IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA C.W.P.-T No. 2903 of 2008 Date of Decision :23.03.2010 __________________________________________________________ Sh. Vaheed Mohammad. ….Petitioner. Versus The State of H.P. and another. ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Petitioner: Mr. V.D. Khidta, Advocate. For the Respondents: Ms. Ruma Kaushik, Additional Advocate General. __________________________________________________________ Dev Darshan Sud, J. (Oral) The petitioner is aggrieved by the order passed by the respondents terminating his service as Trained Graduate Teacher. The order has been passed by the respondents exercising powers under Rule 5 (1) of the Central Civil Services (Temporary Service) Rules, 1965. The petitioner has challenges this order alleging violation of the principles of Natural Justice. Learned counsel appearing for the petitioner submits that no show cause notice was given to the petitioner herein or a chance of being heard to explain his case. In reply to the Writ Petition, the respondents pleaded that B.Ed Degree furnished by the petitioner was fake. The petitioner alongwith fifteen other teachers were prosecuted for offences under Sections 420, 468, 471 read with Section 120-B of the Indian Penal Code. In these 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. circumstances, coupled with the fact that the petitioner is a temporary employee, there is no requirement to follow the principles of Natural Justice. Learned counsel appearing for the petitioner has drawn the attention of this Court to annexure A-5, which is the judgment of the learned Chief Judicial Magistrate, Sirmaur District Nahan in Criminal Case No. 76/2 of 2002, decided on 7th September, 2005, acquitting the petitioner and fifteen other accused for the offences as noticed supra. Learned counsel submits that this judgment has attained finality as the State has not challenged it in appeal. Learned counsel for the petitioner places reliance on the judgment of Supreme Court in Nar Singh Pal Vs. Union of India and Others (2000) 3 Supreme Court Cases 588, holding that even temporary/casual labour are entitled to protection under Article 311 of the Constitution of India. “8.The documents which have been placed before us pertain to the preliminary inquiry made against the appellant in which the statement of certain persons who had seen the incident was recorded. The services of the appellant were, thereafter, terminated by paying him the retrenchment compensation through a cheque along with the order dated 20.5.1992. The order having been passed on the basis of a preliminary inquiry and not on the basis of a regular departmental enquiry without issuing a charge-sheet or giving an opportunity of hearing to the appellant, cannot be sustained. 9. We may, at this stage, refer to the observations of Krishna Iyer, J. in Gujarat Steel Tubes Ltd. V. Mazdoor Sabha, in which the learned Judge observed as under:- (SCC p. 617, para 53) “53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinized, the order has a punitive flavour in clause or consequence, it is dismissal. It is falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the inquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used.” 10. Applying the above principles, the order in the instant case, cannot be treated to be a simple order of retrenchment. It was an order passed by way of punishment and, therefore, was an order of dismissal which, having been passed without holding a regular departmental enquiry, cannot be sustained”. In these circumstances, I hold the order of termination annexure A-4 is unconstitutional, which is accordingly quashed and set aside. This would not preclude the respondent-State for conducting any inquiry etc. in accordance with law, if so permissible. Writ Petition disposed of. No order as to costs. It is clarified that the inquiry if any shall be completed/concluded not later than a period of six weeks from today. Failing which, the petitioner shall be deemed to have been reinstated in service with continuity in service. No financial benefits shall be admissible to him for the time he has remained out of service. March 23, 2010. (Dev Darshan Sud), (KRS) Judge