KESHO SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Petitioner's service was terminated by an order dated December 11, 1992. being Annexure-1, to the writ petition. In the said order, it was indicated that the service of the petitioner was no more required and. therefore, his service was terminated with notice pay. Mr. Amit Bose, learned counsel for the petitioner contends that though the order of termination was an order simpliciter passed in exercise of the power conferred by U. P. Temporary Government Servant (Termination of Service) Rules. 1975, but in effect it was a penalty in disguise. According to him, in view of the case made out in the counter-affidavit, there are sufficient reasons to come to a conclusion that it was not a termination simpliciter, but a penalty in disguise requiring lifting of the veil. According to him. In exercise of the writ jurisdiction, the High Court is entitled to pierce the curtain and find out the real position. He further contends that the case made out in the counter-affidavit is that the petitioner had produced a false certificate giving his age in order to obtain the appointment, which was found on enquiry and on the basis thereof, a First information Report has been lodged. Thus, the said allegations formed the foundation of the order of termination. It was not a motive not to retain the petitioner but it was a foundation for terminating services. Therefore, according to him, Article 311 (2) of the Constitution of India is attracted in the case of the petitioner since the order of termination has been passed without any enquiry or without giving him a reasonable opportunity in respect thereof. In support of his contentions, he relies on the decision in the case of Union of India and others u. Joya Kumar Parida, 1966 (1) SCC 441 : Director General of Police and others v. Mritunfay Sarkar, 1996 (8) SCC 280 ; R. S. Cupta v. U. P. State Agro Industries Corporation Limited, JT 1998 (8) SC 585.

(2.) Mr. K. R. Singh, learned standing counsel on the other hand contends that the order o f termination is an order of termination simpliciter without casting any stigma on the petitioner. He seeks to distinguish the statement made in the counter-affidavit as motive and not a foundation. He then relies on the 1975 Rules and points out that in case of temporary Government servant, service can be terminated without giving opportunity as contemplated in Article 311 (2), upon giving a notice or notice pay in lieu of notice. Relying on the decisions in the case of Madhya Pradesh Hasta Shilpa Vikas Limited v. Devendra Kumar Jain. 1995 (1) SCC 638 and the State of V. P. v. Kamla Devi, 1996 (4) SCC 485. he contends that Article 311 (2), has no manner of application in respect of a temporary employee. The petitioner was purely a temporary employee. Therefore, in view of the said decisions, Article 311, cannot be attracted. On these reasoning, he sought to distinguish the three decisions cited by Mr. Bose referred to above.

(3.) Mr. Bose, on the other hand, contended that the proposition of Article 311, in case of a temporary employee is not absolute proposition. According to him, even if Article 311 is not applicable as such but the principle in the form of natural justice and equity would be applicable wherefor the termination being based on foundation as has been held in the three decisions cited by him. Is liable to be quashed.