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1969 DIGILAW 318 (SC)

Union of India v. Prem Parkash Midha

1969-08-14

A.N.GROVER, J.C.SHAH, V.RAMASWAMI

body1969
Judgment Shah ( 1 ) PREM Prakash Midha, hereinafter called the respondent was recruited, as a temporary Junior Clerk in the Office of the District rent and Managing Officer, Karnal under the government of Punjab. The office was later taken over by the Union of India and the respondent became a temporary employee of the Union. The respondent was promoted as officiating Upper Division Clerk and was working in the Office of the Regional Settlement Commissioner, Jullundur. On 12/06/1960 the respondent applied for casual leave. He was granted only one days leave. He applied for extension of leave but extension was not granted. The respondent did not report for duty and a notice was served requiring him to show-cause why disciplinary action should not be taken for absenting himself from duty. The respondent explained that his wife was ill and on that account he was unable to attend No disciplinary action was taken against the respondent, but in exercise of the power under the civil Servants (Temporary Service) Rules, 1949) the Regiona1 Settlement commissioner by order dated 16/07/1960 terminated the respondents service. The respondent then instituted an action in the court of the senior Subordinate Judge, Karnal praying for a declaration that the order terminating his service under r. 5 of the Civil Services (Temporary Services) rules, 1949 was "wholly ultra vires, illegal void and ineffective" and that he must be deemed to be continued in service and for reinstatement. The trial court dismissed the suit. In appeal to the District court the decree was reserved and the suit was decreed as prayed. The High court of punjab summarily dismissed the appeal of the Union of India against the decree of the District court. With special leave, the Union of India has appealed to this court. ( 2 ) AT all material times the respondent was in the employment of the Union of India as a temporary servant and the Civil Services (Temporary Service) Rules, 1949, applied to him. The learned District judge, however, held that the respondent was a "quasi-permanent" employee and his service could not be terminated without holding an enquiry. ( 2 ) AT all material times the respondent was in the employment of the Union of India as a temporary servant and the Civil Services (Temporary Service) Rules, 1949, applied to him. The learned District judge, however, held that the respondent was a "quasi-permanent" employee and his service could not be terminated without holding an enquiry. In the alternative, the District court held that even if the respondent was a temporary employee; the order of termination of employment was passed with the object of punishing the respondent and on that account also the termination of employment without complying with the requirements of Art. 311 of the Constitution was illegal. The court also held that by the order the guarantee of equal opportunity to hold public employment under Art. 16 (1) of the Constitution was infringed. ( 3 ) IN our judgment the District Judge was in error in so holding. It is common ground that no order confirming the respondent as a quasi permanent servant was passed. The court has "held in (1) Champaklal v. Union of India that a public servant in temporary employment, by mere length of service cannot claim the status of a "quasi-permanent" employee : he may acquire that status only by an express declaration. The respondent claimed by his replication filed in the court of First instance that he was a "quasi permanent servant" and that his case fell "within the purview of Art. 311 of the Constitution. ". But apart from that assertion be led no evidence to prove that an order appointing him in a "quasipermanent" capacity was issued. He did not even make that assertion in his statement before the court of First Instance. The finding of the district Judge that the respondent ",was a "quasi-permanent" employee of the Union cannot, therefore, be sustained. ( 4 ) THE order passed against the respondents was made in exercise of the power conferred by r. 5 of the Civil Servants (Temporary Service) rules 1949. The order did not purport to cast any stigma upon the respondent. But the learned District Judge thought, relying upon three letters, that the Regional Settlement Commissioner intended to punish the respondent. The three letters were dated respectively June 16, June 22, 1960 and 28/06/1960. The order did not purport to cast any stigma upon the respondent. But the learned District Judge thought, relying upon three letters, that the Regional Settlement Commissioner intended to punish the respondent. The three letters were dated respectively June 16, June 22, 1960 and 28/06/1960. By letter dated 16/06/1960, the Regional Settlement commissioner called upon the respondent to explain "why disciplinary action should not be taken against him for overstaying the leave without permission. By letter dated 22/06/1960, the respondent was informed that if he "did not return to duty by 25/06/1960 he will be placed under suspension" and that no further extension will be granted to him on any account. By letter dated 28/06/1960 the respondent was informed that "extension of leave from 19/06/1960 for 15 days was refused" and that if the respondent did not report for duty immediately, he will be liable for disciplinary action,. It is true that the last letter contained a threat that disciplinary action will be taken against the respondent, but no disciplinary action was commenced against him and Ms service was terminated in exercise of the power under the Civil Servants (Temporary Service) Rules, 1949. This court has in a recent judgment (1) Union of India and others vs. R S. Dhaba C. A. No. 882 of 1966, decided on 7/04/1969, held that an order which does not contain any express words of stigma attaching to the conduct of the employee cannot be treated as an order of punishment under Article 311 of the Constitution. ( 5 ). The Regional Settlement Commissioner passed a bald order terminating the employment. It recited that according to the terms and conditions of his service the respondent was given one months notice of termination and that the notice will take effect from July, 1960 and his service will accordingly stand terminated from that date. There is nothing in the order which indicates that the order was made with the object of punishing the respondent. It is true that the respondent was threatened with disciplinary action, but it cannot be inferred therefrom that the order of termination was issued to punish the respondent. The District court was, in our judgment, in error in holding that the order passed by the regional Settlement Commissioner was made with the intention of punishing the respondent. It is true that the respondent was threatened with disciplinary action, but it cannot be inferred therefrom that the order of termination was issued to punish the respondent. The District court was, in our judgment, in error in holding that the order passed by the regional Settlement Commissioner was made with the intention of punishing the respondent. ( 6 ) THE District court also held that when the service of the respondent was terminated and officers junior to him were retained in service, the respondent was denied equal opportunity to hold public service under art. 16 of the Constitution. But there is noting in Art 16 of the Constitution which supports the view expressed by the learned District Judge. By Art. 16 all citizen are entitled to equality of opportunity in matters relating to employment or appointment to any office under the State. By merely terminating the employment of the respondent the respondent was not denied of equal opportunity to hold public service. Under Article 16 of the Constitution, it is not one of the fundamental rights that a person who is an employee of the State shall be entitled to continue in service and that his employment shall not be terminated so long as persons junior to him remain in service. ( 7 ) IT was urged that the Regional Settlement Commissioner had no authority to terminate the employment of the respondent. No such argument was raised before the District court. Before the Trial court it was urged that the Regional Settlement Commissioner being an authority subordinate to the appointing authority the order of termination of employment was unauthorised. But the Trial court rejected the contention and the contention was not raised before the District court. ( 8 ) THE appeal must be allowed, and the order passed by the district court and confirmed by the High court must be set aside and the plaintiffs suit must be dismissed. There will be no order as to costs in this court and in the High court and the District court. .