Ram Dayal v. State of U. P — 1980 DIGILAW 888 (ALL)

JUDGMENT S.C. Mathur, J. - These seven petitions raise common questions of law and hence they were heard together and are being disposed of by a common judgment. The petitioners in these seven petitions are aggrieved by the order passed by the Administrator, Town Area Committee, Ikona district Bahraich constituted under Section 5 of the U.P. Town Areas Act, 1914, by which their services were terminated. 2. The seven petitioners were appointed Octroi Moharrirs on various dates. By notification dated 21-4-1979 issued by the State Government road tax and transit fee were abolished. The consequence of the abolition of the tax and the fee was that the staff engaged in connection with the realisation of the tax and the fee became surplus and liable to be retrenched. By this notification the State Government provided for retention of the staff. In furtherance of the policy of retention of staff a Government Order was issued on 9-5-1979, a copy of which has been annexed as annexure no. 3 to the writ petition. The Town Area Committee, however, by orders dated 12-12-1979 terminated the services of the petitioners. These orders have been challenged by the petitioners on the ground that the same are arbitrary and have been passed in violation of the Government notification dated 21-4-1979 and Government order dated 9-5-1979. It has been stated in the writ petitions that the State Government had agreed to compensate the Town Area Committee in respect of the expense which it, was required to bear on account of the retention of the incumbents on the post of Octroi Moharrirs inspite of abolition of the road tax and the transit fee. It has also been stated that the State Government actually advanced compensation to the Town Area Committee for recoupment of its loss. 3. The petitions have been opposed on behalf of the Town Area Committee. On behalf of the Committee it has been asserted that on the abolition of the road tax and the transit fee, the services of Octroi Moharrirs were no longer required and the pot was abolished. However the petitioners were put on other works but their performance on the said other works was very poor and unsatisfactory and, therefore, their services were terminated. However the petitioners were put on other works but their performance on the said other works was very poor and unsatisfactory and, therefore, their services were terminated. It has also been pointed out in the counter-affidavits, that the amount realised by the petitioners was less than the amount which the Town Area Committee had to pay to them as their wages. 4. The petitioners have based their claim primarily on the Government Notification and the Government Order. The first question that arises for consideration is whether that State Government has any power under the U.P. Town Area Act to issue directions to Town Area Committee. The only provision under which power to issue direction has been reserved is Section 25. This section reads as follows : - "25. Power to require committee to carry out certain orders - The State Government may, by order, require a committee to carry out any scheme detailed in such order for the drainage of the Town Area of for the provision of an adequate supply of pure drinking water for the Town Area or for the improvement of the roads or for the conservancy of the town." Under the above section the State Government can issue an order to the Town Area Committee in respect of specified matters only. These matters relates to drainage if the Town Area, adequate supply of pure drinking water, improvement of roads and for the conservancy of the town. Our attention was not drawn by the learned counsel for the parties to any other provision under which a direction or an order could be issued by the State Government to Town Area Committee. Sections 9 to 13 deal with the staff of the Town Area. Under section 10 the Chairman of the Town Area is the appointing authority in respect of the permanent staff of the Town Area. Under Sub-section (2) of Section 10 the disciplinary control over the staff vests in the Chairman. Under Section 11 the Town Area Committee can appoint temporary staff to supplement the permanent staff. Section 12 contains prohibition against appointment of any person except in accordance with the provisions of sections 9, 10 and 11. Under Section 13 the employees of the Town Area Committee are to be deemed public servants within the meaning of Section 21 of the Indian Penal Code. Section 12 contains prohibition against appointment of any person except in accordance with the provisions of sections 9, 10 and 11. Under Section 13 the employees of the Town Area Committee are to be deemed public servants within the meaning of Section 21 of the Indian Penal Code. From these provisions it would appear that the power to appoint staff vests in the Chairman of the Town Area Committee and m the Town Area Committee itself. The power to terminate the services and to impose punishment also vests in either the Chairman or the Town Area Committee. The State Government does not come in the picture either at the-stage of appointment or at the stage of termination of services or imposition of punishment. In the circumstances the Government notification and the Government order relied upon by the petitioners cannot be said to be mandatory so as to be binding upon the Town Area Committee. In the counter-affidavits filed on behalf of the Town Area Committee it has been stated that the Government Order and the Government notification were not mandatory but were merely recommendatory. In view of the fact that the requirement for retention of, the staff contained in the notification and the order does not have a statutory basis, we hold that the said order and the notification were not mandatory and the Town Area Committee was not obliged to follow them. In this view of the matter the petitioners cannot claim any writ on the plea that the Town Area Committee has violated the notification and the Government Order. 5. The facts and the circumstances of the case however, indicate that the Town Area Committee did not ignore the notification and the Government Order. It has been stated in the counter-affidavits that the petitioners were placed on other jobs but their performance on the said jobs was unsatisfactory and, therefore, their services were terminated. Averment to this effect has been made in Para 21 of the counter-affidavit. There is no denial in the rejoinder affidavit of the fact that the petitioners were put to other works. All that has been stated in the rejoinder affidavit is that the allegation of unsuitability as a ground of termination was concocted. On facts, therefore, we are of the opinion that the Town Area Committee did not violate the Government notification and the Government Order. 6. All that has been stated in the rejoinder affidavit is that the allegation of unsuitability as a ground of termination was concocted. On facts, therefore, we are of the opinion that the Town Area Committee did not violate the Government notification and the Government Order. 6. It was then contended by the learned counsel for the petitioners that the petitioner had been adjudged unsuitable on illusory grounds. In paragraph 21 of the counter-affidavit it was indicated that the seven petitioners together realised only Rs. 7,000.09 as tax while the Committee had to pay them Rs. 7503.12 as their wages. The Committee has also given the realisation of each petitioner and the amount paid to him. In respect of each petitioner the position is that the amount of realisation is less than the amount paid to him as wages This factual position has not been disputed in the rejoinder affidavit All that has been stated in paragraph 14 of the rejoinder affidavit is that apart from the amount realised by the petitioners the Town Area Committee had received grant from the State Government and, therefore, the petitioner services could not be terminated on account of the fact that the realisation was less than the amount paid towards their wages. At the time of arguments it was also argued by the learned counsel for the petitioners that the petitioners realised whatever amount was outstanding and therefore the could not be adjudged unsuitable merely on the ground that the amount realised was less than the amount spent on them by way of their wages. No such assertion has been made in the rejoinder affidavit. It is not open to the courts to examine the sufficiency of the material for adjudging the unsuitability of an employee. The Town Area Committee has indicated in the counter-affidavit that the unsuitably of the petitioners had been adjudged on relevant grounds. We are satisfied that the termination of petitioner's services does not suffer from arbitrariness. An employer can resort to abolition of post and termination of service where he finds that it is uneconomical to retain a certain post. The Town Area Committee has indicated in the counter-affidavit that the unsuitably of the petitioners had been adjudged on relevant grounds. We are satisfied that the termination of petitioner's services does not suffer from arbitrariness. An employer can resort to abolition of post and termination of service where he finds that it is uneconomical to retain a certain post. In the present case the Town Area Committee tried to absorb the petitioners on other jobs when the post of Octroi Moharrirs was abolished consequent on abolition of road tax and transit fee but the retention of the petitioners was found to be uneconomic and the Committee, therefore, decided to terminate their services. Termination of services in these circumstances cannot be said to be arbitrary. Termination is based upon relevant considerations and cannot be assailed. 7. There was some controversy between the parties as to whether the petitioners were temporary employees or they were daily wage earners. It is not necessary to go into this controversy because even if the petitioners are treated to be temporary employees the order of termination does not suffer from any infirmity in view of the discussion contained hereinabove. 8. The learned counsel for the petitioners tried to assail the termination orders with reference to the decision of their Lordships of the Supreme Court in The Manager, Government Branch Press and another v. D.B. Belliappa, (1979) 1 SCC 477 . This case has no application to the facts of the case on hand. In Belliappas case the order of termination of temporary servant was challenged on the ground of violation of Article 16 with the allegation that the juniors to him whose service record was not better than his own had been retained while his services were terminated. In spite of opportunity being granted, the employer faded to produce any material before the court on the basis of which Belliappa could be put in a class separate from that of his juniors who had been retained in service. In the present petitions there is not even a whisper of discrimination. There is no allegation that anybody situated similarly to the petitioners but junior to them has been retained in service while petitioners services have been terminated. 9. The law relating to termination of temporary service of a public servant is well settled. In the present petitions there is not even a whisper of discrimination. There is no allegation that anybody situated similarly to the petitioners but junior to them has been retained in service while petitioners services have been terminated. 9. The law relating to termination of temporary service of a public servant is well settled. If the termination order itself casts a stigma on the employee it can be challenged. If the order itself does not cast any stigma and is innocuously warded but the foundation for the order is charge of misconduct then also the order would he amenable^ to challenge. In this connection a distinction has to be drawn between misconduct and unsuitability. The order would be amenable to challenge only if it is founded on the allegation misconduct: it will not be open to challenge if it is based on unsuitability of the employee. It may also be challenged where it is the result of the malafides of the terminating authority against the employee. A further ground of challenge may be where the order of termination results in the employee being discriminated against others similarly situated as in Belliappa's case (supra). In the case on hand the order of termination is innocuously worded. It does not cast any stigma against the petitioners one of the other grounds mentioned hereinbefore also exists. The exercise of the right of termination by the employer is therefore not colourable. 10. At this stage we may also dispose of the application moved by Sishupal Singh petitioner in writ petition no. 82 of 1980. In this applies in it has been alleged that in spite of the stay order granted by this Court salary had not been paid to him regularly by the Town Area Committee. On this basis it is alleged that opposite-party no. 2 is in contempt and cannot therefore be heard until it has purged itself of the contempt. In view of the fact that the writ petitions are being dismissed, no orders are required on this application. 11. In view of the above the petitions are dismissed but without any order as to costs. Stay orders shall stand discharged.