CIVIL WRIT JURISDICTION CASE No.4174 OF 1997 In the matter of an application under Article 226 of the Constitution of India. … 1. Ramanuj Prasad Gupta, son of Shree Shukan Prasad Gupta, village Rampur, PS Paliganj, Dist.Patna, at present Watchman, Building Management Branch, Biscomaun Head Office, Patna. 2. Anil Kumar, son of Late Mahabir Singh, village Sarshoo, PS Antari, Dist. Gaya, at present posted as Typist, Biscomaun Head Quarter, Patna. 3. Deen Bhandu Prasad,son of Late Jagganath Sahay, posted as Watchman, C.C.A. Depot, (Biscomaun), Hajipur, resident of Hajipur, Dist. Vaishali. 4. Kalicharan Sah, son of Late Jitan Sah, village Bhitbhairwa, PS and Dist. Gopalganj, at present posted as Peon, Central Accounts Branch, Biscomaun, Head Quarter, Patna. 5. Ramjatan Singh, son of Late Yadunandan Singh, village Nehru Nagar, PS Patliputra, Patna, at present Steno, Establishment Section, Biscomaun, Patna. 6. Ramchandra Singh, son of Late Ramdahiri Singh, village Bhushaula Danapur, PS Phulwarisharif, Patna, working as Peon, Fertilizer Section, Biscomaun Head Quarter, Patna. 7. Sheo Prasad Singh, son of Late Babuchand Singh, village Tandapar, PS Ghosi, district Jehanabad, posted as Peon, Biscomaun, Patna .. .. Petitioners. Versus 1. BIHAR STATE COOPERATIVE MARKETING UNION LTD., West Gandhi Maidan, Patna through its Administrator. 2. The Administrator, Biscomaun, West Gandhi Maidan, Patna. 3. The Secretary, Bihar State Cooperative Marketing Union Ltd., West Gandhi Maidan, Patna. 4. The State of Bihar through Chief Secretary, Secretariat, Patna .. .. Rrespondents. … For The Petitioners : Mr. Madhuresh Prasad and Mr.Shyam Sundar Sinha, Advocates. For The S t a t e : Mr. Upendra Kumar, J.C. to A.A.G. VIII. For the Biscomaun : Mr.Rajesh Prasad Choudhary, Advocate. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A.KHAN,J. The petitioners are aggrieved by their termination order, dated 30.9.1996 which was published in the news paper on 2.10.1996.. 2. Eleven persons were terminated from service on the ground that they were on strike and had caused great loss to Bihar - 2 - State Cooperative Marketing Union Limited (‘the Biscomaun’, for short) as they had sabotaged the use of essential services, such as, electrical connections, water connections and had also prevented the use of lift in the Biscomaun Bhawan. It is common knowledge and is also indicated in the order that the Biscomaun Bhawan houses not only the office of Biscomaun but also the State Bank of India, Indian Bank, Passport office (at that relevant point of time) and other offices of the State Government. All the offices were affected and as such the aforesaid eleven persons were terminated from service suo motu vide the aforesaid notification published in the news paper. 3. The main contention raised on behalf of the petitioners is that the petitioners’ services could not have been terminated without following the principles of natural justice. It is an admitted fact that no enquiry, show cause or departmental proceeding was initiated against the petitioners. It also appears that these petitioners were not available to conduct such proceedings and as such the termination order on the grounds mentioned aforesaid had to be notified in the news paper. At the very out set it may be clarified that in extreme conditions an order of termination may be passed in this manner, but the reasons for passing the order should be indicated in the order of termination. In the present case no reason is mentioned for terminating the petitioners through publication in the news paper although it can be gathered from the circumstances. 4. Out of eleven persons who were terminated, three persons, namely, Rang Bahadur Singh, Rajendra Prasad Singh and - 3 - Sohan Kumar were re-instated in service after they made an apology to the concerned authority some time in April, 1997. The petitioners, however, were not meted out the same treatment and as such it has been submitted that the action of the Administrator, Biscomaun is discriminatory in nature. 5. Learned counsel for the petitioners has referred to Annexure 5 which is an agreement entered into between the Secretary, Biscomaun, holding additional charge of Deputy Managing Director- cum-Special Officer (Administrator) and the Incharge Establishment, Biscomaun with the representative of the Employees Union including two petitioners who are before this court. 6. The said strike by the employees of the Biscomaun was in view of the fact that they were being deprived of their salary since October 1995 and as such it is submitted that there was an occasion for them to be on strike. The agreement also indicates that the strike was due to non-payment of salary to the employees of the Biscomaun and one of the terms of the agreement specified that payments will be made to the employees in two instalments. Clause 6 of the agreement indicates that the authorities would make efforts to withdraw the order of termination by 30.11.1996. Clause 7 of the agreement indicates that departmental proceeding would not be initiated against those employees who were on strike. This agreement is, dated 9.11.1996. A copy of the agreement was also forwarded to the Deputy Labour Commissioner who vide memo no. 3853, dated 14.12.1996 addressed a letter to the Administrator of Biscomaun to implement the said - 4 - agreement. All these actions were taken after the publication of termination notice, dated 2.10.1996. The actual date of order of termination was 30.9.1996. 7. The stand of the Biscomaun in its counter affidavit is that the petitioners went on strike and began to demonstrate out side the offices of the Central Government, State Government and the Biscomaun and while doing so created havoc and stopped the essential supplies, such as, electricity, water etc. It is specifically stated that not only the work of Biscomaun was disturbed but the work of other offices in that building came to a stand still and despite request to the petitioners by the management of the Biscomaun, the petitioners continued with their activities. It is submitted that the petitioners did not take any step to resolve the matter, rather, they continued to cause disruption and until the order of termination was issued, no steps were taken by the petitioners to stop their activities. 8. It has also been stated on behalf of the Biscomaun that its business operation started diminishing leading to financial crunch whereas the establishment cost of Biscomaun rose and was higher than its income. The Administrator had requested the Government for rehabilitation programme of employees of the Biscomaun and the Government had released Rs. 127/- crores as loan for payment of salary. The salary of employees of Head office was due from April 1996 whereas the salary of field staff was due from October 1995. 9. It has been submitted on behalf of the Biscomaun that due to the aforesaid reasons Biscomaun was not in a position to pay - 5 - the salary to its employees. Recently the Biscomaun has terminated a number of persons working as 4th grade employees on the ground that the Biscomaun cannot afford to pay the salary of its employees from 1995 onwards as they are in deep financial distress struggling to survive. The employees so terminated moved this court challenging the decision of the Biscomaun in CWJC No. 12645 of 2006 and its analogous cases. This court did not interfere with the order of termination on the ground that it would not be proper for the court to put any further financial burden on Biscomaun considering its financial position. These facts have been high-lighted by the counsel for the Biscomaun in order to persuade this court to consider the fact that even if the petitioners were to be reinstated, this court should not order payment of any back wages to them. It has also been submitted in the context that it may be that these petitioners did not join back or stop their agitation; however, there is no pleading to substantiate such a claim. 10. It is virtually not disputed that the petitioners were not given any notice before their order of termination. Given the circumstances and the extreme conditions and events which led to their termination, this court would perhaps feel hesitant to hold that the termination order should be set aside by this court even if no reasons were given for issuing the said order of termination by a notification in the news paper. Strangely the facts indicate that after the notification was issued, some of the persons terminated were reinstated whereas these petitioners for some reason were not given - 6 - the same treatment which leads this court to hold that the order of termination is bad not so much for the reason that the petitioners were given no opportunity to be heard in the matter but on the ground of discrimination. 11. In the result, the order of termination, dated 30.9.1996 published in the news paper on 2.10.1996 is quashed with a direction to the Administrator, Biscomaun, West Gandhi Maidan, Patna to hold a departmental proceeding against the petitioners after giving due notice to the petitioners and complete the process within a period of three months on receipt / production of a copy of this order. The petitioners would be entitled to receive their current salary. 12. Counsel for the petitioners has also prayed that this court should order that petitioners should be paid arrears of salary due to them since April, 1996 and October, 1995 as far as it concerns petitioner no.3, as also the salary which would be due to them as a consequent of quashing the order of termination. For this purpose learned counsel for the petitioners referred various judgments of the apex court reported in the case of Lily Begum vs. Joy Chandra Nagbanshi, (1994) 2 SCC 39. In this case the court had upheld the order of the High court and granted 60% of back wages to persons who had been reinstated in service in lieu of an award in their favour by the labour court. In the case of Manorma Verma vs. State of Bihar, (1994) Suppl. 3 SCC 671, theSupreme court granted back wages to the petitioner on the ground that her order of termination was illegal. In the case of Commissioner, Karnataka Housing Board vs. C. Muddaiah, - 7 - (2007) 7 SCC 689,the question was with respect to promotion of the petitioner. The petitioner claimed that he was illegally not granted promotion. Thus the apex court held that by depriving him of the said benefit he was illegally not permitted to work and there was direction of the court to pay the dues to which the petitioner was entitled. Thus, in all the cases relied upon by learned counsel, the facts were different, none of the cases related to termination as a result of a departmental proceeding. 13. In the peculiar facts of this case, this court does not think it proper to order for payment of salary for the period for which the petitioners did not work., They will, however, be entitled to be reinstated and receive the current salary. The petitioners will also be entitled to receive their back wages for the period they had worked and till the order of termination was issued. 14. In the result, this writ petition is allowed with the aforesaid observations. Patna High Court, February 25, 2009, A.F.R. / Haque. (Sheema Ali Khan,J)