SHYAMA CHARAN SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) IN this petition under Article 226 of the Constitution brought to quash the order of the U.P. Public Services Tribunal created by the U.P. Public Services (Tribunals) Act, 1976 (to be hereinafter referred as the Act) setting aside the decree obtained by the Petitioner from the court of 1st Additional District Judge, Faizabad dated 11 -11 -1975, confirming in appeal the judgment of Munsif Faizabad, declaring that the termination of the services of the Petitioner by the Joint Development Commissioner was illegal and void, two points arise for determination; First, whether the order of termination of service was in violation of the constitutional right of the Petitioner, guaranteed under Article 311(2) of the Constitution, and second, whether the reference of claim made by the employer under Section 5 of the Act had been filed beyond the period prescribed by the Act and Rules made thereunder.

(2.) THE material facts are not in dispute. The Petitioner was appointed by the Deputy Development Commissioner, Faizabad, as Lower Division Assistant on a temporary post liable to termination at any time without notice. He was, however, placed on probation for a period of six months from the date of joining the duty. If his work were found to be unsatisfactory he was to be reverted to his original post forthwith. His post of Lower Division Assistant was made permanent with effect from 1 -4 -1964 by the Government order, dated 31 -8 -1975 (Annexure 2), but the Petitioner was neither substantively appointed to that post nor was he confirmed on that post. On October 16, 1969 the Deputy Development Commissioner, Faizabad, called for the explanation of the Petitioner in respect of several irregularities specified therein which had come to his notice and the Petitioner on 24 -11 -1969 made a submission in writing, it being Annexure 4. The alleged irregularities were: the Petitioner, it was said, had removed two pages from his personal file; the file relating to the appointment to the post of Assistant Boring Mechanic had been retained by him so that the letters sent by the District Planning Officer, Sultanpur, may not be disposed off. On 16 -12 -1969 the Joint Development Commissioner - passed the order terminating the services of the Petitioner, without casting any aspersion on his work or stigma on his integrity. Thereafter, he filed a declaratory suit in the court of the Munsif which was decreed and the decree was affirmed in appeal on 11 -11 -1975. The Act came into force on November 24, 1975. The reference of claim was made by the Joint Development Commissioner on 13 -2 -1976 under Section 4 read with the proviso to Clause (b) of Sub -section (1) of Section 5.

(3.) COUNSEL for the Petitioner has strenuously contended that having regard to the circumstances preceding the impugned order coupled with the fact that the Deputy Development Commissioner had set out the lapses on the part of the Petitioner, it was amply made out that the Petitioner's services were terminated for misconduct. Chief Standing Counsel has on the other hand maintained that the order does not cast any aspersion or stigma upon the Petitioner and that the Petitioner being a temporary servant, and there being no intention indicated to punish him, his services could be terminated on the ground of unsatisfactory work. We have, therefore, to see whether the impugned order is in the nature of punishment so as to fall within the mischief of Article 311 of the Constitution. Even though the order does not bear an impress of penalty, the officer prejudiced by the making of the order is entitled to prove that he has been denied the protection of the guarantee under Article 311 of the Constitution. The matter has to be viewed as one of substance taking into consideration the entirety of circumstances preceding or attending the impugned order.