Shishir Kumar, J.@mdashThis writ petition has been filed for quashing the order dated 13th May, 1992 and order dated 18th May, 1992 (Annexures-3 and 4 to writ petition). Further a writ in the name of mandamus commanding respondents to regularise services of petitioner.
2. Petitioner was initially appointed as Typist/Electrical Helper in Engineering Department of Agriculture Directorate from 14.11.1984 to 21.8.1985. Subsequently by order dated 14th August, 1985, petitioner was appointed on temporary basis in the office of Deputy Director (Agriculture) in the grade of Rs. 400-650. Petitioner joined the post on 22.8.1985. Subsequently, petitioner was transferred from district Nainital to district Etah in the month of January, 1986. The qualification of petitioner is Intermediate. Service of petitioner were terminated by order dated 13th May, 1992 by respondent No. 2 under the provision of U.P. Temporary Government Servant (Termination of Service) Rules, 1975 and in pursuance of the aforesaid order, respondent No. 1 passed an order on 18th May, 1992 and gave notice to petitioner to terminate the services under the aforesaid rules after expiry of 30 days from the date of receipt of notice. Learned Counsel for petitioner submits that the appointment of petitioner was approved by Joint Director of Agriculture vide its order dated 3rd July, 1986. Submission of petitioner is that provision of U.P. Temporary Government Servant (Termination of Service) Rules, 1975 has wrongly been applied in the case of petitioner in view of fact that he was entitled for regularisation under 1979 Rules. As the Termination Rules, 1975 has been made ineffective subsequent to regularisation of Service Rules, therefore, services of petitioner could not have been terminated in view of aforesaid rules. A specific ground has been taken that termination was contrary to the provisions contained in the Rules. Further, it was pleaded that the order of termination was not simplicitor but result of direction issued by respondent No. 3 though in the body of order nothing has been mentioned but reasons mentioned in it regarding removal from service without any notice and opportunity to petitioner is violative of Article 311 of the Constitution of India. Petitioner submits that in the counter-affidavit different case has been set up by respondent that on receiving a complaint, an enquiry was conducted at the office of Additional Agriculture Directorate (Administration), Lucknow vide letter dated 15.10.1991 and vide reply dated 23.11.1991, it has been submitted that after examining the office record, an enquiry was conducted and certificate submitted by petitioner was found forged. In case of
3. The writ petition was entertained and interim order has been granted and petitioner in pursuance of the interim order was working.
4. Respondents filed a counter-affidavit and has stated in the counter-affidavit that petitioner being temporary employee after giving one month notice, services of petitioner have been terminated. Further allegation has been made that at the time of appointment, petitioner was required to file a certificate of I.T.I. which was essential requirement. Petitioner filed certificate of diploma showing therein that he has obtained such diploma from I.T.I. from the year 1981 to 1983 but subsequently on a complaint, matter was investigated and it was found that certificate of diploma submitted by petitioner was forged and said certificate was never issued by Audhyogic Prashikshan Sansthan, Bulandshahr. In such circumstances, it was held by the competent authority that petitioner has obtained appointment by playing fraud and by submitting forged certificate, therefore, petitioner being temporary employee, one month notice was given and services of petitioner have been terminated. Learned standing counsel submits that the order of termination being simplicitor order, cannot be inferred that it cause stigma upon petitioner, therefore, the order is bad as the same has been passed without any notice and opportunity to petitioner. The decision cited by learned Counsel for petitioner will not be applicable in the present case because order if it is a simplicitor in nature and it is not punitive then it cannot be held that order is bad. It is settled law that temporary Government employee has got no right to post and their services can be terminated under Rule 75 either after giving one month notice or in lieu of one month salary. The same procedure has been adopted which is apparent from the order of termination impugned in the writ petition.
5. I have considered the submissions made on behalf of petitioner and learned standing counsel.
6. There is no dispute to this effect that order of termination which is under challenge by petitioner in the present writ petition does not state or there is any whisper that it has been passed on the basis of enquiry by the competent authority, on the basis of complaint and it was established in the enquiry that certificate of diploma submitted by petitioner of technical education was forged.
7. In the amendment/supplementary-affidavit filed on behalf of petitioner, a letter dated 11th May, 1992 has been annexed, the same has not been denied by respondents which shows that regarding genuineness of I.T.I. certificate, matter was investigated and it was found on an enquiry that the said certificate was not genuine and, therefore, decision was taken that appointment of petitioner was not proper and it is mentioned that petitioner has obtained appointment after submitting forged certificate and then a decision was taken to terminate the services after giving one month notice. The said allegation has also been made in the counter-affidavit. Meaning thereby the basis of termination of service of petitioner was an enquiry regarding the submission of diploma certificate. It is not disputed that petitioner was ever given an opportunity regarding establishing the fact of the genuineness of certificate submitted by petitioner. The letter mentioned above dated 11th May, 1992 clearly goes to show that ex parte enquiry was made and then a decision was taken. There was no communication to this effect to petitioner, therefore, in my opinion, if the basis of termination of service of a temporary employee is on some enquiry behind back of the person concerned and without mentioning the said fact, has been passed it cannot be held that order of termination is simplicitor in nature because in the counter-affidavit this fact has been admitted by respondents that basis of termination was some enquiry it was not simplicitor order of termination. Therefore, in my opinion, submission of petitioner to this effect that if the complaint is the foundation of termination, it can be treated punitive. In Champak Lal Chiman Lal Shah (supra) and in State of Bihar v. S.B. Mishra (supra), the Apex Court has held that impugned order need not necessary to refer to stigma to attributable of the conduct of a Government servant and circumstances attendant on impugned order are relevant. If it is discovered on the basis of material adduced that order has been passed in view of punishment to Government servant, it will be a punitive order which can only be passed after complying the provision of Article 311, Sub-clause (2) of the Constitution of India. If the order of termination is the basis of complaint and complaint leads to enquiry, resulting in termination it cannot be treated to be a simplicitor order of termination. The contention raised by petitioner has got force that in such circumstances, as the complaint was the foundation of termination which has been administered by petitioner though the order of termination is innocuous, therefore, it can be held that order of termination is punitive in nature because while passing the order of termination, if the circumstances resulting to pass the said order is an enquiry, that can easily be held that order of termination is bad in law in spite of fact that petitioner being a temporary employee.
8. There is no dispute to this effect from the record that before passing the order of termination, petitioner was never given an opportunity, even petitioner was never informed by giving a show cause notice regarding the submission of diploma certificate which was treated to be forged on the basis of some ex parte enquiry. Further, it is to be noted that this Court entertained the writ petition and granted an interim order in the year 1992 in favour of petitioner. In pursuance of the interim order petitioner is still working and getting salary. About 18 years have been passed, therefore, in the interest of justice, in my opinion, it will also be appropriate not to disturb petitioner at this stage as petitioner is continuously working on the post for considerable long time and after long lapse of time, confirming the order of termination at this stage petitioner will not be able to get any suitable employment as he has become overage and has also a liability of his family. The Apex Court has observed that if they are left at midstream and if they are asked to appear in the examination at this stage, it would be an act of cruelty, thus, did not disturb their appointments.
9. In view of aforesaid fact I am of opinion that petitioner is entitled for relief.
10. The writ petition is allowed. The orders dated 13.5.1992, passed by respondent No. 2 and order dated 18.5.1992, passed by respondent No. I (Annexures-3 and 4 to writ petition) are hereby quashed.
No order as to costs.
