JUDGMENT
Radha Mohan Prasad, J.
1. In this writ petition, the petitioners have challenged the validity of Office Order No. 71 dated 11.4.1996 issued by the Secretary of the Bihar State Scheduled Caste Co-operative Development Corporation Limited (hereinafter referred to as ‘the Corporation’), contained in Annexure 10, whereby and whereunder a direction has been issued to take necessary steps by issuing order terminating the employment of all daily wagers, including the petitioners, who were appointed after 1.8.1985.
2. According to the case of the petitioners, the Corporation was established by the State of Bihar under the Welfare Department with an object to identify families of Scheduled Caste belonging to the weaker Section of the society and provide them funds, grants and loans to establish village or small industries related to leather, bamboo and cane tailoring, laundry and other small business establishment including purchase of rickshaws, auto-rickshaws and other motorised vehicles so that they achieve economic self-sufficiency and come up above the poverty line. It is stated that the Board of Directors of the Corporation in their various meetings decided to appoint daily wagers against large number of vacancies on various posts, which were duly sanctioned. The petitioners claim to have been appointed in pursuance of the resolution of the Board taken in 36th and 37th Board’s meetings, and the Managing Director issued appointment letters in September-October 1987 appointing them on daily wages to the post of Field Organisers. It is stated that there were 135 posts sanctioned and created for the Fields Organisers which are an important link and arm of the Corporation since they were the persons entrusted with the responsibility to identify, motivate and provide the necessary inputes for providing various assistance including finance to the identified persons to become economically independent. According to the petitioner, they were also saddled with the responsibilities of collecting various instalments for repayment of loans granted to the beneficiaries.
3. The corporation as per the Board’s decision, vide Office Order No. 96 dated 13.3.1987 decided to absorb 103 persons working as Field Organisers keeping in view their long period of work. The petitioners were transferred from one District to another and were assigned specific target to be achieved by them. According to them, they were also deputed for election duty and other such duties which required large helping hands of the Government employee like Pitra Paksh Mela at Gaua. etc. and their work was satisfactory. In the month of March 1989, the Corporation decided to remove some of the employees from service and the matters was referred to the Labour Commissioner who after considering the issue directed that since most of the persons had put in more than 240 days and they were working for a long period of time, they should be reinstated, whereupon necessary order in this regard was issued by the then Administrator on 16.3.1989, contained in Annexure-6.
4. In the year 1991, pursuant to the order (Annexure-6), the then Administrator issued an office order dated 18.4.1991 that no more appointment shall be made in the Corporation without the due authority of the Administrator and that any appointment made after 16.3.1989 would be deemed to be illegal and the same shall stand to have been terminated. According to the petitioners, they were appointed in the year 1987 and they cannot come within the ambit of the said order of 1991. The petitioners claim to have worked regularly, continuously and carried out their responsibilities assigned to them from time to time which included achieving target of collections of loans given to various beneficiaries. Some of the employees posted as Field Organisers filed a writ petition, bearing C.W.J.C. No. 4974 of 1994, in this Court demanding pay parity and regularisation of their services. This Court, vide order dated 21.3.1996, contained in Annexure-9 directed the Corporation to pay the minimum of the scale (Rs. 975-1,550) and allowance as may be fixed by the Corporation commensurate with the status and functions.
5. It is alleged that the said order provoked the Administrator which out put an end to the exploitation perpetuated by an instrumentality of the State on its helpless employees who were not in bargaining position and taking advantage of their pitiable condition directed termination of the services of the petitioners, vide order dated 11.4.1996 (Ammexire-10) on the ground of absence of fund and the so-called letter of the Welfare Department of Personnel and Administrative Reforms, Government of Bihar, vide its letter No. 5103 dated 30th May, 1996, pursuant to an agreement reached between the State Government and the non-gazetted employees in the year 1991 decided that the out-off date for removal of such persons who were appointed on daily wages shall now be 31.12.1990 and, further, that all those persons who are working on daily wages appointed prior to 31.12.1990 shall be permitted to continue on their posts. It is thus submitted that in view of the above decision of the Government, it is not open to the Corporation to say that they are working in consonance with the decision of the State Government since the basis on which the order has been passed is misplaced if not non-existent. Xerox copy of Memo No. 5103 dated 30.5.1996 has been annexed as Annexure-11. It is also alleged that a large number of persons appointed in the Corporation on daily wages after 1.8.1985 have been either absorbed, adjusted or regularised. Persons appointed even as late as in the year 1993 and admittedly junior to the petitioners have been retained in service by using ‘pick and choose method’ whereas the petitioners who have worked for more than nine years without any break in service have been sought to be thrown out on the street, they have already crossed the bar and the age for employment in any State Government of the Department. Xerox copy of list of such persons has been annexed as Annexure-12.
6. A supplementary affidavit has been filed on behalf of the petitioners in which it is stated that vide order dated 29.2.2000 the respondent-Corporation had terminated the services of 15 employees similarly placed as the petitioners, by relying on the Government of Bihar’s circular and for reasons stated in the letter itself, contained in Annexure-19. Thereafter, vide order dated 22.7.2000, the respondent Corporation has taken the service back of the dismissed employees and it has accepted in its order that the order of termination passed by the Corporation was illegal for the reasons stated therein and, therefore, the earlier order (Annexure-19) was given a go-by, vide Annexure 20. It is thus reiterated that their termination Government of Bihar which is not applicable to the employees of the Corporation.
7. The respondents have filed counter-affidavit and reply to the supplementary affidavit filed on behalf of the petitioners. The petitioners have also filed rejoinder to the counter-affidavit.
8. According to the stand taken in the counter-affidavit, the Corporation has got its own Bye-laws and the Rules under which the power to appoint the personnel in Clauses 42(iii) and 42(iv) is given only to the Managing Director after getting approval of the Board of Directors and he is only competent to appoint any person. According to their case, under Section 66(b) of the Bihar State Co-operative Societies Act, 1935 vests power in the State Government to issue direction and the same had to be complied with by the corporation and the State Government issued notification, as contained in Memo No. 526 dated 9.2.1989 prescribing the mode of recruitment of such employees. Further, their case is that keeping in view the resolution, contained in Memo No. 5940 dated 16.6.1993 issued by the Department of Welfare, Government of Bihar, Patna, the cut-off date has been fixed as 1.8.1985 and the services of all the persons have been appointed after 1.8.1985 gave been terminated after following the conditions laid down under Section 25F of the Industrial Disputes Act, 1947 and the amount of compensation in accordance with the said provision has been sent to all employees concerned at their home address a long with the order of termination through bank drafts. Some bank drafts have returned unserved and for them notice has been given through daily edition of Hindi newspaper ‘Hindustan’ and ‘Ranchi Express’. The allegation regarding provocation by the order of this Court has been denied and, further, it is stated that in the category of the petitioners, no ‘pick and choose method’ has been adopted. The same policy has been applied to all similarly situated persons. As regards Annexure-12, it is stated that the services of those employees who were though appointed on daily wage after 1.8.1985, however, were regularised much before the impugned order of retrenchment has been issued and they have been treated as a separate class. It is admitted that such persons may have been junior to the petitioners taking initial date of recruitment on daily wage, nonetheless, they were regularised and such regularisation has not been challenged. As such, it is not open to challenge such regularisation after lapse of such long period of time.
9. In the reply to the supplementary affidavit filed on behalf of the petitioners, it is stated that the respondent-Corporation has affirmed the statements made in paragraphs 3 and 4 and Annexures 19 and 20. However, it is pleaded that vide order dated 22-7-2000 (Annexure-20) merely a correction was made by “AJAVINI” in its earlier order regarding their termination as the said employees were appointed in a regular manner by the Board of Directors and the Board has also regularised their services. It has been reiterated that the petitioners were terminated on reasonable ground as nothing can debar a State instrumentality to adopt an order of the State whether it may be binding upon it or not. In paragraph 6, it has been denied that any ‘pick and choose’ policy has been adopted and that the respondents claim to be firmed on the point to terminate the services of those employees who have been appointed after 1.8.1985 as daily wage appointees if and when such cases come to the knowledge.
10. Mr. Tripathi, learned Counsel appearing for the petitioners has submitted that in view of the reasons mentioned in the office order of the Corporation, contained in Annexure-20, the reasons for termination of the services of the petitioners mentioned in the impugned order is non est. and is thus not sustainable. It is submitted that from Annexure-20 itself it is clear that the Personnel and Administrative Reforms Department of the Government of Bihar while giving reply vide its letter No. 12199 dated 14.11.1996 clarified that the Scheduled Caste Co-operative Development Corporation Ltd., Patna is not a Public undertaking, it is rather apex Co-operative Society for which Bye-laws are framed and under such circumstances, Resolution No. 5940 dated 18.6.1993 of the said Department shall not be applicable to such apex Society and that the very first sentence of the said resolution is self-explanatory which provides that it shall apply to the daily wagers engaged in the Offices and Undertakings of the Government. It is submitted that the bare perusal of impugned order (Annexure 10) would show that the same has been issued in pursuance of the said Government Resolution No. 5940 dated 18.6.1993 and Welfare Department’s Letters No. 3855 dated 21.7.1993 and 4141 dated 31.7.1993 for terminating the employment of all daily wagers appointed after 1.8.1985. As such, according to the learned Counsel for the petitioners, the reason for termination of the employment of the petitioners mentioned in Annexure-10 being non est. is fit to be quashed on the said ground alone.
11. Learned Counsel appearing for the Corporation, in reply, has submitted that the daily wagers have no right to continue in employment and their employment can be terminated any time as and when the employer does not have any need to continue them. It has also been submitted by the learned Counsel for the Corporation that even assuming that the Government decision, contained in Resolution No. 5940 dated 18-6-1993, is not binding upon the Corporation, yet the Corporation adopted and applied the same principle and there is no infirmity in it so long it complies with the requirement as provided under the provisions of the Industrial Disputes Act relating to the daily wagers. It has also been submitted by him that presently the Corporation is facing financial crises and as such, it is not possible for the Corporation to engage these petitioners in service until it becomes viable.
12. This Court does not find force in the last submission of the learned Counsel for the Corporation. It is nowhere pleaded that the employment of the petitioners has been terminated on account of any financial crisis prevailing in the Corporation. Moreover, in the impugned order also, it is not the case of the Corporation that the employment of the petitioners has been terminated on the said ground. There may be some substance in the other two-submissions that the daily wagers cannot claim continuance in employment as a matter of right and their services can be dispensed with at any time after complying with the requirement of the provisions contained in the Industrial Disputes Act applicable to such daily wagers. But from the impugned order (Annexure-10), it is evident that their services have been terminated simply on the ground that their engagement after 1.8.1985 was contrary to the Government Resolution No. 5940 dated 18.6.1993 and the Welfare Department’s letters No. 3855 dated 21.7.1993 and 4141 dated 31.7.1993 and if the said reason itself is non est. in view of the aforementioned clarification issued by the Personnel and Administratives. Reforms Department vide letter No. 12199 dated 14.11.1996, this Court finds it difficult to sustain the impugned order. Moreover, from the said order it appears that there cannot be any justification to continue the persons in the employment of the Corporation whose appointments were made after 1.8.1985 ignoring the claim of others similarly engaged persons as it was not made by the competent authority and that too without following the reservation policy and the rule regarding the initial appointment. This Court fails to appreciate as to how such things are relevant for continuance of the employment of daily wagers. No rule has been brought to the notice of this Court by the learned Counsel for the Corporation which requires compliance of the aforementioned things for engagement or continuance of daily wagers in the employment of the Corporation. In any view such plea, after lapse of now more than 12 years in the case of the present petitioners are not tenable. As such, in my opinion, none of the reasons mentioned in the impugned order is tenable to uphold its validity. The Supreme Court in the case of Mohinder Singh v. Chief Election Commissioner , has held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.
13. Accordingly, the writ application is allowed, the impugned order, contained in Annexure-10, insofar as it affects the petitioners, is quashed and the respondents are directed to issue order for their reinstatement in the employment on daily wages within two weeks of the receipt/ production of a copy of this order. However, having regard to the principle of ‘no work no pay; it is made clear that the petitioners will not be entitled for any wages for the period, they were kept out of employment by virtue of the impugned order. However, in the facts and circumstances, there shall be no order as to costs.