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Wasudeo Vs. Nagpur Corporation (by the Executive Officer) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberIndustrial Appeal No. 7 of 1957
Judge
Reported in(1958)IILLJ519Bom
ActsConstitution of India - Article 311 and 311(2); Temporary Service Rules
AppellantWasudeo
RespondentNagpur Corporation (by the Executive Officer)
Excerpt:
.....the same time, the memorandum appointing the appellant clearly states that he was appointed as a filter attendant temporarily in a clear vacancy. the expression is not very happy but it can either mean that he is only officiating in the post or appointed on probation. i fail to see, therefore, how the decision supports the appellant. ' it has further been observed in the same decision :it follows from the above discussion that both at the date of the commencement of the 1935 act and of our constitution the word 'dismissed,'removed' and 'reduced in rank,'as used in the service rules, were well understood as signifying or denoting the three major punishments which could be inflicted on government servants. ' 5. i have quoted several passages in the judgment because a good deal of..........that by an order, dated 2 february 1955, the non-applicant promoted him in a clear vacancy to be filter attendant, the services of the applicant being of a permanent character; that by an order, dated 18 august 1955, the non-applicant removed him from his job of filter attendant, without showing any reason or else otherwise giving any notice to the applicant and consequently effected a change in the conditions of service of the applicant not only affecting his wages but also his rightfully acquired status. he, therefore, alleged that the change was in regard to an industrial matter and was an illegal change and asked for a declaration and for certain consequential reliefs. 2. the non-applicant in his written statement has denied the various allegations. according to the non-applicant,.....
Judgment:
ORDER

1. This is an appeal against the order of Shri T. L. Junankar, District Industrial Court, Nagpur, dismissing the application of the appellant. It was alleged by the appellant that he was working as a filter khalasi at Gorewara, Nagpur, since 1946; that by an order, dated 2 February 1955, the non-applicant promoted him in a clear vacancy to be filter attendant, the services of the applicant being of a permanent character; that by an order, dated 18 August 1955, the non-applicant removed him from his job of filter attendant, without showing any reason or else otherwise giving any notice to the applicant and consequently effected a change in the conditions of service of the applicant not only affecting his wages but also his rightfully acquired status. He, therefore, alleged that the change was in regard to an industrial matter and was an illegal change and asked for a declaration and for certain consequential reliefs.

2. The non-applicant in his written statement has denied the various allegations. According to the non-applicant, the facts of the case were that the post of filter attendant at Gorewara Pumping Station was lying vacant due to transfer of Sri Bawangade from Gorewara to Kanhan Water Works, and hence arose the necessity of appointing a hand temporarily till the post was permanently filled up after advertisement. One Sri Laxman Bhagwan, a peon at Gorewara Pumping Station who was senior to the appellant in service, was temporarily appointed as a filter attendant under orders of the chief executive officer, dated 29 May 1954. Subsequently the appellant represented his claim for the post of filter attendant. Accordingly, the chief executive officer by his order, dated the 2 February 1955, appointed the appellant as filter attendant temporarily. The chemist under whom he was working, later reported that he was not discharging his duties properly and efficiently. The chief executive officer, therefore, directed that the post be advertised and applications called for. The post was, therefore, advertised and the selection committee selected one Sri Tambe who was appointed to the post and the appellant was reverted to his original post as a khalasi.

3. From his letter of appointment as well as the admission in the written statement, it is clear that there was a clear vacancy. At the same time, the memorandum appointing the appellant clearly states that he was appointed as a filter attendant temporarily in a clear vacancy. The limited question that therefore falls to be considered is whether a notice of change under S. 31 was necessary before a person would be reverted to his original post when a person is temporarily appointed in a clear vacancy. There is no doubt that his reversion would result in a reduction in wages from what he was drawing for the period he acted as a filter attendant. But, in my opinion, it is not in every case where a man's wages would be affected that a notice of change is necessary but only in cases where a man had acquired a right to certain wage, customary concession, privileges, etc., in respect of which a change was effected. Obviously, where a person was made to officiate in a higher post during the temporary absence of another, no such notice of change would be necessary if on the return of the substantive holder of the post the person officiating was reverted. To put it in other words, a notice of change would only be necessary when a substantive right is sought to be taken away. In the present instance, while appointing him to the clear vacancy, it has been abundantly made clear to the appellant that he is being appointed only temporarily. The expression is not very happy but it can either mean that he is only officiating in the post or appointed on probation. He does not acquire any substantive right to the post. In my opinion, therefore, no notice of change is necessary for reverting him to his original post from his temporary appointment and there has, therefore, been no illegal change.

4. Reliance has been placed by the counsel for the appellant on the decision of the Supreme Court in Civil Application No. 65 of 1957, Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC . That is the decision under Art. 311 of the Constitution. But even that decision does not support the view that is canvassed by the appellant. The passage in that decision that was relied upon was :

'The position may, therefore, be summarized as follows : In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service.'

In the present instance, there is no substantive appointment to a permanent post nor is there any appointment to a temporary post for a certain specific period. I fail to see, therefore, how the decision supports the appellant. In the following lines in the same decision it is observed :

'Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service had ripened into what is, in the service rules, called a quasi-permanent service.'

It has further been observed in the same decision :

'It follows from the above discussion that both at the date of the commencement of the 1935 Act and of our Constitution the word 'dismissed,' 'removed' and 'reduced in rank,' as used in the service rules, were well understood as signifying or denoting the three major punishments which could be inflicted on Government servants.

The net result is that it is only in these cases where the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows therefore, that if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant, whose service is so terminated, cannot claim the protection of Art. 311(2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided.'

They further observed :

'Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment.'

5. I have quoted several passages in the judgment because a good deal of reliance was placed thereupon at the hearing. Reliance has been again placed on another judgment of this Court in Industrial Case No. 8 of 1955, Govinda Waghmare and others v. Agricultural Engineer to Government of Madhya Pradesh, decided on 31 October 1956. That was however a case where the persons had acquired a sub-stantive right in a temporary post. They were not temporarily appointed or in other words were not officiating or on probation as in this case and, therefore, this Court took the view that reversion of those persons amounted to punishment. Refusing to confirm a person who is on probation or reverting a person who is officiating as he is not found fit would not amount to any kind of punishment. The lower Court has relied upon a number of decisions in support of this view. I therefore agree with a view of the lower Court that a notice of change was not necessary in this case. The appeal is, therefore, dismissed. No orders as to costs.


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