IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 1200 of 2002 Decided on: December 18, 2008. Suresh Chand Petitioner Vs. Union of India & Ors. Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1Yes. For the Petitioners : Mr. Sanjay Dutt Vasudeva, Advocate. For the Respondents : Mr. Sandeep Sharma, Assistant No. 1 to 3. Solicitor General of India. Per Surjit Singh, Judge (oral) Petitioner has sought judicial review of order dated 4th December 2001, passed by Central Administrative Tribunal, whereby his Original Application, challenging his termination from service, as also the order dismissing his representation against the order of termination, stands dismissed. 2. Relevant facts are like this. Petitioner was appointed as Frash, a Group ‘D’ post, in the department of Posts India, in the year 1995, on probation and also on temporary basis. Probation period was two years. His probation period was extended by one year and during the extended period of probation, his services were terminated, vide order dated Whether reporters of the local papers may be allowed to see the judgment? 1.12.1998, Annexure P-5. When the order P-5 was passed, petitioner had been absent from duty. He had been abstaining from duty since 10th October 1998. He submitted medical papers, indicating that he had been advised medical rest from 11.11.1998, onwards. 3. Petitioner challenged the order P-5 by filing an O.A., which was registered as O.A. No. 675-HP-99 and was disposed of, vide order dated May 16, 2000. Petitioner was given a chance to make an appeal/representation to the competent authority, challenging the order of termination, Annexure P-5. Liberty was reserved to him to approach the Tribunal again, in case he felt aggrieved by the order passed on his appeal/representation. Thereafter, he filed a representation, which was rejected, vide order dated 28th September, 2000, Annexure P-8. He, therefore, filed another O.A. challenging his termination, as also the order of rejection of his representation. The said O.A. has been dismissed, vide impugned order, Annexure P-8, with the observation that the order of the termination is innocuous, inasmuch as it causes no stigma or aspersion, as the services of the petitioner had been terminated/discharged, during probation period. 4. We have heard the learned counsel for the petitioner and gone through the record. In the order, Annexure P-8, whereby the representation of the petitioner was rejected, it is mentioned that petitioner was not cleared for certification that he had completed his probation period satisfactorily, during the initial period of probation of two years, because the Committees appointed twice during that period reported that his work and conduct was not satisfactory. His probation period was extended. A third committee was appointed during the extended period of probation to scrutinize his work and conduct and to report whether he should be certified to have completed his probation period. The committee not only did not say that he was not fit to be certified to have completed the probation period but also recommended that his work and conduct was not satisfactory and hence, his services be dispensed with. When this exercise for deciding whether to certify that the petitioner had completed his probation period satisfactorily was going on, he wilfully absented him from duty w.e.f. 10.10.1998. He explained that he had been sick and that was the cause of his absence. However, the medical papers submitted by him indicated that he had been sick from 1.11.1998, though, he had been absent for 20 days prior to that date, that is w.e.f. 10.10.1998. 5. Impugned order of the Tribunal is in line with the law laid down by the Hon’ble Supreme Court on the point in State of Uttar Pradesh and another v. Kaushal Kishore Shukla, (1991) 1 Supreme Court Cases 691. After considering a large number of the previous judgments on the point, the Hon’ble Supreme Court held as follows:- “A temporary government servant has no right to hold the post, his services are liable to be terminated by giving him one month’s notice without assigning any reasons either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary government servants. A temporary government servant can, however, be dismissed from service by way of punishment. 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 it decides to take punitive action it may hold a formal inquiry by framing charges and giving opportunity to the government servant in accordance with the provisions of Article 311 of the Constitution. Since, a temporary government servant is also entitled to the protection of Article 311(2) in the same manner as a permanent government servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is now well settled that the form of the order is not conclusive and it is open to the court to determine the true nature of the order. In Parshotam Lal Dhingra v. Union of India a Constitution Bench of this Court held that the mere use of expressions like ‘terminate’ or ‘discharge’ is not conclusive and in spite of the use of such expressions, the court may determine the true nature of the order to ascertain whether the action taken against the government servant is punitive in nature. The court further held that in determining the true nature of the order the court should apply two tests namely: (1) whether the temporary government servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary government servant is by way of punishment. It must be borne in mind that a temporary government servant has no right to hold the post and termination of such a government servant does not visit him with any evil consequences. The evil consequences as held in Parshotam Lal Dhingra case do not include the termination of services of a temporary government servant in accordance with the terms and conditions of service. The view taken by the Constitution Bench in Dhingra case has been reiterated and affirmed by the Constitution Bench decisions of this Court in State of Orissa v. Ram Narayan Dass, R.C. Lacy v. State of Bihar, Champaklal Chimanlal Shah v. Union of India, Jagdish Mitter v. Union of India, A.G. Benjamin v. Union of India, Shamsher Singh vs. State of Punjab. These decisions have been discussed and followed by a three Judge Bench in State of Punjab v. Sukh Raj Bahadur.” 6. In view of the above stated position, we see no merit in the present writ petition. The same is, therefore, dismissed. ( R.B. Misra ), J. December 18, 2008(vs) ( Surjit Singh ), J.