IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.109 of 1997 1. TEJAN MIAN, son of Panchu Mian, resident of village- Haiwat Ganj, English, Police Station Medni Chowk, District Munger. 2. Masudan Ram son of Ram Saran Ram, resident of village Khawa, Police Station Medni Chowk, District Munger. 3. Dashrath Yadav, son of late Shiv Ram Yadav, resident of village Haiwatganj Naya Tola, Police Station Medni Chowki, District Munger. 4. Kailash Sao, son of late Bansi Sao, resident of village Khawa, police station Medni Chowki, District Munger. 5. Kishore Kumar @ Kishore Kumar Vishwakarma, son of Shri Babu Chandra Mistri, resident of Mohalla Lallu Pokhar (Kanker Chat) Police Station kashin Bazar, District- Munger. 6. Mohan Yadav son of Laddu Yadav, resident of village Dakrapul Navtolia, Police Station Safiabad, District Munger. 7. Shankar Ram son of Ram Saran Ram, resident of village Khawa, Police Station Medni Chowki, District Munger. 8. Shiv Shanker Paswan, son of Dhuneshar Paswan, resident of village Haiwatganj, English, Police Station, Medni Chowki, District Munger. 9. Kishore Kumar Mandal, son of Hriday mandal, resident of village Heridiyara Navtolia, police station Safiabad, District Munger. 10. Gandhijee Sao, son of Shri Mahavir Sao, resident of village Parham, police station Ramnagar, District Munger. 11. Manilal Mandal son of Laxmi Mandal, resident of village Dilawar Purwara, Police Station Kotwali, District Munger. … Petitioners. Versus 1. THE STATE OF BIHAR, through the Secretary, Water Resources Department, Government of Bihar, Sichai Bhawan, Patna. 2. The Secretary, Water Resources Department, Government of Bihar, Patna. 3. The Engineer-in-Chief, (Central) Water Resources Department, Government of Bihar Patna. 4. The Chief Engineer (Mechanical) , Water Resources Department, Government of Bihar, Old Secretariat, Patna. 5. The Superintending Engineer ( Mechanical) Water Resources department, Government of Bihar Mithapur Circle, Patna. 6. The Executive Engineer (Mechanical), Water Resources Department, Government of Bihar (Mechanical Division) pani Tank, Mirjanhat, Bhagalpur. 7. The Assistant Engineer (Mechanical) Water Resources Department, Government of Bihar, Ganga Pump Canal Project, Mechanical Sub-division No.4, Dakaranala, Munger. 8. Junior Engineer, Field Machinery, Sub-division Munger. … Respondents. 2 ----------- For the petitioner :Mr. Shanker Kumar Thakur, Adv. For the State : Mr. Ranjan Kumar, A.C. to AAG-4 (Mr. J. P. Karn) ----------- 5. 19.05.2011 Heard learned counsel for the petitioner and learned counsel for the State. In the writ application, the 11 petitioners had made following prayer:- “(a) The order of the respondent no. 4 as contained in letter no. 65 dated 12.1.96 by which he has rejected the representation filed on behalf of petitioner for their regularization. (b) the termination of the petitioners no. 3 to 11. The petitioners further pray for issuance of a writ in the nature of mandamus, commanding the respondents to regularize the service of petitioners and to allow them to work utill such regularization. The respondents be further commanded to pay the petitioners the wages equal to the salary of regular employee, for the period the petitioners have worked.” At the out set, learned counsel for the petitioner has submitted that for the present he is not going to press the relief of regularization of service of petitioners and would confine his submissions only with regard to the relief of termination of service of 3 petitioner nos. 3 to 11. That being so, the writ application so far it relates to Tejan Mian (petitioner no. 1) and Masudan Ram (petitioner no. 2) is hereby dismissed inasmuch as their relief is confined only to regularization. As with regard to the case of termination of service of rest of nine petitioners, namely, Dashrath Yadav, Kailash Sao, Kishore Kumar @ Kishore Kumar Vishwakarma, Mohan Yadav, Shankar Ram, Shiv Shankar Paswan, Kishore Kumar Mandal, Gandhijee Sao and Manilal Mandal (petitioner no. 3 to 11), the only submission that has been advanced with full force by Mr. Shanker Kumar Thakur, the learned counsel for the petitioners, is that such order of termination of service of the petitioner is in violation of the provision of Section 25 F of Industrial Disputes Act (hereinafter referred to as I.D. Act). In this regard, reliance has been place on a certificate given by the Assistant Engineer of Mechanical Division No. 4 Munger showing that aforementioned nine petitioners with few others had completed their 4 continuous service of more than 240 days in between 1.1.1988 to 30.11.1989. Learned counsel for the petitioners has in this regard also placed reliance on the photo copy of certain pages of the attendance register to support the petitioner’s continuous working for a period of more than 240 days. Learned counsel for the petitioner has accordingly submitted that as the mandate of one month’s notice or salary in lieu thereof with retrenchment benefit in terms of section 25 F was not paid to the petitioners, their order of termination of service being in teeth of Section 25 F of I.D. Act is fit to be set aside. On the other hand, counsel for the State with the help of counter affidavit and supplementary counter affidavit would submit that the appointment of the petitioners was never made by any competent authority and by following the prescribed procedure and as such when there was also no sanction of post for the engagement of petitioners on daily wages, they had no right either for being regularized in service or for being given notice under Section 25 F of I.D. Act. In this regard, he has also referred to the counter 5 affidavit wherein the respondent have specifically controverted the claim of the petitioners to have completed for more than 240 working days and thus the provision of Section 25 F of I. D. Act also not being applicable to them. Counsel for the State has also drawn attention of this Court towards supplementary counter affidavit questioning the veracity and correctness of the attendance register produced by the petitioner by taking a specific plea that there was no prevalent practice in the department for maintaining attendance register for casual labour/daily wages labour/muster roll labour. In this regard, the respondents have also explained that there are two prevalent methods for making payment of such labourers engaged on muster roll basis; firstly where the bill is prepared by the Junior Engineer Incharge of the concerned project on receipt in Form No. 139 in Mechanical works where volumetric measurement is not possible, indicating number of days and rate on the basis of actual engagement and the payment is accordingly made and secondly on the basis of preparation of bill in the muster roll form on 6 daily labour report as with regard to volumetric work performed in the case of civil work. It has also been stated in the supplementary counter affidavit that Junior Engineer is not entitled to open an attendance register and therefore such attendance register produced by the petitioner cannot be treated to be authentic record of their continued working for a period of 240 days or more. In the considered opinion of this Court, all these disputed questions of fact normally could have led to dismissal of this writ petition in the light of law laid down by Full Bench of this Court in the case of Dinesh Prasad Singh and Ors. Vs. State of Bihar and Ors, reported in 1984 PLJR 1002 inasmuch as when the respondents have denied the completion of 240 days of working of the petitioners by questioning the certificate and attendance register produced by them, the writ application involving such thicketed disputed question of fact would not be maintainable in view of statutory alternative remedy under Section 10 of the I.D. Act. This Court however considering the 7 aspect that this is a second round of litigation brought by some of the petitioners who had earlier also filed CWJC No. 4376 of 1990, which was disposed of on 29.4.1994 by remitting the matter back to the authority to examine the grievance of the petitioners for regularization of their service and the authority had rejected such representation of the petitioners by passing the impugned order 8.1.1996, would deem it expedient in the ends of justice to get this issue of validity of their order of termination examined under the statutory remedy provided under Section 10 of the I. D. Act. This Court cannot lose sight of the fact that this writ application of the year 1997 after being admitted has remained pending for more than 14 years. This Court in fact could have adjudicated the issue but when the basic facts of the working of the petitioners for 240 days is itself in serious dispute which cannot be decided without leading of evidence by both the parties, it would find it necessary to get the matter adjudicated by a competent Labour Court or Industrial Tribunal under Section 10 of I.D. Act. Counsel for the parties in this background 8 have agreed that if the petitioners would file their claim by way of representation before the competent authority, namely, the Chief Engineer, Mechanical of Water Resources Department, Government of Bihar, Patna who has passed the impugned order dated 12.1.1996 as contained in Annexure-12, he would place the matter before the Labour Employment Department for its being referred to Labour Court/ Industrial Tribunal in terms of Section 10 of I. D. Act and a reference also in this regard will be made by the Labour Department within a period of three months from the date of filing of the representation / memorandum to be treated as their charter of demand in terms of the I.D. Act. On reference being made by the State Government in terms of Section 10 of the I.D. Act, the concerned Labour Court / Industrial Tribunal will answer the reference by giving its award within next nine months of the date of making reference so that the whole exercise would itself come to an end within a period of a year of filing of the representation or charter of demand by the petitioners no. 3 to 11. 9 It goes without saying that if the claim of petitioners no. 3 to 11 is allowed by the Industrial Tribunal / Labour Court, they would also be entitled for the consequential relief as admissible in law. With the aforementioned observations and directions, this writ application so far it relates to petitioner nos. 3 to 11 is, accordingly, disposed of. kanchan (Mihir Kumar Jha, J.)