C.A.V. ORDER 1. The petitioner seeks quashing of the order dated 18.01.2008 passed by the Managing Director, Bihar Industrial Area Development Authority (B.I.A.D.A.) whereby services of the petitioner have been terminated exercising power under Regulation 1.5 (a) of Bihar Industrial Area Development Authority (Financial, Services & Technical) Regulation, 2007 (Hereinafter referred to as the “Regulation, 2007”). The petitioner has also sought for quashing of an order dated 21.02.2011 passed by the Chairman, B.I.A.D.A. on an appeal preferred by him against the said order dated 18.01.2008. 2. It is the petitioner’s case that he was duly appointed as Peon by an order dated 26.02.1980 issued by the Managing Director, North Bihar Industrial Area Development Authority on temporary basis against a temporary post. In the year 2007, the Industrial Area Development Authorities lying within the State of Bihar were merged to form one B.I.A.D.A. and after merger, petitioner became an employee of B.I.A.D.A. He continuously worked, right from his initial appointment and was given the benefits of 6th Pay Revision by B.I.A.D.A. itself vide Memo No. 119 dated 29.01.2007 (Annexure-3). Subsequently, in the year 2007, in the exercise of power under Section 15 read with Section 5 of Bihar Industrial Area Development Authority Act, 1974, the B.I.A.D.A. with the approval of State Government framed Bihar Industrial Area Development Authority (Financial Service and Technical) Regulations 2007 (Hereinafter referred to as the “Regulation”) to carry out the purposes of the said Act. The said Regulations provide, inter alia, service regulations and procedure. Clause 1.5 under Part II of the said Regulations provide for the grounds and manner for termination of service of an employee which reads thus:- “1.5 Terminating of Services.- a) The services of an employee any be termination by the MD without assigning any reason by a notice of one month in writing to the employee or on payment of one month’s pay and allowances in lieu of such notice. b) the service of an employee shall stand terminated:- I. If his appointment is made for a specified period on the expiry of such period unless the appointment is extended for a further period. II. If his appointment is made against a temporary post, on the abolition of the post or on the expiry of the period for which the post is created. III. II. If his appointment is made against a temporary post, on the abolition of the post or on the expiry of the period for which the post is created. III. If (s)he fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him and after his explanation, if any, in reply to a show cause notice, which should be given in all such cases, has been taken into account. Or IV. If serious charges of misconduct against an employee are established.” 3. Exercising power under said Regulation 1.5 (a), the Managing Director passed an order dated 18.01.2008 terminating the petitioner’s service with immediate effect. The petitioner, thereafter, preferred appeal before the Chairman B.I.A.D.A. The appeal however, was dismissed for non-appearance. The petitioner preferred a writ application vide C.W.J.C. No. 5539 of 2009. It is the petitioner’s case that the said writ application was disposed of by an order dated 05.05.2009 with an observation that his case was covered by an order dated 16.04.2009 passed in C.W.J.C. No. 8382 of 2007 and accordingly his writ application was disposed of in terms of C.W.J.C. No. 8382 of 2007. Accordingly, the appellate authority was directed to restore the appeal and dispose it of by a reasoned and speaking order. The petitioner thereafter preferred supplementary memo of appeal on 18.05.2009. Nearly two years thereafter, the Appellate Authority passed the order dated 21.02.2011 dismissing the petitioner’s appeal. The orders dated 18.01.2008 and 21.02.2011 are impugned in the present application. 4. Learned counsel appearing on behalf of the petitioner submits that impugned order of petitioner’s termination from service reflects gross abuse of power. 5. A counter affidavit has been filed on behalf of B.I.A.D.A. stating therein that the petitioner was appointed purely on temporary basis and continued as such till issuance of the impugned order dated 18.01.2008. It has been stated that there is no order of a competent authority appointing him on permanent basis in B.I.A.D.A. and his service cannot be treated to have become automatically permanent. It has been stated that his service cannot be treated to be permanent because of his fixation of pay as a regular employee and grant of time bound promotion. It has been stated that there is no order of a competent authority appointing him on permanent basis in B.I.A.D.A. and his service cannot be treated to have become automatically permanent. It has been stated that his service cannot be treated to be permanent because of his fixation of pay as a regular employee and grant of time bound promotion. It has been stated in paragraph No. 10 of the counter affidavit as follows:- “That in reply to the statement made in Paragraph 9 of the writ petition it is stated that the service of the petitioner was terminated under the Service Regulation governing him being the 2007 Service Regulations on the ground of his unauthorized absence from duty, which has also been recorded in the appellate order. The said termination order of the petitioner is also sustainable on the basis of the terms and conditions of his appointment i.e. appointment on purely temporary basis of a temporary post and his service being liable to be terminated at any time without any notice. Thus the petitioner has no right to hold the said temporary post of peon and his termination on the said ground is justified on the said reason. ” 6. In paragraph No. 14 of the counter affidavit, it has been stated that the impugned order being an order of termination simpliciter was not required to be preceeded by a departmental proceeding nor the petitioner was required to be heard. In reply to the stand of the petitioner that in similar circumstance, this Court quashed the order of termination in case of Santosh Kumar Sinha by an order dated 14.08.2008 passed in C.W.J.C. No. 4871 of 2008, it has been stated that, in that case the petitioner was treated to be a permanent employee of the authority which the present petitioner is not, and therefore, impugned order of the Managing Director as well as that of the Appellate Authority do not require any interference. 7. Learned counsel for the petitioner challenging the impugned order has placed reliance upon a Supreme court judgment reported in A.I.R. 1990 (SC) 2228 (Jacob M Puthuparambil Vs Kerala Water Authority) to submit that by no stretch of imagination the petitioner’s service can be treated to be temporary after, he having served the establishment for nearly three decades. 7. Learned counsel for the petitioner challenging the impugned order has placed reliance upon a Supreme court judgment reported in A.I.R. 1990 (SC) 2228 (Jacob M Puthuparambil Vs Kerala Water Authority) to submit that by no stretch of imagination the petitioner’s service can be treated to be temporary after, he having served the establishment for nearly three decades. He submits that the petitioner was given pay-scale and revised pay-scale as per recommendations of Pay Revision Commission and was also given time bound promotion. He has further contended that while fixing the petitioner’s pay, the B.I.A.D.A. treated him to be holding substantive post. He submits that the Respondents have wrongly treated the petitioner’s service to be temporary. 8. Mr. Lalit Kishore, learned Senior counsel appearing on behalf of the B.I.A.D.A. on the other hand has opposed the relief sought for in the present writ application and has contended that power of the Managing Director to terminate the service of the petitioner in exercise of power under Regulation 1.5 (a) of 2007 (Regulations) is not in dispute. He further contends that since the petitioner’s appointment was on temporary basis on a temporary post, he cannot claim any right over the post. He thirdly submits that the petitioner’s service cannot be treated to have become permanent automatically with the lapse of time, placing reliance upon Supreme Court judgment reported in A.I.R. 1972 S.C. 420 (The Director, Panchayat Raj Uttar Pradesh V. Babu Singh Gaur). 9. From the pleadings and the submissions as noted above, undisputed facts which have emerged are that the petitioner was appointed on temporary basis with pay-scale of a Class-IV employee with pay admissible to an employee holding substantive post of Peon on 26.02.1980. He was granted revised scale, replacement pay scale as admissible to other employees of B.I.A.D.A. from time to time. He was given time bound promotion vide Memo No. 192 dated 24.02.1992. It appears that while fixing the pay of the petitioner with effect from 01.01.1996, he was treated to be holding substantive post. In order to ascertain the nature of the petitioner’s appointment, I had called for the service book of the petitioner and in order to compare his case with the case of Santosh Kumar Sinha, with whom the petitioner claimed parity was also called for. In order to ascertain the nature of the petitioner’s appointment, I had called for the service book of the petitioner and in order to compare his case with the case of Santosh Kumar Sinha, with whom the petitioner claimed parity was also called for. From the service book of the petitioner, I find that there is no mention that temporary appointment of petitioner in the year 1980 was subsequently confirmed or made permanent. However, I find that he was granted revised scale from time to time and with effect from 20.02.1990 and was given first time bound promotion. There would have been no question of granting the petitioner time bound promotion, had he been treated to be a temporary employee under B.I.A.D.A. In my opinion, therefore, to treat the petitioner as temporary employee even after grant of first time bound promotion on completion of ten years of service is not logical. I am of the opinion, in such circumstance, though there is no specific order/noting in the service book granting the petitioner as permanent status, he will have to be treated as such as Respondent B.I.A.D.A. granted him first time bound promotion treating him to be a permanent which has not been modified. Nothing has been brought to my notice that even a temporary employee could be entitled for a time bound promotion. In such circumstance, I am of the view that order of this Court dated 22.05.2007 of Satyendra Kumar Vs. State of Bihar and Ors. (C.W.J.C. No. 6364 of 2005) shall apply in the present case also. It is not the case of Respondents that petitioner?s appointment was illegal or unauthorized in any manner. 10. Secondly, the reason behind issuance of the impugned order has been mentioned in the counter affidavit as petitioner’s unauthorized absence from duty. Though, in contents, it appears to be an order of termination simpliciter as a matter of fact, it is punitive as the reason behind issuance of the said order has been described as petitioner’s unauthorized absence from the duty as would be evident from paragraph No. 10 of the counter affidavit filed on behalf of the Respondents. Said paragraph of the counter affidavit is being quoted herein-below for quick reference:- “10. Said paragraph of the counter affidavit is being quoted herein-below for quick reference:- “10. That in reply to the statement made in paragraph No. 9 of the writ petition it is stated that the service of the petitioner was terminated under the service regulation governing him being the 2007 Service Regulations on the ground of his unauthorized absence from duty, which has also been recorded in the appellate order. The said termination order of the petitioner is also sustainable on the basis of the terms and conditions of his appointment i.e. appointment on purely temporary basis on a temporary post and his service being liable to be terminated at any time without any notice. Thus the petitioner had no right to hold the said temporary post of peon and his termination on the said ground is justified on the said reason.” 11. In such circumstance, the Respondents were required to give the petitioner an opportunity of hearing before passing an order even while exercising power under Regulation 1.5 (a) of 2007 Regulations. 12. In my view, judgment of Supreme Court relied upon by learned Senior counsel appearing on behalf of the B.I.A.D.A. that there is no concept of automatic confirmation of a temporary appointment, will not apply in the present facts and circumstance of the case as in the present case, the petitioner was granted time bound promotion also with effect from 20.02.1990 by Memo No. 192 dated 24.02.1992 as would appear from the service book. The said decision of B.I.A.D.A. to grant him time bound promotion has not been altered nor its validity questioned by any authority under B.I.A.D.A. 13. The impugned orders, therefore, are accordingly quashed. In the fact and circumstance, I direct reinstatement of the petitioner. Since there is no statement in the writ application that the petitioner was not gainfully employed elsewhere nor was engaged in another self-employment during the period he remained out of service, no direction for payment of back-wages can be ordered in view of the law settled on this point. 14. This application is accordingly allowed. 15. The Respondents shall, however, be at liberty to proceed against the petitioner departmentally, if according to them any misconduct is constituted because of his unauthorized absence. 16. Let the service book of the petitioner and that of Mr. Santosh Kumar Sinha be returned to Mr. Piyush Lal, learned counsel for the B.I.A.D.A.