S.K. Singh, J.
1. Indian Railway Construction Company Limited (in short the respondent company) is a Government of India owned company registered under the provisions of the Companies Act, 1956. All the shares of the company are held by the President and/or officers of the Central Government in the name of the President of India. The respondent company concededly an instrumentality of State within the meaning of Article 12 of the Constitution is engaged in the construction and implementation of various projects in the country and abroad pertaining to construction of roads, buildings, bridges, electrification, telecommunication, railway tracking, and construction work pertaining to airports.
2. Petitioners in these five writ petitions were appointed at Anpara Project of the respondent company on casual/ad hoc basis on a consolidated monthly emoluments of Rs. 400 subject to the condition that they will have to undergo training for the prescribed period during which they would be entitled to an additional emoluments of Rs. 50 if posted in Delhi. Bombay or Calcutta and on satisfactory completion of the training, they would be required to pass a written and oral examination, on passing of which they would be brought in grade of Rs. 260-400. Appointment was subject also to verification of age. qualification, etc. for which the petitioners were required to produce the requisite documents while reporting. Each of the petitioners, it is not disputed, completed the training successfully and was placed in the regular pay scale as per stipulation contained in the appointment letters annexed as Annexure No. 1 to the writ petition. Orders giving regular pay scale were issued on different dates in the year 1984-85 as stated in para 7 of the writ petition. On implementation of the recommendation of the Fourth Pay Commission Report, each of the petitioners were granted revised scale of pay as per recommendation made by the Fourth Pay Commission. It is not disputed that the company had undertaken Anpara Super Thermal Power Project, Vindhyachal Super Thermal Power Project, Rihand Super Thermal Power project. Northern Coalfield Limited Lal Chua, Northern Coalfield Limited. Jayant and Indian Oil Corporation, Jayant. It is the case of the petitioners that these projects have not yet completed and apart from the aforesaid ongoing projects, the Rihand region of the respondent company has undertaken further projects, namely, Varanasi-Shaktinagar Highway Project. Services of the petitioners came to be terminated vide retrenchment notice dated 20.8.1993. Validity of theretrenchment notices was the subject-matter of challenge in these writpetitions, inter alia, on the groundthat these were issued in violation ofmandatory provisions of Section 25Fof the Industrial Disputes Act, 1947.besides being arbitrary,discriminatory and violative of theArticle 14 of the Constitution of India.
3. These five connected writ petitions were allowed by a common judgment rendered by a learned single Judge on 7.12.1993 in Lal Mohammad and Ors. v. Indian Railway Construction Company Ltd. and Anr., (1994) 1 UPLBEC 357. which judgment came to be set aside in five special appeals decided by a common judgment dated 24.2.1998. On appeal by special leave, however, the Apex Court set aside the judgment dated 24.2.1998 and confirmed that of the learned single Judge vide judgment and order dated 4.12.1998 Lal Mohd. and Ors. v. I.R.C. Company Limited. JT 1998 (8) SC 351. The Apex Court though confirmed the judgment of the learned single Judge but set aside the final order disposing of the writ petitions and restored the writ petitions to the file and remitted them to be disposed of by a Division Bench in the light of the observations made by the Apex Court.
4. The Apex Court held, infer alia, that establishment of the respondent company came within the purview of 'Factory' as defined by Section 2(m) of the Factories Act for the purpose of applicability of Section 25N of the Industrial Disputes Act, 1947, the provisions whereof were applicable to the facts of the present case, and since the retrenchment notices were concededly issued without following the conditions precedent, termination of the services of the petitioners-workmen, would necessarily be treated as void and of no legal effect. In other words, it was held that the retrenchment notices which were the subject-matter of challenge in the writ petitions being null and void and of no legal effect, employer and employee-relationship between the parties did not get snapped. The petitioners workmen were accordingly held to be in continuous service of the respondent company dispite null and void notices. However, during the pendency of the Special appeals in this Court, a notice dated 2.2.1998 (Annexure-19) was issued in the news paper 'Dainik Jagran' in its issue of 6th February, 1998 that the project will be closed in the afternoon of 6th February, 1998 and the services of all casual and ad hoc unskilled workmen would not be required after the afternoon of 6th February, 1998. Individual notices dated 2.2.1998 (Annexure-20) were also issued to the petitioners that their services would no longer be required w.e.f. the closing hours of 6th February, 1998 and they would stand relieved from the service of the Project on and from the 6th February, 1998 (afternoon). Subsequently after the special appeals were allowed by this Court, the impugned office order No. 3/1/98 dated 24.3.1998 was issued stating therein that Special Appeals preferred against the judgment of the single Judge 'have since been allowed by the Hon'ble Division Bench of the Allahabad High Court and the writ petitions stand dismissed, they are no longer entitled to continue and accordingly, their services shall stand dispensed with from the date of issue of this letter.' The maffer has been remitted by the Apex Court to this Court with a view to deciding the validity of the fresh notice dated 24.3.1998 'in the light of the finding that Chapter V-B applies to respondents' Anpara-Rihand Project.' The Apex Court formulated the following questions for consideration and determination by this Court :
'(i) Whether Anpara Rihand Nagar Project is subjected to a factual closure as mentioned in the impugned notices of March, 1998 or whether the project is not still completed ;
(ii) In the light of the answer to the aforesaid question, a further question would arise whether impugned notices of March, 1998, were in fact and in law closure notices as per Section 25O read with Section 25FFF of the Act or whether they still remain retrenchment notices and, hence would be violative of Section 25N of the Act ;
(iii) Even if it is held that the Anpara Rihand Nagar Project is in fact closed down, whether the 25 appellants were employed in the project or they were employees of the respondent company entitling them to be absorbed in any other project of the company and consequently, whether the impugned notices have not affected any snapping of the employer-employee relationship between appellants on the one hand and the respondent company on the other ;
(iv) Even apart from the aforesaid questions, whether the impugned notices are violative of the guarantee of Articles 14, 16 and 21 of the Constitution of India on the ground that the termination of services of the 25 appellants was arbitrary and discriminatory. Respondent company being a 'State' within the meaning of Article 12 of the Constitution of India.'
In re-questions (i) and (ii)
5. The impugned office order dated March 24, 1998, was issued on the premises that Anpara Rihand Nagar Project had actually come to be closed on completion of the work undertaken in the project. It is not disputed that in case retrenchment notices were based on actual closure of Anpara Rihand Nagar Project then, question of violation of Section 25N of the Industrial Disputes Act, 1947, would not arise. A copy of the impugned office order dated 24.3.1998 (Annexure-22) reads as under ;
'1. On completion of the project works, the services of the under-mentioned employees of Ex-Anpara Rihand Project were dispensed w.e.f. 4th September, 1993 (A.N.) vide Office Order No. 9/93. dated 4.9.1993 on tendering of salary in lieu of notice and retrenchment compensation as admissible under the provisions of the I.D. Act.
2. Subsequently, pursuant to the order of the Hon'ble Allahabad High Court dated 7.12.1993 and 6.4.1994 on the W.P. Nos. 32651 of 1993 ; 18561 of 1993 ; 34786 of 1993 ; 44416 of 1993 and 32500 of 1993. they were however, allowed to continue on the Job ; subject to the final decision of the special appeals filed by the company against the said order.
3. As the special appeals filed by the company against the said impugned order on the above mentioned writ petitions have since been finally allowed by the order of the Hon'ble D.B. of the Allahabad High Court dated 24.2.1998 and the writ petitions stand dismissed, they are no longer entitled to continue in employment and accordingly, their services shall stand dispensed with from the date of issue of this letter.
4. Notwithstanding that all concerned petitioners were offered salary In lieu of notice and retrenchment compensation etc., at the time of their original date of termination and further all of them have been paid salary and all other dues up to date beyond their original date of termination. i.e., 4th September, 1993 in compliance with the aforesaid order of the Hon'ble High Court of Allahabad dated 7.12.1993 and 6.5.1994. all concerned employees are being paid herewith up to date pay, one month pay In lieu of notice, retrenchment and gratuity through Bank Drafts for amount shown against each towards full and final settlement as per the provision under Section 25F of Industrial Disputes Act.
5. As regards other dues such as C.P.F., Bonus, Miscellaneous dues, if any, all concerned are advised to collect the same from the Manager (Accounts), Rear-Party of Ex-Anpara Project at the above address since the project stands finally closed down w.e.f. 6th February, 1998.
Sd.
(S. K. Sood)
Joint General Manager,
Rear-Party, Ex. Anpara Project.'
6. It has been submitted by Sri R. N. Singh, senior advocate appearing for the petitioners that the notice dated 4.2.1998 published by the Joint General Manager, Anpara Project on behalf of the respondent company in the daily newspaper Dainik Jagran in its issue of 6.2.1998, notifying that as a consequence and completion of merry-go-round rail project work in Anpara, Vtndhyachal, Shaktinagar, Rihand and Satna, same were being closed w.e.f. 6.2.1998 was not a valid notice of closure but it was actually intended to circumvent any possible decision by the Courts in favour of the petitioners. Learned counsel submitted that the project had not actually been closed and in fact, it was an on-going project as on the date of the notice, namely, 4.2.1998 and even thereafter. Reliance has been placed on : (i) Order dated 16.9.1998 being Annexure-25 by which the Joint General Manager, Anpara accepted the tender of Rs. 34,35,000 from M/s. Sandeep Stone Products. Opposite Petrol Bari Dalla, Sonbhadra (U. P.) in respect of 65 mm. machine crushed track ballast from plant siding to loading bulb at Khadia of U.P.S.E.B./M.G.R. Anpara Works part B, subject to the condition, inter alia, that work should be completed within two months from the date of issue of letter dated 16.9.1998 ; (U) sanction orders issued for supply of 75,000 cub-metres of track ballast in favour of M/s, Agarwal Stone Works, Sonbhadra by means of a separate order of Joint General Manager of 16.9.1998 being Annexure-26 ; (iii) sanction order dated 19.9.1998 placed in favour of M/s. Neha Construction, Anpara, Sonbhadra in respect of supply of concrete sleepers for Anpara/M.G.R. ; (iv) Order dated 19.9.1998 issued by the Joint General Manager placing order for supply of elastic rail clip in favour of M/s. Royal Forgings Pvt. Limited, Raipur for a sum of Rs. 13,17,600 ; (v) Tender Notice dated 18.2.1998 from working contractors for providing berm by excavating rock on right side of track regarding U.P.S.E.B. merry-go-round being Annexure-29 ; (vi) Tender notices dated 6.3.1998 and 1.4.1998 issued by the respondent company with regard to tender invited by them for civil contracts specified in the notice with regard to Anpara Project being Annexures-30 and 31 ; (vii) Tender Notice dated 3.11.1998 issued by the Joint General Manager published in news paper 'Dainik Jagran' dated 3.11.1998 for supply of railway track stone ballast for the construction of merry-go-round of U.P.S.E.B. from Kakri to Kharia being Annexure-32 ; and (viii) Another tender notice circulated amongst various suppliers of the respondent company for the Anpara Project for supply of 5000 cub mt. railway stone ballast. Reliance has also been placed on renewal of licence uptill 31.12.1999 under the Contract Labour (Regulation and Abolition) Act, 1970, for Anpara Project and attendance register for the months of March, April and May, 1998, showing the office staff working at the Regional Office has also been relied on. Besides the documents aforesaid, learned counsel has also placed reliance on the fact that the company is maintaining accounts of the Regional Office at State Bank of India, Anpara Project where regular business transactions had been underway even after the alleged closure of Anpara Project.
7. For the respondents, it has been submitted by Sri Yashwant Das, senior advocate that project was actually closed on 6.2.1998 and consequent upon closure of project services of all employees numbering 208 who were locally employed in merry-go-round project and were in continuous service before such closure were dispensed with from 6.2.1998 barring essentially required staff comprising managerial. engineering/ supervisory category attending to the administrative functions such as conciliation of accounts, clearance of bills of employees and contractors, reconciliation of material article and signal and telecommunication. attending to defects under the defect liability clause of the contract. It is further submitted by the learned counsel that although the project stood completely and finally closed w.e.f. 6.2.1998, services of the petitioners should not be dispensed with w.e.f. 6.2.1998 due to interlocutory order of the Division Bench of Allahabad High Court dated 6.2.1994 and only on final disposal of the Special Appeals their services were dispensed with w.e.f. 24.3.1998 upon closure of the project. The office order dated 24.3.1998, it is submitted by the learned counsel, was issued consequent upon closure of the project w.e.f. 6.2.1998 which was notified vide notice dated 6.2.1998 through daily news paper and was also displayed on the notice board of the Project. It is, however. conceded by Sri Das that no notice was given to the petitioners. According to the learned counsel, notice was not necessary in that undertaking in question had been set up for construction of building, road, etc. as provided under sub-section (2) of Section 25FFF of the Industrial Disputes Act, 1947. Petitioners, it has been submitted by the learned counsel, have been paid salary in lieu of notice and compensation under Section 25F of the Industrial Disputes Act, 1947, albeit the office order dated 24.3.1998 is not a notice. As regards the averments made in para 81 and onwards of the amended writ petition relating to work orders issued even after the alleged closure of the project, it is conceded in paragraph 56 of the counter-affidavit filed by S. K. Sood, Joint General Manager, IRCON International Limited, New Delhi that one supply order each was placed on M/s. Sandeep Stone Products and M/s. Agarwal Stone Works for supply of 65,000 cub. metres machine crushed track ballast from plant siding to loading point at Khadia of the U.P.S.E.B. at the cost of Rs. 34,35.000. it is admitted that work order was placed on M/s. Neha Construction Company for replacement of concrete sleepers ; nor has it been disputed that an order for supply of elastic rail clip has been placed on M/s. Royal Forgings Pvt. Limited for a sum of Rs. 13.17 lakhs (erroneously stated as 131.17 lakhs in para 83 of the writ petition). Issuance of other supply orders referred to herein above too has been admitted in the counter-affidavit filed by Sri S. K. Sood, Joint General Manager, IRCON International Limited, New Delhi. In the face of these work orders and tenders, it is difficult to hold that the project had actually been closed down as alleged by the company inasmuch as the work orders referred to herein above were issued subsequent to 6.2.1998. Various work orders and tenders, etc., referred to above indicate that the project had not completed and was rather an on-going project as on 24.3.1998. There is, therefore, no scope from the conclusion that Anpara Riband Nagar Project had not been subjected to a factual closure w.e.f. 6.2.1998 as mentioned in the impugned office order dated 24.3.1998. Termination of services of petitioners without complying with the provisions of Section 25N of the Industrial Disputes Act, 1947, is null and void, the present being not a case of termination of services as a result of closure. The plea that notice was not necessary, the undertaking being one set up for construction of roads, etc., cannot be countenanced for the undertaking was not closed on account of completion of work within two years from the date on which it had been set up.
8. It may be pertinently stated that even according to paragraph 3 of the impugned office order dated 24.3.1998, the petitioners were held 'no longer entitled to continue in employment' in view of the fact that special appeals filed by the company 4 against the judgment of the learned Single Judge came to be finally allowed by the Division Bench of the Allahabad High Court dated 24.2.1998 and the writ petitions stood dismissed and accordingly their services stood 'dispensed with from the date of issue of this letter'. Earlier notices dated 4.2.1998 as published in the newspapers and the individual notice dated 2.2.1998 stating therein that the services would come to an end w.e.f. the period of closure, i.e., afternoon of 6,2.1998 would be deemed to have been rescinded in view of the order contained in the letter dated 24.3.1998 according to which the services of the petitioners stood 'dispensed with from the date of issue of this letter'. Though the impugned office order dated 24.3.1998 mentions that 'the project stands finally closed down w.e.f. 6th February, 1998', termination of the services of the petitioners was effected not from the date of closure but from the date of the order. In any case, it has already held that project had not been closed down w.e.f. February 6, 1998, as it had not been completed till then and, therefore, the order terminating the services of the petitioners without complying with the provisions of Section 25N of the Act would be null and void in that the impugned notices/orders of March, 1998 cannot be legally treated as closure notices as per Sections 25O read with Section 25FFF of the Act.
9. In re question No. (iii) : i.e., whether the petitioners were employed in the project or they were employees of the respondent company entitling them to be absorbed in any other project of the company and consequently, whether the impugned notices have not effected any snapping on the employer-employee relationship between the parties 7 appointment orders brought on record indicate that the petitioners were offered appointment 'in Anpara Project on casual/ ad hoc basis on a consolidated monthly emolument of Rs. 400. Appointment orders were issued by the Company Secretary/ IRCON visualising in unambiguous terms that on satisfactory completion of training and on passing written and oral examination after the training, the petitioners would be brought in grade Rs. 260-400 and they were actually given regular appointment in 1988. The benefit of group saving combined insurance scheme, the benefit available to regular employees of the company was also extended to the petitioners. Anpara Project by itself was not a legal entity and it being a project launched by the company, the fact that the petitioners were appointed 'in' Anpara Project will not make the Anpara Project as the employer of the petitioners. Initial appointments also contained stipulation that the appointees 'will be entitled to an additional monthly emolument of Rs. 50' if posted in Delhi, Bombay or Calcutta. On satisfactory completion of training and other formalities the petitioners were granted scale of pay vide order dated 31.10.1984 with the approval of the competent authority communicated by the Deputy Manager (Establishment), New Delhi's letter No. 1/IRCON/ESTT/35/7263, dated 12.10.1984. Petitioners were admittedly appointed by the competent authority of the company and although the petitioners were appointed 'in' Anpara Project but they were really the employees of the respondent company and mere fact that appointments were made in Anpara Project would not make any difference in so far as the employer-employee relationship between the company on one hand and the petitioners on the other is concerned. The services of the petitioners were sought to be terminated by the company and it is the company which for all purposes happened to be the employer of the petitioners. The company, it is not disputed, is permanently engaged in the construction and implementation of various projects in the country and abroad pertaining to construction of roads, buildings, electrification, telecommunication, railway tracking and construction work pertaining to all force. Therefore, even if Anpara Project is held to have been closed down, respondent company was not justified in terminating the services of the petitioners without exploring the possibility of their absorption in any other project and without adhering to the principle 'last come first go' in relation to the petitioners vis-a-vis similarly engaged other employees of the company. Respondent company being an instrumentality of 'State' within the meaning of Article 12 of the Constitution, was bound to act like an ideal employer and in consonance with the principle of equality enshrined in Articles 14 and 16 of the Constitution of India as well the directive principles of State policy.
10. In re question No. (iv) : i.e., whether the impugned notices are violative of Articles 14, 16 and 21 of the Constitution on the ground that the termination of services of the petitioners was arbitrary and discriminatory. It is not disputed that the respondent company being 'State' within the meaning of Article 12 of the Constitution of India is under a constitutional obligation to abide by the provisions of Article 14, 16 and 21 of the Constitution. Though source of livelihood is a facet of right to life guaranteed by Article 21, right to employment or right to work, as a right, has not been recognised as a fundamental right under the Constitution. But once a person enters the service under the State, he acquires a right to remain in service as per services rules and where there exist no service rules, as per constitutional scheme visualised by Articles 14, 16, 21, 38, 39, 41 and 46 of the Constitution. Deprivation of such right in arbitrary manner and otherwise than in accordance with law will impinge upon rights guaranteed under Articles 14, 16 and 21 of the Constitution. 'Joining Government service does not imply surrendering of fundamental or other rights as a human being'. In service jurisprudence. Article 21 may be invoked in a variety of situations. In Capt. M. Paul Anthony v. Bharat Gold Mines Limited and another, 1999 (2) AWC 1579 (SC) : 1999 (3) SCC 679, payment of subsistence allowance to an employee during his suspension, was held to be linked to employee's right to life guaranteed under Article 21 of the Constitution. Though right to livelihood 'cannot be accepted to the extent that may embrace or take within its ambit all sorts of claims relating to the legal or contractual rights of the parties completely ignoring the person approaching the Court and the alleged violation of the said right, State of H. P. v. Raja Mahendra Pal, 1999 (2) AWC 2.78 (SC) (NOC) : (1999) 4 SCC 43, yet violation of Article 21, as and when found, directly or indirectly, or even remotely has not only to be looked upon with disfavour but it 'is required to be remedied.'
11. In Air India Statutory Corporation and Ors. v. United Labour Union and Ors., (1997) 9 SCC 377, it has been held as under :
'Due to economic constraints, though right to work was not declared as a fundamental right, right to work of workmen, lower class, middle class and poor people is a means to development and source to earn livelihood. Though, right to employment cannot, as a right ; be claimed but after the appointment, to a post or an office, be it under the State, its agency, instrumentality, juristic person or private entrepreneur, it is required to be dealt with as per public element and to act in public interest assuring equality, which is a genus of Article 14 and all other concomitant rights emanating therefrom are species to make their right to life and dignity of person real and meaningful.'
12. In view of the decisions aforesaid, I am of the view that termination of the service of workmen in an arbitrary manner and in violation of doctrine of equality as enshrined in Articles 14 and 16 of the Constitution will lead to violation of Article 21 of the Constitution in that derivation of the source of livelihood otherwise than in accordance with law is tantamount to denial of guarantee to life under Article 21 of the Constitution. It is well said that 'Justice' and 'Equality', serve as eyes of the Constitution and together, they constitute the core of the heart of the Constitution and give the law its 'insight to the environment of which it is the occasion' and 'relate the law to the spirit of the time'. Socio-economic Justice is the legitimate expectation of 'we, the People of India' in general and The little man' in particular and being one of the corner stones of our Constitution, every action of the State and its instrumentality having a reasonable bearing on socio-economic justice must be reasonable and fair and must also be guided by the Preamble of the Constitution and the directive principles of State policy. Section 25N of the Industrial Disputes Act. 1947, aims at ensuring that the aforesaid legitimate expectation of 'the little man' is not frustrated by arbitrary decision of the employer to terminate the services of a workman and has been engaged to give effect to the Directive Principles of the Constitution. Once the petitioners are held to be employees of the respondent company, termination of their services without following the principle 'last come first go' merely on the ground of closure of one of the projects of the employer company would be illegal and void. Retrenchment due to closure too comes within the purview of 'termination' Meenakshi Mills case, AIR 1994 SC 2696 ; Orissa Textile and Steel Ltd. v. State of Orissa. AIR 2002 SC 708 para 10. Any arbitrary retrenchment necessitated due to closure of one of the units of the employer would be unsustainable. Since employer-employee relationship exists between the respondent company on one hand and the petitioners on the other, closure of one of its projects. Anpara Rihand Project in this case, will ipso facto not justify impugned termination unless it is established that the respondent company terminated the services of the petitioners in consonance with the doctrine of equality. It is not the case of the company that the petitioners were junior most employees of the company employed in the same grade and the same scale. In such view of the matter, I am of the considered view that the impugned orders are liable to be quashed also on the ground of being violative of Articles 14, 16 and 21 of the Constitution.
13. In the conspectus of above discussion, the petitions succeed and are allowed. Impugned orders are quashed. Petitioners are entitled to all consequential benefits.
R.K. Dash, J.
14. I have gone through the judgment rendered by my esteemed and respected brother Hon. S. R. Singh. J. with respect I do not concur with the views and ultimate conclusion arrived at by His Lordship. I, therefore, feel it appropriate to express my views and findings on all issues framed by the Apex Court.
15. The Indian Railway Construction Company Limited (hereinafter referred to as 'Company') is a company incorporated under the Indian Companies Act, It is wholly owned by Government of India and concededly it is an instrumentality of 'State' within the meaning of Article 12 of the Constitution of India. The company is engaged in the construction and implementation of various projects including construction of roads, buildings, bridges, electrification, telecommunication, railway tracks in the country and abroad. The case of the petitioners is that they were appointed on casual/ad hoc basis on a consolidated salary with a stipulation that they shall undergo training for twelve months and upon their passing out of the examination at the end of the training, they would be given regular pay scale. They joined their duties in the construction project of railway line known as 'Rihand Nagar Project' (hereinafter referred to as the 'Project') as clerk, store clerk, cashier, technical supervisor, and site supervisor, etc. Their specific case is that they were appointed as employees of the company and on completion of training, they were issued fresh appointment letters and given regular pay scale which was subsequently revised on the recommendation of the 'Fourth Pay Commission'. They worked almost eight years continuously in the company and there was no complaint whatsoever about their efficiency and sincerity. But the company all of a sudden served them retrenchment no-tices dated 20.8.1993 indicating therein that as most of the work of the Project was over and there was no work available in the said project or any other project of the company, they were rendered surplus and hence retrenchment benefits were being offered as per the details given in the notices. Challenging the validity of the said notices they filed the present writ petitions contending inter alia that the same were issued in violation of the provision of Section 25F of Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') besides being arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution.
16. The company on being noticed filed return and resisted the claim of the petitioners. It is stated that the petitioners were ad hoc employees engaged in the Project. They were not regularly appointed as the employees of the company by adhering to due selection process as prescribed in the Company's Recruitment Rules. So on completion of the Project, they were retrenched from their services after complying with the provision of Section 25F of the Act. A learned single Judge upon hearing all these writ petitions accepted the case of the petitioners and came to hold that the petitioners were employed on ad hoc basis in the company and subsequently, their services were regularised and therefore, even if the Project came to end, they being permanent employees of the company, could have been engaged in other projects. Question was also raised that whether Section 25N of the Act would apply in these cases. Contention was raised on behalf of the company that the aforesaid provision has no application since it is not a 'factory'. The learned single Judge repelled the said contention and held that the company being a 'factory' within the meaning of Section 2(m) of the Factories Act read with Section 25L of the Act and admittedly, the provision of Section 25N having not been complied with, the retrenchment notices are null and void. In fine, he quashed the retrenchment notices of termination and directed that the petitioners shall continue in their job and be paid their salary.
17. Aggrieved by the judgment of the learned single Judge, the company preferred special appeal and a Bench of this Court upon hearing the parties upturned the Judgment and order of the learned single Judge. Besides other findings, the Bench held that as the Project in which the petitioners were employed came to an end their retrenchment in accordance with the provisions of the Act was valid and they could not be absorbed in any other project. The legality and correctness of the aforesaid judgment came to be challenged by the petitioners in the Supreme Court. Upon hearing, their Lordships set aside the judgment of the Division Bench and confirmed that of the learned single Judge and remanded the case to the Division Bench for fresh disposal since in course of argument it was brought to the notice of their Lordships a subsequent event that on 24th March, 1998, all the petitioners were served with fresh notices of termination wherein it was indicated in express terms that since Project was finally closed down w.e.f. 6th February, 1998, the services of the workmen stood dispensed with from the date of issuance of notice. These notices prima facie being 'closure notices' and the question whether the petitioners were employees of the company or of the Project having been kept open for determination on the basis of the subsequent pleadings and the materials to be produced by the parties, the Apex Court framed the following issues to be answered by the Division Bench :
'(i) Whether Anpara Rihand Nagar Project is subjected to a factual closure as mentioned in the impugned notice of March, 1998 or whether the project is not still completed ;
(ii) In the light of the answer to the aforesaid question a further, question would arise whether impugned notices of March, 1998, were in fact and in law closure notices as per Section 25O read with Section 25FFF of the Act or whether they still remain retrenchment notices and hence would be violative of Section 25N of the Act ;
(iii) Even if it is held that the Anpara Rihand Nagar Project is in fact closed down whether the 25 appellants were employed in the project or they were employees of the respondent-company entitling them to be absorbed in any other project of the company and consequently whether the impugned notices have not effect any snapping of employer-employee relationship between the appellants on the one hand and the respondent company on the other ;
(iv) Even apart from the aforesaid question whether the Impugned notices are violative of the guarantee of Articles 14, 16 and 21 of the Constitution of India on the ground that the termination of services of the 25 appellants was arbitrary and discriminatory, respondent company being a 'State' within the meaning of Article 12 of the Constitution of India.'
18. After the case was remanded by the Supreme Court for being disposed of by the Division Bench, the parties amended their pleadings. The petitioners by way of amendment deleted few paragraphs from the original pleadings and in place thereof a good number of paragraphs. In sum and substance the amended pleadings relate to the plea taken by the respondent-company before the Apex Court with regard to closure of the Project. The petitioners have asserted that the Project being an ongoing Project, tenders were invited and work orders were placed even after the alleged closure. It is urged that General Manager of the Project placed order with M/s. Sandeep Stone Product and M/s. Agarwal Stone Works for procurement of 65 mm. Machine Crushed Track Ballast. Besides, work orders were issued to M/s. Neha Construction Company and M/s. Royal Forgings Pvt. Ltd. for supply of concrete sleepers and elastic railway clips respectively. It is further stated that tender was invited from contractors for providing berm by excavating rock on the right side of the track of merry-go-round system as per the requirement of the U.P.S.E.B. Moreover, under Contract Labour (Regulation and Abolition) Act, the licence for the Project was renewed in favour of the company up to 31.12.1999 and had the work been closed the licence would not have been renewed.
19. The respondent company filed return traversing most of the assertions made by the petitioners. In opposition to respondent's plea, the petitioners filed rejoinder-affidavit to which the company-respondent filed supplementary counter-affidavit. The pleadings of the parties run into several pages which contain repetition of facts already pleaded. It is, therefore, not necessary to reproduce the same in detail in order to avoid repetition and make the judgment voluminous. The case of the respondent-company in short is that the petitioners were engaged on ad hoc/casual basis in the Project and said Project on completion being wound up, they were served with statutory notices as provided in the Act and paid closure compensation and finally their services were dispensed with. It is emphatically denied that the aforesaid project was an on-going Project by the time when notices were served. It is asserted that Project on completion was handed over to the clients and in turn they issued certificates to the company. It is urged that after handing over the Project, petty works remained to be taken up under 'Defective Liability' clause of the contract. The detailed averments have been made in the counter-affidavit (pages 84 to 98). For better appreciation, the same are reproduced hereunder :
'However, the signal and telecommunication activities which had to be undertaken only after the net working of the rail track was laid and made operational. This particular separable activity could not, however, be undertaken due to non-availability of site of alignment at Road Over Bridge point of unloading involving evacuation of unauthorised occupants at the site where the work was to be executed as also due to non-availability of funds and raw materials due to ban on the quarries by the State Government. All said constraints being beyond the control of both U.P.S.E.B. and IRCON the project was accordingly closed on its being handed over to the clients in an operational state after due notification in the News Papers w.e.f. 6th February, 1998 ; leaving only 21 engineering and supervisory staff for attending to the administrative functions together with the S & T activities that could not be undertaken on account of force majeure beyond the control of the respondent.
The status of the lone works undertaken in the M.G.R. Project of the U.P.S.E.B. together with completion, handing over certificate is enclosed collectively at Annexure-C.A. XI................
62. That it is not denied that one supply order each were placed in the project on M/s. Sandeep Stone Products and the other on M/s. Agarwal Stone Works for supply of 65 mm. machine crushed tract ballast from power house to loading bulb point at Khadia of the U.P.S.E.B. at the cost of Rs. 34.35 lakhs as per Annexure at P-25 and P-26 respectively. The S. & T. works together with its ancillary activities at the loading bulb area on the 2nd line and loading loop together with signalling and telecommunication works could not be carried out on account of non-availability of site at R.O.B. point in loading bulb because of difficulties involved in evacuation of the inhabitants occupying the approach land for R.O.B. and also due to the inadequacy of funds and raw material due to ban on the quarries by the State Government. The said project work remained Incomplete being beyond the control of the U.P.S.E.B. and IRCON. Although the major activities of the work of more than 50 kms. rail track was completed and handed over to the client U.P.S.E.B. and the track became operational on handing over to the client on 4.7.1997 as per certificate issued by the Engineer Incharge of the U.P.S.E.B. at Annexure-C.A. XIII. Under the circumstances, however, the supplier on whom the orders were placed having failed to execute the order ; both the work orders in question have been rescined as per Annexure-C.A. XIV. It is brought out that the quantity has been reflected as 75,000 cu. m. instead of 7,500 cu. m. which is apparently wrong and made deliberately to magnify the quantities and volume of the work involved.
63. That it is admitted that the work order was placed on M/s. Neha Construction Co., Sonebhadra for replacement of the wooden sleepers with concrete sleepers as per changed requirement of the client for reasons of operational safety and upgradation of the railway system already built up.
64. That it is not denied that an order for supply of elastic rail clips has been placed on M/s. Royal Forging Pvt. Ltd. for a sum of Rs. 13.17 lakhs which has been stated to be of Rs. 131.71 lakhs erroneously as would be evident from Annexure-P. 28. The material is in fact a small item which fastens the sleeper under the rail and because of replacement of wooden sleepers necessitated by concrete sleepers. This is an inseparable item required as a fastener for the sleeper for holding the rail and all of them are petty works coming under the defect liability clause of the contract neither involving any new construction works nor any change in the manpower resources.
65. That it is not denied that a berm in the form of a retaining platform had to be provided to the existing M.G.R. system in deep cutting as per the requirement of the client U.P.S.E.B. to protect the existing track from the falling boulders on running track during the rainy season, for the said petty works as procurement of material for drainage-cum-protection wall became necessary to improve the safety of existing track as a part of the defect liability under the scope of the contract even after completion/ closure of the project. These were accordingly tendered/procured as post closure activity of insignificant nature not involving any further requirement of the category of manpower to which the petitioners belong and as such their claim is untenable. It is no doubt meant to mislead the Hon'ble Court.
66. That it is not denied that since the supply orders for procurement of machine crushed track-ballast ordered against 2 supply orders mentioned at para 81, were cancelled due to failure of the suppliers to execute the orders, the said order was repeated as would be evident from the contents of the supply order at Annexure-P. 32 necessitating for reasons mentioned in reply to para 81 and reiterated that they are part and parcel of the work under defect liability and, therefore, do not purport to be a work of volume necessitated the continuance of the petitioners who are of clerical category and in any case it has been stated in reply to para that the required manpower for attending to the work under defect liability and administrative functions have been retained numbering 21 belonging to categories required for the site activities which are distinct from the petitioners.
67. That in view of the nonavailability of the machine crushed ballast on account of failure on the part of the suppliers to supply against orders mentioned at para 81 and reply thereto, the copy of the tender notice were no doubt circulated amongst other local suppliers with a view to meeting the urgent requirement of the tract ballast and the same is in no way a fresh work but reinforcement of the existing track as per contractual commitment under the defect liability period.
68. That it is admitted that the licence obtained under the Contract Labour (Regulation and Abolition) Act, 1970, from the licensing authority of the appropriate Government has been got renewed as at Annexure-P. 34 duly amending the licence granted under Section 12 for the actual number of person retained at the Project for maintaining a minimum administrative functions under the defect liability clause of the contract and also to complete about 2 kms. of track in patches which could not be undertaken due to reasons beyond the control of the U.P.S.E.B. as per detailed reasons given in reply to para 78.
69. That it is not denied that during the month of March-May, 1998, as per copy of the attendance register at Annexure-P 35 and salary bills at Annexure-P 36 that not more than 8-10 persons were physically held in the Rear establishment of the Project after closure of the Project on 6,2.1998 for maintaining a minimum administrative functions such as re-conciliation of accounts, reconciliation of materials, clearance of bills, contracts etc., as was required under the defect liability clause of the contract and, therefore, they do not in any way go to establish that the project had not been completed and was not capable of closure.'
20. Admitting that the benefit under Group Life Insurance Scheme was extended to the petitioners, the respondent-company has explained that such benefit was given to all employees including casual, ad hoc as well as Project based employees who were employed locally and were on casual/ad hoc basis in the Project as the scheme was meant as a social and welfare measure on contributor basis, in addition to the provision of Gratuity under the Payment of Gratuity Act to all employees.
21. The petitioners have alternatively claimed absorption contending that plenty of works are available with the company and there will be no hindrance or impediment to engage them. This has been stoutly denied by the respondent-company. It is stated that the company has recently bagged only eight Letter of Intents (Lols) as against thirty one projects which on completion stand closed. With regard to violation of rights of the petitioners guaranteed under Articles 14, 16 and 21 of the Constitution due to termination of their services on account of alleged closure, the case of the respondent-company is that no unequal treatment has been meted out to the petitioners after closing down the Project. The services of all the a d hoc/casual employees were terminated except twenty one employees comprising of Engineer, Manager and Supervisory Staff belonging to Signal and Telecommunication, Finance and Accounts whose services were required for maintaining the minimum administrative function necessary for the post closure activity within the defect liability period and for the purpose of reconciliation of accounts etc. These petitioners belong to clerical category and not of the categories as mentioned above.
22. Learned counsel for the petitioners strenuously contended that petitioners were the employees of the company and not of the Project as alleged by the respondent-company. Referring to the appointment letters, he urged that the petitioners having Joined their duties underwent training, on completion whereof, they were issued regular appointment letters with appropriate pay scales. Besides the company also extended the benefit of Group Saving Combined Insurance Scheme as is available to regular employees, implemented IVth Pay Commission Report and enhanced their salary. From the various documents, what is deducible is that all the times the company treated them as its regular employees.
23. It is further contended that the Project was not in fact closed as alleged in the closure notice, in fact it is an on going Project as would be evident from the tender notices and work orders issued to M/s. Sandeep Stone Products, M/s. Agarwal Stone Works, M/s. Neha Construction, M/s. Royal Forgings Private Limited and others. Besides, for the very same Project licence under the Contract Labour (Regulation and Abolition) Act, was got renewed till 31.12.1999. From all these documents it is quite evident that the Project was running in full swing, but the respondent-company created the story of 'closure' when the matter was sub-judice in the Apex Court in order to circumvent any possible decision in favour of the petitioners.
24. Learned counsel further submitted that the respondent-company being a public undertaking, adopted 'pick and choose' method, retained some similarly situated employees, who are junior to the petitioners and did away with the job of the petitioners. This action of the respondent-company being violative of Articles 14 and 16 of the Constitution, should be set at naught and it be directed to allow the petitioners to continue in their services as regular employees.
25. Per contra, learned counsel appearing for the respondent-company submitted that the petitioners were offered appointment' in between 1983-1985 in the Project on casual/ad hoc basis on a consolidated emolument, which would be evident from appointment letters Annexure-C.A. 8 (similar to Annexure-1) with stipulation that on completion of training they would be given regular pay scale and accordingly on completion of training they were given benefit of pay scale, but no fresh appointment letters were issued to them.
26. It is further urged that in view of the fact that respondent-company has no permanent and perennial nature of work, number of employees in its regular establishment is very meagre. It takes up construction works on contract basis throughout the country and appointment on casual basis to different categories of work is made on local basis and as soon as the work is over, the employment of the casual employees comes to an end. Similar was the case of the petitioners. They came to be employed in the project on casual/ ad hoc basis without facing any recruitment/test as provided in the Company's Recruitment Rules and they did not face any test as because their appointment was not for any post in the company, but for the Project. So, after the work in the Project was over, urged the counsel, the Project was closed down and the petitioners were paid closure compensation as provided under Section 25FFF of the Act to the tune of more than two lakhs each.
27. Refuting the petitioners' case that the project was an on-going project on the date of publication of the closure notice, he submitted that on completion of work, it was handed over to the clients as would be evident from the certificates, Annexures-XI, XII and XIII to the counter-affidavit and Annexures-I, II, III, IV, V, VI, VII, to the supplementary counter-affidavit. Admitting that some tenders were invited and work order was placed as alleged by the petitioners, counsel contended that a separable activity of the project could not be taken up since the inhabitants occupying the approach land could not be evacuated and also on account of inadequacy of funds and nonavailability of raw materials due to ban on the quarries by the State Government. However, the track became operational on being handed over to client on 4.7.1997 as per the certificate issued by the U.P.S.E.B., (Annexure-C.A. XIII). Similarly work order was placed for replacement of wooden sleepers by concrete sleepers as per changed requirement of the client for operational safety and upgradation of the railway system already built up. He further submitted that order was placed for supply of elastic rail clips to fasten the sleepers for a sum of Rs. 13,17 lakhs and not 131.71 lakhs as alleged by the petitioners for replacement of wooden sleepers. All these small items of work were undertaken subsequent to the handing over and taking over of the project, under the 'defect liability clause' of the contract and, therefore, it cannot be construed that the project was an on going project. Besides, such activities did not require man-power of the categories to which the petitioners belong.
28. In answer to the petitioners grievance that some persons junior to them In the category of clerk have been retained by the company, learned counsel contended that 21 employees comprising Engineer, Managerial and Supervisory staff mostly belonging to Signal and Telecommunication stream, finance and accounts were retained after the project establishment was wound up for maintaining the minimum administrative function necessary for the post closure activity within the 'defect liability' period. Two Assistants (Accounts) namely, Shri V. K. Debyet and D. V. S. Rao were retained for billing/reconciliation of accounts. Shri S. K. Saraswat, a track mistry was retained for measurement of tract related works and reconciliation of materials and Shri G. S. V. R. Ravikumar, Draftsman was retained for final billing. So the petitioners being not in any of the categories as aforesaid, cannot urge that they have been discriminated.
29. Before proceeding to answer the issues framed by the Apex Court, I feel it appropriate to mention that since some of the petitioners on being selected in the test/interview have in the meantime been absorbed in the company and some availed of voluntary retirement scheme as urged by the learned counsel for the respondent-company, this decision will be confined to the remaining contesting petitioners.
30. In re : Issue No. (iii). For the sake of convenience I propose to take up this issue first. Concededly. the respondent-company, a wholly owned Central Government company has no permanent and perennial nature of work. It is engaged in the construction of roads, buildings and railway tracks etc. within the country and abroad. It is urged on behalf of the company that in its regular establishment in the corporate office and the project site there are in total 203 employees in the cadres of Superintendent. Assistant Superintendent and Assistant Clerk. Petitioners' case is that they are the employees of the company, whereas the case of the respondent-company is that the petitioners were appointed in the Project. This being disputed question of fact, I would have directed the concerned Government to refer the dispute to the Tribunal constituted under the Act. but since the parties have been litigating in this Court and the Apex Court for years together and further the Apex Court having framed the issues has remanded the matter for a decision. I will proceed to adjudicate the dispute on the basis of the pleadings of the parties and the documents relied upon by them and the attaining circumstances.
31. The petitioners (Writ Petition No. 32651 of 1993) in support of their case rely upon the appointment letters, Annexure-I series. For the sake of convenience I will refer to the appointment letter of Lal Mohd.. the petitioner No. 1 where it is specifically stated that he was offered appointment in the project on a casual/ ad hoc basis on a consolidated monthly emolument of rupees four hundred and was directed to report to the Project Manager, IRCON at Anpara. There is no ambiguity in the said letter and there can be no other interpretation to support the case of the petitioners that they were appointed in the company. Their contention is that on completion of training, they were issued with fresh appointment letters and were given regular pay scale, thus they are employees of the company. I have perused Annexure-3 series of which some (at pages 72 lo 77) are printed, unfilled and unsigned. So for the sake of convenience I will refer to the letter dated 19.5.1988 (at page 86) issued by the Regional Manager. IRCON. Anpara and as would appear therefrom, the addressee on completion of training was brought on the scale of Rs. 260-400 per month with effect from 13.3.1985. Laying emphasis on Clause (vii) of the said letter it is urged that there is unequivocal admission that the petitioners are the employees of the company since as stated therein, they were prohibited to undertake any other work or employment elsewhere without obtaining permission from the company. This contention has no legal support in view of the fact that their initial appointment stems from the letters. Annexure-1, which in uncertain terms speaks that they were appointed in the Project. Had they been appointed in the company and posted in a particular project, it would have been specifically stated so in the appointment letter itself. So their initial appointment being qua the Project, they cannot develop their case by interpreting any other document to support their case. True it is, they were given the benefit under Group Saving Combined Insurance Scheme as is available to regular employees, but specific case of the respondent-company is that such benefits are also given to casual/ad hoc employees. This being disputed question of fact, the benefit given under the aforesaid scheme is of no help to them and thus, It will not strengthen their case.
32. Respondent-company has its own Recruitment Rules known as, IRCON Recruitment Rules, 1979. Rule 4.1 of the said Rules provides inter alia that these rules shall apply for appointment by direct recruit or deputation from Government or Public Sector Companies or by departmental promotion to all posts in the Company except those which are to be filled up by the Central Government. These rules do not apply to dally rated staff.
33. Method of recruitment from external sources is provided in Rule 8. According to Rule 8.1. appointment on direct basis shall be made through Employment Exchange in the manner as permitted by provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. Rule 8.2 says that in all cases of Direct Recruitment, Selection Committee will be constituted with the approval of competent authority.
34. Admittedly, the petitioners did not face any recruitment as provided under the aforesaid Rules. They made their entry through back door. Time and again the Apex Court has expressed displeasure about back door entry in the public service. At initial stage, appointment is given for a temporary period with technical breaks in order to escape of the relevant Rules and after year or so, such illegal appointment is regularised. A good number of illegal employment market has developed resulting in a new source of corruption. This has led unemployed youth with good academic career to frustration. One having made to easy entry to public service by adopting illegal method can have no right to ask the Court to protect his job on the plea of his right to livelihood being infringed.
35. The petitioners in the present case, as stated earlier, did not face any interview and it might be that with the blessings of someone in the helm' of affairs, they could secure job and having worked for some years they have come forward with the plea that they being employees of the company, their services should be regularised. To repeat with, the petitioners have neither pleaded nor have brought anything on record to show the number of vacancies in the various cadres of the company which, according to them, were filled up by giving them appointment. Respondent company being a company wholly owned by the Central Government, no appointment can be made without there being any post lying vacant or created.
36. It may be noted, similarly situated persons like the petitioners filed Writ Petition No. 24251 of 1998 before the Andhra Pradesh High Court against the respondent-company. The petitioners in the said case appointed for construction of merry-go-round railway track at Ramagundam Super Thermal Power Station sought for regularisation of their services. A learned single Judge by judgment and order dated 25.4.2001 dismissed the writ petition. An appeal was carried and a Division Bench upon hearing, answered the question against the petitioners in the following words as would be evident from the judgment, Annexure-2 to the Civil Miscellaneous Application No. 80753 of 2001 :
'A bare perusal of the said offer of appointment would clearly show that the concerned persons were appointed on casual/ad hoc basis. It may be true that in the said offer of appointment it has not been specifically stated that they were appointed for the aforementioned project but it is evident that the appointees were asked to report to the Project Manager. I.R.C.O.N. at N.T.P.C. Complex. Ramagundam. In the absence of any rule the writ petitioners-appellants are not entitled to any regularisation.'
The Bench took note of earlier decision in the case of Secretary, A. P. Social Welfare Residential Education Institution Society v. P. Venkata Kumar, 2001 (3) ALT 366, where it was held :
'.............having regard to the mode of appointment, the requirements thereof, absence of sanctioned posts, non-observance of the statutory rules the part-time employees. ad hoc employees and NMRs did not derive any legal right whatsoever to continue in service.............It is now well-settled principle that by reason of a catena of decisions of the High Court as also of the Supreme Court of India a prolonged service would not ripen into permanence, nor by reason thereof the status of employee can be changed.'
The Bench also made reference to various judgments including that of the Calcutta High Court in the case of Sairindhri Dolui v. State of West Bengal and Ors., 2000 (1) SLR 803.
37. In the case on hand, claim of the petitioners does not stand in a better footing than that of the petitioners of the aforesaid case decided by the Andhra Pradesh High Court. The appointment letters reference of which was taken note of by the Division Bench would show that appointment was made on casual/ ad hoc basis on a consolidated emolument and the appointees were directed to report to the Project Manager, IRCON. In the present case petitioners' initial appointment was for the Project on a consolidated monthly emolument and they were directed to report to the Project Manager.
38. Taking an overall view of the facts and circumstances of the case, the issue is answered against the petitioners and it is held that they were appointed on casual/ad hoc basis in the Project.
39. In re : Issue No. (i). In view of my findings in the preceding paragraphs that the petitioners were employed in the Project, the next question arises as to whether the said project has been wound up as alleged by the respondent-company or it is an on going Project as pleaded by the petitioners. The petitioners by amending the writ petitions have brought on record certain letters and tender notices issued by the respondent-company being Annexures-25 to 33 to show that the work of the project has not come to a close and closure notice is a mere camouflage. Annexure-25 Is a letter dated 16.9.1998 addressed to M/s. Sandeep Stone Products regarding procurement of 65 mm. Machine Crushed Track Ballast from plant siding to loading bulb at Khdria of U.P.S.E.B./M.G.R., Anpara Works. Annexure-26 is also a similar letter addressed to M/s. Agarwal Stone Works. Annexures-27 and 28 are the letters dated 19.9.1998 addressed to M/s. Neha Construction and M/s. Royal Forgings Pvt. Ltd. through which respondent-company asked for supply of concrete sleepers and rail clips. Annexure-29 is a tender notice dated 18.2.1998 for providing berm by excavating rock on right side of track between Km. 18/910 to 19/100 of U.P.S.E.B./M.G.R. Similarly, Annexure-30 is a tender notice dated 6,3.1998 for construction of C.C. Drain. Taking clue from these annexures it was urged on behalf of the petitioners that Project was not wound up on the date of publication of closure notice.
40. On the other hand, the case of. the respondent-company is that 93% of the combined work of the Project set up for construction of M.G.R. Railway track stood completed in the year 1993 i.e., by the time these writ petitions were filed. After the entire project work was complete, it was declared closed w.e.f. 6.2.1998. After closure, the project was handed over to the clients and in turn they issued completion certificates being at Annexures-1 to 7 to the supplementary counter-affidavit. Admitting the issue of tender notices (Annexures-25 and 26) for procurement of 65mm-Machine Crushed Track Ballast, it is urged that activities at the loading bulb area together with the signalling and telecommunication work could not be carried out on account of nonavailability of site R.O.B. point because of the difficulties involved in evacuation of inhabitants occupying the approach line for R.O.B. and also due to inadequacy of funds and nonavailability of raw materials due to ban on the querries by the State Government. It is further urged that major activities of the work were over, railway track was complete and handed over and the track became operational on 4.7.1997 as per certificate at Annexure-C.A. XII. As stated earlier, respondent-company has not denied or disputed other tenders/orders referred to by the petitioners. Explaining the circumstances under which they were issued, it is stated that order was placed for supply of concrete sleepers and rail clips as per changed requirement of the client for operational safety and upgradation of railway system. As regards providing berm, the case of the respondent-company is that it was done so as per the 'defect liability clause' of the contract and the work so done was insignificant in nature not involving any further requirement of man-power. This was a post-closure activity of in-significant in nature not involving any requirement of man-power. In substance, the stand taken by the respondent-company is that the materials procured, tenders invited after closure of the Project were under the 'defect liability clause' of the contract and therefore, basing on the documents referred to by the petitioners it cannot be construed that the Project was an on-going Project. As would appear from Annexure-C.A. XI, the completion certificate was given by the N.T.P.C. certifying that the work under LOA No. 01/NRC/72-408 dated 13.8.1984 was completed on 31.12.1997. Similarly, Annexure-C.A. XII, status report of the Project of N.C.L./U.P.S.E.B. and P.C.L reveals completion of different works, Annexure-CA XIII is a certificate issued by the Superintending Engineer, U.P.S.E.B. showing completion of various stages of the work as per the contract except minor work in loading bulb area and some S. & T. works. Similar are the letters issued by N.T.P.C. being Annexures-S.C.A. I to V certifying completion of the works undertaken by the company. As would appear from Annexure-S.C.A. I, all the works undertaken between 1983-1987 were completed prior to 1997 and handed over to N.T.P.C. in operational stage. Similarly, S & T works undertaken in the year 1985 was completed and taken over by N.T.P.C. in February, 1992 and the same is in operational use since then. From all those documentary evidence, it appears to us that various works of the project undertaken by the respondent-company were complete leaving some minor works to be taken up either under 'defect liability clause' of the contract or for the reasons beyond the control of the company. I, therefore, answer the issue in the affirmative in favour of the respondent-company that there was factual closure of the project as mentioned in the notices of March, 1998.
41. In re : Issue No. (ii). In view of my findings on Issue No. (i) that on completion of works, the Project was closed down and as asserted by the respondent-company, notices were given in March, 1998 and compensation was paid to the tune of more than two lakhs to each of the petitioners, there was sufficient compliance of Section 25FFF of the Act. Section 25N providing 'Conditions Precedent to Retrenchment of Workmen' has no application to the present case since termination of the services of the petitioners cannot be construed as 'retrenchment' in terms of Section 25F of the Act. As far back as in 1957 a Constitution Bench of the Apex Court in Hari Prasad Shiv Shankcar Shukla v. A. D. Divicar, AIR 1957 SC 121. had laid down that 'retrenchment' defined under Section 2(oo) of the Act would not cover termination of service of all workmen as a result of closure of business. The aforesaid decision was relied upon in the case of H. P. Mineral and Industrial Development Corporation Employees Union v. State of H. P. and Ors., 1996 SCC (L & S) 470, It was observed in the said case that definition of 'retrenchment' as defined in Section 2(oo) of the Act has to be read in the context of Sections 25FF and 25FFF of the Act and if thus read 'retrenchment' under Section 2(oo) does not cover termination of service as a result of closure or transfer of an undertaking though such termination has been assimilated to retrenchment for certain purposes, namely, the compensation payable to the workmen whose services are terminated as result of such closure. Therefore, Section 25N which deals with retrenchment cannot apply to a case where termination of the services of the workmen was brought about as a result of closure of the undertaking.
42. In view of such authoritative pronouncement, I answer the issue that notices of March, 1998, were the closure notice as per Section 25FFF of the Act.
43. In re : Issue No. (iv). Since I have held that petitioners were employed in the project which on completion was wound up, the question assumes importance whether retrenchment of the petitioners is violative of the Articles 14 and 16 and their right to life under Article 21 of the Constitution.
The grievance of the petitioners is that they have been discriminated, inasmuch, as their employer by adopting 'pick and choose' method did away with their services and while doing so retained some employees who are junior to them. This allegation has been stoutly denied by the respondent-company. In supplementary counter-affidavit, it is specifically stated that service of twenty one employees comprising of Engineer, Managerial and Supervisory staff mostly belong to Signal and Telecommunication, Finance and Accounts were retained after the Project was wound up on completion for maintaining minimum administrative function for post closure activity within the defect liability period for the purpose of reconciliation, recovery of accounts, billing and attending to rectification of the defect etc. Sri V. K. Dubey and D. V. S. Rao are the Assistant (Accounts) and have been retained for billing/reconciliation of the accounts, S. K. Saraswat, Track Mistry has been retained for measurement of track related works and G. S. V. R. Ravi Kumar has been retained for taking measurement of works for final billing and reconciliation. In view of such specific stand and there being no material that any one in the category of clerk to which the petitioners belong has been retained by the respondent-company, 1 hold that no unequal treatment has been meted out to the petitioners. Thus there has been no violation of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution.
44. Now coming to the question whether termination of services of the petitioners had affected their right to life under Article 21 of the Constitution, I would like to observe that the petitioners when accepted the job in the Project on casual/ad hoc basis knew well that on completion of the Project their services would be no more and they would be retrenched. Their employment being qua the Project and the Project on completion having been closed down they cannot urge upon the Court to direct the respondent-company which admittedly does not have permanent nature of work to keep them in the roll as idle workers and pay them salary. It is pertinent to mention that the respondent-company had undertaken thirty one Projects which on completion have been closed down and on the other hand, it has bagged only eight Letter of Intents (Lols). In such fact situation, it would not be feasible for the company to engage the petitioners and many others similarly situated persons whose services have been terminated.
45. I may approach the issue from another angle. Needless to say, Government owned Companies, Corporations and Undertakings were primarily set up for country's economic development as well as to provide employment. Except a few many are running in loss and some in the meantime have been closed down. Budgetary provisions were made to revive them, yet it has not become possible for those companies and undertakings to make good the loss. The worst sufferers are the tax payers. In the recent past, some companies have been disposed of in order to avoid further loss. Undeniably, one of the reasons for incurring loss is the excess manpower. Expenditure on salary-head is much more than the income. Rules of employment are thrown to the winds. One gets easy entry to service through back door either by political pressure or with the blessings of the executive head of the concerned company even without there being any vacancy in the post. In the case on hand, it is not the case of the petitioners that they faced selection/interview and were selected. It would appear from pleadings of the respondent-company that the petitioners entered through back door to work in the project on ad hoc/casual basis.
46. In view of such fact, they as of right cannot ask the employer to continue them in service. It may be noticed, thirty seven employees who stand in the same footing were retrenched on account of closure of the project. They approached this Court by filing Writ Petition No. 24331 of 1998 which was dismissed on the ground of alternative remedy and the said decision was upheld by the Apex Court. Those persons may stake claim for being absorbed if the petitioners' prayer is accepted. The respondent-company had taken up works in other States and on closure of the concerned projects the employees were retrenched. Similarly situated employees may also lay claim to retain them. In such circumstances any direction to absorb the petitioners in any other ongoing project, as urged by them, would amount to forcing the respondent-company to wind up in entirety since excess man-power would lead the company to financial crisis as it happened in many other companies. I am, therefore, not inclined to accept the petitioners' contention and direct the respondent-company for their absorption.
47. In view of discussions made above, the writ petitions having no merit stand dismissed. There shall be no order as to costs.
48. Since our opinion parts company on the issues framed by the Apex Court in its order of remand of the case to this Court, let the records of the writ petitions be placed before Hon'ble the Chief Justice for making appropriate nomination under Rule 3 of Chapter VIII of the Allahabad High Court Rules.