Punjab-Haryana High Court
(O&M) State Of Haryana Etc vs Azad Singh on 23 April, 2024
Neutral Citation No:=2024:PHHC:055575
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RSA-2329 of 1998 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-2329 of 1998 (O&M)
Reserved on: 10.04.2024
Pronounced on: 23.04.2024
State of Haryana and another
......Appellants
Versus
Azad Singh
......Respondent
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by: - Mr. Saurabh Mohunta, DAG, Haryana.
Mr. Piyush Gill, Advocate,
for the respondent.
NAMIT KUMAR, J.
1. This Regular Second Appeal is directed against the
judgment and decree dated 11.01.1997 passed by the Court of learned
Additional Civil Judge (Senior Division), Rohtak, whereby suit for
declaration filed by the respondent-plaintiff was decreed as well as
against the judgment and decree dated 06.11.1997, passed by the Court
of learned District Judge, Rohtak, whereby appeal filed by the
appellants-defendants against the judgment and decree dated
11.01.1997, has been dismissed.
2. Parties to the appeal are being referred as per their status
before the trial Court. Brief facts of the case are that plaintiff filed the
suit for declaration to the effect that termination order dated 7.5.1993
issued by defendant no.2 is illegal, null and void and without
jurisdiction and the same is liable to be set aside. It is pleaded that he is
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entitled to be reinstated in service alongwith all back wages. The case
of the plaintiff is that he was appointed by defendant no.1 as a driver
with effect from 9.7.1992 and he joined his duties on the same day in
the office of defendant no.2 and since then his work and conduct is
good. Defendant no.2 has illegally terminated his service w.e.f.
7.5.1993 without assigning any reason on the ground that a regular
driver has been appointed against the post of driver. It is further alleged
that no notice or chargesheet was ever served upon the plaintiff before
the termination order was passed against him and, therefore,
termination is illegal and arbitrary. It is stated that the plaintiff was
appointed through Employment Exchange, therefore, he has every right
for regularisation of his services in place of new appointee. It is further
alleged that the plaintiff was appointed by defendant no. 1 and,
therefore, defendant no.2 has no right to terminate his services, against
the rules. The plaintiff requested the defendants not to terminate his
services illegally but in vain. Hence, the suit.
3. Upon notice, defendants contested the suit by filing
written statement wherein they stated that the plaintiff was engaged by
defendant no.1 vide letter dated 7.7.1992 for three months and he
joined his duties on 9.7.1992, and, thereafter further extension was
given upto 28.2.1993. It is stated that no appointment letter was ever
issued to plaintiff because the plaintiff was engaged on daily wages.
The plaintiff was again engaged from 4.3.1993 to 30.4.1993 subject to
the approval of Deputy Commissioner, Rohtak. He was relieved on
28.2.1993 after the expiry of sanction. It is stated that it was not
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necessary to issue any notice or charge-sheet to the plaintiff and,
therefore, the termination is legal. It is denied that the plaintiff has a
right for regularisation of his service. It is also stated that no other
person has so far been appointed in place of the plaintiff. Rather
permanent employee was transferred from the office of Deputy
Commissioner, Rohtak, to fill up the post.
4. The plaintiff in his replication has denied the paras of the
written statement and has reaffirmed the paras of the plaint.
5. On the pleadings of the parties, following issues were
framed :-
1. Whether the order of termination dated 7.5.1993,
passed by the defendant no.2 is illegal, null and
void? OPP
2. Whether the suit is not maintainable? OPD
3. Whether the Civil Court has no jurisdiction to try
and entertain this suit? OPD
4. Whether the suit is not properly valued, its effect?
OPD
5. Relief.
6. After hearing learned counsel for the parties and
appreciating the evidence on record, trial Court vide judgment and
decree dated 11.01.1997 decreed the suit of the plaintiff.
7. Aggrieved against the judgment and decree dated
11.01.1997 appellants preferred an appeal, which has been dismissed
by the lower Appellate Court vide judgment and decree dated
06.11.1997.
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8. Learned counsel for the appellants contended that
judgment and decrees of both the Courts below suffer from infirmity
inasmuch as both the Courts below failed to appreciate that respondent-
plaintiff was working on daily-wage basis, therefore, no notice was
required to be served upon him before termination of his services. He
further contended that judgments of both the Courts below being based
on surmises and conjectures are liable to be set aside. In support of his
contentions, learned counsel relied upon the judgments of the Hon'ble
Supreme Court in Civil Appeal No.726 of 2001 - Dhananjay v. Chief
Executive Officer, Zila Parishad, Jalna - decided on 30.01.2003; SLP
Nos.22475-22476 of 2012 - Yogesh Mahajan v. Professor R.C. Dekha
- decided on 31.01.2018 and judgment of this Court in LPA-1454 of
2019 - Haryana Staff Selection Commission v. Preety Poswal -
decided on 14.10.2019.
9. On the other hand, learned counsel for the respondent
supported the judgments and decrees of both the Courts below by
contending that services of the respondent-plaintiff were terminated
illegally without assigning any reason. He further contended that
respondent was appointed through employment exchange, therefore, he
had every right to continue in services, therefore, the impugned order
was rightly set aside by the Courts below. He further contended that
this Court vide order dated 09.09.1999 while staying the operation of
the judgments/decrees of the Courts below also stayed the termination
of the respondent.
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10. I have heard learned counsel for the parties and perused
the record.
11. In compliance of the orders dated 06.03.2024, passed by
this Court, affidavit of Dalbir Singh, Sub Divisional Officer (C),
Meham, filed in Court is taken on record.
12. Undisputedly, the respondent was appointed as driver on
daily-wage basis by the appellants vide letter dated 07.07.1992 for
three months and his services were terminated by the Sub Divisional
Magistrate, Meham, vide letter dated 07.05.1993, which has been held
illegal by the Courts below.
13. Hon'ble Supreme Court in the case of Dhananjay's case
(supra) has held as under: -
"4. It is not in dispute that the appellant was appointed
on a temporary basis; his services could be terminated
without notice and without assigning any reason within a
period of one year. In fact, his services were terminated
within a period of one year under Rule 5(1) of the Central
Civil Services (Temporary Service) Rules. The only
question that is required to be answered is: whether the
order of termination of services is simpliciter or is punitive
attaching stigma to the appellant. No doubt in the order of
suspension passed on July 1, 1987 keeping the appellant
under suspension, an enquiry was directed against the
appellant in regard to the alleged misconduct. But, no
enquiry was held pursuant to the said order, having
regard to the Government Order dated November 24,
1987 that service of a temporary servant could be
discharged within a period of one year without keeping
him under suspension and without holding an enquiry.
Although initially the enquiry was ordered, in view of this
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Government Order, the respondent did not proceed to hold
any enquiry. In the criminal case filed against the
appellant, he was acquitted.
5. Para 2 of the impugned order of termination of
services makes a mention of the fact that the appellant was
suspended. The learned counsel for the appellant, pointing
out this paragraph, submitted that it would cast stigma on
the appellant and it would adversely affect his prospects.
The High Court, in dismissing the writ petition, relied on
the decision of this Court in the case of Bihari Lal afore-
mentioned. Para 5 of the said judgment reads thus:
"5. It is true that the respondent was acquitted by
the criminal court but acquittal does not
automatically give him the right to be reinstated
into the service. It would still be open to the
competent authority to take decision whether the
delinquent government servant can be taken into
service or disciplinary action should be takenunder
the Central Civil Service (Classification, Control &
Appeal) Rules or under the Temporary Service
Rules. Admittedly, the respondent had been working
as a temporary government servant before he was
kept under suspension. The termination order
indicated the factum that he, by then, was under
suspension. It is only a way of describing him as
being under suspension when the order came to be
passed but that does not constitute any stigma. Mere
acquittal of government employee does not
automatically entitle the government servant to
reinstatement. As stated earlier, it would be open to
the appropriate competent authority to take a
decision whether the enquiry into the conduct is
required to be done before directing reinstatement
or appropriate action should be taken as per law, if
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otherwise, available. Since the respondent is only a
temporary government servant, the power being
available under Rule 5(1) of the Rules, it is always
open to the competent authority to invoke the said
power and terminate the services of the employee
instead of conducting the enquiry or to continue in
service a government servant accused of defalcation
of public money. Reinstatement would, be a charter
for him to indulge with impunity in
misappropriation of public money."
6. If we look to the paragraph extracted above, it
becomes clear that the facts of that case are almost similar
to the facts of the present case. Although a distinction was
sought to be made to contend that judgment has no
application to the facts of the present case, we are unable
to agree with the submission. Merely because the
appellant was kept under suspension, that, by itself, is not
indicative that the respondent had intended from the
beginning to get rid of the services of the appellant by
holding an enquiry. It is not the case of the appellant that
inspite of the fact that his services were needed, the order
of termination of services was passed. Even though the
appellant was acquitted in the criminal case launched
against him on the basis of the complaint made by the
respondent, is also not a factor to indicate that the
respondent wanted to take action against the appellant on
his misconduct to remove him from service.
7. In our view, having regard to the facts and
circumstances of the case, it is not possible to hold that the
order of termination of services was not simpliciter or the
misconduct was the foundation for passing such order.
Even if an enquiry was ordered to find out or verify the
truth or otherwise and the allegation by itself does not
establish that the respondent had any such design to some-
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how remove the appellant from services, in our view, the
High Court was right in dismissing the writ petition in the
light of the facts of the present case and the judgment of
this Court, referred to above."
14. Further, the Hon'ble Supreme Court in Yogesh Mahajan's
case (supra) has held as under: -
"6. It is settled law that no contract employee has a right
to have his or her contract renewed from time to time.
That being so, we are in agreement with the Central
Administrative Tribunal and the High Court that the
petitioner was unable to show any statutory or other right
to have his contract extended beyond 30th June, 2010. At
best, the petitioner could claim that the concerned
authorities should consider extending his contract. We
find that in fact due consideration was given to this and in
spite of a favourable recommendation having been made,
the All India Institute of Medical Sciences did not find it
appropriate or necessary to continue with his services on
a contractual basis. We do not find any arbitrariness in
the view taken by the concerned authorities and therefore
reject this contention of the petitioner.
7. We are also in agreement with the view expressed by
the Central Administrative Tribunal and the High Court
that the petitioner is not entitled to the benefit of the
decision of this Court in Uma Devi. There is nothing on
record to indicate that the appointment of the petitioner on
a contractual basisor on an ad hoc basis was made in
accordance with any regular procedure or by following
the necessary rules. That being so, no right accrues in
favour of the petitioner for regularisation of his services.
The decision in Uma Devi does not advance the case of the
petitioner.
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8. Insofar as the final submission of the petitioner to the
effect that some persons were appointed as Technical
Assistant (ENT) in May 2016 is concerned, we are of the
view that the events of 2016 cannot relate back to the
events of 2010 when a decision was taken by the All India
Institute of Medical Sciences not to extend the contract of
the petitioner. The situation appears to have changed over
the last six years and the petitioner cannot take any
advantage of the changed situation. There is no material
on record to indicate what caused the change in
circumstances, and merely because there was a change in
circumstances, does not mean that the petitioner is entitled
to any benefit. On the other hand, it might have been more
appropriate for the petitioner to have participated in the
walk-in interview so that he could also be considered for
appointment as Technical Assistant (ENT), but he chose
not to do so."
15. Respondent, who was appointed on daily-wage basis for
three months, was not required to be issued any notice as his services
were not required further because a regular incumbent had joined on
the said post. Engagement of the respondent on daily wages was not in
accordance with any regular procedure. Mere extension of
service/contract of an employee on contract basis does not bestow upon
him a right to continue in service. In fact, respondent was not
terminated from service, rather he was not granted extension by the
Deputy Commissioner on account of joining of regular driver,
therefore, his services were dispensed with as not required. Non-
renewal of tenure or extension on daily-wage basis cannot be said to be
termination or dismissal from service. The finding of the Courts below
that services of the respondent were terminated by the Sub Divisional
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Magistrate, who was not competent to do so as he was not the
appointing authority is wrong inasmuch as respondent was appointed
on account of grant of sanction by the Deputy Commissioner and his
services were extended with the sanction of the Deputy Commissioner.
Services of the respondent were dispensed with by the Sub Divisional
Magistrate on account of non-receipt of sanction from the Deputy
Commissioner for extension of daily wage period, as his services were
no longer required. It is settled law that an employee appointed on
contract/daily-wage basis has no legal right to extend his service
period.
16. In view of the above, appeal is allowed. Impugned
judgments and decrees of the Courts below are set aside. It is made
clear that no recovery shall be made from the respondent as he
continued in service till 31.07.2022, in the light of interim order dated
09.09.1999.
17. Pending application(s), if any, stand disposed of
accordingly.
(NAMIT KUMAR)
23.04.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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