THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NOS.9807, 9931, 9932, 9994, 10432, 10436, 10537, 10555, 10556, 10576, 10585, AND 10590 OF 2004 COMMON ORDER Heard Sri A.K.Jaya Prakash Rao, the learned counsel for the petitioners and Assistant Government Pleader for Government Pleader for Command Area Development, for the respondents. 2. All the writ petitions are filed for a writ of Mandamus declaring the impugned proceedings of retrenchment dated 2.6.2004 issued by the 3rd respondent – The Executive engineer, N.S.L.C., (O& M) Division, Tekulapally, Khammam, as illegal and arbitrary and violative of Sections 25-F and 25-G of the Industrial Disputes Act, 1947 (for short ‘the Act’) and Rules 78 and 79 of the A.P. Industrial Disputes Rules, 1958 (for short ‘the Rules’) and consequently grant all the benefits on par with their juniors. 3. As the subject matter in all these writ petitions is one and the same, they are being disposed of by this common order, for the sake of convenience. 4. The petitioners in all these writ petitions except in W.P.No.10556 of 2004, were appointed as winch operators and pump operators respectively. The petitioner in W.P.No.10556 of 2004 was appointed as medical attendant. All the petitioners are appointed in the Andhra Pradesh State Construction Corporation Ltd., between the years 1975 and 1977. The present respondents are the successors in interest of the A. P. State Construction Corporation Ltd. The services of all the petitioners were retrenched with effect from 6.8.1979. Aggrieved by the said retrenchment, the petitioners raised I.D.Nos.284/1995, 283/1995, 26/1995, 255/1995, 24/1995, 183/1994, 11/1995, 212/1995, 250/1995, 43/1994, 15/1995 and 241/1995. All the I.Ds. were filed on the file of Labour Court Warangal. By passing individual awards, the Labour Court set aside the orders of termination and directed the respondents to reckon the seniority of the petitioners as per the seniority list of the year 1979. In W.P.No.10556/2004, the petitioner filed I.D.No.250/1995 and the Labourt Court, Warangal set aside the termination and directed that the seniority of the petitioner has to be reckoned as per the seniority list placed at serial no.1. Aggrieved by the awards of the Labour Court, the respondents filed writ petitions before this court in W.P.Nos.23011, 23003, 23004, 23006, 23010, 23904, 23012, 18847, 18907, 23008 and 23009 of 1999 and 6671 of 2000. By common judgment dated 28.8.2000, this court dismissed the writ petitions. Challenging the same, the respondents carried the matter in writ appeals in W.A.No.1160 of 2001 and batch. By order dated 10.8.2001, the writ appeals were dismissed. The matters were further carried to the Surpeme Court and the same ended in dismissal. Thus the order of the Labour Court directing reinstatement along with continuity of service and consider the seniority list of the year 1979, has attained finality. As the respondents have not reinstated the petitioners, petitioners filed writ petitions before this court and they were reinstated into service and again their services were retrenched. Aggrieved by the same, the petitioners filed writ petitions and this court allowed the writ petitions and again they were reinstated into service. Again by the impugned proceedings dated 2.6.2004, they were retrenched. Hence, the present writ petition. 5. The grievance of the petitioners is that the services of their juniors were regularized, but their services were not regularized and on the other hand they were retrenched in violation of the statutory provisions of the Act and the Rules. In all the writ petitions, the petitioners have given the names of juniors who were regularized, by overlooking their seniority. 6. The respondents filed counter affidavit and stated that as per the award in the I.Ds., the Tribunal directed that the petitioners shall be reinstated into service as fresh recruits and to treat and consider the seniority of the petitioners as per the seniority list of the year 1979 if any regular appointments were made after the retrenchment of the petitioners, without back wages and other attendant benefits. The further case of the respondents is that no recruitments were made and that thereafter the department took the view that these petitioners, being treated as fresh recruits, should take the last position in the seniority list and were reinstated into service as NMRs and were again retrenched as per the orders of the Government in G.O.Ms.No.912 I and CAD Department dated 17.12.2002 read with Government Memo No.36180/Estt.I/2001-9 dated 17.12.2002. With these averments inter alia the writ petitions were sought to be dismissed. 7. The learned counsel appearing for the petitioners while reiterating the writ averments, further submitted that the Labour Court in the awards referred to in the writ petitions, has granted reinstatement to the petitioners and directed to take their seniority as per the seniority list of the year 1979. The said awards of the Labour Court has become final and without taking the seniority of the petitioners from the year 1979, the respondents have retrenched the petitioners and further regularized the services of the junior to the petitioners. He submitted that as per the impugned order, the petitioners were declared surplus on the ground that there is no work. He stated that the juniors to the petitioners were being continued and their services were also regularized. He contended that as per Section 25(G) of the Industrial Disputes Act, while undertaking retrenchment, the last workman in the relevant category, has to be retrenched first. But in the present cases, the juniors were being continued and their services were also regularized and seniors are being retrenched in violation of the statutory provisions. Therefore, he contended that the retrenchment of the petitioners is in violation of the Section 25(G) of the Act. He contended that the awards of the Labour Court filed in the year 1995, which were filed challenging the initial retrenchment on 6.8.1979 has become final and as per the said awards, the seniority of the year 1979 has to be taken. But the respondents failed to take the said seniority. He further contended that notice of retrenchment as contemplated under Rule 78 of A.P. Industrial Disputes Rules, 1958 was not issued and also seniority list of workman as contemplated under Rule 79 of the Rules was also not maintained and hence the retrenchment is in violation of the provisions of the Industrial Disputes Act. He further contended that before retrenchment, no compensation as contemplated under Section 25(F) of the Industrial Disputes Act was paid taking the seniority of the petitioners from the year 1979 and hence there is violation of Section 25(F) of the Act. Therefore as the respondents have violated the statutory provisions of the Act, he sought this court to exercise the jurisdiction under Article 226 of the Constitution of India and to set aside the impugned order and direct the respondents to reinstate the petitioners into service by taking the seniority list of the year 1979, which has become final and accordingly regularize their service on par with their juniors and fix their scales of pay in the respective grades, as extended to the juniors of the petitioners. 8. On the other hand the learned Assistant Government Pleader supporting the impugned order sought for dismissal of the writ petitions. 9. Before proceeding to consider the claims of the petitioners, in the light of the relevant provisions under the Act, it is necessary to first note the impugned order passed by the 3rd respondent – Executive Engineer, NSLC O & M Division, Tekulapally, Khammam. In all the writ petitions, the impugned order is common. The relevant portion of the impugned order is extracted as under for better appreciation: “As there is no work to entrust, you are declared surplus. Hence, your services are no longer required and dispensed with, with effect from 5.6.2004. Wages for one month in lieu of one month notice and retrenchment compensation payable in terms of provisions of I.D. Act are made ready (as detailed in the annexure) and may be received from the Dy. Executive Engineer, NSC O & M Sub-Division, Bonakal.” 10. From the impugned order it is clear that as there is no work to entrust, the services of the petitioners is dispensed with and wages for one month in lieu of one month notice and retrenchment compensation was made ready and the petitioners were directed to receive the same. 11. The material on record discloses that, when the petitioners were initially retrenched, they approached the Labour Court Warangal in I.D.No.284 of 1995 and batch and the Tribunal disposed of the I.Ds. For ready reference, the operative portion of the order made in one of the I.Ds. i.e., in I.D.No.283/1995 dated 31.7.1998, is extracted as under for ready reference: “In the result, an ward is passed setting aside the oral retrenchment/termination orders passed against the petitioner and the respondents are directed to reinstate petitioner into service as fresh recruit ‘winch operator’ and to treat and consider the seniority of the petitioner as per the seniority list of the year 1979; if any regular appointments are made after retrenchment of the petitioner. The petitioner is not entitled for any back wages and other attendant benefits. The award shall come into force within 30 days or from the date of publication, whichever is earlier by virtue of the powers conferred under Section.17-A of the I.D.” 12. From the above award it is clear that the Labour Court directed the respondents to reinstate the petitioners into service as fresh recruits and to treat and consider the seniority as per the seniority list of the year 1979, if any regular appointments are made after retrenchment of the petitioners. The said awards of the Labour Court have become final, since the batch of the writ petitions filed by the respondents in W.P.No.18847/2000 and batch, was dismissed by common order dated 28.08.2000 and the writ appeals filed by the respondents in W.A.No.1160/2001 and batch also ended in dismissal by order dated 10.8.2001 and the respondents were also unsuccessful before the Apex Court in S.L.P. vide Civil No.5937- 5957/2002. Therefore, the direction of the Labour Court while granting reinstatement to the petitioners, to give the seniority to the petitioners as per the seniority list of the year 1979, if any regular appointments are made after retrenchment of the petitioners, has become final. 13. Subsequent to the reinstatement of the petitioners pursuant to the above orders of the Labour Court, again they were retrenched and challenging the same, they field writ petitions and the same were allowed by this court and they were reinstatement the latest retrenchment is through the present impugned order. 14. The grievance of the petitioners is that no compensation as contemplated under Section 25-F was paid taking their seniority as per the seniority list of the year 1979 and even before contemplating to retrench, the procedure under Section 25-F and 25-G of the Act and Rules 78 and 79 of the Rules, is violated. 15. In order to consider the above grievance of the petitioners, it is necessary to note Sections 25-F, 25-G of the Act and Rules 78 and 79 of the A.P. Industrial Disputes Rules, 1958, as under: 25-F. Conditions precedent to retrenchment of workmen:- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workmen has been paid in lieu of such notice, wages for the period of the notice. (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government (for such authority as may be specified by the appropriate Government by notification in the Official Gazette. 25-G Procedure for retrenchment:- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman. Rule 78. Notice of Retrenchment: If any employer desires to retrench any workman employed in his individual establishment who has been in continuous service for not less than one year under him (hereinafter referred to as ‘workman’ in this rule and in Rules 79 and 80), he shall give notice of such retrenchment as in Form ‘P’ to the Government, the Commissioner of Labour, the Regional Assistant Commissioner of Labour and the Employment Exchange concerned and such notice shall be served on the Government, the Commissioner of Labour, and the Employment Exchange concerned by registered post in the following manner:- (a) Where notice is given to the workman, notice of retrenchment shall be sent within three days from the date on which notice is given to the workman; (b) Where no notice is given to the workman and he is paid one month’s wages in lieu thereof notice of retrenchment shall be sent within three days from the date on which such wages are paid; and (c) Where retrenchment is carried out under an agreement which specifies a date for the termination of service, notice of retrenchment shall be sent so as to reach the Government, the Commissioner of Labour, the Regional Assistant Commissioner of Labour, the Labour Officer, the Employment Exchange concerned at least one month before such date: Provided that if, the date of termination of service agreed upon is within thirty days of the agreement, the notice of retrenchment shall be sent to Government, the Commissioner of Labour, the Regional Assistant Commissioner of Labour, the Labour Officer, the Employment Exchange concerned within three days of the agreement. Rule 79. Maintenance of seniority list of workmen:- The employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated, arranged according to the seniority of their service in that category and cause a copy thereof to be posted on a notice board in a conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment. 16. A reading of the above provisions, which deals with the procedure for retrenchment, it is clear that before retrenchment, the workman shall be given one month’s notice in writing indicating the reasons for retrenchment or wages for the period of notice and the workman shall be paid compensation, which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof, in excess of six months and notice of such retrenchment of workmen shall be served on the appropriate Government in the prescribed manner. Further, in the absence of any agreement to the contrary, such retrenchment shall start from the last person employed in that establishment in that particular category and for the reasons to be recorded, the employer can retrench any other workman than the last person employed. In other words, if there an agreement between the employer or employee in that behalf or for the reasons to be recorded, the employer can retrench any other workman than the last person and in the absence of any agreement to the contrary or for any justifiable reasons for the departure from the rule ‘last come – first go’, the last workman as per seniority in that particular category of the industrial establishment shall be retrenched first. Further the employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated and retrench as per the seniority, ie., as per the seniority list served on the workmen, and the retrenchment shall start from the last person employed in that particular category of the industrial establishment. 17. The material on record does not disclose that before retrenchment, the petitioners were paid compensation by taking their seniority of 1979 seniority list or any notice as contemplated under Section 25-F © and Rule 78 of the Act was served on the appropriate Government in the prescribed manner and no seniority list as envisaged under Rule 79 was prepared and the procedure under Section 25-G with regard to ‘last come first go’ i.e., retrenchment of last employee of that particular category of the industrial establishment, appears to have been followed or its departure has been justified by giving any reasons. Therefore, violation of procedure contemplated under Sections 25-F and 25-G of the Act before retrenchment, amounts to unfair labour practice. 18. The serious allegation of the petitioners is that the respondents have continued the services of their juniors and regularized their services and in the writ affidavits, by referring to the seniority list of the year 1979, the writ petitioners pointed out the names of juniors who were regularized in the respective writ affidavits. 19. This court by order dated 22.06.2004 passed the interim order as under: “Post after two weeks for filing counter In the meanwhile the petitioners shall be continued in service if any juniors of the petitioners are working with the respondents.” 20. The respondents filed vacate petition and by order dated 8.12.2004 while making the interim order absolute, this court passed the following order: “Heard both sides. In view of the larger questions involved, I do not find any justification to vacate the interim order dated 22.3.2004 and the same is accordingly made absolute. WMP is accordingly dismissed. Office is directed to post the writ petition for final hearing, subject to part heard on 7.2.2005.” 21. The learned counsel for the petitioners submitted that though this court passed interim orders on 22.6.2004 and the same were made absolute on 18.12.2004, the same was implemented only during the year 2009. 22. Along with the material papers, the petitioners filed the copy of the letter No.APSCCL/ID.Cases/W.Ps/2004 dated 8.9.2009 addressed by the Executive Engineer, NSLBC O and M Division, Tekulapally, Khamma – 3rd respondent, to the Government Pleader for Irrigation, A.P. High Court, Hyderabad seeking legal advise and also the copy of the letter addressed by the Government Pleader for Irrigation and CAD, High Court of A.P. to the said Executive Engineer dated 8.9.2009 extending legal advise. The learned Assistant Government Pleader did not dispute the copies of the proceedings furnished to the court by the counsel for the petitioners. Hence, the said proceedings are taken note of under the writ jurisdiction. The said proceedings are extracted as under for better appreciation: “GOVERNMENT OF ANDHRA PRADESH IRRIGATION & CAD (PW) DEPARTMENT From To Sri V.Veer Raju B.Tech. The Government Pleader, Executive Engineer for Irrigation, NSLBC O & M Division, A.P. High Court, Tekulapally, Khammam. Hyderabad. Letter No.APSCCL/ID. Cases.W.Ps./2004 Dated: 8.9.2009 Sir, SUB: Writ petition – Interim directions issued by Hon’ble A.P. High Court at Admission stage – Request to render Legal opinion – Reg. Ref:-1) W.P.No.10576 of 2004. 2) W.P.No.10555 of 2004. 3) W.P.No.9994 of 2004. 4) W.P.No.9807 of 2004. 5) W.P.No. 10436 of 2004. 6) W.P.No.10590 of 2004. 7) W.P.No.9931 of 2004 8) W.P.No.10432 of 2004 9) W.P.No.10585 of 2004 10) W.P.No.10537 of 2004 11) W.P.No.9932 of 2004 12) W.P.No.10556 of 2004. -- The following retrenched workman have filed writ petition vide reference cited before the Hon’ble Andhra Pradesh High Court and in all cases the court was pleased to issue interim directions to continue the petitions if any of the his juniors are found to be working with the respondents. Counters affidavits were filed in all the writ petitions opposing the contention of the petitioners. S.NO. Name and designation at the time of retrenchment W.P.Nos. 1. G.Ranganayakulu, Winch operator 10576/2004 2. J.Mattaiah, Winch operator 10555/2004 3. P.Malleswarudu, Winch operator 9994/2004 4. S.Venkateswra Reddy Winch operator 9808/2004 5. B.Pullaiah, Winch operator 10436/2004 6. J.Gangadhara Rao, Winch operator 10590/2004 7. K.Nagaiah, Winch Operator 9931/2004 8. J.Anjaneya Raju, Pump operator, 10432/2004 9. S.Nagaiah, Pump Operator 10585/2004 10. M.Janaki Rama Rao, Pump Operator 10537/2004 11. N.Venkateswarlu, Pump Operator 9932/2004 12. T.V.Raghu Babu, RMP Doctor 10556/2004 The grounds taken by the department at the time of opposing the contention of the petitioners in the Hon’ble Andhra Pradesh High Court are as follows: 1. In the I.D. awards, the Industrial Tribunal – cum – Labour Court at Warangal has set aside the retrenchment / termination orders of the then Andhra Pradesh State Construction Corporation Limited, and has directed the Government to reinstate the petitioners into service as fresh recruits and to treat and consider the seniority of the petitioners as per the seniority list of the year 1979, if any, regular appointments are made after the retrenchment of the petitioner, without back wages and other attendant benefits. Therefore, the department took the view that, these petitioners, being treated as fresh recruits should take the last position in the seniority list, and were reinstated into service as NMRs and were retrenched as per the orders of Government, vide G.O.Ms.No.912 I & CAD Dept., Dt.17-12-2002 red with Government Memo No.36180/Estt.1/2001-9 dated 17.12.2002. 2. Treating them as fresh recruits without back wages and attendant benefits has given them the last position in the rules and hence it was stated in the counter affidavits that there are no juniors to the petitioners and therefore as per the interim direction of the Hon’ble Andhra Pradesh High Court the petitioners were not continued. On re-examination of the seniority list of the 1979 after the receipt of legal notices from (2) of the petitioners for reinstatement/continuance based on the interim direction of Hon’ble Andhra Pradesh High Court, it was found that some of the members included in the seniority list of 1979 are juniors and are presently working in the department based on I.D. awards with continuity of service and back wages. Statement showing the junior workmen to the petitioners presently working in this office of NSLBC O & M Division, Tekulapally, Khammam – 507 002. Name of the petitioner and designation W.P.No. Date of appointment Name of Junior and designation, working as on the date of interim directions Date of appointment Remaks. G.Ranganayakulu, Retrenched Winch Operator 10576/2004 11.9.1977 1. N.Venkata Narayana, NMR winch operator 2. A.Prasad NMR winch operator 5.11.1977 7.11.1977 J.Mattaiah Retrenched Winch Operator 10555/2004 10.9.1977 1.N.Venkata Narayana, NMR winch operator. 2. A.Prasad, NMR Winchoperator 5.11.1977 7.11.1977 K.Nagaiah Retrenched Winch Operator 9931/2004 5.9.1977 1.N.Venkata Narayana, NMR Winch operator 2. A.Prasad NMR Winch operator 5.11.1977 7.11.1977 P.Malleswarudu Retrenched Winch Operator 9994/2004 23.3.1975 1.N. Venkata Narayana, NMR Winch operator. 2. A.Prasad, NMR Winch Operator. 3.V.Laxminarayana Winch operator, 4. Sk. Yakub, Winch operator, 5. N.Bhaskar Winch operator 5.11.1977 7.11.1977 10.8.1977 26.8.1977 2.9.1977 S.Venkateshwara Reddy, Retrenched Winch Operator 9807/2004 1.7.1976 1.N. Venkata Narayana, NMR Winch operator. 2. A.Prasad, NMR Winch Operator. 3.V.Laxminarayana Winch operator, 4. Sk. Yakub, Winch operator, 5. N.Bhaskar Winch operator 5.11.1977 7.11.1977 10.8.1977 26.8.1977 2.9.1977 B.Pullaiah, Retrenched Winch Operator. 10436/2004 26.7.1977 1.N. Venkata Narayana, NMR Winch operator. 2. A.Prasad, NMR Winch Operator. 3.V.Laxminarayana Winch operator, 4. Sk. Yakub, Winch operator, 5. N.Bhaskar Winch operator 5.11.1977 7.11.1977 10.8.1977 26.8.1977 2.9.1977 J.Gangadhara Rao, Retrenched Winch operator. 10590/2004 26.8.1977 1.N. Venkata Narayana, NMR Winch operator. 2. A.Prasad, NMR Winch Operator. 3.V.Laxminarayana Winch operator, 4. Sk. Yakub, Winch operator, 5. N.Bhaskar Winch operator 5.11.1977 7.11.1977 10.8.1977 26.8.1977 2.9.1977 J.Anjaneya Raju, Retrenched Pump Operator. 10432/2004 25.4.1977 1)G.Krishnaiah, Pump Operator (P.O). 2) G.Krishna Mohan Rao 3) G.Babu Rao, 4)V.Manohar Rao 5)S.Nageswara Rao 6)B.Sambaiah 7)T.Rama Rao 8)P.Babu Rao 9)T.Seshaiah 10) Ch.Purnachandra Rao 11) B.Ramulu 12) T.Saidulu 13) .Radhakrishna, 14)N.Lamaiah 15) B.Ramulu 1.10.1977 1.12.1977 2.9.1977 17.9.1977 2.9.1977 28.11.1977 6.9.1977 2.1.1978 2.8.1977 8.8.1977 1.6.1977 26.8.1977 8.9.1977 5.9.1977 6.8.1977 S.Nagaiah, Retrenched Pump Operator 10585/2004 14.2.1977 1)G.Krishnaiah, Pump Operator (P.O). 2) G.Krishna Mohan Rao 3) G.Babu Rao, 4)V.Manohar Rao 5)S.Nageswara Rao 6)B.Sambaiah 7)T.Rama Rao 8)P.Babu Rao 9)T.Seshaiah 10) Ch.Purnachandra Rao 11) B.Ramulu 12) T.Saidulu 13) .Radhakrishna, 14)N.Lamaiah 15) B.Ramulu 1.10.1977 1.12.1977 2.9.1977 17.9.1977 2.9.1977 28.11.1977 6.9.1977 2.1.1978 2.8.1977 8.8.1977 1.6.1977 26.8.1977 8.9.1977 5.9.1977 6.8.1977 M.Janaki