JUDGMENT S.H.A. Raza and S.R. Alam, JJ.
1. The fate of this writ petition hinges on the reply to the question as to whether the impugned order of termination of services of the petitioner simpliciter amounts to order of termination.
2. Learned counsel for the petitioner, Mr. Shashi Kant pressed, strongly urged this Court to delve into the foundation of the order to arrive at a conclusion as to whether the order has been camouflaged into an order of termination slmplicitor, when actually it is in the nature of an order of punishment.
3. Before dealing with the question mentioned in the foregoing paragraphs, it will be relevant to consider the factual matrix of the case, in short compass, as set out in the writ petition, as well as in the counter-affidavit. The petitioner was appointed as an Assistant Prosecuting Officer, which in brevity be referred to as the A.P.O. by means of the order dated 20.1.1976 passed by the respondent No. 1. The order of appointment indicates that the petitioner was appointed on ad hoc basis for a year only meaning thereby that it was a tenure appointment. Subsequent orders also indicate such a tenure appointment for a year only and was extended from time to time till 12th December, 1979, when the services of the petitioner were terminated by an Innocuous order.
4. The order indicated that the services of the petitioner would no longer be required, and it would be deemed to have been terminated, after the expiry of one month. The petitioner was ordered to be paid one month's salary in lieu of the period of notice.
5. In the counter-affidavit, it has been indicated that the work of the petitioner was unsatisfactory, and his functioning was against the interest of the State inasmuch as the services of the petitioner would no more be required. The petitioner was alleged to have been involved in Crime Case No. 125 under Sections 420 and 120B, I.P.C. read with Section 5(2) of Prevention of Corruption Act. which was registered at the police station Kotwali district Plthauragarh. In view of the aforesaid reason, his services were terminated. The appointment of the petitioner was temporary in nature. As averred in the counter-affidavit, the services pf the petitioner were in accordance with the provisions contained in Temporary Government Servant Services (Termination of Services) Rules.
6. The petitioner assailed the order of termination before the Public Services Tribunal ; mainly on the ground that his services were terminated on account of his alleged unsatisfactory conduct and entries in his character roll, hence the order amounts to an order of punishment and casts a stigma upon the conduct and character of the petitioner. The petitioner was not given an opportunity to show cause against the said order hence the order of termination was hit by Article 311(2) of the Constitution of India. It was further asserted that the persons who were appointed along with the petitioner and also the persons who were junior to the petitioner have been retained in service hence the impugned order is also hit by Articles 14 and 16 of the Constitution of India. The Tribunal repelling the contention of the petitioner, dismissed the claim which was filed by the petitioner under Section 4 of the U. P. Public Services Tribunal Act. Being aggrieved against the said order, the petitioner knocked the door of this Court by filing the present writ petition. In the light of the facts and proposition of law. mentioned in the foregoing paragraphs we have to ponder over the stride of services jurisprudence by the Hon'ble Supreme Court on the issues raised in this writ petition.
7. In State of U. P. and another v. Kaushal Kishore Shukla. 1991 (1) SCC 691, the Hon'ble Supreme Court has held that :
"A temporary government servant has no right to hold the post. 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. If the services of a temporary government servant is terminated in accordance with the terms and conditions of service, it will not visit him with any evil consequences. If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee arc terminated, no exception can be taken to such an order of termination. Before terminating the services of a temporary servant or reverting the person officiating in a higher post to his substantive post, the Government may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating government servant. Such an inquiry docs not change the nature of the order of the termination or reversion. If , however, it is decided to take punitive action the competent authority may hold a formal Inquiry by framing charges and giving opportunity to the government servant in accordance with Article 311(2) 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 contract of service and relevant rules regulating the temporary employment or it is by way of punishment."
It was observed in para 7 of the report that it is now well-settled that the form of the order is not conclusive and it is open for the Court to determine the true nature of the order. The Government should apply only two tests :
(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 test is satisfied, it must be held that the order of termination of a temporary government servant is by way of punishment and the 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.
In para 8 of the report, it was further held that every order does not amount to dismissal or removal from service because an enquiry was held before the order of termination was passed.
8. Then came the case of Triveni Shanker Saxena v. State of U. P. and others, 1992 (1) SCC 524, in which it has been held that the services of the appellant were terminated by an order simplicitor, the appellant served a notice under Section 80, C.P.C. upon the government, and thereafter filed a Civil Suit No. 367 of 1974. In the Court of Civil Judge, in the meantime U- P. Public Services Tribunal Act came into force and the case was transferred to the Tribunal. The Tribunal held that the services of Triveni Shanker Saxena were terminated arbitrarily and whimsically by the authorities without any rhyme or reason.
The State of U. P. being dissatisfied with the order of the Tribunal preferred a writ petition, before the Lucknow Bench of this Court of the High Court which allowed the writ petition and quashed the order of Tribunal. Thereafter an appeal was preferred before the Hon'ble Supreme Court. The Hon'ble Supreme Court observed that it cannot be said that the appellant held the post in a substantive capacity on permanent basis, on the date when he was appointed as a Consolidator. In the absence of any such proof on the side of the appellant, it has to be held that he was employed as Lekhpal on a temporary basis, and thereafter appeared before the Selection Board and was selected de nova as a Consolidator in the Consolidation Department. It was further indicated that the word 'lien' originally means 'binding' from the Latin ligamen. It s lexical meaning is 'right to retain'. The word 'lien' is now variously described and used under different contexts such as 'contractual lien', "equitable lien', 'specific lien', 'general lien', 'partners lien' etc. In Halsbury's Laws of England (4th Edition Vol. 28 at Page 221. Para 502. It is stated that in its primary and legal sense 'Lien' means a right of common law in one man to retain that which is rightfully and continuously in his possession, belonging to another.
In Service Jurisprudence a person can be said to acquire a lien on a post only, when he has been confirmed and made permanent on that post or his services are regularised on a substantive vacancy and not earlier. The Hon'ble Supreme Court held that the termination of temporary officer as per rules on account of unsultability assessed on the basis of adverse entries in his character roll cannot be held to be punitive and the order of termination even after expiry of 18 years was not interfered with, but considering the facts and circumstances of the case, i.e., advance age of the petitioner, a sum of Rs. 50,000 was ordered to be paid to him as ex gratia.
9. In State of U. P. and another u. Prern Lata Misra (Km.) and others. 1994 (4) SCC 189, it was held that the Court can lift the veil of the innocuous order to find whether it was foundation or motive to pass the offending order. If misconduct is the foundation to pass the order then an enquiry into misconduct should be conducted and an action according to law should follow. But if. It is motive, it is not incumbent upon the competent officer to have the enquiry conducted and the service of a temporary employee could be terminated in terms of the order of appointment or rules giving one month's notice or pay in lieu thereof. Even if an enquiry was initiated, it could be dropped midway and action could be taken in terms of the rules or order of appointment. In the circumstances of the case, the termination is for the respondent's unsuitability or unfitness but not by way of punishment as a punitive measure and is one in terms of the order of appointment and also the Rules.
10. The aforesaid observations were made in the matter of Prem Lata (supra) whose services were terminated on the ground of misconduct. In G. B. Pant Agricultural and Technology University v. Kesho Ram. 1994 (4) SCC 437, the Hon'ble Supreme Court held that it is settled law that the order though is innocuous, it is open to the Court to lift the veil and find the cause for terminating the temporary employment. If it is by way of punishment, then necessarily an enquiry has got to be made in accordance with the rules. Otherwise it is open to the authorities, in terms of the order of appointment or the relevant rules, to terminate the service of a temporary employee without conducting an enquiry. The respondent is a temporary employee. The action has been taken against him for the reasons that the respondent was irregularly absented himself without obtaining leave and that therefore his services were terminated. Termination simplicltor is not per se by way of punishment nor does it visit with penal consequences, so it cannot be said to be for misconduct. The effect of the order has to be looked into. In this case, since the authority has got the power and exercised it under the terms and conditions of appointment, the termination per se is not illegal.
11. In Commissioner, Food and Civil Supplies, Lucknow and another v. Prakash Chandra Saxena and another, 1994 (5) SCC 177 ; the Hon'bte Supreme Court relied upon earlier two judgments Kaushal Kishore Shukla (supra) and Triveni Shanker Saxena (supra) and had occasion to discuss the dictum in Shamsher Singh v. State of Punjab, 1974 (2) SCC 831 and observed that High Court has totally misunderstood the applicability of the judgment in Shamsher Singh. It was held that the termination slmpliciter is not a penalty and the government has power and jurisdiction to terminate the service of temporary servant, without any enquiry and such termination simpliciter does not amount to be illegal. It was further observed that High Court has wrongly allowed to apply the ratio of Shamsher. where termination of the services of respondent was violative of Article 311(2) of the Constitution. The government under the said rules without holding an enquiry disturbed him although he was in service for about 20 years.
12. In a recent case Union of India and others v. Corporal A. K. Bakshi and another, 1996 (3) SCC 65, the respondent was discharged from Army. He assailed the order of discharge/termination on the ground that he was punished for misconduct under the relevant provisions of the Act hence the order was bad. The Hon'ble Supreme Court held that the punishments referred to in the Policy for Discharge are punishments that have been imposed for misconduct under the relevant provisions of the Act and the Rules. The Policy for Discharge envisages that in cases where an airman has been awarded such punishments six times, he is to be treated as a habitual offender and action for his discharge from service should be taken against him under Rule 15 (2) fgj (ii) of the Rules. This action for discharge is not by way of punishment for the misconducts for which he has already been punished. The basic idea underlying the Policy for Discharge is that recurring nature of punishments for misconduct imposed on an airman renders him unsuitable for further retention in the Air Force. Suitability for retention in the Air Force has to be determined on the basis of record of service. The punishments that have been imposed earlier being part of the record of service have to be taken into consideration for the purpose of deciding whether such person is suitable for retention in the Air Force. The discharge in such circumstances is. therefore, discharge falling under Rule 15 (2) (g) (ii) and it cannot be held to be termination of service by way of punishment for misconduct falling under Rule 18 of the Rules.
13. We have cited only few of the cases: There are catena of cases on the point that if the services of a public servant is terminated on account of his unsuitabillty or unsatisfactory work, the order ipso facto would not amount to an order of punishment.
14. The services of the petitioner was terminated under the relevant rules because of his unsatisfactory work, unsuitabillty and his involvement in a criminal case. It may be said that this might have been a motive for the termination of his services, but it cannot be said that the services were terminated to punish the petitioner on the ground of misconduct alleged to have been committed by the petitioner.
15. In view of the facts and circumstances of the case, it cannot be said that the order of termination of services of the petitioner was by way of-punishment or the impugned order simpliciter has been camouflaged as an order of punishment, causing a stigma on the conduct and character of the petitioner. The order of termination was passed in accordance with the rules governing the conditions of the service of the petitioner.
16. The writ petition is devoid of merits and is accordingly dismissed.