IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 641 of 2008 (S/S) (Old No. 24667 of 1993) Sobat Singh S/o Sri Jeet Singh Negi Resident of Village Patara, Patti Bhandarshu, Tehsil Dunda, District Uttarkashi. ...…………. Petitioner Versus 1. District Judge, Uttarkashi. 2. Registrar, High Court of Judicature at Allahabad. 3. Registrar General Hon’ble High Court of Uttarakhand, Nainital. ...…………. Respondents Mr. Manoj Tiwari, Sr. Advocate assisted by Mr. Sandeep Adhikari, Advocate for the petitioner. Mr. Pankaj Miglani, Advocate for respondents No. 1 and 3. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of certiorari, quashing the order dated 25.05.1993, passed by respondent No. 1, whereby the services of the petitioner are terminated. 2) Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit, on record. 2 3) Brief facts of the case, as narrated in the writ petition, are that the petitioner was appointed as Process Server in the Civil Court of District Uttarkashi, vide order dated 25.07.1983 (copy Annexure –1 to he writ petition) issued by the District Judge, Uttarkashi. It is stated that the petitioner had done his work to the utmost satisfaction of his superior officers. It is further stated that the petitioner went on medical leave for the period 16.12.1989 to 28.02.1990, and remained hospitalized for treatment of his mental illness. He resumed his duties on 01.03.1990. In Para 8 of the writ petition it is stated by the writ petitioner that in the carrier of his 10 year’s service, there had been no complaint relating to his work. He performed his duties with honesty and sincerity. However, the District Judge, Uttarkashi (respondent No. 1) vide his order dated 25.05.1993, terminated the services of the petitioner with immediate effect. Hence, this writ petition was filed before the Allahabad High Court on the ground that the petitioner was not given any opportunity of being heard, and the impugned order suffers from arbitrariness, and also violative of Article 16 of the Constitution of India. 4) This writ petition, which was filed before the Allahabad High Court on 9th of July 1993, is received by this Court under Section 35 of the U.P. Re- organization Act, 2000 (Central Act No 29 of 2000), in the year 2008, for its disposal. 3 5) In the counter affidavit filed on behalf of respondent District Judge, Uttarkashi, before Allahabad High Court, it is admitted that the petitioner was appointed as Process Server, in the year 1983, and his services were terminated vide impugned order dated 25.05.1993. It is also not disputed that the petitioner remained on medical leave from 16.12.1989 to 29.03.1990, and certificate was issued by Senior Medical Superintendent of Mental Hospital, Bareilly, regarding his treatment. Rest of the contents of the writ petition are not admitted as pleaded by the petitioner. In reply to Para 8 of the writ petition, it has been stated that petitioner was served with notice dated 11.07.1990, by the District Judge, Uttarkashi, and warning was issued to him for his conduct. A fine of Rs. 50/- was also imposed on him. The petitioner submitted apology in response to the notice issued by the District Judge, on which enquiry against him was dropped. It is further stated in the counter affidavit that a complaint was received against the petitioner from a senior member of the staff on which enquiry was directed on 19.12.1989, for act of gross indiscipline and misconduct. He was placed under suspension, but he sought apology and said enquiry was also dropped on 11.05.1990. It is further stated in the counter affidavit that when the petitioner was posted under Munsif, Purola in Uttarkashi, he was given 21 summons for getting served on the parties, but the summons were not served 4 by him in accordance in law, and the concerned judicial officer sought explanation from the petitioner, who refused to reply the same, on which warnings were issued to the petitioner. Lastly, it is stated that the petitioner’s services were terminated under U.P. Temporary Government Servants (Termination of Service) Rules, 1975. 6) In the rejoinder affidavit filed on behalf of the petitioner the averments made in the writ petition are reiterated. 7) Before further discussion, this Court thinks it just and proper to quote the relevant provisions of law, applicable to the case. Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975, reads as under: “3. Termination of Service. –(1) Notwithstanding anything to the contrary in any existing rules or orders on the subject, the services of a Government Servant in temporary service shall be liable to terminate at any time by notice in writing given either by the Government Servant to the appointing authority or by the appointing authority to the Government Servant. (2) The period of notice shall be one month. Provided that the services of any such Government servant may be terminated forthwith, and on such termination the Government Servant 5 shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for period of the notice or as the case may be period by for the which such notice falls short of one month as the same rates at which he was drawing them immediately before the termination of his services. Provided further that it shall be open to the appointing authority to relieve a Government servant without any notice or accept notice for a shorter period without requiring the Government Servant to pay any penalty in lieu of notice. Provided also that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated shall be effective only if it is accepted by the appointing authority, provided in the case of a contemplated disciplinary proceeding the Government Servant is informed of the non-acceptance of his notice before the expiry of that notice.” 8) The question before this Court is whether the impugned order of termination of services of the petitioner suffers from illegality or not and, whether, opportunity of hearing was required to be given or not? This Court, to examine this, first of all, has to see the contents of the letter of appointment by which the petitioner was appointed, and also the letter of termination by which services of the petitioner are terminated. The letter of appointment dated 6 25.07.1983 (copy of which is Annexure –1 to the writ petition), reads as under:- “dk;kZy; tuin U;k;k/kh’k] mRrjdk’kh A Ik=kad 447 fnukad % tqykbZ 25] 1983 Jh lkscrflag iq= Jh thr flag IkVkjk iks0 vks0 IkVkjk iVVh Hk.MkjL;w ftyk mRRkjdk’kh vkidks lwfpr fd;k tkrk gS fd vkidh fu;qfDr vLFkkbZ #Ik ls crkSj rkfey dqfuUnk eqc0 305 & 390 osrueku es dh tkrh gSA vr% vki fnukad 1&8&83 ls 10&8&83 ds chp ;k Ik= izkfIr ds 10 fnu ds vUnj viuh ;ksxnku fjiksVZ ¼mifLFkfr½ bl dk;kZy; esa nsA dksbZ ;k=k O;; ns; ugh gksxk rFkk LokLF; izek.k Ik= Hkh is’k djsaA g0 25-07-83 ftyk ,ao l= U;k;k/kh’k] mRrjdk’khA” The aforesaid letter shows that the appointment of the petitioner was temporary in nature. The impugned termination order by which services of the petitioner are terminated, reads as under: “dk;kZy; Kki izdhgh vk0 la[;k 30 fnukad 25 ebZ 1993A fu;qfDr vuqHkkx&3 vf/klwpuk la[;k & 20-10-74 & fu;qfDr &3] fnukad 11 twu] 1975 }kjk foKkfir mRrj izns’k vLFkkbZ ljdkjh lsod ¼lsok&lekfIr½ fu;ekoyh] 1975 ds vUrZxr v/kksgLrk{kjdRkkZ Jh lkscr flag usxh iq= Jh thr flag usxh vLFkkbZ deZpkjh ¼inuke½ vknsf’kdk okgd ftyk tt 7 mRRkjdk’kh gky & eqaflQ U;k;ky; iqjksyk dks uksfVl nsrs gS fd mudh lsokvksa dh vc vkxs vkSj vko’;drk ugha jg xbZ gS vkSj mudh lsok;sa bl uksfVl dh izkfIr ds fnukad ls lekIr le>h tk;saxh vkSj ;g funZs’k nsrs gS fd uksfVl dh ,d ekl dh izkfo/kkfud vof/k ds fy, mlh nj ij viuk osru rFkk HkRrs] ;fn dksbZ gksa] dh /kujkf’k ds cjkcj /ku ds nkosnkj gksus ds gdnkj gksxsa] ftl nj ij og mudh viuh lsok&lEkfIr ds Bhd iwoZ ik jgsa FksA Tkuin U;k;k/kh’k mRRkjdk’khA” The letter of termination, quoted above, shows that the order of termination of services of petitioner, a temporary employee, is without any stigma. As such, it cannot be said that it was necessary for the respondent No. 1 to afford any opportunity of hearing to the petitioner before the impugned order was passed. 9) Learned counsel for the petitioner drew attention of this Court to the case of Jaswantsingh Pratapsingh Jadeja Vs. Rajkot Municipal Corporation and another (2007) 10 Supreme Court Cases 71, in which the Apex court found that the petitioner’s simpliciter discharge from service was stigmatic in nature, and cannot be held good in law. It is also contended on behalf of the petitioner that after the probation period is completed by the petitioner he stood confirmed in the service and his services could not have been terminated without framing any charge against him or without affording him opportunity of being heard. In this connection, 8 reference is also made to Rule 14 of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955, which provides that every person on appointment to promotion to a post in the establishment in a substantive vacancy, shall be placed on probation for a period of one year at the end of which he shall be confirmed in the post if the appointing authority considers that his work has been satisfactory; but if he is not considered fit for consideration in the post he will be reverted to his substantive post, if he has one, and if he has none, his services will be dispensed with or without entitling him to any compensation, provided that appointing authority may extend the period of probation for a specified period not exceeding one year in individual cases. 10) The rule to which learned counsel for the petitioner relied applies to the appointment made against the substantive vacancy. In the present case, the appointment of the petitioner is temporary in nature. The case of Jaswantsingh (supra), which is relied on behalf of the petitioner has no application to this case. In said case the petitioner was a Major in the Army, who joined the Municipal Corporation as a Vigilance Officer, and his services were governed under rules framed under Bombay Provincial Municipal Corporations Act, 1949. In said case the termination was not simpliciter, but it contained some allegations against the employee but there was no finding of guilt 9 in the matter. As such in the opinion of this Court, the case relied on behalf of the petitioner is not applicable to this case. 11) Apart from this, the remedy under Article 226 of the Constitution of India is discretionary in nature. The conduct of the petitioner relating to which he says in his affidavit filed with the writ petition that there was no complaint regarding services rendered by him, it has come in the counter affidavit that he was given several warnings. A fine was also imposed on him. He had committed acts of indiscipline and misbehaviour on several occasions. Once he was also placed under suspension. As such, the petitioner has concealed the fact from the court relating to his misconduct by pleading that he had an unblemished service record. 12) For the reasons as discussed above, this Court is not inclined to interfere with the impugned order of termination, passed by the respondent No.1. The writ petition is dismissed. No order as to costs. (Prafulla C. Pant, J.) Dt. December 07, 2009. H. Negi 10