- (1.) SUNIL Ambwani, J. Heard Dr. R. G. Padia for petitioner and learned standing Counsel for respondents.
(2.) THE petitioner Lal Chand was appointed as Shepherd (Class IV employees) by Project Officer in the office of District Sheep and Wool Development Officer, Allahabad on 14-10-1980. His services were terminated on 29-6-1981. It is alleged in para 3 to the writ petition that the termination order was not implemented and that a fresh order was passed by Deputy Director on 26-9-1981 approving the appointment by the Project Officer dated 14-11-1980. By impugned order dated 31-5-1988 the petitioner's services have been terminated by a simpliciter order under U. P. Temporary Government Servants (Termination of Services) Rules, 1975, after giving him one month's notice. Counsel for petitioner submits that the impugned order is stigmatic and was not passed after giving opportunity to the petitioner. Persons junior to petitioner were retained and that the petitioner was entitled for regularization in terms of the Regularization of Ad hoc Appointments (on Posts Outside the Purview of Public Service Commission) Rules, 1979, and also in terms of Government Order dated 14-12- 1983. In the counter-affidavit of Sri Jang Bahadur Lal, Head Clerk, in the office of Project Officer, Intensive Sheep and Wool Development, Project, Mirzapur, it is stated in paras 4, 5, 6 and 10 as follows: " (4 ). That the contents of paragraph No. 4 of the writ petition are denied. It is stated that the work and conduct of the petitioner had been unsatisfactory throughout. The petitioner had been habitual of absconding from his duties on his sweet will, and availing wilful leave without giving any intimation or obtaining prior sanction. The petitioner absconded from his duties from 18-4-1986 to 6-6-1986 (50 days) and from further 9-6-1986 to 12-8-1986 (65 days), for which he was granted leave without pay. Once the petitioner had absconded from his duties invariably 9 months, from 1-10-1986 to 30-6-1987. He was further posted at Sheep Centre, Sujatpur, District Allahabad where he joined on 30-6-1997. The petitioner absconded in the month of 8/87 (6-8-1987 to 16-8-1987 and 18-8-1987 to 31-8-1987 ). He absconded further constantly for a period of 4 months 20 days from 1-9-1987 to 20-1-1988. He absconded further constantly from 21-2-1988 to 31-5-1988 (3 months 9 days ). Several times, and in several decisions, the petitioner was warned not to abscond from his duties and not to avail wilful leave. But of not avail. (5 ). That, the contents of paragraph No. 5 of the writ petition are denied. In reply it is stated that the termination order dated 31-5-1988 is legal, valied and standings as the petitioner absconded from his duties constantly more that 90 days i. e. from 21-2-1988 to 31-5-1988. (6 ). That the contents of paragraph No. 6 of the writ petition are denied. It is stated that the termination order is legal and not mala fide. The petitioner was temporary. (10 ). That in reply to the contents of paragraph No. 10 of the writ petition are not admitted, it is stated that the work and conduct of the petitioner was quite unsatisfactory.
(3.) IN the rejoinder affidavit, the petitioner has not denied the allegations made in para 4. There is no denial that the petitioner was absent without taking any leave on several occasions in 1986 to 1998. In Mathew P. Thomas v. State of Kerala Civil Supply Corporation Ltd. , 2003 (1) LBESR 1089 (SC) : (2003) 3 SCC 263, the Supreme Court after examining the recent decisions in Dipti Prakash Banerjee v. Satyendra Nath Bosh, National Centre Basic Sciences, Calcutta, (1999) 3 SCC 60 and Pavanendra Narayan Verma v. Sanjay Gandhi, P. G. I. of Medical Sciences, (2002) 1 SCC 526, held as belows: " (11 ). An order of termination simpliciter passed during the period of probation has been generation undying debate. The recent two decisions of this Court in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Pavenendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences after survey of most of earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during the period of probation. The learned Counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case Dipti Prakash Banerjee after referring to various decisions indicated as to when a simple order of termination is to be treated as "founded" on the allegations of misconduct and when complaints could be only as a motive for passing such a simple order of termination. In para 21 of the said judgment a distention is explained, thus: (SCC pp. 71-72 ). " (21 ). If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as `founded' on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of notice and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid".;