Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH AND ANR.
Vs.
RESPONDENT:
KAUSHAL KISHORE SHUKLA
DATE OF JUDGMENT11/01/1991
BENCH:
SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
OJHA, N.D. (J)
SAWANT, P.B.
CITATION:
1991 SCR (1) 29 1991 SCC (1) 691
JT 1991 (1) 108 1991 SCALE (1)15
ACT:
Civil Service--Assistant Auditor--Ad hoc and temporary
employee--Holding of preliminary inquiry--Does not affect
the nature of the termination order.
HEADNOTE:
The respondent was appointed on 18.2.1977 as an
Assistant Auditor under the Local Funds Audit Examiner of
State of U.P. on ad hoc temporary basis for the term fixed
in the order of his appointment and his services were liable
to be terminated at any time without assigning any reason.
After his initial appointment, his services were extended
from time to time till 28.2.1981. He was awarded an adverse
entry in his character roll for the year 1977-78 both
regarding his conduct as also his work. The respondent
alongwith one Rajendra Prasad Pandey, another Sub-Auditor,
were deputed to audit the accounts of Raja Raghbar Dayal
Inter College, Sitapur in respect of the year 1979-80. It
is alleged that while auditing the account, they acted in
excess of their authority in as much as they audited the
’Boys Fund Accounts’, issued audit note and also irregularly
demanded and collected Rs. 2,000 as audit fee, and issued
receipt under their signature. On complaint a preliminary
enquiry was held and the allegations were found to be
correct. After the preliminary inquiry report, the
respondent was relieved from his duties from Sitapur and
directed to join his duty at Allahabad. Whereupon the
respondent proceeded on leave and did not join his duty at
Allahabad. The respondent’s services were therefore
terminated by order dated 23.9.1980 and by another order
services of Pandey were also terminated. Both of them filed
writ petitions in the High Court contending that their
termination orders were illegal having been passed in
violation of Article 311 of the Constitution. Whereas the
writ petition filed by Pandey was dismissed, the one filed
by the respondent was allowed. The High Court held that
since juniors to the respondent were retained in service
while the respondent’s services were terminated, the order
of termination was discriminatory in nature. The High Court
further held that the order of termination was founded on an
adverse entry awarded to the respondent hence it was not in
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good faith; the punishment awarded to the respondent was not
proportionate to the alleged offence. Against the -
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said order, the State of U.P. filed a appeal after obtaining
special leave. The question involved for consideration is
whether the order terminating the services of the respondent
is vitiated in law?
Allowing the appeal, this Court,
HELD: Holding of preliminary inquiry does not affect
the nature of the termination order. [42C)
In the instant case the respondent was a temporary
Government Servant and there was adverse regarding his work
which was reflected in the adverse remarks made for the year
1977-78. The competent authority held a preliminary inquiry
in regard to the allegations of improper conduct in carrying
out unauthorised audit of Boys Fund of educational
institution. On result of the preliminary inquiry no
charges were framed against the respondent, no officer was
appointed for holding the departmental inquiry instead the
competent authority chose to terminate the respondent’s
services in exercise of its powers under the terms of
contract a well as under the relevant rules applicable to a
temporary Government servant. [42A-C]
The principle ’last come first go’ is applicable to a
case where on account of reduction of work or shrinkage of
cadre, retrenchment takes place and the services of
employees are terminated on account of retrenchment. But
this principle is not applicable to a case where the
services of a temporary employee are terminated on the
assessment of his work and suitability in accordance with
term and conditions of his service. On the admitted set of
facts, the order of termination in the instant case, could
not be rendered illegal or unjustified on the ground of
juniors being retained in service. The view taken by the
High Court is not sustainable in law. [33D-H]
Appeal allowed, High Court order set aside as it
interfered with order of termination in a casual manner.
[42D]
Parshotam Lal Dhingra v. Union of India. [1958] S.C.R.
828; The State of Orissa & Anr. v. Ram Narayan Das, [1961] 1
S.C.R. 606; R.C. Lacy v. The State of Bihar & Ors., C.A.No
590/62 decided on 23.10.1963; Champaklal Chimanlal Shah v.
The Union of India, [1964] AIR S.C.449; A.G. Benjamin v.
Union of India, C.A. No. 1341/66 decided on 13.12.1966;
Shamsher Singh & Anr. v. State of Punjab, [1975] 1 S.C.R.
814; State of Punjab & Anr. v. Shri Sukh Raj Bahadur, [1968]
3 S.C.R.
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234; R.K. Misra v. U.P. State Handloom Corporation, [1988] 1
S.C.R. 501, referred to.
Nepal Singh v. State of U.P. & Ors., [1985] 1 S.C.C.
56; Ishwar Chand Jain v. High Court of Punjab & Haryana &
Anr., [1988] 3 S.C.C. 370 distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal (C) No. 137
of 1991.
From the Judgment and Order dated 20.2.1989 of the
Allahabad High Court in W.P. No. 3096 of 1980.
Yogeshwar Prasad and Ms. Shoba Dixit for the Appellants.
R.B. Datar, R.K. Khanna and Surya Kant for the
Respondent.
The Judgment of the Court was delivered by
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SINGH, J. Leave granted.
This appeal is directed against the judgment of the
Allahabad High Court (Lucknow Bench) setting aside the order
dated 23.9.1980 terminating the respondent’s services.
The sole question which falls for consideration in this
appeal is whether the order dated 23.9.1980 terminating the
respondent’s services, who was admittedly an ad-hoc and
temporary employee is vitiated in law. The High Court has
held that since juniors to the respondent were retained in
service while the respondent’s services were terminated, the
order of termination was discriminatory in nature. It
further held that since the order of termination was founded
on an adverse entry awarded to the respondent his character
roll without giving him any opportunity on the ground that
he was not suitable, the order "cannot be said to be a
decision given in good faith." The High Court further
observed: "Even if any punishment was to be awarded, it
should have been proportionate to the alleged offence , if
any." On these findings the High Court held that the order
of termination suffered from apparent error of law, it
accordingly allowed the respondent’s writ petition and
quashed the order of termination.
The factual matrix of the case is in a short compass.
The respon-
32
dent, was appointed on ad-hoc basis on 18.2.1977 as an
Assistant Auditor under the Local Funds Audit Examinater of
the State of Uttar Pradesh, for a fixed period ending on
31.8.1977. In December, 1977 the respondent was again
appointed on ad-hoc basis for a period ending on 28.2.1978.
Since the regular appointment could not be made in time, the
respondent’s services were extended from time to time. The
last extension was granted on 21.1.1980 and the extended
period of service was to expire on 28.2.1981. The terms and
conditions of respondent’s service as contained in the order
of appointment stated that the appointment was ad-hoc,
purely temporary for the term fixed in the order and his
services were liable to be terminated at any time without
assigning any reason. He was awarded an adverse entry in
his character roll for the year 1977-78. The entry stated
that the respondent’s work was poor and he should work hard
and take interest in the work. The respondent made
representation against the entry but the same was rejected.
The respondent and Rajendra Prasad Pandey another Sub-
Auditor both were deputed to audit the accounts of Raja
Raghunbar Dayal Inter College, Sitapur for the year 1979-80.
While carrying on the Audit the respondent and Rajendra
Prasad Pandey both are alleged to have acted in excess of
their authority in auditing the "Boys Fund Accounts" of that
College for the year 1978-79 on their own accord without any
authority for the same. They issued audit note under their
own signatures and also irregularly demanded a high amount
of Rs. 13,250.70 as audit fee and collected an amount of RS.
2,000 as audit fee for which they issued receipts under
their own signatures. On receipt of complaint a preliminary
inquiry was held that it was found that the allegations
against the respondent and Rajendra Prasad Pandey were
correct and both of them had acted beyond their authority
and collected a sum of Rs. 2,000 as audit fee for the audit
of the Boys Fund Accounts, although the Boys Fund of the
Institution did not fall within the purview of audit of the
Local Funds Audit and no fee was chargeable for the audit of
such Fund. After the preliminary inquiry report, the
respondent was relieved from his duties from Sitapur and
directed to join his duties at Allahabad, but the respondent
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proceeded on leave and did not join his duties at Allahabad.
Ultimately, the respondent’s services were terminated by the
order dated 32.9.1980 and on the same day by another order,
service of Rajendra Prasad Pandey were also terminated.
Both the aggrieved persons filed writ petitions in the High
Court at Lucknow Bench under Article 226 of the Constitution
contending that their termination orders were illegal,
having been passed in violation of Article 311 of the
Constitution. The writ petition filed by Rajendra prasad
pandey was dismissed but the respondent’s writ petition was
allowed by a
33
Division Bench of the High Court on the ground as noted
earlier.
There is no dispute that the respondent was an ad-hoc
and temporary employees and the terms and conditions of his
employment were regulated by the U.P. Temporary Government
Servant (Termination of Services0 Rules, 1975. The
contract of service as contained in the appointment letter
also stipulated the terms and conditions of the respondent’s
employment that his services were liable to be terminated at
any time without assigning any reason or compensation. In
the counter-affidavit filed before the High Court the order
of termination was defended on the ground that the
respondent’s work and conduct were not satisfactory and he
was unsuitable for the service, therefore his services were
terminated. To support that contention the appellant placed
reliance on the adverse entry awarded to the respondent in
the year 1977-78 and also on the allegations made against
him with raged to the audit of the Boys Fund of Raja
Raghubar Dayal Inter College. The High Court held that
since junior persons to the respondent in service were
retained, the order of termination was rendered illegal. In
our opinion, the principle of ’last come first go’ is
applicable to a case where on account of reduction of work
or shrinkage of cadre retrenchment takes place and the
services of employees are terminated on a count of
retrenchment. In the event of retrenchment the principle of
’last come first go’ is applicable under which senior in
service is retained while the junior’s services are
terminated. But this principle is not applicable to a case
where the services of a temporary employee are terminated on
the assessment of his work and suitability in accordance
with terms and conditions of his service. if out of several
temporary employees working in a department a senior is
found unsuitable on account of his work and conduct, it is
open to the competent authority to terminate his services
and retain the services of juniors who may be found suitable
for the service. Such a procedure does not violate
principle of equality, enshrined under Articles 14 and 16 of
the Constitution. if a junior employees is hard-working,
efficient and honest his services could not be terminated
with a view to accommodate the senior employee even though
he is found unsuitable for the service. if this principle
is not accepted there would be discrimination and the order
of the termination of a junior employee would be
unreasonable and discriminatory. On the admitted set of
facts, the order of termination in the instant case, could
not be rendered illegal or unjustified on the ground of
juniors being retained in service. The view taken by the
High Court is not sustainable in law.
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The High Court held that the termination of
respondent’s services on the basis of adverse entry in the
character roll was not in good faith and the punishment
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imposed on him was disproportionate. it is unfortunate that
the High Court has not recorded any reasons for this
conclusion. The respondent had earned an adverse entry and
complaints were made against him with regard to the
unauthorised audit of the Boys Fund in an educational
institution, in respect of which a preliminary inquiry
was held and thereupon, the competent authority was
satisfied that the respondent was not suitable for the
service. The adverse entry as well as the preliminary
inquiry report with regard to the complaint of unauthorised
audit constituted adequate material to enable to competent
authority to form the requisite opinion regarding the
respondents suitability for service. Under the service
jurisprudence a temporary employee has no right to hold the
post and his services are liable to be terminated in
accordance with the relevant service rules and the terms of
contract of service. If on the perusal of the character
roll entries or on the basis of preliminary inquiry on the
allegations made against an employee, the competent
authority is satisfied that the employee is not suitable for
the service whereupon the services of the temporary employee
are terminated, no exception can be taken to such an order
of termination.
A temporary Govt. Servant has no right to hold the
post, his services are liable to be terminated by giving him
one month’s notice without assigning any reason either under
the terms of the contract providing for such termination or
under the relevant statutory rules regulating the terms and
conditions of temporary Govt. servants. A temporary Govt.
servant can, however, be dismissed from service by way of
punishment. Whenever, the competent authority is satisfied
that the work and conduct of a temporary servant is not
satisfactory of that his continuance in service is not in
public interest on account of his unsuitability, misconduct
or inefficiency, it may either terminate his services in
accordance with the terms and conditions of the service or
the relevant rules or it may decide to take punitive action
against the temporary Government servant. if it decides to
take punitive action may hold a formal inquiry by framing
charges and giving opportunity to the Govt. servant in
accordance with the provisions of Art. 311 of the
Constitution. since, a temporary Govt. servant is also
entitled to the protection of Article 311(2) in the same
manner as a permanent Govt. servant, very often, the
question arises whether an order of termination is in
accordance with the contract of service and relevant rules
regulating the temporary employment or it is by way of
punishment. It is now sell-settled that the form of the
order is not conclusive
35
and it is open to the Court to determine the true nature of
the order. in Parshotam Lal Dhingra v. Union of
India,[1958] SCR 828 a Constitution Bench of this Court held
that the mere use of expressions like ’terminate’ or
’discharge’ is not conclusive and in spite of the use of
such expressions, the Court may determine the true nature of
the order to ascertain whether the action taken against the
Govt. servant is punitive in nature. The Court further held
that in determining the true nature of the order the Court
should apply two tests namely: (1) whether the temporary
Govt. 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
order of termination of a temporary Govt. servant is by way
of punishment. It must be borne in mind that a temporary
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Govt. servant has no right to hold the post and termination
of such a Govt. servant does not visit him with any
evil consequences. The evil consequences as held in
Parshotam Lal Dhingra’s case (supra) do not include the
termination of services of a temporary Govt. servant in
accordance with the terms and conditions of service. The
view taken by the Constitution Bench in Dhingra’s case has
been reiterated and affirmed by the Constitution Bench
decisions of this Court in the State or Orrisa and anr. v.
Ram Narayan Das, [1961] 1 SCR 606; R.C. Lacy v. The State of
Bihar & Ors., C.A. No. 590/62 decided on 23.10.1963;
Champaklal Chimanlal Shah v. The Union of India, [1964] 5
SCR 190; Jagdish Mitter v. The Union of India, [1964] AIR SC
449; A.G. Benjamin v. Union of in‘ia, C.A. No. 1341/66
decided on 13.12.1966 and Shamsher Singh & Anr. v. State of
Punjab,[1975] 1 SCR 814, These decisions have been discussed
and followed by a three Judge Bench in State of Punjab &
Anr. v. Shri Sukh Raj Bahadur, [1968] 3 SCR 234.
Learned counsel for the respondent urged that the
allegations made against the respondent in respect of the
audit of Boys Fund of an educational institution were
incorrect and he was not given any opportunity of defence
during the inquiry which was held ex-parte. had he been
given the opportunity, he would have placed correct facts
before the inquiry officer. His services were terminated on
allegation of misconduct founded on the basis of an ex-parte
enquiry report. He further referred to the allegations made
against the respondent in the counter-affidavit filed before
the High Court and urged that these facts demonstrate that
the order of termination was in substance, an order of
termination founded on the allegations of misconduct, and
the ex parte enquiry report. In order to determine this
question, it is necessary to consider the nature of the
respondent’s right to hold the post and to ascertain the
nature and purpose of the inquiry held against
36
him. As already observed, the respondent being a temporary
Govt. servant had no right to hold the post, and the
competent authority terminated his services by an innocuous
order of termination without casting any stigma on him. The
termination order does not indict the respondent for any
misconduct. The inquiry which was held against the
respondent was preliminary in nature to ascertain the
respondent’s suitablity and continuance in service. There
was no element of punitive proceedings as no charges had
been framed, no inquiry officer was appointed, no findings
were recorded, instead a preliminary inquiry was held and on
the report of the preliminary inquiry the competent
authority terminated the respondent’s services by an
innocuous order in accordance with the terms and conditions
of his service. Mere fact that prior to the issue of order
of termination, an inquiry against the repondent in regard
to the allegations of unauthorised audit of Boys Fund, was
held does not change the nature of the order of termination
into that of punishment as after the preliminary inquiry the
competent authority took no steps to punish the respondent
instead it exercised its power to terminate the respondent’s
services in accordance with the contract of service and the
Rules.
In State of Orissa & Anr. v. Ram Narain Dass, [1961] 1
SCR 606 a Constitution Bench of this court considered the
question and indicated "the fact of the holding of an
inquiry is not decisive of the question. What is decisive
is whether the order is by way of punishment in the light of
the tests laid down in Purshottam Lal Dhingra’s case."
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In Jagdish Mitter’s case (supra) a Constitution Bench
of this Court held that every order terminating the services
of a temporary public servant does no amount to dismissal or
removal from service merely because an inquiry was held
before the order of termination was passed. The Court
observed that the appropriate authority has power to
terminate a temporary public servant either by discharging
him under the terms of contract or the relevant rules or by
holding departmental disciplinary inquiry and dismissing him
from service. Before passing order of termination the
competent authority may hold inquiry in fairness to
ascertain whether the temporary servant should be continued
in service or not. While discussing the nature of
preliminary inquiry the Court observed as under:
"There is no element of punitive proceedings in
such an enquiry; the idea in holding such an
enquiry is not the punish the temporary servant but
just to decide whether he
37
deserves to be continued in service or not. If as
a result of such an enquiry, the authority comes to
the conclusion that the temporary servant is not
suitable to be continued, it may pass a simple
order of discharge by virtue of the powers
conferred on it by the contract or the relevant
rule; in such a case, it would not be open to the
temporary servant to invoke the protection of Art.
311 for the simple reason that the enquiry which
ultimately led to his discharge was held only for
the purpose of deciding whether the power under the
contract or the relevant rule should be exercised
and the temporary servant discharged."
In Champaklal chiman lal Shah’s case (supra) the appellant
therein was a temporary employee of the Union Government.
His services were terminated without assigning any reasons
and without affording him opportunity of showing-cause.
Before passing the order of termination the competent
authority had issued a notice to Champaklal Chimanlal Shah
calling upon him to explain certain irregularities and to
show-cause why disciplinary action should not be taken
against him. In response to the notice, he submitted his
explanation thereupon, certain preliminary enquiries were
held, but he was not given opportunity to place his case
during the preliminary enquiry. However, after the
preliminary enquiry to regular departmental enquiry was held
instead proceedings for departmental enqiury were dropped
and the services of Chimanlal Shah were terminated in
accordance with the terms and conditions of service of a
temporary Govt. servant. The termination order was assailed
on the ground that the order of termination was in substance
an order of punishment. the Constitution Bench held that
the order of termination was not an order of punishment and
the appellant was not entitled to the protection of Article
311(2) of the Constitution. The Court emphasised that when
a preliminary enquiry is held against a temporary Govt.
employee, it must not be confused with the regular
departmental inquiry which usually follows the preliminary
inquiry, after the government decides to frame charges and
to get a departmental enquiry made, with a view to inflict
one of the three major punishments on the Govt. servant. So
far as the preliminary enquiry is concerned, there is no
question of it being governed by Article 311(2) of the
Constitution, as it is made for the purpose of collection of
facts to enable to the competent authority to decide whether
punitive action should be taken or action should be taken in
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terms and under the contract of service or the rules
applicable to a temporary government servant. A Govt.
servant has no right to insist for affording him opportunity
during such enquiry and such an
38
ex-parte enquiry is not initiated in law in view of the
purpose and object of preliminary enquiry. On an elaborate
discussion, the Court observed as under:
"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 not be
associated so that the authority concerned may
decide whether or not to subject the servant
concerned to the enquiry necessary under Art. 311
for inflicting one of the three major punishments
mentioned therein. Such a preliminary enquiry may
even be held ex parte for it is merely for the
satisfaction of government, 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 inflicting one of the three major
punishments that the government servant gets the
protection of Art. 311 and all the rights that
protection implies as already indicated above.
There must therefore 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 art.
311 that the government servant is entitled to the
protection of that Article. That is why this Court
emphasised in Parshotam Lal Dhingra’s case (supra)
and in Shyamlal v. The State of Uttar pradesh,
[1955] 1 SCR 26 that the motive or the inducing
factor which influences the government to take
action under the terms of the contract of
employment or the specific service rule is
irrelevant."
The above principles were reiterated by another Constitution
Bench of this Court in R.C. Lacy’s case (supra) dealing
with the case of reversion of a permanent Govt. servant
officiating on a higher post. The Bench observed that the
Government might find it necessary to terminate the services
of a temporary employee if it is not satisfied with the
conduct or work of an employee and the same reasoning
applies to a public servant who is reverted from a higher
post to his substantive lower post, if the higher post was
held in a temporary nature. Before terminating the services
of a temporary servant or reverting the person
39
officiating in a higher post to his substantive post, the
Govt. may hold a preliminary enquiry to form the requisite
satisfaction for the continuance of the officiating govt.
servant. Such an inquiry does not change the nature of the
order of the termination or reversion.
In A.G. Benjamin’s case (supra) the appellant
was temporarily employed as a Store Officer in the Central
Tractor Organisation, his services were terminated under the
Central Civil Service (Temporary Service) Rules, 1949 by
granting him one month’s salary in lieu of notice. A .G.
Benjamin contended that the order of termination was in fact
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an order of punishment, which had been passed without
affording him the protection under Article 311(2) of the
Constitution. In that case before the issue of termination
order, a notice had been issued to Benjamin for showing-
cause as to why disciplinary action should not be taken on
the allegations made against him in respect of which the
charges had been framed and an enquiry officer had been
appointed. After the charges were framed and the
explanation of Benjamin was obtained, the Chairman of the
Central Tractor Organisation submitted a note to the
Government that the departmental proceedings may take much
longer time and he was not sure that after going through all
the formalities of departmental enquiry Benjamin will be
dealt in the way he deserved, therefore, he suggest that
action should be taken under Rule 5 of the Central Civil
Service (Temporary Service) Rules, 1949 for terminating his
services by giving him one month’s salary in lieu of notice
as he was a temporary Govt. servant. The Minister concerned
accepted the recommendations, whereupon, order of
termination was issued terminating the services of Benjamin.
While assailing the order of termination, it was seriously
contended before this Court that in view of the charges
being framed and the enquiry officer having been appointed
the order of termination in substance was an order of
punishment and the recourse to the temporary service rules
had been taken only to circumvent Art. 311 of the
Constitution. The Constitution Bench repelled the
contention and held that the preliminary enquiry held
against the Govt. servant must not be taken to mean that the
Govt. had taken decision to inflict major punishment on
Benjamin. The Court held that no temporary Govt. servant is
entitled to opportunity in the preliminary inquiry as "there
is no element of punitive proceedings in such an inquiry;
the idea in holding such an inquiry is not to punish the
temporary government servant but just to decide whether he
deserves to be continued in service or not." Further the
Constitution Bench held that even if formal departmental
inquiry is initiated against the temporary Govt. servant, it
is open to the competent authority to drop further
proceedings in the departmental enquiry
40
against the temporary govt. servant and to have recourse to
Rules applicable to a temporary Govt. servant for
terminating his services. The Court observed as under:
"If therefore the authority decides, for some
reason, to drop the formal departmental enquiry
even though it had been initiated against the
temporary govt. servant, it is still open to the
authority to make an order of discharge simpliciter
in terms of the contract of service or the relevant
statutory rule. In such cases the order of
termination of services of the temporary govt.
servant which in form and in substance is no more
than his discharge affected under the terms of
contract or the relevant rule cannot, in law, be
regarded as his dismissal, because the appointing
authority was actuated by the motive that the said
servant did not deserve to be continued in service
for some alleged inefficiency or misconduct."
We have referred to the above decision in detail to dispel
any doubt about the correct position of low. It is
erroneous to hold that where a preliminary enquiry into
allegations against a temporary govt. servant is held or
where a disciplinary enquiry is held but dropped or
abandoned before the issue of order of termination, such
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order is necessarily punitive in nature.
Learned counsel for the respondent placed reliance on
the decisions of this Court in Nepal Singh v. State of U.P.
& Ors., [1985] 1 SCC 56 and Ishwar Chand Jain v. High Court
of Punjab & Haryana & Anr., [1988] 3 SCC 370 in support of
his contention that the termination order is punitive in
nature. In Nepal Singh’s case a disciplinary inquiry was
instituted against Nepal Singh who was a temporary sub-
Inspector of Police, on the charge of having contracted a
second marriage during the life time of his first wife
without prior permission of the Government in violating of
Rule 29 of the U.P. Government Servants’ Conduct Rules,
1956. Before any finding could be rendered the inquiry was
dropped for want of territorial jurisdiction of the
concerned Superintendent of Police, and thereafter, his
services were terminated in accordance with the rules
applicable to the temporary Government servants by giving
him one month’s pay in lieu of notice. nepal Singh
unsuccessfully challenged the order of termination before
the High Court, but his appeal was allowed by a three Judge
Bench of this Court. This Court quashed the order of
termination on three grounds. Firstly,it held that the
order of termination was arbitrary, violative of
41
Articles 14 and 16 of the Constitution as power of
termination had not been exercised honestly, in good faith
for valid considerations. Secondly, the grounds mentioned
in the report of the superintendent of Police on the basis
of which the services of the Sub-Inspector had been
terminated were mere allegations and there was no definite
material for terminating his services. Thirdly, the Court
held that since the inquiry against Nepal Singh on the
charges had been dropped for want of jurisdiction and since
no attempt was made to institute a proper inquiry, instead
his services were terminated on the allegation of misconduct
the order of termination was violative of Article 311(2) of
the Constitution. The Court further held that the
termination order had been passed to circumvent the
constitutional provision of Art. 311(2) of the
Constitution. The facts and circumstances in Nepal Singh’s
case were quite different than those in the instant case.
However, Nepal Singh’s case is no authority for the
proposition that the services of an ad-hoc and temporary
employee cannot be terminated even if the competent
authority on an assessment of the work and the conduct of
the employee finds him unsuitable for the service. The
Court’s observations in Nepal Singh’s case that since the
enquiry against nepal Singh on certain charges was dropped
and his services were terminated under the rules applicable
to the temporary govt. servant with a view to circumvent the
protection of Art 311(2) of the Constitution and as such the
order of termination was illegal, must be confined to the
facts of that case. It appears that he decisions in the
case of Champaklal (supra) and R.C. Lacy (supra) and the
principles laid down therein were not brought to the notice
of the Bench. Had those decisions been placed before the
Court, the finding that the termination order had been
passed to circumvent the provision of Art. 311(2) merely
because departmental inquiry was dropped and the termination
order had been passed, may not have been made. The decision
of Nepal Singh’s case in this regard is per incurium. In
Ishwar Chand Jain’s case the order of termination of
Probationary Judicial Officer was set aside by this Court on
the ground that no relevant material had been taken into
consideration in assessing the satisfactory nature of the
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work and conduct of the Officer on probation. The Court
held that some of the material which had been taken into
account in adjudging the Judicial Officer’s work and conduct
as unsatisfactory was not relevant. The decision has no
relevance to the instant case. We are, therefore, of the
opinion that neither of the two cases relied upon by the
respondent lend any support to his case. On the other hand
our view is fully supported by the decision of three Judge
Bench of this Court in R.K. Misra v. U.P. State Handloom
Corporation, [1988] 1 SCR 501.
In the instant case the repondent was a temporary
Government servant and there was adverse report regarding
his work which was reflected in the adverse remarks made for
the year 1977-78. The competent authority held a
preliminary inquiry in the allegations of improper conduct
in carrying out unauthorised audit of Boys Fund of an
educational institution, On result of the preliminary
enquiry no charges were framed against the respondent, no
officer was appointed for holding the departmental inquiry
instead the competent authority chose to terminate the
respondent’s services in exercise of its power under the
terms of contract as well as under the relevant rules
applicable to a temporary Govt. servant. It never intended
to dismiss the respondent from service. Holding of
preliminary inquiry does not affect the nature of the
termination order. The allegations made against the
respondent contained in the counter-affidavit by way of a
defence filed on behalf of the appellants also do not change
the nature and character of the order of termination. The
High Court failed to consider the question in proper
perspective and it interfered with the order of termination
in a casual manner.
We, accordingly, allow the appeal and set aside the
order of the High Court and dismiss the respondent’s Writ
Petition. There will be no order as to costs.
Y.Lal Appeal allowed.
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