Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 814 (MP)

Siyaram Sharma v. State of M. P.

2016-09-15

VIVEK AGARWAL

body2016
ORDER : Petitioner has filed this writ petition challenging the order dated 17.1.2006 passed by respondent No.2 by which services of the petitioner were terminated. According to the petitioner, his services have been terminated without giving any show-cause notice to him and without conducting any enquiry into the matter, therefore, the order of termination is illegal, arbitrary and unconstitutional. According to the petitioner, he was in continuous service for 9 years and thus had acquired the status of quasi permanent servant and thus entitled to protection under Article 311 (1) of the Constitution. It is also submitted that since respondent No.2 is not his appointing authority, therefore, he was not competent to terminate him. 2. The brief facts, which are not in dispute, are that petitioner was appointed as Chowkidar in the year 1997 on daily wages by the Superintendent of Rescue Home for a period of 89 days. It is mentioned in the appointment order itself that his services are being engaged on daily wages and if they are not found satisfactory, they can be dispensed with without giving any notice. Petitioner has also filed Annexure P/4 which is also an order in regard to engagement of the petitioner for 89 days in which it is clearly mentioned that the services of the petitioner being on daily wage basis, can be dispensed with without giving any intimation and he will not have any claim for government service. 3. It is also not in dispute that earlier petitioner had filed W.P.No.5181/2005 (S) complaining that respondent No.4 i.e. the Superintendent of Rescue Home, Morena, was harassing the petitioner, and therefore, a direction was issued to respondents No.2 and 3 i.e. Collector Distt. Morena and Deputy Director, Panchayat and Social Welfare Department, Morena, to look into the grievance of the petitioner and take appropriate action in accordance with law and the petition was disposed of. 4. Learned counsel for the State has submitted that impugned order was passed after affording reasonable opportunity of hearing to the petitioner. It is apparent that petitioner was not performing his duties properly. Respondents have filed copy of show-cause notice dated 10.4.05, show notice dated 22.4.03, show cause notice dated 2.11.05 and reply dated 7.11.2005 furnished by the petitioner. 4. Learned counsel for the State has submitted that impugned order was passed after affording reasonable opportunity of hearing to the petitioner. It is apparent that petitioner was not performing his duties properly. Respondents have filed copy of show-cause notice dated 10.4.05, show notice dated 22.4.03, show cause notice dated 2.11.05 and reply dated 7.11.2005 furnished by the petitioner. In his reply, petitioner has admitted that he could not report on his duty in time because he could not get any transport to report on his duty and submitted that mistake on his part be condoned. Respondents have also placed on record correspondence dated 16.1.2006, which took place between the Deputy Director, Panchayat and Social Welfare Department, Morena, and the Superintendent, Rescue Home, Morena, to show that petitioner was not functioning properly. It was pointed out that in 1998, 4 children had run away. Similarly, on 10.4.03, 22.3.03 and 13.12.04 so also on 10.4.05 certain children had run away from the Rescue Home. It was also pointed out that petitioner was engaged in supplying tobacco and smoking material to the boys staying in Rescue Home. It has also made a reference to the note-sheet written by the Principal Magistrate, Juvenile Justice Court dated 13.4.2005 pointing that in presence of the Chokidar i.e. the petitioner certain boys had disappeared, and therefore, there can be danger to the life of the boys staying in the Rescue Home. 5. Copy of the note-sheet written by the Principal Magistrate, Juvenile Justice Court, Morena, is on record in which there is a categorical note for removal of Chowkidar for the safety of the juvenile children lodged in the Rescue Home. In view of the aforesaid background, impugned order Annexure P/1 has been issued by the Collector, therefore, there is no illegality or arbitrariness in the order passed by the Collector, Morena. 6. The issue to be adjudicated in the present case is whether the protection available under Article 311 of the Constitution is available to a daily wager like the petitioner and whether petitioner had attained status of a quasi permanent employee in terms of the provisions contained in the M.P. Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960 (in short "the Rules of 1960") and whether the Collector was entitled to issue the impugned order removing the petitioner. 7. 7. As far as Article 311(1) of the Constitution is concerned, it deals with dismissal, removal or reduction in rank of persons employed in civil service of the Union or an all India service or a civil service of a State or to a holder of a civil post. It is now settled that a daily wager is not a holder of a civil post, and therefore, the first argument advanced by the learned counsel for the petitioner that there is violation of the provisions contained in Article 311 of the Constitution is not sustainable. In the case of Karnataka State Road Transport Corporation and another v. S.G. Kotturappa and another as reported in (2005) 3 SCC 409 , the Supreme Court has held that casual employee/labour-Badli worker does not enjoy a status and his services may be discontinued like that of a probationer, if he is not found suitable for the job for which his services were utilised. It has been further held that in case of termination of service if the dismissal is based on proved misconduct, then there is no requirement of further hearing. What is needed for employer in a case of termination of services is to apply objective criteria for arriving at the subjective satisfaction. In the present case, petitioner was not only given opportunity of hearing, but a reasoned order has been passed by the Collector fulfilling the requirement of application of objective criteria for arriving at the subjective satisfaction. 8. The second issue is regarding applicability of the provisions of Rules of 1960. Rule 1(2) clearly provides that these rules shall apply to all persons who hold a civil post under the State Government, but who do not hold a lien on any post under the Government of this State, the Government of India or any other State Government. Rule 1(3) further provides that nothing in these rules shall apply to - (a) Government servants engaged on contract; (b) Government servants not in whole time employment; (c) Government servants paid out of contingencies; (d) persons employed in work-charged establishments; and (e) such other categories of Government servants as may be specified by the State Government by notification in the Gazette. Thus, it is apparent that petitioner, who had joined as Chowkidar on daily wages and continued as such, will not be governed by the provisions of Rules of 1960, therefore, claim of the petitioner that he had attained quasi-permanent status is not correct. 9. Petitioner's third challenge is to the competency of the Collector to pass impugned order. The law is already settled. The petitioner's termination order could not have been passed by a authority subordinate to the Superintendent who was his appointing authority. The Superintendent of a Rescue Home, so also the Deputy Director of Panchayat and Social Welfare Department works under the overall supervision of the Collector and in fact in W.P.No.5181/2005 (S), this Court had directed the Collector to look into the grievance of the petitioner, therefore, the act of the Collector in passing the impugned order both in his capacity as superior authority to the appointing authority and also in terms of the directions issued by this Court cannot be faulted with. Besides this, the State Government has delegated the disciplinary authority on the Collector in terms of the provisions contained in Rule 12 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 for class III and IV employees. In terms of such delegation in relation to class III and IV staff, the act of the Collector in issuing the impugned order cannot be faulted with. Thus, there is no infirmity or illegality in the order passed by the Collector, Morena. Hence, this petition fails and is dismissed.