B.L.Yadav - (1.) WHETHER the older of termination of the services of the appellant, a probationer, after successful completion of the term of probation was a camouflage for an order of dismissal for misconduct, or was it a simple order of termination without attaching any stigma, and even if it appears an innocuous order of termination, can the court in the ends of fair play and justice lift the veil and find out the real nature of the order and if the innocuous order of termination was found to be an order of dismissal and penal in nature, can it be sustained without following the procedure under Art 311 (2) of the Constitution of India, are the short but significant questions that fall for determination in this second appeal filed by the plaintiff-appellant under Section 100 of the Code of Civil Procedure, 1908 (for short the Code).
(2.) THE facts lie in a narrow compass and they are almost admitted. Plaintiff-appellant had filed a suit for declaration that the order of his termination from service, dated 26-3-76, was illegal, arbitrary, null and void and he continued in service of G. B. Pant University of Agriculture and Technology, Nainital. (for short the University). It was alleged that the plaintiff was appointed in March 1969 as Agriculture Inspector by the Vice-Chancellor of the University on the pay of Rs. 10/- per day, but on account of his good work he was appointed as Assistant Block Superintendent in December, 1972 in the grade of Rs. 200-15-350-20-450 in a permanent capacity and he was allowed four advance increments. Later on his basic salary was fixed at Rs. 260/- per month with effect from 11-12-1972. THE appointment of plaintiff was in substantive capacity and against clear vacancy and after completion of the term as probationer he became permanent. His conduct was satisfactory. As there were some irregularities committed by his immediate superior officers, he has no option to make complaint and this provoked the authorities of the University which made secret enquiries against his conduct consequently his services were terminated arbitrarily by order dated 26-3-1976 by giving one month's salary in lieu of notice, without affording any opportunity of hearing. THE order of termination would appear innocuous order of termination, but it was an order of dismissal, rather removal from service and the same could not have been passed without affording opportunity. THE order was challenged on the ground of being in violation of principles of natural justice and article 311 (2) of the Constitution. The suit was contested by the defendant, the University, stating that the plaintiff was appointed temporarily as Assistant Block Superintendent on 3-11-72 and he joined his duties the same day in the scale of Rs. 200-450, that he was not appointed in substantive capacity or against a permanent post, rather he continued to be a temporary employee till his services were terminated. It was specifically stated in the written statement that the work and conduct of the plaintiff was not found to be satisfactory. The annual increments were given to him in normal course and not on account of his work. He used to remain absent habitually from his duties without any permission or leave application. Once his absence was condoned by regularising the same after giving him a warning but he did not desist in repeating the same in future. He certainly made complaint against Bharat Singh, Block Supt. and on enquiry the same was found to be incorrect. He remained absent since 27-4-75 to 3-9-75, which period was regularised. Again he was absent without any leave application from 11-3-76. Due to his continued absence from duty his services were terminated by letter dated 26-3-76 and he was given a month's salary in lieu of notice as per rules His termination was not by way of punishment and he was not entitled for any relief sought for. The trial court by its judgment and decree dated 24-4-81, decreed the suit. The defendant's first appeal was allowed by the judgment and order dated 8-7-82. The present second appeal has been filed by the plaintiff against that decree.
(3.) LEARNED counsel for the appellant urged that under rules as a probationer he was confirmed and made permanent after completing two years period of probation and the same period could not been extended, hence his termination as a temporary employee giving one month's salary was illegal, and in the alternative it was urged that the order of termination was not a simple order of termination, but it was an order of dismissal and penal in nature with evil consequences and without affording opportunity of hearing before inflicting punishment and in particular without following the procedure under Article 311 (2) of the Constitution, the Impugned order could not have been passed. Reliance was placed on Ram Kishor v. Union of India 1983 ACJ 63 ; R. S. Sial v.. State of Uttar Pradesh, 1974 (1) SLR 827, at 830 ; Sri Om Prakash Goel v. The Himachal Pradesh Tourist Development Corporation Ltd. (JT, 1991 (3) SC 6). Learned counsel for the respondents, on the other hand, urged that even after completion of period of probation the appellant was not confirmed, nor be was a permanent employee, even after completion of probationary period he cannot be deemed to have been confirmed automatically and he was purely temporary employee, he abstained without application for leave beyond the period permissible under relevant rules and on account of continued absence from duty and negligence he was not entitled to the protection under Article 311 (2) of the Constitution. The impugned order was perfectly correct. There was no substantial question of law involved for interference in Second appeal. Reliance was place on State of U. P. v. Kaushal Kishor Shukla, 1991 (1) SCC 691 ; Om Prakash Goel v. H. P. Tourist Development Corporation Ltd. JIT 1991 (3), page 6".;