Punnayur Grama Panchayat & Ors. v. Abdul Salam & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA,** ## **1945** ## **OP(KAT) NO. 139 OF 2023** **ORDER IN OA (EKM) 295/2021 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS NO.3 & 4 IN OA:** 1 PUNNAYUR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, EDAKKARA P.O, THRISSUR DISTRICT -680518 2 SECRETARY, PUNNAYUR GRAMA PANCHAYAT EDAKKARA P.O, THRISSUR DISTRICT -680518 BY ADVS. JAYASREE K.P. JOHN JOSEPH ## **RESPONDENTS/APPLICANT AND RESPONDENTS 1, 2 & 5 IN OA:** 1 P. ABDUL SALAM, S/O SAIDU MUHAMMED, AGED 45 YEARS, RESIDING AT PARATTVEETIL AKALAD P.O, THRISSUR DISTRICT680518 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695001 OP(KAT) 139 & 148 OF 2023 ..2.. 3 DIRECTOR OF PANCHAYAT, PUBLIC OFFICE BUILDING, MUSEUM P.O THIRUVANANTHAPURAM -695033 4 P.C IBRAHIMKUTTY, PANIKKAVEETIL CHALIL HOUSE EDAKAZHIYOOR P.O THRISSUR DISTRICT-680515 BY ADV P.M.PAREETH THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 12.12.2023, ALONG WITH OP(KAT).148/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT) 139 & 148 OF 2023 ..3.. **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945** **OP(KAT) NO. 148 OF 2023** **ORDER IN OA (EKM) 295/2021 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/5TH RESPONDENT IN OA:** P.C. IBRAHIMKUTTY, S/O.MAJEED, AGED 51 YEARS PANIKKAVEETIL CHALIL HOUSE, P.O. EDAKAZHIYOOR, THRISSUR DISTRICT, KERALA, PIN - 680515 BY ADV R.RANJANIE ## **- RESPONDENTS/APPLICANT AND RESPONDENTS 1 4 IN OA:** 1 P. ABDUL SALAM, S/O. SAIDU MUHAMMED, AGED 44 YEARS RESIDING AT PARATTVEETIL, AKALAD P.O., THRISSUR, KERALA, PIN - 670518 2 STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN - 695001 3 DIRECTOR OF PANCHAYATH, PUBLIC OFFICE BUILDING, MUSEUM P.O., THIRUVANANTHAPURAM, KERALA, PIN - 695033 OP(KAT) 139 & 148 OF 2023 ..4.. 4 PUNNAYUR GRAMA PANCHAYATH, REP. BY ITS SECRETARY, P.O. EDAKKARA, THRISSUR DISTRICT, KERALA, PIN - 680518 5 SECRETARY, PUNNAYUR GRAMA PANCHAYATH, P.O. EDAKKARA, THRISSUR DISTRICT, KERALA, PIN - 680518 BY ADV P.M.PAREETH THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 12.12.2023, ALONG WITH OP(KAT).139/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT) 139 & 148 OF 2023 **==> picture [31 x 8] intentionally omitted <==** ## **JUDGMENT** ## A. MUHAMED MUSTAQUE, J. Punnayur Grama Panchayat enagaged Sri.P.Abdul Salam as driver on daily wages, based on a resolution passed as early as on 07.07.2011. He worked more than ten years on daily wages. The Panchayat Committee, in its meeting, held that his work is not satisfactory and he also misbehaves with the public, and deliberated the matter. One Ward Member raised objection in regard to the termination of Sri.P.Abdul Salam, but, the Panchayat Committee noted that he also makes political interference in the functioning of the Panchayat and accordingly, decided to terminate his service. This was communicated to him by an order of the Panchayat dated 15.01.2021. In that communication, nothing has been mentioned about his misconduct or unsatisfactory OP(KAT) 139 & 148 OF 2023 **==> picture [31 x 8] intentionally omitted <==** service. Accordingly, he was terminated and in his place, one Sri.P.C.Ibrahimkutty was appointed by the Panchayat. Sri.P.Abdul Salam moved the Kerala Administrative Tribunal; and the Tribunal allowed the challenge made by Sri.P.Abdul Salam. According to the Tribunal, without conducting an enquiry or disciplinary action proving misconduct or dereliction of duty, Sri.P.Abdul Salam could not have been terminated from engagement. This order is questioned in these original petitions by the Panchayat and Sri.P.C.Ibrahimkutty, who has been appointed in the place of Sri.P.Abdul Salam. 2. Heard learned counsel on both sides. 3. There is no dispute to the fact that Sri.P.Abdul Salam was engaged on daily wages. Many reasons might have influenced the Panchayat in taking such a decision, however, in the order communicated to Sri.P.Abdul OP(KAT) 139 & 148 OF 2023 **==> picture [31 x 8] intentionally omitted <==** Salam, no reasons have been stated stigmatising his character. The question is, whether a disciplinary enquiry is warranted when the employee has no right to continue based on the nature of relationship with the employer. The disciplinary enquiry is warranted only when parties are bound by contract or rules governing employment. The engagement itself is on day-to-day basis, based on requirement, and no such sustained relationship cannot be traced out relatable to contract or law. In contractual appointment, when he is engaged on regular basis, that might have attained a status of employer- employee relationship and that may require a disciplinary action before termination of such employee on a ground of misconduct. 4. The Tribunal placed reliance on a decision of the apex court in **Jagdish Mitter** v. **Union of India** [1964 KHC 453], wherein it has been held OP(KAT) 139 & 148 OF 2023 **==> picture [31 x 8] intentionally omitted <==** that the employees are entitled to protection under Article 311 of the Constitution of India even if they are employed as temporary servants or probationers. The facts in **Jagdish** **Mitter** ( _supra_ ) clearly show that the appointment is on contractual basis for a fixed period. That means, the employer is bound to honour the contractual terms, if they want to terminate an employee before the contractual period ran out. Necessarily, reasons must manifest and such reasons must reflect principles of natural justice before taking final decision to terminate his service. This is not a case of contractual employment, where he has a right to continue for a fixed term. As we have already noted, Sri.P.Abdul Salam was engaged on daily wages basis and the employer-employee relationship cannot be assumed in such relationship. In that sense, law laid down in **Jagdish Mitter** OP(KAT) 139 & 148 OF 2023 **==> picture [31 x 8] intentionally omitted <==** ( _supra_ ) cannot apply in the matter. We are of the view that in the matter of engagement on daily wages basis, if the employer terminates service of such employee, no protection is available to such employee under Article 311 of the Constitution of India. Thus, we are of the view that the Tribunal wrongly interfered with the matter by ordering reinstatement of Sri.P.Abdul Salam. 5. However, learned counsel for Sri.P.Abdul Salam further submits that he may be given liberty to approach the labour court as his labour was exploited for more than a period of ten years and he has been sent out illegally. This argument is based on “unfair labour practices” specified in the fifth schedule of the Industrial Dispute Act, 1947. We do not discredit this argument. If any right is available to Sri.P.Abdul Salam to raise a dispute under the Industrial Disputes Act and OP(KAT) 139 & 148 OF 2023 **==> picture [37 x 8] intentionally omitted <==** claim for continuation on service, he is free to do so in accordance with law. We make it clear that we have not endorsed the Panchayat deliberations in regard to alleged misconduct or dereliction of duty as against Sri.P.Abdul Salam. We have only interfered with the matter as we have found that as a daily waged employee, Sri.P.Abdul Salam has no right or manner of right to continue in service invoking public law remedy. With liberty as above, these original petitions are allowed. ## **Sd/-** ## **A. MUHAMED MUSTAQUE** ## **JUDGE** **Sd/-** ## **SHOBA ANNAMMA EAPEN** **JUDGE** bka/- OP(KAT) 139 & 148 OF 2023 ..11.. ## **APPENDIX OF OP(KAT) 148/2023** PETITIONER EXHIBITS Exhibit P-1 THE CERTIFIED COPY OF THE ORDER DATED ORDER DATED 8.3.2023 IN O.A {EKM} - 295 /2021 Exhibit P-2 THE TRUE COPY OF THE O.A {EKM} - 295 / 2021, PREFERRED BY THE 1ST RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM(ADDITIONAL BENCH, ERNAKULAM), ALONG WITH ANNEXURES A-1 TO A-4, PRODUCED IN THE O.A Exhibit P-3 THE TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 3 AND 4 IN THE O..A, ALONG WITH ANNEXURES R-3(1) AND R-3(2) Exhibit P-4 THE TRUE COPY OF THE REPLY STATEMENT FILED BY THE 5TH RESPONDENT, WHO IS THE PETITIONER HEREIN Exhibit P-5 THE TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN THE O.A, THE 1ST RESPONDENT HEREIN, ALONG WITH ANNEXURES OP(KAT) 139 & 148 OF 2023 ..12.. ## **APPENDIX OF OP(KAT) 139/2023** PETITIONER ANNEXURES |Annexure A1|A TRUE PHOTOCOPY OF THE RESOLUTION| |---|---| ||DATED 07.07.2011 ISSUED BY THE 3RD| ||RESPONDENT.| |Annexure A2|A TRUE PHOTOCOPY OF THE| ||ABINANDANAPATHRAM DATED 10.09.2018| ||ISSUED BY THE 2ND RESPONDENT.| |Annexure A3|A TRUE PHOTOCOPY OF THE RELEVANT| ||PORTION OF THE RESOLUTION DATED| ||11.01.2021 OF THE 3RD RESPONDENT| |AnnexureA4|A TRUE PHOTOCOPY OF THE JUDGMENT DATED| ||28.02.2018 IN WPC NO 10746 OF 2017| |Annexure R3(1)|TRUE COPY OF THE NOTICE DATED| ||15.01.2021 ISSUED BY THE 3RD| ||RESPONDENT PANCHAYAT TO THE APPLICANT.| |Annexure R3(2)|TRUE COPY OF THE SHOW CAUSE NOTICE| ||DATED 26.02.2021 ISSUED TO THE| ||RESPONDENT NO 01 APPLICANT BY THE 1ST| ||PETITIONER , 3RD RESPONDENT.| |Annexure A5|A TRUE COPY OF THE RELEVANT PORTION OF| ||THE STATEMENT OF SAVINGS BANK ACCOUNT| ||NO 102100010005514 OF THE APPLICANT AT| ||PUNNYUR PANCHAYAT SERVICE CO-OPERATIVE| ||BANK.| |Annexure A6|A TRUE COPY OF THE RELEVANT PORTION OF| ||THE STATEMENT OF SAVINGS BANK ACCOUNT| ||NO 0574053000009471 OF THE APPLICANT| ||AT SOUTH INDIAN BANK LIMITED THRISSUR.| OP(KAT) 139 & 148 OF 2023 ||..13..| |---|---| |Exhibit P1|A TRUE COPY OF THE ORDER DATED| ||08.03.2023 OF THE HONOURABLE| ||ADMINISTRATIVE TRIBUNAL (ADDITIONAL| ||BENCH ERNAKULAM) IN O.A (EKM) NO| ||295/2021| |Exhibit2 P2|A TRUE COPY OF THE OA (EKM) NO| ||295/2021 FILED BY THE 1ST| ||RESPONDENT/APPLICANT BEFORE THE| ||HONOURABLE ADMINISTRATIVE TRIBUNAL| ||(ADDITIONAL BENCH ERNAKULAM), ALONG| ||WITH ANNEXURES A-1 TO A-4,| |Exhibit P3|A TRUE COPY OF THE REPLY AFFIDAVIT| ||FILED BY THE PETITIONERS/APPLICANT IN| ||OA(EKM) NO 295/2021 ALONG WITH| ||ANNEXURES R-3(1) AND R-3(2).| |Exhibit P4|A TRUE COPY OF THE REPLY AFFIDAVIT| ||FILED BY THE 4TH RESPONDENT/ 5TH| ||RESPONDENT IN OA , IN OA(EKM) 295/2021| |Exhibit P5|A TRUE COPY OF THE REJOINDER FILED BY| ||THE 1ST RESPONDENT/ APPLICANT TO THE| ||REPLY AFFIDAVITS FILED BY THE| ||PETITIONERS AND 4TH RESPONDENT HEREIN,| ||ALONG WITH ANNEXURES A5 AND A6|