JUDGMENT Dilip Gupta, J.
1. This writ petition has been filed for quashing the order dated 7th August, 1997 passed by the Mukhya Nagar Adhikari, Kanpur Nagar Nigam, Kanpur (hereinafter referred to as the 'Nagar Nigam') by which the services of the petitioner who was working as a temporary Sweeper have been terminated.
2. The petitioner was appointed as an ad hoc temporary Sweeper in the Nagar Nigam by the order dated 8th April, 1997 with the clear stipulation that the services were purely temporary in nature and could be terminated at any time without notice. On the basis of the aforesaid appointment order, the petitioner joined his duties on 12th April, 1997 but by the order dated 7th August, 1997 the temporary services of the petitioner were terminated since on enquiries it was found that his appointment had been made on the basis of incorrect facts and was, therefore, void ab initio.
3. A counter affidavit has been filed on behalf of the Nagar Nigam pointing out that on 26th April, 1989 the petitioner had given an application for being appointed as a Sweeper but he was not selected for appointment. Subsequently the petitioner filed an application dated 7th September, 1993 representing that appointment may now be given to him on the basis of the earlier application dated 26th April, 1989. The Authorities found that his name was at serial No. 148 in the waiting list and so he was given appointment by the order dated 8th April, 1997 but when enquiry was made it was found that his name had been subsequently incorrectly inserted at serial No. 148 in the waiting list. Therefore, as soon as this fact came to the notice of the Authorities, the termination order dated 7th August, 1997 was passed.
4. I have heard Sri R.B. Singhal learned Counsel for the petitioner and Sri M.M.D. Agarwal learned Counsel appearing for the respondents and have perused the materials available on record.
5. Learned Counsel for the petitioner submitted that prior to his temporary appointment by the order dated 8th April, 1997 the petitioner had been engaged as a Sweeper on daily basis but after his appointment on 8th April, 1997 he joined the post and worked till the termination order was passed on 7th August, 1997. Placing reliance upon Rule 9 of the U.P. Municipal Boards Servants (Inquiry, Punishment and Termination of Service) Rules (hereinafter referred to as the 'Municipal Boards Rules') he submitted that even though he was a temporary servant, an opportunity of showing cause was required to be given to him if the termination was for any specific fault or on account of unsuitability of his service, but in the instant case no opportunity at all had been given to the petitioner. He, therefore, contended that the termination order was liable to be quashed. A further submission was made by him that in any view of the matter the order of termination dated 7th August, 1997 was not an order simplicitor but was stigmatic and, therefore, in such circumstances opportunity was also required to be given to him before passing the order of termination.
6. Sri M.M.D. Agarwal learned Counsel for the respondents, on the other hand, submitted that the Municipal Boards Rules were not applicable to the petitioner and his services were governed by the Nagar Nigam Sewa Niyamawali in which there was no requirement of giving any opportunity prior to terminating the services of temporary employees; that the appointment of the petitioner was purely temporary in nature and could be terminated at any time without notice or opportunity in view of the clear stipulation contained in the appointment order and so no opportunity was required to be given to the petitioner before terminating his services; that the order of termination was not stigmatic in nature and that since the appointment itself was void ab initio, having been made on the basis of insertion of his name in the waiting list, the temporary appointment was rightly cancelled.
7. I have carefully considered the submissions advanced by the learned Counsel for the parties.
8. A bare perusal of the appointment letter clearly indicates that the appointment was purely temporary in nature and could be terminated at any time without notice or opportunity. Learned Counsel for the petitioner was unable to substantiate his contention that the Municipal Boards Rules were applicable to the case of the petitioner. The Municipal Boards Rules referred to by the learned Counsel for the petitioner are not applicable and the services of the petitioner are governed by the Nagar Nigam Sewa Niyamawali in which there is no provision for any opportunity being provided in cases where the services of temporary employees are terminated. The petitioner had been appointed as his name had been wrongly inserted at serial No. 148 in the waiting list. The question, therefore, that arises for consideration is whether in such cases the employer can terminate the services and whether even in such cases opportunity is required to be given.
9. The petitioner was clearly a temporary employee and the terms and conditions contained in the appointment letter clearly provided that his services could be terminated at any time without notice. A temporary employee has no right to the post as has been held by the Supreme Court in the cases ofState of U.P. v. Kaushal Kishore Shukla ; Triveni Shankar Saxena v. State of U.P. and Ors. ; Commissioner of Food & Civil Supplies v. Prakash Chandra Saxena ; Ram Chandra Tripathi v. U.P. Public Services Tribunal and Ors. ; Madhya Pradesh Hast Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain and Anr. .
10. In the present case his services have been terminated as it was found that he was not entitled to be appointed as his name actually did not occur in the waiting list but had been subsequently inserted at Serial No. 148. What is also to be noticed is that on the basis of the application submitted by him on 26th April, 1989 appointment had not been given to him but subsequently after a period of about eight years he had been offered appointment on the basis of a selection made years earlier as his name was mentioned at Serial No. 148 in the waiting list which fact was found to be incorrect on the basis of enquiry having been conducted. Thus, the respondents were justified in terminating the temporary services of the petitioner, as he had no right to the post.
11. It has now to be seen whether any opportunity is required to be given when such temporary appointments are cancelled.
12. It cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi v. State Bank of India and Ors. ; N.K. Prasad v. Government of India and Ors. ; State of Punjab v. Jagir Singh ; Karnataka SRTC v. S.G. Kotturappa and in Vlveka Nand Sethi v. Chairman, J&K Bank Ltd. .
13. In Union of India v. Tulsiram Patel the Hon'ble Supreme Court held:-
Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible.
14. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in Sohan Lal Gupta v. Asha Devi Gupta ; Mardia Chemicals Ltd. v. Union of India and Canara Bank v. Debasis Das .
15. Wade 'On Administrative Law' 5th Edition at pages 472-475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply and nor as to their scope and extent. Everything depends on the subject-matter. The application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a mere technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.
16. The Constitution Bench of the Supreme Court in Managing Director ECU, Hyderabad v. B. Karunakar made reference to its earlier decisions and observed:-
In A.K. Kraipak v. Union of India it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.
In Chairman, Board of Mining Examination v. Ramjee the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
17. In the present case it was for the Authority to determine on the basis of its own record as to whether the name of the petitioner was actually contained in the waiting list and for this purpose it conducted and enquiry. The report clearly shows that his name had been subsequently inserted at Serial No. 148. In such circumstances, when the appointment itself was purely temporary in nature and could be terminated without notice, in my opinion, the contention of the learned Counsel for the petitioner that opportunity was required to be given to the petitioner before terminating his services cannot be accepted. It has been clearly held by the Supreme Court that a temporary employee has no right to post and his services can be terminated without giving any opportunity of hearing.
18. Learned Counsel for the petitioner placed reliance upon the decision of the Supreme Court in the case of Director General of Police and Ors. v. Mrityunjoy Sarkar and Ors. in support of his contention that before discharging the services of the petitioner, opportunity was required to be given. A perusal of the said decision shows that the Supreme Court was not dealing with a matter relating to temporary service. It is, therefore, not applicable to the facts of the present case where admittedly the services of the petitioner were purely temporary in nature and could be terminated at any time without notice. In fact, the decisions of the Supreme Court, referred to above, in matters of temporary service are applicable to the facts of this case.
19. The matter can be examined from another angle and that is whether this Court under Article 226 of the Constitution of India should quash an order on the ground of breach of natural justice if it would result in the restoration of an order passed earlier in favour of the petitioner which is otherwise not in accordance with law.
20. The Hon'ble Supreme Court in the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors. refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice and observed as follows:-
In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise as extraordinary discretionary power in the circumstances of the case.
21. Similar view was taken by the Hon'ble Supreme Court in Mohammad Swalleh and Ors. v. Third Addl. District Judge, Meerut and Anr. ; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors. and Mallikarjuna Mudhagal Nagappa and Ors. v. State of Karnataka and Ors. wherein the Court held that interference was not necessary, if the result of the interference would be the restoration of another order which was not legal.
22. In the present case, if the order dated 7th August, 1997 is quashed, it would result in reviving the illegal appointment letter and, therefore, also in view of the aforesaid decisions, I do not consider it appropriate to quash the order on the ground that principles of natural justice have been violated.
23. It must also not be forgotten that the High Court under Article 226 of the Constitution can refuse to exercise its discretionary jurisdiction where the petitioner claims a relief to secure a dishonest advantage or perpetuate an unjust gain.
24. In Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr. the Hon'ble Supreme Court observed:-
A Court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from clefty evasions and new subtelities invented to evade law.
25. In the case of M.P. Mittal v. State of Haryana and Ors. , the Hon'ble Supreme Court held as follows:-
The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain. This is a case where the High Court was fully justified in refusing relief.
26. The Hon'ble Supreme Court in State of Maharastra v. Prabhu considered the equity jurisdiction of the High Court under Article 226 of the Constitution and pointed out as follows:-
Even assuming that the construction placed by the High Court and vehemently defended by the learned Counsel for respondent is correct should the High Court have interfered with the order of Government in exercise of its equity jurisdiction.... Where the Government or any authority passes an order which is contrary to rules or law it becomes amenable to correction by the Courts in exercise of writ jurisdiction. But one of the principles inherent in it is that the exercise of power should be for the sake of justice. One of the yardstick for it is if the quashing of the order results in greater harm to the society then the Court may restrain from exercising the power.... Therefore, even if the order of the Government was vitiated either because it omitted to issue a proper show-cause notice or it could not have proceeded against the respondent for his past activities the High Court should have refused to interfere in exercise of its equity jurisdiction as the facts of the case did not warrant interference.... It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good.
27. The same position was reiterated by the Hon'ble Supreme Court in the case of Chandra Singh v. State of Rajasthan and Anr. in which it was observed as follows:-
Issuance of a writ of Certiorari is a discretionary remedy (Champalal Binani v. CIT, West Bengal ). The High Court and consequently this Court while exercising its extra ordinary jurisdiction under Articles 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant.
28. In ONGC Ltd. v. Sendhabhai Vastram Patel and Ors. reported in (2005) 6 SCC 454, the Supreme Court held as follows:-
It is now well settled that the High Court and the Supreme Court while exercising their equity jurisdiction under Articles 226 and 32 of the Constitution as also Article 136 thereof may not exercise the same in appropriate cases. While exercising such jurisdiction, the superior Courts in India may not strike down even a wrong order only because it would be lawful to do so. A discretionary relief may be refused to be extended to the appellant in a given case although the Court may find the same to be justified in law. [See S.D.S. Shipping (P) Ltd. v. Jay Container Services Co. (P) Ltd. ].
29. The observations made in the aforesaid decisions compel me not to grant relief to the petitioner as granting any relief would facilitate the petitioner in securing a dishonest advantage and perpetuate an unjust gain.
30. Learned Counsel for the petitioner then submitted that the termination order was not an order simplicitor but was stigmatic since it was mentioned in the termination order that on making enquiries it was found that the appointment had been made on the basis of incorrect facts. Learned Counsel for the respondents, however, submitted that the order was not stigmatic in nature and hence no opportunity was required to be given to the petitioner before terminating his services.
31. The question that needs to be considered is whether the order terminating the services of the petitioner was stigmatic in nature. The Supreme Court in the case of State of U.P. v. Kaushal Kishore Shukla (supra) held as follows:-
The respondent being a temporary government servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him. The termination order does not indict the respondent for any misconduct. The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent's suitability and continuance in service. There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent's services by an innocuous order in accordance with the terms and conditions of his service. Mere fact that prior to the issue of order of termination, an inquiry against the respondent in regard to the allegations of unauthorised audit of Boys Fund was held, does not change the nature of the order of termination into that of punishment as after the preliminary inquiry the competent authority took no steps to punish the respondent, instead it exercised its power to terminate the respondent's service in accordance with the contract of service and the Rules. The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination.
32. In Ravindra Kumar Misra v. U.P. State Handloom Corporation. Ltd. 1987 Supp SCC 739 the Supreme Court observed as follows:-
In several authoritative pronouncements of this Court, the concept of 'motive' and 'foundation' has been brought in for finding out the effect of the order of termination. If the delinquency of the officer in temporary service is taken as the operating motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon it, the termination is considered to be a punitive action. This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis. Since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character.
33. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences the Supreme Court observed as follows:-
One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any of the three factors is missing, the termination has been upheld....
Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, it also not stigmatic.... In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.
34. After referring to the aforesaid decisions, the Supreme Court in the case of State of Punjab and Ors. v. Sukhwinder Singh observed as follows:-
It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact-finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.
35. In State of U.P. and Ors. v. Ram Bachan Tripathi (2005) 6 SCC 496 the Supreme Court observed as follows:-
We shall first examine the plea relating to the stigma. Usually a stigma is understood to be something that is detraction from the character or reputation of a person. It is a blemish, imputation, a mark or label indicating a deviation from a norm.
Mere description of a background fact cannot be called a stigma. In the termination order it was merely stated that the show-cause notices were issued and there was no response. This can by no stretch of imagination be treated as a stigma as observed by the Tribunal and the High Court.
36. In H.F. Sangati v. Registrar General, High Court of Karnataka and Ors. the Supreme Court while considering the discharge of a probationary Munsif held:-
The impugned order does not cast any stigma on the appellants. AH that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsif. The impugned order of discharge has been passed in strict compliance with the requirements of Rule 6, It does not cast any stigma on the appellants nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice, much less to hold any formal proceedings of inquiry before making the order.
37. After referring to the aforesaid decision the Supreme Court in Municipal Committee, Sirsa v. Munshi Ram 2005 AIR SCW 762 held as follows:-
This law laid down by a three-Judges Bench of this Court also shows that if an employer discharges the services of a probationer on the ground that his services are unsuitable, it does not cast any stigma on the employee nor it is punitive, in such cases even the principle of natural justices does not apply and there is no need for formal proceedings of inquiry before making such order....
As noticed above in the instant case, the respondent having been appointed as a probationer and his working having been found not to the satisfaction of the employer, it was open to the management to terminate his services. Assuming that there was an incident of misconduct or incompetencey prior to his discharge from service, the same cannot be ipso facto be termed as misconduct requiring an inquiry. It may be a ground for the employer's assessment of the workman's efficiency and efficacy to retain him in service, unless, of course, the workman is able to satisfy that the management for reasons other than efficiency wanted to remove him from services by exercising its power of discharge.
38. The order dated 7th August 1997 which has been impugned in the present petition merely mentions that the services were being terminated since on the basis of the enquiry it was found that his appointment had been wrongly made. It cannot be said that this order is stigmatic in nature as mere mention of the background fact that an enquiry had been conducted and that the appointment had wrongly been made cannot be said to be stigmatic in nature. If in every case of temporary service, where some fact finding enquiry is made, it is held that the order of discharge or termination is punitive in nature, then as observed by the Supreme Court in Sukhwinder Singh (Supra), the difference between a probationer or a temporary employee and a permanent employee would be completely obliterated. The allegations made in the counter affidavit by way of a defence filed on behalf of the defendants also does not change the nature and character of the order of termination.
39. Learned Counsel for the petitioner placed reliance upon a decision of the Supreme Court in the Case of Dipti Prakash Banerjee v. Satyendra Nath Base National Centre for Basic Science, Calcutta , in support f his contention that the impugned order was stigmatic. In this case the termination order referred to three letters, one of which explicitly referred to misconduct on the part of the employee. It was in these circumstances that the termination order was held to be stigmatic. The said decision was also considered by the Supreme Court in the subsequent decision of Pavendra Narayan Verma (Supra) wherein it was held that use of the word 'unsatisfactory work and conduct' in the termination order will not amount to stigma.
40. Learned Counsel for the petitioner then contended that as the petitioner had been initially engaged as a sweeper on daily basis in the year 1989, it must be deemed that was appointed on substantive basis on the basis of the order dated 8.4.1997 and in support of his contention he placed reliance upon the decision of the Supreme Court in the case of Ramesh K. Sharma and Anr. v. Rajasthan Civil Services and Ors. reported in (2001) 1 SCC 637. In the first instance, the said decision is not applicable to the facts of the present case as the petitioner has not laid any factual foundation for grant of relief in the petition. This apart, in paragraph 4 of the judgment it has been stated that if the incumbent is appointed after due process of selection either to a temporary post or a permanent post then such appointment, not being either stopgap or fortuitous, could be held to be on substantive post. The initial appointment of the petitioner thus had to be in accordance with the procedure prescribed in the Rules but there is nothing on the record to indicate that it was so. The said decision is, therefore, not applicable.
41. For all the reasons stated above, the petition is liable to be dismissed and is accordingly dismissed. There shall be no order as to costs.