State of U.P. and Another vs Dr. Harish Chandra Dwivedi and Another

J.C. Gupta, J.—By means of this writ petition, the Petitioners have prayed for the quashing of the order dated 7.10.83 (Annexure 1 to the writ petition) passed by the U.P. Public Services, Tribunal, Respondent No. 2, whereby the order dated 13.10.76 terminating the services of Respondent No. 1 as confirmed by the appellate order dated 16.4.78, was set aside and the Respondent No. 1 was ordered to be paid pay and allowances as if his services were never terminated. Respondent No. 1 was admittedly appointed as P.M.U.S. Officer on temporary basis by the order dated 2.8.72. The appointment order contained that the services of Respondent No. 1 were liable to termination after giving one months'' notice. He did not join his duty at Fatehgarh in pursuance of the order dated 2.8.72. Consequently, the appointment order of Respondent No. 1 was cancelled by the order dated 19.9.72. The order dated 19, 9.72 was recalled and Respondent No. 1 joined his duties at Amoli Primary Health Centre as Medical Officer on 18.10.72. According to Respondent No. 1, he was on leave duly supported by Medical Certificate from 14.5.74 to 20.10.74 and during his leave he was transferred to Allahabad, where he submitted his Joining report on 21.10.74, but he was not allowed to join his duties and his services were terminated by an order dated 13.10.76, whose copy has been annexed as Annexure 6 to the writ petition. The services of Respondent No. 1 were terminated by an order simpliciter purporting to be made under the provisions of Uttar Pradesh Temporary Government Servant (Termination of Services) Rules, 1975, by giving one months'' notice. The Respondent No. 1 tiled an appeal against the said order, but the same was also dismissed by the order dated 16.4.78. The Respondent No. 1 then filed a claim petition before Respondent No. 2 for the quashing of the aforesaid order. By the impugned order dated 7.10.83 the termination order of the Petitioner has been set aside.

The case of Petitioners before the Respondent No. 2. in short was that on a general assessment of work and conduct, Respondent No. 1 was found not suitable for the job and his services were terminated by a simple order without casting any stigma and consequently Respondent No. 1 was not entitled to get any Inquiry conducted.

Before this Court, the learned standing counsel appearing for the Petitioners contended that since the services of Respondent No. 1 were terminated under the provisions of Uttar Pradesh Temporary Government Servant fermentation of Services) Rules, 1975 the need to conduct inquiry as contemplated Under Article 311(2) of the Constitution, by necessary implication got obviated. Rule 14(a) of the said Rules provides for termination of services of temporary Government servant either with one month''s notice or pay in lieu thereof and, therefore, it was submitted mat once the services of the Petitioners have been terminated by means of an order simpliciter, the Tribunal committed an error in law by quashing the termination order. In reply, the contention of the learned Counsel for Respondent No. 1 Is that even where the appointing authority purports to act either in accordance with the terms of the employment or under the aforesaid Rules, it cannot act arbitrarily with discriminatory treatment and since the Petitioner has been heated discriminately inasmuch as officers junior to him were retained in service, the termination order is violative of Article 14 of the Constitution.

Before dealing with the contentions canvassed on both sides, it will be useful to notice the relevant undisputed facts. The Respondent No. 1 was appointed initially in temporary capacity; His services were terminated under the aforesaid Rules by giving one month''s notice without assigning any reason. The allegation of Respondent No. 1 is that the officers junior 1o him, were still retained in service, when his services were terminated and this has also been found as a fact by the Tribunal. The Tribunal has also found i.e. a fact that the contention of the Petitioners, that Respondent No. 1 was found to be unsuitable, was not acceptable, as no material was available at the time of passing the Impugned order, which could support Petitioners'' stand that Respondent No. 1, was unsuitable. The adverse remarks for the year 1973-74 made against Respondent No. 1, were communicated to him much later than the date of passing of the termination order. The Tribunal has also observed that Respondent No. 1 was awarded good entry by the Deputy Chief Medical Officer, Family Planning in the year 1974-75 whose remark was endorsed by the Chief Medical Officer, Fatehpur on 18.5.74. The Tribunal was of the view that as the Petitioner till the passing of the impugned order had not been communicated any adverse remarks and he had no opportunity to make a representation against the said adverse remarks; therefore, the adverse entry had to be excluded from consideration for coming to the conclusion of unsuitability. The other ground of unsuitability of Respondent No. 1, which has now been raised in the writ petition, was never raised before the Tribunal. Therefore, the petit toners cannot be permitted to raise new grounds in support of their stand or opinion of unsuitability of Respondent No. 1.

The main question which falls for consideration is whether the impugned order of termination, which purports to have been made under the terms of the employment and under the provisions of the aforesaid Rules of 1975, could be challenged on the ground of contravention of guarantee of equal treatment embodied in Article 16 of the Constitution. The learned Counsel for the Petitioners contended that since Respondent No. 1 was appointed in a temporary capacity, his services could be terminated at any time alter giving one month''s notice, especially where the services were terminated in accordance with the conditions of service and under the Statutory Rules. In my opinion, this contention of the learned Counsel must be repelled. Even where the services of a temporary servant are dispensed with by giving one month''s notice as provided under the Rules, but simultaneously retaining persons junior to him, valid reasons must be shown by the authority making the termination order for such an action. In the case of The Union of India (UOI) Vs. Pandurang Kashinath More, , the Apex Court proceeded on the assumption that Article 16 of the Constitution might be violated by an arbitrary and discriminatory termination of service.

In the decision in the case of The Manager, Government Branch Press and Another Vs. D.B. Belliappa, , it was contended before the Apex Court on behalf of the employer that Articles 14 and 16(1) of the Constitution have no application, whatsoever, to the case of a temporary employee whose service is terminated in accordance with the terms and conditions of his service because the tenure or the duration of the employment of such an employee is extremely precarious being dependent upon the pleasure and discretion of the employer-State. The Apex Court observed as under:

In our opinion, no such generalization can be made. The protection of Articles 14 and 16(1) will be available even to such a temporary Government servant If he has been arbitrarily discriminated against and singled out for harshtreatment in preference to his Juniors, similarly circumstanced. It is true that the competent authority had the discretion under the conditions of service governing the employee concerned to terminate the latter''s employment without notice. But, such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Articles 14 and 16(1).

In the aforesaid decision of Government Branch Press''s case (supra), it has also been held that if the services of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a like reason which marks him off a class apart from other temporary servants who have been retained in service, there Is no question of the applicability of Article 16. Conversely, if the services of a temporary Government servant are terminated arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his Juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment.

In the instant case, Respondent No. 1 leveled against the Petitioners a charge of unfair discrimination that for improper motive and for mala fide, his services were terminated, while persons, junior to him were retained in service. In that situation, it was incumbent upon the appointing authority to dispel that charge by disclosing to the Tribunal the reason or motive, which Impelled It to take the Impugned action. The Petitioners defended the impugned order before the Tribunal by disclosing the reason that since Respondent No. 1 was found unsuitable, his services were terminated. However, the Tribunal found as a fact that the said decision of the appointing authority was based on no material because the adverse entry, on which the decision was arrived at, could not be taken into consideration. And once that finding is accepted, the Respondent No. 1 could not be placed in a class apart from his juniors, who have been retained in service and for that reason, he could not be discriminately treated.

In this view of the matter and for the reasons stated above, I find no Justification in taking a different view from the one which has been taken by the Tribunal and accordingly the order of the Tribunal must be upheld, so far as it relates to the quashing of the order of termination of Respondent No. 1. However, I feel that the Tribunal should have left the matter of payment of pay and allowance from the date of termination till the date of reinstatement to the decision of the authority concerned because it is for the authority concerned to find out as to what actual amount the Respondent No. 1 would be entitled to get under the relevant Rules of Financial Hand Book. If after the termination of his employment, the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the reinstatement should be with full back wages and with continuity of employment. I am, therefore, of the opinion that the Tribunal was in error In directing to pay, pay and allowances to the Respondent No. 1 as if his services were never terminated and the matter of payment and other allowances for the period from the date of termination till the date of reinstatement is to be left to be decided by the authority concerned in accordance with the relevant Rules. With this modification, the order of Tribunal is maintained.

For the above reasons, this writ petition is partly allowed, while the order of the Tribunal dated 7.10.83 so far as it relates to the quashing of the termination order dated 13.10.76 as confirmed by the appellate order dated 16.8.78 is upheld, but the other part of the order by which the Respondent No. 1 has been ordered to be paid the pay and the allowance as if his services were never terminated, is modified to the extent that the matter of payment of pay and other allowances for the period of termination shall be decided in accordance with the relevant rules by the authority concerned within three months from the date of reinstatement of Respondent No. 1. The order of the Tribunal awarding Rs. 250 as costs of this petition to the Respondent No. 1 is also upheld. There shall be no order as to costs in this writ petition.