Pant Agr. & Tech. University Vs. Kesho Ram  INSC 291 (5 May 1994)
K. Ramaswamy, K. Venkatachala N. (J)
1995 AIR 718 1994 SCC (4) 437 1994 SCALE (2)1063
have heard the learned counsel on both sides. The respondent was appointed as
Assistant Block Superintendent on 30-11-1972, subject to the terms of the
contract. Two of the terms, relevant for the purpose of this case, are that his
service was liable to be terminated with one month notice or pay in lieu
thereof as per clause 9, and such termination would be subject to arbitration
as provided under clause 14. The employee also shall be, subject to clause 12,
bound by the law, statutes and regulations issued by the officer or authority
of the university, competent to issue in that behalf and was in force. On 26-3-1976 the service of the respondent was terminated. The
respondent filed the civil suit for a declaration that his order of termination
was illegal, as he was not given an opportunity to defend himself, and that it
was by way of punishment.
trial court in its decree dated 24-4-1981 decreed the suit. On appeal, the District Judge set aside the order.
second appeal was filed in the High Court, initially, it was dismissed on the
ground of limitation. In CA No. 785 of 1989, this Court set aside the order of
the High Court and remanded the case directing it to dispose of the matter on
merits. In Second Appeal No. 2908 of 1992, by judgment and decree dated 7-8-1992, the High Court set aside the judgment and decree of
the appellate court and confirmed that of the trial court. Thus, this appeal by
Though Shri Rao learned Senior Counsel for the appellant sought to contend that
the order of dismissal dated 26-3-1976 impugned in the Civil Suit No. 16 of
1980 was passed (sic barred) by limitation as on date of suit three years'
period of limitation had expired by efflux of time, that point is no longer
open to the appellant to canvass it as the order of this Court operates as res judicata.
Therefore, the suit was filed within the limitation.
is next contended that in view of the finding given by the district court as
well as by the High Court that the respondent was a temporary employee
appointed by the university, the findings of the High Court that the order
though innocuous, it is by way of penalty and that therefore, the order of
dismissal without inquiry is violative of Article 311(2) of the Constitution is
find force in the contention. It is settled law that the order 439 though is innocuous,
it is open to the court to lift the veil and find the cause for terminating the
temporary employment. If it is by way of punishment, then necessarily an
inquiry has got to be made in accordance with the rules.
it is open to the authorities, in terms of the order of appointment or the
relevant rules, to terminate the service of a temporary employee without
conducting an inquiry. The finding of the district court as confirmed by the
High Court is that the respondent is a temporary employee. The action was taken
for the reason that the respondent was irregularly absent without obtaining
leave and that therefore his services were terminated.
simpliciter is not per se by way of punishment nor does it visit with penal
consequences. So it cannot be said to be for misconduct. The effect of the
order has to be looked into. In this case, since the authority has got power
and had exercised it under condition 9 of the conditions of appointment, the
termination per se is not illegal. Since the university is not governed by
Article 311(2), the finding of the High Court that the order of termination is violative
of Article 311(2) is clearly illegal. Though clause 14 of the terms of appointment
envisages arbitration between the parties, in view of the facts in this case,
we need not consider that question.
that question is left open.
This Court by interim order dated 2-2-1993, had given direction to the appellant to reinstate the respondent into
the service and his payment of arrears would be subject to further orders. In
implementation thereof, since the respondent has been reinstated and ever since
has been working, though we uphold the power of the appellant that they are entitled
to terminate the service of a temporary employee, exercising the power under
condition 9 of the terms of appointment, on the facts in this case we do not
propose to interfere with the decree of the High Court confirming the decree of
the trial court reinstating the respondent into the service, though for
the respondent will not be entitled to any back wages. His previous service
would be counted only for the purpose of pensionary benefits and other service
appeal is accordingly dismissed but without costs.