Ajay Kumar Yog, J. - (1.) THREE persons namely, Awadh Ram (Junior Assistant), Gopal Singh (Driver) and Gulam Rasool (Cleaner) have approached this Court under Article 226 of Constitution of India claiming that they were appointed by the Committee of Management of a registered co -operative society known as "U.P. Weavers Welfare Fund (U.P. Bunker Bahubudi Fund)" registered under the Societies Registration Act. The Committee of Management of the society is said to be comprising of 15 members and comprising of Hon'ble Minister of State for Handloom & Industries, as ex -officio Chairman of the Society and the Director of Handloom & Textiles, as ex -officio Secretary and other members being ex -officio Managing Directors Textile Corporation, Chairman UPICA, and Director or its delegate or Harijan Tatha Samaj Kalyan Vibhag etc. The petitioners who were appointed by the management of the said society vide appointment letter dated 5th April, 1986, 7th April, 1986 and 30th September, 1989 (Annexure 1, 2 and 3 to the writ petition) and while in the service of the society petitioners were entitled to the benefit of leave encashment, bonus, dearness allowance and others benefits as per the rules applicable to the similarly situated employees in the services of the State of U.P. In respect of the above contention, the petitioners have filed copy of a order dated 30th January, 1991 indicating for petitioner No. 1 that the condition in the financial hand book part 2 to 4 were applicable to his case. Thus, petitioners attempted to establish that they were governed by the rules applicable to the similarly situated Government employees and other employers (the Society) was comprised of all the Government personnel and it was, therefore, virtually the Government instrumentality. According to the petitioner, a resolution was passed by the Committee of Management on 27th July, 1990 and therein same decision was taken to curtail the expenditure in order to strengthen Bahududi Fund by reducing financial expenditure on salary and other financial burden spent upon the employees of the society. By absorbing the present incumbents working in the society against vacant post in the Directorate of Handloom and Textiles (copy of the said resolution has been filed as Annexure 5 to the writ petition). A copy of the order dated January 31, 1991 ( Annexure 6) shows that petitioners, who were working in Weavers Bahududi Fund were absorbed/adjusted in the Directorate of Weavers and Handloom and that their services were to be governed by the Government order dated 11th June, 1975. It may be stated at the outset that the copy of the Government order has not been filed for perusal of the court to indicate the terms and conditions upon which the petitioners' services were adjusted/absorbed in compliance to the above order issued by the Director Handloom and Textiles U.P. Consequently order was issued by the Joint Secretary, (Weavers Bahududi Fund) Weavers and Textiles Directorate, U.P. (Annexures 7 to the writ petition). As a consequent of the aforesaid order, petitioners were adjusted in the Directorate and their salary were fixed protecting their emoluments which they were receiving in the Society and their salary were fixed w.e.f. October 1, 1990. The petitioners have annexed copy of letter dated May 12, 1992 whereby the Assistant Director of Directorate (Annexure 8 to the petition) addressed to the petitioner requiring to submit their options alleging that petitioners were to be fixed at the initial stage in the pay scale of Rs. 950 -1500, wherein the said petitioners were fixed by means of the above referred order January 31, 1991 and further that if the petitioners submit their options to remain in the Government employment on being fixed on the initial stage in the aforementioned pay scale or other the petitioners may indicate that they shall like to continue in their service in the employment of the society. The petitioners have filed representation dated May 15, 1992 (Annexure 9 to the petition) wherein they categorically asserted that petitioners were adjusted/absorbed from one Government organisation to the other department of the Government in accordance with the Rules and as per decision of the State Government and that they were entitled to the pay scale and allowances which were admissible to the similarly situated Government employees. Petitioners also stated that they were adjusted according to the decision taken as per resolution of the Society and Directorate accordingly accepted them on absorption as well as they were also given benefit of their earlier service, whereby they were given certain increments. The petitioners have sought to challenge the order dated October 16, 1992 (Annexure 10 to the petition) alleging that the earlier order dated January 31, 1991 was being partially amended/modified and thereby abolishing the advantage of the petitioner with immediate effect (Annexure 10 to the writ petition). As a consequence to the aforesaid order another impugned order August 4, 1994 (Annexure 13 to the petition) was issued by Deputy Director concerned, whereby it was directed that the payment of additional amount, in the light of the earlier order dated 16 October, 1992 be recovered from these petitioners.
(2.) HEARD Sri Mool Behari Saxena, on behalf of the petitioners and Sri V.P. Mathur, Brief Holder on the behalf of the respondents. The main thrust of the petitioners, while challenging the impugned orders (Annexure 10 and 13 to the petition) dated 16th October, 1992 and 4th August, 1994 is that no opportunity was given as stated in paragraph 31 of the writ petition and that the advantage of increment having been given once knowing all the aspects and there being no allegation of misrepresentation or concealment on the part of the petitioner. The granting benefit of the increment vide order dated 31st January, 1991 (Annexure 6 to the petition) cannot be recalled without giving notice or opportunity of hearing. The impugned order entail civil consequence and acts to the prejudice of the petitioner and hence the impugned orders ought not to have issued without giving opportunity to the petitioners.
(3.) IN the counter affidavit paragraph No. 31 of the writ petition has been specifically denied and it is alleged that the order dated 12th May, 1992, copy of which has been filed as Annexure 8 to the petition, was issued as show cause notice. It is not shown that it was in the nature of show cause notice and in any case the petitioner No. 1 having submitted their representation dated 15.5.92 (Annexure 9 to the petition) it would have been fair on the part of the respondents to pass a reasoned order communicating the same to the concerned employees. There is nothing on record to show that the concerned authority decided the said representation raising specific issues.;