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2001 DIGILAW 638 (ALL)

BAL CHAND SINGH YADAV v. STATE OF UTTAR PRADESH

2001-07-06

S.K.SEN, S.RAFAT ALAM

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S. RAFAT ALAM, J. ( 1 ) THIS special appeal is preferred against the order of the learned single Judge dated 11. 3. 1997 in Writ Petition No. 1644 of 1994 dismissing the writ petition against the order of termination dated 24. 12-1993. ( 2 ) IT appears that Sri S. N. Singh, the then Deputy Director (Fisheries), Varanasi, at the verge of his retirement advertised few posts of Class-IV for appointment through advertisement dated april 22, 1993 in a local Hindi Newspaper jan Mukh, a copy whereof has been annexed as annexure-1 to the writ petition. The advertisement mentions that the candidates desirous for appointment appear before the Deputy Director (Fisheries ). Varanasi, on 13. 5. 1993 along with the application for Interview. After interview, the petitioner along with Sri Lal Bihari was selected and was appointed as Fisherman on purely temporary basis through office order dated 15. 5. 1993 Issued by Sri S. N. Singh, the then Deputy Director (Fisheries ). The letter of appointment further provides that the appointment is purely temporary and can be terminated on one months notice. He consequently submitted his joining on 18. 5. 1993. However, by the impugned order dated 24. 12. 1993, his services were terminated on the ground that his services are no more required to the Department and, therefore, in terms of the letter of appointment one months salary in lieu of notice is to be paid to the petitioner. Aggrieved, the petitioner-appellant approached this Court by filing Writ Petition No. 1644 of 1994 which has been dismissed by the learned single Judge vide order dated 11. 3. 1997 against which this special appeal has been filed. ( 3 ) LEARNED counsel for the appellant vehemently contended that the services of the petitioner-appellant has been terminated without assigning any reason and without there being any valid ground for such termination. It is also contended that on similar facts and circumstances Writ Petition No. 1638 of 1994 filed by one Sri Shesh Mani Vind has been allowed by another learned single Judge vide order dated 12. 3. 1997 wherein the learned single judge was of the view that the order of termination dated 24. 12. 1993 is illegal and liable to be quashed. 3. 1997 wherein the learned single judge was of the view that the order of termination dated 24. 12. 1993 is illegal and liable to be quashed. ( 4 ) ON the other hand, learned standing counsel submitted that the order of termination has been passed in terms of the letter of appointment, as the service of the petitioner was no more required. In the counter-affidavit, the respondents have stated that the appointment was temporary In nature and as such, it confers no legal right to continue further as the order of termination is passed in accordance with the provisions of the said Rules. It has also been contended by the learned standing counsel that Sri S. N. Singh. the then Deputy Director (Fisheries) who was due to retire on May 31, 1993, sought permission to make appointment which was refused by the Director in spite of that, he proceeded with the appointment and appointed the petitioner on 15. 5. 1993 only two weeks prior to his retirement. It has also been stated that a disciplinary proceeding was initiated against Sri S. N. Singh, the then Deputy director (Fisheries) for committing several irregularities and one of the charge in the said proceeding is of making appointment of four persons in May. 1993 on the eve of his retirement. ( 5 ) FROM the perusal of the letter of appointment dated 15. 5. 1993, it is evident that the petitioner-appellant was appointed on purely temporary basis. The order of appointment postulated his services to be terminable at any time by giving one months notice. In terms of the order of appointment, the respondents by the Impugned order terminated his services on the ground that it is no more required to the department. The impugned order is termination simpliciter and is neither punitive nor stigmatic and is passed in terms of the appointment order and under the provisions of the U. P. Temporary Government Servant (Termination of Service)Rules, 1975 (for short the Rules ). In that view of the matter, we are of the view that the impugned order does not suffer from any illegality and as such, the learned single Judge has rightly held that there is no Infirmity in the order terminating the services of the petitioner. In that view of the matter, we are of the view that the impugned order does not suffer from any illegality and as such, the learned single Judge has rightly held that there is no Infirmity in the order terminating the services of the petitioner. ( 6 ) IT is well-settled legal position that a temporary Government servant has no right to hold the post and his services can be terminated by giving one months notice without assigning any reason either under the terms of contract providing for such termination or under the relevant statutory rules regulating terms and conditions of temporary Government servant. However, if such termination or dismissal from service is made by way of punishment, in that event the appointing authority is required to hold a formal enquiry by framing charges and only after giving due opportunity to such a Government servant, may pass appropriate order. ( 7 ) THE Honble Supreme Court in the case of State of U. P. and another v. Kaushal Kishore shukla, 1991 (1) SLR 606 In para 7 of the judgment held as under : "a temporary Government servant has no right to hold the post, his services are liable to be terminated by giving him one months notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Government servants. A temporary Government servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability misconduct or inefficiency, It may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary government servant. If it decides to take punitive action it may hold a formal enquiry by framing charges and giving opportunity to the Government servant In accordance with the provisions of article 311 of the Constitution. If it decides to take punitive action it may hold a formal enquiry by framing charges and giving opportunity to the Government servant In accordance with the provisions of article 311 of the Constitution. Since a temporary Government servant is also entitled to the protection of Article 311 (2) in the same manner as a permanent Government servant, very often the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is now well-settled that the form of the order is not conclusive and it is open to the Court to determine the true nature of the order. In Parshotam Lal Dhingra v. Union of India, 1958 SCR 828 , a constitution Bench of this Court held that the mere use of expressions like terminate or discharge is not conclusive and In spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the Government servant is punitive in nature. The Court further held that in determining the true nature of the order the court should apply two tests namely : (1) whether the temporary Government servant had a right to the post or the rank or (2) whether he has been visited with evil consequences ; and If either of the tests is satisfied, it must be held that the order of termination of temporary Government servant is by way of punishment. It must be borne in mind that a temporary Government servant has no right to hold the post and termination of such a Government servant does not visit him with any evil consequences. The evil consequences as held in Parshotam Lal Dhingras case (supra) do not include the termination of services of a temporary Government servant in accordance with the terms and conditions of service. The view taken by the Constitution Bench in Dhingras case has been reiterated and affirmed by the Constitution Bench decisions of this court In State of Orissa and another v. Ram Narayan Das, 1961 (1) SCR 606 ; R. C. Lacy v. State of Bihar and another, C. A. No. 590 of 1962 decided on 23. 10. The view taken by the Constitution Bench in Dhingras case has been reiterated and affirmed by the Constitution Bench decisions of this court In State of Orissa and another v. Ram Narayan Das, 1961 (1) SCR 606 ; R. C. Lacy v. State of Bihar and another, C. A. No. 590 of 1962 decided on 23. 10. 1963 ; Champaklal chimanlal Shah v. Union of India, 1964 (5) SCR 190 ; Jagdish Mitter v. Union of India, AIR 1964 SC 449 ; A. G. Benjamin v. Union of India, C. A. No. 1341 of 1966 decided on 13. 12. 1966. Shamsher Singh and another v. State of Punjab, 1975 (1) SCR 814 . These decisions have been discussed and followed by a three Judge Bench in State of Punjab and another v. Shri Sukh Raj bahadur. 1968 (3) SCR 234 . " ( 8 ) THE Honble Supreme Court again reiterated the similar view In the case of State of U. P. and another u. Prem Lata Mfsra (Km.) and others, (1994) 4 SCC 189 and held as under : "it is settled law that the Court can lift the veil of the Innocuous order to find whether it is the foundation or motive to pass the offending order. If misconduct is the foundation to pass the order then an enquiry into misconduct should be conducted and an action according to law should follow. But If it Is motive, it is not incumbent upon the competent officer to have the enquiry conducted and the service of a temporary employee could be terminated. In terms of the order of appointment or rules giving one months notice or pay/salary in lieu thereof. Even if an enquiry was initiated it could be dropped midway and action could be taken in terms of the rules or order of appointment. The same principle applies to the facts In this case. It is seen that the respondent was appointed by direct recruitment by selection committee constituted by the government in this behalf and on finding about the suitability to the post as an Asstt. Project officer, the respondent was appointed and was posted to the place where she had Joined. Thereafter, her work was supervised by the higher officers and two officers have submitted their reports concerning the performance of the duties by the respondent. Project officer, the respondent was appointed and was posted to the place where she had Joined. Thereafter, her work was supervised by the higher officers and two officers have submitted their reports concerning the performance of the duties by the respondent. She was regularly irregular in her duties, insubordinate and left the office during office hours without permission etc. On consideration thereof, the competent authority found that the respondent is not fit to be continued in service as her work and conduct were unsatisfactory. Under these circumstances, the termination is for her unsultability or unfitness but not by way of punishment as a punitive measure and one in terms of the order of appointment and also the Rules. Accordingly, the High court has gone against settled law In allowing the writ petition. " ( 9 ) THEREFORE, in view of the settled legal position, there Is no reason to Interfere with the innocuous order of termination and the learned single Judge has rightly dismissed the writ petition. ( 10 ) THE submissions that on identical facts Writ Petition No. 1638 of 1994 filed by one Sri Shesh mani Bind has been allowed by another learned single Judge vide order dated 12. 3. 1997 is also of no help to the petitioner for the simple reason that it is per incurium as it did not notice the aforesaid two judgments and several other reported judgments of the Honble Supreme Court on the subject such as. P. L. Dhingra v. Union of India, AIR 1958 SC 36 ; Jagdish Mitter v. Union of India, AIR 1964 SC 449 ; State of U. P. v. Bhoop Singh, AIR 1979 SC 684 and Triveni shanker Saxena v. State of U. P. , AIR 1992 SC 496 , wherein the Honble Supreme Court has consistently held that a temporary Government servant has no right to the post and his services can be terminated by giving him one months notice without assigning any reason under the terms of the contract for providing such termination and under the relevant statutory rules regulating the terms and conditions of temporary Government servant. That apart, as has been stated by the learned standing counsel and has also been averred in para 9 of the counter-affidavit in reply to para 13 of the affidavit filed along with this appeal that a review application has been filed by the State In Writ Petition No. 1638 of 1994 which is pending for disposal. ( 11 ) IN view of the discussions made above, we do not find any merit in this appeal. II is, accordingly, dismissed but without costs. .