ORDER
Rajiv Sharma, J.
1. The petitioners are seeking regularization on the basis of the Scheme formulated in the year 1989 called 'Casual Labourers (Grant of Temporary Status and Regularization) Scheme of the Department of Telecommunications, 1989' (hereinafter referred to as the scheme, 1989 for brevity sake) as well as under the left over scheme framed in the year 2001 and also for quashing the notices of retrenchment issued on August 16, 2001.
2. Mr. V.D. Khidta, advocate appearing on behalf of the petitioners had strenuously argued that the petitioners had completed 240 days strictly as per the scheme framed in the year 1989 and his clients were required to be regularized. He in the alternative had submitted that the petitioners were also eligible and qualified to be considered for regularization even as per the left over scheme framed in the year 2001. He had specifically assailed the notices dated August 16, 2001 whereby the petitioners' services were dispensed with.
3. Mr. Ashok Sharma, advocate had argued that since the petitioners have not completed 240 days as per the scheme framed in the year 1989 and 2001, they cannot be regularized. He has supported the notices issued to the petitioners on August 16, 2001.
4. I have heard the learned Counsel for the parties and perused the record carefully.
5. What emerges from the pleadings of the parties is that the petitioners were appointed under the Task Force Scheme duly approved by the Department of Telecommunications vide letter dated December 23, 1994. The Director, Telecommunications Project had informed the General Manager on January 13, 1999 that 40 labourers were engaged for project work through DOT Headquarters vide permission letter dated December 23,1994. The permission was endorsed by ADT (HRD) on December 28, 1994. The Hon'ble Supreme Court in Daily Rated Casual Labour Employed under P&T; Department through Bhartiya Dak Tar, Mazdoor Manch v. Union of India : (1988)ILLJ370SC had directed the Union of India to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who had been continuously workings for more than one year in Posts and Telegraphs Department. Their Lordships of the Supreme Court have also held that there was no justification for dividing the casual labourers into three categories, namely, (i) those who have not completed 720 days of days of service; (ii) those who have completed 720 days of service and not completed 1200 service; and (iii) those who have completed more than 1200 days of service for the purpose of payment of different rates of wages. The Union of India framed a scheme as directed by the Supreme Court. The copy of the same has been placed on record by the petitioners. The scheme had come into force with effect from October 1,1989. The scheme was applicable to the casual labourers employed by the Department of Telecommunications. It is evident from Clause (5) of the 1989 scheme, that the temporary status was to be conferred on all the casual labourers, who have rendered continuous service of at least one year, out of which they must have been engaged on work for a period of 240 days and those casual labourers were to be designated as temporary Mazdoors. Such conferment of temporary status was to be without reference to the creation/availability of regular Grade-D posts. The workmen, who were to be conferred the temporary status were entitled to the benefits enumerated in para 6 of the scheme, 1989.
6. The petitioners made a representation to the Director, Telecom Projects seeking their regularization. The representation made by the petitioner was not addressed to by the respondents, which led to filing of the original application No. 598/HP/2000 by the petitioners before the Central Administrative Tribunal, Chandigarh Bench. The Central Administrative Tribunal on August 1, 2000 directed the respondents to dispose of the representation of the petitioners within four weeks. The representation made by the petitioner was decided on July 31, 2001. As per letter dated July 31, 2001, the petitioners' cases were disposed of in the following manner:
1. Shri Vinod Chuahan S/o Sh. Raj Mal, applicant No. 1.
Sh. Vinod Kumar & Sh. Vinod Chauhan are shown to be son of Shri Rajmal in different payment vouchers.
a) Date of Joining: November 1,1995
b) Period of Absence:
1995: December
1996: January; February; April; May; September; 3 days in November, &10 December.
1997: February
1998: 7 months from January to July; 2 days in August; 1 day in November; December.
c) The applicant did not apply for condonation for broken period of service as per rules.
d) Does not satisfy the condition of service rendered for 240 days continuously excluding, holidays, when counted backward w.e.f. August 1, 1998.
e) Completion of 240 days in any preceding 25 year excluding the holidays after 6 working days.
1955: No.
1996: No. 30
1997: Yes, but condonation of service neither applied nor given, which is more than six months before the cut off date of August 1, 1998.
1998: Absented from January till 2nd August. Not eligible for granting temporary status.
2. Sh. Karnail Singh, applicant No. 2:
a) Date of Joining: October 1,1997
b) Period of Absence: 1997: November; December.
1998: January; May; June; July; 2 days is August; 1 day in November; December.
c) The applicant did not apply for condonation for broken period of service as per rules.
d) Does not satisfy the condition of service rendered for 240 days continuously excluding holidays, when counted backward w.e.f. August 1,1998.
e) Completion of 240 days in any preceding year excluding the holidays after 6 working days.
1997 No.
1998 No.
Not eligible for granting temporary status.
3. Shri Ashok Kumar son of Sh. Bramha Dass, applicant No. 3:
a) Date of Joining: July 1, 19984. Shri Sanjiv Kumar son of Sh. J.D. Singh, applicant No. 4:
No person by the name Sanjiv Kumar s/o Sh. J.D. Singh was engaged instead of Sanjeev Kumar s/o Sh. J.D. Singh was engaged and his details are as follows:
a) Date of Joining: July 1,1998 Not eligible for consideration.
5. Shri Kishan Kumar son of Sh. Natha Ram, applicant No. 5:
For the paid vouchers of October and November 1996, the name of casual labourer is shown as Shri Kishan Sharma and not Shri Kishan Kumar.
a) Date of joining: October 1,1996.
b) Period of Absence: 1996: December 1997: Full year
1998: January till August; 6 days in September; October, November; December.
c) Break in service more than 1 year. Not eligible for condonation.
Not eligible for granting temporary status.
6. Sh. Ramesh Chandson of Sh. Kanshi Ram applicant No. 6.
a) Date of joining: December 17,1996
b) Period of Absence:
1996: No absence w.e.f. December 17,1996.
1997: 2 days in February; 13 days in March; April 16 days in May; June; September; 1 day in December. 1998: January; May; June; September; 1 day in November; December.
c) The applicant did not apply for condonation for broken period of service as per rules.
d) Does not satisfy the condition of service rendered for 240 days continuously, excluding holidays, when counted backward w.e.f. August 1, 1998.
e) Completion of 240 days in any preceding year excluding the holidays after 6 working days.
7. The sum and substance of the decision was that the petitioners had not completed 240 days in a preceding year and as far as the issue concerning the regularization of their juniors was concerned, it was stated that the matter was under examination afresh. The Divisional Engineer, Telecom Project had sent the; proformas of the petitioners for regularization. It is evident from the contents of Annexure A-6 that as far as petitioner Vinod Kumar is concerned, he had completed 365 days in the years 1995, 1996 and 1997, respectively and 182 days in the year 1999. In column No. 13, it is specifically mentioned that the petitioner was registered with the Employment Exchange. At the bottom of the proforma, the Divisional Engineer had submitted that Vinod Kumar was recruited through Employment Exchange with effect from January 1, 1996. According to proforma, Sh. Kartar Singh had completed 31 days in the year 1995 and 365 days in the years 1996,1997 and 1998 respectively and 182 days in the year 1999. Sh. Sanjeev Kumar had completed 240 days in the years 1996,365 days in the years 1997 and 1998, respectively and 182 days in the year 1999. Ramesh Chand had completed 365 days in the years 1996,1997 and 1998 respectively and 182 days in the year 1999. The Divisional Engineer Telecom had also sent a communication to the Deputy General Manager, NDP stating therein specifically that the petitioners had completed 240 days prior to August 1, 1998. He had also specifically mentioned the names of the petitioners, who were to be regularized in the communication dated May 24, 2001.
8. Now, the Court has to consider the man-days chart prepared by the Eight Members Committee qua each petitioner vide Annexure A-9 onwards. In the case of Vinod Chauhan, it is stated in the mandays chart that he had completed 181 days in the year 1996,337 days in the year 1997,119 days in the year 1998 and 365 days in the year 1999. This document is in variance with the details of the workman i.e. Annexure A-6. According to the proforma supplied by the Divisional Engineer as noticed above, Sh. Vinod Kumar had completed 365 days in the years 1996, 1997 and 1998, respectively. As far as Sh. Chaman Lal is concerned, as per the Eight Members Committee, the workman had completed 115 days in the year 1998 and 304 days in the year 1999 and he had not worked in the year 1997 at all. However, in the proforma of application, the Divisional Engineer Telecom had certified that the petitioners had completed 365 days in the year 1998. Sh. Sanjeev Kumar as per the Eight Members Committee had worked for 158 days in the year 1998 and 365 days in the year 1999. However, as per proforma signed by Sh. Sanjeev Kumar and certified by the Divisional Engineer Telecom, he had worked for 245 days in the year 1996 and 365 days in the years 1997 & 1998 respectively and 182 days in the year 1999. As far as Kishan Kumar is concerned, as per the Eight Members Committee, he had worked for 61 days in the year 1996,24 days in the year 1998 and 362 days in the year 1999.
9. It is thus evident that there is variance in the calculations of days while the representation made by the petitioner was decided on July 31, 2001, the proforma duly certified by the Divisional Engineer Telecom as well as Sub Divisional Engineer, the details given by the Divisional Engineer in communication dated May 24, 2001 and the Eight Members Committee constituted by the respondents.
10. Mr. V.D. Khidta, advocate had pointed out with the assistance of Annexure A-8, vouchers of salary, that the calculations made by the Eight Members Committee and while the representation of the petitioners was considered is factually incorrect by way of illustration. While this Court reconciled these vouchers, it was apparent that though the Eight Members Committee had marked man-days in every month as nil, but the petitioners have been paid wages for the same.
11. It has also come in the record that the Sub Divisional Engineer had sent a communication to the Accounts Officer on January 13, 2000 giving therein the details of the man-days chart the petitioners had worked 10 with the respondents. The names of the petitioners find mention in this communication with details of total number of days they worked up to June 30,1999. In similar communication dated April 29, 1999, the Sub Divisional Engineer, Hamirpur had informed the higher authorities that the petitioners were engaged in the year 1995 onwards. In the column of break period, nil was denoted. The Accounts Officer had sent a communication to the General Manager on December 17,1999 informing him that apart from the list which had already been sent, there were other casual labourers who had been engaged by the Manager, Telecom Task Force from December 18,1994 and these casual labourers were still working. The names of the petitioners figures at Annexure-2 annexed with this communication. It is also clear from the Annexure A-23 dated 28-December 1, 1994 that the petitioners were recruited towards special recruitment of daily rated Mazdoor. This document has been referred to see whether the petitioners have been appointed in accordance with law at the initial stage or not. The petitioners were issued notices for retrenchment on August 17, 2001. They assailed this order by approaching the Central Administrative Tribunal by way of O.A. No. 689/HP/2001. The original application preferred by the petitioners was returned to them for presenting the same before a Court of competent jurisdiction on May 27, 2002. During the course of hearing, this Court had passed the following order on May 4, 2007, which reads thus:
Heard in part. 45
Mr. Madan Singh (DET) is present in the Court and assures this Court that on the basis of the pleadings of the parties, the Department is ready and willing to have a re-look into the matter and for that purpose he seeks 15 days' time. Time granted. Mr. Madan Singh may seek instructions within two weeks. The matter may come up for hearing on May 22,2007.
12. In sequel to order dated May 4, 2007, a supplementary affidavit was filed by Sh. Madan Singh, DET. It will be apt to refer to paragraphs 3 to 8 of the affidavit filed by Mr. Madan Singh, DET on May 21, 2007, which read thus:
That after passing of this order (Annexure A-5), respondents retrenched the DRMs and TSMs in accordance with law. It is further added that respondents had made a request to all General Manager, Telecom District (GMTD) to retrench those persons who had been regularized illegally. In view of this development Telecom District Manager (TDM) Kullu retrenched one person and regarding other SSAs of HPT Circle no information was received by this office.
That it is pertinent to mention here that the petitioners continuously worked in the Project with the replying respondents till their retrenchment. In the meanwhile, the respondent No. 2 issued another instruction in the interest of Majdoors to grant them status of regular majdoors. The copy of the said instructions/policy mentioned as regularization of casual labourers left out cases is placed herewith as Annexure R-III. These instructions were enforced on April 19, 2001 when the petitioners were working with the replying respondents and were eligible under this scheme for regularization.
That the replying respondent had made a communication (Ann. P-14) with the CGM HP Telecom Circle informing him that 27 persons are working in the Project as daily rated Majdoors and TSM including all petitioners. The replying respondents have requested the CGM HP Telecom Circle to grant them status of Regular Majdoors.
That the CGM HP Telecom Circle is the Recruiting Unit for the purpose of Recruitment of RMs and replying respondents cannot grant status of TSM or RM to the Majdoors as the same can only be granted by recruiting Circle i.e. CGM H.P. Circle. It is pertinent to mention here that the replying respondents have recommended the names of working DRMs including the petitioners under 2001 policy, but the CGM HP Circle granted status of RM to some persons falling in the list Annexure A-14. It is pertinent to mention here that replying respondent is not in a position to apprise this Hon'ble Court as to why the petitioners case was not considered under the 2001 policy. Replying respondents further submit that CGM Telecom, Circle, Himachal Pradesh, Kasumpti Shimla-9 has passed the order of granting regular majdoor status to some persons working at GMTD Mandi and in GMTD Hamirpur. Therefore, CGM, HP Telecom Circle can only apprise this Court as to why the name of petitioners were not considered for grant of regular majdoor status.
That the petitioners were having full knowledge that CGM Telecom H.P. Circle and GMTD Hamirpur was the competent authority to grant them the temporary status/regular majdoor status but petitioners deliberately did not implead them as respondents.
In these facts and circumstances narrated herein above, the replying respondents humbly submit that replying respondents are not in a position to apprise this Hon'ble Court as to why the name of petitioners was not considered for regularization as the record pertaining to regularization of all DRMs is lying with CGM Telecom H.P. Circle and GMTD concerned.
13. This Court on the basis of the supplementary affidavit filed by Sh. Madan Singh disposed of the writ petition on May 22, 2007. The judgment dated May 22,2007 reads thus:
In sequel to order dated May 4, 2007, supplementary affidavit has been filed by Mr. Madan Singh (DET) placing on record various documents including letter dated September 26, 2002 dealing with the regularization of casual labour with temporary status. The names of the petitioners also find mention in the letter dated September 26,2002. It has come in the letter dated September 26, 2002 that on the date of retrenchment (September 15,2001), the petitioners had completed 240 days continuously and were eligible for the grant of temporary status. The respondents are directed to do the needful within a period of 8 weeks from today. While implementing communication dated September 26, 2002, the respondents shall also take into consideration that the petitioners had become eligible for regularization on September 15, 2001. Mr. V.D. Khidta, advocate submits that in the eventuality of petitioners' being regularized with effect from September 15, 2001, petitioners will not claim back wages but they be held entitled to seniority.
The petition is accordingly disposed of with no order as to costs.
14. An LPA was preferred against the judgment dated May 22,2007 and the same was allowed by a Division Bench of this Court on October 23,2007. The operative portion of the judgment dated October 23, 2007 reads thus:
It would have been more appropriate, in view of the facts stated above, if before passing the final order, the learned single Judge had called for the affidavit of the C.G.M. H.P. Telecom Circle. Without doing that, the earlier decision of a senior official rejecting the recommendations of a junior official could not have been set aside on the basis of the affidavit of the same junior officer. We are, therefore, of the opinion that the order of the learned single Judge deserves to be set aside and the matter is remanded to the learned single Judge for decision afresh. The appellants are directed to file an affidavit of the C.G.M. H.P. Telecom Circle or any authority higher than the C.G.M, H.P. Telecom Circle dealing with all the averments made in the writ petition as well as in the supplementary affidavit filed by Mr. Madan Singh within a period of six weeks from today.
Thereafter, the learned single Judge shall hear and decide the writ petition on merits.
15. After the remand, on December 20, 2007, the respondents had prayed for two weeks' time to comply with the judgment dated October 23, 2007. The time was granted and thereafter the supplementary affidavit was filed, which was noticed in order dated January 11,2008. The supplementary affidavit was filed by Sh. Anil Kaushal, Chief General Manager on January 2,2008. The petitioners filed a detailed reply to the supplementary affidavit specifically denying the contents of the same.
16. It is in this backdrop that the case of the petitioners is to be adjudicated upon i.e. whether their retrenchment on August 16,2001 was contrary to law or were they entitled to be regularized under the Scheme, 1989 and left over scheme framed in the year 2001. The petitioners were engaged as daily rated Mazdoors by way of special recruitment on December 28, 1994. This position has been reiterated in communication dated December 17, 1999 (Annexure A-22). The petitioners made representation on the basis of the scheme framed in the year 1989 seeking regularization. When the representation was not decided by the respondents, they approached the Central Administrative Tribunal as noticed above by way of O.A. No. 598/HP/2000. The original application was disposed of with a direction to the respondents on August 1,2000 to decide the representation made by the petitioners. The representation made by the petitioners was decided on July 31, 2001. While deciding the representation, the Chief General Manager, Northern Telecom Project had taken into consideration the details of the days for which the petitioners had worked. As per the calculations drawn by Sh. Ranvir Singh, Chief General Manager, the petitioners were not found eligible since according to him, they did not work for 240 days continuously. This conclusion drawn by the Chief General Manager is ex-facie bad in law. The Chief General Manager has not taken into consideration the applications submitted by the petitioners which were duly certified by the Junior Telecom Officer and Divisional Engineer specifically certifying that the petitioners had worked for more than 240 days during the year 1998. The variance in the conclusions drawn by the Chief General Manager and Annexure A-6 onwards has already been discussed hereinabove. The number of days, the petitioners had worked, were certified by two competent officers under whose immediate jurisdiction, they were working. There was no occasion for the Chief General Manager to come to a different conclusion. There is also variance in the man-days calculated by the Eight Members Committee vis-a-vis other documents placed on record by the petitioners. Annexure A-9 is also at variance with the letter dated January 13, 2001 whereby the Sub Divisional Engineer Telecom District; Hamirpur had given the total number of days up to June 30,1999. It is also evident from communication dated April 29, 1999 (Annexure A-21) that the workmen were appointed in the year 1995 onwards. However, in the working days calculated by the Eight Members Committee, it is shown as most of the workmen were engaged from 1996 onwards. The Divisional Engineer Telecom in his communication dated May 24,2001 addressed to the Deputy General Manager NTP had specifically mentioned that the petitioners had completed 240 days prior to August 1,1998. In para 3 of this communication he has given the names of the petitioners, who were to be regularized. The record compiled by the respondents was also contrary to the payment vouchers. The vouchers placed by the petitioners on record show their regular attendance in a particular month though in the details of the mandays prepared by the Eight Members Committee and Chief General manager, those days were not taken into consideration. To resolve this and to give an opportunity to the respondents to straighten the facts whether the petitioners had completed 240 days in the year 1998, this Court passed the following order on March 7,2008:
In sequel to order dated March 1,2008, the record is produced. Mr. Madan Singh has also assisted this Court along with Mr. Ashok Sharma, advocate. There is variance in the calculations of man-days of the petitioners as it is evident by way of illustration at pages 42, 63 and 73. The respondents are directed to reconcile the documents to establish whether in fact the workmen had competed 240 days or not as required under the scheme. The entire exercise be undertaken at the level of DET within a period of 6 weeks.
17. Since the respondents had not taken this exercise to reconcile the documents, this Court passed the following orders on April 24, 2004, which reads thus:
The respondents were directed on March 7, 2008 to reconcile the documents to see whether in fact the workman had completed 240 days or not as required under the scheme i.e. Annexure P-l. The outcome of the exercise has not been placed on record. In the absence of this exercise undertaken by the respondents the Court is bound to decide this petition on the basis of the material already placed on record. Heard in part. List for continuation on April 25,2008.
18. In view of the overwhelming material placed on record as discussed hereinabove, more particularly, Annexure A-6, it is clear that Vinod Kumar petitioner had completed 365 days in the years 1996, 1997 and 1998 respectively. These calculations were certified by the Sub Divisional Engineer and Divisional Engineer Telecom. Sh. Chaman Lal had completed 91 days in the year 1997 and 365 days in the year, 1998. Sh. Karnail Singh had completed 365 days in three consecutive years i.e. 1996 to 1998. Similarly, Sanjeev Kumar petitioner had completed 245 days in the year 1996 and 365 days in the years 1997 and 1998, respectively whereas Sh. Ramesh Chand petitioner had completed 365 days in the years 1996, 1997 and 1998 consecutively. This conclusion is also substantiated by communication dated May 24, 2001 specifically stating therein that the petitioners had completed 240 days prior to August 1, 1998. Similar is the situation as far as letter dated January 13, 2000 is concerned wherein the Sub Divisional Engineer, Hamirpur had given the details of the man-days, the petitioners had worked for. The same position was reflected vide letters dated April 29, 1999 whereby the initial date of appointment of the petitioners was given without any break. Thus it is conclusively proved by the petitioners that they have worked for more than 240 days in the year 1998 and were thus entitled to be regularized under the 1989 scheme.
19. Once the Court had issued the directions to the respondents to reconcile the various documents and the respondents have failed to do so, the Court is bound to draw adverse inference against the respondents under Section 114 of the Indian Evidence Act. Their Lordships of the Hon'ble Supreme Court in Sriram Industrial Enterprises Limited v. Mahak Singh and Ors. : (2007)2LLJ393SC have held as under at p. 399 of LLJ:
26. Mr. Viswanathan urged that the workmen had produced whatever documents were in their possession, such as, attendance cards, wage slips, bonus slips, provident fund deduction slips from 1991 onwards and since other relevant documents such as attendance registers and muster rolls were with the petitioners, the workmen filed an application for summoning the said documents which were, not however, produced by the petitioner on account whereof the High Court was compelled to draw an adverse presumption in terms of Section 114, Illustration (g) of the Evidence Act.
The said approach, in our view, was erroneous in view of the decision of this Court in the case of U.P. Drugs and Pharmaceuticals Company Ltd. (supra). The petitioner had wrongly described the documents relating to attendance for the years 1991 onwards as far as the respondents are concerned, as being irrelevant and the Tribunal has also accepted the said reasoning. Consequently, instead of drawing an adverse presumption for non-production of the said records, the Tribunal accepted the contention of the petitioner that the workmen had not worked for more than 240 days in the year preceding the date of their termination nor had the workmen filed any proof to show otherwise.
In our view, the High Court adopted the correct approach while deciding the controversy between the parties upon a correct understanding of the law as contained in Section 6-N read with Section 2(g) of the U.P. Act which is applicable to these petitions.
Having correctly interpreted the provisions of Section 6-N of the U.P. Act, the High Court rightly drew an adverse presumption for non-production of the Attendance Registers and the Muster Rolls for the years 1991 onwards. The best evidence haying been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in Range Forest Officer's case AIR 2002 SC 1147 : (2002) 3 SCC 25 : (2002) 2 MLJ 137 were watered down by the subsequent decision in R.M. Yellatty's case (supra) and in our view the workmen had discharged their initial onus by production of the documents in their possession.
20. Now, the Court has to go into the validity of the notices issued on August 16, 2001 and the manner in which they had been issued. The main thrust of the notices dated August 16,2001 is that since the petitioners did not fulfil eligibility criteria as per letter dated April 14, 1998, they could not be granted temporary status and their engagement as; casual labourer was in violation of the ban imposed by the Department of Telecom. It is in these circumstances that the petitioners were issued notices on August 16, 2001. The foundation of the issuance of the notices dated August 16, 2001 is misconceived. The petitioners, as held hereinabove, had completed 240 days in the year 1998 and were required to be regularized as per the scheme i.e. Annexure A-1. The petitioners were engaged on the basis of the communication dated December 28, 1994 (Annexure A-23). This position was reiterated by the officials of the respondents vide Annexures A-22 dated December 17,1999 and A-27 dated January 13, 1999. Since the initial appointment of the petitioners was regular, as discussed hereinabove, they were to be regularized in the year 1999 and there was no occasion for the respondent-corporation to retrench them. The respondent-corporation is an industry within the meaning of Section 2(J) of the Industrial Disputes Act, 1947 as per the parameters laid down by the Hon'ble Supreme Court in Bangalore Water Supply and Sewerage Boardv. A. Rajappa and Ors. : (1978)ILLJ349SC . It was necessary for the management to seek permission of the State Government before effecting the retrenchment of the petitioners since more than 100 workmen are employed in the respondent-corporation.
21. The matter can be viewed from another angle. The Assistant Director General (IE) had sent a communication to all Heads of Telecom Circles on June 14,2000 that the Circles should not resort to recruitment from open market till they have casual labourers/TSMs available for regularization. A Division Bench of this Court while allowing the LPA had directed the Chief General Manager, Himachal Pradesh Telecom to file an affidavit. This affidavit was filed by him as discussed hereinabove. The stand taken in the supplementary affidavit filed by the Chief General Manager is contrary to record. An averment has been made in this affidavit that the petitioners were not in continuous service of the department of Telecom in the year 1998. This averment has been made without checking the record as discussed hereinabove. The plea taken in the supplementary affidavit that the workmen were not engaged through Employment Exchange is untenable since in the scheme framed pursuant to the directions issued by the Hon'ble Supreme Court there was no; such requirement that only those workmen were to be engaged, whose names were sponsored by the Employment Exchanges.
22. The appointment of the petitioners as discussed hereinabove was in accordance with law. It was based on letter dated December 28, 1994. This position has been reiterated by the officers of the respondents themselves. The petitioners were eligible for regularization under the scheme 1989 as well as under the subsequent scheme framed in the year 2001. In fact, it is evident from communication dated September 26, 2002 that the Deputy General Manager had categorically stated in the communication addressed to the General Manager that on the date of retrenchment i.e. August 15,2001, the petitioners had completed 240 days continuously and were eligible for grant of temporary status. If that was so, there was no reason why the petitioners could not be regularized under the 2001 scheme/instructions. The averment contained in this affidavit that the petitioners should have approached the machinery stipulated under the Industrial Disputes Act, 1947 merits no consideration. The petitioners are seeking regularization of their services as well as quashing of their retrenchment effected without following the mandatory provisions of law and the writ petition is maintainable. The workmen had completed even as per Annexure A- 9 more than 240 days preceding their retrenchment and they could not be retrenched without following the mandatory provisions of Section 25(N) of the Industrial Disputes Act. Since it is conclusively proved that the workmen had: completed 240 days in a block of 12 calendar months, they could not be retrenched without the permission of the State Government. It is settled law by now that the High Courts can adjudicate upon those matters also where the alternative remedy may be available, if the detailed facts are not required to be gone into and the infringement of the statutory law is apparent as is in the present case.
23. It has also come in the record that the respondents have regularized the services of those workmen, who had not completed 240 working days in the year 1998. The Chief General Manager has held in his order dated; August 31, 2001 that the matter was being looked under which circumstances these persons were regularized. The respondents had not placed on record any material to suggest that the persons who were not eligible to be regularized their cases were got investigated by any agency or not. It is very intriguing that the persons like the petitioners, who were eligible had been left out and the persons, who were not eligible have been regularized.
24. Mr. Khidta had drawn the attention of the Court to the various orders passed by the Central Administrative Tribunal whereby the directions were issued to consider the cases of; the workmen as per the scheme, though they were juniors to the petitioners. Mr. Khidta referred to order dated September 26,2001. It is clear from the man-days chart of one Sh. Kuldeep Chand/Singh compiled by the Eight Members Committee that he had only completed 183 days in the year 1998. He was also issued retrenchment notice by the respondents on August 16, 2001. The copy of the same is placed at page 236 of the paper book, however, he has been regularized by the respondents on September 26, 2001. The copy of the same is at page 240 of the paper book. It further strengthens the case of the petitioners that there was violation of Articles 14 and 16 of i the Constitution of India by the respondents. Shri Kuldeep Chand/Singh son of Sh. Krishnu Ram was exactly similarly situate vis-a-vis the petitioners. He also according to the man-days chart prepared by the Eight Members Committee has not completed the requisite number of days. He was also retrenched but regularized on September 26, 2001. The respondents have not at all explained why a different yardstick has been adopted by the respondents qua Sh. Kuldeep Chand/Singh and the benefit accorded to him has not been granted to the petitioners. However, the Court hasten to add that the findings of the Eight Members Committee are at variance with other documents placed on record whereby the petitioners had completed more than 240 days even in the year 1998. The example of Kuldeep Chand/Singh has been considered to see whether the petitioners have been dealt with in a just and fair manner by the employers or not. If the persons junior to the petitioners have been regularized, there is no reason why the petitioners could not be regularized. The Eight Members Committee constituted by the respondents had also besides calculating the man-days of the petitioners worked out the man-days of 12 casual labourers, who were similarly situate with the petitioners and were also retrenched along with the petitioners on August 16, 2001. These man-days charts (collectively) have been placed on record by way of Annexure A-30. These workmen whose details have been given as per Annexure A-30 had not completed 240 days as on August 1, 1998. These workmen had been regularized by the respondents, however, the petitioners, whose cases were also to be considered on the basis of the proforma application Annexure A-6, were not considered for regularization. This amounts to invidious discrimination. The respondent being a State within the meaning of Article 12 of the Constitution of India cannot discriminate the similarly situated persons.
25. Alternatively, at least the cases of the petitioners were to be considered as per the left out regularization scheme/instructions framed in the year, 2001. This observation has been made on the basis of the communication dated August 7, 2001 whereby the Deputy General Manager had informed the Chief General Manager about the initial date of engagement of the petitioners and their man-days. These man-days have been calculated by the Committee on July 23, 2001 by verifying the paid vouchers from AC-II bills. The names of the petitioners figure at Sr. No. 15, 14, 13, 16, 17 and 18 respectively. The letter dated September 26,2002 which is at page 176 of the paper-book has also been overlooked by the respondents resulting in grave miscarriage of justice as far as the cases of the petitioners for regularization is concerned.
26. The fact that the petitioners might have received the compensation money will not defeat their fundamental and legal rights as held by the Hon'ble Supreme Court in Nar Singh Pal v. Union of India : (2000)ILLJ1388SC wherein their Lordships have held that the receipt of the money by the workmen will not preclude to enforce legal and fundamental rights. Their Lordships have held as under at p. 1391 of LLJ:
12. The Tribunal as also the High Court, both appear to have been moved by the fact that the appellant had encashed the cheque through which retrenchment compensation was paid to him. They intended to say that once retrenchment compensation was accepted by the appellant, the chapter stands closed and it is no longer open to the appellant to challenge his retrenchment. Thus, we are constrained to observe, was wholly erroneous and was not the correct approach. The appellant was a casual labour who had attained the 'temporary' status after having put in ten years of service. Like any other employee, he had to sustain himself, or may be, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchment compensation paid to him, which was only a meagre amount of Rs. 6,350/- was utilised by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor there any estoppel against the exercise of Fundamental Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his constitutional rights. Such an order cannot be sustained.
27. In view of the above discussion, the writ petition is allowed. The retrenchment of the petitioners effected on August 16, 2001 vide Annexure A-10 and similar notices issued to the petitioners are quashed and set aside. The retrenchment of the petitioners with effect from August 16,2001 is declared void ab initio. The petitioners will be deemed to be in continuous service with the respondents with all consequential benefits. The respondents are directed to consider the cases of the petitioners for regularization under Annexure A-l on the premise that they had completed requisite number of days as observed by the Court with all consequential benefits.
28. It is also declared that the petitioners were eligible to be considered for regularization under the left out scheme/instructions issued in the year 2001 as well. The entire exercise will be completed by the respondents within a period of 6 weeks from today. There shall be no order as to costs.