- (1.) M. C. Agarwal, J. By this petition under Article 226 of the Consti tution of, India the petitioner challenges an order dated 22nd April, 1982 by which his service as a temporary peon in the Sales Tax Office at Varanasi were terminated and the order dated 9th November, 1985 passed by the U. P. Services Tribunal whereby it dismissed the petitioner's claim petition challenging the said termination.
(2.) I have heard the learned counsel for the petitioner and the learned Standing Counsel. The petitioner's case is that he was appointed as Class-IV employee in the office of the Sales Tax Officer by an order, copy of which is Annexure-1 to the writ petition and he joined the said post on 6th February, 1978 and continued to work to the satisfaction of all concerned. The Sales Tax Officer, 1st Batch, Naubatpur, Varanasi issued a show cause notice to the petitioner on 17-2-1982 requiring the petitioner to show cause as to how he permitted two vehicles to pass without proper gate pass. The petitioner submitted a detailed reply. No further enquiry was held but by order dated 22-4-1982 the petitioner's services had been terminated. The petitioner filed a claim petition before the U. P. Public Service Tribunal No. 4, Lucknow being Claim Petition No. 191/f-IV of 1982. The respon dents filed a written statement contending that no explanation was called from the petitioner. The claim petition was eventually dismissed. It is claimed that the order of the Tribunal is erroneous inasmuch as it has overlooked the fact that the petitioner was served with a show cause notice and the enquiry was not proceeded further by the respondents. According to the petitioner, the show cause notice dated 17-2- 1982, copy of which has been annexed as Annexure '2' to the writ petition clearly showed that the disciplinary proceedings were initiated against the petitioner and the pro ceedings were not completed in accordance with law. According to the petitioner, his services have been terminated by way of punishment. It is contended that the petitioner's services stood regularised in accordance with the provisions of U. P. Regulation of Ad Hoc Appointments Rules, 1979. It is also contended that the persons who were junior to the petitioner and whose names have been mentioned in paragraph 23 of the petition are still functioning in the department. The respondents i. e. State of U. P. and the Sales Tax Officer did not file any counter affidavit in spite of several oppor tunities having been granted. The appointment letter issued to the petitioner, copy of which is Annexure T to the writ petition shows that the petitioner was appointed on ad hoc basis and his services were terminable at any time without prior notice. The petitioner was neither regularised nor confirmed, therefore, continued as an ad hoc employee. The document filed by the petitioner show that there was an allegation against him that in January, 1982 when he was posted at Naubatpur, Check Post, the petitioner allowed two vehicles to go away without proper gate pass. In the explanation which is Annexure '3' to the writ petition, he denied this allegation. The order of termination shows that it does not cast any stigma on the petitioner and it is an order of termination simpliciter. Learned counsel for the petitioner contended that since there was an allegation of misconduct against the petitioner a proper disciplinary enquiry should have been launched against the petitioner and he should have been punished after his guilt was established. Reliance is placed on the Manager, Government Branch Press v. D. B. Belliappa, AIR 1979 SC 429 in which it was held that where the services of a temporary Government servant were terminated without any reason while some other employees junior to him were retained the termination would be arbitrary and violative of Article 1. 6. However, if the services of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a like reason which marks him off a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article 16 This authority does not help the petitioner because according to his own showing there were allegations of misconduct against him and, therefore, it cannot be said that the termination of his services is arbitrary. Reliance was also placed on Gujarat Steel Tubes Ltd. v. Its Mazdoor Sahha, AIR 1980 SC 18 ?6 That was a case of an industrial works and on the basis of the model standing orders, it was held that the form of the order of termination or the language in which it is couched is not conclusive. The Court will lift the veil to see the true nature of the order. It was observed that a termination effected because the matter is satisfied of the misconduct and the desirability of terminating the service of the delinquent servant is a dismissal, even if he had the right in law to terminate with an innocent order under the Standing Order or otherwise. The principles laid down in this case may not be appropriate to apply to the case of a Government servant.
(3.) IN Ravindra Kumar v. U. P. State Handloom Corporation AIR 1987 SC 2408, it was explained that if the delinquency of the officer in temporary service is taken as an operative method in terminating the service, the order is not considered as punitive while if the order of termination is founded on it the termination is considered to be a punitive action. This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis. It was further observed that since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary and merely because the appropriate authority proceeded to make assessment and leave record of its view, the same would not be available to be utilised to make an order of termination following such assessment punitive in character. There is no justification in the contention of the petitioner that once such an assesment is recorded the order of termination made soon thereafter must take punitive character. IN Commdandore Commanding v. V. N. Raj an, AIR 1981 SC 965 it was held that where the decision to terminate the services of the servant had been taken on the highest level on the ground of unsuitability of the servant in relation to the post held by him and it was not by way of punishment no stigma was attached to him by reason of the termination of a servant, the termination cannot be said to be violative for non-observance of Article 311 (2 ). IN Triveni Shanker Saxena v. State of U. P. , AIR 1992 SC 496 a temporary employee was allowed to work for 18 years despite adverse entries, yet the termination of his service was upheld. In the present case, admittedly, the petitioner was appointed on an ad hoc basis and his services have been terminated by an order which does not cast any stigma on him and does not disqualify him from future employment. The mere fact that there was ac allegation of misconduct against him and his explanation was called would not make the termination punitive in character. An employer particularly a Government department has to satisfy itself about the fairness of the proposed termination and may for that purpose call for an explanation from the employee about some alle gation of misconduct. If the employer does not have any material to satisfy itself about the unsuitability of the employee, the termination may be branded as arbitrary and violative of Articles 14 and 16. The basic law of master and servant under which a master can dispense with the service of the servant at any time and even without any cause does not apply to Government servants and it is settled law that even a temporary Government servant cannot be terminated arbitrarily. Therefore, issue of show cause notice to the petitioner and calling for his explanation was a mere domestic exercise intended to assess the suitability of the petitioner for further continuance in service and it was not necessary that a full-fledged depart mental enquiry may be held to achieve his removal and dismissal from service. The petitioner was a temporary Government servant and his services could be terminated if he was found unsuitable, as was the situation in the present case.;