State of U.P. vs U.P.Public Services Tribunal III Lucknow & Anr.

R.H. Zaidi, J.—Present petition arises out of original Suit No. 2167 of 1971, filed by the respondent No. 2 for declaration that the order of termination dated 741971 was illegal and inoperative and the he was entitled to continue in service and is directed against the order dated 431980 passed by U.P. Public Service Tribunal, for short "the Tribunal", rejecting the claim petition of the petitioner.

The suit was filed by the respondent No. 2 with the allegations that he was appointed as Qurk Amin on 1021963, he was performing his duties in accordance with law; but his services were terminated arbitrarily and illegally vide order dated 741971. A notice under Section 80, C.P.C. was served but since the defendants did not give any satisfactory reply, the suit was filed for the above mentioned reliefs.

The suit was contested by the petitioner with the allegations that by the order of termination no stigma was cast upon the petitioner and the order of termination did not suffer from any infirmity and illegality.

The parties produced evidence oral and documentary in support of their respective cases. The trial Court after considering the evidence on the record returned the findings against the plaintiffrespondent No. 2 and dismissed the suit vide its judgment and decree dated 431980.

Respondent No. 2 aggrieved by the judgment and decree passed by the trial Court preferred Civil Appeal No. 409 of 1974, before, the appellate Court. During the pendency of the appeal the U.P. Public Service Tribunal Act 1976 was enforced and the above noted civil appeal stood transferred to the Public Service Tribunal where the case was registered as Claim Petition No. 617 (T)/III/78. The U.P. Public Sei vice Tribunalrespondent No. 1, reversed the finding recorded by the trial Court and allowed the appeal/claim petition. The operative portion of the judgment passed by the respondent No. 1 is quoted below:

"We accordingly allow the appeal and set aside the termination order dated 741971 and hold that if the post of Agricultural Amin continued even after April 19th, the claimant will be deemed to have continued in service; since however, we are aware that the posts of Agriculture Amins were abolished w.e.f. 3181975. We think that there is no question of reinstatement of the claimant but he will be entitled to salary upto 3181975. In the circumstances of the case, the parties will bear their own costs."

Learned Standing Counsel appearing for the petitioner submitted that the judgment and order passed by the respondent No. was wholly illegal and was liable to be setaside in as much as the order of termination passed against the respondent No. 2 was quite legal and valid. It did not cast stigma upon the respondent No. 2. Therefore, the same cannot be said to have been passed by way of punishment. The view taken to the contrary by the Tribunal is manifestly erroneous and illegal.

It is well settled in law that for an order of termination simpliciter neither any reason is required to be recorded nor the delinquent employee is required to be afforded an opportunity of hearing but if the order of termination even against temporary employee is passed by way of punishment, it is incumbent upon competnet authority to follow the procedure prescribed under law. For dispensing with the services of such an employee, employer required to afforded an opportunity of hearing and reasons are also required to be recorded. A reference in this regard may be made to the following decision of the Apex Court of the country in which other relevant decisions have to been noted:

State of Uttar Pradesh and another v. Kaushal Kishore Shukla, 1991 (1)SCC691. In the said case it was ruled by the Supreme Court as under:

"A temporary Government servant has no right to hold the post, his services are liable to be terminated by giving him one month''s notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and canelitions of the tempoary Government servants. A temporary Government servant can, be dismissed from service byway of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is 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 decides to take punitive action it may hold a formal inquiry by framing charges and giving opportunity to the Government servant in accordance with the provisions of Article 311 of the Constitution. Since, a temporary Government servant is also entitled to the protection of Article 311 (2) in the same manner as a permanent Government servant, very often, the question arises whether an order of termination is in accordance with the contrary of service and relevant rules regulating the temporary employment or it is by way of punishment. It is now well settled that the form of the order is not conclusive and it is open to the court to determine the true nature of the order. In Parshotam Lal Dhingra v. Union of India, a Constitution Bench of this Court held that the mere use of expressions like terminate or discharge is not conclusive and in spite of the use of such expressions, the court may determine the true nature of the order to ascertain whether the action taken against the Government servant is punitive in nature. The court further held that in determining the true nature of the order the court should apply two tests namely: (1) whether the temporary Government servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary Government servant is by way of punishment. It must be borne in mind that a temporary Government servant has no right to hold the post and termination of such a Government servant does not visit him with any evil consequences. Then every consequences as held in Parshotam Lal Dhingra, case do not include the termination of services of a temporary Government servant in accordance with the terms and conditions of service. The view taken by the constitution bench in Dhingra case has been reiterated and affirmed by the Constitution Bench decision of this Court in the State of Orissa v. Ram Narayan Das; R.C. Lacy v. State of Bihar; Champak Lal Chiman Lal Shah v. Union of India'', Jagdish Mittalv. Union of India; A.G. Benjamin v. Union of India; Shamsher Singh v. State of Punjab. These decisions have been discussed and followed by a three Judge bench in Stole of Punjab v. Sukhraj Bahadur."

In the present case, it was pleaded by the respondent No. 2 that he was discharging his duties in accordance with law but the impugned order of termination was passed wholly arbitrarily, that the order was mala fide and was passed byway of punishment. In the written statement, as has been noted by the respondent No. 1 in its judgment that the reasons for termination of services of the respondent No. 2 were disclosed as under:

"According to the Government instructions contained in the Director of Agriculturer''s Letter No. A4869/XXIA707/63, dated 24101963, the average recovery of each Amin should be upto the limit or Rs. 5 to 7 thousands per month. The plaintiff''s recover)'' was very poorand, therefore, his services were terminated by the District Magistrate, Kanpur without any prejudice."

It is also well settled in law that the courts are entitled to see the antecedent and attending circumstances when they are required to determine the validity of the order of termination and if it is made out from the record that the order of termination caste stigma on delinquent employee or was passed by way of punishment without affording him an opportunity of hearing and to defend himself, the order or termination deserves to be set aside.

A reference in this regard may be made to the following decisions:

(i) Asbestos Cement Limited v. P.D. Sawarkar and others, AIR 1971, SC100.

(ii) Om Prakash Gael v. Himachal Pradesh Tourism Development Corporation Ltd., Shimla, 1991 (2) SCC1490.

In the present case, tHe Tribunal has rightly observed that the foundation of the order of termination was low collection made by the respondent No. 2 and not unsatisfactory conduct or work of the petitioner. The said allegations of low collection (very poor recovery) which resulted in termination of service of the petitioner clearly shows that the order was passed by .ay of punishment without affording an opportunity of hearing to the petitioner. Had an opportunity of hearing been given to the petitioner, he could prove that the allegation of very poor recovery (low collection) was absolutely false or could explain the same to the satisfaction of punishing authority and could escape from the penalty of termination. It was, thus, necessary to afford him an opportunity before passing the order of termination. The respondent No. 1 thus, in my opinion, did not commit any error of law or jurisdiction in allowing the appeal/claim petition filed by the respondent No. 2.

Learned standing Counsel also submitted that the order of termination was held to be illegal for want of opportunity of hearing to the employee concerned and for violation of the principles of natural justice by the Tribunal. Tribunal ought to have asked the authority concerned to afford opportunity of hearing to the employee and to conduct an enquiry according to the rules. It was not open to it to allow the claim petition outrightly.

Normally in such cases, direction to proceed in accordance with law is issued by the authority or the court setting aside the orders, but in this case since the post in question itself has been abolished long back in the year 1965 and reinstatement to respondent No. 2 has been refused by the Tribunal, respondent No. 2 is out of job since 1971 and is litigating fore more than 25 years, I do not consider it equitable to interfere with the order of termination on this ground.

No case for interference under Article 226 of the Constitution of India is made out. The writ petition fails and is dismissed, but no order as to costs.