Rajasthan High Court - Jaipur
Kailash Chand Verma vs Panchayat Samiti And Ors. on 18 July, 1995
Equivalent citations: (1998)IIILLJ423RAJ, 1996(2)WLC649
ORDER Arun Madan, J.
1. The grievance of the petitioner, as unfolded by this writ petition, briefly stated, is that the petitioner was appointed as a daily rated employee in the Famine Relief Department of Panchayat Samiti, Kishanganj, on June 18, 1988 at the rate of Rs. 20/- per day vide Ex.1. It has been contended in the writ petition that the petitioner used to be paid Rs. 600/- per month at the close of English calendar month i.e. at the first of every English month which clearly implied that he used to be paid for 30 days in a month without excluding Sundays and holidays. It has been further contended that the petitioner has been regularly attending his duties and marking attendance in the Attendance Register/Muster Roll maintained in the office of the respondents. According to the petitioner he discharged his duties satisfactorily for more than a year in the industrial establishment of Panchayat Samiti, Kishanganj in the cadre and category of Lower Division Clerk (LDC). The services of the petitioner were dispensed with by the respondents vide letter dated February 8, 1990 (Ex.3) on the charge of negligence and carelessness in the matter of maintaining Dak Ticket Register. It has been further contended that before the petitioner furnished his explanation to the Vikas Adhikari his services were terminated/retrenched vide letter dated February 2, 1990, as aforesaid. It will be pertinent to refer to Ex.4 which is letter dated February 2, 1990 in this connection, wherein it is specifically mentioned that since the services of the petitioner were not found satisfactory the same are terminated with immediate effect. It is under these circumstances that the petitioner has moved this Court by filing the present writ petition under Article 226 of the Constitution.
2. The relief sought for by the petitioner in the writ petition is under :--
"(a) Issue a writ of certiorari quashing and setting aside the illegal and unlawful order of termination/retrenchment Ex.4 and consequently direct the reinstatement of the petitioner w.e.f. February 9, 1990 with all consequential benefits and reliefs.
(b) Consequently, direct the Respondent to pay to the petitioner the arrears of minimum salary in the pay scale and grade of LDC w.e.f. June 18, 1988 after deducting the monthly salary paid to him.
(c) Direction/Mandate may kindly be issued to regularise the petitioner as LDC in the services of the Respondent No. 1, for he has rendered meritorious and satisfactory service.
(d) Costs of the writ petition may kindly be allowed to the petitioner.
(f) Any other relief in the facts and circumstances of this case may kindly be allowed to the petitioner."
3. In the reply to the show cause notice filed on behalf of Respondent No. 1 i.e. Vikas Adhikari, Panchayat Samiti & Collector, Ajmer, it has been contended that the petitioner was appointed on daily wage basis as a casual labour and not as LDC. The respondents have emphatically denied that during the entire period of service of the petitioner he continuously worked as LDC. In any event it is a disputed question of fact which cannot be decided in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. In para 6 of the reply Respondent No. 1 has specifically stated to the effect that the petitioner never worked as LDC and since his work was not found satisfactory prior to February 8, 1990 (Annex-3) two warnings were given to him vide letter dated December 29, 1989 and December 30, 1989 and notwithstanding the said warnings the petitioner did not improve his work. In reply to para 9 the respondents have contended that since the petitioner has not come to this Court with clean hands the writ petition deserves dismissal in limine. It has been further contended in para 10 of the reply that the petitioner who was allowed to work on the post of Despatch Clerk, due to administrative reasons but in terms of order dated October 26, 1989. the said work was also withdrawn from him. In any event whether the petitioner was appointed as a clerk or that he was a workman entrusted with clerical duties temporarily is a pure question of fact for which the petitioner should have availed alternative remedy of moving to the appropriate forum i.e, the Labour Court by raising an industrial dispute before the Tribunal under the provisions of the Industrial Disputes Act, 1947 (for short 'the Act'). With regard to the contention of the petitioner that his services were retrenched and that he is entitled to compensation in lieu of notice the respondents have specifically stated in para 14 of the reply that as per Section 2 (oo) (bb) of the Act, it cannot be said to be a case of retrenchment falling within the ambit of Section 25F of the Act which is neither applicable nor attracted to the facts of the present case. Moreover the petitioner has raised many disputed questions of fact regarding his pay, nature of duties, termnination of his service, certificates, letters etc. which cannot be decided by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India as the same are disputed questions of facts for which evidence has to be led in detail before the industrial Tribunal. Under the circumstances the respondents have contended in their reply that the writ petition itself is not maintainable in view of the alternative remedy of raising a dispute before the Industrial Tribunal which the petitioner has failed to avail of before moving to this Court under Article 226 of the Constitution of India.
4. In support of his contentions advanced at the bar, Shri Resham Bhargava, learned counsel for the petitioner has placed reliance upon the judgment of this Court in the matter of Madhav Prasad v. RSRTC, reported it 1989 (1) Raj LR 562. In my considered opinion the ratio of the said judgment is not applicable to the facts of this case in as much as the question which was involved for the consideration of this Court was as to whether on the expiry of the probationary period of an employee whether his services should be further extended or the same should be deemed to have been confirmed on the expiry of the probationary period. In those circumstances this Court held that the order of termination which was passed by way of punishment for alleged misconduct of the employee was not sustainable. I am further of the opinion that this is not a case of an employee whose services have been terminated on the expiry of probationary period but it is a case where it is a disputed question of fact as to whether the petitoner was appointed as LDC as so contended by the petitioner and as so controverted by the respondents that the petitioner was a daily wager and not a regular employee of the respondents.
5. Reliance has also been placed by the learned counsel for the petitioner on another judgment of this Court in the matter of Kum. Ashoka Bhatacharya v. Rajasthan Adult Education Association., reported in 1993 (3) WLC 346 (Raj), wherein the question which had arisen for consideration of this Court was regarding the termination of the services of Programmer Assistant employed under Rajasthan Adult Eduction Association, appointed on temporary basis and whose services were terminated since her work was not found satisfactory since the post of Programmer Assistant had not been abolished or the project had not been closed by the Department it was in those circumstances this Court held that the petitioner should have been given an opportunity of hearing before terminating her services and that she was even punished for not doing good work. In my considered opinion this is not a case where the services of the petitioner had been terminated on the ground of the closure of the project or for that matter the services of he petitioner have been dispensed with on account of unsatisfactory work in view of the closure of the project which is not a case here. Rather it is a case where the petitioner was not appointed on a particular post but the petitioner is claiming the relief for the post of LDC on which he was never appointed and yet the petitioner wants continuity of his services notwithstanding the unsatisfactory work for which explanation was called for by the two show cause notices, as referred to above and the reply of the petitioner to those show cause notice was also considered and examined by the respondents before terminating his services.
6. Reliance has also been placed by the learned counsel for the petitioner on the judgment of the Apex Court in the matter of Dewan Singh v. State of Haryana, reported in (1976-II-LLJ 321) (SC) wherein the question which had arisen for consideration of the Apex Court was regarding the dismissal of an employee of the Panchayat amiti for disobedience to an order of transfer and for incidents connected therewith. It was contended by the appellant before the Apex Court that he was not given opportunity of hearing prior to his termination to meet the charges in violation of Article 311 (2) of the Constitution of India and Section 124 (2) of the Panchayat Samitis & Zila Parishads, has been violated on the principles of natural justice. The Tribunal has also recorded a finding earlier that, the reply of the delinquent employee was not satisfactory one. In this context it was held by the Apex Court that even so the nature of an enquiry with an object to dismiss an employee is such where full, fair and reasonable opportunity must be given to him to meet the charges. The action of dismissal or removal cannot be sustained unless an employee has been given reasonable opportunity to defend himself. In my considered opinion the ratio of the aforesaid decision is not applicable to the facts of this case in asmuch as two show cause notices were served on the petitioner prior to terminating his services, and reply to the said show- cause notices was also called for and in fact he did submit his reply but the same was not found satisfactory by the respondents which evidently means that full opportunity of hearing was provided to the petitioner before dispensing with the services. It may be stated in this context that there are serious charges of misconduct against the petitioner and the respondents were perfectly justified in terminating the services of the petitioner.
7. Reliance has also been placed by the learned counsel for the petitioner on another judgment of the Apex Court in the matter of Managing Director, ECIL, Hyderabad v. B. Karunakar, reported in (1994-I-LLJ-162) wherein the question which had arisen was whether the report of the Enquiry Officer should be furnished to the delinquent employee even when the punishment imposed on him is other than the major punishment of dismissal, removal or reduction in rank. The Apex Court held that whenever service Rules contemplate an enquiry before punishment is awarded and when the Enquiry Officer is not the Disciplinary Authority, the delinquent employee will have the right to receive the Enquiry Report notwithstanding the nature or punishment. The ratio of the said decision is not attracted to the facts of this case in asmuch as neither any Enquiry Officer has been appointed by the Department and the punishment imposed on the petitioner is only on the basis of the show cause notices, as referred to above, for which he was given sufficient opportunity of hearing.
8. In support of his contentions advanced at the Bar Shri O.P. Sharma, learned counsel for the respondents has placed reliance upon the decision of the Constitution Bench of this Court in the matter of Gopi Lal Teli v. State of Rajasthan, reported in (1995-II-LLJ-1064) wherein it has been held by this Court that from a perusal of the , provisions referred to in Section 25F(a) and (b) which deals with the fulfilment of conditions before directing retrenchment of an employee, is a pure question of fact and in order to arrive at a conclusion/recording finding, some investigation/ inquiry has to be embarked upon which in the opinion of the Constitution Bench would be beyond the purview of Article 226 of the Constitution of India.
9. I have heard the learned counsel for the parties and also perused the relevant documents placed on the record by both the parties. It will be pertinent to refer to Annex-R/3 to Annex-R/ 6 on which reliance has been placed by the learned counsel for the respondents in support of his contentions advanced at the bar which clearly spell out the reasons to justify the termination of the services of the petitioner. Annex-R/3 is a letter dated December 29, 1989 which was served by the Management of Respondent No. 1 on the petitioner, in which there is specific mention that the petitioner had been wilfully absent from duty and has been found negligent and careless in discharge of his duties as a Despatch Clerk which were assigned to him temporarily. Similarly vide Ex-R/4 dated September 30, 1989, the petitioner was served with a second show-cause notice contending the same allegations as referred to in Annex-R/3 and it was further specified by Respondent No. I that the petitioner has not heen discharging his duties satisfactorily and that he should file his reply within 3 days. It has been contended at the Bar that the reply was submitted by the petitioner to both the show-cause notices but the same was not found satisfactory and hence it had become necessary for the management of Respondent No. I to dispense with'the services of the petitioner vide Annex-R/6 dated January 6, 1990. Thereafter the petitioner was not permitted to join the duties notwithstanding his letter dated March 8, 1990 Annex-R/7.
10. After hearing the learned counsel for the parties and after having examined the rival claims and contentions and the relevant documents on the record as well as the case law, I am of the opinion that no case is made out by the petitioner for interference by this Court under Article 226 of the Constitution in exercise of its writ jurisdiction and even on merits the petitioner is not entitled to succeed. It was, however, open to the petitioner to avail the remedy of moving to the appropriate forum even prior to the filing of this writ petition which he has not availed of. As a result of the above discussion the writ petition is dismissed with no order as to costs and the interim order dated March 31, 1995 passed by this Court is discharged.