A B GAJJAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant was appointed by the Deputy Salt Commissioner Ahmedabad as Inspector Or Salt by an order dated 29-8-1980. His appointment was temporary and on ad hoc basis till his replacement by a regular candi- date nominated by the Staff Selection Commission. His services were liable to be terminated at any time without assigning any reasons. He resumed his duties on 15-9- 1980. He remained on leave from 21-9-1981 to 7-10-81. Thereafter he again remained on leave from 8- 10- 1981 to 12- 10- 1981 on the ground that his health was not good. He also applied for leave for a further period of 10 days i.e. from 13-10-1981 to 22-10-1981. As the medical certi- ficate produced by him in support of his application was not in the prescribed form he was asked to produce such a certificate. It appears from the record that even thereafter he did not remain present and remained on leave from 25-10-1981 to 1 On 21-1-1982 he was served with a notice under Rule 5 or the Central Civil Ser- vices (Temporary Service) Rules 1965 (hereafter referred to as the CCS. TS. Rules) whereby his services were terminated with effect from the date of expiry of a period of one month from the date on which the notice was served upon him. It appears that (he notice was served upon him on the next day; and therefore the Assistant Salt Commissioner Jamnagar by a memorandum dated 22 declared that the services of the appellant were terminated with effect from that day. After giving a notice under Section 80 of the Code of Civil Procedure the appellant filed Civil Suit No. 3783 of 1982 in the City Civil Court Ahmedabad challenging the action of the respondents in terminating his services on the ground that it was il-legal arbitrary and mala fide. The learned trial Judge dismissed the suit holding that termination of services of the appellant was in the nature of termination simpliciter and not by way of punishment; and that it was not proved that the services of the appeal- lant were terminated either mala fide or arbitrarily. The appellant has therefore filed this appeal challenging the judgment and decree passed by the learned trial Judge.

(2.) Three contentions have been raised by Mr. Takwani the learned advocate for the appellant. He sub- mitted that termination of appellants services was really by way of punishment as it was based on irregularities memos issued by the authorities in this behalf and his unsuitability to hold the post on which he was working. In support of his contention Mr. Takwani invited my attention to the averments made in paragraph 7 of the Written Statement wherein it has been stated that during the short spell of service the appellant was found in the habit of taking leave frequently and had remained absent from duty unauthorisedly on many occasions for which he was served with memos several times. It is also stated in the said paragraph The plaintiffs performance during the short spell he attended to his duties was far from satisfactory. It is no doubt true that the respondents-defendants have tried to justify their action on those facts and the learned trial judge has also referred to them in his judg- ment. It is pertinent to note that these facts have been stated for the purpose of pointing out that the whole purpose of appointing the appellant by way of stop-gap arrangement was frustrated because of his irregular attendance. In paragraph 7 of the written statement itself it has been stated that the very purpose for which the plaintiff was appointed was defeated by his frequent absence with or without leave. As pointed out earlier the appellant was appointed on ad-hoc basis and only by way of a stop-gap arrangement i.e. till a regular candidate became available. (If during this short period he remained absent either because of his illness or for any other reason the work of the department naturally suffered. In his evidence the appellant has admitted that in his office at Salaya he was the only responsible person and there was nobody else who could supply required information in his ab- sence. Therefore the whole purpose of appointing the appellant was frustrated because of his frequent absence; and that is the ground on which his services came to be termianted. Memos were issued not for the purpose of tak- ing any disciplinary action against him but with a view to see that he became regular in attendance and performance of his duties. For these reasons it cannot be said that the services of the appellant were termi- nated by way of punishment and that this is not a case of termination simpliciter.) It is no doubt true that the learned trial Judge in her judgment has observed that the appellants work was in fact not satisfactory and that he was negligent in performance of his duties. This finding is again based on his conduct in remaining absent with- out getting leave sanctioned and without making any alternative arrangement. In paragraph 13 of his depo- sition the appellant has admitted that he had left the head-quarter without taking permission of his superior officer and without making any alternative arrangement. As stated earlier this conduct of the appellant is referred to not for any other purpose but for the purpose of showing that the very purpose of appointing him was frustrated. In support of his contention that termination of the appellants services was by way of punishment Mr. Tak- wani relied upon the decision of the Supreme Court in Bai Shanker v. State AIR 1966 SC page 492. That was not a case of a temporary employee. In that case it was held that removal of an employee by way of punishment for overstaying his leave is illegal. That is not the case here. The learned trial Judge has rightly followed the decision of the Supreme Court in State of Punjab v. Sukh Raj AIR 1968 SC 1089 which lays down the proposi- tions to be borne in mind while determining the question whether termination of service is by way of punish- ment or not.

(3.) Mr. Takwani also relied upon the decision of this Court in Special Civil Application No. 1161 of 1972. In that case there was a complaint made against the employee concerned which was followed by an enquiry and a re- port; and it was held that the employee was not a fit person to hold the post which he was holding. It was under these circumstances that this Court held that the termination of his service was by way of punishment. The facts of that case were quite different; and therefore it can be of no help to the appellant.