TMI Blog1991 (1) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity on the ground that he was not suitable, the order cannot be said to be a decision given in good faith. The High Court further observed: Even if any punishment was to be awarded, it should have been proportionate to the alleged offence , if any. On these findings the High Court held that the order of termination suffered from apparent error of law, it accordingly allowed the respondent's writ petition and quashed the order of termination. The factual matrix of the case is in a short compass. The respon- dent, was appointed on ad-hoc basis on 18.2.1977 as an Assistant Auditor under the Local Funds Audit Examinater of the State of Uttar Pradesh, for a fixed period ending on 31.8.1977. In December, 1977 the respondent was again appointed on ad-hoc basis for a period ending on 28.2.1978. Since the regular appointment could not be made in time, the respondent's services were extended from time to time. The last extension was granted on 21.1.1980 and the extended period of service was to expire on 28.2.1981. The terms and conditions of respondent's service as contained in the order of appointment stated that the appointment was ad-hoc, purely temporary f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad-hoc and temporary employees and the terms and conditions of his employment were regulated by the U.P. Temporary Government Servant (Termination of Services0 Rules, 1975. The contract of service as contained in the appointment letter also stipulated the terms and conditions of the respondent's employment that his services were liable to be terminated at any time without assigning any reason or compensation. In the counter-affidavit filed before the High Court the order of termination was defended on the ground that the respondent's work and conduct were not satisfactory and he was unsuitable for the service, therefore his services were terminated. To support that contention the appellant placed reliance on the adverse entry awarded to the respondent in the year 1977-78 and also on the allegations made against him with raged to the audit of the Boys Fund of Raja Raghubar Dayal Inter College. The High Court held that since junior persons to the respondent in service were retained, the order of termination was rendered illegal. In our opinion, the principle of 'last come first go' is applicable to a case where on account of reduction of work or shrinkage of cadre re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. 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 are terminated, no exception can be taken to such an order of termination. A temporary Govt. 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 conditions of temporary Govt. servants. A temporary Govt. servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in`ia, C.A. No. 1341/66 decided on 13.12.1966 and Shamsher Singh Anr. v. State of Punjab,[1975] 1 SCR 814, These decisions have been discussed and followed by a three Judge Bench in State of Punjab Anr. v. Shri Sukh Raj Bahadur, [1968] 3 SCR 234. Learned counsel for the respondent urged that the allegations made against the respondent in respect of the audit of Boys Fund of an educational institution were incorrect and he was not given any opportunity of defence during the inquiry which was held ex-parte. had he been given the opportunity, he would have placed correct facts before the inquiry officer. His services were terminated on allegation of misconduct founded on the basis of an ex-parte enquiry report. He further referred to the allegations made against the respondent in the counter-affidavit filed before the High Court and urged that these facts demonstrate that the order of termination was in substance, an order of termination founded on the allegations of misconduct, and the ex parte enquiry report. In order to determine this question, it is necessary to consider the nature of the respondent's right to hold the post and to ascertain the nature and purpose of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of preliminary inquiry the Court observed as under: There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not the punish the temporary servant but just to decide whether he deserves to be continued in service or not. If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case, it would not be open to the temporary servant to invoke the protection of Art. 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged. In Champaklal chiman lal Shah's case (supra) the appellant therein was a temporary employee of the Union Government. His services were terminated without assigning any reasons and without affording him opportunity of showing-cause. Before passing the order of termination the competent authority had issued a notice to Champaklal Chimanl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of Art. 311 and all the rights that protection implies as already indicated above. There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments. indicated in art. 311 that the government servant is entitled to the protection of that Article. That is why this Court emphasised in Parshotam Lal Dhingra's case (supra) and in Shyamlal v. The State of Uttar pradesh, [1955] 1 SCR 26 that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant. The above principles were reiterated by anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as seriously contended before this Court that in view of the charges being framed and the enquiry officer having been appointed the order of termination in substance was an order of punishment and the recourse to the temporary service rules had been taken only to circumvent Art. 311 of the Constitution. The Constitution Bench repelled the contention and held that the preliminary enquiry held against the Govt. servant must not be taken to mean that the Govt. had taken decision to inflict major punishment on Benjamin. The Court held that no temporary Govt. servant is entitled to opportunity in the preliminary inquiry as there is no element of punitive proceedings in such an inquiry; the idea in holding such an inquiry is not to punish the temporary government servant but just to decide whether he deserves to be continued in service or not. Further the Constitution Bench held that even if formal departmental inquiry is initiated against the temporary Govt. servant, it is open to the competent authority to drop further proceedings in the departmental enquiry against the temporary govt. servant and to have recourse to Rules applicable to a temporary Govt. servant for terminating his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 and 16 of the Constitution as power of termination had not been exercised honestly, in good faith for valid considerations. Secondly, the grounds mentioned in the report of the superintendent of Police on the basis of which the services of the Sub-Inspector had been terminated were mere allegations and there was no definite material for terminating his services. Thirdly, the Court held that since the inquiry against Nepal Singh on the charges had been dropped for want of jurisdiction and since no attempt was made to institute a proper inquiry, instead his services were terminated on the allegation of misconduct the order of termination was violative of Article 311(2) of the Constitution. The Court further held that the termination order had been passed to circumvent the constitutional provision of Art. 311(2) of the Constitution. The facts and circumstances in Nepal Singh's case were quite different than those in the instant case. However, Nepal Singh's case is no authority for the proposition that the services of an ad-hoc and temporary employee cannot be terminated even if the competent authority on an assessment of the work and the conduct of the employee finds him u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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