Lal Chand,Shepherd 1841 vs State of U.P.& Ors.

Sunil Ambwani, J.—Heard Dr. R.G. Padia for petitioner and learned standing Counsel for respondents.

The petitioner Lal Chand was appointed as Shepherd (Class IV employees) by Project Officer in the office of District Sheep and Wool Development Officer, Allahabad on 14101980. His services were terminated on 2961981. It is alleged in para 3 to the writ petition that the termination order was not implemented and that a fresh order was passed by Deputy Director on 2691981 approving the appointment by the Project Officer dated 14111980. By impugned order dated 3151988 the petitioner''s services have been terminated by a simpliciter order under U.P. Temporary Government Servants (Termination of Services) Rules, 1975, after giving him one month''s notice.

Counsel for petitioner submits that the impugned order is stigmatic and was not passed after giving opportunity to the petitioner. Persons junior to petitioner were retained and that the petitioner was entitled for regularization in terms of the Regularization of Ad hoc Appointments (on Posts Outside the Purview of Public Service Commission) Rules, 1979, and also in terms of Government Order dated 14121983.

In the counteraffidavit of Sri Jang Bahadur Lal, Head Clerk, in the office of Project Officer, Intensive Sheep and Wool Development, Project, Mirzapur, it is stated in paras 4, 5, 6 and 10 as follows:

�(4). That the contents of paragraph No. 4 of the writ petition are denied. It is stated that the work and conduct of the petitioner had been unsatisfactory throughout. The petitioner had been habitual of absconding from his duties on his sweet will, and availing wilful leave without giving any intimation or obtaining prior sanction. The petitioner absconded from his duties from 1841986 to 661986 (50 days) and from further 961986 to 1281986 (65 days), for which he was granted leave without pay. Once the petitioner had absconded from his duties invariably 9 months, from 1101986 to 3061987. He was further posted at Sheep Centre, Sujatpur, District Allahabad where he joined on 3061997. The petitioner absconded in the month of 8/87 (681987 to 1681987 and 1881987 to 3181987). He absconded further constantly for a period of 4 months 20 days from 191987 to 2011988. He absconded further constantly from 2121988 to 3151988 (3 months 9 days). Several times, and in several decisions, the petitioner was warned not to abscond from his duties and not to avail wilful leave. But of not avail.

(5). That, the contents of paragraph No. 5 of the writ petition are denied. In reply it is stated that the termination order dated 3151988 is legal, valied and standings as the petitioner absconded from his duties constantly more that 90 days i.e. from 2121988 to 3151988.

(6). That the contents of paragraph No. 6 of the writ petition are denied. It is stated that the termination order is legal and not mala fide. The petitioner was temporary.

(10). That in reply to the contents of paragraph No. 10 of the writ petition are not admitted, it is stated that the work and conduct of the petitioner was quite unsatisfactory.

In the rejoinder affidavit, the petitioner has not denied the allegations made in para 4. There is no denial that the petitioner was absent without taking any leave on several occasions in 1986 to 1998.

In Mathew P. Thomas v. State of Kerala Civil Supply Corporation Ltd., 2003(1) LBESR 1089 (SC) : (2003) 3 SCC 263, the Supreme Court after examining the recent decisions in Dipti Prakash Banerjee v. Satyendra Nath Bosh, National Centre Basic Sciences, Calcutta, (1999) 3 SCC 60 and Pavanendra Narayan Verma v. Sanjay Gandhi, P.G.I. of Medical Sciences, (2002) 1 SCC 526, held as belows:

�(11). An order of termination simpliciter passed during the period of probation has been generation undying debate. The recent two decisions of this Court in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Pavenendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences after survey of most of earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during the period of probation. The learned Counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case Dipti Prakash Banerjee after referring to various decisions indicated as to when a simple order of termination is to be treated as �founded� on the allegations of misconduct and when complaints could be only as a motive for passing such a simple order of termination. In para 21 of the said judgment a distention is explained, thus: (SCC pp. 7172).

�(21). If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as `founded'' on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of notice and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid�.

From a long line of decisions it appears to us that whether an order of termination is simpliciter 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 simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the socalled order of termination simpliciter 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 simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the fact 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 facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cased it becomes necessary to travel beyond the order of termination simpliciter 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 or he is in reality removed from service on the foundation of his misconduct.�

In the present case the petitioner''s work and conduct was not satisfactory. Her repeatedly absented, from duties without informing superior officer and without applying for leave. He was warned repeatedly not to abscond from duties. His conduct, however, did not improve. In the circumstances, I find that the order was not founded upon any misconduct, but was made on the ground of unsuitability of the petitioner to carry out his work, duties and responsibility. His unsuitability was the motivating feature for issuing the termination order. The order, therefore, is neither stigmatic nor required any opportunity of hearing and does not call for any interference.

The plea for regularisation has no force. The regularisation of services under the rules is to be made by a Selection Committee which has to consider eligibility and suitability of the employee. The petitioner was a regular absentee, and was thus wholly unsuitable for the job. In the circumstances the question of his regularisation did not arise.

The writ petition has no merits and is dismissed.