KHAN ( 1 ) RESPONDENT was engaged as daily wager in appellant-Corporation way back in 1980. He was later assigned duties of Assistant Grade-111 from 17. 12. 1984 and also-paid wages in that category. He sought regularisation of his services on this-post and took a typing test and interview for this but could not be allegedly regularised because of pendency of writ Petition No. 3777/85 on the subject matter, though services of some of his Juniors were regularised, according to him, meanwhile. ( 2 ) A complaint was lodged against this Respondent on 21. 9. 1987 of having accepted bribe of Rs. 150. 00 and he was discharged next day on 22. 9. 1987. He challenged this by cwp No. l21/88 and sought quashment of this order and also a declararion that Impugned action was punitive based on unilateral findings of guilt emanating from allegations of misconduct. He claimed that he could not be ousted without being regularised and without recourse being taken to procedure provided under Staff Rules of 1978 providing for holding of an enquiry and opportunity of hearing. He also complained that his discharge was violative of Section 25-F of IDA. ( 3 ) APPELLANT questioned the maintainability of writ petition for raising an industrial dispute which was not liable to be examined in writ jurisdiction on merits, it was contended that Respondent was a daily rated worker not holding any post and thus could not claim any right of inquiry or hearing. Nor could he invoke Section 125-F of ida without raising an industrial dispute. He was disengaged by a simplicitor order of discharge visiting him with no consequences whatever. It was denied that services of any of his juniors were regularised, and those regularised were claimed to be senior to him. ( 4 ) UPON this Writ Court, took the view that since respondents order of discharge was founded on the bribe charge it was punitive in nature which could not be passed without inquiry and opportunity of hearing being given to him. Support for this was drawn from several Supreme Court judgments including AIR 1984 SC 636 (Anoop Jaiswal Vs. GOU. 1971 (2) SLR 1345 (Phandis Vs. State of Maharashtra) and Daily Rated Casual Labour Vs. Union ( AIR 1997 SC 2342 ). Support for this was drawn from several Supreme Court judgments including AIR 1984 SC 636 (Anoop Jaiswal Vs. GOU. 1971 (2) SLR 1345 (Phandis Vs. State of Maharashtra) and Daily Rated Casual Labour Vs. Union ( AIR 1997 SC 2342 ). The first two judgments were relied upon for examining the nature of impugned action and lifting its veil and the third one for drawing analogy of equal treatment between daily rated worker and the regularised one where the two were discharging the same nature of duties. An official note dated 21. 9. 1987 reflecting the complaint against Respondent was also taken in regard to conclude that impugned action was founded on misconduct of respondent resulting in penal consequeces to him. The court held as under:- "in view of the fact that petitioner has been continuously working for more than seven years with the respondent and was performing the same kind of service which was done by the regular employees, doing same type of work it cannot be said that the petitioner had no right even for a fair opportunity of being heard or an opportunity to explain his conduct in view of what was alleged to have been recovered from his person. " The manner and method of summary dismissal for an employee who has been working for seven years with the respondent. The respondents themselves have conducted typing test for his regular appointment to the post of AG-III. Admittedly respondent was taking work from the petitioner pursuant to the duty chart of the respondent. It cannot be held that the petitioner has no right, an elementary right of being given an opportunity to explain his conduct. The stand of the respondent on this ground is not tenable. " ( 5 ) APPELLANT feeling aggrieved has filed this Appeal to assail the impugned Judgment on the ground that writ court had drawn wrong analogy from Supreme Court Judgments relied upon by it and had fallen in error in holding that respondent was to be granted an opportunity of hearing in an inquiry to be held against him before he was discharged. ( 6 ) APPELLANT s counsel Ms. Salwan invited our attention to various Supreme Court Judgments including AIR 1994 SC 2411 (State of U. P. and another Vs. Km. Prem Lata misra and others ). 1999 (2) SCC 21 (Radhey Shyam Gupta Vs. ( 6 ) APPELLANT s counsel Ms. Salwan invited our attention to various Supreme Court Judgments including AIR 1994 SC 2411 (State of U. P. and another Vs. Km. Prem Lata misra and others ). 1999 (2) SCC 21 (Radhey Shyam Gupta Vs. U. P. State Agro industries Corporation Ltd. and anr. ). 1991 (1) SCC 691 (State of U. P. and anr. Vs. K. K. Shukia) to urge that Respondent, being a dally rated worker only and not holding any post could not claim a right of hearing or enquiry even if his order of discharge was assumed to be based on a complaint. Nor could he invoke the procedure for discharge/termination provided under the Staff Services rules because he was not an "employee" within the definition of these Rules which were not applicable to him. L/c for Respondent Mr. Gupta, on the contrary, reiterated that Respondent having worked for seven years was to be deemed an "employee" and could not be discharged/terminated without holding a departmental inquiry when the impugned action was admittedly based on unilateral finding of guilt against him. He submitted that his alleged misconduct was covered by Rule 44 (V) of DSIC (Staff Services Rules, 1978) and therefore he could not be sent out without observance of procedure provided in this rule. Even otherwise he could not be terminated without compliance of provisions of Section 25-F of IDA and without being regularised in the facts and circumstances of the case. He placed reliance on a host of judgments of Supreme court and High Courts to support his contention. these reference was only required to be made to 181 (Chander Prakash Shahi Vs. State of U. P. 1984 SC 636 (Anoop Jaiswal Vs. GOI ). 1998 (9) SC praveen Kumar Jain and others ). 1982 (1) SCC 645 robert D souza Vs. Executive Enaineer, Southern Railway and anr.) ). 1991 LABIC 1633 (Maakhan Singh ,vs. Union), 2000 (1) SLF 81 (MCD Vs. Prem Chand Gupta) 1990 (2) SCC 396 (Dharwad Distt. PUD Literate Dally Haaes Employees association Vs. State of Karnatka and others ). 1995 SUPP (4) scc 182 (Khagesh Kumar and others Vs. IG of Registration and others ). Executive Enaineer, Southern Railway and anr.) ). 1991 LABIC 1633 (Maakhan Singh ,vs. Union), 2000 (1) SLF 81 (MCD Vs. Prem Chand Gupta) 1990 (2) SCC 396 (Dharwad Distt. PUD Literate Dally Haaes Employees association Vs. State of Karnatka and others ). 1995 SUPP (4) scc 182 (Khagesh Kumar and others Vs. IG of Registration and others ). ( 7 ) THREE issues arise for consideration and determination in the matter;- (I) whether Respondent by reason of his having worked for seven years in a daily wage arrangement and for having discharged the duties of AG-III post from 1984-87 could be deemed regularised on that post and treated to hold that post conferring a right of inquiry and hearing on him the process. (ii) was Respondent, even though a daily rated worker, otherwise entitled to such inquiry and hearing because he had put in seven years and his discharge could be traced to a bribery charge. (ii) and lastly was he was entitled to protection of Section 25-F of IDA and could any alleged breach thereof be examined in writ jurisdiction when he had failed to raise an industrial dispute on this. ( 8 ) THERE is not much of a dispute on the factual front. It is admitted that Respondent had worked for seven years and was assigned the duties of A6-III post also from 1984. It is also conceded that he was a workman and entitled to raise an industrial dispute. But it is denied that he was superseded or that his juniors were regularised ignoring him in the process. ( 9 ) THE first question, therefore, that arises is whether he could be deemed regularised on AG-III post for having discharged the duties assigned to the post and because of having taken a typing test ayid interview for such regularisation. The answer, in our view, would have to be in negative. This is so for the simple reason that a daily wager cannot claim regularisation as a matter of right or course because of having, remained in engagement for few years unless any Rules/circular/policy of the employer provide for such deeming regularisation on completion of a specific period of engagement. In the absence of such provision, his services could be treated regularised only on passing of an appropriate order by the competent Authority. In the absence of such provision, his services could be treated regularised only on passing of an appropriate order by the competent Authority. ( 10 ) A daily wager only enjoys right of consideration for regularisation any time and his participation in any test or interview in this regard was only a step forward and no more and a part of consideration process which by itself was not sufficient to earn such regularisation as a matter of course. Regularisation would take place only by an appropriate order passed by the Competent Authority and in the present case no such order was admittedly passed and respondent could not naturally be treated regularised on ag-III post or to hold that post. ( 11 ) IT is elementary that the right of enquiry and hearing arises on holding a post. Such a right is not for asking by all and sundry and is conferred on the members of civil Service/govt. Servants/employees by the Constitution and Service Rules and in certain situation and depending upon a host of factors. This position is no more res-integra and is fairly well settled by several judgments of Supreme Court right from Purshotam Lal dhingra s case (1958 SLR 828 ). Therefore, it is not that this right is available in all events and circumstances and to everyone irrespective of his nature of employment and the rules and procedure regulating it. Where an employee is not holding a post, he was liable to be sent out on terms of his appointment/contract. ( 12 ) IN the present case Respondent also claims right of enquiry through Rule 44 (5) of DSIDC Staff Services Rules on the hypothesis that once he was deemed regularised he would be an "employee" within the definition of these Rules and could be ousted only in accordance with the method prescribed therein. These rules define an employee as a person who is in whole time regular service of Corporation and excludes those on daily wages/adhoc and on consolidated pay and once he cannot be deemed regularised, he cannot invoke these Rules and claim right of inquiry and hearing provided therein. ( 13 ) IT is also not the case that he was to be regularised first before he could be discharged. ( 13 ) IT is also not the case that he was to be regularised first before he could be discharged. As he had no right of automatic regularisation on completion of seven years of engagement and for having appeared in the test/interview, no corresponding obligation was cast on the competent Authority to regularise him first and discharge him later under Rules. ( 14 ) COMING to second question whether respondent was otherwise, entitled to such inquiry and hearing because he had put in seven years service and his discharge could be traced to bribery charge made against him, we find it difficult to appreciate how could he be credited with such valuable rights when he was not holding any post or rank etc. in the service. The rights of an employee are protected by the Constitution and service Rules and these flow on his holding the post. where he is not found holding any post, he cannot cling to rights available to regular employees holding the post. His best bet could be to fall back upon and seek shelter under terms of appointment/engagement. It would be too much to hold that he could invoke all rights available to regular employees and that too in disregard of the relevant Service Rules. ( 15 ) RESPONDENT also could not claim or invoke right of inquiry and hearing on this parity of reasoning. Nor could he complain of being hit by any evil consequence which also come into play on holding of a post. The order of discharge also could not be said to be visiting him with any such consequences and the impugned action even assuming to be founded on bribery charge could not be characterised punitive in the circumstances. ( 16 ) THERE is no dispute with the propositions enunciated in the judgements referred to by the writ court in this regard. But these are wholly distinguishable from the present case and none of these anyway lays down any general principle that a daily rated worker becomes entitled to right of enquiry and hearing on remaining in engagement for some years or if he is disengaged pursuant to any complaint or charge. But these are wholly distinguishable from the present case and none of these anyway lays down any general principle that a daily rated worker becomes entitled to right of enquiry and hearing on remaining in engagement for some years or if he is disengaged pursuant to any complaint or charge. ( 17 ) THE writ Court seems to have placed reliance on the Supreme Court judgement in the Daily rated Labour case (AIR 1987 _ SC 2342) to deduce the principle that once a daily rated worker deserved equal treatement, perhaps in parity of wages, he could as well be granted liberty to enjoy equal service rights of a regularised employee. The analogy drawn, in our view, was not appropriate in the circumstances. Because Supreme Court in this case was only dealing with the question of parity of wages of daily rated labour discharging same duties as some regular employees and not their service status qua the relevant service conditions. It had, therefore, no occasion to examine whether such workers could be treated regularised on drawing equal wages. Moreover, it is one thing to enforce equality of treatment in payment of wages between two sets of people discharging the same nature of duties and altogether a different thing to suggest that this by itself would elevate their status to that of a regular employee holding the post. Appointment to a post or regularisation of service to the post regulated by terms of appointment and service Rules would not come about by payment of equal or higher wages. ( 18 ) WE also find it difficult to accept that a daily wager could acquire right of inquiry/hearing only because of his having worked for some years. His length of engagement may constitute a crucial element for consideration of his regularisation but it would not confer a regularised status on. him to claim rights available to regular employees. Such a conferment may not even be read in A-14 of the Constitution so long as his engagement/appointment is governed and regulated by terms and Rules of employment. ( 19 ) L/c for appellant Mr. Gupta has placed reliance on 2000 (5) JT 181 (Chander Prakash Shahi Vs. State of U. P. and others. 1998 (9) SCC 468 (M. C. D. Vs. ( 19 ) L/c for appellant Mr. Gupta has placed reliance on 2000 (5) JT 181 (Chander Prakash Shahi Vs. State of U. P. and others. 1998 (9) SCC 468 (M. C. D. Vs. Praveen Kumar jain and others) to urge that even a daily wager was entitled to a right of enquiry and hearing where he was ousted for his misconduct, we have gone through these Judgments. The first Judgment deals with the case of termination of a temporary employee and holds that where the employer had held a preliminary enquiry to look into allegations of misconduct against the employee and not to find out his suitability, the order of termination would become punitive and would have to be passed in accordance with procedure provided under Rules. This in our view isdistinguishable because a temporary and a daily wager cannot be treated at par because the first one is governed by the service contract Rules and the daily wager is not. It, therefore, does not lend any support to Respondent s case. ( 20 ) IN the other case Supreme Court was dealing with discharge order of a daily wager who was in engagement for 20 years or so and who had raised an industrial dispute questioning the inquiry into his misconduct held against him and had obtained an award directing his reinstatement after the inquiry was held invalid. It was affirmed by high Court also and later by Supreme Court. It appears thus Appellant MCD took the plea that he was not entitled to any departmental enquiry for not being a regular employee upon which the Apex Court said:- "it is obvious that termination order based on misconduct was not the result of departmental enquiry and consequently it must fail on that ground also. " ( 21 ) THIS appears to us per incurian, because no reason was given in support thereof. Nor was it discussed whether a daily wager could claim a right of departmental enquiry under rules when it was not available to him otherwise. The third Judgment in Sushil Kumar Sehgal Vs. Union CA no. 3009/89 dated 31. 9. 1991 also deals with a temporary employee and is of no help. Nor was it discussed whether a daily wager could claim a right of departmental enquiry under rules when it was not available to him otherwise. The third Judgment in Sushil Kumar Sehgal Vs. Union CA no. 3009/89 dated 31. 9. 1991 also deals with a temporary employee and is of no help. ( 22 ) ON the other side of the fence we find that supreme Court had upheld the non-holding of inquiry even in the case of temporary employee against whom a preliminary inquiry was held in State of U. P. Vs. K. K. Shukia (JT 1991 (1) sc 108) holding thus:- "before terminating the services of a temporary servant or reverting the person officiating in a higher post of his substantive post, the Govt. may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating Govt. servant. Such an enquiry does not change the nature of the order of the termination or reversion. . . . It is erroneous to hold that where a preliminary enquiry into allegations against a temporary govt. servant is held or where a disciplinary enquiry is held but dropped or abandoned before the issue of order of termination, such order is necessarily punitive, in nature. " ( 23 ) THE Court in R. S. Gupta Vs. U. P. State ( 1999 (2) SCC 21 ) has also upheld the termination of service of a temporary employee/probationer where the preliminary enquiry was conducted to decide whether to retain him in service and not to find out the truth of allegations of misconduct against him. It has Justified the dropping of a departmental enquiry also midway in such case holding that order of termination did not attach any stigma and could not be said to be punitive in nature. It held;- "the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or ,on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer. It is done only with a view to decide whether he is to be retained or continued in service. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity,it will not be bad. Even in a case where a regular departmental enquiry is started, a charge memo issued, reply obtained, and an enquiry officer is appointed not recorded evidence nor given any findings on the charges. The departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. The employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his carrier if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive. " ( 24 ) IN the present case there is nothing to show that appellant had held any preliminary enquiry into bribe charge against respondent and had taken steps to determine it. All that was available is that it had recorded the factum of complaint against him in official note dated 21. 9. 1987. That by itself was not enough to suggest that respodnent s order of discharge though simplicitor on face was found on his misconduct of having accepted the bribe. It could as well be that employer was not interested in retaining him the face of the complaint irrespective of whether it was true or false. ( 25 ) MR. 9. 1987. That by itself was not enough to suggest that respodnent s order of discharge though simplicitor on face was found on his misconduct of having accepted the bribe. It could as well be that employer was not interested in retaining him the face of the complaint irrespective of whether it was true or false. ( 25 ) MR. GUPTA s last submission that Respondent could not be terminated without complying with the provisions of section 125-F of IDA appears to be a last-ditch submission. He asserted that since a workman could not be terminated without compliance of provisions of Section 25-F and once such breach was established on record, nothing came in the way of this Court to quash the impugned action and reinstatement of Respondent. He cited number of Judgments to support his contention, reference to some of which stands made elsewhere. ( 26 ) IT may be pointed out at the very outset that judgments relied upon by Mr. Gupta dealt with matters arising out of industrial disputes reference whereof was sought by aggrieved workmen under IDA. No law or precedent was pressed in service by him to show that a writ court could bypass the mechanism provided by IDA f6r raising and adjudication of such disputes and take upon itself to examine the alleged breach of provisions of its Section 25-F. Apart from this, writ Court had not dealt with this aspect of the matter and it is not known if it was raised before it though it is contained in the pleadings of the parties, we are not therefore inclined to examine the issue at Appellate stage more so in the face of Appellant s objection that it was liable to be raised only through an industrial dispute rendering it difficult for the Court to take it up directly, we could also have left Respondent free to raise the dispute and invoke Section 25-F now in terms of provisions of IDA but it may be too late in the day for him to do so which may again involve him in protracted litigation and when he may by now have settled in some alternative avocation. ( 27 ) WE accordingly hold that a Daily wager had no automatic right of regularisation unless he was so regularised by an order of the employer or unless the employer s Rules regularisation on completion of a specified period of engagement. He was consequently not entitled to any departmental inquiry or right of hearing on his being discharged even on complaint unless he was regularised to hold a post. The length of his engagement could constitute a vital factor for his consideration of regularisation but would not regularise him and vest rights of a regular employee on him. He was required to raise an industrial dispute for invoking any breach of provisions of Section 25-F of IDA and the writ Court was within its competence to decline to exercise its jurisdiction for this directly. ( 28 ) THIS Appeal resultantly succeeds and is allowed and the impugned writ Court Judgment dated 17. 11. 1998 is set aside.