Baidyanath Mishra vs Administrator Shree Jagannath Temple and Others

S.K. Ray, J.—By Annexure-1 dated 12-11-1968 the Petitioner was temporarily appointed as an Assistant in the office of Shree Jagannath Temple, Puri to remain in charge of Donation section on a provisional pay of Rs. 100/- per month with usual D. A. as may be sanctioned by the Committee from time of time with effect from 12th November, 1968. This appointment was purely temporary and terminable without notice and without assigning any reason. His scale of pay was enhanced as per Annexure-2 dated 7-5-1969. In this order the Petitioner has been described as an, Assistant of the office of the Administrator and has also been described as Donation Assistant.

The Petitioner then worked as a Bus Conductor in a bus purchased by the Temple on the same scale of pay as per Annexure-2. In the counter of opposite party No. 1, it has been averred that his service as Donation Assistant was terminated and he was given the new assignment of Bus Conductor. But in absence of any termination order, this averment cannot be accepted and the Petitioner must be deemed to be continuously in service under the Administrator and was being asked to discharge his duties in different assignments as directed by the Administrator from time to time.

Annexure-3 dated 30-4-1970 he was posted to Jatni to provisionally work as Revenue Officer in Ekhrajat Mahal Office until further orders. This was not a fresh appointment, but as would appear from the office order dated 20-5-1970, extracted in para 7 of the writ application, the Petitioner was to draw pay at the rate he was getting at the time of deputation.

It is clear from the aforesaid Annexures 1, 2 and 3 that the Petitioner was originally appointed as Donation Assistant in the office of Shree Jagannath Temple, Puri on temporary basis and he was being assigned different duties in different capacities at different places by the Administrator, opposite party No. 1. In other words, while holding the basic and primary appointment of a Donation Assistant, he was being allocated different nature of works by the opposite party No. 1 who was entitled, in exercise of his powers under Shri. Jagannath Temple Act 1954 (hereinafter referred to as the �Act�), to pass such orders in respect of temporary employees in his office.

By Annexure-4 dated 23-1-I972, the services of the Petitioner were terminated. The impugned order is extracted hereinbelow:

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The services of Shri Bidyanath Misra, Donation Assistant, now working as Revenue Officer, are terminated from the date Shri Das joint his duty. Shri Misra must make his papers ready to make over charge by 1-2-1972.

Sd. Administrator, Shri Jagannath Temple, Puri.

Section 24 of the Act provides for appeal to an Appeal Sub-Committee from certain categories of orders passed by the Administrator as specified therein. The time limit for filing such appeal is 15 days from the date of the order so specified. Sub-section (3) of Section 24 provides for constitution of an Appeal Sub-Committee, of which the Collector of Puri is to be the Chairman. As no Appeal Sub-Committee had been constituted by the time the impugned order (Annexure-4) was passed, the Petitioner submitted an application to the Collector (Annexure-5) requesting him to treat this application as an appeal, to constitute the Appeal Sub-Committee and to decide the said appeal. He also warned that if no Appeal Sub-Committee was constituted, he would be forced to move the Government u/s 30 of the Act. As no action was taken for constitution of the Appeal Sub-Committee and for hearing of the appeal within 15 days of the impugned order, the Petitioner invoked the powers of the State Government u/s 30(2) of the Act by a petition dated 18-1-1974 (Annexure-6). As still no action was taken on the I basis of Annexure-6, the Petitioner filed a memorandum dated 21-12-1974 to the Minister of Law. Ultimately, the Government rejected the Petitioner�s application dated 18-1-1974 (Annexure-6) and communicated the order of rejection as per Annexure-8 dated 11-2-1976. This has compelled the Petitioner to seek redress in this Court.

Mr. Mohanty, learned Counsel for the, Petitioner, ultimately confined his arguments to one point on which, in my opinion, this writ application is bound to succeed. His contention is that Annexure-4, the order of termination of the services of the Petitioner, being in contravention of regulation 19, is bad in law and is liable to be quashed.

Section 31 of the Act provides that the Committee may, subject to the approval of the State Government make regulations not inconsistent with the provisions of the Act and the rules made thereunder to provide for the manner in which the duties imposed on it under the Act and it function thereunder shall be discharged and in particular to provide for (a) conditions of service of office bearers and employees of the Temple. The other sub-clauses of Section 31 are unnecessary to be stated. The Managing Committee framed regulations, known as Shri Jagannath Temple (Employees Conditions of Service) Regulations, 1967, which came into force on 17th day of November, 1967. Regulation 19 provides as follows:

Except as otherwise provided in these Regulations, all persons temporarily employed whose services may be no longer required shall be liable to be discharged with one month�s notice or on payment of one month�s pay in lieu thereof and likewise no such person shall withdraw from the duties of his office without giving previous notice for a period of at least one month on pain of forfeiture of a month�s salary.

It appears to me to be mandatory in nature, which is indicated by use of the words "shall be liable to be discharged" and also by the fact that there is a corresponding obligation on the employee to give one month�s notice before relinquishing the service, or in default thereof to forfeit one month�s salary. This regulation, after its commencement, must be taken to invariably and statutorily very the contractual terms and conditions of service of a Jagannath Temple employee and incorporate therein a requirement of one month�s notice or one month�s pay in lieu thereof as envisaged therein, notwithstanding anything to the contrary in the contractual terms. Annexure-1 which is of the year 1968 must therefore, be read as having been varied in the manner envisaged in this regulation 19, and any terms and conditions in disregard of the requirements of regulation 19, in my opinion, would be bad in law. Annexure-4 has already been extracted. It is dated 23-1-1972 and it requires the Petitioner to hand over charge by 1-2-1972 which means that one month�s notice of termination has not been given nor has there been payment of one month�s pay in lieu thereof. In case the employer decided to take action under the second alternative, that is to say, terminate service on payment of one month�s pay, a further question might arise as to whether such payment shall be simultaneous with termination of service or not. There appears to be in the field divergence of views depending upon language of different service rules, but, in my opinion, it is unnecessary to delve into those matters, because no action on the second part of the regulation is purported to have been taken. On the other hand, the opposite parties take a stand in terms of Annexure-1 and they do not also allege that they had given one month�s notice. It is also clear from Annexure-4 that one month�s notice had not been .given. There can, therefore, be no manner of doubt that Annexure-4 is not in accord with the mandatory requirements of regulation 19 and is, therefore, bad in law. Annexure-4 is, accordingly quashed.

This writ application is, accordingly allowed and the Petitioner is entitled to costs which is assessed at one hundred rupees.

Application is allowed with costs.

P.K. Mohanti, J.

I agree.

Appeal allowed.