- (1.) R. K. Agrawal, J. By means of the present writ petition filed under Article 226/227 of the Constitution of India, the petitioner, Nirmalesh Kumar Tewari, seeks the following reliefs: " (i) to issue writ order or direction in the nature of certiorari quashing the impugned order dated 25-9- 1998 of State Public Service Tribunal, Lucknow, order dated 20-5-1993 of Commandant 32 Bn. P. A. C. Lucknow and order dated 17-8-1993 of Dy. Inspector General P. A. C. Lucknow (North Sector) (Annexure No. 1 to the writ petition and Annexure Nos. 3 and 5 to the claim petition) prepared on 12-10-1998. (ii) to issue any other writ order or direction to which this Hon'ble Court may deem fit and proper in the circumstances of the case. (iii) to award cost of the petition to the petitioner. " Briefly stated that the facts giving rise to the present petition are as follows:
(2.) ACCORDING to the petitioner, he was appointed on 21st July, 1991 on the post of Constable in 32 Bn. P. A. C. Lucknow. For some reason he remained absent from the duty whereupon the Commandant, 32 Bn. District Lucknow, respondent No. 5 sent a notice to the petitioner on 28th April, 1993, which was replied by the petitioner's father on 10th May, 1993 as the petitioner was mentally disturbed. The petitioner's services have been terminated vide order dated 20th May, 1993. He preferred an appeal against the order of termination of his services before the Deputy Inspector General of P. A. C. , respondent No. 4, on 21st July, 1993, which appeal was rejected vide order dated 17th August, 1993. The petitioner thereafter preferred a claim petition before the U. P. Public Services Tribunal, Lucknow, which too has been rejected vide order dated 25th September, 1998. All the three orders are under challenge in the present writ petition on the ground that the order of termination dated 20th May, 1993 was passed by the respondent No. 2 without giving any show-cause notice or opportunity of hearing to the petitioner and, therefore, the principles of natural justice have been violated. We have heard Sri Siddheswari Prasad, learned Senior Counsel, assisted by Sri Sandeep Agrawal on behalf of the petitioner and the learned Standing Counsel appearing for the respondents. Sri Siddheswari Prasad submitted that the petitioner was holding a civil post and the protection guaranteed under Article 311 of the Constitution of India was available to him and it was incumbent upon the respondent No. 4 to hold a proper enquiry before terminating the services, which in the present case has not been done and, therefore, the order of termination is wholly illegal and is liable to be set aside. He further submitted that from the averments made in the counter-affidavit filed by Vijai Bahadur Rai, Assistant Commandant, 32 Bn. P. A. C. on behalf of respondent Nos. 3 to 5, it is clear that services of the petitioner have been terminated on the basis of alleged previous misconduct/unauthorised absence from the duty, which, in fact, has been made by way of punishment and it is not the termination simpliciter and the facts stated in the counter-affidavit which led to the passing of the order, if considered then the order would amount to have been passed by way of punishment violating Article 311 of the Constitution. In support of the aforesaid plea, he has relied upon a decision of the Apex Court in the case of Jarnail Singh & Ors. v. State of Punjab & Ors. , AIR 1986 SC 1626.
(3.) LEARNED Standing Counsel on the other hand submitted that the petitioner was appointed on 27th March, 1991 as a Constable after completing his training. He was given adverse entry in the year 1991 and 1992. He was a temporary employee. He remained absent from duty for 23 days unauthorisedly from 15th June, 1992 for which he was given punishment of 14 days' P. D. He again remained absent unauthorisedly in the year 1993 for two days for which he was given punishment of 5 days' P. D. His father had intimated that the petitioner was having some mental problem for which he was asked to get himself medically examined vide letter dated 20th April, 1993 and on its receipt he absented himself. He was given a show-cause notice and after considering the service record, his services were dispensed with vide order dated 20th May, 1993. As he was a temporary employee, his services have been terminated without holding a regular enquiry as provided under Rule 3 of the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975, hereinafter referred to as "the Rules" and the order of termination is simpliciter and does not cast any stigma. Having heard the learned Counsel for the parties, we find that the petitioner was admittedly a temporary Constable working in 32 Bn. P. A. C. Lucknow. The order dated 20th May, 1993 has been passed under the provisions of the Rules, on the ground that services of the petitioner is no longer required. The pay for the notice period was also offered.;