Hari Paul Sehgal vs State of Punjab

V.K. Bali, J.—Hari Paul Sehgal-petitioner herein through present petition filed by him under Article 226 of the Constitution of India has challenged order, Annexure P-4 passed by the Deputy Director on July 24, 1985 wherein it was mentioned that the services of the petitioner were no longer required and, therefore, he be served with a notice of 24 hours, after expiry of which his services shall stand terminated.

Brief facts of the case reveal that the petitioner was appointed as Building Inspector on adhoc basis by the Director, Housing and Urban Development Department, Punjab, respondent No. 2 herein in the Punjab Housing & Urban Development Department vide orders dated September 7, 1983. He joined his duties on September 14, 1983. It is the case of the petitioner that ever since he joined service, he was continuously granted further extensions from time to time on three months basis. In this manner, he had served the department for a period of one year and ten months without any break. His work and conduct was adjudged satisfactory during his service in the department till his services were terminated on July 24, 1985. It is further the case of petitioner that the Government regularised the services of all temporary/adhoc employees to Class HI posts vide order dated August 8, 1985 and directed all the Heads of Departments and other Subordinate authorities to regularise the services of all temporary/adhoc Class III employees who had one year service to their credit as on April 1, 1985. However, services of the petitioner were terminated by respondent No. 2 vide orders dated July 24, 1985. No reasons whatsoever were assigned in the said order but the petitioner oraly learnt that his services were terminated on the basis of a corruption case registered against him vide F.I.R. No. 524 dated July 18, 1985, wherein he was acquitted on March 10, 1987 by the Special Judge, Amritsar. Aggrieved, petitioner filed a representation on September 26, 1985 to the department requesting that order, Annexure P-4, be withdrawn but his representation was dismissed on April 3, 1986 (Annexure P-4). He filed yet another representation on April 23, 1987 requesting therein that his termination order be withdrawn as he was acquitted in the corruption case registered against him by the Special Judge, Amritsar. When, however, his representations met with no success, he filed the present writ in this Court for the relief, as mentioned in the earlier part of the judgment.

The sole contention of Mr. Sharma, learned counsel representing the petitioner is that the services of the petitioner were terminated as he was involved in a criminal case of having accepted illegal gratification of Rs. 500/-, for which, an FIR bearing No. 524 of 1985 was registered against him u/s 5 of the Corruption Act. Even though, therefore, order of his termination was innocuous, the reality being that the petitioner was shown the exit door for this involvement in the criminal case, would be enough to set aside the order of termination as, concededly, no show cause notice was given to the petitioner nor any enquiry was held. For his aforestated contention, learned counsel relies upon a Division Bench judgment of this Court in Shamsher Singh v. The State of Haryana and Anr. 1992 (3) RSJ 84 as also a judgment of the Apex Court in Jarnail Singh and Others Vs. State of Punjab and Others, .

The cause of petitioner has been opposed and in the written statement filed on behalf of the respondents, it has been specifically pleaded that the petitioner did not have satisfactory service record to qualify himself for regularisation under the Government instructions dated August 8, 1985 as also that the petitioner was appointed purely on temporary and adhoc basis and that his services were terminated before issuance of government instructions dated August 8, 1985 regarding regularisation of services of all temporary/adhoc employees. It is further the case of the respondents that services of the petitioner were liable to be terminated without assigning any reason as per terms and conditions mentioned in his appointment letter and even though a corruption case was registered against him, a yet his services were terminated on the basis of his appointment letter and not because of criminal case as was clear from the order of termination itself.

Mr. Masih, learned Assistant AG, Punjab, relies upon State of Uttar Pradesh and Ors. v. Kaushal Kishore Shukla 1991(1) RSJ 659 and Krishan Kumar Sharma v. State of Punjab and Anr. 1994(1) SLR 393 to contend that if the employee has no right to hold the post, term of his employment being temporary or adhoc and if the order has not visited him with any evil consequences, no question arises to hold an enquiry even if it be true that the concerned employee''s conduct was not good or he was involved in a criminal case.

I have heard learned counsel for the parties and gone through the records of the case. It does not appear from the pleadings of the parties that the services of the petitioner were terminated on account of his involvement in a criminal case. As has been mentioned above, it is the positive case of the respondents, so pleaded in paragraph of the written statement, that even though a corruption case was registered against the petitioner, yet his services were terminated in accordance with the terms of his appointment letter and not on the basis of the said criminal case. Mr. Sharma, learned counsel for the petitioner, however, relies upon, Annexure P-9, to the contend that it had been the case of the respondent-department itself that in fact and reality the services of the petitioner were terminated on account of his involvement in a criminal case. Annexure P-9 was brought on records through civil misc. No. 23130 of 1996. It was not a part of the original pleadings. Be that as it may, Annexure P-9 is a letter which has been written by the Deputy Director and has been addressed to the Secretary, Punjab Housing Development, Chandigarh. It refers to a memo dated December 6, 1985. Learned counsel for the petitioner contends that Annexure P-9 contains para-wise comments of the grounds of appeal/representations filed by the petitioner. While filing the application for bringing on records Annexure P-9, all that has been stated is that Annexures P-9 and P-10 were necessary to be placed on records in support of the fact that services of the petitioner were terminated on the basis of a criminal case in which he was acquitted. Mr. Masih, learned AAG, Punjab, contends that this document could not possibly be in response to the grounds of appeal/representation filed by the petitioner inasmuch as there is no procedure of giving para-wise comments to the grounds of appeal/representation as also for the reason that if such comments were to come, the only competent authority to make the same was the Director, who had passed the impugned order terminating the services of the petitioner and not the Deputy Director. This court is of the view that even if it is assumed that Annexure P-9 contains para-wise comments given by the Deputy Director of the department in response to the grounds of appeal/representation filed by the petitioner before the Secretary to Government of Punjab, the fact remains that such comments came only from the Deputy Director, who, it appears to this Court, was not at all competent. What was in the mind of the Director while terminating the services of the petitioner, could be only known to the Director and not to the Deputy Director. The Deputy Director has not made any reference to any interim orders/notings available on the file from where be might have come to the conclusion that in fact and reality the services of petitioner were terminated on account of his involvement in a criminal case. It may be added where at this stage that Mr. Sharma stated in the Court that Annexure P-9 was in response to the grounds of appeal/representation made by the petitioner, Annexure P-5. He however could not read even a word from Annexure P-5 wherein it might have been averred by the petitioner that his services were terminated for his involvement in a criminal case. From the attending circumstances, whereas it might appear that the petitioner was involved in a criminal case but it has not been succesfully shown to the Court that the services of the petitioner were terminated on account of his involvement in such a case. That apart, the Supreme Court in State of Uttar Pradesh v. Kaushal Kishore Shukla 1991(1) SLR 659 held that "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 are terminated, no exception can be taken to such an order of termination." It was further held that "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 contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary government servant. 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. If it decides to take punitive action, it may hold a formal enquiry by framing charges and giving opportunity to the government servant in accordance with the provisions of Art. 311 of the Constitution. Since a temporary government servant is also entitled to the protection of Article 311(2) in the same manner as a permanent government 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 well settled that the form of the order is not conclusive and it is open to the Court to determine the true nature of the order. In Parshotam Lal Dhingra Vs. Union of India (UOI), (Supreme Court Services Law Reporter (1950-1994) Vol. I, Page 1), a Constitution Bench of this Court held that the mere use of expression like ''terminate'' or ''discharge'' is not conclusive and inspite of the use of such expression, the Court may determine the true nature of the order to ascertain whether he action taken against the government servant is punitive in nature. The Supreme Court further held that in determining the true nature of the order, the court should apply two tests, namely (1) whether the temporary government servant had a right to the post or the rank or (2) whether he had been visited with evil consequence and if either of the tests is satisfied, it must be held that the order of termination of temporary government servant is by way of punishment. 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 consequence as held in Purshotam Lal Dhingra''s case (supra) do not include the termination of services of a temporary government servant in accordance with the terms and conditions of the service." While dealing with similar case, I had relied upon the portion of the judgment of the Supreme Court, extracted above, in Shri Krishan Kumar Sharma''s case (supra). Letters Patent Appeal was carried against the judgment abovesaid which was dismissed by a Division Bench of this Court in Krishan Kumar Sharma Vs. State of Punjab and Another, . The judgments cited by learned counsel for the petitioner are distinguishable and do not apply to the facts of the case in hand.

There is no merit in this petition and the same is dismissed, parties are, however, left to bear their own costs.