has extensively referred to and relied On the Government Order dated 16th October, 1990 filed as Anaexuie C.A.-1 to the counter affidavit and Government Order dated 23 September, 1991 and on the basis of the aforesaid orders it has been submitted that the government direction is not to incur more than 1% of the total costs of the project in employing the Work charge staff and not to make further employment on the basis of Daily wages, contract posts and muster roll or fixed salaries. Learned counsel has submitted that in view of these directions, the respondent no. 1 has no option but to dispense with the service of the petitioner and they have no right to continue on the posts.
(3.) I have seriously considered the submissions made by the learned counsel for the parties. There cannot be any dispute that respondent no. 1 has a right to dispense with services of those employees whose services are not required in any of the projects and also in order to effect its economy but this right is not absolute and cannot be exercised in the manner it has been done by respondent no. 1 by passing the impugned order. This is rule of law in the country and every employee who is serving with respondent no. 1 for the last two three years is entitled to receive a specific order terminating him from service in accordance with law. In my opinion, this is the minimum requirement from the employer under Article 14 of the Constitution of India which guarantees fairness and reasonableness both at the time of recruitment as well as at the time of retrenchment of the employees. The respondent no. 1 being a statutory authority and State within the meaning of Article 12 of the Constitution, is expected to behave like a model employer and the services of all the Work Charge employees, Daily wager, muster roll etc. could not be dispensed with in block by a general order in the nature of the impugned order. In my opinion, the impugned order cannot stand the test of Article 14 and 16 of the Constitution of India. Another aspect of the matter is that as project undertaken by respondent no. 1 are of commercial nature and along with its activities of development and improvement of urban area, it extensively carries out commercial activities and for that purpose it is also industrial establishment. Under section 6-N of the U. P. Industrial Disputes Act, 1947, here-in-after referred to as 'Act', there are certain conditions which are to be complied with before a person could be retrenched from the employment irrespective of its nature, the only condition to be specified is that he should have been in continuous service for not less than one year under an employment, then he becomes entitled for one month's notice in writing indicating the reasons for retrenchment and in absence of notice he is entitled for the wages for . the period of notice The Workman is also entitled under the aforesaid provisions for and compensation as contemplated under clause (b). In my opinion, all the petitioners have worked for more than a year with the respondent no. 1, they cannot be dispensed with without complying with the provisions of section 6-N of the Act.;