- (1.) R. B. Misra, J. Heard Sri B. P. Srivastava, learned Counsel for the petitioner, Sri S. P. Singh, learned Counsel for respondent No. 3 and learned standing Counsel. In this petition prayer has been made to quash the order dated 28-10-1989, whereby petitioner's deployment as gateman has been dispensed with. A further prayer has been made seeking writ of mandamus commanding the respondents to allow the petitioner to hold the post of gateman and to accord him all the benefits and privileges of continuity of service.
(2.) ACCORDING to the petitioner, he was appointed as gateman by the Divisional Forest Officer, Varanasi on 24-6-1984. He continued to serve as gateman from 24-6-1984 to 28-10-1989. As a gateman, the petitioner was to open door at the direction given by the Nikashi Munshi and Gateman was not to allow any truck to go out the gate. However, petitioner was surprised to receive a termination order dated 28- 10-1989, which is a stigmatic order which has been passed without affording opportunity of hearing to the petitioner, as such it is beyond jurisdiction and is contrary to the provisions of Article 311 (2) of the Constitution of India and as such the impugned order is arbitrary and is liable to set aside. A counter-affidavit has been filed by Sri Jawahar Lal, on behalf of respondent No. 2, which indicates that there is no sanctioned post of gateman in the Forest Department. The petitioner was deployed to work on daily wages/muster role employee by Range Officer, Ramnagar, who is also Unit Officer. According to the respondents, contents of Annexure-1 giving appointment is manipulated and is not genuine. No post of gateman has been provided in the establishment of Forest Department. According to the respondents the petitioner was working as daily wager like other daily wagers at relevant time. By virtue of deployment petitioner was to open the gate of the barrier on the instructions of Nikasi Munshi and not on his own. The petitioner on 26-10-1989 at 7 a. m. allowed to pass fuel loaded truck without permit through barrier which was without permit. The Unit Officer of Ramnagar submitted his enquiry report that the said truck was allowed to pass through the barrier loaded with fuel wood without permit. According to the respondents, petitioner was deployed as daily wager. There was no question of issuing appointment order as indicated in Annexure-1. Since the petitioner was on contractual deployment on day today basis being daily wager was removed from deployment on the basis of report of Unit Officer, Ramnagar, which found the petitioner guilty in the enquiry. During the course of argument it has been submitted on behalf of respondents that daily wager has no right to the post and the appointment of daily wager was not made according to procedure. The deployment of the daily wager is on day today basis and their engagement commences in morning and comes to an end in the evening and the deployment is made in the need of work. The daily wage service can be terminated when work is not available or when the person deployed on daily wager is found guilty or was found not suitable to perform the work of daily wager or his service is not satisfactory. According to learned Counsel for the petitioner, no notice or show cause or opportunity of hearing was necessary to be given to the daily wager before disengagement. The daily wager has no right to post and protection of Article 311 (2) of the Constitution. Non-renewal of contractual employment and dispensation of engagement at any stage without any reason in terms of appointment does not amount to retrenchment under Section 2 (oo) of Industrial Disputes Act as held by the Supreme Court in (1997)11 SCC 521, Escors Ltd. v. Presiding Officer and another, while following an earlier decision of Supreme Court in (1994)2 SCC 323, M. Venugopal v. Divisional Manger, LIC. Later on it was considered and followed when similar view was taken by the Supreme Court in (1996)1 SCC 595, State of Rajasthan and others v. Rameshwar Lal Gahlot, where termination of appointment after expiry of specified period held valid and not attracting Section 25-F of Industrial Disputes Act, 1947 unless the termination was found to be mala fide or in colourable exercise of powers. Similar view was also taken by the Supreme Court in 2002 (9) SCC 622, Executive Engineer, CPWD, Indore v. Madhukar Purshottam Kolharkar and another.
(3.) UNDISPUTEDLY, the petitioner was a daily wager. The daily wagers have no right to the post in view of 1996 (4) SCC 391, Himanshu Kumar Vidyarthi v. State of Bihar and 1993 (1) AWC 172, Bipin Bihari Srivastava v. District Judge, Basti, because appointment of daily wagers are made by not complying or observing the procedural formalities in consonance to any rules, regulations or by observing the procedures prescribed for the recruitment. The engagement of daily wager commences in the morning and comes to an end in the evening of every day. There is a contractual deployment for every day. It is upto the employer to allow to continue the employment or disengage the daily wager at any time in absence of work. The daily wager has no right or protection under Article 311 of the Constitution of India. AIR 1967 SC 884, State of Assam v. Kanak Chandra Dutta; 1998 LIC 1988 (AP) para 16, Jagdev v. State of U. P. and 1999 (82) FLR 76 paras 8 and 10, Channey Lal v. Director Malaria Research Centre, New Delhi. In (1997)4 SCC 391, Himanshu Kumar Vidyarthi and others v. State of Bihar and others, the Supreme Court has held that every department of Government cannot be treated as 'industry' and dispensation of service of persons engaged on daily wages under the Government department, therefore, is not a retrenchment. In Himanshu Kumar Vidyarthi (supra) the services of the writ petitioners, who were appointed as daily wagers as Assistant Drivers and Peon in Co-operative Training Institute under the State Government were terminated and the contention of the writ petitioners that they were retrenched from service in violation of provisions of Section 25-F of the Industrial Disputes Act, 1947 was rejected by the Supreme Court and it was held as under : "every department of the Government cannot be treated to be industry. When the appointments are regulated by the statutory rules, the concept of industry to that extent stands excluded. The petitioners were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. The are temporary employees working on daily wages. Their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of retrenchment therefore, cannot be stretched to such an extent as to cover these employees. Since the petitioners are only daily wage employees and have no right to the posts, their disengagement is not arbitrary. ";