ORDER
Arun Mishra, J.
1. In these writ petitions common question arises for the decision. The petitioners are assailing the common order dated 19-12-97 by which their services were ordered to be removed with immediate effect. They are analogously heard and are being decided by this common order.
2. The petitioners were in the employment of Municipal Corporation, Khandwa. Orders of their removal were passed which were stayed by this Court except in the cases of Radheshyam Patil (W.P. No. 559/98) and Ramchandra Mandloi (W.P. No. 560/98).
3. Bhupendra Singh Bisen, petitioner in W.P. No. 34/98 was appointed on daily wages as Sub-Engineer on 2-5-94; he was regularised as per resolution of Standing Committee, Municipal Corporation, Khandwa dated 23-11-95. Petitioner submits that he possesses requisite qualifications for the post of Sub-Engineer. An order was issued on 28-11-95 appointing him on probation for a period of one year in the pay scale of Rs. 1600-2700. An order was passed on 19-12-97 setting aside the appointment/regularization of the petitioner with immediate effect.
4. Umashankar Mali, petitioner in W.P. No. 558/98 was working on daily wages and was regularized as Peon as per order dated 23-8-95 and was appointed on probation for a period of one year. He was made permanent on completion of the probation period as per order dated 3-1-97 and was removed by common order dated 19-12-97 (Annexure P-3) issued by Commissioner, Municipal Corporation, Khandwa.
5. Ramprasad Yadav, petitioner in W.P. No. 557/98 was working as Peon. He was regularised and put on probation on 12-10-95; his removal was ordered on 19-12-97.
6. Yogendra Kumar Gangrade, petitioner in W.P. No. 32/98 was appointed as Sub-Engineer in the pay scale of Rs. 1600-2720; the appointmentwas approved by the State of M.P.; he was appointed on two years probation; has removal was also ordered on 19-12-97.
7. Sanjay Shukla, petitioner in W.P. No. 33/98 was appointed as Sub-Engineer; he was initially appointed on daily wages and was regularized and put on probation for one year as per order dated 28-11-95 (Annexure P-5); his probation period was found to be completed satisfactorily and he was regularised; he was removed by order dated 19-12-97.
8. Radheshyam Patil petitioner in W.P. No. 559/98 was initially working on daily wages as lineman and was regularized in the year 1995; was appointed on probation for a period of one year on 6-7-95 (Annexure P-1); removal was directed on 19-12-97.
9. Ramchandra Mandloi, petitioner in W.P. No. 560/98 was appointed as Peon. He was put on probation for a period of one year as per order dated 11-10-95 (Annexure P-l); his removal was ordered on 19-12-97.
10. The order of removal is common of all the petitioners; names of all of them are mentioned in order dated 19-12-97.
11. The case of the petitioners is that once they were appointed on regular basis; their services were regularized, without opportunity of hearing, their services should not have been dispensed with.
12. It is also submitted that other similarly situated persons were regularized and are continuing in services such as S/Shri Sagir Ahmed Khan, Santosh Pandey, H.R. Pandey, Radheshyam Upadhyay and Suryakant Mehta. The action is illegal and arbitrary. Petitioners possess the requisite qualifications and their services were satisfactory. Some of them were confirmed also on completion of probation period; hence the removal by the order dated 19-12-97 is arbitrary. Their services are required.
13. By way of amendment in W.P. No. 33 and W.P. No. 34/98, it was incorporated that petitioners have worked for a period more than 240 days before termination. Their termination amount to retrenchment within the meaning of Section 2(oo) of ID Act, and since no retrenchment compensation was paid before termination, hence termination was bad in law and ab initio void.
14. Respondent Nos. 1 and 2, in their return, point out that petitioners were appointed subsequently to 1-1-1989, hence services of the petitioners could not be regularized. Procedure for appointment was not followed. No applications were invited. The services were dispensed with in view of the circular issued by the State Government on 18-11-97 (Annexure R-1/1) in which Government directed that services of the daily wags employees should not be continued as Supreme Court has held that the Government department does not fall into the definition of 'industry' under ID Act. Hence, the Government has decided to dispense with the services of daily wages employees appointed after 31-12-1988. Standing Committee of the MunicipalCorporation resolved on 30th August, 1997 to set aside the appointment of muster roll employees may be that they were already regularized.
15. In the additional return it is pointed out that appointments were without due process of selection, hence could be dispensed with without compliance of Section 25 of ID Act. The State of M.P. in its return filed in W.P. No. 32/98 contends that approval was granted to the appointment under bona fide mistake; his removal was justified.
16. Learned counsel for petitioners submits that once the petitioners were appointed on regular basis and they had completed probation period satisfactorily; their services could not have been dispensed with without issues of show-cause notice. The common order of removal dated 19-12-97 was passed without any issue of show-cause notice and is patently violative of principles of natural justice. Action is discriminatory as others who were appointed as muster roll employees after 31-12-88 were regularized and are continuing. All employees were workmen within the purview of Industrial Disputes Act (for short 'ID Act') and their services could not have been dispensed with without compliance of Section 25F of ID Act; they had completed more than 240 days in each of preceding years and they were in continuous service.
17. Shri Rajendra Tiwari, learned senior counsel for Municipal Corporation, Khandwa and learned counsel appearing for State have supported the action on two grounds; one that it was a case of back door entry and in case of invalid appointment, principles of natural justice are not applicable. Compliance of Section 25F of ID Act was not necessary as appointment was invalid and improperly procured.
18. After hearing learned counsel for parties, I am of the opinion that once the petitioners were regularized and appointed on probation and they had completed the period of probation successfully, their services could not have been dispensed with without following the principles of natural justice. In Ku. Neelima Misra v. Dr. Harinder Kaur Paintal and Ors. (AIR 1990 SC 1402), the Supreme Court held that the order having civil consequences should passed consistently with the observance of principles of natural justice. They are inhered in every administrative civil action carrying civil consequences. The Supreme Court held as under :--
'We find it difficult to accept the reasoning underlying the aforesaid view. Before we consider the correctness of the proposition laid down by the High Court we must, at the expense of some space, analyse the distinctions between quasi-judicial and administrative functions. An administrative function is called quasi-judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice. Where there is no such obligation the decision is called 'purely administrative' and thereis no third category. This is what was meant by Lord Reid in Ridge v. Baldwin, (1963) 2 All ER 66, 75-76 :
'In cases of the kind with which I have been dealing the Board of Works.... was dealing with a single isolated case. It was not deciding like a Judge in a law suit, what were the rights of the persons before it. But it was deciding how he should be treated - something analogous to a Judge's duty in imposing a penalty ... So it was easy to say that such a body is performing a quasi-judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character the principles of natural justice. Sometimes the functions of a minister of department may also be of that character and then the rules of natural justice can apply in much the same way.....'
'An administrative order which involves civil consequences must be made consistently with the rule expressed in the Lalin maxim audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken.'
'The shift now is to a broader notion of 'fairness' or 'fair procedure' in the administrative action. The administrative officers are concerned, the duty is not so much to act judicially as to act fairly. For this concept of fairness, adjudicative setting are not necessary, nor it is necessary to have lites inter parties. There need not be any struggle between two opposing parties giving rise to a 'Us'. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. But when even such an administrative decision unless it affects one's personal rights or one's property rights, or the loss of or prejudicially affects something which would juridically be called at least a privilege does not involve the duty to act fairly consistent with the rules of natural justice. We cannot discover any principle contrary to this concept.'
19. In Shridhar son of Ram Dular v. Nagar Palika, Jaunpur and Ors. (AIR 1990 SC 307), the Supreme Court has held as under :--
'The High Court committed serious error in upholding the orderof the Government dated 13-2-80 in setting aside the appellant's appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's Order had been passed without affording any opportunity of hearing to the appellant, therefore, the order was illegal and void. The High Court committed serious- error in upholding the Commissioner's Order setting aside the appellant's appointment. In this view, Orders of the High Court and the Commissioner are not sustainable in law.'
20. In case of appointments which were made invalidly in Shrawan Kumar Jha and Ors. v. State of Bihar and Ors. (AIR 1991 SC 309), the Supreme Court held that it is necessary to give hearing to the employees so appointed and thereafter the services should have been, dispensed with. Supreme Court held as under :--
'By an order dated November 2, 1988 the Deputy Development Commissioner cancelled the appointments of the appellants. Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents has contended that the appointments have been cancelled because the District Superintendent of Education had no authority to make the appointments, it was a device of by-passing the reservations and that the conditions which are part of the appointment order were not complied with. Mr. U.K. Lalit and Mr. A.K. Ganguli, learned Sr. Advocates appearing for the appellants have contioverted these allegations and have dated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rule of natural justice.'
21. In the cases of the petitioners, it is also apparent that petitioners are workmen and are having the statutory protection of not being retrenched in violation of provisions of Section 25F of ID Act; direction was issued by State Government to dispense with the services of muster roll employee appointed on or after 1-1-1989; following that direction the decision was taken to retrench, but without compliance of provisions of Section 25F of ID Act.
22. In Rajesh Kumar and Ors. v. State of M.P. and Ors. (1993 MPLJ 133), even in the case of an invalid appointment, compliance of Section 25F of ID Act was held to be necessary as an invalid appointment was not an exception provided in Section 25F of ID Act. It was held by this Court that :--
'Recently, this Court in case of Iftikar Ahmed v. Municipal Council, Ambah, 1992 (1) MPJR 104, while considering the definition of Section 2(oo) as it stands after Amendment, has taken the view that the definition of 'retrenchment' as given in Section 2(oo) of the Act is wide enough and comprehensive to include all types of terminations of service, unless the termination falls within any of the excepted categories mentioned therein. An invalid appointment is not one of the exceptions. Therefore, termination not falling under any of the exclusory clause of Section 2(oo) would amount to clear retrenchment, and for such termination compliance of the pre- requisites of Section 25F is necessary.'
As the petitioners had completed more than 240 days and were workmen, their services could not have been dispensed with without compliance of Section 25F of ID Act. In the additional return filed by the Corporation, it is not stated that the provision was complied with while passing the common order of removal. On this ground also the removal is held to be arbitrary and illegal.
23. Common order of removal of the petitioners passed on 19-12-97 is, thus, liable to be set aside and quashed. The petitioners, except Ramchandra Mandloi in W.P. No. 560/98 and Radheshyam Patil in W.P. No. 559/98, have continued to serve the Corporation owing to the interim stay granted in their favour. Hence, grant of backwages does not arise in their cases. They shall be paid for the period they had worked.
24. In W.P. No. 559/98 and W.P. No. 560/98, interim stay was not granted; hence these two petitioners have remained out of the employment. They are directed to be reinstated with 50% of the backwages.
25. It is made clear that the respondents are at liberty to take action in accordance with law consistently in accordance with the principles of natural justice.
26. The writ petitions are allowed. The impugned common order dated 19-12-97 is quashed.