IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 583 of 2003 (S/B) The State and others …………. Petitioners Versus Yogendra Singh and another …………. Respondents Mr. K.P. Upadhyaya, learned counsel for the petitioners. Mr. Jagdish Prasad, learned counsel for the respondents. Hon’ble P.C. Verma, A.C.J. Hon’ble P.C. Pant, J. By means of this writ petition petitioner has challenged the order of the Public Services Tribunal dated 30th April 1993 passed in claim petition No. 528/V/1986. The claim petition was filed by the respondent No. 1 challenging termination of his services. It was filed on the grounds inter alia that the petitioner has been appointed on six months probation and after six months he should be deemed to have been confirmed and therefore cannot be treated as temporary government servant. Therefore, termination is bad in law. In alternative a plea was raised that even if the petitioner was temporary government servant, the order was by way of punishment, as explanations were called for and inquiry was held, therefore, the order of termination was founded on these materials. The Public Services Tribunal rejected the plea of the petitioner that he was a confirmed employee but upheld the contention of the petitioner that the impugned order of termination was by way of punishment. The Tribunal held that the foundation of the order was to punish the respondent No. 1 as was evident from the document on record contained in Annexure No. 2 dated 03.06.1986, Annexure No. 7 date 04.08.1986, Annexure No. 1-A dated 01.04.1986 and Annexure No. 2-A dated 24.04.1986 whereby the Petitioner No. 3 had called for explanation from the respondent No. 1. From the record also the Tribunal found that some enquiry was held against respondent No. 1. Thus, the Tribunal held after relying on the judgment of the Division Bench of the High Court of judicature at Allahabad at its Lucknow Bench that the foundation of the order was to punish the respondent No. 1. Therefore, it was by way of punishment and set aside the order. We have perused the termination order contained in Annexure- 9 of the claim petition. The same reads as under:- mRRkj izns”k ljdkj izf”k{k.k ,oa lsok;kstu funs”kky; Je foHkkx i=kad 301@86@4406 vks/kksfxd izf”k{k.k laLFkku dk”khiqj fnukad 17 flrEcj 86 dk;kZy; Kkiu fu;qfDr vuqHkkx &3 dh vf/klwpuk la[;k 20@1@74 fu;qfDr&3] fnukad 11 twu] 1975 }kjk foKkfir mRRkj izns”k vLFkk;h ljdkjh lsod] ¼lsok & lekfIr½ fu;ekoyh] 1975 ds vUrZxr v/kksgLrk{kjdrkZ] Jh ;ksxsUnz flag vLFkk;h prqFkZ Js.kh deZpkjh ¼ekyh@pkSdhnkj½ vks|ksfxd izf”k{k.k laLFkku] dk”khiqj dks uksfVl nsrs gSa fd mudh lsokvksa dh vc vkxs vkSj vko”;drk ugha jg xbZ gS vkSu mudh lsok;sa bl uksfVl dh ,d ekl dh izkfo/kkfur vof/k ds fy, mlh nj ij viuk osru rFkk HkRrs] ;fn dksbZ gks] dh /kujkf”k ds cjkcj /ku ds nkosnkj gksus ds gdnkj gksxsa] ftl nj ij og mudks viuh lsok&lekfIr ds Bhd iwoZ ik jgs FksA g0@& 17&9&1986 ¼foey fd’kksj½ iz/kkukpk;Z fu;qfDr izkf/kdkjhA lsok esa] Jh ;ksxsUnz flag] PkrqFkZ Js.kh deZpkjh] vkS/kksfxd izf’k{k.k laLFkku dk’khiqj ¼uSuhrky½ From the perusal of the above quoted termination order it is evident that the termination order has been passed on the basis of overall assessment of the work and conduct of respondent No. 1. The termination order very categorically says that the services of respondent No. 1 are no longer required. The memorandum does not indicate that the order has been passed by way of punishment. From the termination order it does not reveals that it is the order which reflects any stigma on the respondent No. 1. It is settled law that even after calling the explanation and holding some enquiry the order of termination by way of termination simpliciter can be passed without inflicting any punishment on the respondent No. 1 under the U.P. Temporary Government servants (Termination of service) Rules, 1975 as held by the Hon’ble Apex Court in State of U.P. V. Kaushal Kishore Shukla reported in (1991) 1 SCC 691, relevant observations made in the judgment are reproduced 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 services of a temporary government servant is terminated in accordance with the terms and conditions of service, it will not visit him with any evil consequence. 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 satisfactory 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 Article 311(2) which is applicable to temporary government servants also……… ……..The respondent being a temporary government servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him. The termination order does no indict the respondent for any misconduct. The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent’s suitability and continuance in service. There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent’s services by an innocuous order in accordance with the terms and conditions of his service. Mere fact that prior to the issue of order of termination, an inquiry against the respondent in regard to the allegations of unauthorized audit of Boys Fund was held, does not change the nature of the order of termination into that of punishment as after the preliminary inquiry the competent authority took no steps to punish the respondent, instead it exercised its power to terminate the respondent’s services in accordance with the contract of service and the Rules. The allegations made against the respondent contained in the counter- affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination.” In view of the above, we hold that the order of termination is order simpliciter. The Tribunal erred in holding the order to be punitive in nature. Therefore, the judgment of the Tribunal cannot be sustained to the extent it hold that the order of termination was by way of punishment. The order of the Tribunal is set aside to this extent. The petition is allowed and order of the Tribunal to the extent it hold that the order of termination is by way of punishment is set aside. The petition is allowed accordingly. No order as to costs. (P.C. Pant, J.) (P.C. Verma, A.C.J.) Dt: 19.07.2004 H.Negi