KAILASH CHAND VERMA Vs. PANCHAYAT SAMITI

JUDGEMENT

(1.) THE grievance of the petitioner, as unfolded by this writ petition, briefly stated, is that the petitioner was appointed as a daily rated employee in the Famine Relief Department of Panchayat Samiti, Kishanganj, on June 18, 1988 at the rate of Rs. 20/- per day vide Ex. 1. It has been contended in the writ petition that the petitioner used to be paid Rs. 600/- per month at the close of English calendar month i. e. at the first of every English month which clearly implied that he used to be paid for 30 days in a month without excluding Sundays and holidays. It has been further contended that the petitioner has been regularly attending his duties and marking attendance in the Attendance Register/muster Roll maintained in the office of the respondents. According to the petitioner he discharged his duties satisfactorily for more than a year in the industrial establishment of Panchayat Samiti, Kishanganj in the cadre and category of Lower Division Clerk (LDC ). The services of the petitioner were dispensed with by the respondents vide letter dated February 8, 1990 (Ex. 3) on the charge of negligence and carelessness in the matter of maintaining Dak Ticket Register. It has been further contended that before the petitioner furnished his explanation to the Vikas Adhikari his services were terminated/retrenched vide letter dated February 2, 1990, as aforesaid. It will be pertinent to refer to Ex. 4 which is letter dated February 2, 1990 in this connection, wherein it is specifically mentioned that since the services of the petitioner were not found satisfactory the same are terminated with immediate effect. It is under these circumstances that the petitioner has moved this Court by filing the present writ petition under Article 226 of the Constitution.

(2.) THE relief sought for by the petitioner in the writ petition is under :-

(3.) IN the reply to the show cause notice filed on behalf of Respondent No. 1 i. e. Vikas Adhikari, Panchayat Samiti and Collector, Ajmer, it has been contended that the petitioner was appointed on daily wage basis as a casual labour and not as LDC. The respondents have emphatically denied that during the entire period of service of the petitioner he continuously worked as LDC. In any event it is a disputed question of fact which cannot be decided in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. In para 6 of the reply Respondent No. 1 has specifically stated to the effect that the petitioner never worked as LDC and since his work was not found satisfactory prior to February 8, 1990 (Annex-3) two warnings were given to him vide letter dated December 29, 1989 and December 30, 1989 and notwithstanding the said warnings the petitioner did not improve his work. In reply to para 9 the respondents have contended that since the petitioner has not come to this Court with clean hands the writ petition deserves dismissal in limine. It has been further contended in para 10 of the reply that the petitioner who was allowed to work on the post of Despatch Clerk, due to administrative reasons but in terms of order dated October 26, 1989. the said work was also withdrawn from him. In any event whether the petitioner was appointed as a clerk or that he was a workman entrusted with clerical duties temporarily is a pure question of fact for which the petitioner should have availed alternative remedy of moving to the appropriate forum i. e, the Labour Court by raising an industrial dispute before the Tribunal under the provisions of the Industrial Disputes Act, 1947 (for short 'the Act' ). With regard to the contention of the petitioner that his services were retrenched and that he is entitled to compensation in lieu of notice the respondents have specifically stated in para 14 of the reply that as per Section 2 (oo) (bb) of the Act, it cannot be said to be a case of retrenchment falling within the ambit of Section 25-F of the Act which is neither applicable nor attracted to the facts of the present case. Moreover the petitioner has raised many disputed questions of fact regarding his pay, nature of duties, termnination of his service, certificates, letters etc. which cannot be decided by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India as the same are disputed questions of facts for which evidence has to be led in detail before the industrial Tribunal. Under the circumstances the respondents have contended in their reply that the writ petition itself is not maintainable in view of the alternative remedy of raising a dispute before the Industrial Tribunal which the petitioner has failed to avail of before moving to this Court under Article 226 of the Constitution of India.