The order of termination of service of a temporary employee is not a punishment and hence, Article 311(2) of the Constitution of India is not attracted. The order of termination of service of a temporary employee is not a retrenchment and hence, Section 25F of the Industrial Disputes Act is not attracted.

1. W.P.No.23044 of 2006 is filed by the Divisional Railway Manager, challenging the order of the Central Government Industrial Tribunal-cum-Labour Court in I.D.No.274 of 2004 dated 15th December 2005. W.P.No.24473 of 2006 is filed by a dismissed temporary employee against the order of the Central Government Industrial Tribunal-cum-Labour Court dated 12.06.2001 in I.D.NO.28 of 2001. The petitioner in W.P.No.24473 of 2006 seeks a direction to the respondent Management to reinstate the petitioner in service with effect from 28.08.1992 with all consequential benefits, including arrears and back-wages for the period during which the petitioner was kept out of employment and giving other attendant service benefits to which the petitioner would be entitled to in law. It may be noted that in both these writ petitions, the employee concerned was taken in service as Substitute Bungalow Lascar.

2. The issues raised in both these writ petitions are substantially same as to and when an order of termination could be called stigmatic that the employer has to comply with the requirement of Article 311(2) of the Constitution of India and follow the procedure of holding enquiry before visiting the employee with an order of dismissal by way of punishment and whether a contract employee, being a temporary employee, is entitled to the protection of Article 311 of the Constitution of India.

3. The question as to the entitlement of a temporary employee to have the protection on a punishment meted out to a temporary employee came up for consideration in a series of decisions. In the decision reported in AIR 1964 SC 1854 (Champaklal Chimanlal Shah Vs. The Union of India), referring to the decision reported in AIR 1960 SC 689 (State of Bihar Vs. Gopi Kishore Prasad), the Apex Court pointed out that temporary servants are also entitled to the protection under Article 311(2) of the Constitution in the same manner as permanent Government servants when the Government takes action against the temporary employees by meeting out any one of the three punishments, namely dismissal, removal or reduction in rank. The Apex Court pointed out that this protection is available only when discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. The Apex Court pointed out that when a preliminary enquiry is first held, that enquiry is really for the satisfaction of the Government to decide whether punitive action should be taken or action should be taken under the contract or the Rules in the case of a temporary Government servant or a servant holding a higher rank temporarily, to which he has no right. In the preliminary enquiry, the explanation of the Government servant may be taken, document and even oral evidence may be considered. When such a preliminary enquiry makes out a prima facie case against the servant concerned, charges are then framed against him. The show cause notice is issued as to why disciplinary action should not be taken against him.

4. The enquiry officer appointed holds the enquiry in accordance with the principles of natural justice. In the formal departmental enquiry, the delinquent servant has an opportunity to cross-examine the witness tendered against him. He is also given the right to let in evidence. Thereafter, the enquiry officer makes a report for the authority concerned having power, to take action.

5. Where the competent authority accepts the report and determines tentatively that the punishment should be inflicted, then it communicates a copy of the report to the enquiry officer and its own conclusion and issues a show cause notice as to why the tentative punishment should not be inflicted upon him. The servant concerned has an opportunity of making his representation on the conclusions arrived at by the departmental authority as well as the punishment imposed. The Apex Court pointed out that when a preliminary enquiry is held, the same is not to be confused with a regular dep