Kumari Ram Chamala Kahar vs State of U.P. and Others

R.A Sharma, J.—Petitioner was appointed as a temporary Family Welfare Worker (Mid-wife) vide order dated 30.3.1978, by the Deputy Chief Medical Officer, Bahraich and was posted at Primary Health Centre (hereinafter referred to as P.H.C.) Gilula on 17.4.1978. By order dated 22.11.1982 her service was terminated. Being aggrieved by the said order she has filed this writ petition.

Respondents have filed counter-affidavit and the Petitioner has filed rejoinder-affidavit in reply hereto.

The sole contention raised by the learned Counsel for the Petitioner is that the impugned order contains stigma and as such, the Petitioner''s service could not have been terminated without giving her a reasonable opportunity of being heard. On the other hand, the learned standing counsel has contended that the Petitioner being a temporary employee was not entitled to any opportunity of hearing before termination of her service.

There is no dispute that the Petitioner was appointed as temporary Family Welfare Worker (Mid-wife). Vide order dated 30.3.1978 which contains a condition that her service is purely temporary which can be terminated at any time without prior notice. The impugned order dated 22.11.1982, a copy of which has been filed as Annexure-9 to the counter-affidavit, as translated from Hindi to English, is as under:

You are informed that you illegally remained absent from duty from 24.7.1981 regarding which the office has sent letters to you from time to time and has sent the last notice dated 4.11.1982 asking you to resume duty, but you have failed to do so.

Your service is purely temporary. In accordance with the terms and conditions of your appointment order, your service is terminated with effect from 24.7.1981 as it is no more required in the Department.

Sd. 22.11.82

Although the last paragraph of the impugned order (sic) states that the Petitioner''s service is being terminated in accordance with the terms and conditions of the appointment order, but in the first paragraph of the said order, it has been mentioned that she illegally remained absent from duty with effect from 24.7.1981 and inspite of several letters and the notice given to hereby the Department she did not resume the duty. Whether the statement about illegal absence of the Petitioner from duty, contained in the impugned order, is or is not stigma, is a question on the answer of which depends the fate of this petition.

According to the Respondents, the Petitioner was transferred on 24.7.1981 from P. H. C. Gilula to P. H. C. Chittura in the same district Bahraich and was relieved from P. H. C. Gilula on 24.7.1981, but thereafter she never Joined at her new place of posting and was in fact absconding from duty without any authority or proper leave. As such, her service was terminated by the Respondent No. 3 by the impugned order. According to the Petitioner, she was ill from 17.12.1979 to 31.12.1979 and was not permitted thereafter to Join her duties at P. H. C. Gilula (sic) and was also not paid her salary for the period from December, 1979 to March, 1980. She thereafter filed a civil suit in the Court of the Civil Judge, Bahraich for recovery of the pay for the aforesaid period. The suit is said to have been decreed. The Petitioner claims that it is on account of filing of the suit by her that she was transferred from P. H. C. Gilula to P. H. C. Chittura. it is further stated that the Petitioner also filed a writ petition before this Court (Lucknow Bench) challenging her transfer order and when the Respondent No. 3 came to know about filing of the said writ petition, he passed the Impugned order on 22.11.1982. The aforesaid averments made by the Petitioner in the writ petition have been disputed by the Respondents In their counter-affidavit.

It is settled law that if the order of termination of service of the Government Servant contains stigma, it cannot be passed without giving him/her a reasonable opportunity of being heard. In Jagdish Mitter Vs. The Union of India (UOI), , the service of the Appellant therein, who was a temporary employee, was terminated by an order in which it was stated that he has been found "undesirable to be retained in the Government service". The Supreme Court held that the said order of termination of service expressly casts stigma on the Appellant and such an order amounts to dismissal and not a simple discharge. In this connection the Supreme Court laid down as under:

But it seems to us that when the order refers to the fact that the Appellant was found undesirable to be retained in Government service, it expressly casts a stigma on the Appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge. The learned Additional Solicitor-General attempted to argue that what the order really meant was that Government did not think it desirable or necessary to continue the Appellant in its employment. He fairly conceded that the words used in (sic) the order were somewhat unfortunate, but he urged that the order should be liberally constructed and should be held to have been passed by the authority by virtue of its power to terminate the service of the Appellant on one month''s notice. It is obvious that to say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first case (sic), a stigma attaches to the servant, while in the second case, termination of service is due to the consideration that a temporary servant need not be continued, and in that sense, no stigma attaches to him. It seems that anyone who reads the order in a reasonable way, would naturally conclude that the Appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant. It can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be ideal to suggest that the order is a simple order of discharge. The test in such cases must be does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal.

In Jai Shanker Vs. State of Rajasthan, , removal from service of a temporary employee for overstaying leave without giving him any opportunity of being heard, was held to be illegal even though the service regulations provided that if the servant absents from duty without permission after the end of his leave he shall be deemed to have sacrificed his appointment. In Kanhialal Vs. District Judge and Others, the order of discharge from service of the Appellant therein on the ground that (sic) "he was prima facie responsible for the loss of some documents from the judicial record on account of his negligence and carelessness," was held to be penal in character and was, therefore, declared illegal as no such order could have been passed without giving a reasonable opportunity of being heard to him in accordance with Article 311(2) of the Constitution of India. In Jagdish Parsad Vs. Sachiv, Zila Ganna Committee, Muzaffarnagar and Another, , the order of termination of service of the concerned employee contained a statement to the effect that while he was working in Roadways he was "caught in corruption on June 6, 1967 and his service was terminated and he obtained his appointment in the Society by concealing the above facts. Supreme Court declared that the aforesaid statement in the termination order casts stigma and, therefore, such an order could not have been passed without giving reasonable opportunity of being heard.

In the instant case, the impugned order of termination of service contains a statement to the effect that the Petitioner has remained absent from duty illegally and did not resume duties inspite of several letters and the notice given to her. For a Government servant, remaining absent from duty illegally is a misconduct and not joining duty inspite of several letters and the notice makes the matter worst. Such a statement in the order undoubtedly casts stigma on the service career of the Petitioner. The impugned order amounts to dismissal from service for Illegal absence from duty and is penal in nature. Such an order, therefore, could not have been passed without giving a reasonable opportunity of being heard to the Petitioner. It is admitted that no such opportunity was given to her. The order, therefore, cannot be sustained.

The learned standing counsel has, however, submitted that temporary employee is not entitled to the opportunity of hearing before termination of his service. In support of his submission, he has placed reliance on (i) State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, , (ii) Triveni Shankar Saxena Vs. State of U.P. and others, , (iii) State of U.P. and another State of U.P. and another Vs. Km. Prem Lata Misra and others, and State of U.P. v. Smt. Kamla Devi (1996) 3 UPLBEC 1740 . In none of the aforesaid cases, the order of termination of service contains any stigma on the career of the Government servant. They dealt with different controversy. It is always open to the Government to terminate the service of the temporary Government servant on account of his unsuitability, insubordination, misconduct, inefficiency, etc. by passing a simple order of termination without casting any aspersion on his career, and in such a case, it is not necessary to give him an opportunity of hearing. In this connection, reference may be made to State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, and State of U.P. and another State of U.P. and another Vs. Km. Prem Lata Misra and others, . But if the order of termination contains a stigma on the career of the Government servant, it becomes penal in nature and such an order cannot be passed, without giving him a reasonable opportunity of hearing. In the instant case, as mentioned earlier, the impugned order contains stigma and it could not have been passed without giving opportunity of hearing to the Petitioner. Such an opportunity not having been given to her the order has to go.

This writ petition Is accordingly allowed with costs. The impugned order of termination of service dated 22.11.1982 is quashed. The Respondents are directed to reinstate the Petitioner in service forthwith. As regards the order service benefits, it will be open to the Petitioner to make application before the concerned authority and if such an application is made, the same shall be disposed of in accordance with law, within a period ofthree months of the production of certified copy of this judgment.