- (1.) R. H. Zaidi, J. By means of this petition under Article 226 of the Constitution of India, the petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order of termination of his service dated 29-7-1986 passed by respondent No. 2 and also a prayer for a writ, order or direction in the nature of mandamus restraining the respondent No. 2 from giving effect to the impugned order during the pendency of the writ petition and to restrain from interfering with the functioning of the petitioner as Paricharak in the College has also been made.
(2.) BRIEF and relevant facts of the case giving rise to the present petition are that on an advertisement issued by respondent No. 2, the Principal Phundi Singh Lona, Government Degree College, Jalaun for short 'the College' the petitioner applied for his appointment on the post of Peon in the College. It was on 1-10-1982 the petitioner was appointed as Peon by the respondent No, 2 in the pay scale of Rs. 305- 390 on temporary basis. It is stated that there was an Union of Class IV employees known as U. P Rajya Chaturth Shreni Karmchari Sangh Siksha Vibhag (registered) for short 'the Sangh' petitioner happens to be Regional Secretary of the Sangh and used to perform his duties, which includes placing or grievances of Class IV employees against their exploitation and harassment before the authorities concerned, on account of which he used to an annoyance of the authorities. Jalaun Branch of the Sangh submitted a charter of demands to the District Inspector of Schools and the petitioner prays for fulfilment of the said demands. On account of which respondent No. 2 was furious and became highly displeased with him. Respondent No. 2 was in search of an opportunity to dismiss the petitioner from service on account of his activities as Secretary of the Sangh. The petitioner completed three years and 9 months service till 29-7-1986 and thus became a quasi permanent employee, but respondent No. 2 without affording an opportunity of hearing to the petitioner and without recording any reason dismissed him from service, vide order dated 29-7-1986. The said order, according to the petitioner, was invalid and unenforceable in law. On behalf of respondents No. 1 and 2 a counter-affidavit has been filed, in which it has been stated that the work and conduct of the petitioner, was never satisfactory. After first year of his appointment it is stated that the petitioner was involved in party politics, he is failed to obey the order, there were number of complaints against him, on account of which he has earned bad entry in his character roll. It has also been stated that the petitioner used to propagate false and fabricated allegations against the respondent No. 2, therefore, there was no logic to retain him in service and that his services were rightly terminated as he was not a permanent employee. In paragraph No. 24 of the counter-affidavit it has specifically been stated that the services of the petitioner were terminated for his misconduct. In the rejoinder-affidavit filed by the petitioner the allegations made in the counter- affidavit have been denied and the facts stated in the writ petition have been reiterated and re- affirmed. It has, further, been stated that the alleged bad entries awarded to the petitioner were never communicated to him and in reply of the warnings he has submitted a suitable reply. Learned Counsel appearing for the petitioner vehemently urged that the order of punishment although innocuous on the face of it and the same having been passed in violation of principle of natural justice. As neither any charge-sheet was served upon the petitioner nor any enquiry was conducted into the charges levelled against him, nor he was afforded an opportunity to defend himself, therefore, the same was illegal and inoperative. Learned Counsel for the petitioner has referred to relied upon the decisions of the Apex Court in support of his submissions wherein it has been ruled that even if the order of termination of service is innocuous it is open to the Court to lift the veil and to find the cause of terminating the temporary employment of a Government Servant and in case it is found that the order was actually passed by way of punishment, the same was liable to be set aside.
(3.) ON the other hand, learned Counsel appearing for the contesting respondents supported the validity of the impugned order of termination. It was urge'; that the petitioner was a temporal employee and the order of terminal was passed in the terms and conditions of his, appointment, the same therefore, can-not be said to be an order of punishment. The main question, which is required to be decided in the instant petition is as to whether the impugned order of termination, though, innocuous on the face of it was passed according to the terms and conditions of appointment or by way of punishment. In G. B. Pant Agricultural and Technology University v. Kesno Ram, AIR 1995 SC 718, it was ruled by the Apex Court of the country as under: "it is next contended that in view of the finding given by the District Court as well as by the High Court that the respondent was a temporary employee appointed by the University, the findings of the High Court that the order though innocuous, it is by way of penalty and that, therefore, the order of dismissal without enquiry if violative of Art. 311 (2) of the Constitution is illegal. We find force in the contention. It is settled law that the order though is innocuous, it is open to the Court to lift veil and find the cause for terminating the temporary employment. If it is byway of punishment, then necessarily an enquiry has got to be made in accordance with the rules. Otherwise it is open to the authorities, in terms of the order of appointment or the relevant rules, to terminate the service of a temporary employee without conducting an enquiry. " In view of the aforesaid decisions and in view of the settled law on the point it is open to this Court to look into the surrounding circumstances; under which the impugned order of termination was passed and to find out the cause of termination of service. In the counter-affidavit filed on behalf of the respondents in paragraph I to. 5 it was stated as under: "in reply, however, submitted that the work and conduct of the petitioner has never been satisfactory after first year of his appointment. The petitioner started and created different problems for the institution by involving himself in party politics and started publishing false and fabricated new, being H member of workers Union. It is further relevant to mention here that the appointment of the petitioner was made for the post of peon but on several occasions the petitioner refused to carry out the orders of the Principal which were under the usual course of his duties it is further submitted that there were different complaints of staff members and students and the office against the petitioner for the above said conduct of the petitioner. Several warning were issued by the Principal and accordingly entries were recorded in his service book, in respect of the work and conduct of the petitioner. ";