JAI BAHADUR SINGH Vs. STATE OF U P

JUDGEMENT

(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.

(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.