Shri P.D.Chatterjee & Ors. vs Shri Rashpal Singh
2010 Latest Caselaw 5401 Del

R-61
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 25.11.2010
                  Judgment Delivered on: 29.11.2010

+            RSA No.22/1998 & CM No.948/1998



       SHRI P.D.CHATTERJEE & ORS.                  ...........Appellants

                   Through:    Mr.Mr.Raman            Kapur          and
                               Mr.R.P.Singh,       Advocates     for the
                               appellant.

                   Versus

       SHRI RASHPAL SINGH              ..........Respondent
                Through: Mr.Bhagwan Dass, Advocate for the
                         respondent.


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                  Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This second appeal has impugned the judgment and decree

dated 09.2.1998 which had reserved the finding of the Trial Judge.

The Trial Judge vide judgment and decree dated 31.8.1995 had

dismissed the suit of the plaintiff Rashpal Singh. Vide the

judgment and decree dated 09.2.1998 the appeal was allowed and

the suit of the plaintiff stood decreed.

2. Factual matrix of the case is as follows:

i. The plaintiff had filed a suit for declaration seeking

declaration that the order dated 27.1.1987 terminating his

services from the defendant Corporation is illegal and void;

he had sought reinstatement of his service in the defendant

Corporation.

ii. Plaintiff had been working on daily wages in the

defendant Corporation since 28.8.1984. He worked in his

capacity as an LDC. On 08.10.1996 on the recommendation

of the Secretary and Chairman of the Corporation he was

shifted to Bhadohi for a period of three months where he

worked as an Assistant. He had worked to the best of his

ability.

iii. The Office Memorandum (OM) dated 26.2.1986 of the

defendant department stated that all existing daily wage

workers would be regularized as and when regular posts

become available.

v. On 27.1.1987 services of the plaintiff were terminated

w.e.f. 02.2.1987; Vijay Kumar Sinha was appointed and

replaced the plaintiff as an Assistant at Bhadohi.

vi. This order of termination had been disputed by filing the

present suit.

vii. Defendant Corporation had disputed the claim of the

plaintiff. It was stated that the plaintiff was a daily wage

worker on an ad hoc basis; nevertheless opportunity had

been granted to him to participate in the selection process

for the post of Assistant.; he did not qualify on merits; in

these circumstances Mr.Vijay Kumar Sinha was appointed in

his place; he has no lien over the said post.

viii. Trial Judge had framed the following four issues which

inter alia read as follows:

"1.Whether order of termination dated 21.1.87 is without

jurisdiction, arbitrary and not maintainable as alleged? OPP

2. Whether the post of the plaintiff was temporary for a

specified period? If so its effect? OPD

3. If issue no.2 is not proved, whether plaintiff is entitled to

relief claimed? OPP

4. Relief."

ix. On the basis of the oral and documentary evidence

adduced before the Trial Judge, the suit of the plaintiff was

dismissed. A finding was returned that the plaintiff has

been appointed purely on a temporary and ad hoc basis; this

position was admitted by the plaintiff himself; the daily wage

workers were to be regularized subject to availability of

posts; posts were not available. Post of LDC had fallen

vacant and the plaintiff had been permitted to participate in

the selection process but in spite of having been called for

interview he failed to appear. Plaintiff also did not qualify in

the selection process for Assistant as a result of which

Mr.Vijay Kumar Sinha who was the successful candidate

replaced him. Suit of the plaintiff was dismissed.

x. The impugned judgment dated 09.2.1998 had reversed the

finding of the Trial Judge. It was held that the plaintiff has

worked in the defendant organization for more than two

years; he had right to be heard before a major penalty of

termination is imposed upon him. Appeal was accordingly

allowed.

3. This is a second appeal. After its admission on 12.12.2003,

the following substantial question of law was formulated; it reads

as follows:

"Whether on the basis of evidence adduced before the trial court, the Appellate Court could have reserved the finding?"

4. On behalf of the appellant, it has been urged that the impugned

judgment has not in any manner dealt with the contention raised

by the appellant/defendant; it has cursorily disposed of the appeal

without going into merits. The first Appellate Court was bound to

have examined each and very issue which it had failed to adhere to.

It was pointed out that the appellant was admittedly only a daily

wage worker. A suit for specific performance of a contract could

not be filed; suit was not maintainable. For this proposition

reliance has been placed upon a judgment reported in AIR 1970 SC

1244 Executive Committee of U.P. State Warehousing Cropn.,

Lucknow Vs.Chandra Kiran Tyagi to substantiate this submission

that a contract of personal service cannot be enforced by an order

of specific performance.

5. Per contra arguments have been countered. It is pointed out

that the duty of the first Appellate Court as has been laid down by

a Bench of this Court in a judgment reported in AIR 1969 Delhi 197

Har Bhaj & Ors. Vs. Barfi & Ors.; is to apply its judicial mind to the

appreciation of the evidence particularly when reversing

conclusions of fact; no general rule can be laid down that in all

cases courts of first appeal must mention every piece of evidence

and reproduce the testimony of every witness with elaborate

comment; there is no fault in the finding of the impugned

judgment; it had clearly appreciated the fact that the appellant

had worked with the defendant Corporation for more than 240

days; his services could not have been terminated without giving

him an opportunity of hearing.

6. Perusal of the record shows that admittedly even as per the

averments contained in the plaint; the plaintiff was working with

the defendant Corporation as a daily wager. He worked there

between 28.8.1994 to 31.8.1986. It is also not disputed that in the

meeting of the defendant Corporation on 26.2.1986 it was noted

that existing daily wage workers would be regularized as when

regular posts become available (page 237 of the paper book). Vide

Ex.PW-1/1 dated 12.8.1986, the plaintiff was appointed as an

Assistant in the Regional Office of Bhadohi in the defendant

Corporation. This was on an ad hoc basis for three months.

However, since the next incumbent Mr. Vijay Kumar Sinha could

not replace him due to administrative exigencies, services of the

plaintiff continued up to 02.2.1987; he was terminated on

02.2.1987 vide Ex.PW-1/2. His subsequent representations to the

Development Commissioner i.e. the Appellate Body vide Ex.PW-1/3

and Ex.PW-1/4 were considered but rejected.

7. Trial judge had examined the oral testimony of the witnesses

including the version of the plaintiff examined as PW-1. PW-1 in

his cross-examination had admitted that his appointment as

Assistant at Bhadohi was for three months; he, however, worked

for five months and after Vijay Kumar Sinha was appointed his

services were no longer required. He had admitted that the post

of Assistant was advertised but he could not recollect whether he

had participated in the interview which was conducted at Bhadohi.

In the written statement, categorical version of the department

was that selection for the post of Assistant was conducted as

Bhadohi for which interview was held and the plaintiff had also

participated but he failed to qualify on merits. In the replication

there was no denial to this averment in the written statement.

Even in the cross-examination, the answers of the plaintiff were

ambiguous and he did not categorically deny that he did not

participate in the selection process of Assistant. These facts have

been noted by the Trial Court.

8. It is also an admitted position that the daily wage workers

were to be regularized by the Department subject to availability of

posts. The evidence had established that for the post of Assistant,

the plaintiff had participated in the selection process but he had

fallen short on merits; as a result Vijay Kumar Sinha was

appointed. Trial Judge had also noted that the post of LDC had

fallen vacant and the plaintiff was also called for interview to

participate but in spite of opportunity he had failed to appear. This

is also admitted by the plaintiff in his evidence. Trial Judge had

returned a positive finding in this regard and had appreciated all

these submissions but finding no merits in them had rejected the

same. Relevant extract reads as follows:

"We may appoint Shri Rash Pal Singh as assistant on adhoc basis for a period of three months or till he is regularized by CON at the time of selection of other candidates w.e.f. 1.9.86..." It is admitted case of the plaintiff that he was working as a clerk on daily wages. Vide Ex.PW1/D1 the plaintiff has accepted the offer of appointment on the terms and conditions stipulated at the memorandum No. CEPC/SEC/R.O. 162/86/1492, dated 12.8.86. Ex.PW1/D2 is the joining report of the plaintiff for the post of assistant dated 1.9.86, and Ex.PW1/D3 is the letter dated 6.10.87 vide which the plaintiff was communicated with the decision of the Development Commissioner Handicraft which was issued with the approval of Minister for Textile. Ex.DW1/P1 vide page 6 referred that "the existing daily wages workers will be regularized as and when the regular posts become available." Ex.PW1/1 is the letter dated 12.8.86 vide which the plaintiff was offered for post of assistant on purely, temporary and adhoc basis initially for the period of three months w.e.f. 1.9.86 with the condition that if during this period his work is not satisfactory, his services are liable to be terminated at any time without any reasons being

assigned. Ex.PW1/2 is the letter dated 27.1.87 vide which the services of the plaintiff were terminated w.e.f. 2.2.87 (after noon). It is an admitted case of the plaintiff also who has even deposed during the course of cross examination and even admitted the documents as discussed above, that his services as assistant was on adhoc basis temporary and on adhoc basis initially for the three months. It is not disputed that he had worked there for more than three months but even when he was asked whether he appeared in the interview, his reply was not satisfactory to the fact that which he stated that he do not recollect whether he participated in the interview for the post of assistant or not but he has stated that he was present in Bhadohi at that time. He also admitted regarding the advertisement in the newspaper for recruitment for recruiting person on the post of assistant. The plaintiff has also deposed that he does not have any proof to show that he was appointed on regular basis as assistant with the defendant no.3. As regards the decision of the M.D.A. meeting dated 26.2.86 is concerned it is not a disputing fact, it was decided to regularize the daily wages workers as and when the regular posts become available. The plaintiff was mere daily wager and it has also been proved on record that no test/selection process was conducted in his appointment as assistant on purely temporary and on adhoc basis initially for the period of three months."

15. From all this it is clear that the order dated 27.1.87 is not arbitrary but it is a proper order which has been passed by the competent authority. The plaintiff has failed to prove this issue in his favour. The issue is decided against the plaintiff.

9. The present suit was a suit for declaration. It was not

seeking specific performance of a contract as has been urged by

the learned counsel for the appellant; what the plaintiff sought was

a declaration that termination of his service were illegal. No such

contention as has now been urged before this Court had also been

raised by the defendant before the Courts below; no such issue on

the maintainability was also framed. This argument now urged

before this Court that the suit was not maintainable in the present

form is accordingly rejected.

10. However, on merits, the case of the appellants carries

substance. The first Appellate Court had proceeded on the

assumption that the plaintiff was a regular employee of the

Department having worked for more than 240 days; his services

could not have been terminated without an opportunity of hearing.

The impugned judgment has mis-appreciated the facts; both oral

and documentary. Evidence had established that the plaintiff had

worked in two capacities; firstly as an LDC and then as an

Assistant for a period of three months enlarged to five months;

plaintiff was working only on daily wages and thereafter on

contract for a period of three months in the post of Assistant. His

letter of appointment had clearly communicated that his

appointment is on an ad hoc basis and he shall be considered for

selection as and when posts arise. He had participated in the

selection process for the post of Assistant which was held at

Bhadohi. He has failed to qualify. Vijay Kumar Sinha replaced

him. His services were thus terminated on 02.2.1987. The

guidelines of the selection process were duly adhered to; his

termination on 02.2.1987 is in no manner arbitrary and illegal. It

is further relevant to point out that even for the post of LDC the

plaintiff had been given an opportunity to participate and has been

called for interview but he refused to do so.

11. As on date after some persuasion the appellant Corporation

was agreeable to engage the services of the respondent in capacity

of an LDC on a contract basis but the proposal having been put to

the respondent/plaintiff has rightway been rejected by him.

12. Be that at it may, the appeal must succeed. The plaintiff had

been engaged only on daily wages and later on an ad hoc basis for

a period of three months to the post of Assistant. He has no lien

over the said post; he had failed to qualify in the merit test in

which he had participated; he could be considered for

regularization only when posts fell vacant. There was no such post

after the post of Assistant had been filled up by Vijay Kumar Sinha.

13. In the judgment of the Apex Court reported in (2007) 1 SCC

408 Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen where the

respondents had been appointed on purely casual and daily-rate

basis, it was held that they had no right to the post and were not

entitled to regularization merely on completion of 240 days or more

and the same did not entitle/import a right of regularization. The

distinction between a temporary and a permanent employee had

been drawn; a temporary employee who is in the category of a

casual employee, daily-rate employee, ad hoc employee, has no

right to be continued in service or to get absorption; a post has to

be created before it is filled up; creation and abolition of posts and

their regularization are purely executive functions. Court cannot

create a post where none exists.

14. Case of the plaintiff must fail. Appeal is allowed and the

pending application is disposed of. Suit of the plaintiff is

dismissed. No order as to cost.

INDERMEET KAUR, J.

NOVEMBER 29, 2010 nandan