- (1.) VIRENDRA Kumar, J.
(2.) PETITIONER is seeking the quashing of the order dated 3-10-1979 terminating his services as Peon of Swami Vivekanand Inter College, Mariyahun, in District Jaunpur and for issue of Writ of Mandamus directing the respondents to pay the salary due to the petitioner "during the pendency of the writ petition." Petitioner was appointed as a Peon (a Class IV employee) in the aforesaid College. His services were terminated by the order dated 3-10-1979 passed by the Principal of the College on the ground that the petitioner remained absent from 20-5-1979 and did not join duty thereafter. The petitioner had filed a Civil Suit on 29-7-1979 seeking declaration to this effect that he is continuing in service and for permanent injunction to restrain the Principal from interfering in the discharge of his duties. During the pendency of that suit the order dated 3-10-1979 for termination of his service was passed. The petitioner therefore amended the plaint of the suit to claim the setting aside of the order of termination of his services. A number of issues including that of maintainability, jurisdiction and bar of section 38/41 of the Specific Relief Act were framed in the suit. The issues were decided against the petitioner. The suit was dismissed The lower appellate court upheld the judgment of the trial court and dismissed the appeal on 12-12-1984. Instead of filing the second appeal the petitioner was advised by his counsel that remedy for the petitioner lay in challenging the order by filing a writ petition and not by filing the suit which was rightly dismissed as being not maintainable. Hence the time spent by the petitioner in prosecuting the suit and the appeal is sought, by the petitioner, to be excluded for the matter of this writ petition filed on 26-2-1985. According to the petitioner he was appointed as a Peon in 1973 and was confirmed on the same post. The Principal was annoyed with him and had asked him not to come to the Institution. The order of termination is violative of principles of natural justice, inasmuch as no opportunity was afforded to the petitioner for giving explanation or defence before terminating his services. He denies that any notice from the side of the Principal was served on him or was refused by him prior to the passing of the impugned order of termination. In the absence of any enquiry having been made prior to the termination of the petitioner's service, the order of termination is invalid. Further a month's prior notice or in lieu of it one month's salary was not given to the petitioner.
(3.) COUNTER affidavit has been filed from the side of the Principal of the College, the opposite party No. 2. It is set out in the counter affidavit that the petitioner was a temporary employee and his services could validly be terminated by the impugned order of termination. The petitioner remained absent from duty since 20-5-1979 without permission. His absence continued upto 3-10-1979. He was issued a notice dated 3-6-1979 by the Principal asking him to join duty. He was given another notice dated 20-7-1979 again asking him to join the duty, otherwise disciplinary proceedings could be started against him. Both the notices were refused by the petitioner. Hence a registered letter dated 16-8-1979 was sent to the petitioner asking him to explain within three days from the date of the receipt of the notice the cause of his absence and in case he failed, a new appointment would be made in his place. This notice was refused by the petitioner. The petitioner, despite the notices, did not join duty, nor submit any explanation. He was guilty of dereliction and negligence of duty and gross misconduct. Ultimately the order of termination of his services was passed on 3-10-1979. Thus, there has been no violation of the principles of natural justice. Regulation 36 (1) of the Regulations framed under (U. P. Intermediate Education Act, 1921 no doubt provided for framing charges and making enquiry before the punishment of removal or discharge from service could be imposed, but the same provision did not apply in the case of the petitioner because his case fell under the exception contained in Regulation 36 (2) which provided that in case an employee was absconding, the provisions of Regulation 36 (1) could be dispensed with. In the instant case the petitioner was absconding since 20-5-1979. Further, as there has been undue delay and laches on the part of the petitioner in presenting the writ petition, it is liable to fail on this score. Moreover, in view of the availability of alternative remedy of filing appeal as well as representation against the order of termination, this writ petition deserves to be dismissed. In his rejoinder affidavit the petitioner further asserted that he was not paid salary since the month of June 1979. So he sent a letter dated 18-7-1979 to the Principal but got no reply. Hence he made representation dated 6-8-1979 to the Manager of the institution before the termination order was passed in which he had alleged that manipulations were being made for terminating his services. He filed representations dated 9-10-1979 and 13-10- 1979 to the District Inspector of Schools in the matter. The learned counsel for the petitioner submitted that the representations have not been disposed of.;