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2008 Supreme(Ori) 484
2009 (I) OLR — 133
Dr. B. S. CHAUHAN, C.J. AND B.N. MAHAPATRA, J.
Utkal Christian Council...Petitioner
Versus
State of Orissa...Opp. Parties
W.P.(C) No.16121 of 2008
Decided on 17th November, 2008.
For Petitioner:M/s. Prasana Ku. Nanda, M. R. Parida and M.Padhi
For Opp. Parties:Mr. B. K. Mohanti, Advocate Gener¬al
Mr. Sisir Das, A.G.A.,
Mr. P. Panda, A.S.C.
Headnote:1. POST - A 'post' is a service or employment - A person holding a 'post' is a person serving or employed - A 'post is an 'employment' but every 'employment' is not a 'post' - 'Post' denotes an office - Detail stated.
There is a relationship of master and servant between the employer and employee. This indi¬cates that the employer has right to select and appoint the holder of the post. Employer has a right to suspend and dismiss the employee. The employer has right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. The relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is always a question of fact in each case whether there is such relationship between two persons. A ‘post’ is an ‘employment’ but every ‘employment’ is not a ‘post’. A casual labourer is not the holder of any post. Employer may create or abolish the post or may regulate the conditions of service of all persons appointed to the ‘post’. Thus the ‘post’ denotes an ‘office’. A ‘post’ under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. A person holding the ‘post’ may be required to vacate the post and it emphasizes the idea of a ‘post’ existing apart from the holder of the ‘post’. A ‘post’ may be created before the appointment or simultaneously with it. A position to which a person is appointed amounts to ‘post’. Right to be considered for appointment can only be claimed in respect of a post in a cadre. (Para - 6)
2. EMPLOYMENT - The word 'employment' must be construed as employment in the regular course of business of the establishment; such employment would not include employment of a temporary nature for a short period on account of some urgency.
In a case where there is no supervision and control of the authority on the person serving it, it cannot be held to be a case of employment. The question whether there exists any rela¬tionship of master and servant is a pure question of fact. There could not be straight away answer to the question as it is to be determined having regard to many factors. Nature and extent of control required to establish such relationship would vary from case to case. The relevant factors to be considered are (a) who is the appointing authority; (b) who is the paymaster; (c) who can dismiss; (d) how long alternative services lasts; (e) the extent of control and supervision; (f) the nature of the job e.g. whether it is professional or skilled work; (g) nature of estab¬lishment; (h) the right to reject. The relevant test may be as to whether the employee concerned has fully integrated into the employer’s concern meaning thereby independent of the concern although attached therewith to some extent.(Paras - 9 and 10)
3. CONSTITUTION OF INDIA, 1950 - Arts. 14 and 16 - Employment - Whenever there is a vacancy in public office, constitutional provisions mandate to advertise the post inviting applications through newspapers having wide circulation, so that all eligible persons may apply - The process of selection is to be completed assessing the inter se merit of the candidates - It is not permissible to fill up the vacancy exceeding the number of vacancies so advertised and any appointment made in contravention of such constitutional requirements vitiate the selection process itself and render it to nullity. (Para - 17)
4. ORISSA LOKPAL AND LOKAYUKTAS ACT, 1995 - Secs. 5(3), 7 - Once a person has been appointed as a Lokpal, such a person is disqualified from holding any employment either under the State or any employment under any local authority, Corporation, Government Company or Society - Since the Lokpal has the authority under Sec. 7 to investigate any action which is taken by or with the general or specific approval of the Minister or Chief Secretary or any other public servant, such a person can no longer be appointed to such post and remains ineligible for such employment.
(Paras - 26 and 27)
5. PRACTICE AND PROCEDURE - In the absence of proper assistance to the Court by the Lawyer, there is no obligation on the part of the Court to decide the case for the simple reason that unless the lawyer satisfies the Court that there is some balance in his client's favour to alter the situation, the Court is not able to decide the case - It is not for the Court itself to decide the controversy. (Para - 50)
6. EVIDENCE ACT, 1872 - Sec. 165 - The Court has a right to ask any question unless it falls under any exception mentioned therein - The party and its counsel is under legal duty to answer the same, even if the questions put to the counsel is relevant or irrelevant. (Para - 55)
7. WORDS AND PHRASES - "Public servant" and "Government servant" - A public servant is not necessarily a Government servant - A public servant may not be on the pay roll of the Government, but a Government servant always remains on the pay roll of the Government - The term 'Public Servant' in a wider connotation might include a Government servant - A public servant means a person who has been asked to exercise to some extent and in certain circumstances a delegated function of the Government - He may be with some authority of representative character or his duties are immediately auxiliary to those persons who have earned. (Para - 43)
8. COMMISSIONS OF INQUIRY ACT, 1952 - Sec. 3 - Commission of Inquiry is appointed for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification - Such appointment cannot be termed as an appointment to a post where there is master-servant relationship - The Commission so appointed cannot be replaced by any other person and it does not survive after submission of the report - Such appointment cannot be treated as 'employment' under the State or his agency and the Commission of Inquiry does not come within the scope and ambit of the post of Lokpal for the matter of investigation and therefore no strings can be attached to such post.
(Para - 35)
9. ORISSA LOKPAL AND LOKAYUKTAS ACT, 1995 - Sec. 5(3) - Commissions of Inquiry Act, 1952 - Sec. 3 - Appointment of former Lokpal as Commission of Enquiry challenged in writ - Appointment of the opposite party as Commission of Inquiry cannot be termed as "employment" as referred under the provision of the Act, 1995 - Held, Commission of Inquiry does not fall within the disability prescribed under Sec. 5(3) of the Act, 1995.
JUDGMENT
Dr. B.S. CHAUHAN, C.J. — This writ petition has been filed for declaration of the appointment of Justice S.C. Mohapatra, former Lokpal, as Commission of Enquiry of killing of Swami Laxmanananda Saraswati on 23.8.2008 and aftermaths vide Notifica¬tion No.1705 dated 3.9.2008 published in the Official Gazette of the State of Orissa bearing No.1705 dated 17.9.2008 as illegal.
2. The facts and circumstances giving rise to the case, as taken herein, are that one Swami Laxmanananda Saraswati and four others were assassinated on 23.8.2008 and subsequent thereto, a fundamental section of the Society resorted to road blockade from 23.8.2008 and onwards. There had been disturbance in a part of Phulbani town and Kandhamal area, and destruction of the public and private properties and damages to the vehicles etc. Several instances of outraging the modesty of women were reported and some persons had been subject to inhuman torture. The State Authorities could not control the situation. The present peti¬tioner filed writ petition No.12575 of 2008 before this Court seeking certain reliefs and this Court issued large number of directions for providing protection to all sections of the Socie¬ty and prevent any kind of atrocities on any person. The State Government decided to appoint a Commission under the Commissions of Inquiry Act, 1952 (hereinafter called the ‘Act, 1952’) to enquire into the killing of Swami Laxmananda Saraswati and the consequential communal violence in Kandhmal and for that purpose, Justice S.C. Mohapatra, who had earlier been the Lokpal of the State of Orissa has been appointed. Petitioner does not have any objection for holding the Inquiry nor it has any complaint against Justice S.C. Mohapatra. The petitioner has been filed purely on a technical ground that Justice S.C. Mohapatra had earlier been Lokpal under the provisions of Orissa Lokpal and Lokyuktas Act, 1995 (hereinafter called “Act, 1995”) which puts an embargo for his further employment. Thus, Justice S.C. Mohapa¬tra is ineligible to be appointed as Commission of Inquiry.
3. Sri P.K. Nanda, learned counsel appearing for the petitioner submits that in view of the provisions of Section 5(3) of Act, 1995, certain disabilities are attached to the person who holds the office of Lokpal and he becomes disqualified for any future employment. Therefore, the petition deserves to be al¬lowed.
4. On the contrary, learned Advocate General, Mr. B.K. Mohanti duly assisted by Sri Sisir Das, learned Addl. Government Advocate and Mr. P. Panda, learned Addl. Standing Council has opposed the petition contending that the appointment of Justice S.C. Mohapatra as Commission of Inquiry does not amount to em¬ployment. He does not hold any office, so the question of main¬tainability of the writ petition for issuance of a writ of quo warranto does not arise. The petition is liable to be dismissed.
5. We have considered the rival contentions made by the learned counsel for the parties and perused the record.
6. A ‘post’ is a service or employment. A person holding a ‘post’ is a person serving or employed. There is a relationship of master and servant between the employer and employee. This indi¬cates that the employer has right to select and appoint the holder of the post. Employer has a right to suspend and dismiss the employee. The employer has right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. The relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is always a question of fact in each case whether there is such relationship between two persons. A ‘post’ is an ‘employment’ but every ‘employment’ is not a ‘post’. A casual labourer is not the holder of any post. Employer may create or abolish the post or may regulate the conditions of service of all persons appointed to the ‘post’. Thus the ‘post’ denotes an ‘office’. A ‘po
