Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 784 (CAL)

Jayanta Kumar Ganguly v. State of West Bengal

2001-12-21

HRISHIKESH BANERJI, TARUN CHATTERJEE

body2001
JUDGMENT Banerji, J. : By the present writ application the petitioner has challenged the order dated February 18, 1998 whereby the petitioner's prayers for his reinstatement in his service as Extra Muharrir w.e.f. 3.1.1977 and for redesignating him as the Lower Division Clerk w.e.f. 1.4.1978 was refused. 2. The petitioner was appointed as Extra Muharrir in the Office of the Sub-Registrar, Habra by the District Registrar of 24-parganas (North) on a temporary basis to liquidate the arrears in copying. He joined on 5.7.1965 but did not attend his office from 25th October to 31st December in the year 1976. On 3.1.1977 when he reported for duty he was at first allowed to resume his duty by the Sub-Registrar subject to the approval of the superior authority but around 11-30 a.m., the same day, the Sub-Registrar passed an order in the order book whereby the petitioner was not allowed to work on the grounds of his unauthorised absence for a long period and extremely perfunctory official behaviour, 3. It is stated by the petitioner that the Government had taken a decision to absorb all the Extra Muharrirs into regular service as Lower Division Clerks and by virtue of the said decision the petitioner is entitled to be appointed as an L.D.C. w.e.f. 1.4.1978. Without taking any steps for a period of long 16 years the petitioner made an application on 28.9.1992 requesting the District Registrar, North 24-Parganas for his reinstatement in the service and the matter was forwarded to the State Government by the Inspector General of Registration. The Government informed the Inspector General by a communication that the petitioner would be reinstated as daily-rated worker as a special case in relaxation of the bar created by the Labour Department's Memo No. 1700-EMP dated 3.8.1979. The petitioner was informed of the said order of the Government by Memo No. 2988 dated 14.12.1992. 4. The Tribunal rejected the prayer of the petitioner for being redesignated as a Lower Division Clerk w.e.f. 1.4.1978 with all his salaries and other allowances. It was further observed by the Tribunal that the petitioner having not been in employment for a long period from 3.1.1977 to 13.12.1992 his prayer for giving him the status as L.D.C. w.e.f. 1.4.1978 (when he was not in employment) could not be entertained. 5. Mr. It was further observed by the Tribunal that the petitioner having not been in employment for a long period from 3.1.1977 to 13.12.1992 his prayer for giving him the status as L.D.C. w.e.f. 1.4.1978 (when he was not in employment) could not be entertained. 5. Mr. Moitra appearing for the petitioner submits that there was no valid termination of the petitioner's services as he was not given any opportunity of hearing when the Sub-Registrar did not allow him to join his work on 3.1.1977. Following are the decisions which Mr. Moitra cites in this connection:- (1) AIR 1966 SC 1364 , Mafatlal Naran Das Barot v. T.D. Rathor; (2) AIR 2000 SC 1080 , V. P. Ahuja v. State of Punjab & Ors. ; (3) AIR 1991 SC 1286 , Sri Rabinarayan Mohapatra v. State of Orissa & Ors. ; (4) AIR 1991 SC 101 , Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Ors. 6. The decisions in AIR 1966 SC 1364 (supra), and AIR 1991 SC 101 (supra), are not applicable to the facts of the present case as it appears that in both the cited cases the employees whose services were terminated were permanent employees, while the petitioner was appointed temporarily purely on piece rate basis on a 'no work, no pay' system. 7. In AIR 2000 SC 1080 (supra), it has been held that even a probationer or a temporary servant is also entitled to certain protection and his service cannot be terminated arbitrarily nor can his service be terminated in a punitive manner, without complying with the principles of natural Justice. 8. It is further held in the said decision that an order which is ex facie stigmatic cannot be passed without any regular inquiry and giving the concerned employee an opportunity of hearing. In the instant case the petitioner was neither a probationer nor a temporary servant. He was functioning as a daily rated worker. It is true that the Sub-Registrar while disallowing the petitioner to join for duties on 3.1.1977 recorded that the petitioner's work had been perfunctory. As the order of the Sub-Registrar appears to be stigmatic, Mr. Moitra contends, the petitioner should have been given an opportunity of explaining the reasons for his absence. He was functioning as a daily rated worker. It is true that the Sub-Registrar while disallowing the petitioner to join for duties on 3.1.1977 recorded that the petitioner's work had been perfunctory. As the order of the Sub-Registrar appears to be stigmatic, Mr. Moitra contends, the petitioner should have been given an opportunity of explaining the reasons for his absence. This case could not be applicable to the facts of the present case inasmuch as after the petitioner was disallowed to join his duties on 3.1.1977 he did not take any steps challenging the order of the Sub-Registrar for a long period of 16 years and as a result his claim for an inquiry has become stale. In such circumstances this decision is also not applicable to the facts of the present case. 9. In AIR 1991 SC 1286 (supra), the appointment of a teacher on 89 days basis with one day break which deprived the teacher of his salary for the period of summer vacation and other service benefits has been held by the Apex Court to be wholly arbitrary and tained by the vice of discrimination. This decision is also not applicable to the present case as the petitioner had been appointed temporarily purely on a piece rate basis to liquidate the arrears in copying. 10. The posts of Extra Muharrirs were regularised as Lower Division Clerks w.e.f. July 1, 1989 and the petitioner for the first time made an appeal to the District Registrar, North 24-Parganas for his reinstatement on September 28, 1992 i.e. after a period of about 16 years. 11. The petitioner's present claim that he is also entitled to be appointed as an L.D.C. in view of the absorption and regularisation of the Extra Muharrirs w.e.f. April 1, 1978 and regularisation as Lower Division Clerks w.e.f. July 1, 1989 is without any substance since he was not in employment at all either as a daily-rated worker or in the any other capacity in the Sub-Registrar's Office at Habra or in any other office under the Inspector General of Registration, West Bengal. The relevant Service Rules viz. West Bengal Service (Temporary and Quasi-permanent Service. and Service with Permanent Status) Rules, 1967 also do not provide that the appellant may be made on daily-wages basis. The relevant Service Rules viz. West Bengal Service (Temporary and Quasi-permanent Service. and Service with Permanent Status) Rules, 1967 also do not provide that the appellant may be made on daily-wages basis. In this connection the decision of the Apex Court in the case of (5) State of Himachal Pradesh v. Suresh Kumar Verma & Anr. reported in 1996(7) SCC 562 cited by Mr. Chakraborty is apposite. In this case it has been held as follows:- "it is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules." (emphasis supplied) 12. On December 14, 1992, the petitioner was reinstated as a daily rated worker in the District Registrar's Office at Barasat, North 24-Parganas and in such circumstances the question of giving the petitioner the status of Lower Division Clerk from April 1, 1978 does not arise as he was not in employment in any capacity when the absorption and the regularisation of the Extra Muharrirs and their subsequent appointment as Lower Division Clerks took place. Accordingly, we are of the view that the order passed by the Tribunal is justified and does not call for any interference. The present writ application is accordingly dismissed. All interim orders stand vacated. No order as to costs. Chatterjee, J. : I agree.