# Suresh Chandra and others v. State of U.P. and others

- **Citation:** (2003) 1 ILRA 116
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-07-07
- **Case number:** Civil Misc. Writ Petition No. 29545 of 2001
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-chandra-and-others-v-state-of-u-p-and-others-39780
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226-
Service Law- Daily Wager, working w.e.f.
1982 with Gandak Region Irrigation
Department- service terminated in the
year 1990 due to non availability of
work- admittedly new hands appointed
in
1991
without
considering
the
experience of Petitioner such action of
authorities found in utter violation of
Article 14 of the Constitution- Principle
of last come first go' not followed
direction issued to maintain a seniority
list of Daily Wagers by serving the copy
individually to all the Daily Wagers-
utilize the same either in appointment of
Daily Wagers or on Regular basis.

Held- Para 10

The respondents have felt the need of
engagement of daily wage muster roll
employees and had taken fresh hands in
the year between 1992 and 1997. In the
circumstances, petitioner's termination
of service is held to be violative of Article
14 of the Constitution of India and
against the principles of natural justice
equity, justice and good conscience. In
case the respondents require to engage
fresh hands, petitioners should have
been given an opportunity to serve in the
divisions.

For the reasons aforesaid, the writ
petitions are allowed. The impugned
order
dated
7.7.2001,
terminating
petitioners' services with effect from
16.6.2001
passed
by
the
Executive
Engineer, Drainage Khand, Gorakhpur is
set aside without any benefit or back
wages or any consequential benefit. The
respondents are directed to draw a list of
petitioners as well as the employees
engaged by them on daily wages in
accordance with their date of initial
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1All] Suresh Chandra and others V. State of U.P. and others 117
engagements. The petitioners and other
employees, so placed in the list, will be
offered
daily
wage
employment
or
regular appointments if available and
required by the divisions, strictly in
accordance with their seniority in the
list. The list, so drawn, shall be sent to
each
of
petitioners,
separately
and
published in news papers.
Case law discussed:
1988(57) FLR 1976 (SC)
1997 (76) FLR 176
1999 (83) FLR 497
1991 LIC 241

## Text

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116 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
disabilities were considered by Release
Medical Board as neither altributable to
nor aggravated by military service,
however, third disability was considered
as aggravated due to stress and strain of
service assessed compositely at 40% for
two years and he was granted Rs.90/- per
month
as
disability
person,
after
adjudication, for five years with effect
from 01 September, 1997 and paid cheque
on account of disability under AGI
Scheme. Petitioner was unable to point
out any error in law or violation of any
provision of Act, Rules or Regulations in
making the aforesaid assessment of
disability pension.

12. In the aforesaid facts and
circumstances of the case the writ petition
is allowed. It is declared that the
petitioner has retired from substantive
rank of Havaldar group A on 31.8.1997
and is entitled to pension and other
benefits as having retired from the rank of
Havaldar, (MT) group A. The respondents
are
directed
to
re-fix
his
pension
accordingly, and to pay his entire arrears,
with simple interest as prevalent @ 10%
per annum. The petitioner shall be entitled
to cost of this writ petition.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD JANUARY 17, 2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 29545 of 2001

Suresh Chandra and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri B.K. Singh Raghuvansi
Sri Anilanand Misra

Counsel for the Respondents:
S.C.

Constitution
of
India,
Article
226-
Service Law- Daily Wager, working w.e.f.
1982 with Gandak Region Irrigation
Department- service terminated in the
year 1990 due to non availability of
work- admittedly new hands appointed
in
1991
without
considering
the
experience of Petitioner such action of
authorities found in utter violation of
Article 14 of the Constitution- Principle
of last come first go' not followed
direction issued to maintain a seniority
list of Daily Wagers by serving the copy
individually to all the Daily Wagers-
utilize the same either in appointment of
Daily Wagers or on Regular basis.

Held- Para 10

The respondents have felt the need of
engagement of daily wage muster roll
employees and had taken fresh hands in
the year between 1992 and 1997. In the
circumstances, petitioner's termination
of service is held to be violative of Article
14 of the Constitution of India and
against the principles of natural justice
equity, justice and good conscience. In
case the respondents require to engage
fresh hands, petitioners should have
been given an opportunity to serve in the
divisions.

For the reasons aforesaid, the writ
petitions are allowed. The impugned
order
dated
7.7.2001,
terminating
petitioners' services with effect from
16.6.2001
passed
by
the
Executive
Engineer, Drainage Khand, Gorakhpur is
set aside without any benefit or back
wages or any consequential benefit. The
respondents are directed to draw a list of
petitioners as well as the employees
engaged by them on daily wages in
accordance with their date of initial
http://www.allahabadhighcourt.nic.in
1All] Suresh Chandra and others V. State of U.P. and others 117
engagements. The petitioners and other
employees, so placed in the list, will be
offered
daily
wage
employment
or
regular appointments if available and
required by the divisions, strictly in
accordance with their seniority in the
list. The list, so drawn, shall be sent to
each
of
petitioners,
separately
and
published in news papers.
Case law discussed:
1988(57) FLR 1976 (SC)
1997 (76) FLR 176
1999 (83) FLR 497
1991 LIC 241

(Delivered by Hon'ble Sunil Ambwani, J.)

1. By these petitions, 48 petitioners
in writ petition no. 29545 of 2001 and one
petitioners, namely, Anand Kanan in writ
petition no. 29547 of 2001, have prayed
for quashing the news paper 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
Raghuvansi,
learned
counsel
for
petitioners and learned standing counsel
for respondents.

3. Brief facts, giving rise to these
petitioners, are that petitioners were
engaged as daily waged muster roll
employee in Gandak Region of Irrigation
Department in its various division in the
year 1982 and onwards. They were
disengaged, including other employees,
totaling 58 daily waged muster roll
employees in the year 1990 on the ground
of non availability of work. Petitioners
filed writ petition 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.

4. 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 1986 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 Dispute 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.

5.

Learned
standing
counsel,
appearing for the respondents, stated that
petitioners are not class IV employees.
They were engaged as muster roll daily
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118 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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 going through
the contents of the letter, dispensed with
their services as they were not entitled to
be re employed.

6.

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 vs.
State of Punjab and others, 1988 (57) FLR
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) vs. K. Somasetty and
others, 1997 (76) FLR 176, held that
Irrigation Department performs sovereign
functions and cannot be treated to be an
'industry'. This Court in State of U.P. vs.
Presiding Officer, Industrial Tribunal (V),
Meerut and another (1999 (83) FLR 497)
had chosen 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
vs. Santosh Kumar and another, the
matter has been referred by this court to a
larger
Bench.
These
development,
however, need not be detailed further to
decide the issue raised in the present writ
petitions.

7.

The
fact
that
petitioners
completed 240 days in a calendar year has
not been specifically denied and no reply
has been given to the rejoinder affidavit
which was filed on 14.3.2002. Petitioners
could
have
approached
the
forum
provided
under
the
U.P.
Industrial
Disputes Act, 1947 for adjudication of
their rights arising out of their illegal
retrenchment of their services. A writ
petition for the relief claimed, which
could have been adjudicated upon by the
Labour Court, is not maintainable in view
of the Full Bench decision of this Court in
Chandrama Singh vs. Managing Director,
U.P. Co-operative Union, 1991 LIC.
2413.

8. The fact, however, remains that
the work was still available with the
respondents in the divisions and that
inspite of Government Order dated
6.5.1992
specifically
directing
the
department not to engage any muster roll
daily wagers, the divisions continue to
engage such employees. In the report
dated 2.7.2001, the Executive Engineer
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1All] Suresh Chandra and others V. State of U.P. and others 119
informed the Chief Engineer (Gandak).
Irrigation Department Uttar Pradesh,
Gorakhpur and thereafter, the Chief
Engineer (East) in his report dated
11.7.2001, annexed as annexure RA-2 to
the rejoinder affidavit, reported that
between 1992 and 1997, the following
daily wages employees were engaged in
different divisions:-

1.
Gandak
Sinchai
Kaarya
Mandal
Pratham, Gorakhpur

07

2. Gandak
Sinchai
Karya
Mandal
Tritiya,. Gorakhpur

12

3. Gandak Flood Region, Gorakhpur

03

4. Gandak Flood Region, Basti.

06

9. In view of the above, the
petitioners, who had already served in the
department, were, as such, discriminated
in
employment.
In
Ghaziabad
Development Authority and others vs.
Vikram Chaudhary and others (1995) 5
Supreme Court cases 210, considering the
similar question with regard to daily
waged
employees
and
Ghaziabad
Development
Authority
and
their
retrenchment as against the provisions of
U.P. Industrial Disputes Act, 1947, the
apex court held that since petitioners', in
the said case, were temporary daily wage
employees, the question of making them
regular employees and regular pay does
not arise so long as regular posts are not
available, but that in the event, the
authority is to terminate their services, the
principle of 'last come first go' should be
followed and, in the event of their being
reemployment,
preference
should
be
given to the displaced employees. The
Supreme Court approved the observations
of the High Court which were found to be
inconsistence with the well established
principles of natural justice and equity,
justice and good conscience. It was also
directed that until regular posts are
available, the workmen shall be paid
minimum wages under the statute, if any,
or the prevailing wages in the locality.

10. In the present case, petitioners
have been agitating their rights since their
services were illegally terminated. They
cannot, therefore, be denied the relief on
the ground that they were not employed
after 1990-91. The respondents have felt
the need of engagement of daily wage
muster roll employees and had taken fresh
hands in the year between 1992 and 1997.
In
the
circumstances,
petitioners'
termination of service is held to be
violative of Article 14 of the Constitution
of India and against the principles of
natural justice, equity, justice and good
conscience. In case the respondents
require to engage fresh hands, petitioners
should have been given an opportunity to
serve in the divisions.

11. For the reasons aforesaid, the
writ petitions are allowed. The impugned
order
dated
7.7.2001,
terminating
petitioners' services with effect from
16.6.2001 passed by the Executive
Engineer, Drainage Khand, Gorakhpur is
set aside without any benefit or back
wages or any consequential benefit. The
respondents are directed to draw a list of
petitioners as well as the employees
engaged by them on daily wages in
accordance with their date of initial
engagements. The petitioners and other
employees, so placed in the list, will be
offered daily wage employment or regular
appointments if available and required by
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120 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
the divisions, strictly in accordance with
their seniority in the list. The list, so
drawn, shall be sent to each of petitioners,
separately and published in news papers.

There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.1.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J

Civil Misc. Writ Petition No. 53411 of 2002

Chandra Pal Singh
 ...Petitioners
Versus
State Public Service Tribunal, Lucknow
and others

 ...Respondents

Counsel for the Petitioner:
Sri Yogesh Agarwal

Counsel for the Respondents:
S.C.

Constitution
of
India,
Article
226-
Service Law-termination order on the
ground a particular record not returned
by
the
Petitioner-inquiry
officer
recorded specific finding that there is no
material regarding hand over of record
to the petitioner- State Tribunal ignored
this material document- direction issued
for reinstatement.

Held- Para 5

We are surprised to note that the
Tribunal has not apparently seen the
enquiry report where the finding of fact
is that there is no material to show that
the record in question had been handed
over by T.B. Singh to the petitioner.
Hence the Tribunal has clearly made an
observation (quoted above) which is
baseless. We have therefore to hold that
the original record in question has not
been handed over by Sri T.B. Singh to the
petitioner and there was no material to
show that that was done.

(Delivered by Hon'ble M. Katju, J.)

1. We have heard the learned
counsel for the petitioner and learned
Standing Counsel.

2. The petitioner has challenged the
impugned order of the U.P. Public Service
Tribunal dated 20.9.2002.

3. The petitioner was a Stenographer
in the office of the Trade Tax Department,
Allahabad. He was charge sheeted vide
charge
sheet
dated
19.2.2000
vide
Annexure 4 to the writ petition to which
he gave reply vide Annexure 5 to the writ
petition. Thereafter an enquiry was held.
True copy of the enquiry report dated
22.7.2000 is Annexure 6 to the writ
petition. It has been observed by the
enquiry officer that the then record keeper
T.B. Singh appears to be responsible for
disappearance of the record relating to a
particular trader M/s M.B. Traders. The
enquiry officer has recorded a finding that
there is no material to show that T.B.
Singh handed over the record to the
petitioner, Chandra Pal Singh.

4. The Tribunal in its impugned
order Annexure 1 to the writ petition has
observed "As per finding of fact the
original record relating to a particular
trader for a particular year was given by
the record keeper to the petitioner who
did not return the same back to the record
keeper in original. He, rather, gave back
only a photocopy thereof."

5. We are surprised to note that the
Tribunal has not apparently seen the