DEVI SINGH KAMBOJ Vs. STATE OF U P

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree dated August 12, 1968 passed by IInd Addl. Civil Judge, Dehradun. The facts leading to this appeal can, briefly, be stated as under: The plaintiff-appellant was appointed as a Cleaner-cum-Conductor in the U.P. Govt. Roadways on April 11, 1957. He remained in service till December 27, 1965 as a temporary employee and during this period also occasionally officiated as a Booking Clerk. On De cember 27, 1965, however, his services were terminated by an order which reads as follows: "The services of Sri Devi Singh Kamboj, Junior Booking Clerk posted at U.P. Govt. Roadways Bus Station, City Bus Service, Dehradun are hereby terminated with immediate effect as they are no longer required. In terms and conditions of his service he will get one month's pay in lieu of notice on the date he is relieved." The plaintiff-appellant filed a suit challenging the aforesaid or der as one amounting to punishment and, therefore, hit by Article 311 of the Constitution The relief asked for in the plaint was of a dec laration that the order dated December 27, 1965 terminating the ser vices of the appellant was null and void. The plaintiff-appellant also claimed a decree for Rs.695/- being the amount due to him as his salary and other allowances for the period between December 28, 1965 and May 27, 1966. The suit was resisted on behalf of the respondents. The trial court on a consideration of the issue framed in the case came to the conclusion that the order dated December 27, 1965 terminating the services of the appellant was null and void. The trial court, therefore, decreed the suit for declaration as well as for the sum of Rs.695/- as claimed in the plaint. Aggrieved against the judgment and decree of the trial court the respondents preferred an appeal in the court of the District Judge, Dehradun. The learned IInd Addl. Civil Judge, Dehradun, who heard, the appeal, disagreed with the trial court and came to the conclusion that the order terminating the services of the appellant was not a punishment and that it did not attract Article 311 of the Constitution. In the result therefore, the learned IInd Addl. Civil Judge allowed the appeal and dismised the suit vide his judgment dated August 12, 1968. Feeling dis-satisfied with the judgment and decree passed by the IInd Addl. Civil Judge, Dehradun the plaintiff has come up in appeal before this court. Learned counsel for the appellant has raised the following three points in his arguments before me: (i) That, according to the conditions of service the services of the plaintiff could be terminated either by one month's notice or on payment of one month's salary, and since the services of the plaintiff- appellant were terminated with immediate effect without payment of salary, the termination was illegal, (ii) That the order terminating the services of the appellant amounted to punishment and was hit by Article 311 of the Cons titution, and (Hi) that two order terminating the services of the appellant violated Article 16 of the Constitution and was, therefore, illegal. Now, taking up the first contention raised by the learned counsel for the appellant, a copy as the conditions of service has been placed on record and is Ex. A18, clause (5) of this document embodies the con dition of termination of service which reads as follows: "Their services are liable to termination on one month's no tice on either side, or one month's pay in lieu thereof." Learned counsel for the appellant contended that clause (5) of Ex. A18 lays down only two modes for terminating the services of a temporary employee, and those two modes are: (1) By service of one month's notice; and (2) By payment of one month's salary. Learned counsel stresssed that in the instant case the services of the appellant were terminated with immediate effect and, therefore, it could only be by payment of one month's pay. It was urged that the appellant was not paid one month's pay on the date on which the order terminating his services was served and, consequently, the or der is illegal. Reliance for this argument was placed by the learned counsel on the decision of the Supreme Court in the case of Senior Supdt., R. M. S., Cochin and another v. K. V. Gopinath AIR 1972 S.C 1487. In that case while interpreting Clause (5) of the conditions of the relevant service, the Supreme Court held that, on the language of condition No. 5, payment of one month's salary was necessary if the service is were to be terminated with immediate effect. Learned counsel also referred me to a decision of this Court in the case between U. P. Rajya Sadak Parivahan Nigam v. Nand Lal Yadav 1975 ALR 429. in which the same condition of service which is involved for interpretation in the present case, came up for consideration and the learned Single Judge, who decided the case, held that if the service was sought to be terminated with immediate effect payment of the salary was in dispensable. The learned Single Judge for his conclusion placed re liance on the aforesaid decision of the Supreme Court. The decision of the Supreme Court in the case Sr. Supdt., R. M. S., Cochin and another v. K. V. Gopinath (supra) as well as the decision of this Court in U.P. Rajya Sadak Parivahan Nigam v. Nandlal Yadav (supra) came up for consideration before a Division Bench of this Court in Special Appeal No. 269 of 1975: Girish Chandra Saxena v. Sahayak Pradhan Prabandhak, U. P. Rajkiya Roadways and others: decided on October 15. 1976. In this case too the same condition of service was involved for consideration as is involved in the case before me. The Hon'ble Judges who decided the case, ex pressly overruled the decisioin of the learned Single Judge of this Court in the case U. P. Rajya Sadak Parivahan Nigam v. Nandlal Yadav (supra). They also referred to the decision of the Supreme Court and said that the language of the rule involved for considera tion in the case before the Supreme Court and the language of the rule in the case before them being different, the rule laid down by the Supreme Court was not applicable. The order terminating the services was upheld by the Division Bench. The observation made by the Division Bench in the aforesaid case of Girish Chandra Saxena v. Sahayak Pradhan Prabandhak, U. P. Rajkiya Roadways and others (supra) is fully applicable to the case before me. The contention raised by the learned counsel for the appellant, that the order terminating the services of the ap pellant is illegal because one month's salary was not paid to him im mediately at the time of the service of the termination order, is ac cordingly negatived. THIS takes me to the second contention, viz. that the order ter minating the services of the appellant amounts to punishment and, therefore, violative of Article 311 of the Constitution. Reference in this connection was made by the learned counsel for the appellant to the statement made by is Kalia wherein he referred to the com plaints against the1 appellant and said that he was. There fore, com pelled to terminate his services. It was vehemently urged by the learned counsel for the appellant that in view of the aforesaid state ment made by Sri Kalia it should be held that the order terminating the services of the appellant amounts to punishment. I regret my inability to accept this argument. It has been observed by the Supreme Court in the caee Sr. Supdt. of R. M. S., Cochin v. K. V. Gopinath (supra). "Normally a Government employee is not asked to go unless some complaint is made against him for some irregularities de tected in his work. THIS is always followed by some inquiry into his conduct, however, brief, as it is only as a result of an inquiry that the authority makes up its mind that it would not be in public interest to retain the service of the employee any longer." Decisions in which similar observations have been made are many. Reference may, however, also be made in this connection to a Divi sion Bench decision of this Court in the case Collector and District Magistrate, Varanasi v. Mataru Ram 1976 A.L.R. 130. In this case several warnings were give to the petitioner which proved abortive and thereafter the services of the petitioner were terminated. A conten tion was raised before the Division Bench that the order amounted to punishment. After making a reference to several decisions of the Supreme Court, the division Bench summed up thus: "In these cases even though there were specific complaints against the conduct of temporary Govt. servants and some cost of inquiries were held before the termination orders were passed the Supreme Court held that they could not be said to be by way of punishment. It thus appears that the services of a tem porary Govt. servant can be terminated legitimately even for a fault, whether the fault indicates inefficiency, unsatisfactory work, misconduct or negligence. A preliminary inquiry may or may not precede such termination." In view of the aforesaid observations the contention raised by the learned counsel for the appellant that the order terminating the Services of the appellant amounts to punishment cannot be accepted. Coming to the third contention, it was urged by the learned counsel for the appellant that the appellant was the senior-most cleaner-cum-conductor in the service and, even though his services have been terminated, persons junior to him continue to remain in service and it is, thus, a clear case of violation of Article 16. I am once again unable to agree. As already stated earlier, services of a temporary employee are normally terminated because for one reason or the other he is not found suitable to hold the post. If on such a consideration the ser vices of a temporary employee are terminated, the mere fact that persons junior to him continue to remain in employment, can by no means, render the termination order illegal. Of course if the per son relying on the violation of Article 16 establishes the fact that those who have been permitted to continue in service were equally bad or unsuitable, there may be some ground for consideration of the violation of Article 16. Needless to say that the onus to prove viola tion of Article 16 would lie on the person who pleads it. In the ins tant case no evidence was adduced by the appellant in order to establish that the persons junior to him, who continue in service, were also as such unsuitable to hold the post as the appellant. A similar contention was raised in the case Superintendent En gineer, U. P. Elec. Board v. B. B. Singh 1975 A.L.R. 127. Even though it was a case of reversion, the observation made in this case deserve notice. It was observed: "Articles 14 and 10 would apply, according to Sughar Singh's case, when a person is reverted, or his services are terminated, without any reason or basis while persons junior to him are re tained. Article 14 or 16 is not attracted where a Govt. Officer's case is considered in due course to judge whether he was fit to be confirmed or continued and the action of reversion or termi nation is taken on an overall assessment of his performance on the post. While assessing an individual officer's performance no comparison can possibly be made with others. His merit has to be adjudged on his record of performance. When it is found that an individual officer is not suitable, he is in a class by him self he is not similarly situate with other officers who are offi-ciaiting, but who are junior to him." And again, "of course, if it is established that other officiating officers whose merit was also evaluated and it was found that they were unsuitable, but yet a senior hand was reverted first, a case for holding that the order was discriminatory may arise. But such is not the case here." The third contention raised by the learned counsel for the ap pellant is therefore, also rejected. Learned counsel for the appellant at the fag end of his argu ments also pointed out that at the time the order terminating his services was served on the appellant he was officiating as a Booking Clerk and, consequently, he could be reverted to his original post of Cleaner-cum-Conductor. It was urged that his services should not have been terminated. THIS is not a province in which the courts may enter. It is always for an appointing authority to decide whe ther any person should be reverted to his substantive post or his ser vices should be terminated. The appointing authorities take deci sion in this regard on the basis of the overall performance of the concerned employee and his record of service. Courts can interfere only when it is shown that the order terminating the services is passed in breach of statutory rules or in violation of the principles of natural justice. No other contention having been raised, find that this appeal is devoid of substance and must fail. The appeal accordingly fails and is hereby disrniessd with costs.