STATE OF UTTAR PRADESH Vs. RAM

JUDGEMENT

(1.) THIS appeal has been filed by the State of U. P. against an order of the First Additional Civil Judge, Azamgarh setting aside the order of termination of the services of the respondent dated 4-2-56 by the S.D.O. Sadar, Azamgarh. The relevant facts of the case are that the plaintiff respondent was appointed a temporary Patwari by means of an order of the S.D.O. on 9-4-53. His services were, however, terminated on 4-2-56 by the S.D.O. Sadar. The respondent filed an appeal before the Commissioner, who by his order dated 23-5-57 remanded the case to the S.D.O. The respondent thereafter filed a suit in the court of the Third Additional Munsif, Azamgarh, allegating that the procedure provided in Art. 311 of the Constitution had not been followed. On behalf of the State the plea raised was that the suit was barred by limitation. The learned Munsif, relying on the decision in P. L. Dhingra v. Union of India (1) held that the order amounted to a stigma on the respondent and as such it deserved to be set aside. It was however held that the suit was barred by limitation. In the appeal filed by the respondent, the learned Civil Judge held that the State did not file any cross-objection against the order of the Munsif and it was not open to the State to challenge the finding on that score. The lower appellate court allowed the appeal and set aside the order of the S.D.O. THIS second appeal has now been filed by the State against order of the lower appellate court. So far as the question of limitation is concerned, I do not see any reason to disagree with the finding of the lower appellate court. It is no doubt true that the order of termination was passed on 4-2-56, but the Commissioner passed the order on 23-5-57. The limitation would naturally run from the date of the order of the Commissioner. The period of limitation is six years under Art. 120 of the Indian Limitation Act, 1908. Thus the suit was within limitation. I shall now take the other question. In the case of P. L. Dhingra (ibid) the following observations were made by the Hon'ble Supreme Court: "Shortly put, the principle is that when a servant had right to a post or to a rank either under the terms of the contract of employment, express or implied or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it -operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post permanent or temporary, either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Services Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Art. 311. In other words and broadly speaking Art. 311 (2) will apply to those cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the Government has, by contract, express or implied, or under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Art. 311." Thus it will have to be determined whether the respondent held a post of purely temporary nature or a quasi-permanent post. If he did not hold a quasi-permanent post, he will not be entitled to protection under Art. 311(2). Since there is no finding by either of the two courts below on this point, the case will have to be remanded to the U. P. Public Services Tribunal for determination of this question and decision accordingly. The appeal is therefore allowed. The order of the lower appellate court is hereby set aside and the case is remanded to the U. P. Public Services Tribunal for decision of the case in the light of the observations made above. In the circumstances parties shall bear their own costs.