[1] This appeal under Section 100 of the Civil Procedure Code is filed by the original defendants who are State and its authorities against whom the respondent had filed Regular Civil Suit No.286 of 1997 challenging termination of his service as daily wager by oral order by seeking declaration that such oral order of termination of service is illegal and in breach of the principles of natural justice.
[2] The case of the plaintiff is that he was appointed as daily wager for Machchhu Irrigation Project on 21.02.1982 and he served upto 20.06.1987 and his service was put to an end by oral order dated 20.06.1987 without following due procedure of law. It is further case of the plaintiff that he had put in continuous service from 21.02.1982 to 20.06.1987 and considering his continuous service, he was required to be given benefit of leave etc. .
[3] The suit was resisted by the appellant by filing written statement stating that the plaintiff was employed purely for project of Machchhu Irrigation Dam as daily wager and there was no question of maintaining any seniority list of such daily wager, as daily wager was not required to be given any other benefits. It is further stated that whether to give work to such daily wager or not, it was for the appellant to decide.
[4] Learned Trial Judge came to the conclusion that there was artificial break given to the plaintiff at the end of 29 days and that since the plaintiff had put in continuous service from 1982 to 1987, his service could not be put to an end without following due procedure of law. The learned Trial Judge came to the conclusion that there was violation of Rule 33 of the Bombay Civil Services Rules and, therefore, the plaintiff was entitled to be reinstated in service. Accordingly, the learned Trial Judge allowed the suit and declared that the termination of service of the plaintiff by oral order was illegal and void and further declared the plaintiff entitled to be reinstated in service with full back wages. The learned Trial Judge directed the appellants to reinstate the plaintiff on the post of work charge employee on temporary basis at minimum scale by considering of the service of the plaintiff as continuous service.
[5] The appellants challenged the abovesaid judgment and decree by filing Regular Civil Appeal No.7 of 1994. The learned Appellate Judge came to the conclusion that the plaintiff had already acquired the status of temporary government servant and, therefore, even if the service of the plaintiff was to be put an end, the same could have been done by following due procedure or law under the Bombay Civil Services Rules. The learned Appellate Judge came to the conclusion that the plaintiff was appointed on the vacant post and has been continued in service from time to time for more than five years and the service of the plaintiff was terminated just to accommodate his junior in his place. On the above reasons, the learned Appellate Judge dismissed the appeal and confirmed the judgment and decree passed by the learned Trial Judge. It is this judgment and decree which is under challenge before this Court in this Appeal.
[6] This appeal was admitted by order dated 10.07.2000 on the following substantial questions of law.
(i) Whether daily wager has any right or interest to be treated as Government servant in absence of any documentary evidence produced by respondent – plaintiff ?
(ii) Whether daily worker is entitled for any right or protection under the constitution or B.C.S.R as he was to be assigned work as per availability of work only ?
(iii) Whether admission made by the Government Officer against Government record or no record or documentary evidence produced by respondent – plaintiff, his admission are to be used against Government ?
(iv) Whether it was incumbent upon the lower court first to ascertain existence of any documents, non-production of which leads to adverse inferences ?
[7] Heard learned advocates for the parties.
[8] Learned AGP Mr.Savan N. Pandya for the appellants submitted that it was the case of the plaintiff himself in the suit that the plaintiff was appointed as daily wager for Machchhu Irrigation Dam and his assertion in the plaint was that he was doing work from 180 to 240 days in a year. Learned AGP also pointed out that the plaintiff never acquired status of government servant and his service was needed as daily wager only when the work was available at the Dam site. Learned AGP further submitted that it was for the appellants to decide whether to give work to such daily wager on the basis of availability of the work for Irrigation Project and, therefore, it was open to the appellants to orally convey to the plaintiff not to work as daily wager from the time when the appellants did not need the service of such daily wager. He submitted that for such daily wager no procedure was required to be followed before putting an end to his service. He submitted that the suit filed by the plaintiff was not maintainable as the Civil Court in such matter has no jurisdiction to entertain the suit and to grant relief in favour of the person whose claim in the suit is that he had served as daily wager without any kind of status as government servant. He submitted that if at all, the plaintiff had acquired any status then also, it was for him to avail remedy under the Industrial Disputes Act for necessary reliefs and in no circumstances, the Civil Court was justified in entertaining the suit of such daily wager. In support of his submission, learned AGP has relied upon the decision of the Hon'ble Supreme Court in the case of Rajasthan S.R.T.C. Vs. Ramdhara Indoliya, reported in (2006) 6 SCC 287 and pointed out from paragraph No.5 that daily wager is required to approach the Industrial Court and not the Civil Court and the daily wager has no right to hold the post nor his suit before the Civil Court is maintainable and only remedy available to him is by a reference before the Industrial Court.
[9] On the other hand, learned advocate Mr.J. B. Bhairavia for the respondent submitted that the Courts below have not committed any error in holding that the oral order passed by the appellant was contrary to the principles of natural justice and the same was thus illegal and null and void. He submitted that the plaintiff had put in continuous five years of service and for all purposes he was a government servant and, therefore, his services could not have terminated without following the provisions of Rule 33 of the Bombay Civil Services Rule. He submitted that since the Courts below have found that there was a breach of principles of natural justice, no error could be found in the judgment and decree passed by the Courts below and as per the settled principles of law, whenever there is a complaint about violation of principles of natural justice or violation of the constitutional provisions, the Civil Court can entertain the suit and declare the order of termination as illegal and in violation of the principles of natural justice and Civil Court in such circumstances, can be said to have jurisdiction and it is not required for such plaintiff to resort to the forum under the Industrial Disputes Act. He submitted that in the present case, the plaintiff has not complained about violation of any provisions under the Industrial Disputes Act nor complained of violation of the standing order framed under the Industrial Disputes Act. But what is complained by the plaintiff is that though he had put in five years of service and acquired the status of government servant, he was governed by Rule 33 of the Bombay Civil Services Rule and, therefore, his service could not have been terminated by oral order without following due procedure of law. He submitted that the decision cited by the learned AGP will have no application to the facts of the present case and the Courts below have rightly held that the Civil Court has jurisdiction to entertain such suit of the plaintiff and, this Court may not interfere with the judgment and decree passed by the Courts below.
[10] Having heard learned advocates for the parties and having gone through judgment and decree passed by the Courts below with the Record & Proceedings of the case, it appears that the plaintiff's case was that he was appointed as daily wager for the project of Machchhu Irrigation Dam and from him, work was taken for a period of 180 days to 240 days in a year and he has put in five years of service as daily wager. It is not the case of the plaintiff that he was appointed as regular employee on the permanent setup by following due procedure of law. His grievance in the suit was that though the work was available for him, still his juniors were given work by the appellant and he has been deprived of the work as daily wager. He, thus, complained that the action of the appellant of terminating his service as daily wager by oral order was contrary to the law and the constitution and it was not open to the appellant to deprive him of his right to get the work as daily wager.
[11] From the above averments made in the plaint, it appears that the plaintiff had not based his claim in the suit that he was government servant appointed by following regular process. If the case of the plaintiff himself was not of appointing him as government servant on regular basis or even on temporary basis on permanent setup, he could not be said to be governed by the provisions of the Bombay Civil Services Rule. Therefore, the Courts below were not justified in holding that the plaintiff was governed by Rule 33 of the Rules and, thus, under the said Rule, he was not required to be given notice before terminating his service. In fact, the finding recorded by both the Courts below that the plaintiff was governed by Rule 33 of the Bombay Civil Services Rules, was not only contrary to the pleadings before the Court, but also contrary to the admitted evidence available on record. The plaintiff was simply appointed as daily wager for an irrigation project. The plaintiff was not entitled to continue as daily wager against non-availability of the work for a daily wager as decided by the appellant. If service of respondent - daily wager was not required by the appellants, and a decision was taken to discontinue his service, for such decision to discontinue the daily wager, the appellants were not required to follow the procedure under the provisions of Rule 33 of the B.C.S.R. nor any other procedure was required to be followed before putting an end to the service of such daily wagers.
[12] When the plaintiff has put forth his case only as a daily wager and has not produced any documentary evidence that he had either acquired status of government servant or his appointment from the very beginning was as government servant on temporary establishment, the finding recorded by the Courts below that the plaintiff had become the government servant and for plaintiff, such procedure under Rule 33 of the B.C.S.R was required to be followed was contrary to the pleadings and admitted evidence. Therefore, the substantial questions of law formulated by this Court, while admitting the appeal, are answered as stated above by holding that the plaintiff has asserted his claim as daily wager and it cannot be said that he is government servant and in absence of any evidence produced by him, he as a daily wager was not entitled to any protection under the constitution or under the B.C.S.R. as the plaintiff was assigned work as daily wager as per the availability of the work.
[13] In view of the above proved facts, only remedy available, if any, for the plaintiff was to establish his right for claiming benefit on the basis of continuous in service of five years before the Industrial Court. The suit of the plaintiff before the Civil Court was not maintainable. In the case of Rajasthan Road Transport Corporation (Supra), the Hon'ble Supreme Court has held and observed that a daily wager has no substantive right to hold the post and the daily wager would have his remedy before the Industrial Court and Civil Court has no jurisdiction to try the suit for reinstatement of such daily wager.
[14] In light of the above law laid down by the Hon'ble Supreme Court, the judgment and decree passed by the Courts below cannot stand scrutiny of law and they are required to be quashed and set aside and the appeal is required to be allowed.
[15] The appeal is, therefore, allowed. The judgment and decree passed by the Courts below are hereby quashed and set aside.
[ C. L. SONI, J. ] vijay