- (1.) D. K. Seth, J. The order dated 12-7-1989 (Annexure-4 to the petition) by which the petitioner's services were ter minated without assigning any reason on the ground that the service was temporary, has been challenged by means of this writ petition.
(2.) DR. R. G. Padia, learned Counsel appearing on behalf of the petitioner con tends that the petitioner having been ap pointed on 4-7-1977 and worked for 12 years ought to have been regularised and should have been treated as in regular ser vice and, therefore, his services cannot be terminated in the manner aforesaid in as much as by reason of the decisions cited by him which will be referred to shortly, hereinafter, the petitioner's services ought to have been regularised and the same cannot be terminated before considera tion for regularisation was undertaken. According to him after three years of ser vice, as has been held by Apex Court in the decision cited by him, the petitioner's ser vices should have been regularised after expiry of three years and, therefore the order terminating the services of the petitioner should be set aside after having been passed after 12 years of service. DR. Padia, learned Counsel for the petitioner also contends that in the counter-affidavit the respondents have made -out that the services of the petitioner was not satisfac tory and that the petitioner's services should be terminated as a measure ol punishment since he does not attend his office regularly and had availed Medica leave for unnecessary long time. Therefon since stigma had been attached it was more necessary to hold inquiry without whicl the services cannot are dispensed with. Learned Counsel for the respon dents, on the other hand relying on the decision cited at the bar, contends that the petitioner's services was never terminated as a measure of punishment or on account of any misconduct. A preliminary inquiry was held so as to find out as to the suitability or desirability of the petitioner's continuance in service on ac count of its being unsatisfactory. No stig ma however has been attached and, there fore, the services being temporary could be terminated without assigning any reasons. It appears from Annexure-CA '9-A to the counter-affidavit, which is a note to the Vice-Chancellor by the Registrar given on 6-9-1989 that after the appointment of the petitioner on 4-7-1977 on ad hoc basis his services were extended for a period of six months at a time successively till 28-2-1981. The particulars whereof have been indicated in the said order. The report consists of certain grounds which indicates that the services of the petitioner was not satisfactory but the same does not indicate any misconduct. It is indicated that the petitioner is not regular in coming to the office and he availed leave without suffi cient cause despite request to improve his quality of work which he had promised. Ultimately, he did not do so. The post in which he was appointed is a temporary post and not against substantive post and his service has not been confirmed. The work of the petitioner was not satisfactory and that three Officers on Special duty under whom he had served, had been suc cessively writing for his transfer and on account of unsatisfactory work. It is also noted that he did not take interest in routine work seriously and despite suffi cient opportunity he did not improve. He appears to be unsuitable for the job. The respondents had never initiated any domestic inquiry against the petitioner. Various other documents disclosed in the counter-affidavit that for one or the other reason the petitioner was asked to clarify the position since he had over-stayed his leave as is clear from Annexure- CA-1 dated 10-5-1978, as well as from An-nexure-CA-2 dated 14-1-1980. He was ab sent without application for which by let ter dated 2-7-1984 the petitioner had asked for pardon, which is Annexure- CA- 3. Overstaying or leave was also men tioned in Annexure-CA-4 dated 15-12-1978. Annexure-CA-5 dated 20-1-1989 is the letter by which the petitioner was sought to be shifted some where else. An-nexure-CA- 6 which is dated 31-12-1978 mentions the name of the petitioner to have connection with the four persons named therein for replacing the answer script which is a grave situation. Annexure-CA-7 also mentions something and asked the petitioner to refrain from repeating the same as indicated in Annexure-CA-7 which is dated 8-6-1989. All these allegations were made in para-9 of the counter- affidavit which has not been specifically dealt with while dealing the said para in para-'4' of the rejoinder-af fidavit. On the other hand it was stated that the same are matter of record and had no nexus with the present controversy. He has also not alleged that he had replied to the letter contained in Annexure-CA-7, neither he had denied the allegations made therein in the rejoinder-affidavit nor he had spoken anything against the con tents of Annexure-CA-6 in the rejoinder-affidavit though in the supplementary af fidavit various other statements have been made but no specific denial to Annexures- 6 and 7 are incorporated.
(3.) THE above facts goes to show that there are reasons supporting the report that the service of the petitioner is unsatis factory, particularly, when no inquiry was contemplated against him and no stigma was attached. THE termination appears to be at termination-simplicitor with in meaning of termination of temporary ser vice. V. B. S. Negi, holding the brief of Mr. M. S. Negi, learned Counsel for the respondents contended relying on the decision in the case of Champaklal Chimanlal Shah v. Union of India and others, AIR 1964 SC 1854, that the preliminary inquiry to find out as to the suitability of retention of temporary Government servant does not attract mis chief of Article 311 (2) of the Constitution. In the said judgment it has been observed that: "10. It is well settled that temporary ser vants are also entitled to the protection of Ar ticle 311 (2) in the same manner as permanent Government servants, if the Government takes action against them by meeting out one the of the three punishments i. e. dismissal, removal or reduction in rank, (see 1958 SCR 828 : AIR 1958 SC 36. But this protection is only available where discharge, removal or reduction in rank is sought to be inflicted byway of punishment and not otherwise. It is also not disputed that the mere use of expressions like 'terminate' or "dis charge" is not conclusive and inspite of the use of such innocuous expressions the Court has to apply the two tests mentioned in Parshotam Lal Dhingra's case, 1958 SCR 828 : AIR 1958 SC 86, namely- (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied it must be held that the servant had been punished. Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducting factor which influences the Govern ment to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the Rules to terminate the service the motive operating on the mind of the Government is wholly irrelevant, it is on these principles which have been laid down is Par shotam Laldhingra 's case, 1958 SCR 828: AIR 1958 SC 36, that we have to decide whether the appellant was entitled to the protection of Ar ticle 311 (2) in this case. (12 ). . . . . a preliminary enquiry is usually held to determine whether aprimafacie case for a formal departmental enquiry is made out and it is very necessary that the two should not be confused. Even where Government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy Government that there is reason to dispense with the services of a tem porary employee or to revert him to his substan tive post; for as we have said already Govern ment does not usually take action of this kind without any reason. Therefore when a prelimi nary enquiry of this nature is held in the case of a temporary employee or a Government servant holding a higher rent temporarily it must not be confused with the regular departmental enquiry (which usually follows such a preliminary en quiry) when the Government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the Government servant. Therefore so far as the preliminary enquiry is concerned there is no question of its being governed by Article 311 (2) for that enquiry is really for the satisfaction of Government to decide whether punitive action should be taken or action should be taken under the contract or the Rules in the case of a tem porary Government servant or a servant holding higher rank temporarily to which he has no right. In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a Government servant in which he may or may not decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held expane, for it is merely for the satisfaction of Govern ment, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government and it is only when the Government decides to hold a regular departmental enquiry for the purposes of inflict ing one of the three major punishments that the Government servant gets the protection of 'ar ticle 311 and all the rights that protection implies as already indicated above. There must there fore be no confusion between the two enquiries and it is only when the Government proceeds to hold a departmental enquiry for the purpose of inflicting on the Government servant one of the three major punishments indicated in Article 311 that the Government servant is entitled to the protection of that Article. That is why this Court emphasised in Parshotam Lal Dhingra case, 1958 SCR 828 : AIR 1958 SC 36 and in Shyam Lal v. State of U. P. (1955) 1 SCR 26 : ALJ 1954 SC 369, that the motive of the induct ing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule is ir relevant. (13 ). . . . . . . . . The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the con tract or the specific service rule (e. g. Rule 5 in this case) would not mean that the termination of service amounted to infliction of punishment of dismissal or removal with in the meaning of Art. 311 (2 ). Whether such termination would amount to dismissal or removal with in the meaning of Article 311 (2) would depend upon facts of each case and the action taken by Government which finally leads to the termina tion of service. ";