Shashi Kant vs State of Rajasthan and Others

V.K. Singhal, J.—The petitioner has challenged the order of termination dated 10.5.1991 alleging that he was a regularly selected employee against a clear vacancy and due process was followed for selection. The appointment was for indefinite period and therefore it should have been treated substantive. The alleged absence would fall within the misconduct for which the respondents were under obligation to make an enquiry and since the enquiry has not been made, the order of termination is illegal. It is also submitted that the petitioner was allowed leave for the period from 15.2.1991 to 9.8.91 and therefore the order of termination could not have been passed on 10...91

In order to appreciate the above contention of the petitioner, the facts as submitted by the learned counsel for the petitioner are that the petitioner was appointed vide order dated 28.3.1987 on daily wage basis at the rate of Rs. 11/- per day temporarily. In the order of appointment it is mentioned that two posts of daily wage employees are lying vacant and the petitioner having fallen ill on 14.2.1991 he submitted an application for grant of leave. In the meantime on 26.4.1991 he was transferred from Harmora to Government Upper Primary School Sapunda Arai, District Ajmer. It is stated that the petitioner remained ill till 9.8.91 and he submitted the medical fitness certificate of Government Digi City Dispensary Ajmer. The treatmeni was taken firstly from private medical officer and then at JLN Hospital Ajmer till 8.7.91. Applications for medical leave were sent by registered post. On 10.8.1991 when the petitioner alongwith the father reached at Sapunda Aral in the Government Upper Primary School and submitted his joining report to the Headmaster, he was not allowed to join. He moved the Distt. Education Officer Ajmer on 12.8.91 but nothing was done. This also submitted that 10 days time is given for joining and the order of transfer was served on 1.5.91. The order of termination could not have been bassed on 10.5.1991.

Reliance has been placed on the decision in the case of Union of India and others Vs. Giriraj Sharma, where the dismissal merely on the ground of over-staying leave period was considered as harsh and dis-proportionate punishment.

Reliance has been placed on the decision in the case of Kalu Ram v. State of Rajasthan and Ors. 1993 (1) WLC 447 wherein the termination of service on the ground of misconduct of voluntary absence from duty for 29 days without notice to the petitioner and without making any inquiry was considered violative of principles of natural justice. Even in the case of probationer, it is submitted that discharge from service without making any inquiry is not Justified as has been held by the Apex Court in the case of Anoop Jaiswal v. Government of India and Anr. 1984 (1) SLR 426. In the case of Ram Kishore v. Government of India 1982 (1) SLR 602, the Allahabad High Court held that termination of services of a temporary employee for over-staying the leave or that he was absent on leave beyond the period permissible under the service rules, is illegal. The decision in the case of Jalaluddin v. RSEB and Ors. WLR 1993 Raj. 319 has also been relied on the point that if the order does not contain any reason for retrenchment nor any alleged misconduct has been shown, then it cannot be said to be a case of termination simplicitor. The principles of natural justice have to be followed. Reliance has also been placed on the decision in the case of Sohanlal v. The State and Anr. WLR 1992 Raj. 63 wherein the termination of service with retrospective effect was found unjustified.

The decision in the case of Jarnail Singh and Others Vs. State of Punjab and Others, has also been relied upon to show even in a case where the appointment is an ad hoc basis, and there was a circular of the Government to regularise these service, the termination of service on expiry of the term on the basis of adverse remarks and alleged embezzelment was held illegal as it was a punishment order for which compliance of Article 311.was not made. Reliance has been placed on the case of MD Gujrat Water Resources Devp. Corpn Ltd v. Kanhalyalal Ambalal Shah 1994 Lab IC 1170 where termination of service without notice on the ground of long absence was held illegal.

I have considered over the matter. From the order of appointment dated 28.3.87 it is evident that the appointment of the petitioner was purely temporary and on daily wage basis. The inference which the learned counsel for the petitioner has drawn is that the appointment was against a clear vacancy. No document has been produced from which it would be evident that the alleged application for medical leave which were submitted were accepted. In the case of a daily rated employee there is no provision under which an application is required to be submitted for leave or leave is granted. No document has been produced from which it may be evident that the leave was ever granted.

I need not go into the controvers, whether the petitioner was ill or not and which were the circumstances under which the petitioner remained absent from 15.2.1991. The order of transfer is not in dispute before me. Even according to the submission of the learned counsel for the petitioner it was served on him on 1.5.91. What steps have been taken thereafter have not been stated. The mention of the fact that the petitioner remained on medical leave from 15.2.1991 to 9.8.91, as stated in the reply of the respondents, is of no assistance to the petitioner because it has not been stated that the said leave was ever sanctioned. The various decisions which have been cited are applicable to those employees who have been appointed against the substantive posts temporarily or on probation. The word selection committee; as mentioned in the order of appointment cannot be interpreted to mean that it was against the substantive post. Even for temporary appointment the respondents may take the assistance of the selection committee.

Learned counsel for the petitioner has also submitted that the petitioner is entitled to equal pay for equal work and reliance has been placed on the cases of, Mulidhar v. State of Rajasthan and Ors. 1993 Lab IC 1862, Vijay Kumar v. State of Punjab 1993 Lab IC 2364 ,Ramesh Chand v. State and Ors. 1992(3) WLC 531 , Daily Rated Casual Labour Employed under P and T Department Vs. Union of India (UOI) and Others, , and Randhir Singh Vs. Union of India (UOI) and Others, . The question whether the petitioner was performing the same duties is again a question of fact. Even with regard to the allegation that the order of termination is bad in law, the petitioner had an alternative remedy, and for equal pay for equal work which is now contended after the order of termination has been passed, the petitioner has an alternative remedy for that also.

In the reply the respondents have stated that the services of the petitioner were terminated because his work was not satisfactory and his appointment was on daily wage basis and not against the regular or on substantive basis. I also consider that in a case of daily rated employee-it is his option to come to work on a particular day or not to come. Neither any action can be taken against him for the absence nor it amounts to indiscipline. Similarly, the employer is also free to continue or not to continue the services of such an employee and when his services have been found not satisfactory, there was no requirement of principles of natural justice for hearing the petitioner before passing the said order.

Taking into consideration the over-all facts and circumstances of the case, I do not consider that the present one is a fit case for exercising extra-ordinary writ jurisdiction of this court under Article 226 of the Constitution of India.

Consequently, the writ petition is dismissed.