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2004 DIGILAW 241 (HP)

ROSHAN LAL v. STATE OF H. P.

2004-09-24

BAKHSHISH KAUR, D.S.AMIST

body2004
JUDGMENT Ms. Bakshish Kaur, Chairman.— The facts which have bearing on the decision of the issue raised in the original, application are briefly noticed as under. 2. Roshan Lal, applicant was initially appointed as peon on 22.7.1961 by Block Development and Panchayat Officer, Bhawarna vide annexure-B. His services were abruptly terminated w.e.f. 10.7.1968 afternoon without any notice. He was re-appointed immediately on the following day i.e. 11.7.1968 vide annexure-D. He had put in 28 years service without any break. On 31.12.1989 as per order (Annexure-A) he was conveyed that his services are no more required, therefore his services were terminated w.e.f. 31.12.1989 in the public interest. This order is illegal, arbitrary, unlawful, un-constitutional and void-abinitio because nothing was paid to him while terminating his services, though he was entitled for pension, revision of pay scale etc. He has, therefore, sought following reliefs by way of filing Original Application : "(i) That the impugned termination order as Annexure-A be quashed being void, illegal, arbitrary, unconstitutional and ultravires and the applicant is also declared entitled to continuity of service with pay and allowances right from the date of his termination till the date of his retirement on attaining the age of superannuation. (ii) That the respondents may further be directed to allow the scale of pay of Rs. 750-1350 w.e.f. 1.1.1986 to which the applicant is legally entitled by virtue of his holding the post of peon-cum-chowkidar and arrears accrued therefrom are also directed to be paid to him. (iii) That the respondents may also be directed to produce the relevant record particularly the service book of the applicant. (iv) Any other equitable relief which may be considered by the Honble Tribunal to extend substantial justice to the applicant. 3. A preliminary objection has been raised by the respondents that the application is barred by limitation. The applicant is not a government servant. He was employee of the local authority i.e. Panchayat Samiti, Bhawarna, which is a body corporate and capable of being sued independently under Section 119 of the Himachal Pradesh Panchayati Raj Act, 1994. The applicant has no cause of action, therefore, original application is liable to be dismissed on this ground. On merits it is admitted that applicant was offered appointment vide order dated 11.7.1968—Annexure AD but it is denied that he was in continuation of the service of he applicant. The applicant has no cause of action, therefore, original application is liable to be dismissed on this ground. On merits it is admitted that applicant was offered appointment vide order dated 11.7.1968—Annexure AD but it is denied that he was in continuation of the service of he applicant. His appointment vide Annexure D was strictly, under different employer i.e. the Panchayat Samiti, Bhawarn in a Common Facility Workshop Dehan whereas earlier to that he was appointed by Block Development Officer as a Peon. Justifying the impugned order that the termination of the applicant for want of financial resources is cogent, valid therefore, it cannot be said bad in law and illegal. 4. The applicant in rejoinder has reiterated pleas contained in the original application and re-asserted that termination order is not sustainable in the eyes of law. 5. We have heard Sh. J.P. Upadhya, learned Counsel for the applicant and Mr. B.S. Parmar, learned Additional Advocate General for the respondents. 6. On the point of limitation the objection raised by the respondents is that the order was passed by the Panchayat Samiti on 31.12.1989, therefore, the order having been challenged by way of filing the present original application is barred by limitation. The objection raised by the respondents does not remain valid and convincing as the applicant had earlier filed OA-1002/90 and it was disposed of as under on 10.9.1996: “The order dated April 26, 1991 shows that the applicant has been given some reliefs and he was requested to amend the application but during these five years no steps have been taken. The application is disposed of finally with liberty reserved to the applicant to approach the Tribunal again on the same cause of action." 7. Since the applicant was given liberty to approach the Tribunal again on the same cause of action, therefore, the present original application having been filed on 11.10.1996 cannot be said barred by time. The earlier original application was also filed within limitation. Therefore, we are of the view that the present original application is not barred by time. 8. Since the applicant was given liberty to approach the Tribunal again on the same cause of action, therefore, the present original application having been filed on 11.10.1996 cannot be said barred by time. The earlier original application was also filed within limitation. Therefore, we are of the view that the present original application is not barred by time. 8. The applicant was initially appointed on 20.7.1961 as class-IV servant in the pay scale of 30-1/4 on temporary basis and one of the condition was that his services are liable to termination without not on the obligation of the post or on the termination of the vacancy or any other arrangement against which he may be posted. This order was issued by the Block Development and Panchayat Officer Bhawarna. He remained continuously working as such till 10.7.1968 when his services were terminated abruptly. But immediately thereafter i.e. following day vide order dated 11.7.1968 vide Annexure-D he was re-engaged in the pay scale of 30-1 /4~35 plus usual allowances in Common Facility Workshop Denen under Panchayat Samiti and Zila Parishad Rules. The order was passed by the Executive Officer, Panchayat Samiti Bhawarna as per decision of the Panchayat Samiti meeting held on 10.7.1968. 9. The reason for abruptly terminating the services on 10.7.1968 and again on 11.7.1968 re-engaged without assigning any reason, as Peon-cum-Chowkidar in Common Facility Workshop Dehan., is best known to the respondents because initial orders were issued by the Block Development Officer Bhawarna and the subsequent order Annexure-D was issued by the Executive Officer, Panchayat Samiti Bhawarna. Block Development Officer is not alien to the Panchayat Samiti. In fact he is Executive Officer of Panchayat Samiti being ex-officio by virtue of his designation. 10. Whether the applicant could be sent home unceremoneously without allowing him any allowance or without making payment of any amount due to him is a sad state of affairs. The respondents can not triggle out of the responsibility by saying that Common Facility Workshop where the applicant was working was closed down by Panchayat Samiti and that the services of the applicant is not under respondent/State. Rather it being in Panchayat Samiti, therefore, they are not liable to pay any amount to the applicant. The respondents can not triggle out of the responsibility by saying that Common Facility Workshop where the applicant was working was closed down by Panchayat Samiti and that the services of the applicant is not under respondent/State. Rather it being in Panchayat Samiti, therefore, they are not liable to pay any amount to the applicant. This argument again does not appear to be convincing because the Government of Himachal Pradesh had taken over the services of Panchayat Samiti employees, and notification was issued on 26,9.1981 to regularise the seniority and other service conditions of the Panchayat Samiti Employees taken over by the Government in the department of R.I.D. w.e.f. 14.3.1978. The categories of the Panchayat Samiti employees whose services were taken over by the Government are fully enumberated therein. Relevant portion of the notification is reproduced as under : "1. That the following categories of the Panchayat Samiti Employees whose services were taken over by the Government will be given seniority w.e.f. 14.3.1978 in the Department of R.I.D. amongst their counter-parts as shown against each category:— Sr. No. Category of posts taken over from Panchayat Samiti Counterparts already working in Department of R.I.D. 1. 2. 3. 1. Head Clerk Head Clerk. 2. Tax Collector Clerk 3. Accounts Clerk Clerk 4. Clerk Clerk 5. Steno- typist Steno Typist 6. Process Server Peon 7. Peon Peon 8. Chowkidar-cum-Mali Chowkidar 9. Chowkidar-cum-Chaprasi Chowkidar 10. Chaukidar Chowkidar 11. Chaukidar-cum-Sweeper Chaukidar-cum-Sweeper. 2. That the service rendered by the Panchayat Samiti Employees in the Panchayat Samities will be counted towards pension and gratuity only. 3. That the amount of CPE of these employees will be deposited by them/concerned Panchayat Samiti in the Government account.” 9. In view of the aforesaid notification therefore, respondents cannot say that he is not government servant, as initially the applicant was appointed by the Block Development Officer, lateron Panchayat Samiti, therefore, respondents are not liable to pay any thing to the applicant. Infact the services of the Panchayat Samiti employees were taken over by the government and services rendered by them in the Panchayat Samiti will be counted towards pension and gratuity only. 10. Mr. Upadhaya, learned Counsel for the applicant contended that though the applicant was appointed as temporary Peon-cum-Chowkidar, he has acquired the permanent status. A Government servant shall be deemed to be in quasi-permanent service if he has been in continuous temporary service for more than three years. 10. Mr. Upadhaya, learned Counsel for the applicant contended that though the applicant was appointed as temporary Peon-cum-Chowkidar, he has acquired the permanent status. A Government servant shall be deemed to be in quasi-permanent service if he has been in continuous temporary service for more than three years. The applicant herein has rendered service continuously for 28 years. The applicant is also covered under Rule (1) sub-rule (3)(ii) Central Civil Services (Temporary Service) Rules, 1965, which provides that the subject to the provisions of sub rule (4), these rules shall apply to all persons who are employed temporarily in work-charge, establishments and who have opted for pensionary benefits. 11. It is also contended that before terminating his service no notice was given to the respondents. Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 provides that the services of temporary government employee is liable to be terminated by giving notice by the competent authority or by appointing authority to the government servant. The period of such notice shall be one month. 12. The applicant is not employee of central government. However, the manner in which his services have come to an end unceremoneously can it be a ground to the respondents to virtually disturb the life of 28 years services of the applicant which he had rendered with them. If it is so then it would be a travesty of justice and would be most arbitrary that one can conceive of. He is entitled to some benefits before issue of marching orders if a person has worked as peon-cum-chowkidar One fine morning he is handed over a document that his services are no more required. It certainly amounts to exploitation of service. The equity of justice therefore, demands that the applicant must be compensated for the service rendered by him specially when vide notification annexure-D the services of Panchayat Samiti employees were taken over by the Government and the category of employees mentioned therein were allowed to be given seniority w.e.f. 14.3.1978. Whether the applicant can be discriminated particularly when the Peon-cum-Chowkidar are also included in the category of employees whose services were taken over by the Government. 13. Whether the applicant can be discriminated particularly when the Peon-cum-Chowkidar are also included in the category of employees whose services were taken over by the Government. 13. Above being the position, we hereby allow the original application with a direction to the respondents to consider the case of the applicant for the purpose of giving monetary benefits which are due and admissible under the rule for the period during which he had rendered service. In case he is entitled for revision of pay during the intervening period, the same be also considered. The respondents will be at liberty to deduct the amount of salary or other allowances if any, already paid to the applicant. Needful be done within a period of four months from the date of the receipt of the copy of order.