Holding

Holding of a preliminary inquiry does not affect the nature of a termination order of a temporary government servant.

Summary

The respondent, K.K. Shukla, was appointed as an ad‑hoc Assistant Auditor in Uttar Pradesh on a temporary contract that allowed termination at any time without cause. An adverse entry was entered against him for 1977‑78 and, later, a preliminary inquiry found him guilty of unauthorised audit of a college’s Boys Fund and collection of fees. No departmental charges were framed; the authority simply terminated his services on 23 September 1980 under the terms of his contract and the U.P. Temporary Government Servant Rules. The Allahabad High Court set aside the termination, holding it discriminatory because junior staff remained in service and that the termination was not in good faith. The Supreme Court held that a preliminary inquiry does not convert a termination into a punitive dismissal, and that termination of a temporary employee pursuant to contract and rules is lawful even if juniors are retained. Accordingly, the appeal was allowed, the High Court order was set aside and the respondent’s writ petition dismissed.

Issues considered

The legality of terminating a temporary government servant without assigning a reason under the contract and applicable rules
Whether a preliminary inquiry transforms a termination into a punitive dismissal requiring protection under Article 311
Whether retaining junior employees while terminating a senior temporary employee amounts to illegal discrimination
Whether an adverse entry in the character roll and lack of a formal departmental inquiry vitiate the termination order

Legislation cited

Central Civil Service (Temporary Service) Ruless. 1949
Constitution of Indias. Article 311
U.P. Government Servants' Conduct Ruless. 1956
U.P. Temporary Government Servant (Termination of Services) Ruless. 1975

Subjects

temporary government servanttermination of servicepreliminary inquiryArticle 311discriminationadverse entrycontract of servicepunitive dismissal

Judgment

STATE OF UTTAR PRADESH AND ANR.
A
v.
KAUSHAL KISHORE SHUKLA

JANUARY 11, 1991

[K.N. SINGH, N.D. ·OJHA AND P.B. SAWANT, Ji.] B

Civil Services-Assistant Auditor-Ad hoc and temporary
employee-Holding of preliminary inquiry-Does .not affect the nature
of the termination order.

The respondent was appointed on 18.2.1977 as an Assistant
.
Auditor under the Local Funds Audit Examiner of the State of U.P. on c
ad hoc temporary basis for the term fixed in the order of his appoint-
ment and his services were liable to be terminated at any time without
assigning any reason. After his initial appointment, his services were
extended from time to time till 28.2.1981. He was awarded an adverse
entry in his character roll for the year 1977-78 both regarding his D
conduct as also his work. The respondent alongwith one Rajendra
Prasad Pandey, another Sub-Auditor, were deputed to audit the
accounts of Raja Raghbar Dayal Inter College, Sitapur in respect of the
year 1979-80. It is alleged that while auditing the account, they acted in
excess of their authority in as much as they audited the 'Boys Fund
Accounts', issued· audit note and also irregularly demanded and E
collected Rs.2,000 as aduit fee, and issued receipts under their signa-
ture. On complaint a preliminary enquiry was held and the allegations
were found to be correct. After the preliminary inquiry report, the
respondent was relieved from his duties from Sitapur and directed to
join his duty at Allaha~ad. Whereupon the respondent proceeded on
leave and did not join his duty at Allahabad. The respondent's services F
were therefore terminated by order dated 23.9.1980 and by another
order services of Pandey were also terminated. Bot~ of them riled writ
petitions in the High Court contending that their termination orders
were illegal having been passed in violation of Article 311 of the Con-
stitution. Whereas the writ petition ided by Pandey was dismissed, the
one filed by the respondent was allowed. The High Court held that since G
juniors to the respondent were retained in service while the respon-
dent's services were terminated, the order of termination was dis-
criminatory in nature. The High Court further held that the order of
termination was founded on an adverse entry awarded to the respon-
dent he11ce it was not in good faith; the punishment awarded to the
respondent was not proportionate to the alleged offence. Against the H

29
30 SUPREME COURT REPORTS [1991] 1 S.C.R.

A said order, the State of U.P. fded a ·appeal after obtaining special
leave. The question involved for consideration is whether the order
terminating the services of the responcJent is vitiated in law? \

Allowing the appeal, this Court,
B
HEJ,D: Holding of preliminary inquiry does not affect the nature
of the termination order. [42C]
In the instant case the respondent was a temporary Government >-
Servant and there was adverse regarding his work which was reflected
in the adverse remarks made for the year 1977-78. The competent
authority held a preliminary inquiry in regard to the allegations of
improper conduct in carrying out unauthorised audit of Boys Fund of
an educational institution. On result of the preliminary inquiry no
--
charges were framed against the respondent, no officer was appointed
for holding the departmental inquiry instead the competent authority
chose to terminate the respondent's services in exercise of its powers
'r
D under the terms of contract as well as under· the relevant rules applic-
able to a temporary Government servant. [42A-C]
The principle 'last come first go' is applicable to a case where
on account of reduction of work or shrinkage of cadre, retrenchment
takes place and the services of employees are terminated on account of
E retrenchment. But this principle is not applicable to a case where the
services of a temporary employee are terminated on the assessment of
his work and suitability in accordance with term and conditions of his
service. On the admitted set of facts, the order of termination in the
instant case, could not be rendered illegal or unjustified on the ground
of juniors being retained in service. The view taken by the High Court is
-
F not sustainable in law. [330-H]

Appeal· allowed, High Court order set aside as it interfered with
order of termination in a casual manner. [42D]

Parshotam Lal Dhingra v. Union of India, [1958] S.C.R. 828;
G The State of Orissa & Anr. v. Ram Narayan Das, [1961] 1 S.C.R. 606;
R.C. Lacy v. The State of Bihar & Ors., C.A. No. 590/62 decided on
2J.10.i963; Champaklal Chimanlai Shah v. The Union of India, [1964] ~
5 S.C.R. 190; Jagdish Mitter v. The Union of India, [1964] AIR S.C. r
449; A.G. Benjamin v. Union of India, C.A. No. 1341/66 decided on
13.12.1966; Shamsher Singh & Anr. v. State of Punjab, [1975] l S.C.R.
H 814; State of Punjab & Anr. v. Shri Sukh Raj 8ahadur, [1968] 3 S.C.R.
STATE OF U.P. v. K.K. SHUKLA [SINGH, J.] 31

234; R.K. Mis;a v. U.P. State Handloom Corporation, [1988] 1 S.C.R.
1
A
_,,.·_ 501, referred to.

Nepal Singh v. State of U.P. & Ors., [1985] 1 S.C.C. 56; lshwar
Chand Jain 'V. High Court of Punjab & Haryana & Anr., [1988] 3
S.C.C. 370distinguished.
B
CIVIL APPELLATE JURISDICTION: Civil Appeal (C) No.
137 of 1991.

From the Judgment and Order dated 20.2.1989 of the Allahabad
High Court in W.P. No. 3096 of 1980.

Yogeshwar Prasad and Ms. Shobha Dixit for the Appellants. c
R.B. Datar, R.K. Khanna and Surya Kant for the Respondent.
r )
The Judgment of the Court was delivered by
D
SINGH, J. Leave granted.

This appeal is directed against the judgment of the Allahabad
High Court (Lucknow Bench) setting aside the order dated 23.9.1980
terminating the respondent's services.
~-
E
The sole question which falls for consideration in this appeal is
whether the order dated 23.9.1980 terminating the respondent's
~ services, who was admittedly an ad-hoc and temporary employee is
vitiated in law. The High Court has held that since juniors to the
respondent were retained in service while the respondent's services
(
I
were terminated, the order of termination was discriminatory in F
'(' nature. It further held that since the order of termination was founded
\

on an adverse entry awarded to the respondent in his character roll
without giving him any opportunity on the ground that he was not
suitable, the order "cannot be said to be a decision given in good
faith." The High Court further observed: "Even if any punishment
was to be awairded, it should have been proportionate to the alleged G
offence, if any." On these findings the High Court held that the order
-·-.. of termination suffered from apparent error of law, it accordingly
allowed the respondent's writ petition and quashed the order of
termination.

The factual matrix of the case is in a short compass. The respon- H
32 SUPREME COURT REPORTS [1991] 1 S.C.R.

dent, was appointed on ad-hoc basis on 18.2.1977 as an Assistant
A Auditor under the Local Funds Audit Examinater of the State of Uttar
Pradesh, for a fixed period ending on 31.8.1977. In December, 1977
the respondent was again appointed on ad-hoc basis for a period end-
. ing on 28.2.1978._ Since the regular appointment could not be made in
time, the respondent's services were extended from time to time. The
B last extension was granted on 21. l. 1980 and the extended period of
service was to expire on 28.2.1981. The terms and conditions of
respondent's service as contained in the order of appointment stated
that the appoiotrµent was ad hoc, purely temporary for the term fixed
in the order and his services were liable to be terminated at any time
without assigning any reason. He was awarded an adverse entry in his
character roll for the year 1977-78. The entry stated that the respon-
c dent's work was poor and he should work hard and take interest in the
work. The respondent made representation against the entry but the
same was rejected. The respondent and Rajendra Prasad Pandey
another Sub-Auditor both were deputed to Audit the accounts of Raja
Raghubar Dayal Inter College, Sitapur for the year 1979~80. While
D carrying on the Audit the respondent and Rajendra Prasad Pandey
both are alleged to have acted in excess of their authority in auditing
the "Boys Fund Accounts" of that College for the year 1978-79 on
their own accord without any authority for the same. They issued audit
note under their own signatures and also irregularly demanded a high'
amount of Rs.13,250.70 as audit fee and collected an amount of
E Rs.2,000 as audit fee for which they issued receipts under their own
signatures. On receipt of complaint a preliminary inquiry was held that
it was found that the allegations against the respondent and Rajendra
Prasad Pandey were correct and both of them had acted beyond their
authority and collected a sum of Rs.2,000 as audit fee for the audit of
the Boys Fund Accounts, although the Boys Fund of the Institution
-
F did not fall within"the purview of audit of the Local Funds Audit and
no fee was chargeable for the audit of such Fund. After the prelimi-
nary inquiry report, the respondent was relieved from his duties from
Sitapur and directed to join his duties at Allahabad, but the respon-
dent proceeded on leave and did not join his duties at Allahabad.
Ultimately, the respondent's services were terminated by the order
G dated 23.9.1980 and on the same day .by another order, services of
Rajendra Prasad Pandey were also terminated. Both the aggrieved
persons filed writ petitions in the High Court at Lucknow Bench under
Article 226 of the Constitution contending that their termination
oq:lers were illegal, having been passed in violation of Article 311 of
the Constitution. The writ petition filed by Rajendra Prasad Pandey
ll_ was ·gismissed but the respondent's writ petition was allowed by a
STATE OF U.P. v. K.K. SHUKLA [SINGH, J.] 33

Division Bench of the High Court on the ground as noted earlier. A
i
_,,l,
There is no dispute that the respondent was an ad-hoc and
temporary employee and the terms and conditions of his employment
were regulated by the U .P. Temporary Government Servant (Termi-
nation of Services) Rules, 1975. The contract of service as contained in
B
the appointment letter also stipulated the terms and conditions of the
respondent's employment that his services were liable to be ter-
minated at any time without assigning any reason or compensation. In
-( the counter-affidavit filed before the High Court the order of termina-
tion was defended on the ground that the respondent's work and con-
duct were not satisfactory and he was unsuitable for the service, there-
fore his services were terminated. To support that contention the · C
appellant placed reliance on the adverse entry awarded to the respon-
dent in the year 1977-78 and also on the allegations made against him
with regard to_ the audit of the Boys Fund of Raja Raghubar Dayal
Inter College. The High Court held that since junior persons to the
respondent in service were retained, the order of termination was
D
:rendered illegal. In our opinion, the principle of 'last come first go' is
applicable to a case where on account of reduction of work or
shrinkage of cadre retrenchment takes place and the services of
employees are terminated on account of retrenchment. In the event of
retrenchment the principle of 'last come first go' is applicable under
which senior in service is retained while the junior's services are
E
terminated. But this principle is not applicable to a case where the
services of a temporary employee are terminated on the assessment of

- his work a..n<! suitability in accordance with terms and conditions of his
service. If out' of several temporary employees working in a depart-
ment a senior is found unsuitable on account of his work and conduct,
it is open to the competent, authority to terminate his services and
retain the services of juniors who may be found suitable for the
F
service. Such a procedure does not violate principle of, equality,
enshrined under Articles 14 and 16 of the Constitution: If a junior
employee is hard-working, efficient and honest his services could not
be terminated with a view to accommodate the senior employee even
though he is found unsuitable for the service. If this principle is not
accepted there would be discrimination and the order of termination G
of a junior employee would be unreasonable and discriminatory. On

-- j
the admitted set of facts, the order of termination in the instant case,
could not be rendered illegal or unjustified on the ground of juniors
being retained-in service. The view taken by the High Court is not
sustainable in law.
H
34 SUPREME COURT REPORTS [1991] 1 S.C.R.

The High Court held that the termination of respondent's
A r
services on the basis of adverse entry in the character roll was not in
good faith and the punishment imposed on him was disproportionate. >---
It is unfortunate that the High Court has not recorded any reasons for
this conclusion. The respondent had earned an adverse entry and com-
plaints were made against him with regard to the unauthorised audit of
B the Boys Fund in an educational institution, in respect of which a
preliminary inquiry was held and thereupon, the competent authority
was satisfied that the respondent was not suitable for the service. The
adverse entry as well as the preliminary inquiry report with regard to
the complaint of unauthorised audit constituted adequate material to
enable the competent authority to form the requisite opinion regard-
ing the respondents suitability for service. Under the service jurispru-
c dence a temporary employee has no right to hold the post and his
.services are liable to be terminated in accordance with the relevant
service rules and the terms of contract of service. 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 .
D 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.

A temporary Govt. servant has no right to hold the post, his
services are liable to be terminated by giving him one month's notice ~
E without assigning any reason either under the terms of the contract
providing for such termination or under the relevant statutory rules
regulating the terms and conditions of temporary Govt. servants. A
temporary Govt. servant can, however, be dismissed from service by -
way of punishment. Whenever, the competent authority is satisfied
that the work and conduct of a temporary servant is not satisfactory of
F 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 it decides to take punitive action it
may hold a formal inquiry by framing charges and giving opportunity
G to the Govt. servant in accorda~e with the provisions of Art. 311 of
the Constitution. Since, a temporary govt. servant is also entitled to
the protection of Article 311(2) in the same manner as a permanent ,
;,_-
Govt. servant, very often, the question arises whether an order of
termination is in accordance with the contract of service and relevant
rules regulating the temporary employment or it is by way of punish-
ment. It is now well-settled that the form of the order is not conclusive
STATE OF U.P. v. K.K. SHUKLA [SINGH, J.) 35

and it is open to the Court to determine the true nature of the order. In
A
Parshotam Lal Dhingra v. Union of India, [1958] SCR 828 a Constitu-
~
tion Bench of this Court held that the mere use of expressions like
'terminate' or 'discharge' is not conclusive and in spite of the use of
such expressions, the Court may determine the true nature of the
order to ascertain whether the action taken against the Govt. servant is
punitive in nature. The Court further held that. in determining the true B
nature of the order tp.e Court should aQPly two tests namely: (1)
whether the t~~porary Govt. servant had a 'lj~ht to the_post or the rank
....( or (2) whether he has been visited with evil consequences; and if either
of the tests is satisfied, it must be held that the order of termination of
a temporary Govt. servant is by way of punishment. It must be borne
in mind that a temporary Govt. servant has no right to hold the post
and termination of such a Govt. servant does not visit him with any evil c
consequences. The evil consequences as held in Parshotam Lal Dhingra's
case (supra) do not include the termination of services of a temporary
Govt. servant in accordance with the terms and conditions of service.
I/
I The view taken by the Constitution Bench in Dhingra's case has been
reiterated and affirmed by the Constitution Berich decisions of this D
Court in The State of Orissa and Anr. v. Ram Narayan Das, [1961] 1
SCR 606; R.C. Lacy v. The State of Bihar & Ors., C.A. No. 590/62
decided on 23 .10.1963; Champaklal Chimanlal Shah v. The Union of
India, [1964] 5 SCR 190; Jagdish Mitter v. The Union of India, (1964]
AIR SC 449; AG. Benjamin v. Union of India, C.A. No. 1341/66
~
decided on 13.12.1966 and Shamsher Singh & Anr. v. State of Punjab, :g
[ 1975] J SCR 814, These decisions have been discussed and followed by
a three Judge Bench in State of Punjab & Anr. v. Shri Sukh Raj
- Bahadur, [ 1968] 3 SCR 234.

Learned counsel for the respondent urged that the allegations
.. made against the respondent in respect of the audit of Boys Fund of an F

r educational institution were incorrect -and he was not given any
opportunity of defence during the inquiry which was held ex-parte.
Had he been given the opportunity, he would have placed correct facts
before the inquiry officer. His services were terminated on allegation
of misconduct founded on the basis of an ex-parte enquiry report. He
further referred to the allegations made against the respondent in the G
counter-affidavit filed before the High Court and urged that these facts
....._,_ demonstrate that the order of termination was in substance, an order
of termination founded on the allegations of misconduct, and the
ex parte enquiry report. In order to determine this question, it is neces- ·
sary to consider the nature of the respondent's right to hold the post
and to ascertain the nature and purpose of the inquiry held against H.
36' SUPREME COURT REPORTS [1991] 1 S.C.R.

him. As already observed, the respondent being- a temporary Govt.
A 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 not indict the
respondent for any misconduct. The inquiry which was held against the
respondent was preliminary in nature to ascertain the respondent's
B suitability and continuance in service. There was no element of puni-
tive proceedings as no charg_es had b~(.!n framed, no inquiry officer was
appointed, no findings were recorded, instead a preliminary inquiry
was held and on the report of the preliminary inquiry the competent >-
authority terminated the resppndent'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
c respondent in regard to the allegations of unauthorised audit of Boys ...._
Fund, was held- does n·ot 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
D contract of service and the Rules. "
In State of Orissa & Anr. v. Ram Narain Dass, [1961] l SCR 606
a Constitution Bench of this Court considered the question and indi-
cated "the fact of the holding of an inquiry is .not decisive of the
question. What is decisive is whether the order is by way of punish-
E ment in the light of the tests laid down in Purshottam Lal Dhingra's /
case."

In Jagdish Mitter's case (supra) a Constitution Bench of this
Court held that every order terminating the services of a temporary
public servant does not amount to dismissal or removal from service
-
F merely because an inquiry was held before the order of termination
was passed. The Court observed that the· appropriate authority has
~
-r;
po,.,er to terminate a temporary public servant either by discharging
him under the terms of contract or the relevant rules or by holding
departmental disciplinary inquiry and dismissing him from service.
Before passing order of termination the competent authority may hold
G 'inquiry in fairness to ascertain whether the temporary servant should
be continued in service or not. While discussing the nature of prelimi-
nary inquiry the Court-observed as under:
~
{

"There is no element of pµnitive proceedings in such an
enquiry: the idea in holding such an enquiry is not to
H punish the tell?-porary servant but just to decide whether he
STATE OF U.P. v. K.K. SHUKLA [SINGH, J.] 37

deserves to be continued in service or not. If as a result of
A
such an enquiry, the authority comes to the conclusion that
the temporary servant is not suitable to be continued, it
may pass a simple order of discharge by virtue of the pow-
. ers conferred on it by the contract or the relevant rule; in
such a case, it would not be open to the temporary servant.
to invoke the protection of Art. 311 for the simple reason B
that the enquiry which ultimately led to his discharge was
held only for the purpose of deciding whether the power
under the contract or the relevannule should be exercised
and the temporary servant discharged."

In Champaklal Chimanlal Shah's case (supra) the appellant therein
was a temporary eipployee of the Union Government. His services c
were terminated without assigning any reasons and without affording
him opportunity of showing-cause. Before passing the order of termi-
nation the competent authority had issued a notice to Champaklal
Chimanlal Shah calling upon him to explain certain irregularities and
to show-cause why disciplinary action should not be taken against him. D
. In response to the notice, he submitted his explanation thereupon,
certain preliminary enquiries were held, but he was not given oppor-
tunity to place his case during the preliminary enquiry. However, after
the preliminary enquiry to regular departmental enquiry was held
instead proceedings for departmental enquiry were dropped and the
services of Chimanlal Shah were terminated in accordance with the
terms and conditions of service of a temporary Govt. servant. The
termination order was assailed on the ground that the order of termi-
nation was in substance an order of punishment. The Constitution
Bench held that the order of termination was not an order of punish-
ment and the appellant was not entitled to the protection- of Article
311(2) of the Constitution. The Court emphasised that when a prelimi- F
nary enquiry is held against a temporary Govt. employee, it must not
be confused with the regular departmental inquiry which usually
follows the preliminary inquiry, after the Government decides to
frame charges and to get a departmental enquiry made, with a view to
inflict one of the three major punishments on the Govt. servant. So far
as the preliminary enquiry is concerned, there is no question of it being G
governed by Article 311(2) of the Constitution, as it is made for the
purpose of cpllection of facts to enable the competent authority to
decide whether punitive action should be taken or action should be
taken in terms and under the contract of service or the rules applicable
to a temporary government servant. A Govt. servant has no right to
insi~t. for affording him opportunity during such enquiry and such an
38 SUPREME COURT REPORTS [1991] 1 S.C.R.

ex-parte enquiry is not intiated in Jaw in view of the purpose and object
A of preliminary enquiry. On an elaborate discussion, the Court I

observed as under: >--
"In short a preliminary enquiry is for the purpose of collec-
tion of facts in regard to the conduct and work of a govern-
B ment servant in which he may or may not be associated so
that the authority concerned may decide whether or not to
subject the servant concerned to the enquiry necessary
under Art. 311 for inflicting one of the three major punish-
ments mentioned therein. Such a preliminary enquiry may
even be held ex parte for it is merely for the satisfaction of
government, though usually for the sake of fairness, expla-
c nation is taken frorri the servant concerned even at such an
enquiry. But at that stage be has no right to be heard for
the enquiry is merely for the satisfaction of the Govern-
ment, and it is only when the government deci~es to hold a
regular departmental enquiry for the purposes of inflicting
D one of the three major punishments that the government
servant gets the protection of Art. 311 and all the rights
that protection implies as already indicated above. There
must therefore be no confusion between the two enquiries
and it is only when the government proceeds to hold a
departmental enquiry for the purpose of inflicting on the
E government servant one of the three major punishments.
indicated m Art. 311 that the government servant is
entitled to the protection of that Article. That is why this
Court emphasised in Parshotam Lal Dhingra's case (supra)
and in Shyamlal v. The State of Uttar Pradesh, [1955] 1 SCR
....
.. F 26 that the motive or the inducing factor which influences
the government to take action under the terms of the
contract of employment or the specific service rule is
irrelevant."

The above principles were reiterated by another Constitution Bench of
this Court in R. C. Lacy's case (supra) dealing with the case of rever-
G sion of a permanent Govt. servant officiating on a higher post. The
Bench. observed that the-Government might find it necessary to termi-
nate the services of a temporary employee if it is not satisfied with the
conduct or work of an employee and the same reasoning applies to a r-
public servant who is reverted from a higher post to his substantive
lower post, if the higher post was held in a temporary nature. Before
H terminating the services of a temporary servant or reverting the person
STATE OF U.P. v. K.K. SHUKLA [SINGH, J.] 39

officiating in a higher post to his substantive post, the Govt. may hold
a preliminary enquiry to form the requisite satisfaction for the con- A
tinuance of the officiating Govt. servant. Such an inquiry does not
change the nature of the order of the termination or reversion.

In A.G. Benjamin's case (supra) the appellant was t~mporarily
employed as a Store Officer in the Central Tractor Organisation, his B
services were terminated under the Central Civil Service (Temporary
Service) Rules, 1949 by granting him one months's salary in lieu of
notice. A.G. Benjamin contended that the order ofterminatio~ was in
fact an order of punishment, which had been passed without affording
him the protection under Artide 311(2) of the Constitution. In that
case before the issue of termination order, a notice had been issued to
Benjamin for showing-cause as to why disciplinary action should not c
be taken on the allegations made against him in respect of which the
charges had been framed and an enquiry officer had been appointed.
After the charges were framed and the explanation of Benjamin was
obtained, the Chairman of the Central Tractor Organisation submitted
a note to the Government that .the departmental proceedings may take D
much longer time and he was not sure that after going through all the
formalities of departmental enquiry Benjamin will be dealt in the way
he deserved, therefore, he suggested that act.ion should be taken under
Rule 5 of the Central Civil Service (Temporary Service) Rules, 1949
for terminating his services by giving him one month's salary in lieu of
notice as he was a temporary Govt. servant. The Minister concerned E
accepted the recommendations, whereupon, order of termination was
issued terminating the services of Benjamin. While assailing the order
of termination, it was seriously contended before this Court that in
view of the charges being framed and the enquiry officer having been
appointed the order of terminatiQn in substance was an order of
punishment and the recourse to the temporary service rules had been P...·
taken only to c"ircumvent Art. 311 of the Constitution. The Constitu-
tion Bench repelled the contention and held that the preliminary
enquiry held against the Govt. servant must not be taken to mean that
the Govt. had taken decision to inflict major punishment on Benja-
min. The Court held that no temporary Govt. servant is entitled to
opportunity in the preliminary inquiry as "there is no element of puni- G
tive proceedings in such an inquiry; the idea in holding such an inquiry
is not to punish the temporary government servant but just to decide
whether he deserves to be continued in service or not." Further the
Constitution Bench held that even if formal departmental inquiry is
initiated against the temporary Govt. servant, it is open to the compe-
tent authority to drop further proceedings in the departmental enquiry 'H'
40 SUPREME COURT REPORTS [1991] 1 S.C.R.

against the temporary govt. servant and to have recourse to Rules
A
applicable to a temporary Govt. servant for terminating his services. <
The Court observed as under: /-
"If therefore the authority decides 1 for some reason, to
drop the formal departmental enquiry even though it had
B been initiated against the temporary govt. servant, it is still
open to the authority to make an order of discharge simp-
liciter in terms of the contract of service or the relevant
statutory rule. In such cases the order of tetmit1atiort of )..__
services of the temporary govt. servant which in form and
in substance is no mpre than his discharge effected under
the terms of contract or the r_elevant rule cannot, in law, be
c regarded as his dismissal, because the appointing authority
was actuated by the motive that the said servant did not
deserve to be continued in service for some alleged ineffi-
ciency or misconduct."
~
p We have referred to the above decisions in detail to dispel any doubt
about the correct position of law. It is erroneous to hold that- where a
preliminary enquiry into allegations against a temporary govt. 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.
E /"'-
Learned counsel for the respondent placed reliance on the deci-
sions of this Court in Nepal Singh v. State of U.P. & Ors., [1985] 1 SCC
?6 and lshwar Chand Jain v. High Court of Punjab & Haryana & Anr.,
[ 1988] 3 sec 370 in support of his contention that the termination
....
order is punitive in nature. In Nepal Singh's case a disciplinary inquiry
- .F was instituted against Nepal Singh who was a temporary Sub-Inspector
~.
of Police, on the charge of having contracted a second marriage during
the life time of his first wife without prior permission of the Govern- ,/
ment in violation of Rule 29 of the U .P. Government Servants' Con-
duct Rules, 1956. Before any finding could be rendered the inquiry
was dropped for want of territorial jurisdiction of the concerned
G Superintendent of Police, and thereafter, his services were terminated
in accordance with the rules applicable to the temporary Government
servants by giving him one month's pay in lieu of notice. Nepal Singh
unsuccessfully challenged the order of termination before the High 'r
Court, but his appeal was allowed by a three Judge Bench of this
Court. This Court quashed the order of termination on three grounds. _
H Fir~tly, it held that the order of termination was arbitrary, violative of
STATE OF U.P. v. K.K. SHUKLA [SINGH, J.) 41

Articles 14 and 16 of the Constitution as power of termination had not
J. been exercised honestly, in good faith for valid considerations. A
Secondly, the grounds mentioned in the report of the Superintendent
of Police on the basis of which the services of the Sub-Inspector had
been terminated were mere allegations and there was no definite mate-
r'ial for terminating his services. Thirdly, the Court held that since the
inquiry against Nepal Singh on the charges had been dropped for want B
of jurisdiction and since no attempt was made to institute a proper
---------" inquiry, instead his services were terminated on the allegation of
' misconduct the order of termination was violative of Atticle 311(2) of
the Constitution. The Court further held that the termination order
had been passed to circumvent the constitutional provision of Art.
311(2) of the Constitution. The facts and· circumstances in Nepal
Singh's case were quite different than those in the instant case. How- c
ever, Nepal Singh's case is no authority for the proposition that the
services of an ad-hoc and temporary employee cannot be terminated
·f"' 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's case that since the enquiry D
against Nepal Singh on certain charges was dropped and his services
were terminated under the rules applicable to the temporary govt.
servant with a view to circumvent the protection of Art: 311(2) of the
Constitution and as such the order of termination was illegal, must be
~ confined to the facts of that case. It appears that the decisions in the
case of Champaklal (supra) and R.C. Lacy (supra) and the principles E
laid down therein were not brought to the notice of the Bench. Had
those decisons been placed before the Court, the finding that the
termintion order had been passed to circumvent the provision of Art.
311(2) merely because departmental inquiry was dropped and the
termination order had been passed, may not havy been made. The
decision of Nepal Singh's case in this regard is per incurium. In lshwar F
'',.:-;- Chand Jain's case the order of termination of Probationary Judicial
Officer was set aside by this Court on the ground that no relevant
material had been taken into consideration in assessing the satisfactory
nature of the work and conduct of the Officer on probation. The Court
held that some of the material which had ·been taken into account in
adjudging the Judicial Officer's work and conduct as unsatisfactory G
was not relevant. The decision has no relevance to the instant case. We
---./ are, therefore, of the opinion that neither of the two cases relied upon
by the respondent lend any support to his case. On the other hand our
view is fully supported by the decision of three Judge Bench of this
Court in R.K. Misra v. U.P. State Handloom Corporation, [1988] 1
SCR501. H
42 SUPREME COURT REPORTS [1991] 1 S.C.R.

A In the instant case the respondent was a temporary Government
servant and there was adverse report regarding his work which was
reflected in the adverse remarks made for the year 1977-78. The
competent authority held a preliminary inquiry in the allegations of
improper conduct in carrying out unauthorised audit of Boys Fund of
an educational institution, on result of the preliminary enquiry no
B
charges were framed against the respondent, no officer was appointed
for holding the departmental inquiry instead the competent authority
chose to terminate the respondent's services in exercise of its power
under the terms of c0ntract as well as under the relevant rules applic-
able to a temporary Govt. servant. It never intended to dismiss the
respondent from service. Holding of preliminary inquiry does not
c affect the nature of the termination order. 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. The High Court failed to
consider the que~tion in proper perspective and it interfered ~ith the
order of termination in a casual manner.
D
We, accordingly, allow the appeal and set aside the order of the
High Court and dismiss the respondent's Writ Petition. There will be
no order as to costs.

Y. Lal Appeal allowed.

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