Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 911 (JHR)

Nayan Goswami v. State of Jharkhand

2020-09-22

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT : Heard Mr. Sanjay Prasad, learned counsel for the petitioner and Mr. Rishu Ranjan, A.C. to S.C. III, learned counsel for respondents-State. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. The petitioner has preferred this writ petitioner for quashing the order dated 14.12.2019 whereby the petitioner has been terminated from the service as Mid-day Meal Data Entry Operator. 4. It was the case of the petitioner that the petitioner was appointed as Data Entry Operator in Mid-day Meal Section in the office of Block Education Extension Officer, Mandu on the basis of daily honorarium w.e.f. 30.10.2012 vide memo no.137 dated 30.10.2012. The petitioner was allowed to continue. The Deputy Director, Jharkhand State Mid-day Meal authority issued a memo dated 30.10.2017 whereby the monthly remuneration of Computer Operator has been fixed as Rs.9,000/- and as the petitioner was discharging his duty since the year 2012, he has also been entitled for regularization of his service on computation of 10 years of continued service on the basis of notification dated 20.06.2019 issued by the Government. By letter dated 25.10.2019, the petitioner was asked to submit his explanation within 24 hours as to why his services could not be terminated. The petitioner has submitted his explanation explaining his stand. The petitioner was again provided second show cause on 09.11.2019. The petitioner replied second show cause explanation on 14.11.2009. By order dated 14.12.2019, the petitioner has been terminated from the service on the basis of charges. 5. Learned counsel appearing for the petitioner assailed the impugned order on the ground that order has been passed without following well settled principles of natural justice. He submitted that without any enquiry and providing ample opportunity, the impugned order has been passed. 6. Per contra, learned counsel appearing for respondents-State submitted that the petitioner was appointed to discharge his duties of Data Entry Operator in Mid-day Meal Section in the office of Block Education Extension Office, Mandu on a purely temporary basis on daily honorarium w.e.f. 01.11.2012. The petitioner was not appointed against any sanctioned post and he is neither Government servant nor employed on contractual terms and conditions under Sarva Shiksha Abhiyan. The petitioner was not appointed against any sanctioned post and he is neither Government servant nor employed on contractual terms and conditions under Sarva Shiksha Abhiyan. It was the duty of Data Entry Operator to collect, prepare, summarize and preserve the data with instruction to the office head as per the need of the office. But it was found by the District Superintendent of Education, Ramgarh that the petitioner did not preserve the data in his computer, did not made PDF files, did not take out print of hard copies of any data base and changed/altered the information with ulterior motive. Manipulation in data base was done without approval of the concerned Clerk or the Officer. Ample opportunity has been given to the petitioner to explain the position as two show cause have already been issued. He submitted that principles of natural justice have been followed. 7. The Court has perused the Annexure-1 whereby the petitioner has been asked to work on daily wage basis. The Annexure-2 is the resolution whereby it has been decided that how much honorarium a data entry operator would get. By way of this resolution, no decision with regard to regularization of service has been taken. The policy dated 20.06.2019 is not applicable to the petitioner as it is not the case of the petitioner that the petitioner was neither appointed on any sanctioned post nor his appointment was regular or irregular. The notification dated 20.06.2019 has been issued pursuant to the order passed by Hon’ble Supreme Court in the case of Narendra Kumar Tiwari & Others Versus State of Jharkhand & Others reported in (2018) 8 SCC 238 . The petitioner has admitted in the writ petition that two show cause notices were issued. There is also an allegation of manipulation in data entry operation. 8. It is well-settled proposition of law that the person engaged on daily wages and on closure of scheme the termination can be effected. Directions cannot be given to reinstate their services in absence of any existing vacancy nor can directions be given to create posts in a non-existent establishment. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them despite non-availability of the work. In this regard, reference may be made to the case of “State of H.P. through the Secretary Agriculture to the Govt. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them despite non-availability of the work. In this regard, reference may be made to the case of “State of H.P. through the Secretary Agriculture to the Govt. of H.P., Shimla Vs. Nodha Ram & Others” reported in 1998 SCC (L&S) 478. 9. It is further well-settled proposition of law that casual employee engaged on daily wages basis, on termination of his service, claiming right to continue in service and temporary status covered by the Industrial Disputes Act and remedy lies before the Tribunal or before the Labour Court and not before the High Court. He was not having holding any civil post and in view of termination of service, master-servant relationship ceased rendering provision of the Act. In this regard reference may be made to the case of “Union of India & Others Vs. Deep Chand Pandey & Another” reported in (1992) 4 SCC 432 in which the Hon’ble Supreme Court has held as under:- “6. The present respondents are claiming the right to continue in the employment of the Union of India as before, with additional claim of temporary status and it is, therefore, idle to suggest that such a claim is not covered by the Act. The necessary conclusion, therefore, is, that the remedy of the respondents was before the Tribunal and not the High Court. We, accordingly, hold that the High Court did not have the jurisdiction to entertain the claim of the respondents. Consequently, the impugned judgment is set aside, the writ petition before the High Court is dismissed and these appeals are allowed, but without costs.” 10. In view of above facts, reference may be made to the case of “State of Madhya Pradesh & Others Vs. Sandhya Tomar & Another” reported in (2013) 11 SCC 357 in which the Hon’ble Supreme Court has held as under: “9. There can be no dispute with respect to the settled legal proposition that in the event that a person is not appointed on a regular basis, and if his service is not governed by any statutory rules, he shall be bound by the terms and conditions that have been incorporated in his appointment letter. (Vide State of Punjab Vs. Surinder Kumar). (Vide State of Punjab Vs. Surinder Kumar). In such an eventually, there can be no reason with respect to why the terms and conditions incorporated in the appointment letter should not be enforced against such an employee. In the instant case, Respondent 1 was temporarily appointed in a project and thus, she had at no point of time, been appointed on a regular basis, owing to which, she cannot claim any lien with respect to the said post.” 11. In view of the cumulative effects of the above discussions, there is no merit in the writ petition. Accordingly, the writ petition is dismissed. However, if the petitioner, so advised, may avail the alternative remedy before competent Court of law.