Sunil Ambwani, J.@mdashBy these writ petitions, 48 Petitioners in Writ Petition No. 29545 of 2001 and one Petitioner, namely, Anand Kanan in Writ Petition No. 29547 of 2001, have prayed for quashing the news paper publication dated 7.7.2001 by which they have been intimated that their services have been terminated with effect from 16.6.2001. They have also prayed for a direction to the Respondents not to interfere in peaceful functioning of Petitioners as Class I Vth Muster roll employee in the irrigation department and to pay their salary.
2. I have heard Sri B. K. Singh Raghuvanshi, learned Counsel for Petitioners and learned standing counsel for Respondents.
3. Brief facts, giving rise to these petitions, are that Petitioners were engaged as daily waged muster roll employees in Gandak Region of Irrigation Department in its various divisions in the year 1982 and onwards. They were disengaged, including other employees, totalling 58 daily waged muster roll employees in the year 1990 on the ground of non - availability of work. Petitioners filed Writ Petition No. 45755 of 1999 and Writ Petition No. 45752 of 1999 which were disposed of by this Court on 21.3.2001 with a direction to dispose of their representation keeping in view the principle of last come first go. In compliance of the said orders, the Executive Engineer, Drainage Khand, Gorakhpur, engaged Petitioners by his order dated 1.6.2001, pending decision by the State Government. By a subsequent order passed by the Chief Engineer (Gandak), Irrigation Department, U. P., Gorakhpur, impugned in these writ petitions, the services of Petitioners were terminated with effect from 16.6.2001.
4. Learned Counsel for Petitioners submitted that each of Petitioners had completed 240 days of service in a calendar year during the period of their engagements from 1982 to 1990. A chart giving days of Petitioners'' engagement form 1986 to 1991 has been annexed as Annexure - R.A. 1 to the rejoinder- affidavit which has not been denied by the Respondents. Petitioners, however, were retrenched without giving any notice and retrenchment compensation as well as informing the State Government as provided u/s 6N of the U.P. Industrial Disputes Act, 1947. After terminating the services of Petitioners in the year 1991, Respondents engaged fresh hands as daily waged employees. Petitioners were not given an opportunity to serve and that the principle ''last come first go'' was not followed causing hostile discrimination between Petitioners and the persons, who were engaged subsequently.
5. Learned standing counsel, appearing for the Respondents, stated that Petitioners are not Class IV employees. They were engaged as muster roll daily waged employee from time to time when their services were required. The Superintending Engineer (Gandak) Flood Circle, Gorakhpur, was forced to issue letter dated 20.4.1999 to the Chief Engineer Gandak on account of the pressure put by the employees'' Union to solve the problems of employees. The letter, however, nowhere states that Petitioners have worked for more than 240 days in a calendar year. Petitioners never worked continuously for a period of eight years. Their representations were decided pending decision by the State Government, the Chief Engineer subsequently, after receiving the orders from higher authorities and going through the contents of the letter, dispensed with their services as they were not entitled to be re - employed.
6. The questions whether Petitioners'' services were terminated as against the provisions of the U.P. Industrial Disputes Act, 1947, and whether they completed 240 days in a calendar year, are questions of facts which can be adjudicated upon by the forum provided by the said Act. These facts cannot be investigated in writ jurisdiction. In Des Raj and Ors. v. State of Punjab and Ors. 1988 (57) FLR 176 (SC), the Supreme Court in the context of the activities of Irrigation Department in the State Government of Punjab, held that the Irrigation Department is an ''industry'' and that the services of workmen - employees could not have been terminated without following the conditions precedent to the retrenchment and for which such workers had right to approach the labour court. The Supreme Court has, however, in its latter decision Executive Engineer (State of Karnataka) v. K. Somasetty and Ors. 1997 (76) FLR 176 , held that Irrigation Department performs sovereign functions and cannot be treated to be an "industry". This Court in
7. The fact that Petitioners completed 240 days in a calendar year has not been specifically denied and no reply has been given to the rejoinder - affidavit which was filed on 14.3.2002. Petitioners could have approached the forum provided under the U.P. Industrial Disputes Act, 1947, for adjudication of their rights arising out of their illegal retrenchment of their services. A writ petition for the relief claimed, which could have been adjudicated upon by the labour court, is not maintainable in view of the Full Bench decision of this Court in Chandrama Singh v. Managing Director, U.P. Co - operative Union, 1991 (2) AWC 1005 : 1991 LIC 2413.
8. The fact, however, remains that the work was still available with the Respondents in the divisions and that inspite of Government order dated 6.5.1992 specifically directing the department not to engage any muster roll daily wagers, the divisions continue to engage such employees. In the report dated 2.7.2001, the Executive Engineer informed the Chief Engineer (Gandak), Irrigation Department Uttar Pradesh, Gorakhpur and thereafter, the Chief Engineer (East) in his report dated 11.7.2001, annexed as Annexure - R.A. 2, to the rejoinder - affidavit, reported that between 1992 and 1997, the following daily wage employees were engaged in different divisions:
In view of the above, the Petitioners who had already served in the department, were, as such, discriminated in employment. In
9. In the present case, Petitioners have been agitating their rights since their services were illegally terminated. They cannot, therefore, be denied the relief on the ground that they were not employed after 1990 - 91. The Respondents have felt the need of engagement of daily wage muster - roll employees and had taken fresh hands in the year between 1992 and 1997. In the circumstance, Petitioners'' termination of service is, held to be violative of Article 14 of the Constitution of India and against the principles of natural justice, equity, justice and good conscience. In case the Respondents require to engage fresh hands, Petitioners should have been given an opportunity to serve in the divisions.
10. For the reasons aforesaid, the writ petitions are allowed. The impugned order dated 7.7.2001, terminating Petitioners'' services with effect from 16.6.2001 passed by the Executive Engineer, Drainage Khand, Gorakhpur, without any benefit or back wages or any consequential benefit is set aside. The Respondents are directed to draw a list of Petitioners as well as other employees engaged by them on daily wages in accordance with their date of initial engagements. The Petitioners and other employees, so placed in the list, will be offered daily wage employment or regular appointments if available and required by the divisions, strictly in accordance with their seniority in the list. The list, so drawn, shall be sent to each of Petitioners, separately and published in news papers.
11. There shall be no order as to costs.
