JUDGMENT
D. Raju, C. J.
1. The above writ petition has been filed seeking for the issue of a writ to set aside the memo, dated August 22, 1992, filed as Annexure P-5, whereunder the services of the petitioner have been dispensed with and for a consequential direction to the respondent to continue the petitioner in their employment.
2. The case of the petitioner is that he did his matriculation from H.P. Board of School Education in 1981 that he also did his Diploma in Stenography from Industrial Training Institute at Nahan, that he possessed the knowledge of Typing, both in Hindi and English and with such qualification, the petitioner is eligible for employment as Clerk in Government departments, semi-Government departments or other institutions owned and controlled by the Government. The further claim of the petitioner is that he got himself registered with the Employment Exchange, Una, since 1981 that the third respondent-temple was taken over by the Government among other temples by enacting the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act and the provisions contained in the Act and the Rules providing for general superintendence and control of the temple/religious institutions, were therefore, applicable and the administration of the temple is under the general superintendence, and control of the Commissioner and the temple trust constituted with a President for the temple trust, who is in turn appointed by the Government in consultation with the Commissioner of the trust. The further claim of the petitioner is that the President of the temple trust pertaining to the third respondent-temple sought for applications from eligible persons for the posts of Accounts Assistant-I, Typist-cum-Stenographer (Hindi and English)-1 and two drivers vide their advertisement dated February 21, 1990 calling upon the persons interested to appear for oral interview and the petitioner after such interview being eligible for the post of typist is also for stenographer was recommended for the post of steno-typist pursuant to such appointment. The President of the temple trust is stated to be the Sub Divisional Officer (Civil) Amb. and it is also claimed that the services of the petitioner were utilised for some time in the temple and some time in the office of the Sub Divisional Officer (Civil) Amb as it is obvious from the office order dated August 30, 1990 and December 6, 1990, filed as Annexures P-3 and P4 respectively. The petitioner would also claim that he has been discharging his duties to the satisfaction of the authorities without giving room for complaint, but yet has been served, in spite of all this, with a memo dated August 22, 1992 dispensing with his services with effect from August 22, 1992 and such memo appears to have been passed on the basis of an office order dated August 21, 1992, filed as Annexure P6. The petitioner on the basis of the above and on the presumption that the memo dispensing with the services of the petitioner came to be passed as a sequel to the abolition of the post of Steno-typist, which was considered to have been unnecessary for the temple by the Temple Officer has filed this writ petition. The petitioner also claims that the post in various temples are created and sanctioned by the Commissioner concerned and appointed to the post were also finally approved by the Commissioner and it is only the Commissioner or President of the Trust who is competent to appoint or remove the employees in the temple and the Temple Officer, who is said to be of the rank of Tahsildar in the Revenue Department can neither claim to have the power or authority to abolish the post or put an end to he appointment of a person in the service of the temple and, therefore, the order under challenge is liable to be set aside and the petitioner be granted the reliefs as prayed for.
3. Respondents No. 1 to 4 have filed a common reply, in which it is stated that the, control of the temple vests no doubt in a Committee appointed by the Government under the Act and the Deputy Commissioner of the District discharges the duties of the Commissioner under the Act in respect of the temple, that the advertisement, referred to by the petitioner, issued in the newspaper envisages the filling up and appointment of the persons in temporary character since the work load did not justify the appointment in a permanent or regular capacity and inasmuch as there was no creation of the post in the capacity, as aforesaid and, therefore, the very proceedings filed by the petitioner would belie the claim of the petitioner that he has been appointed to any regular or permanent post as such, particularly, when he was engaged only on daily wages, reiterating the stand that what was offered to the petitioner was only a temporary appointment. The right of the President of the temple trust/Committee who is the Sub Divisional Magistrate, otherwise in the Revenue Department, instead of removing the petitioner, has chosen to utilise his service, as disclosed in Annexure P-3 and P-4 and in as much as there was no work of Steno-typist in the office of the 3rd and 4th respondents, the services came to be utilised in the office of the Sub Divisional Officer, Amb. and, therefore, there was every justification for dispensing with the services of the petitioner. It is also contended in the reply for the respondents that the order under challenge was necessitated on account of the fact that there was no need for such a post or services in that capacity and inasmuch as there was no work to be done as Stenographer in the temple office and a decision was taken also after having consultation with the Deputy Commissioner cum-Commissioner, Una, and Sub Divisional Magistrate, who is the President of the temple trust and in spite of those copies having been marked for consideration, no exception was taken or objection raised by those authorities and, therefore, there was no question of any abolition involved in the process. It is also further reiterated that the services of the petitioner was hired by way of temporary arrangement since the volume of work did not justify the appointment of regular Stenographer. The further averment in the reply is that though the petitioner was offered the work of ‘Sewadar’ so that he is not left without any job, the petitioner did not choose to join the office. At the expense of repetition, more than once it is reiterated that volume of the work available in the temple office or temple Committee does not justify the appointment of any Stenographer on regular or permanent basis and inasmuch as the petitioner declined to serve as Sewadar, there is no basis or any right in him to make a grievance of the impugned order any longer in these proceedings. Adverting to the appointment of one Jivan Kumar, who is said to be working as Sweadar and not as a Steno-typist, it is once again stated that since the petitioner, who was offered the same appointment for the reasons best known to him, declined to join but insisted that he will work only as Steno-typist for which there was no work. The said Jivan Kumar came to be appointed. While traversing the claim made on the basis of Section 25-F of the Industrial Disputes Act, it is claimed that worship in the temple and its allied activities can by no stretch of imagination be deemed to be answering the description of an ‘industry’ to warrant the application of the Act of the institution or the case of the petitioner and that, therefore, there are no merits in the claim of the petitioner.
4. Mr. Ajay Sharma, learned counsel appearing for the petitioner in vehemently ventilating the grievance of the petitioner contended that the impugned order is liable to be set aside and the petitioner accorded relief, as prayed for, for the following reasons:-
(a) The competent authority has not either terminated or abolished the post and the 4th respondent is not the competent authority either to abolish the post or terminate the services of the petitioner and, therefore, the impugned order is liable to be set aside.
(b) The termination of the services of the petitioner is opposed to the principles of natural justice and on this ground also the same is vitiated.
(c) The abolition of the post not having been made by the competent authority it is not given to the 4th respondent to deny employment to the petitioner on the ground that there is no need for the services of a Steno-typist, and
(d) The termination effected in this case is violative of Section 25-F of the Industrial Disputes Act, 1947.
5. Per Contra, Mr. D.D. Sood, learned senior counsel appearing for the respondents while reiterating the stand taken, as noticed supra, in the reply, contended that there was no sanctioned post as such of the Stenographer, and merely because the petitioner was engaged on daily rate basis for doing the work as Stenographer, it cannot be assumed or postulated that a post has been created against which he has been so appointed even on temporary basis and that, therefore, there is no merit in the claim of the petitioner. Argued the learned senior counsel further that since what was done was the engagement of the services of the petitioner on daily rate basis, it is implied in the very term of such engagement that only as and when there is need or scope for utilising the services of the petitioner, the services of the petitioner will be availed of and he will be paid daily wages and it was well within the competency of the person, who is expected to give and extract work from him to come to the conclusion that there was no work to be given to the petitioner and when such stoppage of work on account of non existence of any work of the nature of Steno-typist has been brought to the notice of the Commissioner as also the President of the temple trust and they have had no objection to the course of action taken by the Temple Officer, the petitioner cannot make any legal grievance whatsoever in this proceeding under Article 226 of the Constitution of India. A plea of implied consent and concurrence by those authorities has also been urged incidentally. As for the claim under Section 25-F of the Industrial Disputes Act, is concerned, the learned senior counsel for the respondents contended that the third respondent temple having regard to the nature and functions carried on in the temple cannot be brought under the definition of ‘industry’ within the meaning of the Industrial law and, therefore, there is no merit whatsoever, in such a claim and even if it is to be assumed for the purpose of arguments, such claim if at all can be pursued and projected only before the Courts/Tribunals constituted under the Industrial Disputes Act, since they involve consideration of factual issues and cannot therefore, be pursued in this proceeding under Article 226 of the Constitution of India. Finally, the submission of the learned senior counsel for the respondents is that inasmuch as there was no scope to engage him regularly as Steno-typist having regard to the nature of work involved and the workload in the office of respondents No. 3 and 4, which resulted in dispensing with the services of the petitioner, the respondents have bona fide offered to engage and avail his services as ‘Sewadar’ and in spite of the same the petitioner has turned down and was adamant in not reporting or joining duty in spite of the directions of this Court, the respondent cannot be blamed for the misfortune, if any, and the petitioner cannot be shown any indulgence, whatever, in this proceeding under Article 226 of the Constitution of India.
6. The learned counsel appearing on either side invited our attention to some of the relevant annexures filed on their respective side and also some judicial pronouncements, to which a reference can be made hereinafter;
Annexure P1/A is the English translation of Annexure P1, which is the advertisement in the newspaper. It is stated therein that one Accounts Assistant, one Typist-cum-Stenographer (Hindi and English), two drivers one for Gypsy and other for Truck, are required who have good experience and the posts will be filled in on daily wage basis at the rates notified by the State Government and the candidates desirous of applying, may, present themselves with their credentials on the date notified therein and that the same is confined to bona fide Himachalis. From this notification, it cannot be either reasonably or legitimately assumed, that any such posts have been created or sanctioned, either permanently or even temporarily. Even to pay a daily wager, where different rates are specified for different classes, it becomes necessary to specify the class or category of engagement to allow him payment on the basis and that by itself cannot be taken to mean that he was appointed to any regular post or position in existence. On the other hand, the notification, in our view, makes it clear that the invitation was for engagement of services of the classified nature and category on daily wage basis for the purpose of doing the work of Accounts Assistant or Typist and Stenographer or drivers. The classification pointed out with reference to the nature of the services required, cannot be equated to the creation of any post, as such and before a person can assert or claim any right to hold a post, it should be established that a post has been created or sanctioned and existed apart from the holder of the post, though such post may be created before the appointment or simultaneously, with it. A Constitution Bench of the Apex Court, in a decision reported in State of Assam v. Kanak Chandra Dutta, (1968-I-LLJ-288) (SC) has observed that a post is employment but that every employment is not a post and casual labourer is not a holder of a post. In view of the above, it is futile for the petitioner to contend that there was any post of Steno-typist as such created or sanctioned against which he can claim any rights. As a matter of fact, the contents of the notification referred to supra, as also appointment order filed as Annexure P-2, itself would go to show that it was a mere engagement of the services of the petitioner on daily wage basis and it would be a contradiction in terms to contend that such person can claim to be an incumbent in any duly created or sanctioned post, as such. The conclusion of ours that there was and could have been no creation of such post and it was a mere engagement of services of the petitioner as against a classfied type or nature of the work as and when the need for such work arise only is made clear that stood sustained by the proceedings filed as Annexure P-3 and P-4, whereunder the Sub Divisional Officer (Civil), Amb. has chosen to deploy and avail of the services of the petitioner in his office on different occasions in different capacities. The Sub Divisional Officer (Civil), Amb. was found to have passed the order in his capacity as such, and not as the temple trustee and if really the petitioner was a holder or incumbent in a post created and sanctioned in the service of the 3rd and 4th respondents, there could not have been such deployment, or engagement in the office of Sub Divisional Officer (Civil), Amb. by passing independently such order. In view of the above, we could see no infirmity, whatsoever, in law in informing the petitioner of the position that his services are no longer required since there was no need at all for the services of a Steno-typist on regular basis, in the temple throughout the year. The office order filed as Annexure P-6 with a translated copy as Annexure P-6/A, specifically stipulates that since the temple officer felt that 8 to 10 letters only are received in the office during whole of a month and the clerk himself can reply to these letters there was absolutely no necessity for the services of a full time Steno-typist, though the words ‘abolish’ as well as ‘post’ are found to have been liberally used. In the various correspondences and proceedings the substance of various proceedings, if viewed, in proper perspective and in accordance with law would make it clear that the petitioner was never having any claim against any sanctioned post as such of Steno-typist and, therefore, the grievance of the petitioner cannot be sustained in law and cannot hold water before us.
7. Once the petitioner is held to be not the holder of any sanctioned or duly created post and his services were being engaged on daily wage basis as and when required, the question that falls for our consideration would be as to whether he can have any legitimate grievance at all to be indicated by means of approaching this Court in a writ petition under Article 226 of the Constitution of India. In service parlance, no doubt, there can be a post created either on permanent basis or temporary basis but at the same time a post would mean an office carrying a definite rate of pay sanctioned and if such post or office is sanctioned without any limit of time it is invariably called to be a permanent post and if it is said to be sanctioned for a specified or a particular period of time, it is called a temporary post. A daily wager, as a contrast to the above, particularly, when there was no sanctioned post, as such (and) services required are of a particular classified post, it must have been devised only to disclose the nature of services expected of him even (as) a daily wager and to pay him at the sanction rates therefor and it is inherent in the very engagements, as such, that his services can be dispensed with and/or that he may not be or need not be engaged when the person, who has to give and extract work from him and pay him at the approved rates of daily wages, considers that there is no sufficient work to be offered to him no guidance can be made before Courts in proceedings under Article 226 of the Constitution of India. Consequently a daily wager, particularly, in the absence of any sanctioned post as such cannot stake any claim for permanent employment irrespective of whether there was any need or necessity for his services, and therefore, the plea of abolition of post in a case where there was no sanctioned post even and a grievance on the so called abolition has no relevance or justification on the facts and circumstances of the case. In view of the above, it is equally unnecessary to go into the question whether the abolition of a non existent post is by a competent or proper authority. For the same reasons, the alleged violation of the principles of natural justice also has no meaning in this case since by the very nature of the engagement of the petitioner, he will be given work as and when work load necessitates or as well as the work is available and he can always be told that there was no work any longer in the office concerned to be offered to him and the communication, if any, in this regard made cannot be said to amount to any termination of the services of the petitioner.
8. Coming to the question of applicability or otherwise of the provisions of the Industrial Disputes Act and the claim projected under Section 25-F of the Act as we are of the view that for the reasons already set out supra the petitioner cannot make any legitimate grievance of any termination of his services at all, particularly, when it is not the case of the petitioner that there exists even now a post which somebody else has been appointed as a Steno-typist in the office of respondents No. 3 and 4. Strong reliance has been placed by the learned counsel for the petitioner on the decision of a Division Bench of this Court, to which one of us (LOKESHWAR SINGH PANTA, J.) was a party, rendered on September 1, 1998 in a batch of writ petitions. C.W.P. No. 270 of 1998 etc. whereunder the Division Bench appears to have taken a view, while considering a claim about the applicability of the Industrial Disputes Act to a temple, known as, Baba Balak Nath Temple Trust, Deotsidh, District Hamirpur, and it was held therein by the Division Bench, as could be seen from the peculiar nature of the activities and works undertaken by the temple, as noticed in paragraph 7 of the said judgment that it satisfied the requirements to attract the provisions of the Industrial Disputes Act to the said temple trust, which in view of the Division Bench answered the description of ‘industry’ as defined under Section 2(j) of the said Act. It is not for us to go into correctness or otherwise of the said view in this case. The question as to whether a particular institution would fall within the definition of ‘industry’ has to be dealt with in the teeth of the fact situation pertaining to that individual institution and on the basis of proper and sufficient oral and documentary evidence and merely because a particular temple has been held to answer the description of ‘industry’, it cannot be and ought not to be readily assumed as a matter of course that any temple the administration of which has been taken over under the Act, will ipso facto constitute an ‘industry’ irrespective of satisfaction of any other criteria. It is not as though the Division Bench has merely come to the conclusion in the other case that the institution concerned therein answered the description of ‘industry’ for the purpose of Industrial Disputes Act, merely because, it was a temple of some magnitude or importance alone. Consequently, we see no merit, whatsoever, in the claim made about the applicability of the Industrial Disputes Act to the third respondent-temple, in the absence of any iota of material to bring the third respondent-Temple Trust within the meaning of Section 2(j) of the Industrial Disputes Act. 1947. Consequently, the question of retrenchment within the meaning of Section 2(oo) does not arise and inevitably Section 25-F cannot in any manner come to the rescue of the petitioner.
9. Finally, we have also to place on record certain course of events, which have taken place in this writ petition. When the writ petition was filed an application for interim orders also came along with the writ petition, at the initial stage. On September 15, 1992, the Division Bench has ordered that in case it is possible for the respondents to accommodate the petitioner in any available post of clerk/Steno-typist either in the Temple Trust or of the office of Sub Divisional Officer (Civil), Amb. whether of the nature of leave vacancy or a temporary vacancy, the respondents shall accommodate him for the time being without the petitioner claiming any further right on the basis of his appointment, as such. In view of certain disputes raised about the same, we find that the matter was taken up by this Court on September 29, 1993 and it was observed therein as follows:
“The petitioner has not joined the service with the respondents despite Court order dated September 15, 1992, in the application. He stated that he has been asked to join the duty as a Sewadar Clerk and he does not know what kind of duties he will have to undertake on joining the service.
Shri D.D. Sood explains on the basis of communication (Annexure R-3) dated December 2, 1992 that Sewadar Clerk means that the petitioner will have to do the work of clerk and in case it is not available for some hours of the day, he may be asked to serve the people.
Since we have directed by our order dated September 15, 1992 that the petitioner would be engaged as a Clerk/Steno-typist, either in the Temple Trust or in the office of the Sub Divisional Officer (Civil), Amb. against any available post, it would be desirable to ask the petitioner to execute the duties of a Clerk since this post is available with the respondents as per Annexure R-3. Accordingly, we direct that the petitioner would join as Clerk as per this Court order of September 15, 1992.”
10. On January 12, 1994, it was reported and placed on record that though the petitioner joined the duties, he was not attending to any of the duties and the petitioner was asked to clarify about the position and in view of the directly conflicting and opposite pleas raised, four members of the Bar have been appointed as Commissioners to visit the place and submit a report as to the duties available and the duties that are being performed by the petitioner. It may be noticed that considerable amount has been spent on this count from the coffers of the temple by way of remuneration and when the matter came up on August 31, 1994, it was placed on record by the Division Bench that as per the report of the Commissioners, the petitioner has not been attending the office despite the order made in his favour and therefore, the interim order granted also came to be vacated. Thereafter, on October 26, 1998, we find another order recorded by yet another. Division Bench before which the matter was listed and when the suggestion was made to adjust the services of the petitioner as Sewadar in the temple trust, it was not only not agreed to by the petitioner, who was said to be present in the Court, but he appears to have insisted that he should only be appointed as a Steno-typist and in addition thereto he also appears to have made certain remarks in the open Court, which constrained, the learned Judge, who constituted the Division Bench, to post the matter before some other Bench and obtain appropriate orders of the Hon’ble Chief Justice in this regard. These developments and events, noticed, disclose that the petitioner has been exhibiting recalcitrant and defiant attitude even unbecoming of temple servant or person, whorls expected to serve in the service of a temple even on daily wage basis and such a person does not deserve any sympathy or indulgence in the hands of this Court, particularly, where it has been proved that he had no rights to be vindicated in law.
11. For all the reasons slated above, we see no merit in the writ petition and the same fails and shall stand dismissed. The stay granted by this Court in respect of domestic enquiry shall stand vacated.