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2004 DIGILAW 216 (ALL)

VISHNU DHAR DUBEY v. STATE OF U. P.

2004-02-05

K.S.RAKHRA, PRADEEP KANT

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( 1 ) AGGRIEVED by an order of termination from service, the petitioner preferred a claim petition before the Public Services Tribunal in the year 1982. ( 2 ) IT was the case of the petitioner that the order of termination was not served upon him where in the written statement filed by the U. P. State Road Transport Corporation (hereinafter referred to as UPSRTC) it was categorically stated in para 10 that the order of termination has been sent to the petitioner through registered post dated April 19, 1968. In the counter-affidavit, the termination order was also filed. In the claim petition, the petitioner himself had alleged that he was given to understand that his services have been terminated by an order dated April 30, 1968 whereas actually the services were terminated by order dated April 19, 1968. The same was sent through registered post and the presumption was that the petitioner had received the same, having not returned unserved. ( 3 ) IN short, the case of the petitioner was that he was appointed in 1956 as Chowkidar in the Government Roadways. While he was posted at Government Roadways Workshop, charbagh, Lucknow in the year 1967 a report of theft was lodged naming him and one Nanhe. He was arrested and detained in jail from where he was released on bail. A charge-sheet was submitted against Nanhe but no charge-sheet was submitted against the petitioner. In the year 1978 he moved an application before the magistrate concerned alleging that no charge-sheet was submitted against him and, therefore, the bail bonds may be discharged. His prayer was accepted and the bail bonds were discharged on May 23, 1980. The petitioner moved an application before the authorities of the UPSRTC for reinstating him in service and when he was not reinstated upto july 30, 1982, then he preferred the claim petition. The petitioner although initially pleaded that since no charge-sheet has been submitted against him, his prayer for discharge of bail bonds was accepted by the Magistrate, but later on asserted that he was acquitted by munsif Magistrate on October 17, 1979. ( 4 ) IN the written statement filed by the respondents, it was stated that the petitioner was a temporary employee and his services have been terminated because of unsuitability and unsatisfactory work. ( 4 ) IN the written statement filed by the respondents, it was stated that the petitioner was a temporary employee and his services have been terminated because of unsuitability and unsatisfactory work. It is not being disputed nor could be disputed by the petitioner that he was not confirmed on the date of passing of the termination order and his status remained as that of a temporary employee. The services of the petitioner were terminated on April 19, 1968 and it is no doubt true that he remained absent without any application right from July 30, 1967 till the date of termination of his services. The material which was taken into consideration by the appointing authority for termination of the services of the petitioner is as under: (a) warned with an adverse entry vide order dated May 19, 1958 for unauthorised absence from duty. (b) warned vide letter dated September 30, 1961 for absence from duty. (c) warned to remain careful in future vide order dated January 4, 1964. (d) awarded adverse entry vide order dated september 4, 1964 for absence from duty. (e) involved in a criminal case and remained in jail for two months in the year 1964. ( 5 ) THE Tribunal, after considering the pleas of both the sides found that the order of termination was simpliciter order of discharge and thus rejected the claim petition. Learned counsel for the petitioner has vehemently urged that the order of termination was an order of punishment as the same was passed because of the unauthorised absence of the petitioner without holding any enquiry or without affording any opportunity to him. He has relied upon paragraph 6 of the written statement filed before the Tribunal, which says as under:"6. That the contents of para 7 of the reference petition are denied for want of knowledge. It is submitted that after FIR the petitioner absconded from duty and when he did not return on duty and absent from July 30, 1967 to April 18, 1968, his services were terminated, vide order dated April 19, 1968. In this regard, it is submitted that the petitioner was habitual in absenting himself from duty, which is evident from para 3 of the counter affidavit. In this regard, it is submitted that the petitioner was habitual in absenting himself from duty, which is evident from para 3 of the counter affidavit. " ( 6 ) IN the matter of a temporary employee, if there is material available with the appointing authority so as to adjudge the employee not fit for being retained in service or if he is found unsuitable and his work and conduct have been unsatisfactory, it is the discretion of the appointing authority either to hold the disciplinary proceedings or terminate the services of such an employee by passing an order of simpliciter discharge unless the alleged misconduct is the foundation for passing the order of discharge, the same would not become bad simply because of the motive in passing the order. In the instant case, the service record of the petitioner, as has been indicated above, clearly establishes that the appointing authority was at liberty to consider the said record and to pass an order of termination. A temporary government servant, if he is habitual in absenting himself without any application, cannot complain that his services could not be terminated by passing an order of simpliciter discharge unless the enquiry is held. Not attending duties regularly, being absent without application, habitual in going on unauthorised absence off and on without applying for leave would in itself be sufficient to form an opinion that the temporary Government servant is not fit for being retained in service. Apart from this, the service record also reveals that the petitioner earned adverse entries in the year 1968 and was warned for being absent without leave in the year 1961, then he was given warning to remain careful in future, vide order dated January 4, 1964 and again he was awarded adverse entry, vide order dated september 4, 1964. If on the basis of such record, the services of the petitioner were terminated, it cannot be said that the action was arbitrary and capricious. If on the basis of such record, the services of the petitioner were terminated, it cannot be said that the action was arbitrary and capricious. ( 7 ) THE argument of the learned counsel for the petitioner that in view of the averments made in the written statement in para 6, the services of the petitioner were terminated because he was in jail, cannot be accepted, as the reason for termination of service was not that the petitioner was in jail but because he was e in the habit of remaining absent from duty without leave and was continuing as such since long. ( 8 ) WE do not find any illegality in the order passed by the Tribunal. ( 9 ) THE writ petition is dismissed. .