Important Point
Where appointment was temporary and termination was on ground of unsatisfactory service, termination order being termination simpliciter, provisions of Article 311 of Constitution is not attracted to such a case.

Judgment

Phukan, J.-Delay condoned. Leave granted.

2. Two appeals have been filed against the judgment and order dated 21.5.97 of the High Court of Allahabad in Writ Petition (C) No. 7150/93 as also against the order dated 27.02.98 in review petition CMA No. 81970/97. The High Court upheld the judgment and order dated 24.11.92 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. 1 Ram Krishna was appointed as Nalkoop Chalak w.e.f. 15.5.77. As he was found absent from his duty without obtaining leave a notice dated 26.7.79 was given to him and then by an order dated 6.8.79 his services were terminated with effect from 26.7.79. His services were terminated by order dated 6.8.79 w.e.f. 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. 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 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.

3. 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 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 simpliciter but it was sitgmatic as it was passed on the ground that the respondent was an irresponsible employee and he was 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.

4. The High Court was of the view that the appointment of respondent 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.M.A. Industries1 , held that absence without leave is a 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.

5. We have heard Mr. A.K. Goel, Learned Addl. Advocate General of U.P. and Mr. R.P. Mehrotra, learned senior counsel for the parties.

6. The learned counsel for the respondent has drawn our attention to the 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 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. 10 of the said letter clearly indi­cates that services of the respon