Ram Prasad vs U.P.Electricity Board Through ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:61099
 
Court No. - 5
 

 
Case :- WRIT - A No. - 1606 of 1999
 

 
Petitioner :- Ram Prasad
 
Respondent :- U.P.Electricity Board Through Chairman
 
Counsel for Petitioner :- Ganga Singh,Abhinav N Trivedi,Ankit Pande,Qamrul Hasan,Rajesh Shukla,Ramesh Shukla
 
Counsel for Respondent :- C.S.C,Prashant Chandra,Vashu Deo Mishra
 

 
Hon'ble Irshad Ali,J.

1. The case has been listed under the heading "These cases shall not be adjourned".

2. List has been revised.

3. Heard learned counsel for the petitioner, who prays that he does not have instructions on behalf of petitioner nos.1,2,3 and 5 therefore, this writ petition on behalf of petitioner nos.1,2,3 and 5 may be dismissed for want of prosecution.

4. In view of the above, this writ petition on behalf of petitioner nos.1,2,3 and 5 is dismissed for want of prosecution.

5. By means of the present writ petition, the petitioner has prayed for the following reliefs:

i. issue writ, order or direction in the nature of mandamus commanding the opposite parties to consider the case of the petitioners for their appointment/ absorption as Class IV employees, the posts which are lying vacant with the opposite parties, as the petitioners are retrenched employees of the Department treating the petitioners as regular employees and to pay their salary.

ii. issue writ, order or direction in the nature of mandamus commanding and directing the opposite parties concerned to give the benefit of reservation quota to the petitioners provided for the Schedule Caste, Scheduled Tribe and Backward Caste.

iii. issue or pass any other writ, order or direction in the nature and manner, which may be deemed just and proper in the circumstances of the case and.

iv. allow the writ petition with cost.

6. Facts of the case are that the petitioners continuously served the department as class IV employees and their services were retrenched in violation of mandatory provisions of Industrial Dispute Act. On 24.1.1989, the opposite parties made about 300 appointments on the post of Collie but only 79 retrenched employees were appointed and rest appointments were made from outsider. The list of 423 retrenched employees were got prepared and approved by the opposite parties.

On 2.2.1991, the Board has issued specific order to appointment retrenched employees on the basis of seniority after obtaining the Board's permission. On 10.11.1992, 174 posts of Class IV were sanctioned but the opposite parties concerned did not take any decision for providing employment to the retrenched employees. On 31.1.1993, the office bearer of the Union wrote a letter to the opposite party no.7 in respect of appointment of retrenched employees, but the same is in vain.

On 26.3.1993, some colleagues of the petitioners submitted a representation to the opposite party no.3 for their reinstatement. On 9.8.1995, the rules and regulations were framed in pursuant to the Board's orders wherein Rule 13 provides priority to the retrenched employees be given. On 27.1.1997, the Union to which the petitioners belong has represented the matter for appointemnt of retrenched employees to the Deputy Labour Commission.

On 30.1.1997, the opposite party no.7 will completed the procedure in respect of the issue no.1 of the representation during the concilliation proceedings by the office of the department. On 25.1.1999, presently again the posts of about 3000 of labour category belonging to Class IV have been advertised and the applications have been invited fixing last date of the submission of the application dated 25.1.1999 by the opposite party no.2, wherein neither any priority has been shown for the retrenched employees, nor there is any mention that the retrenched employees will be given appointment on the said vacant posts, hence the present writ petition has been filed.

7. While making submissions at length, learned counsel for the petitioner pointed out that in a similar matter, this Court in Writ Petition No.1821 (SS) of 1999 passed the following order.

"Heard Sri Ganga Singh, learned counsel for the petitioner and Sri N.K. Pandey, learned counsel for the respondents.

It is not in dispute that the petitioner's service were retrenched as a Class IV employee under the erstwhile U.P. State Electricity Board now U.P. Power Corporation Limited.

There is no dispute that Section 25-H of the Industrial Disputes Act, 1947 is applicable to the facts of the case, which is reproduced hereunder:-

S. 25-H "Re-employment of retrenched workman:

Where any workmen are retrenched and the employer proposes to take into his employ any person, he shall in such manner as may be prescribed, give an opportunity [to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen] who offer themselves for re-employment shall have preference over other persons."

It would be useful to reproduce the corresponding rule i.e. Rule 77 and 78 of the Industrial Disputes (Central) Rules.

S.77. Maintenance of Seniority list of workmen:

The employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be pasted on a notice-board in a conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment.

S.78. Re-employment of retrenched workmen-

(1) Atleast ten days before the date on which vacancies are to be filled, the employer shall arrange for the display on a notice board in a conspicuous place in the premises of the Industrial establishment details of those vacancies and shall also give intimation of those vacancies by registered post to every one of all the retrenched workmen eligible to be considered, therefore to the address given by him at the time of retrenchment or at any time thereafter.

Provided that where the number of such vacancies is less than the number of retrenched workmen, it shall be sufficient if intimation is given by the employer individually to the senior most retrenched workmen in the list referred to in Rule 77 the number of such senior most workmen being double the number of such vacancies;

Provided further that where the vacancy is of a duration of less than one month there shall be no obligation on the employer to send intimation of such vacancy to individual retrenched workmen;

[provided also that if a retrenched workman, without sufficient cause being shown in wiriting to the employer, does not offer himself for re-employment on the date or dates specified in the intimation sent to him by the employer under this sub-rule, the employer may not intimate to him the vacancies that may be filled on any subsequent occasion.]

(2) Immediately after complying with the provisions of sub-rule (1), the employer shall also inform the trade unions connected with the industrial establishment of the number of vacancies to be filled and names of the retrenched workmen to whom intimation has been sent under that sub-rule:

Provided that the provisions of this sub-rule need not be complied with by the employer in any case where intimation is sent to every one of the workmen mentioned in the list prepared under rule 77."

A perusal of the aforesaid provisions would reveal that it is mandatory for the employer to give preference in employment to the retrenched employees before offering any employment on the post or in the class from which the employees had been retrenched.

This Court while granting time to the learned Standing Counsel to file Counter Affidavit directed that if the posts are vacant, the authorities will also consider the request of the petitioner for employment being retrenched employee.

But no Counter Affidavit has been filed on behalf of any of the respondents and the averments made on oath in the writ petition have not been controverted and have been accepted by the respondents as true and correct.

Sri Ganga Singh, learned counsel for the petitioner has placed before me a copy of the Application Form made by the petitioner as required by the Respondent No.4 in which it has been certified that the petitioner had worked from 5.1.1981 to 17.6.1983 i.e. for 2 years 5 months continuously. The petitioner has, therefore, completed more than 240 days of continuous service.

The petitioner is, therefore, entitled to the protection of Section 25-H of the Industrial Disputes Act, 1947 and Rules 77 and 78 of Industrial Disputes (Central) Rules, 1957 and the respondents are under statutory mandatory obligation to abide by the aforesaid provisions in letter and spirit.

Accordingly, the writ petition is allowed and the respondents are directed to employ the petitioner within three weeks of the receipt of the Certified Copy of this Order by the Appointing Authority if posts are vacant and available."

8. Against the aforesaid judgment and order, Special Appeal No.324 of 2001 titled 'U.P. Power Corp. Ltd. Shakti Bhawan Through M.D. v. Rajesh" was filed before this Court which was dismissed for want of prosecution and interim order, if any, stand vacated. Till date, no application for recall of the order of dismissal in default has been moved by the applicant, therefore, the judgment and order passed in Writ Petition No.1821 (SS) of 1999 attained finality in the eyes of law.

9. The matter pertaining to the petitioner is fully covered under the judgment and order passed in Writ Petition No.1821 (SS) of 1999, therefore the petitioner is also entitled to the benefits of Section 25-H of the Industrial Disputes Act, 1947 and Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 and the respondents are under statutory obligation to abide by the aforesaid provisions in letter and spirit.

10. In view of the above, this writ petition is allowed. Respondents are directed to employ the petitioner within a period of three months from the date of production of a certified copy of this order by the Appointing Authority, if post is vacant and available.

Order Date :- 21.9.2023

GK Sinha