G.M. Qadri vs Secretary to Government Industries and Commerce Department and Another

J.N. Wazir, C.J.—This is an application for issue of an appropriate writ praying that the order dated the 7th December 1957 discharging the

Petitioner with effect from the 8th December 1957 be quashed and that the Petitioner be reinstated to the post which he was holding before his

discharge from service.

The relevant facts as alleged by the Petitioner in his application are the following. The Petitioner was engaged in the Government Joinery Mill as

Time keeper and worked as such till the 7th December 1957 when he was discharged from service in compliance with the order passed by

Respondent No. 2. at the instance of Respondent No. 1.

The Petitioner worked to the entire satisfaction of the Respondent giving no occasion whatsoever for being discharged from service. The Petitioner

was not informed of any reason for discharging him from service and the order of discharge, according to him was illegal, arbitrary mala fide and

contrary to the rules of natural justice.

The order of discharge dated the 7th December 1957 reads as under:

Government Joinery Mills,

Post Box No. 4. Srinagar.

NOLGDJ/VIII -- 7/57 Dated 7-12-1957.

Office Order

As per order of the Secretary to Government Industries and Commerce, Vide No. 20JN/55 dated. Srinagar Dec. 6, 1957 Mr. G.M. Qadiri Time

Keeper is discharged from his service with effect from 8th December, 57. Mr. G.M. Qadari will hand over his charge to Mr. Ghulam Rasool Mir,

Recorder in the Office and the Maintenance Engineer, Mr. Ghulam. Qadir may please check that no outstanding in any department will remain

against Mr. G.M. Qadiri

Sd. G. Djupsjo,

Manager, Government Joinery Mills,

Pampore (Kashmir)

Mr. Djupsjo has further certified that the Petitioner was posted on the following duties:

(1) Recorder of Sawn timber in Saw Mills from. 8-8-1954 to 16-3-1955

(2) Recorder in Log Pond and Finished Goods-Store from 17-3-1955 to 5-7-1957

(3) Time-keeper from 6-7-1957. to 8-12-1957. He has further certified that the work of the Petitioner was satisfactory and that he was

discharged by order of the Secretary to Government, Ministry of Industries and Commerce for reasons not known to the Manager.

The Respondents have resisted this petition on the ground that the Petitioner was a daily wager whose employment could be terminated at any

time and that the Petitioner was not entitled to any show-cause notice either under the Constitution or any law or the rules of natural justice. It was

further averred that the Petitioner was not a member of any civil service in the State nor did he hold a civil post under the State. The Petitioner was

merely a daily wager in the factory and it was open to the Respondents not to employ him in future.

The counsel for the Petitioner admitted that the Petitioner was not a member of the civil service of the State but contended that he held a civil

post under the State and, therefore, was entitled to the benefits of Section 126(2) of the Constitution of Jammu and Kashmir.

The question for determination, therefore, in this petition is whether the Petitioner held a civil post under the State and if so, is he entitled to the

benefit of Clause (2) of Section 126 of the Constitution of Jammu and Kashmir.

Section 126 of the Constitution is as follows:

(1) No person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority

Subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing

cause against the action proposed to be taken in regard to him.

It is argued that the Petitioner held a civil post under the State inasmuch as the Joinery Mill being a commercial concern is owned, controlled and

financed by the State and the Petitioner being a worker in the Mills was paid out of the State funds and therefore, the Petitioner was holding a post

under the. State.

It is true that the Joinery Mills is a commercial concern and is under the control of the State The Manager and certain other officers who are

mentioned in the Budget pertaining to this concern are Government servants and are paid from the State funds. Although the posts of the clerk

working in the Mills are specifically mentioned in the Budget yet there is no post of the Time-keeper mentioned in it. The Time-keeper is styled us

a wage earner in the acquittance register and his wages for the days he works are paid at the end of each month.

The counsel for the Respondent has produced the acquittance roll of the workers for the month of December 1957 before us and in that the name

of the Petitioner is entered under serial No. 140 and his token number is shown as 211 and his wages are entered as Rs. 2.75 N.Ps per day. In the

same acquittance roll the Petitioner for November is paid for 26 days and has been marked absent for 4/1/2 days and after deducting his wages

for these days he has been paid Rs. 59.39 NPS as his wages for that month. The Petitioner has appended his signature on the acquittance roll after

receipt of the wages.

From the Budget it appears that there is no sanctioned post of a Time-keeper in the Factory and the Petitioner, as appears from the

acquittance roll, is a wage earner who is paid wages at the end of the month for the days he works during that month.

Although the Petitioner is paid out of State funds that by itself would not give him the status of a person holding a civil post under the State. The

term 'civil post' is not defined in our Constitution but certain tests are laid down by judicial decisions of different High Courts to determine whether

a person is holding a civil post or not. In Lachmi and Others Vs. Military Secretary to the Governor of Bihar and Another, it is laid down as

follows:

The true test in determining whether a person comes within the Article 311 of the Constitution is not whether his salary or wages are paid from

State funds; the true test is whether he is a member of the civil service of a State or whether he holds a civil post under a State. The expression

civil post under a State"" means that the post is under the control of the State; that is, the State can abolish the post if it so desires, or the State can

regulate the condition subject to which the post is or will be held. The real test therefore is the immediate or ultimate control which is exercised by

the State with regard to the post in question.

Even if some control is exercised by a State Govt. over some institution, the employees of that institution may not be holding civil posts under the

State. In Chaturbhuj Sahai Vs. Chairman, Board of Directors, Bihar State Co-operative Bank Ltd., it was laid down as under:

There are many enactments under which the State Government exercises control over statutory bodies or local authorities constituted by statute.

That does not, however, mean that persons who serve under those statutory bodies or local authorities hold civil posts under the State of Bihar

within the meaning of Article 311 of the Constitution of India.

The fact that the Petitioner was paid out of State funds would not by itself confer upon him the status of a person holding a civil post under the

State.

The counsel for the Petitioner has relied on an authority of the Patna High Court, reported as Bhawani Sahai Vs. Syed Naqui Imam and

Another, , to show that copyists employed in the court of the District Judge who were paid out of State funds, were held to be entitled to the show

cause notice under Article 311(2) of the Constitution of India. We have perused that judgment but it does not help the Petitioner. In that case it

was held that ""the power of removal exercised by the Dist. Judge under Rule 8 is not purely administrative but quasi-judicial in character. Though

Rule 8 is silent as to the procedure to be followed by the District Judge before discharging the copyist, there is a necessary implication as a matter

of law that notice should be given to the party affected and a hearing should be granted Where no notice is given to the Copyist before the District

Judge makes an order of discharge, there is a violation of the principle of audi alteram partem and the order of the District Judge is illegal.

In that case their Lordships, while construing Rule 8 of the Patna High Court General Rules held that under Rule 8 it was by implication

necessary to serve a notice upon the Copyist before an order of discharge could be passed against him. There is nothing to show in that judgment

that the Copyist being paid out of State funds was held to be holding a civil post under the State and thus entitled to the benefit under Article

311(2) of the Constitution of India.

In certain commercial concerns some control is exercised by the State but their employees dp not hold civil posts under the State, vide Subodh

Ranjan Ghosh Vs. Sindri Fertilisers and Chemicals Ltd. and Another, Patna 10 in which it is laid down that although the Sindri Fertilising Company

is completely owned by the Union Government, Articles 310 and 311 have no application to the case of servants of that Company as the servants

of the Company are not the servants of the Union Government.

Mere payment out of State funds or the. control of the State over certain concerns will not by itself confer upon a person serving in those

concerns a status of holding a civil post under the State. In my opinion a person holds a civil post under the State provided that his duties fall under

any sphere of activities connected with the State; that the post, which he holds is created by the State and could be abolished by it; that the

conditions of service of that person are regulated and controlled by the State and that he is paid a monthly salary out of State funds. These

conditions must be fulfilled by a person who claims the status of holding a civil post under the State.

In the present case there is no post of a Time-keeper sanctioned by the State in its Budget. Any one could be employed as a Time-keeper on,

payment of daily wages. The acquittance roll shows that the Petitioner was engaged as a Time-keeper and was paid daily wages at the rate of Rs.

2.75 N. Ps and for the days he remained absent his wages for those days were deducted and at the end of the month he was paid for the days he

had worked during the month.

He was paid his wages out of the lump sum grant of Rs. 1,89,050 allocated in the Budget for payment of wages to the labourers. In these

circumstances the Petitioner cannot be considered to be a regular employee holding a civil post under the State. It was for the Petitioner to satisfy

the Court that he was holding a civil post under the State but there is absolutely no material on the basis of which it can be said that the Petitioner

was holding such a post,

He has not produced the copy of the order by which he was engaged as a Time-keeper which would have shown as to what were the terms on

which he was originally appointed. On the other hand the Respondents have produced adequate material to show that the Petitioner was merely a

wage earner and was, therefore, not entitled to the benefit u/s 126(2) of the Constitution of Jammu and Kashmir.

For the reasons given above, it is clear that the Petitioner has not been able to make out a case for issue of any writ against the Respondents.

There is no merit in this application which is dismissed, but in view of the circumstances of the case we leave the parties to bear their own costs.

S. Murtaza Fazl Ali, J.

I agree.