Ram
Chandra Tripathi Vs. U.P. Public Services Tribunal IV & Ors [1994] INSC 145
(25 February 1994)
Ray,
G.N. (J) Ray, G.N. (J) Reddy, K. Jayachandra (J)
CITATION:
1994 SCC (5) 180 JT 1994 (2) 84 1994 SCALE (1)738
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by G.N. RAY, J.-Leave granted. This appeal
is directed against dismissal of the Writ Petition No. 5803 of 1984 passed on
9- 5-1991 made by the appellant before the Allahabad High Court challenging the
order of dismissal dated 11-9-1984 passed by the U.P. Public Services Tribunal
in Claim No. 3 of 1988/f/IV/81. The aforesaid claim petition was moved by the
appellant before the U.P. Public Services Tribunal against the order of
termination of service of the appellant dated 15-4-1981. The service of the appellant was sought to be terminated
on payment of one month's salary in lieu of notice by giving effect to the
termination of service from the date of service of the said order of
termination. It may be stated here that such notice was served on the appellant
on 1-4-198 1.
2. The
relevant facts concerning the above appeal may be stated as hereunder. The
appellant was recommended for the post of Overseer in the Local Self Government
Engineering Department of Uttar Pradesh (hereinafter referred to as LSGED) by a
Selection Committee. On such recommendation of the Selection Committee, the
appellant was appointed to the post of Overseer by the Chief Engineer, LSGED
and the appellant joined his duties as an Overseer on 8-10-1964.
The
post of Overseer was later on redesignated as Junior Engineer. Accordingly, the
appellant was treated as Junior Engineer. The appellant's service was made
permanent by confirming him to the said post of Junior Engineer w.e.f. 1- 4-1974 by an order dated 31-8-1975 passed by the Chief Engineer, LSGED. After the U.P. Jal Nigam
was established by the Uttar Pradesh Water Supply Sewerage Act, 1975, the
service of the appellant was transferred from LSGED to Uttar Pradesh Jal Nigam
a statutory body with the same terms and conditions under which the appellant
was working in the LSGED. It appears that in a Writ Petition No. 103 of 1974
filed by one Shri Satya Virat Singh against State of Uttar Pradesh, the High Court of Allahabad passed
an interim order restraining the respondent to confirm Junior Engineers.
Despite
such order of injunction which was in force, the aforesaid order dated 31-8-1975 was passed by the Additional Chief Engineer, LSGED
confirming the appellant to the post of Junior Engineer w.e.f. 1-4-1974. After it was detected that the said order of
confirmation was illegal and contrary to the interim order of injunction passed
in the said writ petition, an order of deconfirmation was issued on 8-2-1978 by which the confirmation of the service of the
appellant was recalled and the appellant was treated as holding a temporary
post of Junior Engineer. It may be stated in this connection, that such order
of rectification of the earlier order of confirmation was not made by informing
the appellant and giving him opportunity of being heard. It appears that some
orders of transfers were passed against the appellant but the appellant went on
long leave on medical ground and continued to remain on leave and after medical
leave was over, he joined his earlier place of posting at Kanpur and not at the place where he was
scheduled to join on transfer. Thereafter, the appellant was served with the
said order of termination with immediate effect by giving one month's salary in
lieu of one month's notice.
183
3.The appellant challenged such order of termination before the U.P.
Public-Services Tribunal at Lucknow inter alia
contending that he was a permanent employee having rendered total period of
service for 16 years in LSGED and in U.P.
Jal Nigam.
The appellant contended that he was never informed of deconfirmation of his
service and the order of termination was passed against him mala fide in view
of the fact that he being the President of U.P. Jal Nigam Employees1 Union at Kanpur,
incurred the displeasure of the higher authorities for raising voice of protest
against improper action of U.P. Jal Nigam and seeking redressal of the
grievances of the employees of the Jal Nigam. The appellant also contended that
there was no valid reason for terminating the service of the appellant and he was
singled out on the pretext that he had suffered adverse entries in the
confidential character roll for the years 1965-66 and 1978-79. The appellant
contended that entry for the year 1965-66 was a stale entry and could not have
been taken into consideration for deciding the suitability of the appellant and
the other adverse entry for the year 1978-79 could not also be taken into
consideration as the same was not communicated to the appellant. The appellant
contended that the said order of termination of service was in essence a
punitive order without following the proper procedure for passing such order.
The order, therefore, should be set aside.
4.
Such submission of the appellant was disputed by the U.P. Jal Nigam by
contending that the order of confirmation of the appellant's temporary service
was passed in total disregard of the impugned order of injunction passed by the
High Court in the said writ petition and the mistake committed in passing such
order was later on rectified. For such rectification, no hearing was required
to be given to the appellant. It was also contended on behalf of the U.P.
Jal Nigam
that service of the appellant was not at all satisfactory. The adverse entries
in the confidential character roll for the year 1978-79 was indicated to the
appellant and the representation made by the appellant against such adverse
remark was also rejected. That apart, for other years also the assessment of
the appellant's service was not at all satisfactory and the rating of the
service of the appellant was only "average" for the other years. A
Selection Committee took into consideration the cases of temporary Junior
Engineers for confirmation and out of 43 Junior Engineers, 33 were made
permanent on assessment of their work but appellant's service was not
considered satisfactory for making him permanent. Accordingly, his service was
terminated with immediate effect by giving one month's salary in lieu of one
month's notice. It was contended by the U.P. Jal Nigam that the appellant's
service was not terminated by way of punishment as sought to be contended by
him but the temporary service of the appellant was terminated according to the
service rules by giving one month's salary in lieu of one month's notice on
proper assessment of his service records.
5. The
U.P. Public Services Tribunal rejected the claim petition of the appellant by
holding inter alia that the appellant was holding a temporary service and the
confirmation given to the appellant through mistake was rectified. It was held
by the Tribunal that the order of termination was not 184 passed mala fide or
by way of punishment but the same was passed after assessing the appellant's
service records which was found to be not satisfactory. The Tribunal also held
that since the impugned order of termination was passed by giving one month's
salary in lieu of one month's notice as per the conditions of service and
without any stigma attached to the order of termination, the same was quite
valid and was not liable to be set aside.
6. As
aforesaid, the appellant challenged the said order of U.P. Public Services
Tribunal rejecting his claim petition by moving a writ petition before the
Allahabad High Court but the High Court upheld the order of Tribunal and
dismissed the writ petition holding inter alia that such order was passed on
assessment of the service records of the appellant without attaching any stigma
against the appellant and in conformity with the service rules by giving one
month's salary in lieu of one month's notice.
7. At
the hearing of this appeal, Mr Mukhoty, learned Senior Counsel appearing for
the appellant has very strongly contended that although no stigma was attached
in the impugned order of termination of the service of the appellant, in effect
the order was a punitive order intended to get rid of the appellant because of
his union activities thereby incurring the displeasure of the higher
authorities.
Mr Mukhoty
has contended that the appellant had rendered service for a total period of 16
years in LSGED and U.P. Jal Nigam and the bogey of unsatisfactory service was
far from truth but a device to get rid of the appellant. Mr Mukhoty in this
connection has referred to a decision of this Court in Manager, Government
Branch Press v. D.B. Belliappal. In the said decision, this Court has held that
the protection of Articles 14 and 16(1) is available to a temporary government
servant if he has been arbitrarily discriminated against and singled out for
harsh treatment. The employer has discretion under the conditions of service,
but such discretion has to be exercised in accordance with reason and fair play
and not capriciously. Arbitrary invocation or enforcement of a service
condition terminating the service of a temporary employee may itself constitute
denial of equal opportunity and offend the equality clause in Articles 14 and
16(1) of the Constitution. Relying on the said decision, Mr Mukhoty has
contended that for the last 16 years the appellant was allowed to continue in
service. No objection was raised that his service was unsatisfactory and he
could not be retained in service or be confirmed. It is only when the appellant
incurred displeasure by demanding certain concessions and raising voice of
protest as the President of the Union, an excuse of unsuitable service was
sought to be found out by relying on stale service record for the year 1965-66
and an adverse entry made in the year 1978-79. Mr Mukhoty has contended that
other temporary Junior Engineers who were similarly circumstanced with the
appellant had been made permanent but he was singled out for being terminated
from service without any just and fair reason. He has also-contended that the
very fact that such termination was 1 (1979) 1 SCC 477: 1979 SCC (L&S) 39
185 sought to be effected after long service of 16 years, clearly demonstrates
the unreasonableness and the mala fide attitude on the part of the respondents
and on that score alone, the order of termination is to be set aside by holding
that the said order was not just and fair but was actuated by mala fide and unreasonableness.
Mr Mukhoty has also relied on another decision of this Court in Brij Mohan
Singh Chopra v. State of Punjab2. It has been held by this Court in
the said decision that for retiring a government servant compulsorily, stale
adverse entries of more than ten years back should not be taken into
consideration. Only, the current service records could be taken into
consideration for deciding a case of compulsory retirement provided adverse
entries made in the service records had been communicated to the government
employees concerned and reasonable opportunities to hear against such entries
had been given to such employee. Mr Mukhoty has submitted that the adverse
entry of the year 1965-66 should not have been considered for the purpose of
terminating the service of the appellant. He has also contended that even if it
is assumed that adverse entries of 1978-79 had been taken into consideration
after communicating the same to the appellant and rejecting his representation,
the fact remains that barring the said adverse entry of 1978-79, the appellant
did not suffer any adverse entry in the service record in the recent past and
the rating of the appellant as average does not constitute any adverse remark.
He has contended that if with such rating as average the appellant was allowed
to continue in service for a number of years, there was no reason, far less a
fair reason, to hold the appellant unsuitable for retention in service at a
late stage. Mr Mukhoty has contended that the said order of termination at an
advanced stage of the appellant's career created a serious prejudice to the
appellant thereby practically depriving him to any chance to get a suitable job
elsewhere at the late stage of life. He has submitted that the Court should
take into consideration all the facts and circumstances of the case to come to
a proper decision as to whether or not action of the Jal Nigam is fair and
just. He has submitted that although the service of a temporary employee is
liable to be terminated on the ground of unsuitability of giving one month's
salary in lieu of one month's notice, the Court should not allow such
termination of service if the same is passed unjustly by singling out a poor
employee as unsuitable though the facts and circumstances clearly indicate that
his service was not found unsuitable at any point of time. He has, therefore,
submitted that the U.P. Public Services Tribunal and the Allahabad High Court
failed to appreciate the lack of fairness in passing the said order of
termination and had gone wrong in not setting aside the said unjust and
improper order of termination. He has submitted that this Court should allow
this appeal and set aside the impugned order of termination of service and
direct the respondent to confirm the appellant from the date from which the
other Junior Engineers were confirmed in service and to give all consequential
benefits of such service of the appellant.
2
(1987) 2 SCC 188: (1987) 3 ATC 496 186
8.
Such contention of Mr Mukhoty was seriously disputed by the learned counsel
appearing for the respondent. It has been contended by the learned counsel for
the respondent that the U.P. Public Services Tribunal has come to a categorical
finding that the order of termination of the appellant's service was not made
as a punitive measure as sought to be contended but such order was passed after
assessing the service records of the appellant. It has been contended that a
proper committee looked into the service records of various employees including
the appellant and although 33 Junior Engineers were made permanent, the
appellant's service was found to be unsatisfactory and it was decided not to
retain the appellant because he was found unsatisfactory. It has been contended
by the learned counsel that the appellant was given chance to improve his
service over a long span of time, but unfortunately, he suffered adverse
entries on two occasions and on other occasions also the assessment of his
service record was not at all satisfactory and he was given a poor rating as
'average'. As the appellant failed to improve his capabilities, on assessment
of the service records he was found unsuitable to be retained in the service
and the temporary service was terminated according to the service rules by
giving one month's salary in lieu of one month's notice without attaching any
stigma in the order of termination. The learned counsel for the respondent has
relied on a decision of this Court in Triveni Shankar Saxena v. State of U.P.3 It was held in the said decision
that when an employee was not shown in substantive capacity on permanent basis,
the employee could not claim his lien in the post of Lekhpal. It was also held
that if termination of service simpliciter of a temporary employee was effected
as per rule on account of his unsuitability on the basis of service records
including remarks in the character roll, such termination could not be held as
punitive and the termination of such service must be held as legal and valid.
The
learned counsel has submitted that in the said case even after 18 years of
temporary service, the employment of the temporary government servant was
terminated on assessment of the service records by finding him as unsuitable to
be retained in service and this Court did not set aside such order of
termination on the score that such order has been passed after allowing the
employee concerned to remain in temporary service for 18 years. The learned
counsel for the respondent has also relied on a decision of this Court in State
of U.P. v. Kaushal Kishore Shukla4. It has
been held in the said decision of this Court that termination of service of ad
hoc or temporary government servant in terms of the contract of service and
rules by passing an order of termination simpliciter on assessment of
suitability after consideration of adverse entry must be held as valid and not
punitive. The learned counsel for the respondent has, therefore, submitted that
the Service Tribunal and High Court were justified in holding that the impugned
order of termination was validly passed on assessment of service record of the
appellant. The learned counsel has contended that in the instant 3 1992 Supp
(1) SCC 524: 1992 SCC (L&S) 440: (1992) 19 ATC 931 4 (1991)1 SCC691:1991 SCC(L&S)587:(1991)16ATC498
187 case no stale record was taken into consideration. Even if the service
record of 1965-66 is left out of consideration, the adverse entry made in the
service record of the appellant in 1978-79 cannot be held to be stale entry for
the purpose of considering the suitability of the appellant in 1981. The learned
counsel has contended that the appellant failed to get any superior rating over
a long span of years. Accordingly, there is ample justification to hold him
unsuitable and the impugned order was, therefore, properly made. The learned
counsel for the respondent has, therefore, submitted that no interference is
called for and the same should be dismissed.
9.
After giving our anxious consideration to the facts and circumstances of the
case and submissions made by the learned counsel for the parties, it appears to
us that the appellant was not made permanent in the post of Junior Engineer.
Although he was made permanent, as indicated hereinbefore, such order was
passed in complete violation of the interim order of injunction passed by the
High Court in the writ proceedings which debarred the respondents from
confirming any Junior Engineer. Since the order of confirmation of the
appellant was made in violation of the injunction order, the mistake committed
in passing the order of confirmation was corrected. In our view, in such
circumstances, the appellant was not required to be given any opportunity of
being heard for correcting such mistake because there was no occasion to take
one view or the other in the matter of correction of the said mistake on the basis
of the representation to be made by the appellant. The order of confirmation
was per se illegal and in violation of the order of injunction passed by the
High Court and the same being invalid was got to be corrected, in any event.
The
finding of the Tribunal that the impugned order of termination was passed
without any stigma and not as a punitive measure has been upheld by the High
Court and we find no justification in taking a contrary view simply because the
appellant was a President of local union at Kanpur, and according to him, he
had raised demands on behalf of the employees. There are no materials
warranting a finding that he was picked up for incurring displeasure of the
higher authorities and the service was sought to be terminated mala fide on
some pretext. It appears that although the appellant had remained in service
for 16 years but the service record of the appellant was not at all convincing
even within a span of five years prior to the date of consideration of the
suitability to be retained in temporary service. He suffered an adverse entry
and despite opportunity to make representation, such entries were maintained.
The assessment of other years of service in the recent past was also not
assuring and the appellant was rated as average. If on consideration of such
service records, the appropriate committee did not find the appellant suitable
to be confirmed in service and the authorities concerned on consideration of
poor service record of the appellant had come to the finding that he was not
suitable to be retained in service and the impugned order was passed without
any stigma and in accordance with the service rules, the same cannot be held
illegal or invalid.
We,
therefore, find no justification to set aside the impugned order of termination
of service.
188
10.It, however, appears to us that the appellant had in fact rendered 16 years
of service in LSGED and thereafter in U.P. Jal Nigam. Although the service
record of the appellant was not good, the authorities concerned had allowed him
to continue in service despite the poor rating and adverse entries. The
appellant has advanced in age and there is force in the contention of Mr Mukhoty
that it will be very difficult for the appellant to get suitable employment
opportunity at this advanced age. In Triveni Shanker case3 a similar
circumstance was taken into consideration by this Court and it was held that in
spite of poor service record, the termination was not effected at the earlier
point of time thereby depriving the appellant to secure some other employment.
This Court, therefore, though upheld the termination of service, directed the
State Government to pay a sum of Rs 50,000 as ex gratia within four months. The
facts and circumstances of this case are also similar and for the same reason,
although we have not interfered with the termination of the service of the
appellant, we direct the U.P. Jal Nigam to pay a sum of Rs 75,000 to the
appellant within a period of three months from today. Although appeal is
dismissed, in the facts and circumstances of the case, there will be no order
as to costs.
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