Gopal Singh Vs Indian Railway Const Company Ltd Ircon - Citation 700001 - Court Judgment

Judgment:
ORDER

K. Ramamoorthy, J.

1. There are five petitioners in CWP. 629/98. Their services have been dispensed with by the Indian Railway Construction Company Limited, hereinafter called the IRCON. They have challenged the orders passed by the first respondent. Before I notice the case of the petitioners, it will be relevant to state about the formation of the IRCON.

2. IRCON was incorporated in the year 1976 under Indian Companies Act, 1956. It is a Government of India enterprises, run under the aegis and control of the Ministry of Railways. The main purpose for which the Company was formed was for the construction of railway tracks, roads, highways, buildings for Government and other works working under the Government, canals and other construction activities on commercial basis. It has its central office in New Delhi. The Company has a few engineers, other professionals and staff for the purpose of administration. The IRCON undertakes projects at various places in India and abroad. Depending upon the volume of the work undertaken by IRCON and duration of the work, it takes persons for employment.

3. According to the petitioners, they were all employed by the IRCON on permanent basis. Their employment would not come to an end on the completion of a project by the IRCON in which they were employed. The IRCON had terminated the services of the petitioners without any basis and it is wholly illegal, and, thereforee, they are entitled to reinstatement with all consequential benefits.

4. Gopal Singh, the first petitioner in CW. 629/98, was appointed on the 3rd of November, 1988 for Dadri Project as Zonal Assistant. The order of appointment reads as under:-

'Sub: Appointment to the post of Jr. Assistant in scale Rs.260-400 for a period of one year on contract basis in Indian Railway Const. Company Ltd.'

You are offered an appointment to the post of Jr. Assistant purely on ad-hoc basis for a contract period of one year in this Company on an initial pay of Rs.260/- in the scale of Rs.260-400 (pre-revised) for IRCON's Dadri Project on the following terms and conditions. Your services will, however, be transferable on IRCON Projects at any place in India.

(i) Emoluments:

You will be entitled to initial pay of Rs. 260.00 in scale Rs. 260-400 (pre-revised) plus allowances as admissible under the rules of the Company.

(ii) Terms of appointment:

Your appointment will be one purely ad hoc basis for a contract period of one year from the date you assume charge, terminable any time without notice and without assigning reasons therefore.

(iii) traveling Allowance:

You will be entitled to traveling Allowance and re-imbursement of Railway fares incurred on official tours in terms of IRCON TA Rules as applicable to category 'D' group employees.

(iv) Medical Re-imbursement:

You will be entitled to re-imbursement of medical expenses up to a maximum of Rs.2000/- during the period of your contract appoint- ment for self and family on production of relevant vouchers as prescribed under company rules.

1. LEAVE

You will be entitled to proportion to Casual Leave only during the period of your contract appointment.

2. the appointment will be subject to the production of the following documents at the time of reporting for duty :-

a) Original certificates in support of your educational, technical and professional qualifications. Documental proof in respect of date of birth etc. together with attested copies thereof.

b) Identity certificate after filling up the Attestation form (copy enclosed) in triplicate.

c) In case you belong to SC/ST, one of the following certificates should be produced.

i) metriculation or School leaving Certificate or birth certificate giving your caste/community and place or residence.

ii) A certificate in the enclosed form issued by one of the authorities enlisted therein.

3. You should sign the following declaration in the forms enclosed to this letter :-

a) Declaration of Marriage.

b) Relationship/connection with the Board of Director (s) of the Company.

4. You should produce a medical certificate of fitness from a Regd. Medical Practicioner.

5. You will not, save with the express permission of the Company, engage in any trade or business or undertake any other work or any employment elsewhere full-time or part-time while in the service of the Company.

6. In regard to any matters, not specifically covered in the foregoing paragraphs, you will be governed by the Rules and orders applicable, from time to time, to the employees of the company.

7. If any declaration given or information furnished by you approves to be false or it is found that you have wilfully suppressed or withheld any material information, you will be liable to removal from service forthwith without any notice and without assigning any reason thereforee notwithstanding any action taken against you as the Company may deem fit and necessary.

8. No traveling allowance (TA/DA) will be admissible to you for joining the appointment.

If the above terms and conditions are accepted, you may please communicate your acceptance (or otherwise) within a fortnight of the receipt of this letter by returning the duplicate copy of this letter duly signed to the undersigned and report to Dadri Project of IRCON for duty. The address of Dadri Project is given below :

Chief Project Manager

Dadri Project

I R C O N

Palika Bhawan

R. K. Puram, New Delhi '

5. On the 20th of October, 1989, the term of service of Gopal Singh, the first petitioner in CW. 629/98, was extended from 8.11.1989 to 7.11.1990. The order dated 20.10.1989 reads as under :-

'The terms of contract appointment of Shri Gopal Singh Presently working as Clerk Scale Rs. 260-400 in IRCON's Dadri Project is extended for another One year w.e.f. 08.11.89, i.e. up to 07.11.90, on the existing terms and conditions.

This issues with the approval of Competent Authority.'

6. On the 11th of May, 1994, the first petitioner in CW. 629/98, along with a regular appointee, was shifted from Dadri Project to Delhi-Mathura/Kosi Kalan Project. The petitioner is mentioned as being ad hoc. The office order dated 11.5.1994 reads as under:-

'In terms of contract appointment the under mentioned employees are transferred on the same posts with immediate effect and directed to report to the Projects as shown against their respec- tive names:

Sr. Name Post Present Project No. Project where transferred 1. Sh.C.S.Dhami Assistant NOIDA Delhi- (Regular) Mathura 2. Sh. Gopal Singh Jr. Asstt. Dadri -do- (Ad hoc) This issues with the approval of competent authority.'

7. On the 24th of May, 1994, the first petitioner in CW. 629/98 was re- lieved from his post. The office order date 24.5.1994 reads as under:-

'In terms of Corporate office order No.330/94 dated 11.05.1994, Shri Gopal Singh, Jr. Asstt. working on the project is relieved of his duties on 24.05.1994 afternoon and directed to report to the Chief Project Manager, IRCON, Delhi - Mathura Road Project, Kosikalan, Dist.-Mathura for further orders.'

8. On the 31st of May, 1994, the Assistant Manager Accounts, Dadri Project, IRCON, wrote to the Chief Project Manager, IRCON, Delhi-Mathura Road Project, sending the last Pay Certificate of the first petitioner in CW.629/98.

9. The second petitioner in CW.629/98, Jagan Nath, was employed as driv- er. On the 18th of May, 1990, a communication was sent to him appointing him as driver on ad hoc basis. The same reads as under:-

'Sri Jagan Nath,

S/o Lt.Sri Bansi Lal,

C/o Sri Ram Dogra,

A/135, J.J.Colony, Tigri,

Khanpur, New Delhi-110062.

Sub: Appointment to the post of Driver in scale Rs. 260-400 on Ad hoc basis in the Indian Railway Construction Company Limited, at Dadri Project.

I am directed to state that you have been selected for appoint- ment to the post of Driver purely on adhoc basis in this company on an initial pay of Rs.260/- at Dadri in the scale of Rs. 260- 400 plus other allowances as admissible under the rules of the company subject to the conditions governing the grant of such allowances in force from time to time, from the date you take over charge of the post as per the following terms and condi- tions:-

1. The appointment is ad hoc and your services are liable to be terminated without notice and without assigning any reasons.

2. The appointment will be subject to the production of the following documents at your own expense at the time of reporting for duty:-

a) A medical certificate of health and physical fitness for service on prescribed proforma from a qualified and registered medical practitioner.

b) Original certificate in your support of your educational, technical and professional qualifications, documentary proof in respect of date of birth, etc., together with two attested copies thereof.

c) Character certificate from Class I Gazetted Govt. Officer/ Member of Parliament or M.L.A./Municipal Commissioner/Justice of peace/First Class Judicial Magistrate etc.

d) Certificate of release from your last employer in case you are already employed in a Govt. Undertaking/ Deptt./Autonomous bodies, etc.

e) Identity certificate after filling up the Attestation form (copy enclosed) in triplicate)

f) In case you belong to Schedule Cast/Schedule Tribe, one of the following certificate in original should be produced.

metriculation or school leaving certificate or birth certificate giving your cast/community and place of residence. A certificate, in the enclosed form, issued by one of the authorities persons enlisted therein.

3. You will have to take an oath of allegiance to the Constitu- corporation of India in the form provided for this purpose.

4. You will be liable for transfer to any of the offices/project sites under the control of the Company in India.

5. You should sign the following declarations in the forms en- closed to this letter:-

a) Declaration of Marriage

b) Relationship/connection with the Board of Director(s) of the Company.

6. You will not, save with the prior permission of the competent authority, apply for any post/appointment out side the company. You will have to withdraw your application for appointment else- where made prior to the date of issue on these orders and will not appear for interview or accept any employment, if ordered, as a result thereof. No application for appointment shall be for- warded.

7. You will not, save with the express permission of the Company, engage in any trade or business or undertake any other work or any employment elsewhere full time or part time while in the service of the Company.

8. In regard to any matters, not specifically covered in the foregoing paragraphs, you will be governed by the rules and orders applicable, from time to time, to the employee the Compa- ny.

9. If any declaration given or information furnished by you proves to be false or it is found that you have wilfully sup- pressed or withheld any material information, you will be liable to removal from service forthwith without any notice and without assigning any reason thereforee notwithstanding any action taken against you as the Company may deem fit and necessary.

10. No traveling allowance (TA/DA) will be admissible to for joining the appointment.

If the above terms and conditions are acceptable, you may please communicate your acceptance or otherwise to this offer of ap- pointment within a fortnight of the receipt of this letter by returning the duplicate copy of this letter further posting, Along with the documents mentioned above.'

10. On the 9th of November, 1995, vide office order No. 978/95 the second petitioner in CW. 629/98 was posted Panipat Refinery Project. On the 20th of November, 1995, he was relieved. On the same date, his Last Pay Certifi- cate was also issued.

11. The third petitioner in CW.629/98, Raghunath Rai, was selected to be appointed as driver. On the 26th of December, 1988, his name was approved. The note put up for his appointment reads as under:-

Sub: Requirement of staff - Posting thereof.

One more vehicle 'Gypsy-Maruti' has been procured for Dadri Project on 20.12.88.

To man Gypsy Project Manager's of IRCON were requested vide this office letter No. IRCOM/DADRI/G/3 dated 23.11.88 to forward the names of staff who can be spared so that selection can be made for their transfer to our project. They were also requested to forward the names with their applications within 10 days i.e. by 3rd Dec. 88. Except P.M. Panchkula (1 application) and Farakka (10/applications) no other Project Manager has forwarded the names of Drivers.

Farakka's office is at closing stage but Project Manage during discussion with CPM gave an indication that for the movement he can spare only one driver that too Along with one vehicle, but till today neither the driver nor vehicle has come, in spite reminders & Telegrams.

To man the Gypsy one driver is very necessary till such /staff is selected/posted.

CPM is requested to approve appointment of one Sh. Raghunath Rai who has interviewed and tried of his driving performance and found fit, on casual basis wef 23.12.88.

For order please. Approved Sd/- sd/- Chief Project Manager Office Supdt.'

12. On the 18th of May, 1990, an order was issued appointing the third petitioner in CW.629/98, Raghunath Rai, as driver on ad hoc basis. The same reads as under:-

'Sh.Raghunath Rai,

S/o Sri R.S.Rai,

268-F/5, Haus Rani, Court,

Opp.Press Enclave,

New Delhi-110017.

Sub: Appointment to the post of Driver in scale Rs. 260-400 on Ad hoc basis in the Indian Railway Construction Company Limited, at Dadri Project

I am directed to state that you have been selected for appoint- ment to the post of Driver purely on adhoc basis in this company on an initial pay of Rs.260/_ at Dadri in the scale of Rs. 260- 400 plus other allowances as admissible under the rules of the company subject to the conditions governing the grant of such allowances in force from time to time, from the date you take over charge of the post as per the following terms and condi- tions:-

1. The appointment is ad hoc and your services are liable to be terminated without notice and without assigning any reasons.

2. The appointment will be subject to the production of the following documents at your own expense at the time of reporting for duty:-

a) A medical certificate of health and physical fitness for service on prescribed proforma from a qualified and registered medical practitioner.

b) Original certificate in your support of your educational, technical and professional qualifications, documentary proof in respect of date of birth, etc., together with two attested copies thereof.

c) Character certificate from Class I Gazetted Govt. Officer/Member of Parliament or M.L.A./Municipal Commissioner/Justice of peace/First Class Judicial Magistrate etc.

d) Certificate of release from your last employer in case you are already employed in a Govt. Undertaking/ Deptt./Autonomous bodies, etc.

e) Identity certificate after filling up the Attestation form (copy enclosed) in triplicate)

f) In case you belong to Schedule Cast/Schedule Tribe, one of the following certificate in original should be produced.

3. You will have to take an oath of allegiance to the Constitu- corporation of India in the form provided for this purpose.

4. You will be liable for transfer to any of the offices/project sites under the control of the Company in India.

5. You should sign the following declarations in the forms en- closed to this letter:-

a) Declaration of Marriage

b) Relationship/connection with the Board of Director(s) of the Company.

8. In regard to any matters, not specifically covered in the foregoing paragraphs, you will be governed by the rules and orders applicable, from time to time, to the employee the Compa- ny.

10. No traveling allowance (TA/DA) will be admissible to for joining the appointment.

13. On the 4th of March, 1994, an Office Order No.133/94 was issued transfering the third petitioner in CW.629/98 to Canara Bank Office Complex/NOIDA Project from Dadri Project. On the 15th of March, 1994, he was relieved. On the 4th of July, 1995, an office order No.627/95 was issued in the following terms:-

'Shri Raghunath, Driver (Ad-hoc), presently working in NOIDA Project is posted in the same grade and capacity to I.C.A.R./Pusa Project, New Delhi, with immediately effect.

Accordingly, he is directed to reported to Chief Manager (C) for further orders.

This issues with the approval of the competent authority.'

14. On the 17th of June, 1995, Last Pay Certificate of Raghunath Rai, the third petitioner in CW.629/98, was issued.

15. The fourth petitioner in CW.629/95, Mohan Shyam, was working as a Manager (Class IV/Group 'D') w.e.f.1.8.1989. From 1.6.1991 his services were utilised as driver as he knew driving.

16. On the 1st of November, 1993, the CPM approved the grant of scale and IR to class IV employees. The note dated 1.11.1993 for grant of scale reads as under:-

'This is in reference to our letter dated 18.10.93. Corporate office has clarified that the pay scale and other remunerations should be allowed to classIV staff who are on consolidated pay and have completed 4 years continuous service from the date of their initial appointment and this will take effect from the date of approval of the competent authority.

A list of 15 personnel who have completed their 4 years continu- ous service as on 31.10.93 and have become eligible for grant of scale is placed below for your perusal.

Submitted for orders if all of these persons may be granted the scale of Rs.196-232/- w.e.f. 1.11.93'

17. On the 11th of May, 1994, the Chief Project Manager wrote to the Chief Technical Adviser, IRCON, indicating that the fourth petitioner in CW.629/98 was working as driver but he was paid as being Khalasi. On the 18h of May, 1994, his Last Pay Certificate was issued. On the 16th of September, 1994, he was appointed as driver on contract basis. On the 23rd of September, 1994 he was granted, he was granted an annual increment.

18. The fifth petitioner in CW.629/98 is Mukand Lal Sharma. On the 20th of September, 1993, a certificate was issued by the Project Manager that the fifth petitioner in CW.629/98 had worked as driver on daily wages from 12.10.1992 to 20.9.1993. On the 6th of October, 1993, an order was issued appointing him as driver on casual basis. The same reads as under:-

Sh. Mukand Lal Sharma,

S/o Late Labha Ram,

Village Rainkha,

P.O. Sehorpain,

Tel. Dehra,

Distt: Kangra (HP).

Sub:- Appointment to the post of Driver - Casual basis

Ref:- Your application dt. 21.09.93

In response to your application referred to above, it has been decided to appoint you as a Driver for operation of Company vehicle (Jeep) on a contract for the period of 3 three months on consolidated pay of Rs.1800/- (Rupees one thousand eight hundred only) per month. The scope of work and other terms and conditions of the contract will be as under:-

1. Scope of work: Operation of Company vehical (Jeep/Gypsy).

2. Such services will be rendered by you on all working days of the Company. the period of contract will be three months renewa- ble by mutual consent at terms & conditions to be agreed upon.

2. Remuneration:

i) For the above service, a lumpsum amount of Rs. 5400/- for period of three months will be payable w.e.f. 21.09.93 to 20.12.93.

ii) You are liable to work long hours depending up on exigency of work.

iii) You will be presently under the control of CPM/UP/IRCON, Dautana.

iv) A bill of service rendered by you at the end of the month is to be submitted by you for the service provided during the period which is required to be duly certified by the controlling officer regarding satisfactory completion. Monthly payment will be re- leased on the basis of this bill.

If the above terms and conditions are acceptable to you, kindly communicate your acceptance to this offer of appointment by returning duplicate copy of this letter.'

19. On the 28th of January, 1997, an office order No.07/97 was issued granting IDA scale w.e.f.1.1.1997. The order reads as under:-

The following drivers/ khallasi/employees who have completed four years continuous service from the date of their initial appointment on casual basis and having a good performance report are eligible for the grant of IDA scales shown against their name in terms of Corporate Office letter No.IRCON/ ESTT/ dated 14.08.85. Accordingly, they are allowed the IDA scales w.e.f. 01.01.97 with all the other benefits such as HRA and CCA wherever applicable), leave, LTC, Medical re-imbursement etc. under the Company rules.

S. Name/Father's D.O.J. Present Revised IDAscale Date of No. Name Desig. Desig. IDA scale 01. Sh.Sri Chand/ 11.03.92 Driver Driver 1050-35-1750 01.01.97 Sh. Het Ram 02. Chet Ram/ 01.04.92 Helper -do- -do- -do- Nathhi Singh 03. N.K.Tiwari/ 04.07.92 Elect. Elect. -do- -do- L.H. Tiwari 04. Prem Chand/ 24.07.92 Driver Driver -do- -do- Lekhi Ram 05 Ramswaroop/ 24.07.92 Driver -do- -do- -do- Ram Bilash 06. Mukesh Kumar/ 06.08.92 Helper G.Optr -do- -do- Beni Prasad 07. Mukand Lal 12.10.92 Driver Driver -do- -do- L.R. Sharma 08. Kesi Ram/ 19.12.91 Helper Khalasi 710-15-905 01.01.97 Data Ram 09. Birendra Singh 06.08.92 Helper Khalasi 650-15-905 01.01.97 Harpal Singh 10. Prem Shanker 12.09.92 Helper -do- -do- -do- Khajan Singh 11. Pappu/ 01.10.92 Cook Cook cum -do- -do- Banshi Lal Rest House attendant 12. Shanker 24.11.92 Helper Khalasi -do- -do- Late P.K.Verma 13. Kanhiya/ 01.05.92 Helper Khalasi -do- -do- Om Kar Singh

The above IDA scale is granted purely on adhoc basis and during contract for this project only. This does not confer any right upon the above persons to claim seniority over their seniors or make any claim for being absorbed on other projects of IRCON. However their status will be on three months contract basis.'

It may be noticed that IDA scale was granted purely on ad hoc basis.

20. On the 5th of February, 1998 a telex messages was sent to various projects of IRCON terminating the services of the petitioners 1 to 5 in CW.629/98. The same reads as under:-

'Following staff recruited for Dadri Project and presently work- ing on your Project, have been served with Termination Notice w.e.f. 6th February 1998 (AN). Their termination dues, as per law, has been sent to them by registered post. You are thereforee, advised not to take them on duty w.e.f. 06.02.1998.

DMRP 1. SHRI UTTAM KUMAR KHALASI Haryana Sector 2. SHRI RAJINDER NATH SHARMA -do- -do- 3. SHRI YOGESH BABU -do- -do- 4. GOPAL SINGH CLERK U.P. Sector 5. SHRI MUKAND LAL KHALASI -do- PANIPAT 1. SHRI MOHAN SHAYAM - KHALASI but presently working as Driver. 2. SHRI LAIK RAM - DRIVER 3. SHRI MOHAN KUMAR - DRIVER 4. SHRI JAGAN NATH - DRIVER 5. SHRI RM TEJ SINGH - KHALASI PUSA 1. SHRI TEJ SINGH - KHALASI 2. SHRI DARIYAD SINGH - KHALASI 3. SHRI RAGHUNATH - DRIVER VSRP 1. SHRI BHIM LAL - KHALASI 2. SHRI BALVINDE SINGH - DY. DRIVER CORPORATION OFFICE 1. SHRI BHIM LAL - KHALASI

21. It is stated in paragraph 12 of the writ petition:

That the impugned/complained action of the respondents in pur- porting to terminate the services of the petitioners with effect from 6.2.98 on the ground of closure of Dadri Project, even though the services of the petitioners stood permanently trans- ferred to other projects for the last 3-4 years, is discriminato- ry and suffers from non-application of mind is also clearly from the fact that three similarly situated persons who were initially recruited for Dadri Project but were subsequently transferred to other projects, are not being retrenched/terminated and are being continued in services in the other project/offices where they are presently working, the details thereof are as under:-

Name & Date of Presently Designation Joining working at Dadri Project 1. Lekh Raj 2.12.88 Corporate Office Jr. Asstt. 2. Rajender Kumar 16.6.89 Calikat 3. Rama Nand 10.4.89 Calikat The transfer order of one of them i.e. Lekh Raj from Dadri Project to Corporate office dated 1.2.93 is annexed herewith marked as ANNEXURE P-8.'

22. According to the petitioners, the IRCON had acted in a discriminatory fashion.

23. In paragraph 13 of the writ petition, it is stated:-

That furthermore, as already explained above the petitioners on account of their long and continuous service and their job being of permanent and perennial in nature have acquired the status of regular/permanent employees in law and thereforee their services cannot be terminated, even otherwise in the manner sought to be done by the respondents. It shall be pertinent to point out here that the respondent No.1 organisation is an industrial establish- ment' to which special provisions of Chapter V-B of the Industri- al Dispute Act clearly and squarely apply and in the event of closure of any part thereof prior permission of the Central Government is required and, thereforee, the respondent No. 1 was required to comply with the provisions of V-B of the Industrial Dispute Act particularly Section 25-O if it was closing down its Dadri Project and the services of the employees employed therein, were sought to be terminated on that ground.

24. It could be seen that the main plank of the petitioners' case is that Chapter V-B of the Industrial Disputes Act, 1947 would apply and the IRCON must have acted in accordance with Section 25-N of the Industrial Disputes Act, 1947.

25. About the closure of the Dadri Project, it is submitted in the writ petition:

'As such, the intended closure of the Dadri Project and the purported termination of the services of the petitioners on that ground is even otherwise wholly illegal and void-avinitio.'

26. It is stated at page 14 of the writ petition:

'It shall be pertinent to point out here that Hon'ble the Allah- bad High Court in a similar situation has already held that the provisions of Chapter V-B of the Industrial Dispute Act were applicable to the respondent No.1 organisation and it was an industrial establishment within the meaning of the Act and, thereforee, Sections 25-M and 25-O shall govern the matter of retrenchment of employees on the ground of closure and that the employees on the ground of closure and that the employees could not be retrenched from service without complying with the condi- tions contained in Section 25-O.'

27. It is further stated in the writ petition:

'The services of the petitioner who are working in other projects for the last more than 3-4 years cannot be terminated on the ground of closure of the Dadri Project only because they had joined there initially but from where their services stood trans- ferred on permanent basis to the other projects. Even otherwise, the services of the petitioner on the ground of closure of Dadri Project cannot be dispensed with without complying with the provisions of Chapter V-B of the Industrial Disputes Act, as the provisions of the said Chapter are clearly and squarely applica- ble to the respondent No.1 organisation.'

28. On these averments, the petitioners in the CW. 629/98 have prayed for the following reliefs:-

'In the premises aforesaid, it is most humbly and respectfully prayed that this Hon'ble Court may be pleased to issue:-

(a) A Writ of Certiorari or any other appropriate Writ, Order or direction in the nature of Certiorari, calling for the records of the case.

(b) A Writ of Certiorari quashing the letter dated 5.2.98 (Annex- ure P-7) issued by the respondent No. 2 whereby the services of the petitioners are sought to be terminated on the ground of completion of Dadri Project even though their services stood transferred to other projects, & all actions, notings, orders etc. leading to it being illegal, arbitrary, discriminatory and unwarranted and suffering from the vice of non-application of mind.

(c) A Writ of Mandamus commanding the respondents to give the status of regular permanent employees to the petitioners and regularise their services with effect from the date of their initial appointment and give them all benefits resulting there- from.

(d) A Writ of Mandamus or any other Writ, Order or Direction in the nature of Mandamus commanding the respondent to pay the costs of this petition to the petitioner.'

29. The IRCON filed its counter-affidavit. In paragraphs 4 to 7 of the counter-affidavit, the IRCON had mentioned about the Dadri Project. The same reads as under :-

'The IRCON was awarded the railway siding/railway line construc- corporation project at Dadri by the NTPC Ltd. as per scope contained in the terms & conditions of the contract No.01/CC/KBD/01- 967(E)/1612 dt. 18th July, 1988. As per Clause 6 of the contract the entire services were to be provided by IRCON within the scope of the contract to the NTPC, NTPC was to pay on the basis of the direct cost for material transportation, manpower, hire charges, sub-contractros etc. utilised by IRCON for the Project on work- charge basis plus profit 9.9% of the direct cost.

That as per Clause 10.1. of the contract, IRCON was required to deploy the required manpower as mutually agreed between NTPC & IRCON as per exigency and requirement of the project from time to time till its completion of the satisfaction of NTPC and handing over of the Project to NTPC. All project works were accordingly completed as per the scope and terms & conditions by 15.9.97 and handed over to the client, NTPC.

That although the substantial work was completed quite sometime back, some ancillary works were entrusted to the Project for which the NTPC granted extension up to 30.6.97. However, although the work was completed, handing/taking over of the material charged to the direct cost but not consumed, could not be com- pleted for which extension was sought up to 20.2.98 which has been received. the NTPC has stopped payment of direct cost on estab- lishment of the Project and towards wages/salary of employees held by the Dadri Project from June, 1996.

That as on 31st December 1997, the Project has been holding manpower of 35 persons out of whom 32 workmen were appointed on casual/ad-hoc basis and 3 on a contract basis. The project has been completed in all respects as far back as 18.9.1996 M/s NTPC vide their letter No.08/CCD/RSS/SM/96/1055 dated 18.9.1996 have asked IRCON to reduce their staff strength and also pointed out that IRCON was having a surplus number of unskilled staff.'

30. The IRCON had filed the amendment No.3 to letter of award for con- struction of Railway Siding at Dadri Station and railway lines as annexure.R-1.

31. How the IRCON had acted with reference to the Dadri Project, vis-a- vis, it is stated:

'It is submitted that the Respondent Company is a construction company raised and set up for construction of railway tracks, highways and buildings and any other construction works and from the very inception of the company it has been carrying out con- struction activities and has been undertaking project works against contracts in both public and private sectors in India and abroad. The projects undertaken by the company are for specified duration as per the scope and terms of the contract and it works on the work site/workplace of the client. At Dadri in UP the work of construction of railway siding/inplant siding work was under- taken by the company, hereinafter called as the 'Dadri Project', and the petitioners were employed at the Project initially on daily wages/consolidated pay. They were, however, given the benefit of scale of pay and allowances thereon subsequently on completion of four years of service as per the rules of the Company. On completion of the site project, the establishment of the project coming to a close, the services of the persons in- cluding the petitioner above named came to an end after due notice in the newspapers and also by displaying the notice at the project site along with due payment of retrenchment compensation to such persons including the petitioners herein in accordance with the provisions of Sub Section (2) of Section 25(FFF) of the I.D.Act, 1947. In so far as the petitioners above named are concerned, in pursuance to the notice published in the newspaper and also displayed at site, the petitioners were duly paid one month pay in lieu of compensation, retrenchment compensation gratuity with the directions that other claims, such as CPF bonus and miscellaneous dues, if any, may be collected by them from the Manager (Accounts) of the Rear Party of the Project. The peti- tioner No.1 was paid retrenchment compensation amounting over a sum of Rs.43080/-, petitioner No.2 was paid Rs.44571/-petitioner No.3 was paid Rs.44571/-, petitioner No.4 was paid Rs.33178/- and petitioner No.5 was paid Rs.44,571/-, through demand draft Nos.7455687, 745692, 745690 each dated 29th January, 1998 and demand draft No. 4352 dated 3.2.1998, 745689 dated 29./1.1998 respectively drawn on the state Bank of India, Dadri. copies of notices and letters of termination of service including the compensation paid are filed at ANNEXURE - 2'

32. The order in respect of petitioner No.1 in CW.629/98, Gopal Singh, was issued on the 2nd of February, 1998. The same is as under:

'Your services were engaged for construction works of the Railway Siding/Inplant Siding Project at DADRI (U.P.) on casual/ad-hoc basis. Consequent upon completion of construction works of the aforesaid Project at DADRI Project the said project establish- ments of IRCON International Limited will stand closed-down with effect from the 05th February, 1998. Accordingly, your services will be no longer required with effect from the closing hours of 05th February, 1998 and you shall stand relieved from the serv- ices of the Project on and from 05th February, 1998 afternoon.

2. In accordance with the Provision under Sub-section(2) of Section 25FFF of the Industrial Dispute Act 1947, one month's salary in lieu of notice and compensation along with other dues mentioned hereunder are, hereby, tendered in your favor through Bank Draft No. 745687 Dt. 29.1.98 drawn on SBI DADRI (GHAZIABAD) towards full and final settlement of your dues:-

i) Salary for and up to 05th February 1998 Rs. 791.00 ii) One months' salary in lieu of notice as Rs.3955.00 payable under Clause (a) of Section 25-F of I.D. Act. iii) Compensation 15 days average salary Rs.17798.00 for every completed year of service including period served in excess of six months rounded-off to another completed year of service as payable under Clause(b) of Section 25-F & Sub-section (2) of Section 25FFF of the ID Act. iv) Gratuity Rs.20536.00 ----------- Total Rs.43080.00 ----------- Please acknowledge receipt of the aforesaid payment in the form enclosed as at Annexure-I.

3. As regards your other dues such as CPF, bonus, misc., dues i.e., medical reimbursement etc., if any, you are advised to collect the same from the Manager (Accounts) of the Rear-party of the project.'

33. The order in respect of petitioner No.2 in CW.629/98, Jagan Nath, was issued on the 2nd of February, 1998. The same is as under:

'Your services were engaged for construction works of the Railway Siding/Inplant Siding Project at DADRI (U.P.) on casual/ad-hoc basis. Consequent upon completion of construction works of the aforesaid Project at DADRI Project the said project establishments of IRCON International Limited will stand closeddown with effect from the 05th February, 1998. Accordingly, your services will be no longer required with effect from the closing hours of 05th February, 1998 and you shall stand relieved from the serv- ices of the Project on and from 05th February, 1998 afternoon.

2. In accordance with the Provision under Sub-section(2) of Section 25FFF of the Industrial Dispute Act 1947, one month's salary in lieu of notice and compensation along with other dues mentioned hereunder are, hereby, tendered in your favor through Bank Draft No. 745692 Dt. 29.1.98 drawn on SBI DADRI (GHAZIABAD) towards full and final settlement of your dues:-

i) Salary for and up to 05th February 1998 Rs. 818.00 ii) One months' salary in lieu of notice as Rs. 4092.00 payable under Clause (a) of Section 25-F of I.D. Act. iii) Compensation 15 days average salary Rs. 18414.00 for every completed year of service including period served in excess of six months rounded-off to another completed year of service as payable under Clause(b) of Section 25-F & Sub-section (2) of Section 25FFF of the ID Act. iv) Gratuity Rs. 21247.00 ------------ Total Rs.44571.00 ------------ Please acknowledge receipt of the aforesaid payment in the form enclosed as at Annexure-I.

34. The order in respect of petitioner No. 3 in CW. 629/98, Raghu Nath Rai, was issued on the 2nd of February, 1998. The same is as under:

'Your services were engaged for construction works of the Railway Siding/Inplant Siding Project at DADRI (U.P.) on casual/ad-hoc basis. Consequent upon completion of construction works of the aforesaid Project at DADRI Project the said project establishments of IRCON International Limited will stand closed-down with effect from the 05th February, 1998. Accordingly, your services will be no longer required with effect from the closing hours of 05th February, 1998 and you shall stand relieved from the serv- ices of the Project on and from 05th February, 1998 afternoon.

2. In accordance with the Provision under Sub-section(2) of Section 25FFF of the Industrial Dispute Act 1947, one month's salary in lieu of notice and compensation along with other dues mentioned hereunder are, hereby, tendered in your favor through Bank Draft No. 745690 Dt. 29.1.98 drawn on SBI DADRI (GHAZIABAD) towards full and final settlement of your dues:-

i) Salary for and up to 05th February 1998 Rs. 818.00 ii) One months' salary in lieu of notice as Rs. 4092.00 payable under Clause (a) of Section 25-F of I.D. Act. iii) Compensation 15 days average salary Rs. 18414.00 for every completed year of service including period served in excess of six months rounded-off to another completed year of service as payable under Clause(b) of Section 25-F & Sub-section (2) of Section 25FFF of the ID Act. iv) Gratuity Rs. 21247.00 ------------ Total Rs. 44571.00 ------------ Please acknowledge receipt of the aforesaid payment in the form enclosed as at Annexure-I.

35. The order in respect of petitioner No.4 in CW.629/98, Mohan Shyam, was issued on the 2nd of February, 1998. The same is as under:

2. In accordance with the Provision under Sub-section(2) of Section 25FFF of the Industrial Dispute Act 1947, one month's salary in lieu of notice and compensation along with other dues mentioned hereunder are, hereby, tendered in your favor through Bank Draft No. 4352 Dt.3.2.98 drawn on SBI DADRI (GHAZIABAD) towards full and final settlement of your dues:-

i) Salary for and up to 05th February 1998 Rs. 609.00 ii) One months' salary in lieu of notice as Rs.3046.00 payable under Clause (a) of Section 25-F of I.D. Act. iii) Compensation 15 days average salary Rs.13707.00 for every completed year of service including period served in excess of six months rounded-off to another completed year of service as payable under Clause(b) of Section 25-F & Sub-section (2) of Section 25FFF of the ID Act. iv) Gratuity Rs.15816.00 ----------- Total Rs.33178.00 ----------- Please acknowledge receipt of the aforesaid payment in the form enclosed as at Annexure-I.

36. The order in respect of petitioner No.5 in CW.629/98, Mukund Lal, was issued on the 2nd of February, 1998. The same is as under:

'Your services were engaged for construction works of the Railway Siding/Inplant Siding Project at DADRI (U.P.) on casual/ad-hoc basis. Consequent upon completion of construction works of the aforesaid Project at DADRI Project the said project establishments of IRCON International Limited will stand closed-down with effect from the 05th February, 1998. Accordingly, your services will be no longer required with effect from the closing hours of 05th February, 1998 and you shall stand relieved from the services of the Project on and from 05th February, 1998 after- noon.

2. In accordance with the Provision under Sub-section(2) of Section 25FFF of the Industrial Dispute Act 1947, one month's salary in lieu of notice and compensation along with other dues mentioned hereunder are, hereby, tendered in your favor through Bank Draft No. 745689 Dt. 29.1.98 drawn on SBI DADRI (GHAZIABAD) towards full and final settlement of your dues:-

i) Salary for and up to 05th February 1998 Rs. 818.00 ii) One months' salary in lieu of notice as Rs. 4092.00 payable under Clause (a) of Section 25-F of I.D. Act. iii) Compensation 15 days average salary Rs. 18414.00 for every completed year of service including period served in excess of six months rounded-off to another completed year of service as payable under Clause (b) of Section 25-F & Sub-section (2) of Section 25FFF of the ID Act. iv) Gratuity Rs.21247.00 ------------ Total Rs.44571.00 ------------ Please acknowledge receipt of the aforesaid payment in the form enclosed as at Annexure-I.

37. It is submitted that the Dadri Project, on completion of the work as per contract, was closed under the provisions of the Section 25FFF of the Industrial Disputes Act, 1947.

38. In paragraph 17 of the counter, reference is made to the judgments of the Supreme Court in 'Hindustan Steel Works Construction Limited etc. etc. Vs . Hindustan Steel Works Construction Ltd. Employees' Union, Hyderabad & Another etc. etc.', : [1995]2SCR10 , and in 'Hindustan Lever Ltd. Vs . Ram Mohan Ray & Others', : (1973)ILLJ427SC . It is submitted that when a unit is at a particular place and is a separate one, the workmen in the unit have no right to demand absorption in other units of the company. It is further submitted that the management reserved its right of transferring the em- ployees from one unit to another would not make the units and the estab- lishment as 'single' for the purpose of considering the question. It is submitted that none of the provisions of Section 25-N of the Industrial Disputes Act, 1947, and none provision of the Chapter V-B of the Industrial Disputes Act, 1947 would apply to the facts of this case.

39. It is stated in paragraph 22 of the counter:

'It is categorically denied that any work of the respondent company in its projects are of permanent and perennial nature and it is not having large number of such projects going in through- out the year in various parts of the country as alleged. It is also denied that in the beginning of the year 1998, the company has six on going on projects din the eastern region, 10 in West- ern region, 9 in the southern region and 22 in the northern region. Most of the projects have been closed down and completed and at present the company is having only 20 on going projects in all through. As for the projects abroad, it may be stated that we have got only liaison office in most of the foreign countries for marketing purposes and there is no project abroad with substan- tial work requiring large number of manpower except in some of the countries like Bangladesh and Indonsia only skeleton staff is retained for completion of residual work of the on going projects which is also on the verge of completion as per details given at Annexure IV. Some of the projects are in the offing as mentioned in the petition are also in the process of negotiation/finalisa- tion. In case, however, the projects under negotiation material- ize, the company has given categorical assurance to the petition- ers in the termination order/notice itself that if such projects become available in the State of UP they would be given prefer- ence in employment over others, subject to fitness and willing- ness to serve in such a project after materialisation and finali- zation of the project in the pipeline.'

40. About the petitioners in CW.629/98, it is stated in paragraph 23:

'Para 4 to 8: it is not denied that the petitioner No.1 was appointed as Junior Assistant against a casual vacancy with effect from 3.11.1988, thereafter he was temporarily adjusted at Delhi-Mathura Project with effect from 11.5.1994. Petitioner No.2 joined as driver against casual vacancy with effect from 10.11.1988, thereafter, he was temporarily adjusted at Panipat Refinery Project with effect from 9.11.1995. Petitioner No.3 joined the Dadri Project against casual vacancy with effect from 23.12.1988, thereafter he was temporarily adjusted at Canara Bank Office Complex, Noida Project with effect from 4th March, 1994. On completion of Canara Office Complex Project he was temporarily adjusted at Pusa Project with effect from 4th July, 1995. Peti- tioner No.4 joined dadri project as Khalasi with effect from 1st September, 1989 and thereafter he was temporarily adjusted to Panipat Refinery Project with effect from 11th May, 1994. Peti- tioner No.5 joined as driver with effect from 12th October, 1992 at Dadri Project, thereafter he was shifted to Delhi-Mathura Road Project with effect from 21st September, 1993 and later on he was received offered contract appointment with effect from 6th Octo- ber, 1993.'

41. It is denied that the petitioners were appointed on regular basis. The Project work had been closed and the NTPC, the company for which the work was undertaken by the IRCON, had stopped all payments. It is submitted that the Dadri project is neither a factory involved in manufacturing process nor an establishment to which provisions of Section 25-N of the Industrial Disputes Act, 1947 would apply. It is further submitted that mere length of service would not give any right to the petitioners for regularisation unless there is a Project and vacancy.

42. As could be seen from the pleadings, disputes questions on facts had arisen for consideration, and unless adjudication is made on those disputed facts, relief cannot be granted to the parties. It is submitted that the remedy of the petitioners is to raise industrial disputes, and in the even of reference being made, the industrial court would be in a position, on evidence, to come to a definite conclusion on facts. If, on facts, the industrial comes to a conclusion in favor of the petitioner, the petition- ers may be granted the reliefs. On these, the IRCON had prayed for dismiss- al of the writ petition.

CW.No.698 of 1998

43. In CWP.698/98, there are two petitioners. The first petitioner, Liak Ram, was appointed as driver on daily wage basis in Dadri Project on the 4th of March, 1989. He was continued as such till the 31st of July, 1990. On the 1st of August, 1996, he was appointed as driver on ad hoc basis. The second petitioner Teju Lal was appointed as messenger/Khalasi on daily wage basis and was subsequently put on a monthly consolidated salary. On the 8th of September, 1992, the second petitioner, Teju Lal, was transfer to Corpo- rate Office, Delhi He was also given annual increment. On the 9th of December, 1995, the first petitioner, Liak Ram, was transferred to Panipat Refinery Project. On the 5th of February, 1998, the services of the peti- tioners were dispensed with on account of the completion of the Dadri Project.

44. The claim of the petitioners is that they had been working for a long period and provisions of Chapter V-B of the Industrial Disputes Act, 1947 would apply, and the same points urged by the petitioners in CW. 629/98 are urged in this writ petition by the petitioners.

45. The IRCON had filed its counter-affidavit. It is disputed by the IRCON that the petitioners were appointed on permanent basis. It is stated that the petitioners were appointed only for the Dadri Project and on the com- pletion of the work, their services were not required, and, thereforee, dispensed with in accordance with law. The same stand as taken in the CWP.629/98 is taken in this writ petition by IRCON.

CW. No. 3026 of 1998

46. There are five petitioners in CWP. 3026/98. The first petitioner, Naba Kumar Mandal, on the 3rd of December, 1983, was given employment on casual ad hoc basis. He joined on the 6th of January, 1984 in Anpara Project, Mirzapur, UP. On the 19th of May, 1988, he was appointed on regular pay scale of Rs.425-700 w.e.f. 11.10.84. The order dated 19.5.88 reads as under:-

'Sh.Naba Kumar Mandal,

Junior Foreman,

IRCON - Anpara.

Dear Sir,

For Trainees 1. On completion of your training you are hereby brought on scale of pay in the grade of Rs. 425-700 IRD in the initial pay of Rs. 425/- p.m. with effect from 11.10.84.

For non-Trainees 2. You have been brought on the scale of pay in the grade of Rs.__________ in the initial pay of Rs.__________ p.m. with effect from___________.

3. You should produce the following documents at your own ex- pense:

a) A medical certificate of health and physical fitness on pre- scribed proforma from a qualified Registered Medical Practicener.

b) Original certificates in support of your educational and other professional qualifications, documentary proof, in respect of date of birth etc. together with two copies thereof.

c) Attestation form in triplicate (enclosed) after filing.

d) In case you belong to Scheduled Caste/Scheduled Tribe, one of the following certificates in original should be produced.

i) metriculation or School Leaving Certificates or birth certifi- cate giving your caste/community and place of residence.

OR ii) A certificate in the prescribed form issued by the competent authority.

4. You should take an oath of allegiance to the Constitution of India in the appropriate form.

5. You will be liable for transfer to any of the office/Project site under the control of the Company in India.

6. You will not save with the prior permission of the Competent Authority, apply for any appointment outside the Company. You will have to withdraw your application for appointment elsewhere made prior to the date of issue of these orders and will not appear for interview or accept any employment if offered.

7. You will not save with the express permission from the Compa- ny, engage in any trade or business or undertake any other work or any employment elsewhere full time or part time while in the service of the company.

8. In regard to any matters not specifically covered in the foregoing paragraphs, you will be governed by the rules and orders applicable to the employees of the Company.

9. If any declaration given or information furnished by you proves to be false, or it is found that you have wilfully sup- pressed any material information you will be liable to removal from services forthwith without any notice and without assigning any notice and without assigning any reason thereforee notwith- standing any action taken against you as the Company may deem necessary.'

According to the first petitioner, he became a regular employee of IRCON.

47. It is stated that the first petitioner, Naba Kumar Mandal, was select- ed for MD's award as he achieved excellence in his performance. That was on the 18th of April, 1987. On the 11th of May, 1987, the he was transferred to Bijpur work under DPM (Track)/Rihand nagar. By order dated 7.8.89, he was detailed for training for a period of four months. The same reads as under:-

'On being relieved by Project Manager Rihand Nagar, the following staff are hereby directed for training for a period of four months to the projects noted against each. They may be imparted training and will continue to work at the same project till further orders.

The Headquarters of the staff will be temporarily shifted to the stations of the training. S.No. Name Station of Training 1. Sh.Naba Kumar Mandal, Dy.P.M./Jhansi Jr.Foreman. 2. Sh.Uttam Kumar Mishra, Dy.P.M./Jhansi Jr.Foreman. 3. Sh.Dukh Nibern Ghosh, R.M./Khanna Artisan.

48. On the 1st of May, 1990, the first petitioner was transferred from Rihand nagar to Jhansi. On the 17th of July, 1990, the IRCON issued a state- ment of fixation of pay of the first petitioner. It is filed as Annexure.P- 1/10. The same reads as under:-

1. Name : Sh.Naba Kr.Mandal 2. Designation : Fr.Foreman (Mech) 3. Existing scale of pay : 425-700 4. Revised scale of pay : 5. Nature of employment : Regular 6. Period away on Secondmeant abroad DOS 11.10.84 A. i) Existing scale 425-700 1.Existing revised of pay ii) Revised scale 2.Promoted to re- of pay vised scale iii) Existing B.P. 440.00 3 Date of promotion iv) DA/ADA at 763.00 4 Pay fixed - index average 608 (as on 1.1.86) v) Two instal- 110.00 ments of vi) Add 20% of 88.00 BP subject to minimum Rs.75/- ---------- Total: 1401.00 B. Pay to be fixed in revised scale of Rs.1440/- w.e.f.1.1.86 or date of electing new scale. C. Payraised in subsequent years. a) 1986 pay revised to 455.00 as on 1.10.86 Rs.1480 from 440.00 b) 1987 pay revised to 470.00 as on 1.10.87 Rs.1520 from 455.00 c) 1988 pay revised to 485.00 as on 1.10.88 Rs.1560 from 470.00 d) 1989 pay revised to 500.00 as on 1.10.89 Rs.1600 from 470.00 e) 1990 pay revised to as on 1.10.90 Rs.1640 f) 1991 pay to be raised - from

49. On the 15th of July, 1991, the first petitioner was given Commendation Certificate. On the 1st of April, 1992, he was transferred from Jhansi to CPM, Road Project, Faridabad. He was also sent to work in Malaysia Project from 3.7.92 till 20.11.1995 when he was relieved. On his being recalled from Malaysia Project, on the 22nd of November, 1995, he was to work in Delhi-Mathura Road Project at Sikri, Haryana Sector.

50. On the 14th of March, 1993, an office note was issued mentioning the pay and increment of the first petitioner. The same is filed as Annexure. P-1/16 and reads as under:-

'Sh.Naba Kumar Mandal, Jr.Foreman(Mech) transferred/posted in from Jhansi Project to Delhi-Mathura Highway Project, Sikri (Faridabad) in April, 1992 vide Corporate Office, New Delhi O.O.No.295/92 dated 1.4.92 and he physically joined the project on 6.4.92. LPC issued by Jhansi Project in which his basic was Rs.1680/- p.m. and next increment due on 1.10.92.

In terms of Adviser(Personnel) letter No.IRDCON/MLY/PF/184 dated 1.7.92 Shri Naba Kumar Mandal, Jr.Foreman(Mech) has relieved from duties on 2.7.92(afternoon) and directed to report to Adviser(Personnel), New Delhi onward dispatch to Malaysia Project. At the time on transfer to Malaysia Project during 1992, no LPC was issued by this Project.

On repatriation from Malaysia Project on 20.11.95(afternoon), Shri Naba Kumar Mandal on Ad hoc Jr.Engr(Mech) transferred/posted to our project vide O.O.letter No. IRCON/CO/HRM/908/28 dated 22.11.95 (O.O.No.1010/95) and he joined project on 23.11.95(F.N.). This office had requested to Corporate Office, New Delhi to forward the LPC, Leave Account Sheet and Personal File of the employee on 24.11.95 and in response to our above said letter Corporate Office has replied that LPC was not issued at the time of transfer to Malaysia Project.

In view of the above, he is granted following service increments and refix his basic pay as under:-

Basic pay as on 1.7.92 Rs.1680.00 Next increment due on 1.10.92 Rs. 40.00 --------- Rs.1720.00 Next increment due on 1.10.93 Rs. 40.00 --------- Rs.1760.00 Next increment due on 1.10.94 Rs. 40.00 --------- Rs.1800.00 Increment due on 1.10.95 Rs. 30.00 --------- Rs.1830.00 Above is put up for your perusal please.'

The first petitioner was on leave from 18.5.1998 to 8.6.1998, which was duly sanctioned.

51. On the 9th of June, 1998, the first petitioner, while joining the duty, came to know about the notice dated 2.6.1998 issued by the IRCON to him. The Notice dated 2.6.1998 is as under:-

'Consequent upon completion of construction of the works of the Delhi-Mathura Section of NH-2 from 37.3 Kms to 93.82 Kms. in the Haryana Sector, the aforesaid establishment of the Project will stand closed down w.e.f. 3rd June, 1998 A.N.

2. Accordingly the services of the employees included in the list annexed will be no longer required with the closing hours of 3rd June, 1998 and they will stand released from the service of the aforesaid project on and from 3rd June, 1998 afternoon.

3. All concerned employees have been informed individually by Registered Post accordingly and payment of one month's salary in lieu of Notice and Compensation as admissible to them under Section 25F read in conjunction with sub-Section (2) of Section 25FFF of the Industrial Disputes Act, 1947; as also payment towards up to date salary, gratuity etc. have been remitted through demand draft in their favor at their last known address as available on the records of the Project.

4. Payment towards, CPF, leave salary, and other miscellaneous dues as may be admissible under the Rules may be collected by them from the Jt.General Manager (Accounts) of the rear Party of the Project at KM-42, Delhi-Mathura Road, Sikri - 121004, Dis- trict Faridabad (Haryana) on application for such payment in the prescribed proforma.

5. All such persons whose services are hereby dispensed with on account of the closure of the project shall, however, be given preference over other persons for purpose of re-employment if otherwise found suitable as and when the Company may secure some more project-works in the State of Haryana and their service in the respective categories are required in the future projects. For this purpose all concerned are advised to intimate any change in their address for communication, if any.'

52. The other petitioners in the writ petition also claim that they had been working for a long time continuously and termination of their services by the IRCON was illegal. In paragraph 16 of the writ petition, it is asserted by the petitioners:

'It is respectfully submitted that the petitioners are ready and willing to serve at any project of IRCON within India or abroad. The list of projects in hand with IRCON in India and abroad annexed herewith as Annexure-P.10.'

53. In the counter-affidavit, it is stated by the IRCON:

'That the names of persons whose services are terminated on completion of project, including the petitioners above named, has been kept on panel in accordance with Hon'ble Supreme Court's direction in the Special Leave Petition No.5653/96 referred to and relied by petitioners as well by filing copy thereof as Annexure P-9 to the writ petition.'

54. The same stand taken in this writ petition as taken in CWP.629/98 by the IRCON.

55. In respect of the first petitioner Naba Kumar Mandal, on the 30th of May, 1998, the IRCON issued the following order:-

'On being rendered surplus from Ex-Anpara Project, you were adjusted on transfer to Delhi-Mathura Road Project (Haryana Sector). Since Ex-Anpara - Rihand Project stand closed with effect from 06.02.98 and also the construction works of Delhi- Mathura Road Project (Haryana Sector) having been completed in all respects, the said project is being closed with effect from 03.06.98 in accordance with the provision of Section 25(FAA)(b) of I.D.Act. Accordingly, your services will be no longer required beyond the closing hours of 03.06.98 and you shall stand released from the services of the project from the said date.

i) Salary for and Rs. 1608.00 up to 3.6.98 ii) One month's salary Rs. 7018.00 in lieu of notice iii) Ex-gratia payment Rs. 40453.00 in lieu of retrench- ment compensation. iv) Gratuity Rs. 56684.00 v) Leave encashment Rs. 7845.00 ------------- Total:- Rs.121608.00 ============= 3. The above sum is hereby remitted to you through a bank draft No.923230 dated 29.05.98 drawn on the I.O.B. in full and final settlement of your dues.

4. As regards release of your GPF, CPF linked pensionary benefits as per Employees Pension Scheme, 1995, as may be admissible under the IRCON CPF SCHEME, you are advised to apply to the Jt.General Manager(Accounts) of the Rear-Party of the Project in the pre- scribed enclosed format for processing the payment.

5. As regards payment towards bonus and other miscellaneous dues, if any, you are advised to collect the same from the Jt.General Manager(Accounts) of the Rear Party of the Project within 3 months from the issue of this letter at the following address:

KM-42, Delhi Mathura Road,

P.O.&Teh.; Ballabgarh,

Sikri - 121004,

Distt.- Faridabad,

Haryana.

6. Please acknowledge the receipt of the aforesaid payment in the form enclosed as at Annexure-I.'

56. In respect of the second petitioner, Yogendra Prasad Verma, on the 30th of May, 1998, the IRCON issued the following order:-

'On being rendered surplus from Ex-Anpara Project, you were adjusted on transfer to Delhi-Mathura Road Project (Haryana Sector) vide Office Order No.93/91 dated 17.12.91 issued under endorsement No.IRCON/RIHAND/ESTT/4251. Since the Ex-Anpara - Rihand Project has been closed down with effect from 06.02.98 and also the construction works of Delhi-Mathura Road Project (Har- yana Sector) having been completed in all respects, the said project is being finally closed with effect from 3rd June, 1998 in accordance with the provision of Section 25(FAA)(b) of I.D.Act. Accordingly, your services will be no longer required beyond the closing hours of 3rd June, 1998 A.N. and you shall stand released from the services of the Project from the said date.

2. In accordance with the Provision under Sub-section(2) of Section 25FFF of the Industrial Dispute Act 1947, one month's salary in lieu of notice period, retrenchment compensation, along with other statutory dues as detailed hereunder are tendered herewith in your favor through Bank Draft No.529699 Dt.25.05.98 drawn on IOB towards full and final settlement of your dues:- i) Salary for and up to 3rd June, 1998 Rs. 1025.00 ii) One months' salary in lieu of notice as Rs. 4408.00 payable under Clause (a) of Section 25-F of I.D. Act. iii) Retrenchment compensation 15 days Rs. 28260.00 average salary for every completed years of service including period served in excess of six months rounded-off to another completed year of service as payable under Clause(b) of Section 25-F & Sub-section (2) of Section 25FFF of the ID Act. iv) Gratuity Rs. 33060.00 v) Leave Encashment Rs. 18550.00

Please acknowledge receipt of the aforesaid payment in the form enclosed as at Annexure-I.

3. As regards release of your GPF and CPF linked pensionary benefits under Employees Pension Scheme, 1995, as may be admissible under the Rules, you are advised to submit attached forms duly completed to the Jt.General Manager/Accounts of the Rear-Party at the earliest to enable him to process the same for release of payment.

4. As regards payment towards bonus and other miscellaneous dues, if any, you are advised to collect the same from the Jt.General Manager(Accounts) of the Rear Party of the Project at the following address within 3 months from the issue of this letter.

IRCON International Limited,

KM-42, Delhi-Mathura Road,

Sikri - 121004,

P.O.&Teh.; Ballabgarh,

Distt.- Faridabad,

5. As your services are hereby dispensed with on account of the closure of the project, you shall however, be given preference over other persons for purpose of re-employment if otherwise found suitable as and when the Company secures some other Project works in the State of Haryana and your services in the respective category is required in the future projects. For this purpose you advised to intimate change in your address for communica- tion, if any.'

57. In respect of the third petitioner, Kameshwar Ram, on the 30th of May, 1998, the IRCON issued the following order:-

'On being rendered surplus from Ex-Anpara Project, you were adjusted on transfer to Delhi-Mathura Road Project (Haryana Sector) vide Anpara Project's letter No.IRCON/RM/VNR/TRANSF/8713 dated 6.1.92. Since the Ex-Anpara - Rihand Project has been closed down with effect from 06.02.98 and also the construction works of Delhi-Mathura Road Project (Haryana Sector) having been completed in all respects, the said project is being finally closed with effect from 3rd June, 1998 in accordance with the provision of Section 25 of I.D.Act. Accordingly, your services will be no longer required beyond the closing hours of 3rd June, 1998 A.N. and you shall stand released from the services of the Project from the said date.

i) Salary for and up to 3rd June, 1998 Rs. 767.00 ii) One months' salary in lieu of notice as Rs. 3294.00 payable under Clause (a) of Section 25-F of I.D. Act. iii) Retrenchment compensation 15 days Rs. 24367.00 average salary for every completed years of service including period served in excess of six months rounded-off to another completed year of service as payable under Clause(b) of Section 25-F & Sub-section (2) of Section 25FFF of the ID Act. iv) Gratuity Rs. 28506.00 v) Leave Encashment Rs. 5306.00 ------------- Total:- Rs. 62240.00 ============= Please acknowledge receipt of the aforesaid payment in the form enclosed as at Annexur-I.

3. As regards release of your GPF and CPF linked pensionary benefits under Employees Pension Scheme, 1995, as may be admissi- ble under the Rules, you are advised to submit attached forms duly completed to the Jt.General Manager/Accounts of the Rear- Party at the earliest to enable him to process the same for release of payment.

IRCON International Limited,

KM-42, Delhi-Mathura Road,

Sikri - 121004,

P.O.&Teh.; Ballabgarh,

Distt.- Faridabad,

58. In respect of the fourth petitioner, Abdul Asif, on the 30th of May, 1998, the IRCON issued the following order:-

'On being rendered surplus from Ex-Anpara Project, you were adjusted on transfer to Delhi-Mathura Road Project (Haryana Sector) w.e.f.06.06.91. Since the Ex-Guna Project has been com- pleted and also the construction works of Delhi-Mathura Road Project (Haryana Sector) having been completed in all respects, the said project is being finally closed with effect from 3rd June, 1998 in accordance with the provision of Section 25(FAA) (b) of I.D.Act. Accordingly, your services will be no longer required beyond the closing hours of 3rd June, 1998 A.N. and you shall stand released from the services of the Project from the said date.

2. In accordance with the Provision under Sub-section(2) of Section 25 of the Industrial Dispute Act 1947, one month's salary in lieu of notice period, retrenchment compensation, along with other statutory dues as detailed hereunder are tendered herewith in your favor through Bank Draft No.529700 Dt.25.05.98 drawn on IOB towards full and final settlement of your dues:-

i) Salary for and up to 3rd June, 1998 Rs. 1015.00 ii) One months' salary in lieu of notice Rs. 4304.00 as payable under Clause (a) of Section 25-F of I.D. Act. iii) Retrenchment compensation 15 days Rs. 27593.00 average salary for every completed years of service including period served in excess of six months rounded-off to another completed year of service as payable under Clause(b) of Section 25-F & Sub-section (2) of Section 25FFF of the ID Act. iv) Gratuity Rs. 32280.00 v) Leave Encashment Rs. 21791.00 ------------ Total:- Rs. 86983.00 ============ Please acknowledge receipt of the aforesaid payment in the form enclosed as at Annexure-I.

4. As regards payment towards bonus and other miscellaneous dues, if any, you are advised to collect the same from the Jt.General Manager(Accounts) of the Rear Party of the Project at the follow- ing address within 3 months from the issue of this letter.

IRCON International Limited,

KM-42, Delhi-Mathura Road,

Sikri - 121004,

P.O.&Teh.; Ballabgarh,

Distt.- Faridabad,

59. In respect of the fifth petitioner, Pradeep Kumar Bose, on the 30th of May, 1998, the IRCON issued the following order:-

'On being rendered surplus from Ex-Anpara Project, you were adjusted on transfer to Delhi-Mathura Road Project (Haryana Sector) vide our Office Order No.1216/91 dated 13/16.12.91. Since the Ex-Anpara Rihand Project has been closed down w.e.f.6.2.98 and also the construction works of Delhi-Mathura Road Project (Haryana Sector) having been completed in all respects, the said project is being finally closed with effect from 3rd June, 1998 in accordance with the provision of Section 25 (FAA)(b) of I.D.Act. Accordingly, your services will be no longer required beyond the closing hours of 3rd June, 1998 A.N. and you shall stand released from the services of the Project from the said date.

i) Salary for and up to 3rd June, 1998 Rs. 752.00 ii) One months' salary in lieu of notice Rs. 3225.00 as payable under Clause (a) of Section 25-F of I.D. Act. iii) Retrenchment compensation 15 days Rs. 22266.00 average salary for every completed years of service including period served in excess of six months rounded-off to another completed year of service as payable under Clause(b) of Section 25-F & Sub-section (2) of Section 25FFF of the ID Act. iv) Gratuity Rs. 26048.00 v) Leave Encashment Rs. 8588.00 ------------- Total:- Rs. 60879.00 ============= Please acknowledge receipt of the aforesaid payment in the form enclosed as at Annexure-I.

IRCON International Limited,

KM-42, Delhi-Mathura Road,

Sikri - 121004,

P.O.&Teh.; Ballabgarh,

Distt.- Faridabad,

60. The petitioners had filed the rejoinder traversing the amendment in the counter.

CW.No.3207 of 1998

61. Lekh Raj is the petitioner in CW.3207/98. According to the petitioner, he was appointed as a daily rate typist on the 2nd of December, 1998. On completion of six months, his services were regularised. On the 12th of July, 1990, he was recommended to be promoted as Senior Typist. His work was appreciated by the superior officers. The petitioner, who was working at Dadri Project, was transferred on the 15th of March, 1993 to Corporate Office. He joined the Corporate Office on the 16th of March, 1993.

62. On the 13th of December, 1993, the IRCON proposed to conduct an exami- nation to assign category in the employees in the following manner:-

(a) Stores (b) Computer Operators (c) Work/Contract and (d) Non-Technical Supervisors

An examination was conducted on the 19/23rd of March, 1994. On the 26th of May, 1994, the General Manager, IRCON, gave a Special Performance Report about the petitioner's performance. On the 27th of May, 1994, in the Inter Office Note, the General Manager, IRCON noticed:

'An application received from Shri Lekh Raj, Junior Assistant/Typist, having his lien on Dadri Project and presently working with GM(C) is enclosed herewith for consideration.

2.0 Incidentally, the personal file of Shri Lekh Raj is with GM(C) on date, which was called for from CPM, Dadri some time back to resolve some matter. After going through this file, I find that Shri Lekh Raj was appointed on 2nd December, 1988. He has also been recommended to Corporate Office for grant of a grade vide CPM, Dadri's letter No.IRCON/Dadri/14/1703 dated 27.12.1989 (Copy enclosed for ready reference). Thereafter, it appears from the file that the case has been dealt with - consid- ering him in the grade.

3.0 From the performance Report, which was given by the under- signed (copy enclosed for ready reference), it would be clear that the services of Shri Lekh Raj were found to be outstanding in the cadre of work contract Assistant for which there is a general dearth of such staff in IRCON.

4.0 In view of the above, it is strongly recommended that since Shri Lekh Raj has already completed 5 years of service in IRCON and has also qualified in the written test as per the results declared vide letter No.IRCON/Estt/CD-7/947 dated 7.5.1994, he may be allowed to appear in the interview and regularised, so that we are able to encourage the really deserving candidates.'

63. It is stated in paragraph 1.12 of the writ petition:

'While continuing in uninterrupted service ever since 2.12.1988, the respondent No.2 in November, 1994 told the petitioner that for certain administrative exigencies he is to be given a new appointment letter and he should acknowledge the same and give joining report in terms thereof if he wants to continue in serv- ice. Letter dated 15.11.1994 is annexed herewith as Annexure-P/17 whereas letter dated 15.11.1994 (so called joining report) is annexed herewith as Annexure-P/8. Petitioner's service was not terminated and he was continued in service at Corporate Office of IRCON at New Delhi.'

64. In paragraph 1.13 of the writ petition, it is stated:

'Vide inter-office Note dated 9.10.1995 respondent No.2 admitted that the petitioner was appointed on 2.12.1988 as daily rated typist and later he was promoted as Senior Typist which was followed by his regularisation by MD's approval. The relevant extract of this Office Note is reproduced herein below:

'In regard to the grant of scale of pay to Shri Lekh Raj, it is seen that he was initially appointed by the project themselves on 2.12.88 on daily rated basis. He was brought on to consolidated pay of Rs.1170/- p.a. w.e.f.1.8.89. Later he was promoted by the project themselves as Sr.Typist and his consolidated pay was raised to Rs.1516.60/- p.m. His appointment was finally regula- rised as Jr.Asstt. vide M.D.'s approval at page 14 and a fresh contract appointment on a consolidated pay of Rs.1900/- p.m. (Pay + DA) was issued to him on 15.11.94 (page 16). In view of this background and the fact that he has put in about 7 years continu- ous service as a clerk, we may allow him IDA scale Rs.1050-35- 1750 equivalent to PR scale Rs.240-400 from the date MD approved his appointment i.e. 21.10.1994.'

A true copy of the inter-office Note dated 9.10.1995 is annexed herewith as Annexure-P/9.'

65. According to the petitioner, it is clear from the above that he was a regular employee of the IRCON. In the Inter Office Note dated 17.5.1996, it was wrongly noted that the petitioner's appointment was not approved by the Corporate Office. On the 1st of April, 1997, the names of all employees working in IRCON were arranged and that would show the position of the petitioner in the IRCON. On the 1st of January, 1998, the petitioner was issued with the following order:-

'Shri Lekh Raj, Assistant, Dadri Project, working in Corporate Office is posted in Marketing Department with immediate effect.

This has the approval of the competent authority.'

66. By letter dated 29.5.1998, the IRCON terminated the services of the petitioner. The same reads as under:-

'Please refer to this office letter No.IRCON/Estt/PF/2747/191 dated 15.11.1994 as per which you were appointed to the post of Junior Assistant for a specified period on contract basis for the Ex-Dadri Railway Siding Project.

2. As the Ex-Dadri Project has been closed and your services being non longer required in favor of para 1(iii) of the said letter of appointment, your service is, hereby, terminated w.e.f 31st May, 1998 A.N. and accord- ingly you will be relieved from the said date on payment of one month pay in lieu of notice, besides other legitimate dues as particularised below:-

i) Notice pay in lieu Rs.04,099.00 notice ii) An amount equiva- Rs.08,198.00 lent to 15 days average pay for every year if com- pleted continuous Service towards terminal benefits. iii) Gratuity Rs.09,459.00 ------------ Total:- Rs.21,756.00 ============ (Rs.Twenty one thousands seven hundred fifty six only) 3. Although under the provision of sub-section (bb) of Section 2 of the I.D. Act; the termination of the service as a result of non-renewal of service contract on expiry of such contract of employment is excluded from the purview of retrenchment; compen- sation; gratuity, etc. as are admissible to you is hereby remit- ted to you through bank draft No.544/205631 dated 25.05.1998 payable at Indian Overseas Bank, New Delhi in your favor in full and final settlement of your dues.

4. Miscellaneous dues, if any, as may be payable to you may, however, be collected from the Corporate Office (Accounts Branch) on any working day.'

67. It is stated in para 1.18 of the writ petition:

'It is pertinent to mention that work/Contract Department as also the Marketing Department of IRCON have not been closed down nor these departments can be shut down so long as IRCON is alive. Work in these Departments is of perennial nature wherein `dearth' of experienced and dedicated staff like the petitioner is admit- ted. thereforee, the termination of the petitioner in the garb of completion of Dadri Project is nothing but an unfair labour practice. Not only this, a perusal of the Seniority List would reveal that the respondent IRCON has retained juniors whereas services of the petitioner are sought to be terminated vide the impugned letter, which is also in violation of principles of retrenchment i.e. `last come first go'.'

68. In paragraph 6 of the writ petition, it is stated:

'It is submitted that the termination of petitioner in the garb of completion of Dadri Project is wholly illegal and arbitrary. As shown from plethora of documents the petitioner was working at the Corporate Office of IRCON at New Delhi and not at Dadri. Respondent for its administrative convenience showed petitioner employed at Dadri but he was actually posted at Corporate Office, New Delhi where for completion of Dadri Project had no meaning so far as his continuity of his service is concerned.'

69. It is stated in paragraph 7 of the counter affidavit by IRCON:

'The petitioner herein was given employment on contract basis at the Dadri Project of the respondent Company. Lastly his contract appointment was from 1st January, 1998 to 30th June, 1998. Vide appointment letter dated 15th November, 1994 the said petitioner was appointed on contract basis for period ending 30th June, 1995. Vide Office Order No.957/95 appointment was extended from 1st July, 1995 to 31st December, 1995 and vide Office Order 180/196 from 1.1.1996 to 30.6.1996, vide Office Order No.632/96 from 1.7.1996n to 31.12.1996, vide Office Order No.460/97 from 1.7.1997 to 31.12.1997 and lastly vide Office Order No.1130/98 up to 30th June, 1998.'

70. It is asserted that the petitioner was appointed on contract basis as Typist for Dadri Project. Here also, it is stated that the fact that the petitioner was in the service of the project for long duration under the company would not give him any right to be a permanent employee and refer- ence is made to the 'Hindustan Steel Works Construction Limited etc. etc. Vs . Hindustan Steel Works Construction Ltd. Employees' Union, Hyderabad & Another etc. etc.', : [1995]2SCR10 .

71. It is stated in paragraph 18 of the counter-affidavit by IRCON:

'That as on 31st December, 1997, the Project has been holding 35 persons out of whom 32 workmen were engaged on casual/ad-hoc basis and 3 on contract basis. M/s. NTPC vide their letter No.08/CCD/RS/SM/96/1055 dated 18.9.1996 asked IRCON to reduce their staff strength and also printed out that IRCON was having a surplus number of unskilled staff for which action may be taken. Relevant correspondence is enclosed and marked as Annexure R-8 (Colly).'

72. It is stated in paragraph 19 of the counter-affidavit by IRCON:

'That as there was no job left and also there was no work place available, the services of surplus manpower held on the strength of the Project had come to an end. Further that the project has been incurring an avoidable expenditure of approximately Rs.30 lakhs per annum towards salaries, overheads etc. without any substantial work other than the residual works of reconciliation of material and accounts, the project was finding it extremely difficult to meet the cash flow requirement towards payment of wages and salary etc. to the surplus manpower. As NTPC stopped reimbursing bills for establishment and cost towards salaries etc. the expenditure of approximately Rs.30 lakhs per annum had become a recurring burden on Corporate establishment of IRCON from June 1996 onwards.'

73. The allegations in the writ petition are totally denied by the IRCON.

CW.No.3410 of 1998

74. Mr.Mumtaz Ali is the petitioner in the CWP. 3410/98. According to the petitioner, he was appointed as Messenger on daily-wage basis in the Mar- keting Department, Corporate Office by order dated 29.1.1990. On the 4th of September, 1990, the nature of his employment was converted into contract employment limiting his employment for a period of six months. However, the petitioner was placed in regular pay scale. He was enrolled as a member of the IRCON Employees Contribution Provident Fund on the 31st of January, 1990 and deductions were made from his salary for the same. By Office Order dated 24.11.97, there was a revision of pay scale.

75. On the 2nd of June, 1998, the IRCON issued a notice terminating the services of the petitioner, Mumtaz Ali. The same reads as under:-

'Consequent upon completion of construction of the works of the Delhi-Mathura Section of NH-2 from 37.3. Kms establishment of the Project will stand closed down w.e.f.3rd June, 1998 A.N.

3. All concerned employees have been informed individually by Registered Post accordingly and payment of one month's salary in lieu of Notice and Compensation as admissible to them under Sec. 25(F) read in conjunction with sub-section (2) of Section 25(FFF) of the Industrial Disputes Act, 1947; as also payment towards up to date salary, gratuity etc. have been remitted through demand draft in their favor at their last known address as available on the records of the Project.

4. Payment towards, CPF, leave salary, and other miscellaneous dues as may be admissible under the Rules may be collected by them from the Jt.General Manager (Accounts) on application for such payment in prescribed proforma.

5. All such persons whose services are hereby dispensed with on account of the closure of the project shall, however, be given preference over other persons for purpose of re-employment if otherwise found suitable as and when the Company may secure some more project-works in the State of Haryana and their serv- ices in the respective categories are required in the future projects. For this purpose all concerned are advised to intimate any change in their address for communication, if any,'

76. The submission of the petitioner is that the order is illegal and the IRCON had discriminated against the petitioner and the petitioner's serv- ices had been terminated.

77. The same points are urged in this writ petition as urged in CW.629/98.

78. The second respondent filed a short counter-affidavit on the 5th of August, 1998. It is stated in paragraph 4 of the counter:

'That the petitioner was admittedly working in the State of Haryana at Sikri, District Faridabad (Haryana) on a construction project popularly known as Delhi-Mathura Road Project and his services have been terminated vide letter dated 30.5.1998 from that project only. The petitioner was within the territorial jurisdiction of the High Court of Punjab & Haryana. The writ petition before this Hon'ble Court is liable to be rejected.'

79. It is further stated in the counter that the petitioner is a workman as defined under Section 2(s) of the Industrial Disputes Act. In paragraph 6 of the counter, it is stated:

'That the petitioner has suppressed the relevant and material information in the petition. The petitioner has suppressed that his services along with other workmen who were working at the said project had already been terminated vide letter dated 30.5.1998. In the writ petition the petitioner has only chal- lenged notice dated 2nd June 1998 (page 33 of the paper book) by which the communication of closure of the project has been given. The services of the petitioner has been terminated vide letter dated 30.5.1998 in accordance with the provisions of the I.D. Act on the project being closed. A copy of the termination letter dated 30.5.98 is enclosed herewith marked as Annexure R-I. The writ petition is dated 20th of July, 1998.'

80. Annexure R-1 filed by the second respondent is as under:

'You were engaged for the Delhi-Mathura Road National Highway Project (Haryana Sector) on contract basis for the said Project. As the Delhi-Mathura Road Project (Haryana Sector), for which your services were retained on contract basis, is being closed on completion of the construction works, as per the terms & condi- tions contained in your appointment letter, your services will come to an end with effect from the closing hours of 03.06.98 (A.N.) on payment of one month's pay in lieu of notice.

2. Notwithstanding that the service rendered by you is excluded from the purview of the I.D. Act for payment of retrenchment compensation etc., as a gesture of goodwill, in addition to the payment in lieu of notice, ex-gratia payment towards terminal benefits in lieu of retrenchment compensation 15 days average salary for every completed year of service, gratuity, leave encashment etc. is per details given hereunder is hereby remitted to you through a bank draft No.923260 dated 30.05.98 drawn on IOB towards full & final settlement of your dues:-

i) Salary for and Rs. 779.00 up to 3.6.98 ii) One month's salary Rs. 3382.00 in lieu of notice iii) Ex-gratia terminal Rs. 13343.00 benefits 15 days average salary for every completed year of service rendered. iv) Gratuity Rs. 15609.00 v) Leave encashment Rs. 7894.00 ------------ Total:- Rs. 41007.00 ============ Please acknowledge the receipt of the aforesaid payment in the form enclosed as at Annexure-I.'

3. As regards release of your GPF, CPF linked pensionary benefits as per Employees Pension Scheme, 1995, as may be admissible under the IRCON CPF SCHEME, you are advised to apply to the Jt.General Manager(Accounts) of the Rear-Party of the Project in the pre- scribed enclosed format for processing the payment.

4. As regards payment towards bonus and other miscellaneous dues, if any, you are advised to collect the same from the Jt.General Manager(Accounts) of the Rear Party of the Project within 3 months from the issue of this letter at the following address:

KM-42, Delhi Mathura Road,

P.O.&Teh.; Ballabgarh,

Sikri - 121004,

Distt.- Faridabad,

Haryana.'

81. The stand taken in CWP.629/98 is also taken in this writ petition by the IRCON. An additional affidavit was filed on behalf of the IRCON on the 20th of March, 1998. In paragraph 2 of the additional affidavit, it is stated:

'That the respondent No.2 had sent termination letter dated 30.5.98 to the petitioner along with a bank draft No.923260 dated 30.5.98 for an amount of Rs.41,007/- to the petitioner by post. However, the same was received back by the respondent. Further, the Delhi-Mathura Road Project has already been completed and closed. A copy of the letter dated 1.6.98 written to the Chief Engineer, Haryana, PWD in this regard is annexed as Annexure A.'

CW.No.3921 of 1998

82. Kishan Lal is the petitioner in CWP.3921/98. According to the peti- tioner, he belongs to a Scheduled Caste category. He was appointed on the 11th of September, 1989 as Safaiwala/casual sweeper. On the 30th of June, 1996, the petitioner was relieved from his duties on the assurance that he will be taken back. On the 13th of October, 1996, he was taken back in service as Safaiwala. PF was deducted from his salary. He continued to work as Safaiwala in the IRCON Corporate Office, New Delhi. On the 31st of July, 1998, a letter was issued terminating the services of the petitioner. The same reads as under:-

'Vide Office Order No.1225/1998 the term of your Contract employ- ment was extended from 01/02/98 to 31/07/98. The Competent Au- thority is not considering the extension of your contract employ- ment any further. You may settle your accounts with the Accounts Department of the Company.'

83. This is challenged in the writ petition on the same grounds as men- tioned in CWP.629/98.

84. On the 18th of August, 1998, a short affidavit was filed by the IRCON taking the same stand as taken in CWP.629/98.

CW.No.4061 of 1998

85. Mr.K.P.Singh is the petitioner in this writ petition. According to the petitioner, he was working as Work Supervisor on daily wages from 16th of February, 1985. On the 24th of March, 1996, the services of the petitioner were regularised. He was transferred to Rihand nagar. In 1987, He was trans- ferred to Vindhya Nagar from where he was shifted to RTIS Project, Safdar- jung, New Delhi. From Delhi, he was sent to KSRE Project, Secunderabad. On the 3rd of December, 1994, he was sent to Delhi-Mathura Project.

86. On the 2nd of June, 1998, a letter was issued by the IRCON terminating the services of the petitioner. The same reads as under:-

3. All concerned employees have been informed individually by Registered Post accordingly and payment of one month's salary in lieu of Notice and Compensation as admissible to them under Section 25(F) read in conjunction with sub-Section (2) of Section 25(FFF) of the Industrial Disputes Act, 1947; as also payment towards up to date salary, gratuity etc. have been remitted through demand draft in their favor at their last known address as available on the records of the Project.

87. As in CW.629/98, the petitioner claims regularisation and seeks to quash the notice dated 2.6.1998.

88. The counter-affidavit was filed on the 12th of October, 1998. The same stand as taken in CWP.629/98 is taken by the IRCON. The letter of termina- corporation dated 30.5.1998 is filed as Annexure R-2. The same is as under:-

2. Notwithstanding that the service rendered by you is excluded from the purview of the I.D. Act for payment of compensation etc., as a gesture of goodwill, in addition to the payment in lieu of notice, following sums towards ex-gratia payment is also being paid to you in consideration of your services in the Project:- i) Salary for and Rs. 1547.00 up to 3.6.98 ii) One month's salary Rs. 6844.00 in lieu of notice iii) Ex-gratia payment Rs. 43877.00 in lieu of retrench- ment compensation. iv) Gratuity Rs. 51330.00 v) Leave encashment Rs. 28576.00 ------------ Total:- Rs.132174.00 ============

3. The above sum is hereby remitted to you through a bank draft No.923228 dated 29.05.98 drawn on the I.O.B. in full and final settlement of your dues.

4. As regards release of your GPF, CPF linked pensionary benefits as per Employees Pension Scheme, 1995, as may be admissible under the IRCON CPF SCHEME, you are advised to apply to the Jt.General Manager(Accounts) of the Rear-Party of the Project in the prescribed enclosed format for processing the payment.

KM-42, Delhi Mathura Road,

P.O.&Teh.; Ballabgarh,

Sikri - 121004,

Distt.- Faridabad,

Haryana.

6. Please acknowledge the receipt of the aforesaid payment in the form enclosed as at Annexure-I.'

89. A certificate, showing completion of the project, dated 23.4.1998, issued by the PWD, Haryana, is filed as Annexures R-3 and the same is as under:-

'In accordance with the Contract Agreement between the GOVERNOR OF HARYANA (the Employer) acting through Chief Engineer, National Highways and M/s.Indian Railway Construction Company, Palika Bhawan, New Delhi (the Contractor) as per page 191, 243, 1215 and 1269 of Contract; this is to certify that the following lengths of road pavement as noted below have been inspected by the autho- rised representatives of the `Engineer' and the works are hereby declared substantially completed on 26.12.1997 (Twenty sixth December, one thousand nine hundred and ninety seven).

a) Eastern Km.69+000 to 93.830 carriageway With the issue of this certificate, the whole of the main car- riageway has been substantially completed.

Snag list of outstanding works/defects in works as applicable to the contract is enclosed. This list may not be exhaustive and failure to include

item (s) in it does not alter the responsibility of the Contrac- torn to complete all the works in accordance with the Contract within the Defect

Liability Period (DLP).

The Defect's Liability Period for correction/rectification/remov- al and replacement of affected faulty portions of works on the section described herein shall be twelve months from the date of this Taking Over Certificate i.e. w.e.f. Forenoon of 27.12.1997 and will be over on 26.12.1998.

It is clarified that defect liability period for the remaining works, mainly service road, 2.3 metre wide drain to Palwal area and centre line marking with thermoplastic paint etc. which are to be completed subsequently, will be considered accordingly.

The taking over of the above section satisfies the substantial Sectional Completion requirement of the Section (amended) as required by 4 (1) of the Appendix to Tender.'

90. On the 3rd of June, 1998, the closure notice, as published in the newspaper, is filed as Anneuxre.R-4. The same is as under:-

'It is notified for information of all concerned that consequent upon completion of construction works of 93.83 Kms. in the Har- yana Sector and 93.83 Kms to 148.33 Kms. in the UP Sector, the said project will be closed down w.e.f. 3rd June, 1998. As a result of the closure of the Project, the service of all casual/ad hoc/contract workmen will be no longer required w.e.f. the afternoon of 3rd June, 1998.

2. All concerned have been informed individually through notices displayed at the Project and their due payment towards salary in lieu of notice and compensation as admissible under Section 25(F) on closure of the Project establishment in accordance with Sec. 25(FAA)(b) read in conjunction with sub-Section (2) of Sec. 25(FFF) of the I.D. Act, 1947 together with payment on ac- count of up to date salary, gratuity, etc. have been remitted in their favor at their permanent address as available on the record of the Project.

3. All concerned are hereby informed through this notice that they may collect their dues towards PF, leave encashment, bonus and other miscellaneous dues, if any, that may be admissible to them under the Rules of the Company from the Manager(Accounts), Rear Party on application for such payment in the prescribed proforma.

4. All concerned are also informed that whose services are hereby dispensed with on account of closure of the Project shall, howev- er, be given preference over other persons for purpose of re- employment, if otherwise found suitable; as and when the Company may secure some more project works in the State of UP/Haryana as the case may be and their services in the respective categories are required in the future projects. For this purpose all con- cerned are advised to intimate changes in their address for communication, if any.'

91. The IRCON has taken the same stand as taken in CWP.629/98 and denied the claim of the petitioner for regularisation and dismissed the right of the petitioner to challenge the notice dated 30.5.1998.

CW.No.4062 of 1998

92. Dhal Singh is the petitioner in this writ petition. According to the petitioner, he was appointed on ad-hoc basis on the 23rd of October, 1980 and was posted at Korba in Madhya Pradesh. On the 21st of January, 1984, according to the petitioner, he was regularised. On the 10th of January, 1990, the petitioner was sent for training in 'Flat Butt Welding' at Meer- ut. On the 28th of July, 1993, he was again posted at Meerut. On the 12th of August, 1987, the petitioner was transferred to Delhi-Mathura Project.

93. On the 2nd of June, 1998, according to the petitioner, the notice terminating his services was issued. The same is as under:-

94. The petitioner claims that he is a regular employee and and the notice terminating his services is illegal.

95. The counter-affidavit was filed on the 12th of September, 1998. The IRCON had denied the claims of the petitioner and also disputed the right of the petitioner to challenge the order of termination. The letter of termination dated 30.5.1998 issued by the IRCON is filed by the IRCON as Annexure.R-2. The same is as under:-

i) Salary for and Rs. 1608.00 up to 3.6.98 ii) One month's salary Rs. 7018.00 in lieu of notice iii) Ex-gratia payment Rs. 62297.00 in lieu of retrench- ment compensation. iv) Gratuity Rs. 72879.00 v) Leave encashment Rs. 34379.00 ------------- Total:- Rs.178181.00 ============= 3. The above sum is hereby remitted to you through a bank draft No.923229 dated 29.05.98 drawn on the I.O.B. in full and final settlement of your dues.

KM-42, Delhi Mathura Road,

P.O.&Teh.; Ballabgarh,

Sikri - 121004,

Distt.- Faridabad,

Haryana.

6. Please acknowledge the receipt of the aforesaid payment in the form enclosed as at Annexure-I.'

96. The same stand as taken in CWP.629/98 is taken by the IRCON.

CW.No.907 of 1999

97. Ram Tej Singh is the petitioner in this writ petition. According to him, he joined as Khalasi on daily wage basis in the Dadri Project with effect from February, 1990. He was granted regular pay scale w.e.f 1.5.1992. He was transferred to Panipat Refinery Project from November, 1995. In February, 1998, his services were terminated. The order terminat- ing the services of the petitioner reads as under:-

2. In accordance with the Provision under Sub-section(2) of Section 25FFF of the Industrial Dispute Act 1947, one month's salary in lieu of notice and compensat along with other dues mentioned hereunder are, hereby, tendered in your favor through ....

towards full and final settlement of your dues:-

i) Salary for and up to 05th February 1998 Rs. 609.00 ii) One months' salary in lieu of notice as Rs.3046.00 payable under Clause (a) of Section 25-F of I.D. Act. iii) Compensation 15 days average salary Rs.12184.00 for every completed year of service including period served in excess of six months rounded-off to another completed year of service as payable under Clause(b) of Section 25-F & Sub-section (2) of Section 25FFF of the ID Act. iv) Gratuity Rs.14058.00 ------------ Total Rs.29897.00 ------------ Please acknowledge receipt of the aforesaid payment in the form enclosed as at Annexure-I.

98. The petitioner claims that he is a regular employee of the IRCON and the letter dated 5.2.1998 terminating his services is illegal and the letter dated 2.2.1999 is also illegal and liable to be set aside.

99. The IRCON filed its counter-affidavit on the 7th of April, 1999. In paragraph 18.1. of the counter, it is stated:

'The petitioner being ad hoc work-charged project-based employee, has no vested right to claim regularisation/continuance in case of closure. Accordingly, thereforee, the petitioner do not have any legal vested right to claim regularisation/absorption/contin- ued employment. The respondent Company have considered the ques- corporation of regularisation in accordance with the rules governing the petitioner based on directions of the Hon'ble Supreme Court in a large number of cases; subject to their passing the prescribed test held for each category of post depending upon the availabil- ity of vacancy in regular establishment.'

100. About the method adopted by the IRCON for regularisation, in paragraph 18.2 of the counter, it is stated:

'It may be mentioned that the similarly placed employees were duly considered for regularisation, having given opportunities to them to appear in the tests interviews for regularisation against limited number of vacancies, on the establishment of the company, caused by retirement, resignation, death etc., and the similarly placed employees who had secured the qualifying marks, were made regular against regular vacancies and in all up to date 647 employees who had qualified in such tests, were made regular and orders to this effect had been published through office orders specifically during the last 4 years approximately 450 employees have been regularised who were opted against short term vacancies for project. As the petitioner could not find place in the merit list he could not be considered for regularisation. The petition- er instead of appreciating the benefit accorded to him, is rais- ing disputes on wrong and frivolous allegations. At present, there is no work for the petitioner. However, his name is kept on panel. As and when work will be available of his category, a preference shall be given to the petitioner.'

101. Referring to the Voluntary Retirement Scheme, it is stated in para- graph 18.3. of the counter:

'With a view to weeding out the surplus manpower due to closure of project, the company has also introduced as far back in 1995, VR Scheme in the form of 'Golden Hand-shake' which was renewed on year to year basis wherein it was clearly mentioned that those who do not volunteer for the VR Scheme being surplus are liable to be terminated on completion of the project on payment of compensation etc. The petitioner was appointed in the Dadri Project which had already been closed and in the VR Scheme the employees appointed on the Dadri Project were specifically cau- tioned to opt for VR Scheme due to surplus manpower on the com- pletion of the project.'

102. The IRCON had given details about the terms of the contract with the companies who entrusted the projects to the IRCON, and had taken the same stand as taken in CWP.629/98.

103. From the facts narrated above, the questions that arise for considera- tions are:

1. Whether the petitioners in all the writ petitions could claim to be permanent employees of the IRCON?

2. Whether the IRCON was within its right in issuing the orders of termination of the services of the petitioners in all the writ petitioners?

104. For deciding the first question, the following facts should be estab- lished by the petitioners:-

1. They were appointed in the vacancy that could last in the company, so that they can, subsequently, on completion of proba- tion, could be taken on regular employment.

2. The cadre to which they were taken into the service.

3. The nature of the work for which they were employed by the IRCON.

4. The vacancies that existed on the date of the employment.

5. The nature of the projects undertaken by the IRCON being a construction company and how far the petitioner could be trans- ferred from one project to another, which would depend upon the nature of the work and the duration of the project.

6. The overall set-up and the employees taking into service by the IRCON and the general structure of the IRCON, which is the basis for the IRCON taking up the projects.

105. I heard the learned senior counsel, Mr.Sudhir Chandra, and Mr.M.C.Dhingra, for the petitioners and the learned senior counsel for the IRCON, Mr.Raj Birbal, at length.

106. The learned senior counsel for the petitioners, Mr.Sudhir Chandra, submitted that the petitioners had been appointed by the IRCON for render- ing services to the IRCON. Relying upon the terms and conditions of the appointment orders that the employees cannot take up any other work and they are likely to be transferred anywhere. The learned senior counsel submitted that the petitioners were appointed in the employment of the company and they are not concerned with the projects. The learned senior counsel submitted that all the petitioners have expressed their willingness to serve in any project undertaken by the IRCON, not only anywhere in India, but anywhere in the world. The learned senior counsel submitted that when that is the position, the IRCON cannot issue the orders of termination on the ground that the projects had come to an end and the IRCON being a construction company, it could issue the orders of termination on the terms found in the orders issued under Section 25-FFF of the Industrial Disputes Act, 1947.

107. The learned senior counsel for the petitioners, Mr.Sudhir Chandra, relied upon the judgment of the Supreme Court in 'Lal Mohammad & Others Vs . Indian Railway Construction Co. Ltd. & Others', : (1999)ILLJ317SC and submit- ted that the ratio laid down by the Supreme Court would, on all fours, apply to the facts and circumstances of this case. The learned senior counsel submitted that the plea taken by the IRCON that the petitioners being workmen within the meaning of Section 2(s) of the Industrial Disputes Act, their remedy is to raise industrial dispute and in view of the disput- ed questions of facts, this Court, sitting under Article 226 of the Consti- tution of India, would not be able to adjudicate on facts, is not accept- able. It could be decided only on evidence of the parties and considering the entire gamut of the nature of work done by the IRCON and the nature of the projects undertaken by the IRCON.

108. The learned senior counsel for the IRCON, Mr.Raj Birbal, submitted that the questions raised by the petitioners could be decided only by an Industrial Court and this Court cannot decide the matter on assertions by the parties. The learned senior counsel submitted that when the petitioners have an efficacious alternative remedy, they are not entitled to approach this Court under Article 226 of the Constitution of India. The learned senior counsel submitted that the IRCON had given details about the projects secured by it from 1.4.1997 to 31.5.1998 and the Statewise, projectwise and categorywise, panel of employees, casual employees, with details about the closure of the projects. The learned senior counsel also placed on record, what is called, a seniority list as on 1.1.1997 and the learned senior counsel submitted that the IRCON would follow the seniority list for employing the persons and as and when new projects are undertaken by the IRCON, depending upon the seniority, the employees, whose services were terminated, would be provided with employment. The learned senior counsel submitted that the IRCON, being a public authority, had acted in larger public interest keeping in view the money spent by the public ex- chequer and the interest of the employees, including the petitioners.

109. In making submissions in rejoinder, the learned senior counsel for the petitioners, Mr.Sudhir Chandra, submitted that if the petitioners take recourse to remedy under Industrial Disputes Act, 1947, it will take a long time for them to get matters adjudicated, and having regard to the fact that the IRCON had acted illegally, the petitioners, for getting a speedy relief, had approached this Court under Article 226 of the Constitution of India. The learned senior counsel reiterated his submissions that this point is dealt with by the Supreme Court 'Lal Mohammad & Others Vs . Indian Railway Construction Co. Ltd. & Others', : (1999)ILLJ317SC , and submitted that this Court can decide the questions raised in these writ petitions.

110. Before I go back to the merits, it is necessary to notice the facts before the Supreme Court in 'Lal Mohammad & Others Vs . Indian Railway Construction Co. Ltd. & Others', : (1999)ILLJ317SC . The learned counsel for the petitioners, relying upon the judgment of the Supreme Court in the aforesaid case, submitted that the petitioners are entitled to the reliefs prayed for. The facts before the Supreme Court were entirely different. The appeal before the Supreme Court was against the judgment of the Division Bench of the Allahabad High Court reported in 1998 Allahabad Law Journal 1875. The notice, which was challenged before the Court issued by the respondent therein, stated that the most of the work was over and the entire project was not over. This was the crux of the matter. The learned Single Judge, out of whom judgment, the appeal had arisen, had noticed that on the case set up by the parties, submissions made by the respective counsel and the material on record, no disputed questions of facts arose for determination. The Supreme Court, reversing the judgment of the Divi- sion Bench, held that the Rihand nagar Project in the State of Uttar Pra- desh, undertaken by the respondent therein, would come within the defini- corporation of `factory'. The Supreme Court held that the establishment of the company squarely fell within the definition of term `factory' for the purpose of applicability of Section 25-N of the Industrial Disputes Act, 1947. The Supreme Court directed the High Court to decide the following question:

'In view of the aforesaid discussion and in the light of our finding that Chapter V-B applies to respondents' Anpara-Rihand Project, in the remanded proceedings in the restored writ peti- tions of the present 25 appellants, the following questions would squarely arise for consideration of the High 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 of the aforesaid question a fur- ther question would arise whether impugned notices of March, 1998 were in fact and in law closure notices as per Section 25-O read with Section 25-FFF of the Act or whether they still remain retrenchment notices and hence would be vocative of Section 25-N 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 effected any snapping of employer-employee relationship between the appel- lants on the one hand and the respondent company on the other;

iv) Even apart from the aforesaid questions whether the impugned notices are vocative 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 discriminato- ry. Respondent company being a 'State' within the meaning of Article 12 of the Constitution of India.

Appropriate orders may be passed by the High Court in the remand- ed writ petitions accordingly. We make it clear that we express no opinion on the merits of the aforesaid controversies between the parties. Whatever other questions of fact and law may arise in the light of the amended pleadings of parties may also have to be decided in these proceedings.'

111. On the facts and circumstances of the instant case before me, all facts are disputed and on the basis of the affidavits and the materials on record, no conclusion can be arrived at unless a complete picture about the projects, the nature of work done by the petitioners, and the circumstances under which the respondent/IRCON had issued the order, challenged in the writ petitions, is proved by evidence, oral and documentary. The Court cannot adjudicate on these points raised by the petitioners and respond- ents. That exercise could be done only by an industrial court. In this view, I do not want to enter into any discussion on merits of the rival contentions of the parties. Granting the liberty to the petitioners in these writ petitions to raise industrial disputes, the writ petitions are dismissed.

112. There shall be no order as to costs.

Subject	Labour and Industrial
Court	Delhi High Court
Decided On	Feb-10-2000
Case Number	CW.No. 629 of 1998
Judge	K. Ramamoorthy, J.
Reported in	(2000)IILLJ845Del
Acts	Industrial Disputes Act, 1947 - Sections 25
Appellant	Gopal Singh
Respondent	Indian Railway Const. Company Ltd.(ircon)
Advocates:	Mr. Sudhir Chandra, Senior Adv. and; Mr. R.K. Saini, Adv; M

Gopal Singh Vs. Indian Railway Const. Company Ltd.(ircon) - Court Judgment