As per case facts, the plaintiff, a temporary orderly appointed in May 1977, had his services terminated in August 1984. This was set aside on appeal in November 1984, and ...
RSA-2000-1993 (O&M) [1]
149
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-2000-1993 (O&M)
Date of decision: 04.12.2025
Charan Dass (deceased) through his LRs
...Appellant(s)
Versus
Punjab State and another
...Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Prateek Mahajan, Advocate and
Mr. Kunal Soni, Advocate for the appellant(s).
Mr. Sandeep Singh, AAG, Punjab, for respondent No.1.
Mr. Pranav Chamoli, Advocate for respondent No.2.
****
VIKAS BAHL, J. (ORAL)
1. The present Regular Second Appeal has been filed by the
plaintiff and is being pursued by his LRs.
2. Challenge in the present Regular Second Appeal is to the
judgment dated 14.01.1992 vide which the suit filed by the plaintiff for
declaration to the effect that order dated 20.04.1985 passed by the District
and Sessions Judge, Amritsar whereby services of the plaintiff had been
dispensed with was illegal and even order dated 12.08.1985 whereby appeal
of the plaintiff had been dismissed was also illegal, had been dismissed.
Challenge is also to the judgment dated 27.05.1993 passed by the First
Appellate Court vide which the appeal filed by the plaintiff had also been
RSA-2000-1993 (O&M) [2]
dismissed.
ARGUMENTS ON BEHALF OF THE APPELLANT(S):-
3. Learned counsel for the appellant(s) has challenged the
judgments of the trial Court as well as of the First Appellate Court mainly on
two counts. It is firstly submitted that the order dated 20.04.1985 vide which
the services of the present appellant/plaintiff had been dispensed with is an
order of dismissal in effect and the same has been passed as a matter of
punishment and is stigmatic. It is further submitted that as has been stated in
the plaint that prior to the passing of the order dated 20.04.1985, proceedings
were initiated against the plaintiff-appellant and charge sheet was issued and
thereafter, his services were terminated on 01.08.1984 by the then Senior
Sub Judge, Amritsar and that the said order dated 01.08.1984 was
challenged by the present appellant/plaintiff and the District and Sessions
Judge, Amritsar vide order dated 21.11.1984 had set aside the said order
dated 01.08.1984 and had reinstated the present appellant/plaintiff. It is
submitted that the said proceedings were based on the basis of a complaint
made by a Judicial Officer and after the order dated 01.08.1984 had been set
aside, a subsequent order was passed by the District and Sessions Judge
dated 20.04.1985 on account of the same alleged misconduct of the plaintiff,
on which account the authorities had initially instituted the proceedings
which had culminated into the passing of the order dated 21.11.1984. It is
submitted that although, the impugned order dated 20.04.1985 when seen in
isolation shows that it is an innocuous order but when seen in the light of the
preceding facts, it is apparent that the impugned order passed is by way of
punishment. It is submitted that the plaintiff/appellant although was a
RSA-2000-1993 (O&M) [3]
temporary employee but he had been working since May, 1977 and thus, the
order dated 20.04.1985 relieving the plaintiff without giving any detailed
reason is against law. In support of his arguments, learned counsel for the
appellant(s) has relied upon the judgment of the Hon’ble Supreme Court in
the case of A.P. State Fed. Of Coop. Spinning Mills Ltd. Vs. P.V.
Swaminathan reported as 2001(10) SCC 83.
4. Second argument raised on behalf of the appellant(s) for setting
aside the impugned judgments and decrees is that the plaintiff/appellant had
been working as an Orderly since May, 1977 and prior to the passing of the
order dated 20.04.1985, he had worked for a period of more than seven years
and thus, in effect, the plaintiff was a regular employee and his services
could not have been dispensed with without giving due opportunity of
hearing to the plaintiff-appellant and without even issuing any show cause
notice to him. It is submitted that even a temporary employee has rights and
once he has worked for a period of more than seven years, then, his services
could not be terminated at the whims and fancies of the employer. In support
of his argument, learned counsel for the appellant(s) has relied upon the
judgment of the Hon’ble Supreme Court in the case of Jaggo Vs. Union of
India and others and other connected matters reported as 2024 SCC
Online SC 3826. It is submitted that the trial Court as well as the First
Appellate Court have not taken into consideration the law laid down by the
Hon’ble Supreme Court in the abovesaid two judgments and thus, the
judgments of the trial Court as well as the First Appellate Court deserve to
be set aside and since the suit of the plaintiff-appellant is meritorious, the
same should be decreed.
RSA-2000-1993 (O&M) [4]
ARGUMENTS ON BEHALF OF RESPONDENT NO.2:-
5. Learned counsel for respondent No.2, on the other hand, has
submitted that the judgments of the trial Court as well as the First Appellate
Court are in accordance with law and deserve to be upheld and the suit filed
by the plaintiff is meritless and deserves to be dismissed. It is argued that
admittedly, the plaintiff was a temporary employee and as per the terms of
his appointment, his services could be terminated or dispensed with without
assigning any cause at any time. It is submitted that the order dated
20.04.1985 is in accordance with the terms and conditions of the
appointment letter and in the said order, it had been mentioned that the
services of the plaintiff-appellant were no longer required. It is submitted
that a perusal of order dated 20.04.1985 would show that it was not even
remotely stigmatic nor it was passed by way of punishment, rather it had
been passed in accordance with the terms and conditions of the appointment
letter of the plaintiff-appellant. It is argued that it is a matter of settled law
that a temporary employee has no right to hold post and his services are
liable to be terminated in accordance with the terms of his contract. Reliance
in the said regard has been placed upon the judgment of the Hon’ble
Supreme Court in the case of State of Uttar Pradesh and another Vs.
Kaushal Kishore Shukla, reported as 1991(1) SCC 691. It is further
submitted that in the present case, there is no mala fide alleged against any
person nor any such person has been made a party by name and since the
plaintiff-appellant had no right, thus, relieving of the plaintiff-appellant in
accordance with the terms and conditions of his appointment cannot be even
remotely stated to be by way of punishment.
RSA-2000-1993 (O&M) [5]
6. It is further submitted that the present suit deserves to be
dismissed solely on the ground of non-joinder of necessary parties and also
on account of non-production of the order dated 12.08.1985 by virtue of
which the appeal filed by the plaintiff-appellant against the order dated
20.04.1985 was dismissed by the High Court. It is submitted that although
the order dated 12.08.1985 has been challenged but the said order has not
been placed on record nor it has been shown that the said order is not in
accordance with law. Further since the said order had been passed by the
Administrative Judge while deciding a Service Appeal filed by the plaintiff-
appellant, it was incumbent upon the plaintiff-appellant to have made the
High Court a party, which has not been done. It is argued that the reliance
placed by the appellant-plaintiff upon the case of Jaggo (Supra) is
completely misconceived as the said case of Jaggo (Supra) was a case
wherein the appellants therein had initially filed for regularisation of their
services and it was after the dismissal of their case for regularisation that
their services were terminated and thus, both the claims for regularisation
and illegal termination were pursued by the said employees. It is submitted
that a perusal of the plaint in the present case nowhere shows that any prayer
or relief for regularisation had been made by the plaintiff-appellant nor it
had been remotely stated by the plaintiff-appellant that the work and
responsibilities and working hours etc. discharged by him were of the same
nature as that of the regular employees, so as to claim parity with the regular
employees. It is further submitted that the judgment in the case of Jaggo
(Supra) was given in the background that the appellants therein had set up a
case for regularisation and had even made a prayer for regularisation and the
RSA-2000-1993 (O&M) [6]
Hon’ble Supreme Court, after considering the facts and circumstances
including the fact that the appellants therein had worked for more than 10
years, had opined that they were entitled to regularisation and the
termination of their services immediately after their initial case for
regularisation was dismissed, was considered to be an arbitrary and illegal
act and it was in the said background that the said judgment had been given.
It is prayed that the present appeal being meritless, deserves to be dismissed.
ARGUMENTS ON BEHALF OF RESPONDENT NO.1:-
7. Learned counsel for respondent No.1-State has also opposed the
present appeal and has adopted the arguments raised on behalf of respondent
No.2.
ANALYSIS AND FINDINGS:-
8. This Court has heard learned counsel for the parties and has
perused the paper book as well as the record of the trial Court and is of the
opinion that the present appeal is meritless and deserves to be dismissed and
judgments of the trial Court as well as the First Appellate Court deserve to
be upheld, for the reasons which have been detailed hereinafter.
9. The plaintiff-appellant had filed a suit with the following
prayers:-
“9. Under the circumstances it is prayed that a declratory
decree to the effect that the impugned order dated 20.4.1985
passed by the Distt. & Session Judge whereby the Services of
the plaintiff were terminated which order in fact is order of
dismisal or removal from services and further the order dated
12.8.1985 whereby the appeal preferred against the afore
referred order was declined by the Appellet authority are
RSA-2000-1993 (O&M) [7]
wrong, illegal, arbitrary & capricious. That the cause of the
suit be granted in favour of the plaintiff against the defendants
and the plaintiff should also be granted any other relief to
which the plaintiff is entitled under law and Justice.”
10. It was the case of the plaintiff that he was a temporary
employee and was appointed vide appointment order dated 12.05.1977 by
the then District and Sessions Judge, Amritsar and that initially, his services
were terminated on 01.08.1984 by the then Senior Sub Judge, Amritsar after
holding an inquiry and the said order was challenged by the plaintiff by
filing an appeal before the District and Sessions Judge, Amritsar, who vide
order dated 21.11.1984 set aside the order passed by the Senior Sub Judge
dated 01.08.1984 and reinstated the plaintiff-appellant as Orderly. It was
further the case of the plaintiff-appellant that thereafter, vide order dated
20.04.1985, services of the plaintiff-appellant were terminated without
holding any inquiry and the termination amounted to dismissal and was a
stigma on the plaintiff. In the plaint, no prayer for regularisation was made
nor any plea was taken that the work discharged as well as the
responsibilities of the plaintiff-appellant and that the working hours etc. of
the plaintiff-appellant were similar to that of the regular employees. No basis
was laid down for claiming parity with the regular employees. Although, the
order dated 12.08.1985, which was the order passed in Service Appeal by
the Administrative Judge of this Court, had been challenged but it is not
disputed before this Court that the said order has not been placed on record.
The High Court has also not been made a party to the suit.
11. In the written statement filed by defendant No.2-District and
RSA-2000-1993 (O&M) [8]
Sessions Judge, Amritsar, it was specifically stated that the plaintiff-
appellant was appointed on a purely temporary basis and even the service
record of the plaintiff was not good and there were several red entries in the
service record of the plaintiff-appellant. It was further specifically averred
that the services of the plaintiff-appellant were dispensed with/terminated as
he was no longer required and the same was in accordance with the terms
and conditions of the appointment order of the plaintiff in which it was
specifically mentioned that the services of the plaintiff could be terminated
without assigning any cause at any time. It was further the case of defendant
No.2 that the order of dismissal did not cast any aspersion, much less, stigma
on the plaintiff and the relieving order was simplicitor in nature.
12. The trial Court vide judgment dated 14.01.1992 dismissed the
said suit. A perusal of the said judgment would show that it was specifically
recorded that the plaintiff was appointed on purely temporary basis vide
order dated 12.05.1977 (Ex.P5) and it was specifically stated in the said
appointment order that services of the plaintiff could be terminated without
assigning any reasons at any time and that the plaintiff continued to work as
a temporary employee. It was further observed that the order dated
20.04.1985 (Ex.P6) vide which services of the plaintiff were terminated was
on the ground that his services were no longer required and the same was in
accordance with the terms and conditions of his appointment order and that
the said order was an innocuous order and could not be stated to have been
passed as a matter of punishment.
13. The argument raised on behalf of the plaintiff to the effect that
the same was stigmatic and was passed as a matter of punishment in view of
RSA-2000-1993 (O&M) [9]
the earlier order passed dated 01.08.1984, was rejected after taking into
consideration the law laid down by the Hon‘ble Supreme Court in Kaushal
Kishore Shukla’s case (Supra), and after observing that a perusal of the
order dated 20.04.1985 did not even remotely show that it was stigmatic. It
was observed that in the earlier proceedings charge sheet had been issued to
the plaintiff and his services were terminated vide order dated 01.08.1984
but the same was set aside by the District and Sessions Judge vide order
dated 21.11.1984 and the plaintiff was reinstated and it was after several
months that the subsequent order dated 20.04.1985 was passed. It was
observed that in case the intention of the Punishing Authority was to
victimize the plaintiff for the mis-conduct as stated in the charge-sheet in the
earlier proceedings, then, the competent authority could have very well after
setting aside the order dated 01.08.1984, remanded the case to the Inquiry
Officer to hold a de novo inquiry and could have also ordered fresh inquiry
on the basis of the same allegations and after completion of the same,
services of the plaintiff could very well have been terminated. It was stated
that there was no bias in the mind of the Punishing Authority and the same is
apparent from the fact that on the earlier occasion, once the authority had
found that order of dismissal dated 01.08.1984 was not passed by the
competent authority, the said order was set aside and the plaintiff was
reinstated.
14. The First Appellate Court dismissed the appeal filed by the
present appellant(s) and reiterated the fact that the termination order was in
consonance with the terms of the appointment order of the plaintiff-appellant
who was appointed on a temporary basis and could not be stated to be penal
RSA-2000-1993 (O&M) [10]
in nature. The judgments of the trial Court as well as the First Appellate
Court are well reasoned and deserve to be upheld.
15. Relevant portion of the appointment order which has been
produced as Ex.P5 by the plaintiff is reproduced hereinbelow:-
“ORDER
Shri Charan Dass son of Shri Pritam Dass who was
recommended by the Employment Exchange, Amritsar is
appointed as Orderly in the Court of Shri B.S.Teji, Additional
District and Sessions Judge, Amritsar, purely on temporary
basis in the grade of Rs.70-2-80/3-95 plus usual allowances
admissible to Punjab Government employees with effect from
12th May, 1977. His services are liable to termination without
any cause at any time.
12.5.1977. Sd/- S.S.Sodhi,
District & Sessions Judge,
Amritsar.”
A perusal of the same would show that it had specifically been
stated that the appellant-plaintiff was being appointed purely on temporary
basis and his services were liable to be terminated without any cause at any
time. It is not in dispute that the said terms of the appointment order have
never been challenged by the plaintiff nor have even been challenged in the
present suit and the plaintiff continued to work as a temporary employee on
the abovesaid terms and conditions. No claim for regularisation was ever
filed by the plaintiff nor any such prayer was made even in the present suit.
On 20.04.1985, services of the plaintiff were terminated/relieved on the
ground that his services were no longer required. Order dated 20.04.1985
which has been duly exhibited as Ex.P6 is reproduced hereinbelow:-
RSA-2000-1993 (O&M) [11]
“ORDER
The services of Sh. Charan Dass, Orderly to the court of
Sh.J.S. Khushdil, Judicial Magistrate Ist Class and Sub Judge II
Class, Amritsar, being purely temporary are hereby terminated
with effect from today forenoon, being no longer required.
20.4.1985. Sd/-
District & Sessions Judge,
Amritsar.”
A perusal of the said order would show that same cannot even
remotely be stated to be stigmatic or having been passed by way of
punishment. In fact, the said order has been passed in accordance with the
terms and conditions of the appointment order. No mala fide has been
alleged by the plaintiff-appellant in the suit, nor any person has been made a
party by name.
16. The Hon’ble Supreme Court in Kaushal Kishore Shukla’s case
(Supra), which was a judgment passed by a Bench of three Hon’ble Judges,
had observed that under service jurisprudence, a temporary employee has no
right to hold the post and his services are liable to be terminated in
accordance with the relevant service rules and the terms of the contract of
service and in case the competent authority is satisfied that the employee is
not suitable for the service whereupon the service of the temporary
employee is terminated, no exception can be taken to such an order of
termination. It was further observed that since the said temporary employee
has no right to hold post, thus, termination of such Government servant,
more so, in pursuance of the terms and conditions of his appointment letter,
does not visit him with any evil consequences.
RSA-2000-1993 (O&M) [12]
17. In the said case, the question which arose for consideration
before the Hon’ble Supreme Court was to the effect that as to whether the
order terminating the servicess of the respondent therein, who was
admittedly an ad hoc and temporary employee, was vitiated in law. In the
said case, it was observed that the High Court had held that since persons
junior to the respondent therein were retained in the service whereas service
of the respondent therein was terminated, the order of termination was
discriminatory in nature and was founded on an adverse entry awarded to the
respondent therein in his character roll, without giving him any opportunity
and thus, the said order could not be said to have been passed in good faith.
The Hon’ble Supreme Court, while setting aside the judgment of the High
Court and allowing the appeal filed by the State, had observed that it was
erroneous to hold that where a preliminary inquiry against a temporary
Government servant was held or was initiated but was thereafter abandoned,
before the issue of order of termination, such order is necessarily punitive in
nature. It was further observed that with respect to temporary employee,
appropriate authority has the power to terminate his services by discharging
him under the terms of the contract/relevant Rules.
18. It would be relevant to note that in the abovesaid case, the
respondent therein was an Assistant Auditor and was appointed on
18.02.1977 and his term was extended and he continued to work till
23.09.1980 and had thus, worked for a period of more than three years and
even, the appointment letter of the said respondent contained similar terms
as that in the case of the present appellant, as it was stated in the
appointment letter of the said respondent that his services could be
RSA-2000-1993 (O&M) [13]
terminated at any time without assigning any reason or compensation.
Relevant portion of the abovesaid judgment which fully supports the case of
the present respondents is reproduced hereinbelow:-
“3.The sole question which falls for consideration in this
appeal is whether the order dated 23.9.1980 terminating the
respondent's services, who was admittedly an ad hoc and
temporary employee is vitiated in law. The High Court has
held that since juniors to the respondent were retained in
service while the respondent's services were terminated, the
order of termination was discriminatory in nature. It further
held that since the order of termination was founded on an
adverse entry awarded to the respondent in his character roll
without giving him any 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.
4. xxx xxx
5. …… 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
RSA-2000-1993 (O&M) [14]
made against him with regard 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 retrenchment takes place and the services of employees
are terminated on account of retrenchment. In the event of
retrenchment the principle of 'last come first go' is applicable
under which senior in service is retained while the junior's
services are terminated. But this principle is not applicable to
a case where the services of a temporary employee are
terminated on the assessment of his work and suitability in
accordance with terms and conditions of his service if out of
several temporary employees working in a department a
senior is found unsuitable on account of his work and
conduct, it is open to the competent authority to terminate his
services and retain the services of juniors who may be found
suitable for the service.
Xxx xxx
6.The High Court held that the termination of
respondent's services on the basis of adverse entry in the
character roll was not in good faith and the punishment
imposed on him was disproportionate. It is unfortunate that
the High Court has not recorded any reasons for this
conclusion. The respondent had earned an adverse entry and
complaints were made against him with regard to the
unauthorised audit of the Boys Fund in an educational
institution, in respect of which a preliminary inquiry was held
and thereupon, the competent authority was satisfied that the
respondent was not suitable for the service. The adverse entry
as well as the preliminary inquiry report with regard to the
complaint of unauthorised audit constituted adequate
RSA-2000-1993 (O&M) [15]
material to enable the competent authority to form the
requisite opinion regarding the respondents suitability for
service. Under the service jurisprudence a temporary
employee has no right to hold the 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.
7.A temporary Government 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 Government servants. A temporary
Government 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 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………………………………..
It must be borne in mind that a 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. The evil consequences as held in Parshotam
Lal Dhingra's case (supra) do not include the termination of
services of a temporary Government servant in accordance
RSA-2000-1993 (O&M) [16]
with the terms and conditions of service. The view taken by the
Constitution Bench in Dhingra's case has been reiterated and
affirmed by the Constitution Bench decisions of this Court in
The State of Orissa and anr. v. Ram Narayan Das, 1961 (1)
SCR 606, R.C. Lacy v. The State of Bihar and anr., C.A. No.
590/62 decided on 23.10.1963, Champaklal Chimanlal Shah v.
The Union of India, 1964(5) SCR 190, Jagdish Mitter v. The
Union of India, 1964 AIR SC 449, A.G. Benjamin v. Union of
India, C.A. No. 1341/66 decided on 13.12.1966, Shamsher
Singh and 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 and anr. v. Shri Sukh Raj Bahadur,
1968(3) SCR 234.
8. ………...As already observed, the respondent being a
temporary Govt. 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
RSA-2000-1993 (O&M) [17]
terminate the respondent's services in accordance with the
contract of service and the Rules.
9 to 11 xxx xxx
We have referred to the above decisions in detail to
dispel any doubt about the correct position of law. It is
erroneous to hold that where a preliminary enquiry into
allegations against a temporary Government servant is held or
where a disciplinary enquiry is held but dropped or
abandoned before the issue of order of termination, such
order is necessarily punitive in nature.
12.xxx xxx
13. In the instant case the respondent was a temporary
Government servant and there was adverse report regarding
his work which was reflected in the adverse remarks made for
the year 1977-78. The competent authority held a preliminary
inquiry in the allegations of improper conduct in carrying out
unauthorised audit of Boys Fund of an educational institution,
on result of the preliminary enquiry no charges were framed
against the respondent, no officer was appointed for holding
the departmental inquiry instead the competent authority chose
to terminate the respondent's services in exercise of its powers
under the terms of contract as well as under the relevant rules
applicable to a temporary Government servant. It never
intended to dismiss the respondent from service. Holding of
preliminary inquiry does not affect the nature of the termination
order. 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
order of termination. The High Court failed to consider the
question in proper perspective and it interfered with the order
of termination in a casual manner.”
19. The case of the present appellant-plaintiff is on a lesser footing
RSA-2000-1993 (O&M) [18]
than the case of the employee in the abovesaid case before the Hon’ble
Supreme Court, inasmuch as, in the case before the Hon’ble Spreme Court,
it was also the case of the respondent therein that persons junior to the
respondent therein had been retained in service and that the order of
termination had been passed on the basis of adverse entries in the service
record of the respondent therein for the year 1977-78 and also on the basis of
the allegations made against him with regard to the audit of the Boys Fund
of Raja Raghubar Dayal Inter College.
20. In the case of Nepal Singh vs. State of U.P. and others reported
as 1980(3) SCC 288, whereby a temporary employee against whom
disciplinary proceedings had been initiated, which were quashed by the
authorities vide order dated 12.03.1970 but subsequently his services were
terminated on 27.04.1970 on the ground that he was no more required, the
Hon’ble Supreme Court had observed that it was settled law that the order
terminating the services of a temporary Government servant which is ex-
facie innocuous, in that it does not cast any stigma on the government
servant or visits him with penal consequences, must be regarded as effecting
a termination simplicitor. It was further observed that the circumstance that
disciplinary proceedings had been instituted against the temporary employee
would not lead to any inference that the impugned order had been passed by
way of punishment.
21. In the abovesaid case also, the disciplinary proceedings were
initiated against the temporary employee and immediately after the same
were quashed, within a period of less than two months, the order of
termination of the services of temporary employee was passed in similar
RSA-2000-1993 (O&M) [19]
terms as has been the order passed in the present case and in the said
background also, the Hon’ble Supreme Court had upheld the order of
relieving/termination and found the same neither to be stigmatic nor to be
passed by way of punishment. The law laid down in the abovesaid judgment
fully applies in the facts and circumstances of the present case.
22. The abovesaid judgments and facts of the said cases answer the
first ground of challenge laid by the learned counsel for the appellant(s). The
fact that earlier disciplinary proceedings had been initiated against the
appellant-plaintiff culminating into the order of termination dated
01.08.1984 which was subsequently set aside on 21.11.1984 on the ground
that the termination order was not passed by the competent authority and
vide which the present appellant was reinstated, would not lead to an
inference that the subsequent order dated 20.04.1985 was passed by way of
punishment. Additionally it would be relevant to mention that in the present
case, no malafide has been alleged against anybody nor any person has been
made a party by name. The order dated 20.04.1985 has been passed after a
period of more than four months from the date of order dated 21.11.1984
setting aside the order dated 01.08.1994. Moreover, as has been rightly
observed by the trial Court that in case any punitive action was to be taken
against the appellant-plaintiff, then, it was very much open to the competent
authority at the time of passing the order dated 21.11.1984 to remand the
case to the inquiry officer for de novo proceedings, as the sole ground for
setting aside the order dated 01.08.1984 was lack of jurisdiction of the
authority who had passed the said order, or to pass an order initiating a fresh
enquiry on the basis of the same allegations and after completion of the
RSA-2000-1993 (O&M) [20]
same, the services of the plaintiff could have been dismissed.
23. It would also be relevant to mention that in the judgment of the
Hon’ble Supreme Court in the case of State of Punjab and others vs.
Sukhwinder Singh reported as (2005)5 SCC 569, it was reiterated that the
temporary employee had no right to the post and mere holding of a
preliminary enquiry would not make an order of discharge/termination
which was otherwise innocuous to be punitive in nature. The relevant
portion of the said judgment is reproduced hereinbelow:-
“.....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.
20. In the present case neither any formal departmental inquiry
nor any preliminary fact-finding inquiry had been held and a
RSA-2000-1993 (O&M) [21]
simple order of discharge had been passed. The High Court
has built an edifice on the basis of a statement made in the
written statement that the respondent was a habitual absentee
during his short period of service and has concluded
therefrom that it was his absence from duty that weighed in
the mind of Senior Superintendent of Police as absence from
duty is a misconduct. The High Court has further gone on to
hold that there is direct nexus between the order of discharge
of the respondent from service and his absence from duty and,
therefore, the order discharging him from service will be
viewed as punitive in nature calling for a regular inquiry
under Rule 16.24 of the Rules. We are of the opinion that the
High Court has gone completely wrong in drawing the
inference that the order of discharge dated 16.3.1990 was, in
fact, based upon misconduct and was, therefore, punitive in
nature, which should have been preceded by a regular
departmental inquiry. There cannot be any doubt that the
respondent was on probation having been appointed about
eight months back. As observed in Ajit Singh v. State of Punjab
the period of probation gives time and opportunity to the
employer to watch the work, ability, efficiency, sincerity and
competence of the servant and if he is found not suitable for
the post, the master reserves a right to dispense with his
service without anything more during or at the end of the
prescribed period, which is styled as period of probation. The
mere holding of preliminary inquiry where explanation is
called from an employee would not make an otherwise
innocuous order of discharge or termination of service
punitive in nature. Therefore, the High Court was clearly in
error in holding that the respondent's absence from duty was
the foundation of the order, which necessitated an inquiry as
envisaged under Rule 16.24(ix) of the Rules.
21. For the reasons discussed above, we are of the opinion that
RSA-2000-1993 (O&M) [22]
the view taken by the High Court and also by the lower courts
is wholly erroneous in law and must be set aside. The appeal is
accordingly allowed and the judgment and decree passed by
the High Court and also by the learned Sub-Judge and
learned Additional District Judge are set aside. The suit filed
by the plaintiff-respondent is dismissed.”
24. The judgment in the case of Sukhwinder Singh (supra) has
further been referred to in the latest judgment of the Hon’ble Supreme Court
titled as “State of Punjab and others vs. Jaswant Singh” reported as (2023)
9 Supreme Court Cases 150. In the said case, although in the order of
discharge it had been specifically observed that the employee was absent
from 24.11.1990 to date yet it was observed that there was no foundation of
mis-conduct alleged in the order and it was an order of simplicitor discharge.
The order of discharge in the said case, which was reproduced in paragraph
5 of the said judgment, as well as the relevant portion of the abovesaid
judgment are reproduced hereinbelow:-
“5. In furtherance to the said recommendation, the SSP
passed the order dated 28.03.1991, discharging the respondent-
plaintiff. The said order is relevant and for ready reference is
being reproduced as under:
“ORDER
Constable Jaswant Singh No. 1669/ASR s/o Shri Hazara
Singh, caste Jat, R/o Village Thoba, PS Ramdass, Police
District Majitha is hereby discharged from service under
PPR 12.21 as he is not likely to become an efficient police
officer. His absent period from 24.11.1990 to date is
treated as non-duty non pay.
Issue orders in OB.
Sd/-
RSA-2000-1993 (O&M) [23]
Sr. Superintendent of Police,
Amritsar
No. 11369 – 76/B Dated 28.3.1991”
xxx xxx xxx
22. In our considered view, all the three courts
misconstrued Rule 12.21 of PPR and decreed the suit filed
by the respondent- plaintiff. Looking to the contents of the
order of discharge, in the considered opinion of this
Court, there is no foundation of misconduct alleged in the
order and it is an order of simpliciter discharge of a
probationer constable. The judgment in Ratnesh Kumar
Choudhary relied upon by the respondent is of no help for
the simple reason that in that case, the initial appointment
was alleged to be illegal based on a vigilance report which
was on record. Thereafter, notice was issued on the anvil of
the said vigilance report which contained serious
allegations and in the said peculiar situation, the Court
found that the termination was not simpliciter, but it was
punitive.
25. The judgment of the Hon’ble Supreme Court in the case of P.V.
Swaminathan (supra) which has been sought to be relied upon by the
learned counsel for the appellant is based on completely different facts. In
the said case, the employee who was the respondent therein was appointed
as a General Manager for a period of three years w.e.f. 06.08.1991 and his
services were terminated on 10.06.1993 i.e., prior to the lapsing of the said
three years. In the said case, the letter from the Commissioner for
Handlooms and Director of Handlooms and Textiles dated 19.05.1993,
which was issued immediately prior to the order of termination, was held to
be the foundation for terminating the services and thus, the Hon’ble
RSA-2000-1993 (O&M) [24]
Supreme Court in the facts and circumstances of the said case had held that
the order of termination was based on mis-conduct. Even in the said
judgment, the Hon’ble Supreme Court had observed that the legal position is
fairly settled that an order of termination of a temporary employee or
probationer or even a tenure employee, simplicitor without casting any
stigma may not be interfered with by the Court. However, in the peculiar
facts and circumstances of the said case where the termination was prior to
the expiry of the term of contract and was based upon the letter dated
19.05.1993 and other aspects, the termination order which was set aside by
the High Court, was upheld, although no relief of reinstatement was granted.
In the present case, it is not the case of the plaintiff that his services have
been terminated or he has been relieved prior to the last date of his contract,
rather his relieving/termination is in consonance with the terms and
conditions of his contract. Thus, the said judgment would not further the
case of the appellant-plaintiff.
26. The suit of the plaintiff is also required to be dismissed on the
ground of non-joinder of necessary party and for having not produced the
order dated 12.08.1985. It would be relevant to note that it is the case of the
plaintiff that the Service Appeal filed by the plaintiff was dismissed by the
Administrative Judge of this Court. A perusal of the letter dated 27.08.1985
(Ex.P16) which has been produced by the plaintiff would clearly show that
the Service Appeal was dismissed on 12.08.1985. The said order has
admittedly not been produced on record. Moreover, the High Court has not
been made a party although the High Court had every right to defend the
case once the Service Appeal had been dismissed by the Administrative
RSA-2000-1993 (O&M) [25]
Judge of the High Court. The said aspect is only an additional aspect in
addition to the other reasons which have been detailed hereinabove for
dismissal of the present appeal.
27. The second argument raised on behalf of the learned counsel for
the appellant for decreeing the suit of the plaintiff and for setting aside the
judgment is also misconceived. For the second argument, sole reliance has
been placed on behalf of the appellant(s) upon the judgment of the Hon’ble
Supreme Court in the case of Jaggo (supra). The said case is based on
completely different facts. In the case of Jaggo (supra), the appellants
therein had sought regularization of their services by filing an original
application before the Tribunal and they had made specific pleadings to the
effect that their role and responsibility as well as their work was similar to
that of the regular employee and they were performing core functions
integral to CWC’s operations and had worked for a period ranging from
more than 10 years to two decades and met the parameters laid down in the
judgment of the Hon’ble Supreme Court in the case of Secretary, State of
Karnataka vs. Uma Devi reported as (2006) 4 SCC 1 and thus, denial of
regularisation to them was against law. It was also the specific case of the
appellants therein that they were not backdoor entrants and were equivalent
to regular employees and that there was nothing adverse against them but
persons with fewer year of services had been regularised and not the
appellants therein. The Hon’ble Supreme Court after observing that the
appellants therein had long and interrupted service for a period extending
well beyond 10 years held that their services could not be dispensed with in
an illegal manner. It was also found that large number of persons with lesser
RSA-2000-1993 (O&M) [26]
tenure were regularized by the respondent therein and details of the same
were given in the said judgment and thus, it was observed that the action of
the respondent therein was violative of the principle of equality enshrined
under Articles 14 and 16 of the Constitution of India.
28. In the present case, as has been detailed hereinabove, neither
any prayer for regularisation has been made nor any case has been set up in
the plaint to show that the plaintiff had been doing same work and was
having same responsibilities and working hours etc. as that of regular
employees. There is nothing to show that any person junior to the plaintiff,
had been made to continue. Importantly, even the period of service of the
plaintiff even as per his best case would not exceed 10 years and thus, he
does not fall within the parameters of law laid down by the Hon’ble Suprme
Court in the case of Uma Devi (Supra). Moreover, it cannot be said that the
services of the present plaintiff-appellant was unblemished, inasmuch as, a
perusal of his service book would show that apart from other aspects, the
present plaintiff-appellant was censured vide order dated 21.01.1983.
Although, in the case of Jaggo (Supra), subsequent termination of services
was also challenged but the said termination was prima facie mala fide,
inasmuch as, within 10 days of the dismissal of the original application filed
by the appellants therein for regularisation of their services, their services
were terminated in spite of the fact that they had more than 10 years of
service and there was nothing adverse against them. Thus, the said judgment
would not further the case of the plaintiff-appellant. Moreover, the argument
now sought to be raised before this Court was neither pleaded in the plaint
nor was argued before the trial Court or before the First Appellate Court.
RSA-2000-1993 (O&M) [27]
There is no foundational basis to raise the said argument before this Court.
29. Additionally it would be relevant to mention that the plaintiff-
appellant was relieved from services on 20.04.1985. The suit filed by the
plaintiff was dismissed and appeal therefrom was also dismissed. The
present Regular Second Appeal was filed in the year 1993 and there is no
interim order in favour of the appellant. The appellant is also stated to have
died. Judgments of the trial Court as well as First Appellate Court are in
accordance with law and deserve to be upheld.
30. Keeping in view the abovesaid facts and circumstances, the
judgments of the trial Court as well as the First Appellate Court are upheld
and the present appeal being meritless is dismissed.
31. All the pending miscellaneous applications, if any, shall stand
disposed of in view of the abovesaid order.
04.12.2025 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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