SUDHIR AGARWAL, J. - (1.) THE contention of the appellant is that the impugned order dated 19.03.1991 whereby her services were terminated is penal in nature inasmuch as she was terminated on account of the allegation constituting misconduct and, therefore, before passing said order she ought to have been given opportunity of hearing which was not afforded to her and the Hon'ble Single Judge has not considered this aspect of the matter and dismissed the writ petition only on the ground that she being a temporary employee has no right to hold the post.
(2.) SRI Pankaj Rai, learned Standing Counsel argued initially that from the averments made in the counter affidavit it appears that the appellant was afforded opportunity to show cause before passing the impugned order and, therefore, by order dated 15.09.2008 he was directed to produce the record showing as to whether the appellant was given opportunity or not. He has received the original record and after perusing the same he himself made the statement at the Bar that from the record it appears that neither any show cause notice was given nor any opportunity was afforded before passing the impugned order of termination. It is well settled that even a temporary employee if sought to be terminated with stigma or the termination order is founded on misconduct casting stigma and is penal in nature, an opportunity before termination is necessary. In State of Punjab Vs. Sukh Raj Bahadur, AIR 1968 SC 1089 the Apex Court after referring to its earlier Constitution Bench decision in Parshotam Lal Dhingra Vs. Union of India, AIR 1958 SC 36 culled out the following proposition to determine as to when an order of termination simplicitor can be said to be founded on misconduct or not: "(1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. (2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. (3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. (4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. (5) If there be a full-scale departmental enquiry envisaged by Article 311 i. e. an Enquiry Officer is appointed, a chargesheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article."
(3.) AGAIN recently in Mathew P. Thomas Vs. Kerala State Civil Supply Corporation Ltd. and others, (2003) 3 SCC 263 the Apex Court said: "From a long line of decisions it appears to us that whether on order of termination is simplicitor or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simplicitor falling in one or the other category, based on misconduct as foundation for passing the order of termination simplicitor or on motive on the ground of unsuitability to continue in service. If the form and language of the so called order of termination simplicitor of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simplicitor or punitive. In cases where the services of a probationer are terminated by an order of termination simplicitor and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the façade of the termination order may be simplicitor, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simplicitor to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service as he is in reality removed from service on the foundation of his misconduct."(Para 11) ;