ABHAY SHANKAR KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THERE are 15 Petitioners in this writ application who were engaged as Khalasies on daily wages in and after August 1988 in Biharsharif Division of Public Health Engineering Department of the State of Bihar allegedly to meet the requirement of the department from time to time. The Petitioners have challenged and sought quashing of decision of the Government issued on 20.12.99 contained in Annexure -14 by which their representations were rejected and a decision was taken to retrench them from service after complying with Section 25 -F of the Industrial Disputes Act. The Petitioners have also challenged the consequent notice dated 30.12.99 contained in Annexure -15 and the final order of retrenchment dated 31.1.2000 as contained in Annexure 19.

(2.) THE relevant facts in short are that within a few months of their engagement on daily wages a policy decision was taken by the Government on 4.4.89 to terminate all the daily wage employees appointed in the department after 1.1.88. In spite of objection by the Executive Engineer to such policy, the Secretary of the Department on 12.6.89 (Annexure -4) insisted on strict implementation of the said policy and as a result services of the Petitioners were terminated on 16.6.89. Petitioners challenged the termination order through a writ petition bearing C.W.J.C. No. 6248/89. In the said writ application interim order of status quo was passed and the case was admitted for hearing on 6.12.89. It appears that during the pendency of the writ Petitioner on 8.2.1990 through Annexure -9 a policy decision was taken to take back the services of such employees who were working against sanctioned posts and by order dated 24.2.90 the Petitioners were taken back in service. Thereafter the Chief Engineer on 10.4.91 issued an order canceling the order dated 24.2.90 by which Petitioners had been taken back in service but on account of an interim order of this Court dated 4.7.91 passed in the pending writ application the Petitioners continued in service. The said writ application was finally disposed of by order dated 6.5.99 (Annexure -12). A perusal of the said order shows that a ground was taken on behalf of the Petitioners ' that similarly situated other daily wage workers had been taken back in service by the Respondents and hence there was hostile discrimination practiced against the Petitioners. On this submission the court did not give any finding of its own but disposed of the writ petition by giving the Petitioners opportunity to make a detailed representation giving particulars of such cases in order to substantiate their claim that similarly placed persons have been subsequently taken back and (sic) continuing. In case of such a representation being filed within one month the Respondent No. 3, the Chief Engineer was directed to make a detailed enquiry and if the Respondents found the facts alleged by the Petitioners to be true then in that case the Petitioners were to be entitled to the same and similar treatment and in that case Petitioners ' continuance would not be affected by the impugned order.

(3.) LEARNED Counsel for the Petitioners first submitted that the impugned order contained in Annexure -14 should have been passed by the Engineer -in -Chief, Respondent No. 3 in the earlier case who was directed to enquire into the representations of the Petitioners and therefore rejection of their representation by other authority of the Government is bad in law. This ground has not been pleaded in the writ petition but it is mentioned at one place in the show cause filed in response to the notice dated 30.12.99 (Annexure -15). In the aforesaid circumstances I had directed the State Counsel to produce the relevant file for perusal of this Court. The file was produced and with reference to the same learned Counsel for the State submitted that since during the relevant time there was no person holding the office of Engineer -in -Chief -cum Special Secretary, hence the matter was routed through the Chief Engineer and after enquiry the final decision was taken on the representations of the Petitioners by the Secretary of the Department and the impugned order contained in Annexure -14 was issued accordingly. In the aforesaid facts I do not find any illegality in the action of the Respondents. Further on a very careful perusal of this Court 'sorder dated 6.5.99 it is obvious that although the representation was required to be made to the Engineer -in -Chief -cum -Special Secretary, Respondent No. 3 in that case and he was directed to make an enquiry with regard to such representation but the authority to arrive at relevant findings was given in general terms in favour of the Respondents and hence I do not find any illegality in Annexure -14 on the ground noticed above.