S.H.A. Raza, J. - (1.) The petitioner who .was employed as Orderly in the month of March, 1987 has challenged the order of termination of his services dated 18-10-1988 mainly on the grounds that he was not given an opportunity to show cause against the order of termination and the order is violative of Articles 14 and 16 of the Constitution of India for the reason that the persons junior to him have been retained in service whose work and conduct were not better than the petitioner. The impugned order contained in Annexure-1 annexed to the petition is not a simple order of termination of his services passed under the U.P. Temporary Government Servant (Termination of Services) Rules, 1975, but the sum has been camouflaged as such.
(2.) In the counter-affidavit it has been averred that the petitioner was appointed as a temporary government servant on 24-2-1987 and he joined as such on 24th February, 1987. It was vehemently denied that his work during the period of service was satisfactory. He was in the habit of absconding from, duty without applying for leave as a result of which the work suffered. On 23-6-87 he was informed that he had been absent from duty with effect from 18-6-87 to 23-6-87 without obtaining proper leave. He was called upon to explain his conduct within three days otherwise action would be taken against him in accordance with Rules. On 20-8-87 he was again informed that he has been in the habit of absconding from duty for a week or ten days without obtaining any permission, it was mentioned in. that letter that in the month of August, 1987 be had been absent from duty with effect from 12-8-87. It was also mentioned that the petitioner had sent a letter in which it was stated that he remained ill during this period but the said latter was not annexed with any medical certification which showed that he had not been ill but wilfully had been avoiding to join, the office. He was called upon to reply within a week as to why he should not be treated absent with effect from 12-8-87 and treating him absent his salary be not deducted. It was further mentioned that if his conduct remained as such then his services would be terminated. On March 18, 1988, an office memo was again issued to the petitioner indicating that on 17-3-88 he had preferred an application mentioning that he was suffering from tooth ache-then why he did not subunit any application. He was called upon to explain as to why he did not submit his application for leave on 14th and preferred an application dated 14-3-88 on 17-3-88. In case no suitable explanation would be forthcoming with three days it would be presumed that he had nothing to say and further action would be taken against him. On 21-3-88 the petitioner submitted an application staling that due to severe tooth ache he could not prefer an application on 14th and prayed that he may be granted leave with effect from 14-3-88 but 17-3-88. He also assured that ho would not repeat such a mistake in future. On 25-3-88 the petitioner was again informed by an office memo that his explanation was not found satisfactory, it was mentioned that even previously he had been committing such mistakes. He was warned that if he would repeat such a mistake, severe action would be taken against him. A copy of the said warning was placed in his personal file. On 6-10-88, Stenographer to the Joint Director Administration (Abhiyojan), U.P. Lucknow addressed a latter to the Deputy Director Abhiyojan, U.P. Lucknow in which it was mentioned that the petitioner had not been presenting himself at his residence to perform his duties with effect from 5-10-88. On the enquiries made from the office it transpired that no application had been received in the office. He had been absenting from 5-10-88 without any information. Upon this letter the Deputy Director (Head Office) made a remark that no- application from the petitioner had been received in the office. On 10-10-88 the Deputy Director Abhiyojan (Head Office), U. P. Lucknow, directed the Office Superintendent to open a file and take necessary action. It has been further averred that in the year 1987 the petitioner was given an adverse 'entry to the effect that he had been in the habit of absenting himself from duty but his integrity was certified. Ultimately, on 18-10-88 his services were terminated.
(3.) The petitioner had averred in his writ petition as well as in the rejoinder affidavit that in the year 1987-88 his work was appreciated and he was given an Award on 15-3-88. In reply to the allegations contained in the counter-affidavit to the effect that the action against him was taken as his conduct after 15-3-88 was not upto the mark, the petitioner submitted in the rejoinder affidavit that the adverse entries were never communicated to him. The letter which was addressed to the Deputy Director by the Stenographer to the Joint Director dated 6-10-88 was not communicated to him. A copy of the adverse entry and warning issued against him were not furnished to him and the same could not be relied upon. It was further submitted that the services of the petitioner were terminated on the charge that he absented from duty but he was not given reasonable opportunity to explain his conduct. The impugned order of termination of his services is actually not a simple order of termination but the same has been camouflaged as an order of removal from service and the same could not have been passed without affording reasonable opportunity to the petitioner.;