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PETITIONER: STATE OF U.P & ANR.

       Vs.

RESPONDENT: RAM KRISHNA & ANR.

DATE OF JUDGMENT:       30/08/1999

BENCH: G.T.Nanavati S.N. Phukan

JUDGMENT:

     PHUKAN,J.

     Delay condoned.  Leave granted.  Two appeals have been filed  against  the judgment and order dated 21.05.97of  the High Court of Allahabad in Writ Petition ( c ) No.7150/93 as also  against the order dated 27.02.98 in CMA No.   81970/97 wherein  the High Court upheld the judgment and order  dated 24.11.92  passed  by  the  U.P.   Public  Service  Tribunal, Lucknow.   A review petition filed by the present appellants was  also  dismissed  by  the High Court  vide  order  dated 27.2.98.   Respondent  No.1  Ram Krishna  was  appointed  as Nalkoop Chalak w.e.f.15.5.77.As he was found absent from his duty  without  obtaining  leave a notice dated  26.7.79  was given  to him and then by an order dated 6.8.79 his services were terminated with effect from 26.7.79.  His services were terminated   by   order  dated   6.8.79   w.e.f.    26.7.79. Respondent  filed  a representation against the above  order before  the  Authority  and  on an assurance  given  by  the respondent that he would not commit any mistake in future he was given a fresh appointment on 1.9.79 for three months and again  on 18.12.79 for three months.  As the respondent  did not  improve  his work and again absented himself from  duty without  any  application, his services were  terminated  by order dated 29.2.80.  He, therefore, approached the Tribunal and  challenged  both  the  orders  of  termination  of  his services.   It  was contended by the appellants  before  the tribunal  that the appointment of the respondent was  purely on  temporary  basis  and  his services were  liable  to  be terminated  at  any  time  without   notice.   It  was  also contended before the tribunal that

     the  impugned  order of termination did not  cast  any stigma  and  his  services  were not terminated  by  way  of punishment  but in accordance with the terms and  conditions of  the  appointment.  The tribunal took the view  that  the termination  order  dated 6.8.79 was given back effect  from 26.7.79  i.e.   it  was passed  with  retrospective  effect, therefore,  the  order was bad as it was not permissible  in law.   On  this  count the above termination order  was  set aside.  The Tribunal, however, did not grant the relief that he  continued in service after 6.8.79.  Regarding the second termination order dated 29.2.80 the tribunal was of the view that  it was not an order of termination simpliciter but  it was  sitgmatic  as  it  was passed on the  ground  that  the respondent   was  an  irresponsible   employee  and  he  was

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unauthorisedly  absent.   As  no  inquiry  was  held  before passing  the order, the second order of termination was held to  be  bad  in  law by the  tribunal  and  accordingly  the tribunal  allowed  the petition filed by the respondent  and both  the  termination orders dated 6.8.79 and 29.2.80  were quashed.    The  High  Court  was  of  the  view  that   the appointment  of  respondent w.e.f.  01.12.79 on the post  of Tube Well Operator was on a regular establishment.  The High Court  also  recorded  that   respondent  according  to  the appellants  did not make any improvement in his  performance and  being  irresponsible,  due  to  absence  in  work,  his services  were  terminated.  On these facts the  High  Court relying  on  the  decision of this Court  in  D.K.Yadav  Vs. J.M.A.   Industries  1993  (3) J.T.  617 held  that  absence without  leave  is  a  misconduct   and,  therefore,  as  no      opportunity was given to the respondent the termination was bad in law and accordingly the dismissed.  writ petition filed  by  the  present  appellants was We  have  heard  Mr. A.K.Goel,  Learned Addl.  Advocate General of U.P.  and  Mr. R.B.  Mehrotra, learned senior counsel for the parties.  The learned  counsel for the respondent has drawn our  attention to the letter dated 2.5.77 and has urged that the respondent was  appointed on regular basis after being selected by  the Selection  Committee  for  the post of Tube  Well  Operator, therefore,  it was regular appointment and not temporary  as contended  by the appellants.  On reading the same letter we find that the respondent was selected as Training Tube Well Operator  and  condition No.10 of the said  letter  clearly indicates   that  services  of   the  respondent  could   be terminated  at  any  time without  notice.   Therefore,  the contention  of  the  learned  counsel  that  respondent  was appointed  on  regular  basis as Tube Well Operator  is  not sustainable.   From  the  record  we find  that  the  second appointment  dated 18.12.79 is an office order issued by the Executive  Engineer,  Civil Division , Allahabad  appointing respondent  as Tube Well Operator purely on temporary  basis with  the  condition that his services could  be  terminated without any prior intimation.  A copy of the letter was sent to  the  Assistant Engineer asking him to submit a  progress report  of working capacity of the respondent to enable  the Executive  Engineer to take decision regarding future course of  action.   In  view  of  the  above  expressed  condition directing  the  Assistant  Engineer   to  report   regarding performance  of  the work of the respondent, we are  of  the opinion  that  it was not a regular appointment on  a  clear vacancy,  but it was a temporary appointment for a period of three  months  and  was made conditional  upon  his  showing progress  during that period.  This appointment was to  take effect  from 1.9.79 as respondent was working from that date as  Tube Well Operator.  In the second order of  termination dated   29.2.80  it  was  recorded   that  having  made   no improvement  in work as being irresponsible the services  of the  respondent  were  not needed in the  department  and  , therefore,  terminated with immediate effect.  But as stated earlier,  the  Tribunal had not granted the relief  that  he continued  in service even after 6.8.79.  The respondent had accepted  his  fresh appointment and, therefore, had  to  be treated  as  a  fresh  appointee.   The  Tribunal  had  also proceeded  on  that  basis.  Therefore, the  nature  of  his earlier  appointment  and validity of the termination  order need  not  be considered any further.  Now the  question  is whether  the services of the respondent could be  terminated as  he  did not make any improvement in work and further  he was  found absent from work?  From the appointment letter we find that the second appointment of the respondent was for a

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period  of 3 months and this is also the finding of the High Court.    The  High  Court  relied   upon  a   decision   in D.K.Yadav(Supra).   That  was  a   case  of  termination  of services  on  the basis of standing orders in an  industrial establishment.   Therefore, in our opinion the ratio of that case  is not applicable to the case of the respondent.   Our attention  has been drawn to the Five Judges-Bench  decision of  this Court in Jagdish Mitter Vs.  The Union of India AIR 1964,  449.  The Bench reiterate the settled position of law that  protection  of Article 311 can be invoked not only  by permanent  public servants, but also by public servants  who are  employed as temporary servants, or probationers and so, if   served  with  an  order  by  which  his  services   are terminated,  and the order unambiguously indicates that  the said  termination  is the result of punishment sought to  be imposed  upon  him, he can invoke the protection of  Article 311 claiming that the mandatory provisions of Article 311(2) have  not  been  complied  with.  Regarding  powers  of  the appropriate  authority to terminate services of a  temporary public  servant it was held that it can either discharge him purporting to exercise its power under the terms of contract or  the  relevant  rule  and in that case,  it  would  be  a straightforward  and  direct case of discharge  and  nothing more  and, therefore, Article 311 do not get effected.   The Authority  can  also  act  under  its  power  to  dismiss  a temporary servant and make an order of dismissal and in such an  event Article 311 will apply and it would necessitate  a formal  departmental  inquiry.  In the opinion of the  Bench while   discharging  a  temporary   government  servant   on probation  sometime inquiry may have to be made only to find out  whether  the temporary servant on probation  should  be continued  in  service  or not, and in such  an  event  such government servant will not be entitled to the protection of Article  311  as the inquiry was done only to find  out  the suitability  the  of  person  and there was  no  element  of punitive proceeding.  The learned counsel for the appellants has  drawn our attention in State of Uttar Pradesh and  Anr. Versus  Kaushal Kishore Shukla 1991 (1) SCC 691.  This Court inter  alia held that a temporary government servant has  no right  to hold the post and where the competent authority is satisfied  that the work and conduct of a temporary  servant are  not satisfactory or 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. It  is  further  held that if the services  of  a  temporary government  servant  is  terminated in accordance  with  the terms  and conditions of service it will not visit him  with any  evil consequences.  If on 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.  If however, the competent authority decides to  take  punitive  action it may hold a formal  enquiry  by framing  charge  and  giving opportunity to  the  government servant   in  accordance  with   article  311(2)  which   is applicable  to  temporary government servant.   The  learned counsel  for  the respondent has drawn our attention to  the case  Uptroln India Ltd.  Vs.  Shammi Bhan and another, 1978 SCC  538.   It was a case of unauthorised absence from  duty and  that too in case of an industrial establishment.   More

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over  the  services  of the employee  were  duly  confirmed. Under  the  above facts this ratio is not applicable to  the case  in  hand.  As we have already stated earlier,  by  the second appointment letter, respondent was appointed only for a  period of three months purely on temporary basis  subject to  termination  without notice, therefore, we come  to  the conclusion that the respondent was not in regular government service.   Moreover,  his  position  was   like  that  of  a probationer.   As  during  the  period  of  service  of  the respondent  the  authority  found that the services  of  the respondent were not satisfactory and accordingly terminated, it cannot be said that the termination order was bad in law. This  fact  is sufficient for us to hold that  the  impugned order was an order of termination simpliciter of a temporary government  servant namely the respondent, , therefore,  the provisions  of  Article  311  would not b  e  attracted.   ‘ Accordingly,  the  present appeals are allowed and  impugned orders  of  the High Court as well       as of the  Tribunal are set aside.  costs.  No order as to