Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 61 (ALL)

R. S. TYAGI v. STATE OF U. P.

2018-01-08

SIDDHARTH

body2018
JUDGMENT Hon’ble Siddharth, J.—Heard Sri Rajiv Sharma, learned Counsel for the petitioner and Shri Indra Bhan Singh, learned Standing Counsel for the respondents. 2. The petitioner has filed the above noted writ petition, praying for quashing of the order dated 17.12.1992, passed by the respondent No. 1, whereby, his services on the post of temporarily welfare worker were terminated. 3. The brief facts of the case are that the petitioner was appointed as Kalyan Karta on 10.1.1986 by the respondent No. 1, Director, Solders’ Welfare and Rehabilitation, U.P. Sainik Bhavan, Lucknow, under the respondent No. 2, District Solders’ Welfare and Rehabilitation Officer, Muzaffarnagar. The appointment of the petitioner was temporary and the period of probation was 2 years. It was further provided that after completing 2 years of probation his services, he would be temporarily appointed on the aforesaid post. His appointment was in the pay scale and the other allowances payable to the temporary employees were payable to him. The post held by the petitioner was made permanent by the order dated 1.5.1990 of the State Government and the petitioner continued to work on the same and the respondent No. 2 recommended his promotion. However by the impugned order dated 17.12.92, his services were terminated relying upon the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 with one month notice and pay. 4. The petitioner filed the above noted writ petition challenging his termination order and the operation of the impugned termination order dated 17.12.1992 was stayed by this Court on 25.2.1993. 5. The petitioner has amended the writ petition and has brought on record the fact that he has retired on 31.7.2005 and his entire post retirement dues have been withheld by the respondent No. 1 because of the pendency of the writ petition. 6. The respondents filed their Counter-affidavit dated 25.3.2004 stating that the petitioner had an alternative remedy of approaching the U.P. Public Service Tribunal, Lucknow against the termination order dated 17.12.1992, instead of filing this writ petition. The services of the petitioner were rightly terminated under the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. The petitioner’s services were terminated because he sold wooden logs of trees of about Rs. The services of the petitioner were rightly terminated under the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. The petitioner’s services were terminated because he sold wooden logs of trees of about Rs. 2 lacs without authority by the letter dated 15.10.1992, the District Magistrate has recommended termination of services of the petitioner for being involved in theft and sale of woods of public trees in collusion with 2 employees. 7. The petitioner has filed his Rejoinder-affidavit stating that the respondents have made false averments in the Counter-affidavit. 8. The learned Counsel for the petitioner has argued that as per the terms of appointment in the appointment letter dated 10.2.1986, on record, it was specifically provided that in case, the petitioner successfully completes the two years period of probation, he will be temporarily appointed on his post and shall be treated as temporary employee of the State Government in all respects. He has further argued that by the Government Order dated 10.5.1990, all the temporary posts in the District Solders’ Welfare & Rehabilitation Offices were made permanent w.e.f., 1.5.1990 and therefore, the temporary post held by the petitioner became permanent and his appointment also became permanent on the permanent post. The learned Counsel for the petitioner has further argued that as per Rule-1(3) of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975, the rule applies to such employees who do not hold a lien on permanent post under the Government of U.P. In the present case, the petitioner was holding a lien on the permanent post after the post became permanent w.e.f., 1.5.1990, as per the Government Order dated 10.5.1990. The final submission of the Counsel for the petitioner is that the services of the petitioner were not terminated on the ground of being not required but on the basis of the allegation of misconduct of selling woods of public trees as admitted in the Counter-affidavit. Instead of making enquiry regarding the allegations, his services have been terminated taking recourse to the provisions of U.P. Temporary Government Servants (Termination of Service) Rules, 1975. 9. The learned Standing Counsel has argued that the petitioner was only a temporary Government Servant and his services were never confirmed on the post. The letter of appointment only provided that after completion of 2 years probation period, the petitioner shall be deemed appointed temporarily on the post. 9. The learned Standing Counsel has argued that the petitioner was only a temporary Government Servant and his services were never confirmed on the post. The letter of appointment only provided that after completion of 2 years probation period, the petitioner shall be deemed appointed temporarily on the post. Even after the post held by the petitioner being made permanent, the services of the petitioner, thereon were never confirmed and made permanent and therefore, his argument that as per Rule-1(3) of the Rules aforesaid, his termination could not have been done because he was holding a lien on the permanent post is misconceived. He has argued that ‘’lien’ connotes the Civil right of Government Servant to hold the post substantively to which he is appointed. 10. In M.P. Tiwari v. State of India, 1974 All LJ 427, the Allahabad High Court taking into consideration the decision of the Suprme Court in Purshottam Lal Dhingra v. Union of India, AIR 1958 SC 36 , held that “a person can be said to have acquired lien on a post only when he has been confirmed and made permanent on that post.” 11. In Triveni Shankar Saxena v. State of U.P. and others, AIR 1992 SC 496 , dealing with the term ‘’Lien elaborately, the Supreme Court has quoted its meaning from various Dictionaries as under : “The word ‘’lien’ originally means ‘’binding’ from the latin ligament. Its lexical meaning in ‘’ right’ to retain. The word’lien’ is now variously described and used under different cantext such as ‘’contractual lien’, ‘’equitable lien’, ‘’specific lien’, ‘’general lien’ ‘’partners lien’,etc., etc. In Halsbury’s Laws of England, Fourth Edition, Volume 28 at Page 221, para 502, it is stated, “In is primary or legal sense’ lien’ means a right at common law in one man to retain that which is rightfully and continuously in his possessing belonging to another until the present and accrued claim are satisfied.” 12. Therefore, whether a person has a lien, depends upon the fact whether he has been appointed in accordance with law in substantive capacity and has been made permanent or confirmed on the said post. 13. Therefore, whether a person has a lien, depends upon the fact whether he has been appointed in accordance with law in substantive capacity and has been made permanent or confirmed on the said post. 13. It has been further pointed out by the learned Standing Counsel that from the very definition of ‘’temporary service’ given in Rule-2 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975, makes it clear that “officiating service on a temporary post, or officiating service on a permanent post” mean temporary service only. 14. He has further argued that in the termination order there is no stigma cast on the service of the petitioner and what has been stated in the Counter-affidavit is regarding the fact finding enquiry by the District Magistrate to satisfy himself, whether to confirm the petitioner in service or not and only on the basis of the facts found in such enquiry, the petitioner does not gets any right of opportunity of hearing by means of a full fledged departmental enquiry. If a temporary Government servant gets such protection then the different between a confirmed and temporary employee will come to an end. 15. After hearing the rival submissions, it is clear that the petitioner was appointed temporarily, he completed 2 years of probation period and thereafter, as per the terms of appointment, his appointment became an appointment on temporary post. Thereafter, the temporary post was made permanent and the petitioner continued to work as temporary employee on the permanent post. No order of confirmation/regularization of the services of the petitioner was passed by the respondent No. 1 and his services got terminated under the provisions of U.P. Temporary Government Servants (Termination of Service) Rules, 1975. 16. In State of U.P. and others v. Kaushal Kishore Shukla, (1991) 1 SCC 691 , the Apex Court has categorically held as under : “Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable o be terminated in accordance with the relevant service rules and the terms of contract of service” 17. In a case like the instant, the Court has to be satisfied about the legally justiciable right of the employee which has been infringed, for which he could resort to the discretionary relief under Article 226 of the Constitution of India. In a case like the instant, the Court has to be satisfied about the legally justiciable right of the employee which has been infringed, for which he could resort to the discretionary relief under Article 226 of the Constitution of India. The Supreme Court in Purshottam Lal Dhingra v. Union of India, AIR 1958 SC 36 , has held that “ A person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier and further held that “ a Government Servant holding a post temporarily does not have any right to hold the said post.” 18. A temporary employee has no right to hold the post and his services are liable to be terminated without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulations the terms and conditions of temporary servants. Similarly, in R.K. Misra v. U.P. State Handloom Corporation, AIR 1987 SC 2408 ; Triveni Shanker Saxena v. State of U.P. and others, AIR 1992 SC 496 , Commissioner of Food & Civil Supplies v. Prakash Chandra Saxena, (1994) 5 SCC 180 , Madhya Pradesh Hast Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain and another, (1995) 1 SCC 638 and Kaushal Kishore Shukla (supra), the Apex Court has categorically held that incumbent to a post who has been given appointment on temporary basis, termination without notice, has no right to hold the post and he is not entitled for any opportunity of hearing before his services are dispensed with as his termination does not amount to forfeiture of any legal right. In Ravi S. Naik v. Union of India, AIR 1974 SC 1558, the Apex Court held that in such cases, even principles of natural justice are not attracted. 19. However, in Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar, (2008) 2 SCC 479 : 2008 AIR SCW 1190, the Apex Court held that if after holding preliminary inquiry (behind the back of the probation), his services have been terminated by an innocuous order, as the result of inquiry, which was the foundation, the termination is pre-emptive. Hence liable to be set aside. 20. Hence liable to be set aside. 20. Thus, the law can be summarized that where the employer assessed the suitability of any temporary employee/probationer after holding the preliminary inquiry behind his back, the termination is based on the foundation and, therefore, the order is punitive and thus bad. In that case termination by holding regular inquiry is required. However, in a case where employer makes up his mind get rid of the employee merely on allegations without trying to find out the truth of the same that can merely be a motive for removal, and as the termination is not based on the foundation, it cannot be held to be punitive in nature. The language used in the order of termination may be very innocuous and apparently the order may be an order of termination simpliciter but the Court can find out the real nature of the order after examining the entire records placed before it and in case it comes to the conclusion that there had been some foundation for passing the termination order and the same had been passed in violation of the mandate of Article 311 of the Constitution of India, the order is liable to be quashed. 21. In the counter-affidavit filed by the respondents, the copy of letter dated 15.10.1992 sent by the District Magistrate, Muzaffarnagar to the respondent No. 3 has been annexed by the respondents, wherein it has been clearly stated that a confidential inquiry was ordered against the petitioner on 24.6.1992. The Chief Development Officer conducted an inquiry and submitted his report to the District Magistrate on 24.8.1992 stating that illegal felling of the trees has been done by the petitioner and two other employees namely, Rampal and Lajja Ram Nagar, junior clerks and also both of them are responsible for the misconduct. In the letter dated 15.10.1992, the District Magistrate, Muzaffarnagar has directed that all the three employees found guilty of misconduct of the aforesaid report submitted by the Chief Development Officer are required to be removed immediately. He further ordered that since the petitioner is a temporary employee, his services should be terminated while the two other employees are permanent, therefore, they should be transferred and thereafter suspended from service. 22. He further ordered that since the petitioner is a temporary employee, his services should be terminated while the two other employees are permanent, therefore, they should be transferred and thereafter suspended from service. 22. In view of the above, the petitioner was required to be given an opportunity of hearing by the respondents to explain his conduct and only thereafter, the order of termination should have been passed against him. 23. Therefore, it is clear that an inquiry was conducted by the District Magistrate, Muzaffarnagar behind the back of the petitioner and on his recommendation, the services of the petitioner were terminated by the innocuous order on its face but the order was punitive and based on the material collected by the District Magistrate, Muzaffarnagar through confidential inquiry. Therefore, in view of the law settled in the case of Nehru Yuva Kendra (Supra), the termination order dated 17.12.1992 passed by the respondent No. 1 is, hereby, quashed. The petitioner has retired from service. His post retrial dues shall be released within a period of three months from the date of production of certified copy of this order, since as per the judgment of the Apex Court in the case of Yashwant Hari Katakkar v. Union of India and others, (1996) 7 SCC 113 ; judgments of this Court in case of Ram Pratap Shukla v. State of U.P. and others, 2006 (3) AWC 2909 and Dr. Hari Shanker Ashopa v. State of U.P., 1989 ACJ 337, even temporary/quasi permanent service entitles a retired employee to pension. 24. The writ petition is allowed. No orders as to costs.