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CASE NO.: Appeal (civil)  2438 of 2006

PETITIONER: KAUSHAL KISHORE

RESPONDENT: CANE COMMISSIONER, U.P. & ORS

DATE OF JUDGMENT: 19/02/2008

BENCH: H.K. SEMA & MARKANDEY KATJU

JUDGMENT: JUDGMENT O R D E R

CIVIL APPEAL NO.2438 OF 2006

       This appeal is directed against the judgment and order dated 14.10.2003  passed by the High Court dismissing the appellant’s writ petition and the Special  Appeal.          Brief facts leading to the filing of this appeal are as follows :          The appellant was appointed on temporary basis. This is not disputed. By an  order dated 16.06.1997 several charges were levelled against him. A show cause  notice was thereupon issued to him to be replied within 15 days.  Show cause notice  was replied by the appellant by letter dated 30.06.1997 that is within 15 days’ time.   Curiously enough, the enquiry report was submitted on 27.06.1997 even before the  show cause reply was received.  Thereafter, the appellant’s service was done away  with by order dated 22.8.1997. In a democratic country like ours governed by the  rule of law such arbitrary action of the respondent cannot be said to be passed in  accordance with law. The procedure adopted by the respondents is unknown to the  law.          On the other hand, the appellant’s termination order dated 22.08.1997 is not a  termination simplicitor.  We have been taken through the order of termination.  In  the order of termination the entire facts leading to the filing of the charges of  embezzlement alleged to have been committed by the appellant has been recited.   Therefore, the order of termination cannot be treated as simplicitor but it is by way  of punitive action recording stigma on the conduct of the appellant.  In such a  situation it is a bounden duty to hold an inquiry when opportunity could have been  afforded to the appellant in terms of Article 311(2) of the Constitution. But in the  instant case as already noticed the enquiry report was submitted even before the  receipt of the show cause reply by the appellant.  Even if the charge was framed and  the enquiry report was submitted,  the respondents could have terminated the  services of the appellant by way of a termination simplicitor without stigma,  because  the appellant was a temporary employee. This has not been done in the present case.         In the result, the order of  termination cannot be said to be order of  termination simplicitor.  The order of termination dated 22.08.1997 is accordingly  set aside.  The orders of Single Judge and Division Bench of the High Court are  set  aside. The writ petition of the appellant stands allowed.  Consequently, this appeal is  allowed. No costs.         We, however, give liberty to the respondent to initiate a fresh inquiry, if so  advised. On such an occasion it is open to the respondent to place the appellant  under suspension, after reinstatement and question of back wages payable be  decided after the inquiry. (See: Managing Director ECIL, Hyderabad vs. B.  Karunakar and others, 1993(4) SCC 727)