Sabhajeet Yadav, J. - (1.) Heard Sri B.N. Singh, learned Counsel for the petitioner and Sri A. K. Mishra, learned Counsel for the respondents. According to the petitioner he was appointed on the post of Draftman (Civil) against sanctioned post as per note sheet/order dated 23.7.1990 by respondent No. 3 on daily wage basis. A copy of the note sheet; order dated 23.7.1990 duly-signed by different officers including respondent No. 3 is on record as Annexure-1 of the writ petition. The petitioner joined on the post on 24.7.1990 and respondent No. 3 at the time of joining directed the petitioner to give in writing that he is willing to work on Rs. 600/- per month as at that time daily rates of wages of class III employee was Rs. 20/- per day, accordingly he gave his willingness vide letter dated 24.7.1990. A copy "of the same is on record as Annexure-2 of the writ petition. It is further asserted that since the aforesaid date of joining the petitioner was continuing on the post of Draftman (Civil) without break in service and officers of the respondent No. 1 has no complaint at all. But all of sudden vide order dated 2.9.1996 the petitioner's services were terminated and he was stopped from working. Neither any order of such termination has ever been served upon him nor any notice of termination as required under the provisions of Section 6-N of U.R Industrial Disputes Act along with retrenchment compensation and payment in lieu of such notice has been given to him rather, his services were terminated in utter violation of provisions of Section 6-N of U.P. Industrial Disputes Act and/or Section 25-F of Industrial Disputes Act.
(2.) A counter-affidavit has been filed by respondents wherein while making reply of averments contained in para 1,2 and 3 of the writ petition and other necessary averments with regard to the compliance of provisions of Section 6-N Counsel: of U.P Industrial Disputes Act it has been vaguely replied in paragraphs 5 and 6 of the counter-affidavit that the averments made in the writ petition are absolutely false and denied. However it has been further stated that the petitioner's selection and appointment was made without advertisement of vacancy and without following procedure prescribed under relevant Government order meant for recruitment on the post in question, therefore, it was de hors the rules of recruitment and null and void and no right or obligation flows from such appointment. Since the post in question falls within the category of class III post and the duties of petitioner is not of managerial and supervisory in nature rather it is of ministerial in nature, therefore, the status of petitioner would be of workman under the provisions of U.P. Industrial Disputes Act cannot be, legitimately disputed. The applicability of provisions of U.P. Industrial Disputes Act has not been denied by learned Counsel for the respondents rather it has been contended that in case the petitioner has any grievance with regard to his retrenchment or termination from service it is open for him to raise industrial dispute through proper and appropriate channel at appropriate forum.
(3.) Learned Counsel for the respondents has further submitted that the petitioner's engagement was made not against any post rather it was just to cater the need of service arise out of increase of work but since the work is not available at present, therefore, his services were no longer required and terminated accordingly. This fact has been brought by the respondents first time in Annexure C.A.-2 of the counter-affidavit but the order of termination containing the aforesaid recitals was never served upon the petitioner Thus in given facts and circumstances of the case there would be no difficulty in holding that the petitioner's services were terminated without compliance of Section 6-N of U.P. Industrial Disputes Act as his continuity of service for a period of 240 days preceding to the date of his determination has not been specifically denied and disputed in the counter affidavit. There is nothing to indicate in the averments made in the counter-affidavit that in twelve calendar months preceding to the date of termination of service he was not engaged and not permitted to continue for a period of 240 days. Therefore, in view of these facts it can be safely held and assumed that the petitioner has been permitted to work continuously for a period of 240 days in twelve calendar months preceding to the date of his termination and it is also not disputed that the provisions of Section 6-N of U.P. Industrial Disputes Act has not been complied with, therefore, there can be no scope for doubt to hold that the petitioner has been permitted to continue on the post since the date of his appointment till the date of termination on 2.7.1996 and before termination of his service he was continuously permitted to work for a period of 240 days preceding to the date of termination of his services, accordingly Section 6-N of U.P. Industrial Disputes Act; therefore, the termination of services of petitioner by way of retrenchment is void abi initio and nullity and accordingly in given facts and circumstances of the case, in case of violation of provisions of statute this Court need not to relegate the matter before Labour Court for adjudicating the case on merit after pendency of writ petition for a period of ten years and exchange of counter and rejoinder affidavits between the parties. Thus the impugned order of retrenchment dated 2.7.1996, contained in Annexure-C.A.-2 of the writ petition, being violative of provisions of Section 6-N of U.P. Industrial Disputes Act is not null and void and not sustainable in the eye of law, accordingly the same is hereby quashed and petitioner is entitled to be reinstated in service with all consequential benefit of service including seniority and continuity of service, however, so far as back wages is concerned, since the petitioner is out of employment for a period of about nine years and having regard to the status of his service as class III employee, although there is no material on record that he was engaged in some gainful employment somewhere else during the period of interregnum from the date of termination till now but it is not probable and cannot be said at all that he was sitting idle during this period in which he was out of employment, he must have been engaged even somewhere else to sustain himself and his family. Thus for this period from the , date of termination till now the petitioner is entitled 50% of his salary as back wages. The arrears of such back wages shall be paid to him within three months from the date of production of certified copy of the order passed by this Court. In view of aforesaid observation, the writ petition succeeds and allowed. .;