Indian Kanoon - Search engine for Indian Law

D. Raju, C. J.

1. The above writ petition has been filed seeking for the issue of a writ to set aside the memo, dated August 22, 1992, filed as Annexure P-5, whereunder the services of the petitioner have been dispensed with and for a consequential direction to the respondent to continue the petitioner in their employment.

2. The case of the petitioner is that he did his matriculation from H.P. Board of School Education in 1981 that he also did his Diploma in Stenography from Industrial Training Institute at Nahan, that he possessed the knowledge of Typing, both in Hindi and English and with such qualification, the petitioner is eligible for employment as Clerk in Government departments, semi-Government departments or other institutions owned and controlled by the Government. The further claim of the petitioner is that he got himself registered with the Employment Exchange, Una, since 1981 that the third respondent-temple was taken over by the Government among other temples by enacting the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act and the provisions contained in the Act and the Rules providing for general superintendence and control of the temple/religious institutions, were therefore, applicable and the administration of the temple is under the general superintendence, and control of the Commissioner and the temple trust constituted with a President for the temple trust, who is in turn appointed by the Government in consultation with the Commissioner of the trust. The further claim of the petitioner is that the President of the temple trust pertaining to the third respondent-temple sought for applications from eligible persons for the posts of Accounts Assistant-I, Typist-cum-Stenographer (Hindi and English)-1 and two drivers vide their advertisement dated February 21, 1990 calling upon the persons interested to appear for oral interview and the petitioner after such interview being eligible for the post of typist is also for stenographer was recommended for the post of steno-typist pursuant to such appointment. The President of the temple trust is stated to be the Sub Divisional Officer (Civil) Amb. and it is also claimed that the services of the petitioner were utilised for some time in the temple and some time in the office of the Sub Divisional Officer (Civil) Amb as it is obvious from the office order dated August 30, 1990 and December 6, 1990, filed as Annexures P-3 and P4 respectively. The petitioner would also claim that he has been discharging his duties to the satisfaction of the authorities without giving room for complaint, but yet has been served, in spite of all this, with a memo dated August 22, 1992 dispensing with his services with effect from August 22, 1992 and such memo appears to have been passed on the basis of an office order dated August 21, 1992, filed as Annexure P6. The petitioner on the basis of the above and on the presumption that the memo dispensing with the services of the petitioner came to be passed as a sequel to the abolition of the post of Steno-typist, which was considered to have been unnecessary for the temple by the Temple Officer has filed this writ petition. The petitioner also claims that the post in various temples are created and sanctioned by the Commissioner concerned and appointed to the post were also finally approved by the Commissioner and it is only the Commissioner or President of the Trust who is competent to appoint or remove the employees in the temple and the Temple Officer, who is said to be of the rank of Tahsildar in the Revenue Department can neither claim to have the power or authority to abolish the post or put an end to he appointment of a person in the service of the temple and, therefore, the order under challenge is liable to be set aside and the petitioner be granted the reliefs as prayed for.

3. Respondents No. 1 to 4 have filed a common reply, in which it is stated that the, control of the temple vests no doubt in a Committee appointed by the Government under the Act and the Deputy Commissioner of the District discharges the duties of the Commissioner under the Act in respect of the temple, that the advertisement, referred to by the petitioner, issued in the newspaper envisages the filling up and appointment of the persons in temporary character since the work load did not justify the appointment in a permanent or regular capacity and inasmuch as there was no creation of the post in the capacity, as aforesaid and, therefore, the very proceedings filed by the petitioner would belie the claim of the petitioner that he has been appointed to any regular or permanent post as such, particularly, when he was engaged only on daily wages, reiterating the stand that what was offered to the petitioner was only a temporary appointment. The right of the President of the temple trust/Committee who is the Sub Divisional Magistrate, otherwise in the Revenue Department, instead of removing the petitioner, has chosen to utilise his service, as disclosed in Annexure P-3 and P-4 and in as much as there was no work of Steno-typist in the office of the 3rd and 4th respondents, the services came to be utilised in the office of the Sub Divisional Officer, Amb. and, therefore, there was every justification for dispensing with the services of the petitioner. It is also contended in the reply for the respondents that the order under challenge was necessitated on account of the fact that there was no need for such a post or services in that capacity and inasmuch as there was no work to be done as Stenographer in the temple office and a decision was taken also after having consultation with the Deputy Commissioner cum-Commissioner, Una, and Sub Divisional Magistrate, who is the President of the temple trust and in spite of those copies having been marked for consideration, no exception was taken or objection raised by those authorities and, therefore, there was no question of any abolition involved in the process. It is also further reiterated that the services of the petitioner was hired by way of temporary arrangement since the volume of work did not justify the appointment of regular Stenographer. The further averment in the reply is that though the petitioner was offered the work of 'Sewadar' so that he is not left without any job, the petitioner did not choose to join the office. At the expense of repetition, more than once it is reiterated that volume of the work available in the temple office or temple Committee does not justify the appointment of any Stenographer on regular or permanent basis and inasmuch as the petitioner declined to serve as Sewadar, there is no basis or any right in him to make a grievance of the impugned order any longer in these proceedings. Adverting to the appointment of one Jivan Kumar, who is said to be working as Sweadar and not as a Steno-typist, it is once again stated that since the petitioner, who was offered the same appointment for the reasons best known to him, declined to join but insisted that he will work only as Steno-typist for which there was no work. The said Jivan Kumar came to be appointed. While traversing the claim made on the basis of Section 25-F of the Industrial Disputes Act, it is claimed that worship in the temple and its allied activities can by no stretch of imagination be deemed to be answering the description of an 'industry' to warrant the application of the Act of the institution or the case of the petitioner and that, therefore, there are no merits in the claim of the petitioner.

(b) The termination of the services of the petitioner is opposed to the principles of natural justice and on this ground also the same is vitiated.

(c) The abolition of the post not having been made by the competent authority it is not given to the 4th respondent to deny employment to the petitioner on the ground that there is no need for the services of a Steno-typist, and

(d) The termination effected in this case is violative of Section 25-F of the Industrial Disputes Act, 1947.

5. Per Contra, Mr. D.D. Sood, learned senior counsel appearing for the respondents while reiterating the stand taken, as noticed supra, in the reply, contended that there was no sanctioned post as such of the Stenographer, and merely because the petitioner was engaged on daily rate basis for doing the work as Stenographer, it cannot be assumed or postulated that a post has been created against which he has been so appointed even on temporary basis and that, therefore, there is no merit in the claim of the petitioner. Argued the learned senior counsel further that since what was done was the engagement of the services of the petitioner on daily rate basis, it is implied in the very term of such engagement that only as and when there is need or scope for utilising the services of the petitioner, the services of the petitioner will be availed of and he will be paid daily wages and it was well within the competency of the person, who is expected to give and extract work from him to come to the conclusion that there was no work to be given to the petitioner and when such stoppage of work on account of non existence of any work of the nature of Steno-typist has been brought to the notice of the Commissioner as also the President of the temple trust and they have had no objection to the course of action taken by the Temple Officer, the petitioner cannot make any legal grievance whatsoever in this proceeding under Article 226 of the Constitution of India. A plea of implied consent and concurrence by those authorities has also been urged incidentally. As for the claim under Section 25-F of the Industrial Disputes Act, is concerned, the learned senior counsel for the respondents contended that the third respondent temple having regard to the nature and functions carried on in the temple cannot be brought under the definition of 'industry' within the meaning of the Industrial law and, therefore, there is no merit whatsoever, in such a claim and even if it is to be assumed for the purpose of arguments, such claim if at all can be pursued and projected only before the Courts/Tribunals constituted under the Industrial Disputes Act, since they involve consideration of factual issues and cannot therefore, be pursued in this proceeding under Article 226 of the Constitution of India. Finally, the submission of the learned senior counsel for the respondents is that inasmuch as there was no scope to engage him regularly as Steno-typist having regard to the nature of work involved and the workload in the office of respondents No. 3 and 4, which resulted in dispensing with the services of the petitioner, the respondents have bona fide offered to engage and avail his services as 'Sewadar' and in spite of the same the petitioner has turned down and was adamant in not reporting or joining duty in spite of the directions of this Court, the respondent cannot be blamed for the misfortune, if any, and the petitioner cannot be shown any indulgence, whatever, in this proceeding under Article 226 of the Constitution of India.

8. Coming to the question of applicability or otherwise of the provisions of the Industrial Disputes Act and the claim projected under Section 25-F of the Act as we are of the view that for the reasons already set out supra the petitioner cannot make any legitimate grievance of any termination of his services at all, particularly, when it is not the case of the petitioner that there exists even now a post which somebody else has been appointed as a Steno-typist in the office of respondents No. 3 and 4. Strong reliance has been placed by the learned counsel for the petitioner on the decision of a Division Bench of this Court, to which one of us (LOKESHWAR SINGH PANTA, J.) was a party, rendered on September 1, 1998 in a batch of writ petitions. C.W.P. No. 270 of 1998 etc. whereunder the Division Bench appears to have taken a view, while considering a claim about the applicability of the Industrial Disputes Act to a temple, known as, Baba Balak Nath Temple Trust, Deotsidh, District Hamirpur, and it was held therein by the Division Bench, as could be seen from the peculiar nature of the activities and works undertaken by the temple, as noticed in paragraph 7 of the said judgment that it satisfied the requirements to attract the provisions of the Industrial Disputes Act to the said temple trust, which in view of the Division Bench answered the description of 'industry' as defined under Section 2(j) of the said Act. It is not for us to go into correctness or otherwise of the said view in this case. The question as to whether a particular institution would fall within the definition of 'industry' has to be dealt with in the teeth of the fact situation pertaining to that individual institution and on the basis of proper and sufficient oral and documentary evidence and merely because a particular temple has been held to answer the description of 'industry', it cannot be and ought not to be readily assumed as a matter of course that any temple the administration of which has been taken over under the Act, will ipso facto constitute an 'industry' irrespective of satisfaction of any other criteria. It is not as though the Division Bench has merely come to the conclusion in the other case that the institution concerned therein answered the description of 'industry' for the purpose of Industrial Disputes Act, merely because, it was a temple of some magnitude or importance alone. Consequently, we see no merit, whatsoever, in the claim made about the applicability of the Industrial Disputes Act to the third respondent-temple, in the absence of any iota of material to bring the third respondent-Temple Trust within the meaning of Section 2(j) of the Industrial Disputes Act. 1947. Consequently, the question of retrenchment within the meaning of Section 2(oo) does not arise and inevitably Section 25-F cannot in any manner come to the rescue of the petitioner.