PREM PAL SHARMA Vs. THE DISTRICT JUDGE, BADAUN

JUDGEMENT

(1.) PETITIONER , who claims to be a Driver having been appointed in the office of learned District Judge, in March, 1988 on temporary basis, has filed this writ petition challenging the order of termination of his service dated 28 -9 -1992. Learned counsel for the petitioner has, in support of the writ petition made two submissions; namely, (i) the order of termination could not have been , passed without giving a reasonable opportunity of being heard to the petitioner, and (ii) there is stigma cast in the impugned order on account of which the petitioner is entitled to the protection provided under Article 311(2) of the Constitution of India. It is not possible to agree with the learned counsel. An employee appointed on temporary basis has no right to the post and he can be terminated at any time in accordance with Rules providing for termination of the service of the temporary employees. The only condition is that the action of the State must not be arbitrary. In the instant case the petitioner was appointed as a temporary Driver and his service can be terminated by one month's notice or the pay m lieu thereof as provided by Rules.

(2.) THE submission of learned counsel however, is that the petitioner is entitled to an opportunity of being heard before the termination of service and for this purpose reliance has been placed, by the learned counsel, on the decision of the learned Single Judge, of this Court, in the case of Ram Khelawan v. State of U. P. ( : 1992, 2 UPLBEG 892) In the case of Ram Khelawan (supra) learned Judge has laid down that in the case of a temporary employee of the State, who has put in long service, either opportunity of being heard should be given to him before terminating his service or the order of termination should be justified by the State showing that it is, not arbitrary. As regards the meaning of "long service" the learned Judge held that it depends on the facts and circumstances of each case and ordinarily three years continuous service may be regarded as long service. The question as to whether an employee has put in long service, so as to justify opportunity of being heard before termination of service, is a question which, as learned Judge himself observed in the aforesaid case, depend on facts of each case. In a particular case three years service may be treated long enough to entitle him to a notice, but in other cases even five or six years' service may not entitle him to a notice. It all depends on the facts and circumstances of the particular case. Three years period cannot be treated as period provided by the stature, on lapse of which the employee is entitled to a notice as a matter of right. In the instant case, according to the averments made in writ petition, the petitioner has completed four years service and his services have now been terminated on account of participation in a strike. Petitioner has no right to go on strike There is no averment in the writ petition that strike was legally justified. The respondent was fully justified to terminate his services by giving one month's notice or pay in lieu thereof, if he has participated in the strike. The employees, who are working on temporary and ad hoc basis, have to be careful and it is not in their interest to participate in the strike, unless it is proved that the strike was lawful in which they hare a right to participate. That is not the case here. Petitioner was not entitled to any opportunity of being heard in the instant case before termination of his service. In the present case decisions of Supreme - Court in the cases of Triveni Shankar Saxena v. State of U. P. : (1992) 4 FLR 330 (SC) and State of U.P. v. Kaushal Kishore : (1991) 62 FLR 350 (SC) are fully applicable. In the case of Triveni Shanker Saxena (supra) termination of service of temporary employee after 18 years' service, was upheld without notice. In the case of Kaushal Kishore (supra) termination of temporary employee was upheld. These two cases were distinguished by learned Single Judge in the case of Ram Khelawan (supra). But in view of the facts and circumstances of the instant case, those cases are fully applicable to the instant case. No, interference is called for by this Court under Article 226 of the Constitution of India, against the impugned order on this ground. The second submission also lacks merit. The impugned order is reproduced below:

(3.) Your services are no longer required. Accordingly your services are dispensed with and determined with effect from forenoon of 28 -9 -1992. You shall be paid one month's pay in lieu of notice period.