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1973 Supreme(Ori) 175
IN THE HIGH COURT OF ORISSA
R.N. Misra, K.B. Panda, JJ.
PANCHANAN SABAT - APPELLANT
Versus
STATE OF ORISSA AND ANOTHER - RESPONDENT
O.J.C. No. 50 of 1972
Decided On : 30-10-1973
S. Misra-1, for the Appellant; A.G.A., for the Respondent
The principle of "last come first go" is not applicable to Government servants.
Headnote:
GOVERNMENT SERVANT - TERMINATION OF SERVICE - WORK-CHARGED ESTABLISHMENT - PRINCIPLE OF "LAST COME FIRST GO" - NOT APPLICABLE - INDUSTRIAL DISPUTES ACT, 1947, SECTION 25-G - NOT APPLICABLE TO GOVERNMENT SERVANTS.
Fact of the Case:
The Petitioner was appointed as a temporary work sarkar on trial basis for a period of two months by the Executive Engineer, Rourkela construction Division. The order of appointment clearly showed that it was under the work-charged establishment and the post was purely temporary and terminable at any time without assigning any reason. The Petitioner challenged the termination of his service as being contrary to principles of "last come first go" because some reasons junior to him in the appointment as work sarkar have been retained in service while the Petitioner has been asked to go.
Finding of the Court:
The Court held that the Petitioner's service was purely temporary and it was in a work-charged establishment. The Petitioner has not established before us that in the same work-charged establishment to which he was appointed there were others junior to him who had been retained in service. The Court also held that the rule contained in Section 25-G of the Industrial Disputes Act is not applicable to Government servants.
Issues: Whether the principle of "last come first go" is applicable to Government servants.
Ratio Decidendi: The Court held that the principle of "last come first go" is not applicable to Government servants. The Court relied on the following observations made by the Supreme Court in the case of Champaklal Chimanlal Shah Vs. The Union of India (UOI): "It is next urged that even if Rule 5 is good, the order by which the Appellant's services were dispensed with was bad, because it was discriminatory. In this connection reference was made in the plaint to a number of Assistant Directors whose services were not dispensed with even though they were juniors to the Appellant and did not have as good qualifications as he had. We are of opinion that there is no force in this contention. This is not a case where services of a temporary employee are being retrenched because of the abolition of a post. In such a case a question may arise as to who should be retrenched when one out of several posts is being retrenched in an office. In those circumstances, qualifications and length of service of those holding similar temporary posts may be relevant in considering whether the retrenchment of a particular employee was as a result of discrimination. The present however is a case where the Appellants services were terminated because his work was found to be unsatisfactory..."
Final Decision: The Court dismissed the writ application filed by the Petitioner.
JUDGMENT :
R.N. Misra, J. - The Petitioner was appointed as a temporary work sarkar on trial basis for a period of two months by the Executive Engineer, Rourkela construction Division (Opposite party No. 2) from 1-11-1969. The order of appointment clearly showed that it was under the work-charged establishment and the post was purely temporary and terminable at any time without assigning any reason. In May, 1971. a further order was made that the Petitioner may continue in the post till 15-6-1971, when the work of the construction of R.H.S. quarter (Group No. 1) under the Subdivision No. 1 would be nearing completion. On 29-7-1971, the Petitioner was re-appointed after termination of his previous service to a different post with a direction that the gap period between the previous service and the fresh joining may be treated as leave without pay. Ultimately on 9-11-1971, the following order was made:
Since there is no more work against which he has been appointed, his services are no longer required with effect from the expiry of one month from the date of receipt of this order.
The Petitioner has challenged the aforesaid order as being contrary to principles of "last come first go"because some reasons junior to him in the appointment as work sarkar have been retained in service while the Petitioner has been asked to go.
2. In the counter affidavit filed on behalf of the opposite parties, it has been asserted that the Petitioner's services was no longer required after 15-6-1971 and in view of the fact that the entire establishment was temporary and there was no need for the Petitioner's services. the same were terminated on 15-6-1971 on the terms of the appointment. On his own representation the Petitioner was given a fresh appointment on purely temporary basis on 29-7-1971 as a guage reader and ultimately the Petitioner has been retrenched from that post for want of work. It has been stated in paragraph 5 of the counter affidavit that no work sarkar has been appointed after 29-7-1971, i.e. when the Petitioner was re-appointed as a guage reader.
3. It is not disputed by the Petitioner that he was employed in a work-charged establishment. It is not his contention that he is governed by the Industrial Disputes Act and is entitled to the benefit of Section 25-G which recognise the principle of "last come first go". The short question that arises here on the basis of the Petitioner's contention is as to whether to a Government servant the same principle can be applied.
Reliance is placed on two decisions of the Supreme Court in support of the Petitioner's contention. In the case of Champaklal Chimanlal Shah Vs. The Union of India (UOI) at page 1860, it has been observed:
It is next urged that even if Rule 5 is good, the order by which the Appellant's services were dispensed with was bad, because it was discriminatory. In this connection reference was made in the plaint to a number of Assistant Directors whose services were not dispensed with even though they were juniors to the Appellant and did not have as good qualifications as he had. We are of opinion that there is no force in this contention. This is not a case where services of a temporary employee are being retrenched because of the abolition of a post. In such a case a question may arise as to who should be retrenched when one out of several posts is being retrenched in an office. In those circumstances, qualifications and length of service of those holding similar temporary posts may be relevant in considering whether the retrenchment of a particular employee was as a result of discrimination. The present however is a case where the Appellants services were terminated because his work was found to be unsatisfactory...
The next case upon which reliance has been placed is that of G.S. Ramaswamy and Others Vs. Inspector-general of Police, Mysore. In paragraph 12 of the judgment, the Court said:
...Even so, it may be conceded that when reversion takes place on account of exigencies of
