- (1.) R. B. Misra, J. I have heard learned Counsel for the parties. In this petition prayer has been made for quashing the impugned order dated 21-10-1987 passed by Prescribed Authority/district Magistrate. Further prayer has been made to direct the payment of amount paid to the petitioner in respect of cost of repairs of Government vehicle and to treat the petitioner in continuous service. It appears that the petitioner was appointed by District Magistrate by an order dated 24-3-84 absolutely temporarily on ad-hoc basis. Later on, he was selected through Departmental Selection Committee and he was appointed as Class III employee attached to the District Flood Control Room in Varanasi from 6 a. m. to 12 p. m. The petitioner was in habit of making frequent absence. In spite of oral warnings, he attended the office on 28-9-87 at 10. 30 a. m. instead of 8 a. m. . Again he absented from 2 p. m. whereas he was allotted duties upto 5 p. m. On inquiry petitioner became furious and threatened to beat the scarcity clerk of Flood Division in presence of several other peons on duty. Such incidence was acknowledge and watched by several persons including Deputy Collector, Sri R. A. Saxena, who himself had witnessed the misbehaviuor of petitioner. Since the duties of Flood Control Room were of urgent nature and the service of petitioner was purely temporary, hence his service was terminated by giving one month's pay plus allowances in lieu of one month notice thereof as per instructions contained in U. P. Temporary Government Servant (Termination of Services) Rules, 1975 (in short called "rules 1975" hereinafter ). According to the petitioner, the termination of service on 21-10-1987 by an order simplicitor cannot be made in view of the `rules 1975' as the same was not a simple order but by way of stigma, having been passed without notice or show cause and without and inquiry and without affording opportunity of hearing in consonance to the principle of natural justice. According to the petitioner for the allegations of absence and not doing satisfactory service an appropriate disciplinary inquiry could have been made before terminating the service of the petitioner. According to the learned counsel for the petitioner, in view of 2001 SC-SLR 784, A. P. State Federation of Co-operation Spinning Mills Ltd. and another v. P. V. Swaminathan, Supreme Court has set aside the order of termination, which was passed on the basis of letter of Commissioner indicating misconduct of the respondent.
(2.) ACCORDING to the learned counsel for the petitioner in view of 1999 SC-SLR 516, Dipti Prakash Banerjee v. Sivendra Nath Bose National Centre for Basic Sciences, Calcutta and others, where the service of probationer was found not satisfactory, the termination of the service on the ground of misconduct was said to be stigmatic even if the word misconduct was not incorporated in the termination order and the termination of writ petitioner was said to be illegal. In view of (2000) 5 SCC 152, Chandra Prakash Shahi v. State of U. P. and others, the termination of writ petitioner was found to be punitive and said to have been made illegally as the finding of preliminary inquiry to assess the misconduct and suitability was the foundation and not the motive. On the other hand, according to the respondents, petitioner was appointed temporarily on ad-hoc basis and as such has no right to the post and his service is liable to be terminated without assigning any reason under statutory provisions and rightly so the service of petitioner was terminated under 'rules 1975' in terms of conditions of appointment as the conduct and functioning of the petitioner was not upto the mark as such he was not found suitable to be retained in service. Therefore, by an order simplicitor the service of petitioner was terminated for absence from duty and threatening to beat scarcity clerk was motive and not the foundation. No notice or show cause or opportunity of hearing was necessary to be given while terminating the service of petitioner under Rules 1975'. According to the respondents, the termination order is legal, as the same has been passed in accordance with 'rules 1975'. It was observed in (1991) 1 S. C. C. 691, State of Uttar Pradesh and another v. Kaushal Kishore Shukla, as below: " (1) The principle of `last come first go' is applicable to a case where on account of reduction of work or shrinkage of cadre retrenchment takes place and the services of employees are terminated on account of retrenchment. In the event of retrenchment the principle of `last come first go' is applicable under which senior in service is retained while the junior's services are terminated. But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with terms and conditions of his service. If out of several temporary employees working in a department a senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service. Such a procedure does not violate principle of equality, enshrined under Articles 14 and 16. If a junior employee is hard working, efficient and honest his services could not be terminated with a view to accommodate the senior employee even though he is found unsuitable for the service if this principle is not accepted there would be discrimination and the order of termination of a junior employee would be unreasonable and discriminatory. On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in services. The view taken by the High Court is not sustainable in law. " (Para 5) " (2) A temporary Government servant has no right to hold the post. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant. If the services of a temporary Government servant is terminated in accordance with the terms and conditions of service, it will not visit him with any evil consequences. If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated no exception can be taken to such an order of termination. Before terminating the services of a temporary servant or reverting the person officiating in a higher post to his substantive post, the Government may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating Government servant. Such an inquiry does not change the nature of the order of the termination or reversion. If, however, it is decided to take punitive action the competent authority may hold a formal inquiry by framing charges and giving opportunity to the Government servant in accordance with Article 311 (2) which is applicable to temporary Governments also. " (Paras 7,6 and 10)
(3.) THE Supreme Court in (1999) 2 S. C. C. 2i, Radhey Shyam Gupta v. U. P. State Agro Industries Corporation Ltd. and another, has observed as below: "the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. THE reason why they are the motive is that assessment is not done with the object of finding out any misconduct on the part of the officer. It is done only with a view to decide whether he is to be retained or continued in service. THE position is not different even if a preliminary enquiry is held because the purpose of preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. THE purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed. If at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. THE departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. THE employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. THE above are all examples where the allegations whose truth has not been found, and were merely the motive. (Para 33) But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be volatile of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. THEse are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee-even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases. " (Para 34) The Supreme Court in case of Chandra Prakash Shahi (supra) has occasion to test the applicability of motive or foundation behind termination classifying termination as simplicitor or punitive and the Supreme Court has indicated the real test when the termination of writ petitioners were proceeded by preliminary enquiry and termination motivated by the writ petitioners to find out unsuitability was held to be valid. However, if for allegations of serious misconduct for which preliminary enquiry was conducted behind his back to ascertain the truth and then termination is brought about, such termination, having regard to other circumstances of a case, has to be taken as founded on misconduct and therefore treated to be punitive. On the other hand in regard to termination of a probationer, it has to be seen whether enquiry was for the purpose of determining his suitability for retention in service/confirmation or for the purpose of finding out the truth in allegations against the employee if the enquiry is to only finding out suitability the order of termination shall be simplicitor and in case finding out the truth in allegations against the employee the termination shall be founded on misconduct.;