Holding

Termination of a temporary government servant on the basis of unsatisfactory performance, where the appointment expressly allows termination without notice, does not attract Article 311 and is not bad in law.

Summary

Ram Kishore was initially appointed as a trainee tube‑well operator and was terminated for unauthorized absence. He was subsequently given a fresh three‑month temporary appointment, which was again extended, but his performance remained unsatisfactory and he again absented himself without leave, leading to a second termination. He challenged both termination orders before the Service Tribunal, which quashed them on the ground that the terminations were punitive and lacked a proper inquiry. The High Court upheld the State's position, holding the terminations bad in law for lack of prior intimation. The Supreme Court held that the second appointment was expressly temporary and subject to termination without notice; the termination was a simple discharge based on unsatisfactory performance, not a punitive dismissal, and therefore Article 311 did not apply. Consequently, the Supreme Court allowed the appeals and set aside the orders of the Tribunal and the High Court.

Issues considered

Whether a temporary government servant appointed on a probationary basis can be terminated without prior notice or inquiry.
Whether the termination of such a servant amounts to a punitive dismissal attracting the protection of Article 311 of the Constitution.
Whether the termination orders passed by the Tribunal and the High Court were legally valid.

Legislation cited

Constitution of Indias. Article 311, s. Article 311(2)

Subjects

temporary appointmentprobationary servicetermination of serviceArticle 311public servantabsence without leaveservice law

Judgment

STATE OF U.P. AND ANR. A
v.
RAM KISHORE AND ANR.

AUGUST 31, 1999

[G.T. NANAVATI AND S.N. PHUKAN,.JJ.] B

Service Law: Termination ofservice on the basis ofreview ofperformance
during temporary appointment-Respondents found absent from duty-

- Services terminated retrospectively-On his assurance that he would not
commit mistake, fresh appointment giverr--Second appointment was temporary
subject to termination, without notice-Respondent again absenting, from
duty-Services terminated in accordance with the terms and conditions of his
C

second appointmerit-Held, termination of his services not bad in law· as it
was as a result ofreview ofhis performance which was found not satisfactory-
Thus, the provisions of Article 311 not attracted-Constitution of India- D
Article 3 I1.

Respondent No. 1 was appointed as Trainee Tubewell Operator. On
being found absent from duty, notice was sent to him and his senl-ices were
terminated retrospectively from the date he remained absent. He filed a
representation against the termination order. On an assurance given by him E
that he would not commit any mistake in future, fresh appointment was given
to him for three months which was further extended for another three
months. The second appointment was subject to the condition that his service
could be terminated without any prior intimation. Thereafter, the Assistant
Engineer was asked to submit a progress report on the work of respondent F
No. 1 to take further course of action. Respondent No. 1 showed no
improvement in his work and again absented himself from duty without any
application. So his services were terminated in accordance with the terms
and conditions of his second appointment.

Respondent No. 1 challenged both the orders of termination and the
Tribunal held the termination order bad in law and quashed the termination G
order. High Court dismissed the writ petitions filed by the State Government
on the ground that no prior intimation was given to respondent No. 1 and so
the termination was bad in law. Hence these appeals.

Allowing the appeals, the Court
149
H
150 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A HELD: 1. By the second appointment letter, respondent was appointed
only for a period of three months purely on temporary basis subject to
termination without notice; therefore, the respondent was not in regular
government service. Moreover, his position was like that of a probitationer.
Since the appellant found that the services of the respondent were not
B satisfactory and accordingly terminated his services, it cannot be said that
the termination order was bad in law. This fact is sufficient to hold that the
impugned order was an order of termination simplicitor of a temporary
government servant namely the respondent Therefore, the provision of Article
311 would not be attracted. [154-D-F]

C D.K Yadav v. J.MA. Industries, (1993) 3 J.T. 617 and Uptron India Ltd
v. Shammi Bhan & Anr., [1978) SCC 538, distinguished.

State of UP. v. Ka'u.shal Kishore Shukla, [1991] 1SCC691, relied on.
-
Jagdish Mitter v. Union of India, AIR (1964) 449, referred to.
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4861 of
1999 Etc.

From the Judgment and Order dated 27.2.98 of the Allababad High Court·
·E in C.M.A. No. 8 I 970 of 1997.

A.K. Goel, Addi. Advocate General, U.P. and A. Misra for the Appellants.

R.B. Mehrotra and Rajesh for the Respondents.

F The Judgment of the Court was delivered by •

PHUKAN, J. Delay condoned. Leave granted.

Two appeals have been filed against the judgment and order dated
G 21.05.97ofthe High Court of Allahabad in Writ Petition (C) No.7150/93 as also
against the order dated 27 .02.98 in review petition "in CMA No. 81970/97. The
High Court upheld the judgment and order dated 24. I 1.92 passed by the U.P.
-
Public Service Tribunal, Lucknow and the review petition filed by the present
appellants was also dismissed by the High Court. Respondent No. I Ram
Krishna was appointed as Nalkoop Chalak w.e.f.15.5.77. As he was found
H absent from his duty without obtaining leave a notice dated 26.7.79 was given
STATE v. RAM KISHORE [PHUKAN, J.] 151
to him and then by an order dated 6.8.79 his services were terminated with A
effect from 26.7.79. Respondent filed a representation against the above order
before the Authority and on an assurance given by the respondent that he
would not commit any mistake in future he was given a fresh appointment on
1.9. 79 for three months and again on 18.12. 79 for three months. As the
respondent did not improve his work and again absented himself from duty
without any application, his services were terminated by order dated 29.2.80. B
He, therefore, approached the Tribunal and challenged both the orders of
termination of his services. It was contended by the appellants before the
tribunal that the appointment of the respondent was purely on temporary
basis and his services were liable to be terminated at any time without notice.
It was also contended before the tribunal that the impugned order of termination C
did not cast any stigma and his services were not terminated by way of
·punishment but in accordance with the terms and conditions of the appointment.

The tribunal took the view that the termination order dated 6.8. 79 was
given back effect from 26.7.79 i.e., it was passed with retrospective effect,
therefore, the order was bad as it was not permissible in law. On this count D
the above termination order was set aside. The tribunal, however, did not
grant the relief that he continued in service after 6.8.79. Regarding the second
termination order dated 29.2.80 the tribunal was of the view that it was not
an order of termination simplicitor but it was stigmatic as it was passed on
the ground that the respondent was an irresponsible employee and he was E
unauthorisedly absent. As no inquiry was held before passing the order, the
second order of termination was held to be bad in law by the tribunal and
accordingly the tribunal allowed the petition filed by the respondent and both
the termination orders dated 6.8.79 and 29.2.80 were quashed.
The High Court was of the view that the appointment of respondent F
w.e.f. 01.12.79 on the post of Tube Well Operator was on a regular
establishment. The High Court also recorded that respondent according to
the appellants did not make any improvement in his performance and being
irresponsible, due to absence in work, his services were terminated. On these
facts the High Court relying on the decision of this Court in D.K Yadav v.
J.MA. Industrie_s, {1993) 3 J.T. 617 held that absence without le~ve is a G
misconduct and, therefore, as no opportunity was given to the respondent,
the termination was bad in law and accordingly the writ petition filed by the
present appellants was dismissed.

We have heard Mr. A.K.Goel, learned Addi. Advocate General of U.'P.
and Mr. R.B. Mehrotra, learned senior counsel for the parties. H
152 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A The learned counsel for the respondent has drawn our attention to the
I

letter dated 2.5.77 and has urged that the respondent was appointed on
regular basis after being selected by the Selection Committee for the post of
Tube Well Operator, therefore, it was regular appointment and not temporary

B
as contended by the appellants. On reading the same letter we find that the
respondent was selected as "Training Tube Well Operator" and condition
No.IO of the said letter clearly indicates that services of the respondent could
be terminated at any time without notice. Therefore, the contention of the
learned counsel that respondent was appointed on regular basis as Tube Well
'
Operator is not sustainable.

C From the record we find that the second appointment dated 18.12.79 is
an office order issued by the Executive Engineer, Civil Division, Allahabad
appointing respondent as Tube Well Operator purely on temporary basis with
the condition that his services could be terminated without any prior intimation.
A copy of the letter was sent to the Assistant Engineer asking him to submit
a progress report of working capacity of the respondent to enable the Executive
D Engineer to take decision regarding future course of action. In view of the
above expressed condition directing the Assistant Engineer to report regarding
performance of the work of the respondent, we are of the opinion that it was
not a regular appointment on a clear vacancy, but it was a temporary
appointment for a period of three months and was made conditional upon his
E showing progress during that period. This appointment was to take effect
from 1.9.79 as respondent was working from that date as Tube Well Operator.
In the second order of termination dated 29.2.80 it was recorded that having
made no improvement in work as being irresponsible the services of the
respondent were not needed in the department and, therefore, terminated with 1
immediate effect.
F
But as stated earlier, the Tribunal had not granted the relief that he
continued in service even after 6.8.79. The respondent had accepted his fresh
appointment and, therefore, had to be treated as a fresh appointee. The
Tribunal had also proceeded on that basis. Therefore, the nature of his earlier
G appointment and validity of the termination order need not be considered any
further.

Now the question is whether the services of the respondent 9ould be
terminated as he did not make any improvement in work and further he was
found absent from work? From the appointment letter we find that the second
H appointment of the respondent was for a period of 3 months and this is also

t
I
1
) j
STATE v. RAM KISHORE [PHUKAN. J.] 153
the finding of the High Court. A
The High Court relied upon a decision in D.K.Yadav (supra). That was
a case of termination of services on the basis of standing orders in an
industrial establishment. Therefore, in our opinion the ratio of that case is not
applicable to the case of the respondent.
B
Our attention has been drawn to the Five Judges Bench decision of this
Court in Jagdish Mitter v. The Union of India, AIR (1964) 449. The Bench
reiterate the settled position of law that protection of Article 311 can be
invoked not only by permanent public servants, but also by public servants
who are employed as temporary servants, or probationers and so, if served C
with an order by which his services are terminated, and the order
unambiguously indicates that the said termination is the result of punishment
sought to be imposed upon him, he can invoke the protection of Article 311
cl!iming that the mandatory provisions of Article 311 (2) have not been complied
with. Regarding powers of the appropriate authority to terminate services of
a temporary public servant it was held that it can either discharge him D
purporting to exercise its power under the terms of contract or the relevant
rule and in that case, it would be a straightforward and direct case of discharge
and nothing more and, therefore, Article 31 l do not get effected. The Authority
can also act under its power to dismiss a temporary servant and make an order
of dismissal and in such an event Article 311 will apply and it would necessitate E
a formal departmental inquiry. In the opinion of the Bench while discharging
a temporary government servant on probation sometimes inquiry may have
to be made only to find out whether the temporary servant on probation
should be continued in service or not, and in such an event such government
servant will not be entitled to the protection of Article 311 as the inquiry was
done only to find out the suitability of the person and there was no element F
of punitive proceeding .
•
The learned counsel for the appellants has drawn our attention in State
of Uttar Pradesh and Anr. v. Kaushal Kishore Shukla, [I 991] I SCC 691. This
·(;·
Court inter alia held that a temporary government servant has no right to hold G
the post and where the competent authority is satisfied that the work and
conduct of a temporary servant are 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. It is further H
•

154 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A held that ifthe services of a temporary government servant are terminated in
accordance with the terms and conditions of service it will not visit him with
any evil consequences. If on 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
B service whereupon the services of the temporary employee are terminated, no
exception can be taken to such an· order of termination. If, however, the
compe~ent authority decides to take punitive action it may hold a formal
enquiry by framing charge and giving opportunity to the government servant
in accordance with Article 311(2) which is applicable to temporary government
servant.
c
The learned counsel for the respondent has drawn our attention to the
case of Uptron India Ltd. v. Shammi Bhan and Anr., [1978] SCC 538. It was
a case of unauthorised absence from duty and that too in case of an industrial
establishment. More over the services of the employees were duly confirmed.
Under the above facts this ratio is not applicable to the case in hand.
D
As we have already stated earlier, by the second appointment letter,
respondent was appointed only for a period of three months purely on
temporary basis subject to termination without notice, therefore, we come to
the conclusion that the respo,ndent was not in regular government service.
E Moreover, his position was like that of a probationer. As during the period
of service of the respondent the authority found that the services of the
respondent were not satisfactory and accordingly terminated, it cannot be
said that the termination order was bad in law. This fact is sufficient to hold ·
that the impugned order was an order of termination simplicitor of a temporary
government servant namely the respondent. Therefore, the provisions of
F Article 311 would not be attracted.

Accordingly, the present appeals are allowed and impugned orders of
the High Court as well as of the Tribunal are set aside.

No order as to costs.
G
NJ. Appeals allowed.