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G.B. PANT AGRICULTURAL AND TECHNOLOGY UNIVERSITY A v.

KESHO RAM

MAY 5, 1994

fK. RAMASWAMY AND N. VENKATACHALA, JJ.] B

Constitution of India: Article 311(2)-Employee of G.B. Pant Agricultural & Technology University-Tennination of service of employee under tenns of appointment-Held, order not violative or Article 311(2) as University • is not governed by the Article. c

Service Law : G.B. pant Agricultural & Technology University :

Asstt. Block superintendent-Tcnnination of service-Held, it is open to authorities, in terms of order of appointment or relevant rules, to terminate , service of a ten1pora1y employee without conducting an inquiry.

• The respondent was appointed as Asstt. Block Superintendent by the ' petitioner-University in November, 1972 subject to the terms of the contract that his services would be liable to be terminated with one month's

• notice or pay in lieu thereof. He was irregular antl was absent without obtaining leave. His services were terminated in March 1976. He filed a E suit for a declaration that the order of termination was illegal, as it was by way of punishment and be was not given an opportunity to defend himself. The suit was decreed. On appeal, the decree was set aside. On .. second appeal, the High Court held that the order though innocuous, was

> passed without enquiry and, therefore, was violative of Article 311(2) of the Constitution. It set aside the decree of the appellate court and con- F

firmed that of the trial court.

Disposing of the special leave petition tiled by the University, this Court G HELD: l. Since the University is not governed by Article 311(2) of the Constitution, the finding of the High Court that the order of termination is violative of Article 311(2) is clearly illegal. [919-G-H] _,.

2.1. Termination simplicitor is not per se by way of punishment nor does it visit with penal consequences. The effect of the order has to be H 917

A looked into. If it is by way of punishment, then necessarily an inquiry has got to be made in accordance with the rules. Olhenvise, it is open to the authorities, in terms of the order of appointment or the relevant rules, to terminate the service of a temporary employee without conducting an enquiry. (919-E-H)

B 2.2. In the instant case, the respondent was a te1nporary e111ployee.

The action was taken as he was irregular in attending office and absent without obtaining leave. So the termination cannot be said to be for misconduct since the order was passed under the conditions of the appointment, it per se is not illegal. (919-D-G)

23. However, on the facts of the case the decree of the High Court,

as regards reinstatement of the respondent into the service, not interfered with, but he will not be entitled to any back wages. (920-B-C]

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4420 of 1994.

From the Judgment and Order dated 7.8.92 the Allahabad High Court in 6.A. No. of 1982.

P.P. Rao, Raj Kr. Gupta and Rajesh for the Appellant.

R.K. Agnibotri for the Reopondent.

The following Order of the Court was delivered :

Leave granted.

F We have heard the learned counsel on both sides. The respondent was appointed as Asstt. Block Superintendent on November 30, 1972, subject to the terms of the contract. Two of the terms, relevant for the purpose of this case, are that his service was liable to be terminated with one month notice or pay in lieu thereof as per clause 9, and such termina tion would be subject to arbitration as provided under clause 14. The G employee also shall be, subject to clause 12, bound by the law, statutes and regulations issued by the officer or authority of the University, competent to issue in that behalf and was in force. On March 26, 1976 the service of the respondent was terminated. The respondent filed the civil suit for a declaration that his order of termination was illegal, as he was not given H an opportunity to defend himself, and that it was by way of punishment.

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G.B. PANT AGRICULTURAL & TECHNOLOGY UNIVERSITY ' KESHO RAM 919

The trial court in its decree dated 24.4.1981 decreed the suit. On appeal, A the District Judge set aside the order. When second appeal was filed in the High Court, initially it was dismissed on the ground of limitation. In C.A. No. 785/89, this Court set aside the order of the High Court and remanded the case directing it to dispose of the matter on merits. In Second Appeal No.-2908/92, by judgment and decree dated August 7, 1992, the High Court set aside the judgment and decree of the appellate court and confirmed that of the trial court. Thus, this appeal by special leave.

Though Shri Rao, learned senior counsel for the appellant sought to contend that the order of dismissal dated 26.3.1976 impugned in the Civil

Suit No. 16/80 was barred by limitation as on date of suit three years period C of limitation had expired by efflux of time, that point is no longer open to the appellant to canvass it is as the order of this court operates as res judicata. Therefore, the suit was filed within the limitation.

It is next contended that in view of the finding given by the district D court as well as by the High Court that the respondent was a temporary employee appointed by the university, the findings of the High Court that the order though innocuous, it is by way of penalty and that therefore, the order of dismissal without enquiry if violative of Art. 311(2) of the Constitution is illegal. We find force in the contention. It is settled law that the order though is innocuous, it is open to the court to lift the veil and find the cause_ for terminating the temporary employment. If it is by way of punishnient, then necessarily an enquiry has got to be made in accordance with the rules. Otherwise, it is open to the authorities, in terms of the order

of appointment or the relevant rules, to terminate the service of a tern~ porary employee without conducting an enquiry. The finding of the District Court as confirmed by the High Court is that the respondent is a temporary employee. The action was taken for the reason that the respoudent was irregularly absent without obtaining leave and that therefore his services were terminated. Termination simplicitor is not per se by way of punishment nor does it visit with penal consequences. Sr) it cannot be said to be for misconduct. The effect of the order has to be looked into. In this case, G since the authority has got power and had exercised it under condition No. 9 of the conditions of appointment,. the termination per se is not illegal.

Since the university is not governed by Art. 311(2), the finding of the High Court that the order of termination is violative of Art. 311(2) is clearly illegal. Though clause 14 of the terms of appointment envisages arbitration H

A between the parties, in view of the facts in this case, we need not consider that question. Therefore, that question is left open.

This court by interim order dated February 2, 1993, had given direction to the appellant lo reinstate the respondent into the service and this payment of arrears would be subject to further orders. In implemen- B tatidn thereof, since the respondent has been reinstated and ever since has been working. Though we uphold the power of the appellant that they are entitled to terminate the service of a temporary employee, exercising the l power under condition No.9 of the terms of appointment, on the facts in this case we do not propose lo interfere with the decree of the High Court C confirming the decree of the trial court reinstating the respondent into the service, though for different reasons. However, the respondent will not be entitled to any back wages, his previous service would be counted only for the purpose of pensionary benefits and other service benefits.

The appeahs accordingly dismissed but without costs.

R.P.

Appeal Dismissed. t