ORDER
1. This is an application under Article 226 of the Constitution praying that a writ of certiorari or any direction in the nature of certiorari be issued quashing the order of removal of the petitioner and also the order passed by the Commissioner dated the 26th of October 1956, continuing the order of removal of the petitioner. It is further prayed that a writ of mandamus or direction in the nature of mandamus be issued to the opposite parties to treat the applicant as a tahvildar in the sub-treasury at Lal-ganj in the district of Azamgarh.
2. The facts which are necessary for the appreciation of the points urged, are that the petitioner was appointed as tahvildar in the year 1949 in the Azamgarh treasury. Tahvildars are employed in the cash department of the treasuries of the Government On the 20th April 1956, when the petitioner went to the treasury, he was told by the Tahsildar that his services were terminated and that he should give charge of his office to Shri Radhey Shyam Aganwal and consequently the petitioner gave charge of the office.
A representation was sent by the petitioner against that order of removal to the Collector, Azamgarh, and when no reply was received to that representation, the petitioner sent another representation to the Commissioner of Gorakhpur Division. The Tahsildar also sent the report to the Collector to the effect that he had asked the petitioner to hand over charge of his office. On the 26th of October 1956, the petitioner received an intimation rejecting his representation. The present petition was filed in this Court on the 10th of January 1957. It is this order of removal of the petitioner passed by the District Magistrate and confirmed by the Commissioner in appeal, that has been challenged by means of this writ petition.
3. The main contention raised by the petitioner is that he is a civil employee of the State Government and consequently entitled to the protection of Article 311 of the Constitution.
4. Notices were issued to the Collector, Azamgarh, State of U. P., and the Treasurer, Azamgarh, and also to the Commissioner, Banaras Division. A counter-affidavit has been filed on behalf of the Collector, Azamgarh, and it is not denied that the petitioner was not givey any opportunity to show cause against the charges levelled against him or against the proposed punishment. The main stand taken, however, by the opposite party in the counter-affidavit is that the petitioner is not a civil servant of the State.
He is employed by the Treasurer who was solely responsible for the maintenance of cash in the Treasury. The petitioner, therefore, was not entitled to the protection of Article 311 of the Constitution. The main question, therefore, to be considered is what is the relationship of the present petitioner as a tahvildar with the State. If the petitioner is a civil employee of the State he is certainly entitled to protection under Article 311 of the Constitution which has been denied to him in the present case.
The petitioner has set out certain facts in the affidavit and the opposite party has also set out certain facts in the counter-affidavit and the question to be considered is whether on admitted facts the petitioner can be regarded as an employee of the State or not. It was strongly urged by the counsel for the State that this is a question of fact and consequently the proper remedy for the petitioner is to enforce his right by way of a suit.
If there was any controversy as regards the facts, there would have been some force in the contention raised by the other side but in the present case the contention raised by the petitioner is that on admitted facts it is established that the petitioner is an employee of the State. In order to come to a cor-rect conclusion it is necessary to examine some of the allegations made in the affidavit filed by tho petitioner and the allegations made in the counter-affidavit.
In para. 4 of the affidavit filed by the petitioner it is stated that the pay and emoluments of the tah-vildars are paid by the State Government. Their appointment, removal, dismissal, leave and other conditions of service are under the directions and control of the Collector of the district. According to the system prevailing in the treasuries, the contract of the cash department of the treasuries is given to a person who is called the Government Treasurer and who is paid by certain remuneration for it.
The payment of the salary of tahvildars is, however, made by the State. Their conditions of service, appointment, removal, dismissal and leave are all under the direction of the Collector. In para. 5 of the counter-affidavit it is stated that in order to en-sure that the staff of the Treasurer is actually paid its salary, the Government by G. O. dated the 9th December 1939, sent instructions that the salary of the treasurer's office should be disbursed to the persons concerned and not paid to the treasurer, It is, therefore, clear that in the year 1927, directions were issued that tahvildars had to be employed by the treasurers but in the matter of their appointments, dismissal and other conditions they were under the control of the District Magistrate. As regards payment of salary it was agreed that the amount was added to the remuneration of the treasurers and out of their own remuneration the treasurers had to pay to the tahvildars but since the year 1939, the salary of the tahvildars was directly paid by the treasury officers.
It cannot, therefore, be said that the salary was also paid by the treasurers. The only fact, therefore, as alleged in the counter-affidavit is that the tahvildars were actually employed by the treasurers themselves. The mere fact that they were employed by the treasurers themselves is ,no ground to establish that they were not employees of the State Govern-ment. The treasurers themselves are under the control of the State Government.
It is not stated in the counter-affidavit that the treasurers are not employees of the State Government, If they are employees and are not in the position of independent contractors, any person employ-ed by them in order to carry out the work entrusted to the treasurers by the Government cannot be different from the treasurers themselves and they also cannot be anything but employees of the State Government, merely on account of the fact that they are directly appointed by the treasurers.
Nothing has been pointed out by the Standing Counsel in the counter-affidavit which would go to show that the treasurers are not employees of the State Government but they are in the nature of independent contractors. It is necessary to refer to the case of Shivanandan v. The Punjab National Bank Ltd., AIR 1955 SC 404 (A).
There tho appellant was employed as a cashier in a bank. The appellant in that case claimed to ba an employee of the bank. The Supreme Court after a consideration of the matter came to the conclusion that the appellant in that case was an employee of the bank. It is necessary to refer to some of the observations made by the Supreme Court. It was held at p. 409, that:
"It is not always easy to determine whether the relationship between two parties, in the present case of the Treasurers vis-a-vis the Bank, is that of servants to a master or of independent contractors who have undertaken to do a particular job for their employer. The question has generally arisen in connection with the determination of vicarious liability ol an employer in respect of. acts done by his agen (using a neutral word which includes an independent contractor as also a servant). The distinction between a servant and an independent contractor has been the subject-matter of a large volume of case-law from which the text-book writers on torts have attempted to lay down some general tests. For example, in Pollock's Law on Torts, the distinction has thus been brought out:
A master is one who not only prescribes to the workman the end of his work, but directs or at any moment may direct the means also, or, as it has been put, 'retains the power of controlling the work', a servant is a person subject to the command of his master as to the mariner in which he shall do his work.
An independent contractor is one who undertakes to produce a given result but so that in the actual execution of the work he is not under the order, or control of the person for whom he does it, and may use his own discretion in things not specified beforehand.... .............."
At p. 411 of the report it is further observed that:
''In our opinion, there is no substance in that contention. If a master employs a servant and authorises him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be equally with the employer, servants of the master. It is not always correct to say that persons appointed and liable to be dismissed by an independent contractor can in no circumstances be the employees of the third parly." "
It was further held at p. 411 that:
"It would thus appear that the question as to whose employee a particular person was, has to be determined with reference to the facts and circumstances of each individual case. Lord Porter in the course of his speech in the reported case (supra) at p. 17 has observed as follows:
'Many factors have a bearing on the result. Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expression used in any individual case must always be considered in regard to the subject-matter under discussion but amongst the many tests suggested I think, that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged'."
5. Applying these tests it is clear that 'the tahvildars were subject to the control of the State Government. Having considered all the circumstances of the case I am of the opinion that although the petitioner was employed by the treasurer, he is under the control of the State Government. The petitioner is, therefore, entitled to protection under Article 311 of the Constitution.
6. I, therefore, allow this petition and quash the order removing the petitioner from the service and also quash the order passed by the Commissioner dated the 26th of October 1956, confirming the order of removal passed against the petitioner; but I make no order as to costs.