IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 2 OF 2011 (S/S) Mahendra Singh and others. ………Petitioners. Versus Uttarakhand Forest Development Corporation and others. ….…..Respondents. Present: Mr. J.S. Bisht, Advocate for the petitioners. Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. V.K. Kaparwan, Advocate for the respondents. Hon’ble Sudhanshu Dhulia, J.(Oral) Heard Mr. J.S. Bisht, Advocate for the petitioners and Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. V.K. Kaparwan, Advocate for the respondents. The petitioners are employees of Uttarakhand Forest Development Corporation. They are aggrieved by order-dated 21.9.2010 and order dated 13.12.2010 passed by Regional Manager, Uttarakhand Forest Development Corporation, by which it has been ordered that the petitioners shall be paid only such wages which were being given to them at the time of their retrenchment. These employees of Uttarakhand Forest Development Corporation have a chequered history, an apprisal of which only confirms the allegation in the petition that there has been a total apathy on the part of their Employer which is apparently a welfare State! These employees, who are at the lowest rung of their service have been involved in this protracted litigation where even after repeated orders passed by the High Court and the Hon’ble Apex Court in their favour, no relief is in sight for the them. The facts of the case are that all the petitioners who were working in the Forest Department were retrenched 2 by their employer. Consequently, all of them moved a reference before the Labour Court under the U.P. Industrial Disputes Act. The Labour Court in the said reference gave its finding against the workers (i.e. the present petitioners) and held that there was no anomaly in the retrenchment of the petitioners. Aggrieved, the petitioners approached the High Court of Judicature at Allahabad by filing a writ petition which stood transferred after the reorganisation of the State in view of Section 35 of the Uttar Pradesh Reorganisation Act, 2000. A learned Single Judge of this High Court gave a decision in favour of the petitioners and held the retrenchment of the petitioners was bad while setting aside the order of the Labour Court. The operative portion of the order dated 21.8.2003 is as follows:- “50. The validity, legality or illegality, of a retrenchment order referred for adjudication does not depend on the factor that under which provision the reference is made, i.e., either under Section 4-K of the U.P. Industrial Disputes Act or under Section 10 of the Central Act. The validity of the retrenchment is to be judged whether the retrenchment is in accordance with the provisions of either 6-N of the U.P. Industrial Disputes act which is para materia with Section 25-F of the Industrial Disputes Act or is in accordance with Section 25-N of the Industrial Disputes Act is attracted in the facts and circumstances of the case. As it has been held in this judgement that in the facts and circumstances of the case, 25-N of the Industrial Disputes Act was attracted, therefore, the validity of the retrenchment order is to be adjudged solely by determining the question as to whether the 3 provisions of Section 25-N of the Industrial Disputes Act were complied with or not. 51. Thus, the finding recorded by the Labour Court is incorrect and is liable to be set aside and is hereby set aside on this point also. 52. It is not disputed that the retrenchment was made without complying the provisions of Section 25N of the Industrial Disputes Act, which is directly attracted in the facts and circumstances of the present case. The effect of the aforesaid conclusion is that the retrenchment of such workmen without following the condition precedent to retrenchment as provided under Section 25N of the Industrial Disputes Act are necessarily treated to be void and have no legal effect and the employer-employee relationship between the parties did not get snap (see Lal Mohammad v. Indian Railway Construction Company Ltd.) 53. The writ petitions are allowed. The findings of the Labour Court that Section 25N is not attracted but only 6N was attracted, is also set aside for the reasons recorded above and the orders of retrenchment of the petitioners being in violation of Section 25-N of the Industrial Disputes Act, are also quashed. The petitioners shall be put back on duty and shall be paid salary/wages. There will be no order as to costs.” Against the order of the learned Single Judge, the Uttarakhand Forest Development Corporation preferred an SLP before the Hon’ble Apex Court. After granting leave to the appellant, the Hon’ble Apex Court finally dismissed the appeal of the Corporation. The Hon’ble 4 Apex Court in its judgment (reported in (2007) 2 SCC 112 Uttaranchal Forest Development Corporation and another Vs. Jabar Singh and others) demarcated the respondents before it in two ways. Ones who had straightway approached the High Court in writ petition were not granted any relief, and those who had first approached the Tribunal and then went to the High Court (like the present petitioners) were granted relief in Paragraph 46 of its order, which reads as under: “46. On the other hand, the respondents in civil appeals arising out of special leave petitions as detailed infra who approached the Tribunal and the High Court are entitled for the relief of reinstatement, back wages and continuity of service in view of our finding that the appellant Corporation is an industrial establishment and that provisions of Section 25-N of the Industrial Disputes Act are attracted.” The Uttarakhand Forest Corporation though never seems to have given up as it filed a review petition, which was dismissed by the Hon’ble Apex Court on 20.11.2007. Thereafter again a Curative Petition was filed, which was again dismissed on 11.11.2008. Meanwhile, an order was passed by the Regional Manager, the Uttarakhand Forest Development Corporation, wherein it was stated that in view of the orders of the Hon’ble High Court, the petitioners are being given the salary to the post of Scaler/Chaukidar, including the dearness allowance payable to such salary. The order further shows that the concerned Authority i.e. the Regional Manager had taken permission from the Managing Director of the 5 Uttarakhand Forest Development Corporation. Now the petitioner started getting a consolidated amount of ` 6,029/- per month since August 2007, which they continued to get when all of a sudden vide order dated 21.9.2010, which was merely a telegraphic order, this amount was withdrawn and instead an amount of ` 1,744/- per month was fixed to be given to the petitioners. This order was challenged by the petitioners before a learned Single Judge of this Court by filing a writ petition being Writ Petition No. 956 of 2010 (S/S), which was disposed of by a learned Single Judge on 22.10.2010 with the direction to the concerned Authorities to dispose of the representation of the petitioners after giving them an opportunity of hearing. The reference was disposed of by passing order dated 13.12.2010 whereby the earlier order dated 21.9.2010 has been upheld on the logic that the petitioners are only liable to be paid ` 1,744/- per month and the amount of ` 6,029/- per month was being paid to them due to inadvertence. It has been further stated that the petitioners are not in a regular service and therefore, they were only liable to be given an amount, which was payable to them prior to their agitation before the Labour Court or High Court which is an amount of ` 1,744/- per month. This is the reasoning given in the impugned order. The petitioners have challenged this impugned order by filing this writ petition. The learned Senior Advocate appearing for the Uttarakhand Forest Development Corporation Sri Rajendra Dobhal has stated that the petitioners had been reinstated in service and the amount which was earlier being given to them i.e. ` 6,029/- per month was given to them due to inadvertence and they have now rectified 6 their mistake, therefore, now ` 1,744/- per month, which is an actual amount liable to be paid to the petitioners, is being paid to them. Learned Senior Advocate further stresses the fact that the petitioners were not working on a regular post but they were only working on daily rate basis and they are not liable to receive any salary. This argument of the counsel appearing for the Uttarakhand Forest Development Corporation is wholly misconceived. The most important phrase used by the Hon’ble Apex Court while disposing of the case was that “continuity of service” of the respondents (i.e. the petitioners before this Court) shall be maintained. The very fact that the Hon’ble Apex Court has used the word “continuity of service” it would imply that the petitioners would be deemed to be in “service”. This service cannot be treated to be on daily rate basis. The impugned orders dated 21.9.2010 and 13.12.2010, therefore, have been passed without any justification and are liable to be quashed and are hereby quashed. A mandamus is being issued to the Managing Director, Uttarakhand Forest Development Corporation to give salary at the rate of ` 6,029/- per month along with the arrears to the petitioner within a period of six weeks from the date of production of a certified copy of this order before him. The petitioners would also be entitled to all such benefits as have accrued to them since they are to be treated in continuous service since 1995. The writ petition is accordingly allowed. No order as to costs. (Sudhanshu Dhulia, J.) 18.5.2011 Rathour