Gauhati High Court
Abdul Gaffar vs State Of Manipur And Ors. on 22 November, 2006
Equivalent citations: 2007(1)GLT218
Author: U.B. Saha
Bench: U.B. Saha
JUDGMENT U.B. Saha, J.
1. The petitioner by filing the present writ petition prayed, inter alia, for issuance of a writ of certiorari for quashing and setting aside the impugned order dated 28.01.03 issued by the Director of Horticulture & Soil Conservation, Manipur wherein and whereunder, the petitioner's engagement, as Muster Roll Peon, was discontinued with immediate effect coupled with prayer for a direction to the respondents to release the daily wages of the petitioner withheld by them, i.e. State respondents and also for a direction to reconsider the case of the petitioner for re-engagement as Muster Roll Peon.
2. Heard Mr. HS Paonam, learned Counsel for the petitioner and Mr. N. Ibotombi, learned State counsel for the respondents.
Brief facts, in a nutshell, necessary for disposal of this case are recapitulated as under:
The present petitioner was engaged in various farm and progeny orchard cum nurseries as daily wage for production of various kinds of fruit plants etc. to meet departmental schemes and also public requirements and lastly at the time of filing this writ petition, was also working as Muster Roll Peon in the Department of Horticulture and Soil Conservation w.e.f. 10.05.94, as evident from the certificate dated 03.07.97 issued by the Deputy Director, HQ, (Horti. & Soil Conservation) Govt. of Manipur. Further case of the petitioner is that the State respondents, without regularizing his service, withheld wages from the period of December, 2000 till the date of issuance of the order of discontinuance. The petitioner also contends in the petition that some similarly situated daily Muster Roll (for short M.R.) Peons/workers/Chawkidars/Malis were allowed to continue for discharging their duties/works, but the petitioner was discontinued. Some other M.R. workers, similarly situated, were also discontinued withholding their daily wages, as and when those M.R. workers approached this Court by way of filing writ petition, being W.P.(C) No. 540 of 2002 wherein this Court intervened and directed said authority, in compliance with the Court's direction, respondents of that case made payment of their wages withheld earlier. As the petitioner failed to approach this Court in time, his daily wages were withheld by the respondents. In all, the petitioner worked for about a period of almost 9 years and the respondent authority all on a sudden discontinued the petitioner as M.R. Peon vide order dated 28.01.03 (Annexure - A/3 to the writ petition) and as a result of which his livelihood is affected. Being aggrieved by the said order petitioner preferred present writ petition.
3. Points for decision arises in this case are mainly whether M.R. Worker/Peon etc. engaged without following procedures, if continued for a long time, has any vested right to be regularized and/or continued in the service; and whether the authority has the power to withhold the wages of such a worker/peon, for the period he rendered service or discharged his duties on the basis of the instructions of the authority.
4. The learned Counsel for the petitioner, Mr. HS Paonam, submits that after utilizing the service of the petitioner for a long period of about 9 years, the authority has no power/right to discontinue him as a M.R. worker even when his juniors were allowed to work. The entire action of the respondents, particularly, the Director Horticulture & Soil Conservation, Govt. of Manipur, respondent No. 2, is wholly unwarranted by law, more so violative of the provisions of Articles 14 and 16 of the Constitution of lndia. He also submits that even if, for the argument sake, it is admitted that the petitioner has no vested right to be continued as M.R. worker, but being an employee of lower strata has some expectation from the Govt. being a model employer, particularly when right to life includes right to livelihood. Learned Counsel of the petitioner further contended that, due to wrong action of the authority, particularly for issuance of discontinuing the order of engagement, livelihood of the petitioner is affected, which is unwarranted and not permissible under law. He also, tried to convince this Court submitting that Government, being a model employer, should not act like a private management and discontinue its employee/worker like the petitioner on all of a sudden when he is not able to be engaged himself in any other employment, in near future and his family members will be starved due to the wrong action of the State respondents. He finally submits that the respondents even did not follow the principles of natural justice at the time of passing the order of discontinuing of the engagement of the petitioner.
5. In response to the submissions of the learned Counsel of the petitioner, the learned State counsel, Mr. N. Ibotombi, submits that Govt. cannot act from his own being an impersonal machinery, it has to work through its officers and employees. The present petitioner was engaged without following the procedures prescribed by the Govt. Hence, his initial engagement itself is a wrong one and on the basis of said wrong engagement, a person like the petitioner has no right to ask for re-engagement, and, assail a valid order of discontinuation of engagement as M.R. Peon. He further contended that nature of order of engagement or appointment cannot be changed due to long passage of time, and being irregularly engaged petitioner is not entitled to be regularized. In support of his contention, Mr. N. Ibotomi, relied upon the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. wherein the Apex Court stated that appointment dehors due process of selection envisaged by the Constitutional scheme/rules confers no right on the appointee and said appointee cannot claim regularization as a matter of right and Executives as well as the Court also debars from regularization of those appointees who are appointed dehors the due process of selection. He also relied upon in the case of Surinder Prasad Tiwari, Appellant v. U.P. Rajya Krishi Utpadan Mandi Parishad and Ors., Respondent, and further submits that the daily-wager, ad hoc employee, probationer, temporary or contractual employee appointed or engaged without following the procedures laid down under Articles 14,16 and 309 of the Constitution have no right to be continued in engagement and or service as their initial engagement/appointments are contrary to the provisions of Constitution and as such the said engagement itself is a nullity in the eye of law. Hence, the petitioner has no right to assail the valid order of discontinuing the engagement. However, regarding non payment of wages, the learned Counsel appearing for the State respondents fairly left the matter to the Court.
6. The argument as well as the records available before this Court have been duly considered. Having regards to the rival contention and the pleadings, this Court is fully in agreement with the submissions of the state counsel and fails to accept the contention of learned Counsel for the petitioner. This Court in the case of Smt. L. Memtombi Devi, Petitioner v. State of Manipur in W.P.(C) No. 1046 of 1999 had already observed that when thousands of unemployed youths are waiting for engagement in accordance with due process of selection, it is not open for the authorities to engage persons dehors of the rules, depriving those thousands of unemployed, who are waiting to get their bread and butter by way of employment in the due process of selection. At the same time, Court cannot close its eyes from reality. In some times, it is necessary for the government to engage persons even without following procedures to complete urgent nature of work or when an employee is on leave vacancy, but that will be for a short term, so that the urgent nature of work can be done to save the people from their sufferings, and, urgent administrative works not for normal functioning of the administration. In the instant case, it is admitted position that the petitioner was engaged without following the normal selection procedures in violation of the Constitutional schemes prescribed under Articles 14,16 and 309 of the Constitution. Hence, the said engagement of the petitioner cannot be conferred any right to him for consideration to be re-engaged, as Muster Roll Peon, as prayed for, being his selection itself is dehors of normal procedure, in otherwise nullity.
7. This Court also observed in the case of Smt. L. Memtombi Devi (Supra) that Govt. being an impersonal machinery and it cannot work by itself, it has to take decision and do work through its employees and officers. If any officer or employee acted contrary to the policy decision of the Govt. and provisions of the rules without following the normal procedures laid down for engagement, the responsibility for such wrong action cannot be fixed against the Govt. In the instant case, it is admitted position, as stated earlier, that the petitioner was engaged on contract basis without following the necessary procedures prescribed for selection and in terms of conditions of his engagement, the authority has the power to discontinue him as M.R. Peon. Doctrine of discrimination is applicable in a case where enforceable right of a citizen is existed. In the present case, the petitioner's initial appointment, being nullity, he has no right to be continued to the post for which he has been engaged, unless the authority extends the period of the engagement. Hence, violation of Articles 14 and 16, as contended by the learned Counsel for the petitioner, does not arise. This Court considers the case of Surinder Prasad Tiwari (Supra), as referred to by the State Counsel. After going through the aforesaid judgment of the Apex Court in Surinder Prasad Tiwari (Supra), this Court is of the opinion that the law relating to regularization/absorption of daily-wager, ad-hoc employee, probationer, temporary or contractual employee are no longer res integra and the said case has some bearing on the point and their lordships of the Apex Court in the aforesaid case, expressed their views in a clear and unamibiguous manner relating to Constitutional scheme and stated that the Courts cannot continue any appointment of public office which has been made against the Constitutional scheme. In view of the aforesaid case also, the petitioner has no right to be continued, as a M.R. Peon, as his engagement has been made against the Constitutional scheme by the authority.
8. Regarding non payment of wages to the petitioner since December, 2002 till the date of discontinuing the engagement, this Court is of the considered view that the authority, after taking benefits of the labour of the present petitioner, has no right to withheld the same being a model employer. Court cannot allow the authority to withhold wages of an employee/worker, particularly a Muster Roll Peon, like the petitioner which, he is entitled, as he discharged his duties valid order and/or instruction of the authority. If such a wrong action of the authority is allowed to be continued, then that will be an injustice to the petitioner and the petitioner will become the victim of forced labour by a model employer which is totally unwarranted. However, considering the aforesaid facts and circumstances, this Court finds nothing to interfere with the order of discontinuance of the engagement of the petitioner as a Muster Roll Peon, but at the same time it shocks the mind of the Court that the poor petitioner, though served the State as engaged Muster Roll, he was not paid his wage as due, even after filing this Writ Petition till date which is unwarranted as stated earlier. A citizen has some expectation from the Govt., a model employer, when he discharges his duties as per the instruction of authority as engaged. In the instant case, the petitioner discharged his duties as Peon, i.e., a lower strata employee; he has more expectation than the expectation of the white colour people. But the action of the Govt. relating to payment of wages, evidently speaks that the authority tried to treat him as their bonded labour, which is unbecoming for a model employer. Hence, the respondents are directed to pay all the wages of the petitioner as due, for the period of and from December, 2002 till the date of his discontinuing the engagement within a period of one month from the date of receipt of the judgment and order.
9. The petitioner is directed to furnish a copy of this order to the respondents, particularly respondent No. 2.
With the aforesaid observation and direction, this writ petition is disposed of.