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PETITIONER:

STATE OF UTTAR PRADESH AND ANR.

Vs.

RESPONDENT:

KAUSHAL KISHORE SHUKLA

DATE OF JUDGMENT11/01/1991

BENCH:

SINGH, K.N. (J)

BENCH:

SINGH, K.N. (J)

OJHA, N.D. (J)

SAWANT, P.B.

CITATION:

1991 SCR (1) 29 1991 SCC (1) 691

JT 1991 (1) 108 1991 SCALE (1)15

ACT:

Civil Service--Assistant Auditor--Ad hoc and temporary

employee--Holding of preliminary inquiry--Does not affect

the nature of the termination order.

HEADNOTE:

The respondent was appointed on 18.2.1977 as an

Assistant Auditor under the Local Funds Audit Examiner of

State of U.P. on ad hoc temporary basis for the term fixed

in the order of his appointment and his services were liable

to be terminated at any time without assigning any reason.

After his initial appointment, his services were extended

from time to time till 28.2.1981. He was awarded an adverse

entry in his character roll for the year 1977-78 both

regarding his conduct as also his work. The respondent

alongwith one Rajendra Prasad Pandey, another Sub-Auditor,

were deputed to audit the accounts of Raja Raghbar Dayal

Inter College, Sitapur in respect of the year 1979-80. It

is alleged that while auditing the account, they acted in

excess of their authority in as much as they audited the

'Boys Fund Accounts', issued audit note and also irregularly

demanded and collected Rs. 2,000 as audit fee, and issued

receipt under their signature. On complaint a preliminary

enquiry was held and the allegations were found to be

correct. After the preliminary inquiry report, the

respondent was relieved from his duties from Sitapur and

directed to join his duty at Allahabad. Whereupon the

respondent proceeded on leave and did not join his duty at

Allahabad. The respondent's services were therefore

terminated by order dated 23.9.1980 and by another order

services of Pandey were also terminated. Both of them filed

writ petitions in the High Court contending that their

termination orders were illegal having been passed in

violation of Article 311 of the Constitution. Whereas the

writ petition filed by Pandey was dismissed, the one filed

by the respondent was allowed. The High Court 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. The High Court

further held that the order of termination was founded on an

adverse entry awarded to the respondent hence it was not in

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good faith; the punishment awarded to the respondent was not

proportionate to the alleged offence. Against the -

30

said order, the State of U.P. filed a appeal after obtaining

special leave. The question involved for consideration is

whether the order terminating the services of the respondent

is vitiated in law?

Allowing the appeal, this Court,

HELD: Holding of preliminary inquiry does not affect

the nature of the termination order. [42C)

In the instant case the respondent was a temporary

Government Servant and there was adverse regarding his work

which was reflected in the adverse remarks made for the year

1977-78. The competent authority held a preliminary inquiry

in regard to the allegations of improper conduct in carrying

out unauthorised audit of Boys Fund of educational

institution. On result of the preliminary inquiry 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 a well as under the relevant rules applicable to a

temporary Government servant. [42A-C]

The principle '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. 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

term and conditions of his service. On the admitted set of

facts, the order of termination in the instant case, could

not be rendered illegal or unjustified on the ground of

juniors being retained in service. The view taken by the

High Court is not sustainable in law. [33D-H]

Appeal allowed, High Court order set aside as it

interfered with order of termination in a casual manner.

[42D]

Parshotam Lal Dhingra v. Union of India. [1958] S.C.R.

828; The State of Orissa & Anr. v. Ram Narayan Das, [1961] 1

S.C.R. 606; R.C. Lacy v. The State of Bihar & Ors., C.A.No

590/62 decided on 23.10.1963; Champaklal Chimanlal Shah v.

The Union of India, [1964] AIR S.C.449; A.G. Benjamin v.

Union of India, C.A. No. 1341/66 decided on 13.12.1966;

Shamsher Singh & Anr. v. State of Punjab, [1975] 1 S.C.R.

814; State of Punjab & Anr. v. Shri Sukh Raj Bahadur, [1968]

3 S.C.R.

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234; R.K. Misra v. U.P. State Handloom Corporation, [1988] 1

S.C.R. 501, referred to.

Nepal Singh v. State of U.P. & Ors., [1985] 1 S.C.C.

56; Ishwar Chand Jain v. High Court of Punjab & Haryana &

Anr., [1988] 3 S.C.C. 370 distinguished.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal (C) No. 137

of 1991.

From the Judgment and Order dated 20.2.1989 of the

Allahabad High Court in W.P. No. 3096 of 1980.

Yogeshwar Prasad and Ms. Shoba Dixit for the Appellants.

R.B. Datar, R.K. Khanna and Surya Kant for the

Respondent.

The Judgment of the Court was delivered by

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SINGH, J. Leave granted.

This appeal is directed against the judgment of the

Allahabad High Court (Lucknow Bench) setting aside the order

dated 23.9.1980 terminating the respondent's services.

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 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.

The factual matrix of the case is in a short compass.

The respon-

32

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 for the term fixed in the order and his

services were liable to be terminated at any time without

assigning any reason. He was awarded an adverse entry in

his character roll for the year 1977-78. The entry stated

that the respondent's work was poor and he should work hard

and take interest in the work. The respondent made

representation against the entry but the same was rejected.

The respondent and Rajendra Prasad Pandey another Sub-

Auditor both were deputed to audit the accounts of Raja

Raghunbar Dayal Inter College, Sitapur for the year 1979-80.

While carrying on the Audit the respondent and Rajendra

Prasad Pandey both are alleged to have acted in excess of

their authority in auditing the "Boys Fund Accounts" of that

College for the year 1978-79 on their own accord without any

authority for the same. They issued audit note under their

own signatures and also irregularly demanded a high amount

of Rs. 13,250.70 as audit fee and collected an amount of RS.

2,000 as audit fee for which they issued receipts under

their own signatures. On receipt of complaint a preliminary

inquiry was held that it was found that the allegations

against the respondent and Rajendra Prasad Pandey were

correct and both of them had acted beyond their authority

and collected a sum of Rs. 2,000 as audit fee for the audit

of the Boys Fund Accounts, although the Boys Fund of the

Institution did not fall within the purview of audit of the

Local Funds Audit and no fee was chargeable for the audit of

such Fund. After the preliminary inquiry report, the

respondent was relieved from his duties from Sitapur and

directed to join his duties at Allahabad, but the respondent

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proceeded on leave and did not join his duties at Allahabad.

Ultimately, the respondent's services were terminated by the

order dated 32.9.1980 and on the same day by another order,

service of Rajendra Prasad Pandey were also terminated.

Both the aggrieved persons filed writ petitions in the High

Court at Lucknow Bench under Article 226 of the Constitution

contending that their termination orders were illegal,

having been passed in violation of Article 311 of the

Constitution. The writ petition filed by Rajendra prasad

pandey was dismissed but the respondent's writ petition was

allowed by a

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Division Bench of the High Court on the ground as noted

earlier.

There is no dispute that the respondent was an 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 retrenchment takes place and the

services of employees are terminated on a count 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. Such a procedure does not violate

principle of equality, enshrined under Articles 14 and 16 of

the Constitution. if a junior employees is hard-working,

efficient and honest his services could not be terminated

with a view to accommodate the senior employee even though

he is found unsuitable for the service. if this principle

is not accepted there would be discrimination and the order

of the termination of a junior employee would be

unreasonable and discriminatory. On the admitted set of

facts, the order of termination in the instant case, could

not be rendered illegal or unjustified on the ground of

juniors being retained in service. The view taken by the

High Court is not sustainable in law.

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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

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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 material to enable to 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.

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 the terms and conditions of the service or

the relevant rules or it may decide to take punitive action

against the temporary Government servant. if it decides to

take punitive action may hold a formal inquiry by framing

charges and giving opportunity to the Govt. servant in

accordance with the provisions of Art. 311 of the

Constitution. since, a temporary Govt. servant is also

entitled to the protection of Article 311(2) in the same

manner as a permanent Govt. servant, very often, the

question arises whether an order of termination is in

accordance with the contract of service and relevant rules

regulating the temporary employment or it is by way of

punishment. It is now sell-settled that the form of the

order is not conclusive

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and it is open to the Court to determine the true nature of

the order. in Parshotam Lal Dhingra v. Union of

India,[1958] SCR 828 a Constitution Bench of this Court held

that the mere use of expressions like 'terminate' or

'discharge' is not conclusive and in spite of the use of

such expressions, the Court may determine the true nature of

the order to ascertain whether the action taken against the

Govt. servant is punitive in nature. The Court further held

that in determining the true nature of the order the Court

should apply two tests namely: (1) whether the temporary

Govt. servant had a right to the post or the rank or (2)

whether he has been visited with evil consequences; and if

either of the tests is satisfied, it must be held that the

order of termination of a temporary Govt. servant is by way

of punishment. It must be borne in mind that a temporary

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Govt. servant has no right to hold the post and termination

of such a Govt. 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 Govt. servant in

accordance 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 or Orrisa and anr. v.

Ram Narayan Das, [1961] 1 SCR 606; R.C. Lacy v. The State of

Bihar & Ors., 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 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 inquiry held against

36

him. 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 suitablity 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 repondent 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

services in accordance with the contract of service and the

Rules.

In State of Orissa & Anr. v. Ram Narain Dass, [1961] 1

SCR 606 a Constitution Bench of this court considered the

question and indicated "the fact of the holding of an

inquiry is not decisive of the question. What is decisive

is whether the order is by way of punishment in the light of

the tests laid down in Purshottam Lal Dhingra's case."

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In Jagdish Mitter's case (supra) a Constitution Bench

of this Court held that every order terminating the services

of a temporary public servant does no amount to dismissal or

removal from service merely because an inquiry was held

before the order of termination was passed. The Court

observed that the appropriate authority has power to

terminate a temporary public servant either by discharging

him under the terms of contract or the relevant rules or by

holding departmental disciplinary inquiry and dismissing him

from service. Before passing order of termination the

competent authority may hold inquiry in fairness to

ascertain whether the temporary servant should be continued

in service or not. While discussing the nature 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

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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 Chimanlal Shah

calling upon him to explain certain irregularities and to

show-cause why disciplinary action should not be taken

against him. In response to the notice, he submitted his

explanation thereupon, certain preliminary enquiries were

held, but he was not given opportunity to place his case

during the preliminary enquiry. However, after the

preliminary enquiry to regular departmental enquiry was held

instead proceedings for departmental enqiury were dropped

and the services of Chimanlal Shah were terminated in

accordance with the terms and conditions of service of a

temporary Govt. servant. The termination order was assailed

on the ground that the order of termination was in substance

an order of punishment. the Constitution Bench held that

the order of termination was not an order of punishment and

the appellant was not entitled to the protection of Article

311(2) of the Constitution. The Court emphasised that when

a preliminary enquiry is held against a temporary Govt.

employee, it must not be confused with the regular

departmental inquiry which usually follows the preliminary

inquiry, after the government decides to frame charges and

to get a departmental enquiry made, with a view to inflict

one of the three major punishments on the Govt. servant. So

far as the preliminary enquiry is concerned, there is no

question of it being governed by Article 311(2) of the

Constitution, as it is made for the purpose of collection of

facts to enable to the competent authority to decide whether

punitive action should be taken or action should be taken in

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terms and under the contract of service or the rules

applicable to a temporary government servant. A Govt.

servant has no right to insist for affording him opportunity

during such enquiry and such an

38

ex-parte enquiry is not initiated in law in view of the

purpose and object of preliminary enquiry. On an elaborate

discussion, the Court observed as under:

"In short a preliminary enquiry is for the purpose

of collection of facts in regard to the conduct and

work of a government servant in which he may not be

associated so that the authority concerned may

decide whether or not to subject the servant

concerned to the enquiry necessary under Art. 311

for inflicting one of the three major punishments

mentioned therein. Such a preliminary enquiry may

even be held ex parte for it is merely for the

satisfaction of government, 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 another Constitution

Bench of this Court in R.C. Lacy's case (supra) dealing

with the case of reversion of a permanent Govt. servant

officiating on a higher post. The Bench observed that the

Government might find it necessary to terminate the services

of a temporary employee if it is not satisfied with the

conduct or work of an employee and the same reasoning

applies to a public servant who is reverted from a higher

post to his substantive lower post, if the higher post was

held in a temporary nature. Before terminating the services

of a temporary servant or reverting the person

39

officiating in a higher post to his substantive post, the

Govt. may hold a preliminary enquiry to form the requisite

satisfaction for the continuance of the officiating govt.

servant. Such an inquiry does not change the nature of the

order of the termination or reversion.

In A.G. Benjamin's case (supra) the appellant

was temporarily employed as a Store Officer in the Central

Tractor Organisation, his services were terminated under the

Central Civil Service (Temporary Service) Rules, 1949 by

granting him one month's salary in lieu of notice. A .G.

Benjamin contended that the order of termination was in fact

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an order of punishment, which had been passed without

affording him the protection under Article 311(2) of the

Constitution. In that case before the issue of termination

order, a notice had been issued to Benjamin for showing-

cause as to why disciplinary action should not be taken on

the allegations made against him in respect of which the

charges had been framed and an enquiry officer had been

appointed. After the charges were framed and the

explanation of Benjamin was obtained, the Chairman of the

Central Tractor Organisation submitted a note to the

Government that the departmental proceedings may take much

longer time and he was not sure that after going through all

the formalities of departmental enquiry Benjamin will be

dealt in the way he deserved, therefore, he suggest that

action should be taken under Rule 5 of the Central Civil

Service (Temporary Service) Rules, 1949 for terminating his

services by giving him one month's salary in lieu of notice

as he was a temporary Govt. servant. The Minister concerned

accepted the recommendations, whereupon, order of

termination was issued terminating the services of Benjamin.

While assailing the order of termination, it was 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

40

against the temporary govt. servant and to have recourse to

Rules applicable to a temporary Govt. servant for

terminating his services. The Court observed as under:

"If therefore the authority decides, for some

reason, to drop the formal departmental enquiry

even though it had been initiated against the

temporary govt. servant, it is still open to the

authority to make an order of discharge simpliciter

in terms of the contract of service or the relevant

statutory rule. In such cases the order of

termination of services of the temporary govt.

servant which in form and in substance is no more

than his discharge affected under the terms of

contract or the relevant rule cannot, in law, be

regarded as his dismissal, because the appointing

authority was actuated by the motive that the said

servant did not deserve to be continued in service

for some alleged inefficiency or misconduct."

We have referred to the above decision in detail to dispel

any doubt about the correct position of low. It is

erroneous to hold that where a preliminary enquiry into

allegations against a temporary govt. servant is held or

where a disciplinary enquiry is held but dropped or

abandoned before the issue of order of termination, such

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order is necessarily punitive in nature.

Learned counsel for the respondent placed reliance on

the decisions of this Court in Nepal Singh v. State of U.P.

& Ors., [1985] 1 SCC 56 and Ishwar Chand Jain v. High Court

of Punjab & Haryana & Anr., [1988] 3 SCC 370 in support of

his contention that the termination order is punitive in

nature. In Nepal Singh's case a disciplinary inquiry was

instituted against Nepal Singh who was a temporary sub-

Inspector of Police, on the charge of having contracted a

second marriage during the life time of his first wife

without prior permission of the Government in violating of

Rule 29 of the U.P. Government Servants' Conduct Rules,

1956. Before any finding could be rendered the inquiry was

dropped for want of territorial jurisdiction of the

concerned Superintendent of Police, and thereafter, his

services were terminated in accordance with the rules

applicable to the temporary Government servants by giving

him one month's pay in lieu of notice. nepal Singh

unsuccessfully challenged the order of termination before

the High Court, but his appeal was allowed by a three Judge

Bench of this Court. This Court quashed the order of

termination on three grounds. Firstly,it held that the

order of termination was arbitrary, violative of

41

Articles 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 unsuitable for the service. The

Court's observations in Nepal Singh's case that since the

enquiry against nepal Singh on certain charges was dropped

and his services were terminated under the rules applicable

to the temporary govt. servant with a view to circumvent the

protection of Art 311(2) of the Constitution and as such the

order of termination was illegal, must be confined to the

facts of that case. It appears that he decisions in the

case of Champaklal (supra) and R.C. Lacy (supra) and the

principles laid down therein were not brought to the notice

of the Bench. Had those decisions been placed before the

Court, the finding that the termination order had been

passed to circumvent the provision of Art. 311(2) merely

because departmental inquiry was dropped and the termination

order had been passed, may not have been made. The decision

of Nepal Singh's case in this regard is per incurium. In

Ishwar Chand Jain's case the order of termination of

Probationary Judicial Officer was set aside by this Court on

the ground that no relevant material had been taken into

consideration in assessing the satisfactory nature of the

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work and conduct of the Officer on probation. The Court

held that some of the material which had been taken into

account in adjudging the Judicial Officer's work and conduct

as unsatisfactory was not relevant. The decision has no

relevance to the instant case. We are, therefore, of the

opinion that neither of the two cases relied upon by the

respondent lend any support to his case. On the other hand

our view is fully supported by the decision of three Judge

Bench of this Court in R.K. Misra v. U.P. State Handloom

Corporation, [1988] 1 SCR 501.

In the instant case the repondent 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 power under the

terms of contract as well as under the relevant rules

applicable to a temporary Govt. 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 the 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.

We, accordingly, allow the appeal and set aside the

order of the High Court and dismiss the respondent's Writ

Petition. There will be no order as to costs.

Y.Lal Appeal allowed.

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