JUDGMENT [ENTITY], J.
1. This Writ Appeal arose under the following circumstances:
The appellant [ENTITY] was appointed as a Tool Maker Grade 'A' in the Defence Research and Development Laboratories (DRDL), Hyderabad on 2nd November, 1973 by the Director 1st respondent. His appointment to the post was temporary. On 2-1-1978, the Deputy Director, D.R.D.L. issued an order terminating the services of the appellant which was challenged by way of [CASE NUMBER]. In the writ petition the appellant raised two contentions, namely, (1) that the appellant has acquired the status of a quasi permanent servant and, therefore, the termination of his services under [SECTION] of the [ACT] is without jurisdiction and (2) that the termination is really by way of punishment notwithstanding the innocuous language employed in the impugned order. The termination of services of the appellant, therefore, without complying with the requirements of [SECTION] of the [ACT] and the [ACT] is illegal and void.
2. The Writ Petition came up for hearing before a learned single Judge who dismissed the same, holding that there is no evidence that the appellant has acquired the quasi permanent status and that [SECTION] is not applicable in his case as he is a civilian holding the post in defence service, aggrieved by which, the appellant has filed a Writ Appeal.
3. The Writ Appeal was allowed on the ground that the delegation made by the appointing authority to the 2nd respondent, namely, Group Captain, D.R.D.L. is beyond the powers of the appointing authority under proviso to [SECTION] of the [ACT]. However, on the application made by the respondents herein, the learned Judges granted leave to appeal to the Supreme Court. The Supreme Court allowed the Civil Appeal No. 3[SECTION] of 1981 filed by the respondents holding that the delegation of power made in favour of the 2nd respondent by the appointing authority is valid and remanded the matter for consideration of the other issues raised by the appellant. The Supreme Court while disposing of the appeal on 10-4-1990, along with a batch of cases, wherein a similar question arose for consideration, held as follows: ([PRECEDENT].
"The above discussion narrows down the controversy before us to a very short issue: Can it be said, where the appointing authority under [SECTION] has delegated his powers of appointment under the proviso, that both the authorities should be treated as the "authority empowered to appoint" persons to the post, grade or service or does this expression get restricted only to the latter, i.e., the delegatee authority? If both fall under the above description within the meaning of sub-clause (i), respondent's plea that the definition in [SECTION] will mark out only the Scientific Advisor/General Manager would be correct. On the other hand, if the second of the above interpretations is correct, the appellant's stand will have to be upheld.
xxx xxx xxx We do not think it is necessary to go into this question. In view of the decision in [PRECEDENT] (supra), we shall accept the general proposition that the delegation of the power of appointment under the proviso to [SECTION] does not necessarily deprive the disciplinary authority specified in the main part of the rule from exercising the delegated power of appointment in any case or class of cases.
xxx xxx xxx"
4. Hence the Writ Appeal is posted before us after the remand.
5. Sri [ENTITY], learned counsel for the appellant has raised the following contentions:
(1) The appellant was appointed as Tool Maker Grade 'A' by the order of the Director, D.R.D.L. while the services of the appellant were terminated by Group Captain [ENTITY], Deputy Director, who was subordinate to the Director, D.R.D.L. The 2nd respondent, therefore, has no power or jurisdiction to pass the impugned order terminating the services of the appellant. In support of his contention, he relied upon the decisions of the Supreme Court in [PRECEDENT]., and [PRECEDENT].
(2) The services of the appellant were terminated forthwith by the impugned order. But the salary and allowances for one month in lieu of notice was not paid into the hands of the appellant at the time of serving the notice of termination of services on the appellant. In support of his contention, the learned counsel relied upon the decision of the Supreme Court in [PRECEDENT].
(3) The impugned order of termination although innocuous, the attendant circumstances would show that it was by way of punishment and the Court can go behind the order and lift the veil. In this connection, he relied upon the averments made in paragraphs 7 and 8 of the counter-affidavit and submitted that the statements made by respondents 1 and 2 casts a stigma and since no enquiry is held, the impugned order is liable to be quashed. He relied upon a number of decisions in support of his contention, the latest being the decision of the Supreme Court in [PRECEDENT], .
(4) The impugned order is violative of [SECTION] and [SECTION] of the [ACT] as persons appointed subsequent to the date of appointment of the appellant as Tool Maker Grade-I are being continued in service while the services of the appellant who is the seniormost Tool Maker were terminated.
6. Sri [ENTITY], learned Standing Counsel appearing for the Central Government submitted that the appellant being an employee holding a temporary post has no right to hold the post. Therefore, it is open to the authorities to terminate his services even after holding a preliminary enquiry to ascertain the suitability of the employee to continue him in service. He further submitted that two options are open to the authorities, viz., either to terminate the services of the employee in the circumstances mentioned in paragraphs 7 and 8 of the counter-affidavit or to hold an enquiry and punish him as per rules. In the instant case, the authorities thought that, having regard to the facts and circumstances, it is desirable to terminate the services of the appellant instead of exercising the second option, namely, holding an enquiry. In support of his contention he relied upon the judgment of the Supreme Court in State of Uttar Pradesh v. [ENTITY], .
7. Before going into the merits of the case, we may state that it is well settled by the decisions of the Supreme Court that a civilian employee in defence services who is paid salary out of the estimates of the Ministry of Defence does not enjoy the protection of [SECTION] of the [ACT]. It was also held by the Supreme Court that [ACT] provide procedure for imposing the three major penalties that are set out under [SECTION]. When [SECTION] itself stands excluded and the protection thereunder is withdrawn, there is little that one could do under the [ACT] in favour of the appellant. The said rules cannot independently apply in part since the rule making power under [SECTION] of the [ACT] is subject to [SECTION], as held by the Supreme Court in [PRECEDENT]. In view of the legal position set out above, the appellant is not entitled to the protection of [SECTION] of the [ACT] or [ACT].
8. The undisputed facts are that the appellant is holding the post of civilian in the defence service and he is appointed on a temporary basis. The relevant portion of the order of appointment of the appellant reads as follows:
"xxx xxx Subject: Offer of appointment for the post of Tool Maker Grade 'A'.
You are hereby offered a temporary post of Tool Maker Grade 'A' in the Defence Research and Development Laboratory of the Ministry of Defence on pay of Rs. 150/- per month in the scale of Rs. 150-5-175-6-205- EB-7-240.
xxx xxx xxx
2. The terms and conditions of the appointment are as follows:
(i) The post is temporary.
(ii) You will be on probation for a period of six months.
The appointment may be terminated at any time by a month's notice given by either side, viz., you or the appointing authority without assigning any reasons.
The appointing authority, however, reserves the right i.e., of terminating your services forthwith before the expiration of the stipulated period of notice by making allowances for the period of notice or the pay and allowances for the period of notice or the unexpried portion thereof.
xxx xxx xxx Sd. Senior Administrative Officer Gr.I for Director."
9. The impugned order of termination dated 2-1-1978 issued by the 2nd respondent reads as follows:
"xxx xxx Order
In pursuance of the proviso to [SECTION] of the [ACT], I hereby terminate forthwith the service of Sri [ENTITY], Ty. Tool Maker 'A' T.No. 438 and direct that he shall be entitled to claim pay plus allowance for the period of notice at the same rates at which he was drawing them immediately before the termination of his service, or as the case may be, for the period by which such notice falls /short of the month.
([ENTITY]) Group Captain."
Director.
10. From the above, it is clear that the services of the appellant were terminated in exercise of the power conferred under [SECTION] of the [ACT], which reads to the following effect:
"5(1)(a) The services of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;
(b) the period of such notice shall be one month;
xxx xxx xxx"
11. The Supreme Court considered the scope of [SECTION] in [PRECEDENT], (1 supra). The facts in brief are that the appellant in the said case was appointed to the temporary post of Caretaker in the Geological Survey of India by an order dated 4-4-63. The said order was signed by the Director of Ad ministration, G.S.I., but the a ppointment was made by the Director General, G.S.I. The services of the appellant were terminated by the Director of Administration. It was contended before the Supreme Court that the Director of Administration is not the appointing authority and therefore he is not competent to terminate the services of the appellant. Reliance was placed on the definition "Appointing Authority" under the [ACT], which reads as follows:
Appointing Authority" means, in relation to a specified post, the authority declared as such under the [ACT]".
12. Under [SECTION] of the [ACT] 'appointing authority' means the authority who has the power to appoint as also the authorities who did appoint a Government servant and provides that whichever authority is the highest authority among them would be the appointing authority in relation to the Government servant concerned. It was held that since the order of termination was made by the Director of Administration whereas the appointment was actually made by the Director General, G.S.I., the Director of Administration is not competent to issue the order of termination.
The learned Judges of the Supreme Court also observed as under:
" In the absence of any definition of 'appointing authority' in the [ACT] in relation to a temporary Government servant not holding a specified post, as the appellant was, we think the term 'Appointing Authority' must be understood in is plain and natural meaning, namely, the authority which appointed him. From this point of view also the impugned notice of termination was given by an authority which was not the appointing authority and as such did not satisfy the requirement of [SECTION] of the [ACT]."
13. The above judgment was followed by the High Court of Himachal Pradesh in [PRECEDENT], (2 supra). The learned Chief Justice of the Himachal Pradesh High Court observed as under:
" That authority only which appointed the petitioner is empowered to terminate his services. The appointing authority was the Judicial Commissioner and as the position stands to-day the High Court alone can terminate the petitioner's services."
14. It is not disputed that the appellant in the present case is not holding a specified post and the definition of "appointing authority " under [ACT] is only in relation to a specified post and there is no definition of "appointing authority" in relation to the other posts, namely, posts other than the specified posts. Therefore, in view of the judgment of the Supreme Court, the expression "Appointing Authority" in [SECTION] of the [ACT], must be taken to refer to the authority which actually appointed the Government servant. In the instant case, the appellant was appointed by the Director of the D.R.D.L. Therefore, under [SECTION] of the [ACT], it is only the Director of the D.R.D.L. who is competent to terminate the services of the appellant and since the order of termination is passed by the Deputy Director, it is without jurisdiction and the same cannot be sustained.
15. The reliance placed by Sri [ENTITY], learned Standing Counsel for the respondents on the order dated 31-12-1977, delegating the powers regarding the appointment and discipline under [ACT] in respect of [SECTION] posts to the Deputy Director, D.R.D.L. is of no assitance to him, as the delegation is under the [ACT], which are, admittedly, not applicable to the case of the appellant. The learned counsel for the respondents did not bring to our notice that there was any delegation of power under the [ACT] delegating the power of appointing authority to the Deputy Director. Therefore, the delegation of power relied upon by the learned counsel for the respondents is of no assistance to the respondents.
[SECTION]. The next contention of Sri [ENTITY] is that the salary and allowances for one month in lieu of one month's notice was not paid into the hands of the appellant. In this context, we may refer to the additional counter-affidavit filed by the respondents wherein they have categorically mentioned that "that the services of the petitioner have been terminated with effect from 3-1-1978 and on the same day that is on 3-1-1978 one month's pay plus allowances, namely Rs. 687/- were sent by money order. Therefore, the payment was made forthwith." In view of the statement in the counter-affidavit, we reject this contention of the learned counsel for the appellant.
17. The other contention of Sri [ENTITY] is that though the order is innocuous in view of the statements in paragraphs 7 and 8 of the counter- affidavit, the impugned order is passed by way of punishment and there was no enquiry. Further, the juniors of the appellant were retained while the services of the appellant were terminated.
18. Paragraphs 7 and 8 of the counter-affidavit refer to certain events which took place on 30th and 31st December, 1977. The contents of para 7 in brief are that the 2nd respondent received a telephone message that there was some problem in one of the divisions of the Laboratory and there was some commotion in the laboratory. He proceeded to the laboratory and found a large number of members of the staff gathered there. The members complained to him that they were denied telephonic facilities and made allegations against certain officers and they demanded that if any member of the staff received a telephonic communication, he should be immediately intimated. They insisted that the 2nd respondent should take immediate action. Inspite of assurance given by the 2nd respondent that he would look into the matter, they refused to go back to their place of work. The 2nd respondent went back to his office and thereafter a few members of the DRDL staff came and sat down in the foryer of the main building of DRDL and on the stairs leading to 2nd respondent's office. On 31st December the 2nd respondent requested for city police assistance apprehending likelihood of violence. The members of the staff repeated the same thing even on 31-12-1977. The police persuaded them to leave and go back to their place of work. However, they refused to leave the place unless their demands were conceded. The Revenue Divisional Officer after assessment of the situation imposed prohibitory orders under [SECTION] [ACT] within the premises. Reports were received from some of the divisions of the DRDL and the 2nd respondent considered the cases of individuals figured in the said reports. The appellant is one of the persons who is involved in the said reports. The 2nd respondent taking into consideration all the relevant material such as annual confidential reports and after making oral enquiries regarding the over all work and conduct of the appellant, issued the impugned orders on the ground that the petitioner is unsuitable for retention in Government service in DRDL.
19. It is true that the counter-affidavit refers to some allegations against the appellant. The respondents justify their action that the events referred to above were taken into account in order to ascertain the suitability of the appellant to continue in service. The appellant being a person holding a temporary post has no right to hold the post. Therefore, two options are open to the authorities, namely, (1) to hold an enquiry and take action on the basis of the allegations made against the employee and (2) after holding a preliminary enquiry in order to ascertain whether it is desirable to continue the employee in service, terminate the service in exercise of the power conferred in [SECTION] of the [ACT].
20. In this context, we may refer to the judgment of the Supreme Court in State of Uttar Pradesh v. [ENTITY] (5 supra), relied upon by Sri [ENTITY], learned counsel for the respondents. We may briefly refer to the facts of the said case. The respondent [ENTITY] was appointed on ad hoc basis as an Assistant Auditor on 18-2-77 under the Local Funds Audit Examinator of the State of Uttar Pradesh for a fixed period ending on August 31, 1977. His services were extended from time to time and the extended period of service was to expire on 28-2-1981. He was awarded an adverse entry in his character roll for the year 1977-78. He along with one [ENTITY] were deputed to audit the accounts of Raja Raghubar Dayal Inter College, Sitapur for the year 1979-80. While carrying on the audit they alleged to have acted in excess of their authority in auditing the "Boys Fund Accounts" of the said college for the year 1979-80 on their own accord without any authority for the same. They issued audit note under their own signatures and also irregularly demanded a high amount of Rs. 13,250-70 as audit fee and collected an amount of Rs. 2,000/- as audit fee for which they issued receipts under their own signatures. On receipt of complaint a preliminary enquiry was held and it was found that the respondent acted without the authority. They were removed by order dated 23-9-1980. The order of termination was challenged. The matter went upto the Supreme Court. While upholding the order of termination, the Supreme Court held that a temporary Government servant has no right to hold the post. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant. If the services of a temporary Government servant are terminated in accordance with the terms and conditions of service, it will not visit him with any evil consequences. If on the perusal of the character roll entries or on the basis of preliminary enquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination. Before terminating the services of a temporary servant or reverting the person officiating in a higher post to his substantive post, the Government may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating Government servant. Such an inquiry does not change the nature of the order of the termination or reversion. It was also held by the Supreme Court that if out of several temporary employees working in a department a senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service. Such a procedure does not violate principle of equality, enshrined under [SECTION] and [SECTION]. While coming to the above conclusions, the learned Judges of the Supreme Court have placed reliance on the decisions in [PRECEDENT]., [PRECEDENT], ., [PRECEDENT], . [PRECEDENT], ., [PRECEDENT], [CASE NUMBER] decided on Oct.23, 1963 (SC). [PRECEDENT]., and distinguished the decisions of the Supreme Court in [ENTITY] v. State of U.P. ., and [PRECEDENT], . The decision of the Supreme Court in [ENTITY]'s case (5 supra) answers the contention raised by Sri [ENTITY], learned counsel for the appellant.
21. However, Sri [ENTITY], learned counsel placed reliance on the judgment of the Supreme Court in [ENTITY] v. H.P.Tourism Development Corporation Ltd., (4 supra). The relevant facts of the said case are that the petitioner therein was appointed as an Accountant in the Himachal Pradesh Tourism Development Corporation Ltd. He was on probation. A charge-sheet was served on him framing certain charges in view of certain activities carried on by him. The gravamen of the charge is that while working in the transport wing of the Corporation, the petitioner facilitated and abetted the embezzlement of Rs. 100/- by not ensuring that the amount found was in excess and that he failed to serve the Corporation honestly and faithfully. There was also another charge made against him. The petitioner's services were terminated w.e.f. 8-1-1982 on the ground that they are no longer required and one month's pay in lieu of notice was given to him. The order of termination was challenged. Following the judgments of the Supreme Court in [PRECEDENT], ., [ENTITY] v. State of U.P. (13 supra), [PRECEDENT], ., the Supreme Court held that the termination order was merely a cloak for order of punishment. It was also held that since the juniors of the petitioner were retained the order of termination is liable to be quashed. This decision of the Supreme Court is quite contrary to the judgment of the Supreme Court reported in State of U.P. v. [ENTITY], (5 supra). However, the judgment of the Supreme Court in [ENTITY]'s case (5 supra) is by a bench consisting of three learned Judges of the Supreme Court whereas the judgment in [ENTITY]'s case (4 supra) it is by two learned Judges of the Supreme Court. Therefore, judicial discipline requires that the opinions expressed by larger benches of the Supreme Court in preference to those expressed by smaller benches of the Supreme Court should be followed, as held by the Supreme Court in [PRECEDENT], . In view of this, the judgment of the Supreme Court in [ENTITY]'s case (5 supra) is to be followed and accordingly the order of termination is to be held as valid on this ground.
22. The learned counsel for the appellant Sri [ENTITY] has also relied upon various decisions of the Supreme Court in support of his contention that the order of termination is by way of punishment and therefore in the absence of an enquiry the termination order is liable to be set aside. He relied upon the decision in [PRECEDENT], . This judgment of the Supreme Court is by a Bench consisting of two Judges. Similarly, the judgment in [PRECEDENT], ., is also by a Bench consisting of two Judges. The judgment in [ENTITY] v. State of Punjab, ., has not laid down any principle different from what has been laid down in the latest decision of the Supreme Court in [ENTITY]'s case (5 supra). We may refer to the observations made by the learned Judges in [ENTITY]'s case (20 supra):
" Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temporament or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this "
23. Thus, it is open to the authorities to terminate the services of a probationer on grounds of unsuitability without inflicting any stigma on his service. The other judgment relied on by the learned counsel for the appellant is [ENTITY] v. State of U.P. (13 supra). We have already pointed out that the judgment in [ENTITY]'s case (13 supra) was considered by the Supreme Court in [ENTITY]'s case (5 supra) and distinguished the same. In view of the judgment of the Supreme Court in [ENTITY]'s case (5 supra), we are of the view that the decisions relied upon by the leamed counsel for the appellant have no relevance.
24. However, since we have held that the order of termination is passed without jurisdiction, the same is liable to be quashed and the appellant is entitled for reinstatement into service.
25. During the course of arguments, it was brought to our notice that from 1983 to November, 1990, the appellant was paid full salary by virtue of the order of the Supreme Court and from December, 1990 he was being paid subsistence allowance. Since the appellant is to be reinstated into service, he is entitled to be paid full salary with effect from December, 1990 till the date of reinstatement.
26. The impugned order of termination dated 2-1-1978 is quashed and the order of the learned single Judge dated 3-1-1979 is set aside and the Writ Petition is allowed,
27. Writ Appeal is accordingly allowed. There shall be no order as to costs.