JUDGMENT
Manoranjan Mallick, J.
1. The petitioner who is an ex-military personnel was appointed as Court Keeper, High Court, Calcutta on a temporary basis on 5.7.1988 until further orders with effect from 5.7.1988 in place of D.G. Penn Anthany who retired with effect from 4.7.1988.
2. In or about 17.6.1989 by a Memo being No. 4938-GS the Deputy Registrar, Appellate Side, High Court, Calcutta issued a snow cause notice directing the petitioner to submit show cause within 7 days alleging, inter alia, that the petitioner was not found in the quarter during the period of leave and that such act amounts to negligence of duty and breach of office discipline since the petitioner has been provided with the residential quarters in the court premises to stay there and to meet any emergency that may arise in the day and night.
3. On the very day by another Memo being No. A939-GS the same Deputy Registrar, Appellate Side, High Court, Calcutta issued another show cause notice directing, inter alia, to show cause against the allegations that the petitioner was directed on 14.6.1989 by the Registrar, Appellate Side, High Court, Calcutta to attend Howrah Station at 6 a.m. on 15.6.1989 for receiving the Hon’ble Mr. Justice Ram Nandan Prasad of Patna High Court but the petitioner was not made available in the official quarter in the Court premises and in the said memo it has also been alleged that about 11-15 a.m. on 14.6.89 the petitioner was not made available at the residential quarter and that in the next morning i.e., at 6.15 a.m. on 15.6.89 the petitioner was not also made available at quarter. The petitioner states that in the said memo it has also been alleged that the petitioner left official quarter without taking any permission ignoring the duties to look after the security arrangements of the court building in the night of 14.6.1989 and also in the morning of 15.6.89.
4. On receipt of the show cause notices the petitioner submitted reply to the Deputy Registrar, Appellate Side, High Court, Calcutta contending, inter alia, that the petitioner applied for commuted leave in compelling circumstances on the ground of health on being medically advised to take bed rest, the petitioner had been to the residence and at the time of granting of commuted leave since there was no pre-condition that even at the time of enjoying commuted leave the petitioner would have to stay in the official accommodation provided in the High Court premises to the petitioner though it is fit to take rest in the residence of the petitioner. In the said letter the petitioner also stated that it was not a denying fact that the petitioner reported to the quarter after enjoying the commuted leave. The petitioner states that in reply to Memo No. 4938 petitioner also stated that the petitioner was under the treatment of Dr. Panja and Dr Panja issued a fit certificate which would be evidence from the ticket of the out-door patient and since Dr. Panja did not advise the petitioner to get the petitioner admitted in the hospital and on the contrary advised the petitioner to take bed rest in the residence, the petitioner left the official quarter and took rest in the residence of the petitioner.
5. The petitioner states that the petitioner also replied to the show cause which had been issued vide notice No. 4939 dated 17.6. 89 explaining, inter alia, that the petitioner had to leave the office due to the sudden death of the grand mother of the petitioner and as such the petitioner was not in a position to receive the order and as such it was not possible for the petitioner to attend Howrah Station and the petitioner also stated that the petitioner had no intention to disobey the order and, had the order been communicated before the leaving of the petitioner of the office, the petitioner would have certainly attended Howrah Station. The petitioner states that the show cause notice and/or letter was issued on the allegation that the petitioner did not attend Howrah Station to receive the Hon’ble Judge of Patna High Court; but in fact the Hon’ble Mr. Justice Ram Nandan Prasad did not come on that day. The petitioner also stated that the petitioner had to leave the official residence in order to attend the ‘Sradh’ Ceremony of the grand-mother of the petitioner which was held in the residence. The petitioner states that the petitioner returned to the quarter at about 7.15 a.m. on 15.6.89. The petitioner also stated in the said reply to the show cause that the petitioner informed before hand that the petitioner would not be available on 14.6.89 and upto 7.15 a.m. on 15.6.89 and the said information was given in due time. The petitioner denied the allegation that the petitioner left the official quarter without any prior permission and ignoring the duties to look after the security arrangement of the Hon’ble High Court Building on 14.6.89 and also in the morning of 15.6.89. The petitioner states that due to the compelling circumstances the petitioner had to leave the official residence but before leaving official residence the petitioner did make all necessary arrangements as usual for the night of 14.6.89, and for the morning of 15.6.89 and as such there is no negligence on the part of the petitioner regarding the performance of duties.
6. After the said reply was given the petitioner did not receive any communication and reasonably believed that the Respondents were satisfied with his explanation, did not wish to start any departmental enquiry against him. But surprisingly enough the petitioner was served with a Memo No. 3677-GS dated 9.8.1989 of the Registrar, Appellate Side, High Court that the Chief Justice was pleased to terminate his services with effect from afternoon of 9.8.1989 and that the said order of termination has been issued in terms of the condition of the letter of appointment wherein, it has been laid down that the service is terminable with one month’s notice on either side.
7. The petitioner challenges the said order of termination on the ground that after completion of a year of completed service he is deemed to be confirmed in service and cannot be terminated with one month’s notice or one month’s salary in lieu of notice. It is also contended that the termination of temporary servant with one month’s notice has been struck down by the Supreme Court in and as ultra vires the provision of Article 14 of the Constitution and also violating the Directive Principles as contained in Article 39(a) and Article 41 of the Constitution. The petitioner, therefore, challenges the impugned order of termination to be arbitrary. It is also submitted that even though the impugned order of termination is innocuous in nature but from the attending circumstances it is crystal clear that the service of the petitioner was terminated on the ground of specific allegations which have been made against the petitioner by the Memo issued on 17.6.1989 but the Respondents did not hold any departmental enquiry nor did the respondents communicate any order rejecting replies to the show cause notice and in an indirect method terminated the service of the petitioner by way of punishment and the order of termination is illegal that the service of the petitioner was terminated on the ground of unsuitability and misconduct without holding any departmental enquiry. It is also submitted that without communicating any decision on the reply to the show cause notice the impugned order is illegal and arbitrary in view of the recent decision of the Supreme Court. The Respondents Nos. 1 and 2 have contested the writ petition and have filed an affidavit-in-opposition. The following are the main contentions.
8. The petitioner was appointed as Court Keeper with effect from 5th July 1988 and was provided with a residential accommodation in High Court and was required to stay therein to meet any emergent situation that might arise during day or night. The Respondents deny that his services were found to be satisfactory. The petitioner submitted an application on 5th June, 1989 for commuted leave from 3rd June, 1989 to 9th June, 1989 on the ground of health stating that he was under the treatment in S.S.K.M. Hospital and was to report to Dr. Panja of the said Hospital on 8th June, 1989. During the period of aforesaid leave he was not found in his official quarter and he came back to quarter only on 10th June, 1989. The petitioner was directed to attend Howrah Station to receive the Hon’ble Mr. Justice Ramananda Prasad of the Patna High Court in the morning of 15th June, 1989. But the petitioner failed to attend as desired. The petitioner was found absent from his quarter when his services were required by the Hon’ble Chief Justice and Hon’ble Mr. Justice Basak. However, in order to ascertain the correct facts two snow cause notices were issued to the petitioner who replied thereto respectively. On receiving the reply to the first show cause notice it was found that the statements of the petitioner were very much inconsistent and were not supported by the relevant documents. It will appear from the records that the petitioner was never medically advised to take bed rest as alleged. It is denied that there was no precondition that even at the time of enjoying commuted leave the petitioner would have to stay in the official accommodation provided for him in the High Court premises. The medical certificate produced by the petitioner indicates that on 3rd June, 1989 he had attended outdoor department of S.S.K.M. Hospital on account of Chest pain and the Doctor had advised him to stop smoking but there was no such advice for taking bed rest. The endorsement of Dr. Panja dated 24th June, 1989 on the outdoor ticket was long after the date of issuance of the show cause notice to the petitioner. Even if the grand mother of the petitioner had died suddenly as alleged, the reasons advanced for not receiving the direction and for avoiding the duty did not appear to be correct. Further the explanation of the petitioner would indicate that it was not for the alleged sudden death of the grand-mother but for the Sradh Ceremony he left the quarter. Therefore there was no compelling circumstances for the petitioner to leave the official accommodation without any intimation. It is the admitted fact that the petitioner left the court premises without any permission from the higher authority. It was the duty of the petitioner to take permission if he had to stay outside the court premises.
9. The appointment of the petitioner in the first instance was purely temporary basis. According to Rule 3(f) of the High Court Service (Appointment, Probation and Confirmation) Rules, 1989 “temporary service” means service beginning from the date of appointment under the Court till the date of appointment on probation or on “permanent basis”. Rule 3(i)(a) of the said Rules, 1981 provides that a Court employee shall be deemed to be on probation on completion of continuous temporary service for two years after his initial appointment in a post or service or cadre. Therefore, the petitioner did not complete two years service and as such he could not be deemed to have been on probation and eligible for confirmation. It has already been stated that show cause notices were issued in order to ascertain the correct facts but not with a view to initiating any departmental proceeding. The appointment of the petitioner to the said post was on certain terms and conditions mentioned in the order of appointment and the petitioner duly accepted such terms and conditions. The replies of the petitioner to the show cause notices were not at all satisfactory. The petitioner was in temporary service which was terminable at one month’s notice. It was decided to terminate the service of the petitioner according to the terms and conditions of the appointment. It is further stated that according to the said Rules of 1981 an employee shall be deemed to be on probation on completion of continuous temporary service of two years after his initial appointment. Therefore, the petitioner was not even on probation and he was purely on temporary service. There is no question of initiating any departmental proceeding against the petitioner and there was also no question of dropping any issue. The service of the petitioner, which was only temporary in nature, was capable of termination on one month’s notice, if his work was found unsatisfactory No. CCR/A.C.R. was maintained and there was no question of conveying the petitioner any adverse remarks. As a matter of fact the authorities did not intend to cast any stigma on the petitioner and the termination is simplicitor and not penal in nature.
10. After termination of the service of the petitioner by Memo No.6377-GS dated 9th August, 1989 with effect from the afternoon of 9th August, 1989 the petitioner received at the same time one montn’s salary in lieu of notice after signing the pay bills in presence of Shri Bimal Chandra Basak, A.R.VI, Shri Umapade Chatterjee, Accountant, Shri Biswanath Ghosh, Cashier on the Appellate Side of this Court and also in presence of Shri R.N. Joshi, Cashier and Shri Gouri Sankar Roy, Officiating Accountant on the Original Side of this Court. It does not appear from the Memo No.6377-GS dated 9th August, 1989 that the service of the petitioner was terminated on any allegation as alleged. In this connection the respondent authorities repeat and reiterate the statements made in the foregoing paragraphs of this affidavit. The language of the order of termination is very clear and it does not cast any stigma on the employee.
11. The writ petitioner has filed an affidavit-in-reply contesting the above contentions and reiterated that the impugned order has been passed by way of punishment and is liable to be struck down as arbitrary and being violative of Article 14 of the Constitution.
12. It is the case of the petitioner that even though the order of termination issued by the Registrar, Appellate Side, High Court, Calcutta on the face of it appears to be innocuous yet from the facts and circumstances disclosed there is no doubt that the Respondent terminated the services of the petitioner on the ground of misconduct and the Court should Took into surrounding circumstances and tear the veil of the said apparently innocuous order and on tearing the veil would definitely come to the conclusion that the impugned order of termination is by way of punishment and consequently Article 311(2) of the Constitution is very much attracted and the termination of the petitioner from service without holding proper departmental enquiry is illegal and void and the petitioner is entitled to be reinstated in service.
The petitioner also challenges the condition in the appointment letter of termination of service of the petitioner with one month’s notice as arbitrary and refers to two Supreme Court decisions and AIR 1986 SC 1371 in support of this submission. I would take up the second ground taken by the petitioner first. In Annexure ‘X’ to the affidavit-in-opposition the appointment letter dated 28th June, 1988 issued to the petitioner has been annexed, wherein it has been clearly stated that his appointment will be, at first instance, on a purely temporary basis and terminable with one months notice on either side. The petitioner accepted this appointment letter and has joined his duties as Court Keeper on a temporary basis. The High Court Services (Appointment) Probation and Confirmation Rules, 1981 has been produced before me. From the same it is clear that the persons appointed in High Court are at first appointed on temporary basis and in view of Rule 5 of the said Rules he shall be deemed to be on probation on completion of continuous temporary service for two years after his initial appointment in a post or service or cadre, and shall thereafter be confirmed and made permanent on satisfactory completion of the period of probation.
13. The petitioner’s services were terminated before the expiry of two years of temporary service. Therefore, he was a temporary employee of the High Court and the High Court claims to have terminated his services in terms of the letter of appointment. The contention on behalf of the petitioner is that Supreme Court in and AIR 1986 SC 157 have struck down such provision of termination of service in the case of the permanent employees by giving three months’ notice as arbitrary and submits that the principle of the said two decisions would be applied to the case of the petitioner and the said condition of terminations of service with one month’s notice in the letter of appointment may be struck down as arbitrary.
14. In 1985(1) LLJ 373 W.B.S.E. Board v. Deshbandhu Ghosh the Supreme Court has held the Regulation 34 of the W.B.S.E.B. Regulations wherein there is the provision of termination of permanent employee with three months’ notice as arbitrary and violative of Article 14 of the Constitution. In CJWTC v. Brojnath Ganguly reported in 1986 Lab 1C 1312 the similar provision in CIWTC Service Regulations for termination of service of the permanent employees with three months’ notice were struck down as arbitrary. In those decisions the Supreme Court has held that these provisions of Service Regulations of terminating the services of the permanent employees on the principle of ‘hire and fire’ is arbitrary because the persons appointed permanently have the right to the post and any termination amounts to punishment and can only be done by complying with Article 311(2) of the Constitution. It is well settled that the temporary employee has no right to office and his services can be terminated if the terms of employment provide such termination with one month’s notice. Therefore, the principles of the above decisions cannot be extended to the case of temporary employee. However, the main contention made on behalf of the petitioner is that his services have been terminated by way of punishment. It is now a well settled principle that even if the services of an employee be a temporary one and if his services are terminated by way of punishment, Article 311(2) of the Constitution is attracted.
15. The learned Advocate for the respondents does not dispute this proposition. He submits that in this case the services of the petitioner were terminated simplicitor in terms of the employment letter (Annexure ‘X’) without any penal consequences and therefore there was no obligation for the respondent to follow the provisions of Article 311(2) of the Constitution.
16. On behalf of the petitioner, the case of Jarnail Singh v. State of Punjab and Ors. reported in 1986-II LLJ 268 has been cited wherein the Bench decisions of the Supreme Court have observed that when order of termination simplicitor is challenged, the Court has to lift the veil and see the real circumstances as well as the basis and foundation and the form of order is not sufficient to hold that order of termination is termination simplicitor and not by way of punishment. In that decision the Supreme Court having found that the misconduct is the basis and foundation of the quashed order.
17. I am of the view that when the order of termination is challenged by the petitioner on the ground that it is passed by way of punishment it is necessary for this Court to look into the materials produced to ascertain as to whether the order was passed in terms of the letter of appointment or by way of punishment. In Nepal Singh v. State of Uttar Pradesh reported in 1980-II Lab LJ 161 another two bench decision of Supreme Court has held at page 1460 (para 5) as follows.
“The scope of the enquiry called for in such a case has been outlined by one of us in State of Maharashtra v. Veerappa R. Saboji 1979-11 Lab LJ 393. But the question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simplicitor, if the materials against the Government servant on which the superior authority has the order. The application of the test is not always easy. In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or, having regard to his character, conduct and suitability in relation to the post held by him it was intended simply to terminate his services. The function of the Court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order”.
18. Another two bench division bench of Supreme Court in Kanhaialal v. District Judge has set aside the order of termination of a temporary employee on the finding of the Administrative Judge of the High Court dismissed the representation of the appellate as the discharge order was passed on the prima facie finding that he was negligent. The Division Bench finding the order to be penal in nature held that Article 311(2) was attracted.
19. In this case it is an admitted fact that the petitioner was served with two show cause notices by the Deputy Registrar asking him to explain his certain conducts. The petitioner gave his replies to those show cause notices and tried to explain his conduct. As Court Keeper the petitioner had the duty to remain in the quarters allotted to him in High Court and he was absent on several days. He had to attend to the Railway Station or Airport to receive the dignitaries. It was complained that he failed to perform one such duty allotted to him.
20. Sometime after his explanation to the show cause notice was received by the authority, the Registrar, Appellate Side under the order of Chief Justice issued the order of termination offering him one month’s salary in lieu of notice. It is the case of the respondent that the petitioner accepted one month’s salary on receiving the order of termination. On behalf of the petitioner it is urged that if the Respondent did not find his explanation unsatisfactory the Respondent should have proceeded against him departmentally but even though alleged misconduct of the petitioner is the basis and foundation of the order of termination, the petitioner has been served with the order of termination simplicitor which was illegal and the order in the facts and circumstances of the case being punitive Article 311(2) is attracted to this court.
21. On considering the submissions made by both the parties, I am unable to accept the contention of the petitioner. The Respondent in the affidavit-in-opposition admits that the show cause notices were issued and the explanations received. It is their case that the conduct of the petitioner who was holding the important post of Court Keeper was not found satisfactory and because of this the Respondent decided to terminate his services in terms of appointment letter. I am of the view that the petitioner cannot insist that the respondent would have to initiate a departmental proceeding when the snow cause notices were issued. The respondents have stated that there was no intention to initiate the departmental proceeding. As he was not found in his quarters and as he did not attend the dignitary of the High Court, his explanation was sought for and on receiving his explanation, authority found the explanation to be unsatisfactory and decided to terminate his services in terms of the appointment letter.
22. I am of the view that the temporary employee has to work to the satisfaction of his employer and if it is found by the employer that his work is not upto the mark then there is no illegality in the action of the employer in terminating his services in terms of the appointment letter.
23. A three Bench decision of Supreme Court in Oil and Natural Gas Commission v. Md. Iskander Ali has upheld the order of termination of a probation in terms of the appointment order even though in his case a departmental enquiry was initiated but subsequently dropped and thereafter the order of termination simplicitor passed.
24. In Nepal Singh v. State of Uttar Pradesh reported in 1980 2 Lab IC 161 the termination of temporary Sub-Inspector of Police in terms of the appointment order has been upheld even though the departmental enquiry against him was initiated and subsequently dropped. The authorities wanted to weed out officers whose performances were not satisfactory and as a result of that process terminated his services.
25. In this case, no departmental enquiry was initiated. The respondents state that there was no contemplation to initiate departmental enquiries. I am of the view that whenever the employer finds his conduct to be not satisfactory he can ask for explanation and if the explanations are not satisfactory the employer can terminate his services in terms of the appointment order, because a temporary employee has to work to the satisfaction of the employer otherwise in terms of the appointment order his services can be terminated. On behalf of the petitioner a two bench division bench judgment of Supreme Court has been cited before me, reported in 1989 (2) LLJ 228 Sumati P. Shere v. Union of India and Ors. where the Supreme Court set aside the order of termination of an ad hoc employee simplicitor on the ground that before termination the employee was hot communicated that his work was unsatisfactory and if that was done then the employee concerned could have got the chance to improve her work. It has been observed that in the relationship of master and servant there is a moral obligation to act fairly. But the facts of this case are entirely different. In this case the employee was asked to show cause against his lapses. So, he was communicated of his lapses. He submitted explanations. Thereafter the Registrar, Appellate Side, High Court, Calcutta finding the work of the petitioner to be unsatisfactory terminated his services under the order of the Chief Justice. Therefore, the principle laid down in the above decision cannot be applied to the facts of this case.
26. In the result the writ petition is dismissed.
There is no order as to costs.