JUDGMENT Umeshwar Pandey, J.
1. The petitioner, Ram Darash Pandey, whose services as Class IV employee (Notice Server/Chaukidar) with respondent No. 5, Development Authority, Gorakhpur have been terminated, has approached this Court under Article 226 of the Constitution of India with the following prayer :--
(a) Issue a writ, order or direction in the nature of certiorari quashing the termination order dated 23.3.81 (Annexures 3/A and 3/B) and order and judgment of the Tribunal dated 9.1.83 and 19.12.85 (Annexures 5 and 6);
(b) Issue a writ of mandamus directing the respondent No. 4, Gorakhpur Development Authority to treat the petitioner in its regular service as Notice Server and to pay his requisite salary and all other allowances as and when it becomes due; and
(c) Issue any writ, order, direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
2. The facts as disclosed in the writ petition are that the petitioner, vide Annexure-1 to the writ petition, was appointed as Notice Server (a Class IV Post) on 11.7.1977, in the office of Gorakhpur Development Authority. While serving there, the respondent No. 2, Sri Kant Khare, the then Secretary to the respondent No. 5, unduly tried to compel the petitioner to work at his residence as domestic servant. The petitioner did not concede to this pressure and was threatened by the Secretary with dire consequences. Thereafter respondent No. 3 Hausala Prasad succeeded respondent No. 2 as Secretary in the Authority and he also, in the same fashion, tried to utilise the petitioner as domestic servant. As usual, the petitioner did not oblige him also. Out of vengeance and in order to harass him, the then Secretary (respondent No. 3) transferred the petitioner from the post of Notice Server to the post of Chaukidar. This was a malicious act and it is contended that the petitioner was not supposed to work as Chaukidar when he was appointed on the post of Notice Server. He made a representation (Annexure-2 to the writ petition) against this transfer to the Higher Authorities. Later on his services were terminated, vide impugned order dated 23.3.1981 (Annexures 3 and 4 to the writ petition). Aggrieved with this order of termination, the petitioner approached respondent No. 1. the U.P. Public Services Tribunal (in short "the Tribunal"), with a claim petition, which too was dismissed, vide impugned judgment and order dated 9.1.1985 (Annexure-5 to the writ petition). He, thereafter, preferred a review petition before the Tribunal and that was also dismissed, vide judgment dated 10.12.1985 (Annexure-6 to the writ petition). It is further contended by the petitioner that the termination of his services in the Cadre of Class IV employee by the respondent is arbitrary, mala fide and in violation of Articles 14 and 16 of the Constitution of India and the persons, junior to him in the Cadre, have been retained in service. The impugned termination order is stigmatic and punitive in nature and is, thus, violative to Article 311 of the Constitution of India. Since, the petitioner was indicted for the purposes of awarding punishment of termination of service and was not afforded any opportunity of defence by holding departmental enquiry, the order suffers from non-observance of the principle of natural justice. Respondent No. 1, the Tribunal, failed to consider the mala fide alleged in the claim petition against respondents No. 2 and 3.
3. Respondents No. 2 to 6, as per the office report, are represented by Sri P.P. Srivastava and Sri S.P.K. Tripathi, Advocates, Sri Tripathi was required to file Vakalatnama, but he did not file the same. Obviously, no counter-affidavit has been filed in this case from the side of respondents.
4. We have heard the learned Counsel for the parties at length and have gone through the record.
5. Learned Counsel for the petitioner has contended that the services of the petitioner were terminated on account of malice and prejudice which the then Secretary to the Development Authority, because of petitioner being not amenable to accept his proposal to work as his domestic servant, was harboring against him. It is stated in the petition that respondent No. 2 Sri Kant Khare, the Secretary, when asked the petitioner to work as his domestic servant and to which he did not agree, Sri Khare together with respondent No. 3, Hausala Prasad, terminated his services. On this aspect of the matter, the Tribunal, while recording its finding in the impugned judgment (Annexure-5 to the writ petition), observed in Para 8 as below:
"The petitioner has claimed prejudice against Sri Khare who was working as Secretary of the Authority and who had issued order of termination. The petitioner has not impleaded Sri Khare as a party in this claim petition. As such the allegation of prejudice cannot be examined. Even otherwise the petitioner has not denied the contention of the OPs that Sri Khare was maintaining his family at Deoria from where he came to Gorakhpur every day. The ground of prejudice has been given by the petitioner as his refusal to work as domestic servant at the residence of Sri Khare. Since, Sri Khare had not brought his family to Gorakhpur there was no question of the petitioner being forced to work at his residence. Thus, there is no force in the allegation of prejudice and on this ground the petitioner is not entitled to any relief."
6. From the aforesaid finding recorded by the Tribunal, it is evident that there could not be any presumption of element of prejudice in the impugned order passed against the petitioner terminating his service. Respondent No. 2 Sri Kant Khare was not residing at Gorakhpur, but his family was at Deoria, another District Headquarters located at a distance of more than 50 Kms. from the place of his work. Sri Khare was attending to his office every day making up and down between Deoria and Gorakhpur. Therefore, the element of prejudice and mala fide is not perceptible in the present case and the Secretary, Development Authority, who passed the impugned order of termination of petitioner's services cannot be said to have been influenced in that manner for bringing out the said order against the petitioner.
7. Learned Counsel for the petitioner, while making his submissions, has emphasised that the services of Ram Darash Pandey could not have been dispensed with in the manner as has been done in this case, because several persons junior to him in the Cadre of Class IV working with respondent No. 5, the Development Authority, Gorakhpur, have been retained in service and the order of termination passed on the ground of inability and indiscipline is also punitive in nature. It is violative of Articles 14, 16 and 311 of the Constitution of India.
8. From perusal of the impugned orders (Annexures 3 and 4 to the writ petition), it is clear that it is a pure and simple order of termination without exposing the delinquent to any indictment. It does not speak of any charges of misconduct etc. against him. It is, however, obvious that while passing an innocuously worded order of termination of services, the employer may have some basis for it and if that basis gets reflected in the pleadings of the parties, the order of termination cannot be held to be punitive. In the present case, as per the pleadings in the petition itself, after the petitioner was transferred from the post of Notice Server to the post of Chaukidar in the Cadre of Class IV only, he made representation, vide Annexure-2 to the writ petition, in which he categorically stated that the duties of Chaukidar were being illegally taken from him. Para 6 of the writ petition, as has been framed, also states that petitioner was compelled to work as Chaukidar though this post was meant for illiterates with 24 hours duty period. He, as Notice Server, was required to attend to less duty hours from 10.00 a.m. to 5.00 p.m. only. It goes without saying that a Notice Server or Chaukidar or a peon, all the included in the Cadre of Class IV and they have the same pay scale. If someone is transferred from the post of Notice Server to the post of Chaukidar, the transfer cannot be said to be an imposition of punishment. But the petitioner here, was definitely unwilling to work as Chaukidar when he was transferred from the post of Notice Server, vide order dated 27.4.1980. From Para 6 of the petition and the representation of the petitioner (Annexure-2 to the writ petition), it is quite obvious that he was not willing to perform his duties as Chaukidar after he was posted as such in the office of Development Authority. That, actually, led his employer to pass the impugned order of termination. If the persons, junior to the petitioner, have been retained in service of the Cadre of Class IV by the Development Authority, it could not be said that the petitioner was discriminated and violation of Articles 14 and 16 of the Constitution of India has been done. It was on the basis of general unsuitability and petitioner's unwillingness to work as Chaukidar that his services have been terminated. It also does not cast any stigma upon delinquent and there does not arise any occasion of non-observance of the principle of natural justice or violation of Article 311 of the Constitution of India in passing the impugned order of termination.
9. In the aforesaid context, Paragraph 9 of the judgment of Ram Dayal v. State of U.P. and Ors., reported in 1982 UPLBEC 178, is relevant and is quoted below:
"The law relating to termination of temporary service of a public servant is well settled. If the termination order itself casts a stigma on the employee it can be challenged. If the order itself does not cast any stigma and is innocuously worded but the foundation for the order is charge of misconduct, then also the order would be amenable to challenge. In this connection a distinction has to be drawn between misconduct and unsuitability. The order would be amenable to challenge only if it is founded on the allegation of misconduct : it will not be open to challenge if it is based on unsuitability of the employee. It may also be challenged where it is the result of the mala fides of the terminating authority against the employee. A further ground of challenge may be where the order of termination results in the employee being discriminated against others similarly situated as in Belliappa's case (supra). In the case on hand the order of termination is innocuously worded. It does not cast any stigma against the petitioners one of the other grounds mentioned hereinbefore also exists. The exercise of the right of termination by the employer is, therefore, no colourable."
10. The aspect of bias, malice and casting stigma upon the petitioner while passing the impugned order of termination by the respondent has been elaborately dealt with by the Tribunal in its impugned judgment. The order of termination being innocuously worded and there being strong foundation of petitioner's unwillingness and unsuitability to the duties required to be performed by him while holding the post of Chaukidar with the respondent Development Authority, the said impugned order appears to have been rightly upheld by the respondent Tribunal. As such, the petitioner does not appear to be entitled to assail the impugned order of termination as also the impugned judgment and order of the Tribunal (Annexures 3, 4 and 5 to the writ petition). The termination order when not found colourable, we refrain from interfering into the same under Article 226 of the Constitution of India. Thus, finding no merits in the writ petition, the same is hereby dismissed with no order as to costs.