IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP (T) No. 5692 of 2008 Date of Decision: 21st May, 2010 Akshya Kumar Petitioner Versus H.R.T.C. and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner: Mr.Onkar Jairath, Advocate. For the respondents: Mr. Adarsh Sharma, Advocate. Sanjay Karol, J. (Oral) 1. Petitioner was appointed as a Driver purely on contract basis vide order dated 3.7.1998. There is no dispute that an agreement with respect to his contractual appointment was subsequently entered into which, inter alia, stipulated the following conditions:- “4. The service of the first part shall stand terminated as follows:- (i) Automatically at the end of contractual period without notice of the date mentioned in the contract whichever is earlier. (ii) By the HRTC without previous notice if the HRTC is satisfied on medical evidence in the first part is unfit and is likely to continue to be unfit for a considerable period by reason of ill health for the discharge of his Whether the reporters of Local Papers are allowed to see the Judgment? 2 duties. The decision of the HRTC that the party of the first part is likely to continue to be unfit shall be conclusively binding on the first part. (iii) By the HRTC or its officers having proper authority without any previous notice if the first party is found to be prima facie guilty of quality of any insubordination, in teperance/ moral turpitude or other misconduct of if any breach or non performance of any of the provisions of these presents or is otherwise found unsuitable for the efficient of his duties. (iv) By one month notice in writing given at any time during service under this agreement by the authorized officer HRTC without assigning any reason whatsoever. (v) Provided always that the HRTC may pay the contract one month’s pay in lieu of such notice and thereupon this agreement shall stand terminated forthwith.” 2. Vide order dated 26.11.1998 his appointment was cancelled in the following terms:- “OFFICE ORDER The Contract of Sh.Akshay Kumar, Driver, who was appointed to the post of Driver on Contract basis vide this office order No.HRTC-NHN-PF/97-98-4345-50 dated 4.8.98 is hereby cancelled with immediate effect, further a draft No.653710/16 dated 23.11.98 for Rs.4,663/- in lieu of one months Notice is enclosed herewith. Encls: As above alongwith draft No.653710/16 Regional Manager HRTC, Nahan Unit To Sh.Akshay Kumar, Driver (On Contract Basis) HRTC, Nahan.” 3 3. Aggrieved of the same, petitioner has filed the present petition. Shri Onkar Jairath, learned counsel for the petitioner, has invited my attention to para 3 of the reply to contend that petitioner’s termination is based on his performance and is thus stigmatic and in the absence of any proper inquiry the action taken by the respondent-Corporation is illegal. According to him, his termination without inquiry is illegal. In support of his contention, he has relied upon D.K.Yadav vs. M/s J.M.A. Industries Ltd., 1993 (3) S.C.C. 259 (SC) and Darshan Singh vs. State of Punjab and others, 1998 (4) SLR 292 (P&H). 4. The respondent in its return has simply stated that the petitioner’s services were not found satisfactory as he was responsible for the accident in which two passengers had died and 20 others were injured. Now in the present case the action was not initiated on the basis of petitioner’s misconduct but considered from the point of his suitability for continuing his services in the Corporation. The order of termination is simplicitor in nature. It is also not stigmatic. 5. In Oil and Natural Gas Commission vs. Dr.MD. S.Iskender Ali, (1980) 3 SCC 428, the Apex Court was dealing with a case of a probationer against whom disciplinary action was initiated but was subsequently dropped. Based on the assessment role of the employee, his services were terminated without holding any inquiry. In these circumstances, the Court held that:- “Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such power flowed 4 from the contract of service it could not be termed as penalty or Punishment.” 6. In State of Uttar Pradesh and another vs. Kaushal Kishore Shukla, (1991) 1 SCC 691, the Apex Court while considering its earlier decision in Nepal Singh vs. State of U.P., 1985) 1 SCC 56, has held as under:- “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 service of a temporary government servant is terminated in accordance with the terms and conditions of the 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 inquiry 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. If, however, it is decided to take punitive action the competent authority may hold a formal inquiry by framing charges and giving opportunity to the government servant in accordance with 5 Article 311 (2), which is applicable to temporary Government servants also. It is, therefore, erroneous to hold that where a preliminary enquiry into allegations against a temporary government servant is held or where a disciplinary enquiry is held but dropped or abandoned before the issue of order of termination, such order is necessarily punitive in nature. Nepal Singh case is no authority for the proposition that the services of an ad-hoc and temporary employee cannot be terminated even if the competent authority on an assessment of the work and the conduct of the employee finds him unsuitable for the service. The court's observations in Nepal Singh case that since the enquiry against Nepal Singh on certain charges was dropped and his services were terminated under the rules applicable to the temporary government servant with a view to circumvent the protection of Article 311(2) of the Constitution and as such the order of termination was illegal, must be confined to the facts of that case. The decision of Nepal Singh case in this regard is per incuriam.” 7. The Constitution bench of the Apex Court in Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and others, 1991 Supp. (1) SCC 600 has held as under: “It is therefore, directed that whenever question of exercise of the power of termination of permanent employees by reasonable notice without holding any enquiry arises, the extent of the power should be read in the manner indicated above and it is reiterated that such powers can be exercised for the purposes of the Act which will be determinable by the preamble and by relevant enacting provisions and the contingencies for the exercise of the power must be specified and powers should be exercised by authority competent and independent enough and should be articulated by reasons stated 6 even if not communicated. These are the limitations inherent and latent in the framework of our Constitution and the power with these limitations is valid.” 8. In Viveka Nand Sethi vs. Chairman, J&K Bank Ltd., and others, (2005) 5 SCC 337, the court has held as under:- “The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. The principle of natural justice, it is trite, is not unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply.” 9. In Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and another, (1999) 2 SCC 21, the Court has held as under:- “The termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge-memo issued, reply obtained, and 7 an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry Officer has not recorded evidence nor given any findings on the charges. The departmental inquiry was stopped because the employer was not sure of establishing the guilt of the employee. The employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.” 10. In Rajasthan State Road Transport Corpn. and others vs. Zakir Hussain, (2005) 7 SCC 447, the Apex Court has held that if the services were terminated by an order of termination simplicitor and the order was innocuous and without any stigma or evil consequences visiting him, there was no requirement under law to hold an inquiry before terminating the services. The Apex Court further held as under:- “It is settled law that the employees of the State Road Transport Corporation are not civil servants and, therefore, they are not entitled to protection under Article 311 of the Constitution. Their terms of appointment are governed by the letter of appointment and, therefore, the management was well within its right to terminate the services of the respondent probationer during the period of probation if his services were not found to be satisfactory during the said period. In such a case, the appellant Corporation was not obliged to hold an 8 enquiry before terminating the services. The respondent being a probationer had no substantive right to hold the post and was not entitled to a decree for reinstatement with full back wages.” 11. The decision in Darshan Singh (supra) is not applicable to the facts of the instant case as the termination is not due to mis-conduct. The decision in D.K.Yadav(supra) is also not applicable as the petitioner therein was a permanent employee. Moreover, in the case in hand, the employer has given one month’s salary in lieu of one month’s notice. 12. Thus keeping in view the ratio of law laid down by the Apex Court, it cannot be said that any enquiry was required to be held before issuing Office Order dated 26.11.1998. In lieu of one month’s notice he was given one month’s salary. No legally enforceable right of the petitioner stands violated. The petition is accordingly dismissed. 21st May, 2010 (Sanjay Karol) (C) Judge.