TMI Blog1993 (1) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... language employed in the impugned order. The termination of services of the appellant, therefore, without complying with the requirements of Article 311(2) of the Constitution and the Central Civil Services (Classification, Control and Appeal) Rules is illegal and void. 2. The Writ Petition came up for hearing before a learned single Judge who dismissed the same, holding that there is no evidence that the appellant has acquired the quasi permanent status and that Article 311 is not applicable in his case as he is a civilian holding the post in defence service, aggrieved by which, the appellant has filed a Writ Appeal. 3. The Writ Appeal was allowed on the ground that the delegation made by the appointing authority to the 2nd respondent, namely, Group Captain, D.R.D.L. is beyond the powers of the appointing authority under proviso to Rule 9(1) of the Central Civil Services (Classification, Control and Appeal) Rules. However, on the application made by the respondents herein, the learned Judges granted leave to appeal to the Supreme Court. The Supreme Court allowed the Civil Appeal No. 316 of 1981 filed by the respondents holding that the delegation of power made in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order. But the salary and allowances for one month in lieu of notice was not paid into the hands of the appellant at the time of serving the notice of termination of services on the appellant. In support of his contention, the learned counsel relied upon the decision of the Supreme Court in Senior Superintendent v. K.V. Gopinath, 1972 SLR 390. (3) The impugned order of termination although innocuous, the attendant circumstances would show that it was by way of punishment and the Court can go behind the order and lift the veil. In this connection, he relied upon the averments made in paragraphs 7 and 8 of the counter-affidavit and submitted that the statements made by respondents 1 and 2 casts a stigma and since no enquiry is held, the impugned order is liable to be quashed. He relied upon a number of decisions in support of his contention, the latest being the decision of the Supreme Court in Om Prakash Gael v. Himachal Pradesh Tourism Development Corporation Ltd, : [1991]2SCR701a . (4) The impugned order is violative of Articles 14 and 16 of the Constitution of India as persons appointed subsequent to the date of appointment of the appellant as Tool Maker Grade-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant reads as follows: 'xxx xxxSubject: Offer of appointment for the post of Tool Maker Grade 'A'. You are hereby offered a temporary post of Tool Maker Grade 'A' in the Defence Research and Development Laboratory of the Ministry of Defence on pay of ₹ 150/- per month in the scale of ₹ 150-5-175-6-205- EB-7-240. xxx xxx xxx2. The terms and conditions of the appointment are as follows: (i) The post is temporary. (ii) You will be on probation for a period of six months. The appointment may be terminated at any time by a month's notice given by either side, viz., you or the appointing authority without assigning any reasons. The appointing authority, however, reserves the right i.e., of terminating your services forthwith before the expiration of the stipulated period of notice by making allowances for the period of notice or the pay and allowances for the period of notice or the unexpried portion thereof. xxx xxx xxxSd. Senior Administrative Officer Gr.I for Director.' 9. The impugned order of termination dated 2-1-1978 issued by the 2nd respondent reads as follows: 'xxx xxxOrder In pursuance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervant and provides that whichever authority is the highest authority among them would be the appointing authority in relation to the Government servant concerned. It was held that since the order of termination was made by the Director of Administration whereas the appointment was actually made by the Director General, G.S.I., the Director of Administration is not competent to issue the order of termination. The learned Judges of the Supreme Court also observed as under: '......In the absence of any definition of 'appointing authority' in the Central Civil Service (Temporary Service) Rules, 1965 in relation to a temporary Government servant not holding a specified post, as the appellant was, we think the term 'Appointing Authority' must be understood in is plain and natural meaning, namely, the authority which appointed him. From this point of view also the impugned notice of termination was given by an authority which was not the appointing authority and as such did not satisfy the requirement of Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965.' 13. The above judgment was followed by the High Court of Himachal Pradesh in Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r one month in lieu of one month's notice was not paid into the hands of the appellant. In this context, we may refer to the additional counter-affidavit filed by the respondents wherein they have categorically mentioned that 'that the services of the petitioner have been terminated with effect from 3-1-1978 and on the same day that is on 3-1-1978 one month's pay plus allowances, namely ₹ 687/- were sent by money order. Therefore, the payment was made forthwith.' In view of the statement in the counter-affidavit, we reject this contention of the learned counsel for the appellant. 17. The other contention of Sri Suryanarayana is that though the order is innocuous in view of the statements in paragraphs 7 and 8 of the counter- affidavit, the impugned order is passed by way of punishment and there was no enquiry. Further, the juniors of the appellant were retained while the services of the appellant were terminated. 18. Paragraphs 7 and 8 of the counter-affidavit refer to certain events which took place on 30th and 31st December, 1977. The contents of para 7 in brief are that the 2nd respondent received a telephone message that there was some problem in one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to ascertain whether it is desirable to continue the employee in service, terminate the service in exercise of the power conferred in Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965. 20. In this context, we may refer to the judgment of the Supreme Court in State of Uttar Pradesh v. Kaushal Kishore Shukla (5 supra), relied upon by Sri Ranganatham, learned counsel for the respondents. We may briefly refer to the facts of the said case. The respondent Kaushal Kishore Shukla was appointed on ad hoc basis as an Assistant Auditor on 18-2-77 under the Local Funds Audit Examinator of the State of Uttar Pradesh for a fixed period ending on August 31, 1977. His services were extended from time to time and the extended period of service was to expire on 28-2-1981. He was awarded an adverse entry in his character roll for the year 1977-78. He along with one Rajendra Prasad Pandey were deputed to audit the accounts of Raja Raghubar Dayal Inter College, Sitapur for the year 1979-80. While carrying on the audit they alleged to have acted in excess of their authority in auditing the 'Boys Fund Accounts' of the said college for the year 1979-80 on their own acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above conclusions, the learned Judges of the Supreme Court have placed reliance on the decisions in R.K. Misra v. U.P. State Handloom Corporation, 1987 Supp. SCC 739., State of Orissa v. Ram Narain Dass, : (1961)ILLJ552SC ., Jagdish Mitter v. Union of India, : (1964)ILLJ418SC . Champakla Chimanlal Shah v. Union of India, : (1964)ILLJ752SC ., R.C. Lacy v. State of Bihar, C.A. No. 590/62 decided on Oct.23, 1963 (SC). A.G. Benjamin v. Union of India, (1967)1 LLJ 918., and distinguished the decisions of the Supreme Court in Nepal Singh v. State of U.P. : (1986)IILLJ343SC ., and Ishwar Chand Jain v. High Court of Punjab and Haryana, : AIR1988SC1395 . The decision of the Supreme Court in Kaushal Kishore Shukla's case (5 supra) answers the contention raised by Sri Y.Suryanarayana, learned counsel for the appellant. 21. However, Sri Y. Suryanarayana, learned counsel placed reliance on the judgment of the Supreme Court in Om Prakash Goel v. H.P.Tourism Development Corporation Ltd., (4 supra). The relevant facts of the said case are that the petitioner therein was appointed as an Accountant in the Himachal Pradesh Tourism Development Corporation Ltd. He was on probation. A charge-shee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the judgment in Anoop v. Government of India, : (1984)ILLJ337SC ., is also by a Bench consisting of two Judges. The judgment in Samsher Singh v. State of Punjab, : (1974)IILLJ465SC ., has not laid down any principle different from what has been laid down in the latest decision of the Supreme Court in K.K. Shukia's case (5 supra). We may refer to the observations made by the learned Judges in Samsher Singh's case (20 supra): '.....Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temporament or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this....' 23. Thus, it is open to the authorities to terminate the services of a probationer on grounds of unsuitability without inflicting any stigma on his service. The other judgment relied on by the learned counsel for the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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