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1992 DIGILAW 1403 (ALL)

SUDHAKAR BHUTT v. STATE OF UTTAR PRADESH

1992-10-20

D.P.S.CHAUHAN

body1992
D. P. S. CHAUHAN, J. ( 1 ) BY means of this petition, the petitioner has approached this Court impeaching the order dated november 29, 1991 passed by the Principal of the Higher Secondary School, Jwalapur, District haridwar (for brevity, hereinafter referred to as the institution), terminating his services, and has sought for a direction in the nature of mandamus commanding the respondent No. 2, chairman of the Nagar Palika, Haridwar (for brevity, hereinafter referred to as the the Nagar palika) for making payment of the arrears of salary w. e. f. December 4, 1990 upto date and continue to pay the salary together with benefits, without causing any impediment in his functioning as Class III employee. ( 2 ) NO counter affidavit has been filed. The facts, as alleged in the petition, in brief, are: (a) The petitioner has claimed himself to have been appointed in the Nagar Palika initially on july 8, 1989 on daily wage-system as a Class IV employee for a period of six months. Thereafter, the Chairman of the Nagar Palika required the petitioner to work, in addition to his work as a Class IV employee, as Typist for two hours in the Toll Tax Department of the Nagar palika. The order is annexed with the petition but is undated. The petitioner moved the Chairman of the Nagar Palika for extension of his appointment on daily wages for a further period of two months w. e. f. November 7, 1989, whereupon, the Chairman, Nagar Palika, granted extension to the petitioner for a period of 1 1/2 months by saying that in the Toll Tax Department of the nagar Palika the work of Typist is being taken from the petitioner and there is no other person knowing the typing work. (b) Subsequently, the Principal of the institution, on November 9, 1990 wrote to the Chairman of the Nagar Palika requesting him for deputing some person having typing knowledge in the institution. The institution is run by the Nagar Palika. The Chairman, thereupon, directed the petitioner for reporting in the institution where he was allowed to join as Typist on the basis of the order issued by the Principal of the institution. This appointment arrangement was for the duration till the post of Clerk-cum-Typist was sanctioned for the institution. The institution is run by the Nagar Palika. The Chairman, thereupon, directed the petitioner for reporting in the institution where he was allowed to join as Typist on the basis of the order issued by the Principal of the institution. This appointment arrangement was for the duration till the post of Clerk-cum-Typist was sanctioned for the institution. The Board in its meeting dated January 28, 1991, vide Resolution No. 1016, approved the said appointment of the petitioner in the institution. The Manager of the institution wrote to the District Inspector of schools, Haridwar (for brevity, hereinafter referred to as the District Inspector of Schools) for sanctioning a post of Clerk-cum-Typist in the institution. The post of Clerk-cum-Typist is a class III post. (c) Thereafter, on the request of the District Inspector of Schools, the Principal of the institution required the petitioner to work in the office of the District Inspector of Schools for two hours, i. e. from 9. 00 to 11. 00 A. M. and for the rest of the hours he was required to work in the institution. The petitioner accordingly worked in the office of the District Inspector of Schools for two hours and for the rest of the hours in the institution. (d) The Principal of the institution, vide order dated November 29, 1991, terminated the services of the petitioner on the basis of a general order of the Chairman of the Nagar Palika dated november 26, 1991. This order is the subject matter of challenge in the present writ petition. ( 3 ) HEARD learned counsel for the petitioner and the learned Standing Counsel. In spite of notices having been issued, the Nagar Palika is unrepresented. This order is the subject matter of challenge in the present writ petition. ( 3 ) HEARD learned counsel for the petitioner and the learned Standing Counsel. In spite of notices having been issued, the Nagar Palika is unrepresented. ( 4 ) LEARNED counsel for the petitioner developed the following points: (i) The services of the petitioner have been terminated by the Principal of the institution without any authority of law as, in fact, he was not the appointing authority; (ii) The termination of the services of the petitioner was arbitrary and in violation of the provisions of the U. P. Industrial Disputes Act, 1947 (for brevity, hereinafter referred to as the act); (iii) The petitioner was not paid his wages for the period for which he worked in the institution as well as in the office of the District Inspector of Schools and the non-payment of wages of the petitioner is violative of Article 23 of the Constitution; and (iv) The termination order was passed on the basis of a general order issued by the Chairman of the Nagar Palika dated November 26, 1991, which was not attracted in the case of petitioner. ( 5 ) THE first contention of the petitioner relates to the termination order passed by the Principal of the institution, which according to the learned counsel for the petitioner, is without authority of law. The petitioner has not been able to point out as to whether on Class III post in the institution he was appointed by any authority other than the Principal of the institution. Apart from this, there was no post in the institution on which the petitioner could have claimed the right either to continue or for being regularised. In the petition no counter affidavit has been filed and there is no material on record to come to the conclusion that the petitioner was appointed validly on a class III post. However, the petitioner may seek a declaration of his right, if any, in the Civil court. In the petition no counter affidavit has been filed and there is no material on record to come to the conclusion that the petitioner was appointed validly on a class III post. However, the petitioner may seek a declaration of his right, if any, in the Civil court. ( 6 ) THE next submission is that the services of the petitioner have been terminated in an arbitrary manner, in violation of the provisions of the Act In this connection, learned counsel for the petitioner, relying on the provisions of Section 6-N of the Act, has submitted that the petitioner has worked for 240 days and, therefore, his services could not have been terminated without complying with the requirement as laid down thereunder, and he was entitled for being regularised. This submission has no substance as the petitioner has not laid any foundation in the petition that he was a workman worked continuously and his services were uninterrupted and he worked for 240 days during the period of 12 calendar months. Apart from mis, from the material on record it is clear that the petitioner was appointed for specified period. The appointment of the petitioner was on daily wage system on a Class IV post and he was never appointed on the post of Class III by the Nagar Palika. I am not inclined to entertain the submission as it involves the disputed questions of facts. Apart from this, the petitioner claims the violation of his rights under the Act, which also provides for a redressal against violation. It would be open for the petitioner to avail the remedy under the Act. ( 7 ) THE third submission as advanced by the learned counsel for the petitioner is that he had worked in the institution as well as in the office of the District Inspector of Schools but for the duration for which he has worked, he has not been paid his salary. Non-payment of salary after taking work is a serious matter affecting the guaranteed right under Article 23 of the constitution. Non-payment of salary after taking work is a serious matter affecting the guaranteed right under Article 23 of the constitution. So far as the duration for which he has worked in the institution at the instance of the Nagar Palika is a matter to be considered by the Nagar Palika itself, but so far as the question of working of the petitioner in the office of the District Inspector of Schools is concerned, the nagar Palika has nothing to do. The petitioners claim that he worked in the office of the District inspector of Schools for two hours daily, is neither disputed nor remains unsupported from the record of the petition. Learned Standing Counsel could not point out any provision of law under which the District Inspector of Schools could take the work from the petitioner without remunerating him for the work taken. The District Inspector of Schools, instead of owning the liability, has written to the Nagar Palika which, in fact, has no concern so far as the working of the petitioner in his office is concerned. The District Inspector of Schools has also not sanctioned the post in the institution which was within his ambit. However the District Inspector of Schools is liable to make payment to the petitioner for the work done by the petitioner in his office. Article 23 of the Constitution clearly prohibits Beggar and the contravention of the provisions has been made offence punishable according to law. The District Inspector of Schools has not come forward so to indicate the capacity in which he had taken the work from the petitioner without remunerating him for the same. Such a state of affairs cannot be allowed to stand as it would be against the mandate of the Constitution. In these circumstances, the District Inspector of Schools is directed to remunerate the petitioner for the work which has been done by the petitioner in his office. At present, I am not inclined to take drastic action against the District inspector of Schools. However, he is directed to remunerate the petitioner within a period of one month from the date of presentation of a certified copy of this order before him. At present, I am not inclined to take drastic action against the District inspector of Schools. However, he is directed to remunerate the petitioner within a period of one month from the date of presentation of a certified copy of this order before him. ( 8 ) THE last submission as advanced by the learned counsel for the petitioner was that the services of the petitioner have been terminated by the Principal of the institution in pursuance of the order of the Chairman, Nagar Palika, dated November 26, 1991, which is not applicable in his case. The petitioner has relied upon a Government order dated February 3, 1992, according to which the services of those employees in the Nagar Palika may not be terminated who, on October 11, 1989 have not completed three years service or 240 days service in a year, and such employees are entitled to be absorbed in the service of the Nagar Palika. I am not inclined to express any opinion as the Nagar Palika is unrepresented and it is a matter regarding which the petitioner may represent to the Chairman, Nagar Palika, by making a detailed representation annexing therewith the said Government Order. The Chairman, Nagar Palika, Haridwar, shall consider the said representation of the petitioner, if made within six weeks from today, and decide the same thereafter within three months of the receipt of the representation. A copy of the decision on the representation shall be supplied to the petitioner. ( 9 ) WITH the above directions, the writ petition is finally disposed of. No order as to costs. .