AI Structured Summary
Not yet generated for this judgment
Judgment
Mehar Singh, J.—This is a petition under Art. 226 of the Constitution for a writ of certiorari and mandamus or any other appropriate writ quashing the order of the respondents dismissing the petitioner from service.
The petitioner was employed in the capacity of a lighter in the sanitation branch at Bhiki, district Bhatinda, by the Divisional Health Officer at FandKot, at Rs. 20/- P.M. The petition is dated 18-3-1953, and the petitioner avers that he had been so employed for about seven years before that date. On 29-11-1951, the Deputy Commissioner of Bhatinda suspended the petitioner from service and the local Medical Officer at Bhiki made an enquiry into a complaint against the petitioner. In consequence of the report in the enquiry he was re-instated on 27-2-1952, and resumed duty on 8-4-1952. He does not explain why he was not able to resume duty immediately after the order, of re-instatement on 27-2-1952.
On 6-5-1952, the Divisional Health Officer at Faridkot ordered his removal from service as lighter in Bhiki. The order of the Divisional Health Officer addressed to the Medical Officer in charge Sanitation at Bhiki is:
Please disband the service of Kartar Singh, lighter, Bhiki, till there is complete arrangement for lighting & lighting in Hospital and police station be also suspended.
It was in pursuance of this order that the service of the petitioner was terminated on 6-5-1952.
The petitioner made representations to the higher authorities but says that no reply was received by him. He then says that on 3-10-1952, the Divisional Health Officer at Faridkot ordered the Medical Officer at Bhiki to dispense with his service. That order is in these terms:
Please note that Kartar Singh is not at all to be kept in, service, of Sanitation, Bhiki, as his behaviour towards public has been found to be rude and uncourtcous.
Karter Singh should also be informed that he should not represent his case in future.
The case of the petitioner is that this last-mentioned order amounts to his dismissal from service as lighter at Bhiki and being illegal, ultra vires and void, because he was not given an opportunity of showing cause against the proposed action to dismiss him, it should be quashed and a direction issued to the respondents, the Divisional Health Officer at Faridkot and the Pepsu State, to re-instate him in service.
In his affidavit the Head Assistant in the office of the Deputy Director of Public Health has sworn that the petitioner was an employee of contingency paid staff and the Pepsu Service Regulations do not apply to him, that he was disbanded on account of the suspension of the lighting arrangements in the town due to non-supply of lighting accessories, that on his representation he was informed, with the approval of the Government, that due to his discourteous and bad behaviour with the public he could not be re-employed, that the petitioner being a part-time worker as a labourer was not entitled to the privileges of any casual or privilege leave or any other kind of leave, and that the petitioner''s services were liable to be terminated without notice since he was in contingency paid staff. In the same affidavit the deponent has further sworn that when there were no lighting arrangements the petitioner was sometimes engaged on other jobs as mate, etc., in the exigency of sanitation of the town and that once when he was re-instated after suspension he was not paid for the period he remained off duty being a contingency paid employee.
It is not denied by the parties that the petitioner was an employee of the Sanitation Department in district Bhatinda and he worked at Bhiki as a lighter on the contingency staff being paid out of the contingency funds of the department.
The Learned Counsel for the petitioner contends that the employment of the petitioner is against a ''civil post'' within the scope of Art. 311 of the Constitution and his service could not be terminated without compliance with the procedure provided in that Article.
The reply on behalf of the respondents is that the petitioner what to say of being a permanent employee against a ''civil post'', was not even a temporary employee against any such post and was employed on the contingency staff, which employment could be terminated immediately and without any notice on the contingency of his service not being needed by the department.
In the Webster''s Dictionary the meaning of the word contingency'' is that
which is contingent; a chance event; often, an event or condition looked forward to as possible or probable, or one dependent upon an un certain happening.
and the meaning of the word ''contingent'' given is:
happening from unforeseen causes, or subject to unforeseen conditions; accidental or incidental; chance.
In the Law Lexicon by Iyer, 1940 Edn., it is stated that the word ''contingent'' is used to denote a thing which is liable to failure on the happening or non-happening of a specified event, condition or state of things.
So an employee on contingency staff takes his employment subject to unforeseen causes & conditions or dependent upon an uncertain happening of his employment not being required at any time by the employer or on the chance of its failure on the happening or non-happening of a specified event, condition or state of things as in the present case the services not being required due to suspension of lighting arrangements.
This is further supported by the Pepsu Treasury Rules, Vol. 1, Edn., 1952. Rule 284 says:
The term ''contingent charges'' or ''contingencies'' used in this chapter means and includes all incidental and other expenses which are incurred for the management of an office as an office or for the technical working of a department, other than those which under prescribed rules of classification of expenditure fall under some ether head of expenditure, e.g., ''works'', ''stock'', ''tolls and plant'', etc.
Rule 292(1) says:
Save as hereinafter provided in this rule, no pay of any kind and no additions to pay may be drawn on bills for contingent expenditure.
And in sub-r. (2) of this rule provision is made for the pay of Class IV servants being treated as contingent expenditure. Then R. 294 provides:
In the case of all other Class IV servants whose pay is drawn on contingent bills, a certificate in the following form shall be furnished by the disbursing officer:
Certified that all Class IV servants whose pay has been, charged in this bill were actually entertained in Government service during the period concerned.
The reading of these rules makes it clear that employees on contingency staff are employed not in regular employment but employment merely incidental to an office for the period during which they have actually worked as no bill for any other I period can be certified for payment. It follows that such employees cannot claim to remain in employment when the work for which they are employed ceases to exist or they do not actually do the work or job. The contingency paid staff is thus not a part of any regular service or engaged against a regular civil post, but the employment of such staff is conditional upon (a) the funds being available for the contingency for which the casual employment is created or (b) the duration of the work for such casual employment or (c) the employee actually doing the work or job and not being entitled to pay for wages for the period he does no such work or job.
In Pepsu Civil Services (Classification, Control and Appeal) Rules, 1952, Part II deals with classification of services and Rr. 12 and 13 deal with Classes III and IV servants and it is provided in proviso to R. 12 and Note 1 to R. 13 that persons whose pay is debited to contingencies shall not be included in Classes III and IV servants. These rules only provide for four classes of services, Class I to Class IV servants. Therefore, contingency staff is no part of any regularly constituted service in the State. That being so it cannot be said that employees on the contingency staff are employed in any civil service and no permanent civil posts for such staff exist.
There is an order, dated 22-5-1951, of the Finance Department which says:
The question regarding the admissibility of leave to the staff paid out of contingencies has been under the consideration of the Government for some time back. His Highness the Rajpramukh has now been pleased to order that as the establishment paid out of contingencies is usually engaged on a temporary basis, no leave should be allowed to them except casual leave or extraordinary leave without pay.
This order also shows that the engagement of staff paid out of contingencies is on temporary basis, but rules relating to temporary servants in Notification No. 80 of 20-2-1952, expressly exclude "Government servants paid out of contingency" from the scope of those rules. It follows that Government servants paid out of contingencies are not subject to the rules regulating the conditions of service of temporary Government servants. A temporary Government servant is entitled to one month''s notice or one month''s pay in lieu of notice before termination of his service and as the said rules do not apply to Government servants paid out of contingencies, it means that such Government servants are not even entitled to any notice before termination of their services. This is consistent with the nature of their employment which is, as stated, contingent upon the employer being in need of the employment of the servant.
The result is that an employee on the contingency staff of the Government is not even a temporary servant of the Government. He is not entitled to any notice before termination of his service as in the case of a temporary Government employee. His employment is contingent upon or conditioned by the requirements of the employer and when the employer is not in need of his service he has the right of immediate termination of such service.
The petitioner in this case was admittedly an employee of the contingency staff of the Health Department in Bhatinda district. His duty was that of a lighter and when on 6-5-1952, his service was disbanded the reason was that the lighting arrangements in the town had been suspended. There was in the circumstances no need for a lighter by the Health Department at Bhiki. When his service was so disbanded he did not file any writ petition to seek redress in this Court, but says that he continued making representations to the authorities to which there was no response. Ultimately on 3-10-1952, he was informed that he was not to be employed.
The Learned Counsel for the petitioner interprets the order of the last date as the order terminating the service of the petitioner but, as stated, his service had been disbanded much earlier on 6-5-1952. There is no explanation on the part of the petitioner what happened to him during that period excepting that he says that he was making representations to the authorities. In his petition he has not claimed that the order, dated 6-5-1952, should be quashed, but what he says is that the order, dated 3-10-1952, should be quashed as being illegal. It appears that what was conveyed to the petitioner on 3-10-1952, was no order either disbanding or terminating his service because that had happened about three months earlier. The information that was then conveyed to the petitioner was the result of his representations seeking re-employment and the substance of what was conveyed to him is that he was not to be engaged in service because his behaviour towards the public was not desirable.
So the order that terminated the service of the petitioner is not really being questioned and it is only the information conveyed to him, in consequence of his representations, that he was no longer to be re-employed because of his conduct, that is being questioned in this petition. It has already been shown that the service of the petitioner was disbanded because the contingency for which he was employed, that is, the continuance of the lighting arrangements in the town, had resulted in a failure inasmuch as the lighting arrangements had been suspended, and consequently that was the end of his service.
The Learned Counsel for the petitioner has pointed out that in the affidavit of the Head Assistant in the office of the Deputy Director of Public Health it is stated that whenever there were no lighting arrangements, the petitioner was given employment at other jobs, and he contends that the petitioner was in continuous service. The fact that the authorities were considerate enough in providing the petitioner with employment during the time there were no lighting arrangements does not make the petitioner a permanent servant of the Government.
The petitioner being an employee of the contingency staff and not being entitled even to any notice before termination of his service and in fact the terms and conditions of his service being that the same was to come to an end as soon as the employer did not require his service and the purpose for which he was engaged ceased to exist, the petitioner has no case under Article 311 as that Article does not apply to service of the type for which the petitioner was engaged.
In the view taken above the petition fails and is dismissed with costs. The counsel''s fee Rs. 32/-.