Rajasthan High Court - Jaipur
Rajasthan State Electricity Board And ... vs Rajesh Kumar on 8 May, 1992
Equivalent citations: 1992(3)WLC58, 1992WLN(UC)342
JUDGMENT K.C. Agrawal, C.J.
1. This appeal has been preferred by the Rajasthan State Electricity Board (for short 'Board') against the judgment of a learned Single Judge allowing the writ petition directing the Board to constitute an appropriate committee for absorption of the respondent in the regular service of the Board. The Board had further been directed to be given all consequential benefits with retrospective effect.
2. The respondent-Rajesh Kumar was employed as an Orderly with effect from 18.1.1979 on a consolidated salary of Rs. 240/- p.m. at the residence of Shri J.N. Purohit, who was then the Chief Engineer working with the Board. The respondent continued in the employment of Shri J.N. Purohit and had been obtaining Rs. 240/- p.m. as salary. Shri J.N. Purohit retired from service on 28th Feb. 1989 on attaining the age of superannuation. Thereafter, the respondent submitted an application on 3.4.1989 to the Board for his absorption in regular service of the Board. Alongwith this application, he also filed a certificate from Shri J.N. Purohit that the respondent was in his employment as ClassIV employee and had rendered ten years satisfactoiy service. The respondent was not absorbed, therefore, he filed the present writ petition mainly on the ground of discrimination and asserting violation of Articles 14 and 16 of the Constitution.
3. The appellant resisted the writ petition by asserting that the respondent was not an employee of the Board having been kept by Shri. J.N. Purohit for doing domestic work at his residence. He was not discharging any work of the Board. On retirement of Shri J.N. Purohit, the respondent's service automatically came to an end.
4. The learned Single Judge allowed the writ petition by holding that the Circular dated January 6, 1979 taking a policy decision of the Board regarding engagement of Orderlies made the respondent an employee entitled to be regularised on fulfilling the conditions mentioned in the said circular. The learned Judge's view was that the Board was estopped from asserting that respondent was not entitled to regularisation being not a servant of the Board. The learned Singly Judge applied the principle of promissory estoppel for reaching to this conclusion.
5. Another circular dated 9.5.1989 had been filed by the respondent. Four paragraphs of this circular relied upon are reproduced below:
Orderlies who have completed a period of one year or more but less than two years as on 9.5.89 shall be retrenched with immediate effect and the officers concerned with whom such Orderly is working will prepare a bill of retrenchment compensation alongwith the notice pay as under: The orderlies who have completed service for 2 years or more as on 9th May, 89 and who do not want to be absorbed in the services of the Board may also be retrenched after following the same procedure as mentioned above.
For those Orderlies who have completed two years continuous period as on 9.5.89, the officer concerned will furnish the information in Annexure v. in triplicate immediately and forward the same to the Circle Personnel Officer duly verified by the Cricle Accounts Officer. Where Personnel Officer has not been provided, then the officer concerned will furnish the required information to the head of the office. The Personnel Officer or the Head of the Office would forward the consolidated information positively by 30.5.89 to the Director of Personnel in the Board.
A committee constituted as per the orders of the Board would screen the cases of all such Orderlies and would recommend their absorption or otherwise in class IV or in other suitable and equivalent cadres.
6. Taking the view that the two circulars established that Orderlies though appointed by concerned Officer, were treated to be under the employment of the Board and the payment of consolidated salary was being made by the Board and not by the individual officer from his pocket.
7. Having heard the counsel for the appellants, we are unable to sustain the judgment of the learned Single Judge Rs. 240/- p.m. had been paid by the Board to Shri J.N. Purohit by way of help to him to engage a domestic servant of his choice. That did not bring about any relationship of employer and employee between the Board and the respondent. The respondent had no claim of being an employee of the Board by virtue of his engagement by Shri. J.N. Purohit. For all intends and purposes, it appears to us that the respondent was an employee of Shri J.N. Purohit. As soon as Shri J.N. Purohit retired, his employment also came to an end. It was thereafter that Rajesh Kumar moved an application for being regularised. During the time when Shri J.N. Purohit was in employment, no claim of being an employee of the Board was ever made by Rajesh Kumar. The circular dated Jan. 6, 1979 did not bring about any relationship of employee and employer between the respondent and the Board. It simply offered a facility to its engineers, who were given Rs. 240/- p.m. as a consolidated amount for being paid to the domestic servant. His terms and conditions were of a precarious nature and that did not make him an employee of the Board.
8. The right given by this circular to claim regularisation was not an acceptance of the respondent's being an employee of the Board. It simply provided that on completion of two years continuous service, the respondent became eligible for being absorbed on regular basis against the requirement of sanctioned strength of Class-IV servants. This circular dated Jan. 6, 1979, however, was never given effect to and nothing had been brought on record to show that the respondent ever claimed regularisation and absorption on its basis.
9. So far as the circular dated 9.5.1989 is concerned, we have not been able to show that conditions for applying the said circular had been satisfied in the case. In the absence of proof of those conditions, no right could accrue to the respondent. In the certificate given by Shri J.N. Purohit also what was emphasized was that he worked at his residence from 18.1.1979 to 28.2.1989 and was found obedient. Shri J.N. Purohit did not anywhere mention that he was an employee of the Board and that salary was given to him by the Board. It is no-where established that he was in the muster roll of the Board and that his terms and conditions of employment were those which had been prescribed by the Board.
10. The learned Single Judge has relied on two circulars, one of which was dated Jan. 6, 1979 and held that the appellant had undertaken to absorb the respondent on a permanent basis and that having not been done, the appellant was estopped under the law from redressing its steps and contending that the respondent had not acquired any right under the same. To the same effect is the view of the learned Single Judge with regard to the circular of the year 1989.
11. We have also referred to these circulars earlier and are unable to persuade ourselves to agree with the interpretation placed by the learned Single Judge on them. Although, the doctrine of the promissory estoppel, unlike ordinary equitable estoppel, has the consequence that principles of estoppel may be applied to one making a promise or assurance concerning the future, nevertheless other elements of estoppel must be satisfied. It has been held that the offer or promise forming the basis of the estoppel must be reasonably certain and definite. In the instant case, neither of the two circulars can be interpreted meaning making a promise or assurance concerning the future that the respondent could be permanently absorbed. These circulars are vague and uncertain. What has been found by the learned Single Judge was that there was inaction on the part of the appellant in not acting in according with the assurance contained in them. Mere inaction cannot give rise to a promissory estoppel. If a right had accrued to the respondent under the circular of the year 1979, he should have taken steps available to him under the law. He did not take any action under the same. He continued working as a domestic servant on payment of Rs. 240/- p.m. If the interpretation of the learned Single Judge is accepted that the respondent had accrued the right to be made permanent under it, the said right should have been agitated at the proper forum and at the proper time. Same appears to be the position with regard to 1989 circular.
12. Counsel for the appellant urged and rightly in our opinion that the respondent was under a duty to speak immediately after the circular of the year 1979 came into force when he had an opportunity to do so. Having not done so, the respondent himself created an unfavourable position.
13. Reliance was placed on a judgment of this Court in Rajasthan State Electricity Board and Anr. v. Ashok Lot In that case, a similar question arose as in the present case. The appeal was disposed of in favour of the employee taking a liberal view that he being the only person involved in that appeal should not be thrown out of employment. But, in the instant case, the position is different.
14. In Employer in relation to Punjab National Bank v. Ghulam Dastagir 1978 Vol. 1 L.L.J. 312, the Supreme Court was required to consider whether the respondent employed as a driver by the Area Manager of the appellant Bank in Calcutta who was paid the salary out of the personal allowance given to the Area Manager by the Bank was an employee of the Bank. The Supreme Court held:
Held, there is nothing on record to indicate that the control and direction of the driver vested in the Bank. After all, the evidence is clearly to the contrary. In the absence of material to make out that the driver was employed by the Bank, was under its discretion and control, was paid his salary by the Bank and otherwise was included in the army of employees in the establishment of the Bank, it cannot be assumed that the crucial point has been proved. There is no camouflage or circumvention of any Statute. There is no nexus between the driver and the Bank. Hence the tribunal's award has to be set-aside.
Their Lordships, however, observed that the system of allowance in a country where unemployment is rampat may lead to individual injustice and exploitative edge. This is not a desirable tendency for a public sector under taking like a nationalised Bank which has an obligation to be a model employer.
15, In the result, this appeal succeeds and is allowed and the judgment of the learned Single Judge is 3et-aside. There will be no order as to costs. However, if the respondent could be accommodated in the service of the Board by giving an offer to be effective from 1st July, 1992 of the post of Orderly, the Board would consider the same. Of-course, this would be subject to his selection by the Board.