Water Resources Survey Employees Union vs The Union of India and others

R.K. Verma, Vice-Chairman

This is an application u/s 19 of the Administrative Tribunals Act, 1985 filed by the two applicants seeking quashing of the impugned order dated 10/15-10-1994 issued by the Executive Engineer, Middle Ganga Division IV, Patna (Respondent No. 3) (Annexure-2 to the application) whereby the service of all the seasonal Khalasis have been terminated with effect from 22nd October, 1994 afternoon. The applicant No. 1 is the Survey Employees of the Water Resources Department Union, which, according to the applicants is a recognized trade union for the Survey Employees of the Water Resources Department, Govt. of India having its registration No. 2282. The applicant No. 2 is a seasonal Khalasi duly appointed by the Executive Engineer (Respondent No. 3).

The applicants have also filed an application for permission to be joined together as parties on the ground that the applicant No. 1 in the O.A. has filed the application in representative capacity so as to avoid multiple cases of the persons ag-grieved by the impugned order like individual Khalasi applicant No. 2.

The applicant No. 2 and other khalasis represented by the applicant No. 1 Union were all appointed by respondent No. 3 with effect from 15th June, 1994, till 31st October, 1994 on temporary seasonal posts under work-charge establishment The Annexure-1 to the application dated 4.6.1994 is the format of office order of appointment for all the nominated persons mentioned in the list annexed to the order.

Respondent No. 2 by the impugned order dated 10/15-10-94 (Annexure 2 to the application) has terminated the services of all the seasonal khalasis working in his Division with effect from 22.10.1994 i.e. 9 days before the 31st October, 1994 on which date the term of employment, of all the seasonal khalasis appointed in the Division normally expires as per appointment order (Annexure-1).

Applicants have averred in sub paras (ix) and (x) of para 4 of the application that the respondent No. 2 and the Central Water Commission Employees Association in their meeting held on 2.11.88 had come to an agreement that the duration of engaging seasonal khalasis be raised from four months to four and half months as per minutes of the meeting taken by the Chief Engineer with Central Water Commission Employees Association on 2.11.88 (Annexure-3 to the application) and that ever since the said agreement the seasonal khalasis are being engaged/ employed for four and a half months.

In the aforesaid background, , the order of termination dated 10/15-10-94 as contained in Annexure-2 has been impugned on the ground that it is bad in law being arbitrary and violative of Section 25(F) of the Industrial Disputes Act since no prior notice as stipulated in the said section was ever given to the applicants.

The respondents in their counter-reply have resisted the application of the applicants firstly on the ground that the applicant No. 1 has no locus standi to file the application and secondly on the ground that it was permissible for the respondents under clause 3 of the appointment letter to terminate the services of all the applicants even before the 31st October, 1994.

It has been stated by the respondents that the services of seasonal khalasis are required only for the monsoon period and that according to the Indian Meteorological Department the monsoon in Bihar ended on 29.9.94 and as such the services of seasonal khalasis were no more required and hence by the order of termination (Annexure-2) the services of seasonal khalasis were terminated with effect from 22nd October, 1994.

As regards objection of the respondents regarding the locus standi of applicant No. 1 it has been submitted by the learned counsel for the applicants that the persons affected by the termination order (Annexure-2) are members of the Water Resources Survey Employers Union and they are validly represented by the said Union through Secretary and the said Union is a registered Union. It has been pointed out in the counter-reply that the respondents have not denied that the applicant No. 1 Union is a registered Union. The objection of the respondents is that it is not a recognised trade union of Central Water Commission. The objection may be relevant for the purpose of any negotiation with the Central Water Commission but as regards the representation of the interest of affected employees in the Tribunal I do not think that there can be any valid objection on the ground of locus standi when instead of all the affected employees coming forward as applicants, they approached this tribunal through the registered trade union, applicant No. 1 of which the affected employees are the members.

The appointment letter (Annexure-1) while giving appointment to the employees as seasonal khalasis for a specific period from 15th June, 1994 to a fixed date 31st October, 1994, also provides in its clause 3 that the appointment shall be deemed to have ended on the fixed date 31st October, 1994 or the services can be terminated by Government order even on prior date.

The respondents say that the services of the seasonal khalasis have been terminated on a prior date by resorting to the aforesaid clause 3.

The learned counsel for the applicants has submitted that the termination order is arbitrary. The reason for the termination as stated in the termination order (Annexure-2) is that monsoon in Bihar has ended on 29.9.1994 according to the Indian Meteorological Department and as such, the services of seasonal khalasis have been terminated with effect from 22 9.94, afternoon. There is, however, no reference of monsoon in the order of appointment (Annexure-1) and there is no indication that the appointment of seasonal khalasis would be dependent on the report of the Indian Meteorological Department. On the contrary, a specific date of 31st October, 1994 has been named in the order till when the appointment is to last.

The learned counsel for the applicants have referred to Annexure-3 dated 7th November, 1988 which contains the minutes of the meeting taken by the Chief Engineer with the Central Water Commission Employees Association held on 2.11.1988. The minutes on issue No. 1, regarding ''duration of monsoon season of five months against the present practice of four months'' state as under: -

It was explained by the Chief Engineer that duration of 5 months if accepted involved additional financial burden in view of a large number of employees involved. However, having regard to the hard-ship faced and also the site needs, Chief Engineer expressed his view that the period could be increased to 4 1/2 months subject to approval by CWC. In fact, efforts would be made to seek approval for 5 months period provided additional financial burden could be absorbed within the allotted budget. The Association side welcomed the gesture on the part of the staff side.

(underlining is mine)

It appears that in accordance with the decision taken in the meeting the Government approved the appointment to the seasonal khalasis from 15th June, 1994 to 31st October, 1994 i.e. a period of four and a half months.

The decision is based on consideration of hardship faced and site needs. It would be legitimate in the circumstances to assume that the appointment order (Annexure-I) gave effect to the consideration of hardship faced and site needs as stated in the aforesaid relevant minutes dated 2.11.88 as contained in Annexure-3.

It the Government were to adopt a policy to terminate the employment of seasonal khalasis even before the expiry of a period of four and a half months ending on 31st October it should lay down such policy in the first instance, and should not name a fixed date 31st October as has been done to mark the outer limit of the duration of employment, since otherwise as element of arbitrariness can always operate in superseding a fixed term of employment. It does not appear from a plain reading of the order (Annexure-1) that duration or employment ending on 31st October, 1994 was intended to be varied depending upon the caprice of monsoon or report of the Indian Meteorological Department.

The decision to give employment to seasonal khalasis for a duration of 4 1/2 months appears to be a policy decision because of which the period of employment is specified in the appointment order as 15th June to 31st October. Any modification in the policy decision can be made by reviewing the policy and not by making orders of premature termination.

17.

Constitution of India. Accordingly, the order (Annexure-2) is hereby quashed. The seasonal khalasis shall continue upon 31st October, 1994 when their term of employment expires. Accordingly, this application is allowed as above, with no order as to costs.