# Dhirendra Kumar Gautam v. The U.P. Public Services Tribunal and others

- **Citation:** (2001) 1 ILRA 347
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-07-15
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhirendra-kumar-gautam-v-the-u-p-public-services-tribunal-and-others-39625
- **Pages:** 3

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
347
25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( '6 6,1+$ -
7+( +21·%/( '6 6,1+$ -
7+( +21·%/( '(9 .$17 75,9(', -
7+( +21·%/( '(9 .$17 75,9(', -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

'KLUHQGUD .XPDU *DXWDP
«3HWLWLRQHU
9HUVXV
7KH
83
3XEOLF
6HUYLFHV
7ULEXQDO
/XFNQRZ DQG RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 0DKHVK *DXWDP
6KUL 9LMD\ *DXWDP
&RXQVHO IRU WKH 5HVSRQGHQWV
6KUL 91 $JDUZDO
6WDQGLQJ &RXQVHO

83
7HPSRUDU\
*RYHUQPHQW
6HUYDQWV
7HUPLQDWLRQ RI 6HUYLFHV 5XOHV ±
3ULQFLSOH RI 1DWXUDO -XVWLFH ± 3ULQFLSOH RI
μILUVW FRPH ODVW JR¶ ± $SSOLFDELOLW\
+HOG 3DUDV DQG
7KXV
WKHUH
LV
QR
HVFDSH
IURP
WKH
FRQFOXVLRQ
WKDW
WKH
SHWLWLRQHUV
ZDV
DSSRLQWHG WHPSRUDULO\ RQ DGKRF EDVLV
DQG
KLV
VHUYLFHV
ZHUH
OLDEOH
WR
EH
WHUPLQDWHG DW DQ\ WLPH ZLWKRXW QRWLFH
$IWHU H[DPLQLQJ WKH PDWHULDO EHIRUH LW
WKRURXJKO\ WKH 7ULEXQDO KDV UHFRUGHG D
ILQGLQJ RI IDFW WKDW WKH LPSXJQHG RUGHU
RI WHUPLQDWLRQ ZDV QRW SDVVHG E\ ZD\ RI
SXQLVKPHQW
,W
ZDV
UDWKHU
DQ
RUGHU
SDVVHG LQ WHUPV RI WKH FRQGLWLRQV RI WKH
DSSRLQWPHQW DQG LQ DFFRUGDQFH ZLWK WKH
SURYLVLRQ RI 83 7HPSRUDU\ *RYHUQPHQW
6HUYDQWV
7HUPLQDWLRQ
RI
6HUYLFHV
5XOHV ZKLFK LQGLVSXWDEO\ ZHUH
DSSOLFDEOH
FDQQRW
EH
IDXOWHG
RQ
WKH
JURXQG WKDW LW ZDV SDVVHG ZLWKRXW JLYLQJ
DQ\ RSSRUWXQLW\ WR WKH SHWLWLRQHUV 7KH
7ULEXQDO GLG QRW FRPPLW DQ\ HUURU PXFK
OHVV HUURU DSSDUHQW RQ WKH IDFH RI UHFRUG
LQ XSKROGLQJ WKH RUGHU RI WHUPLQDWLRQ
2WKHUZLVH
DOVR
UHOLDQFH
XSRQ
WKH
SULQFLSOH μ ILUVW FRPH ODVW JR¶ LV PLVSODFHG
LQ
DV
PXFK
DV
WKLV
SULQFLSOH
LV
QRW
DSSOLFDEOH LQ WKH FDVH RI WHUPLQDWLRQ RI
VHUYLFHV RI WHPSRUDU\ HPSOR\HH LQ WHUPV
RI WKH FRQGLWLRQV RI WKH DSSRLQWPHQW DQG
LQ DFFRUGDQFH ZLWK WKH SURYLVLRQV RI
5XOHV
UHJXODWLQJ
WKH
WHUPLQDWLRQ
RI
VHUYLFHV RI WHPSRUDU\ HPSOR\HH

By the Court

1. Heard Sri Mahesh Gautam, the
learned
counsel
appearing
for
the
petitioner, and Sri V.N. Agarwal, the
learned Standing Counsel of the State of
U.P., representing the respondent.

2. Dhirendra Kumar Gautam, an
erstwhile
Jail
Warden,
invokes
the
jurisdiction of this Court under Article
226 of the Constitution of India for
impugning the two orders and judgement
date 15th July, 1998 and 23rd July, 1998
passed by the U.P. Public Services
Tribunal, Lucknow, copies where of are
Annexures '6' and '8' to the petition.

3. By the order and judgement dated
15th July, 1988, the Tribunal has rejected
the claim petition of the petitioner and the
order and judgement dated 23rd July, 1998
purports to reject the petition of the
petitioner seeking review of the order and
judgement dated 15th July, 1998. The
prayer for quashing the order dated 20th
February, 1987 and 1st July, 1991, giving
rise to the claim petition, has also been
made. The order dated 20th February,
1987, a copy whereof is Annexure '1' to
the petition, is the offer terminating the
services of the petitioner and the order
dated 1st July, 1991 is the order passed by
the appellate authority rejecting appeal of
the petitioner.
1All] Dhirendra Kumar Gautam V. The U.P. Public Services Tribunal and others
348
4. Before the Tribunal the petitioner
urged that he was confirmed employee
and his services could not be dispensed
with without giving him opportunity.
Same submission has been repeated
before this Court also.

5. The Tribunal has categorically
found that the petitioner was not a
confirmed employees. Indeed, he was an
ad-hoc employee. This finding of the
Tribunal is based on the documentary
evidence in the shape of the appointment
order dated 29th August, 1984. A copy of
the appointment order is available on
record before this Court as Annexure '11'
to the petition. The order clearly and
unequivocally, without reservation of any
kind, declared that the services of the
petitioner were wholly temporary, liable
to be terminated at any time without any
notice. Neither before the Tribunal nor
before this Court has any such cogent
material been produced which may show
that the petitioner acquired the status of a
permanent employee. Thus, there is no
escape from the conclusion that the
petitioner was appointment temporally on
ad-hoc basis, and his services were liable
to be terminated at any time without
notice.

6. Next attack on the order of
termination before the Tribunal was and
before this Court is on the ground that the
order is punitive in nature. Learned
counsel appearing for the petitioner
argues that the impugned order begin the
one of punishment could not be passed
without
giving
opportunity
to
the
petitioner.

7. It is settled that no order of
punishment can be passed against an
employee without giving an opportunity.
But, in the instant case the question that
arises for consideration is whether the
impugned order was infact passed as a
measure of punishment or was it an order
discharging the petitioner from service
simplicitor without stigmatising him.

8. After examining the material
before it thoroughly, the Tribunal has
recorded a finding of fact that the
impugned order of termination was not
passed by way of punishment. It was
rather an order passed in terms of the
conditions of the appointment and in
accordance with the provisions of U.P.
Temporary
Government
Servants
(Termination of Service) Rules, 1975,
which, indisputably, were applicable to
the petitioner. Thus, the impugned order
of termination cannot be faulted on the
ground that it was passed without giving
any opportunity to the petitioner. The
Tribunal did not commit any error much
less error apparent on the face of record,
in upholding the order of termination.

9. Lastly, the impugned order of
termination was and is sought to be
assailed on the ground that the employees
junior to the petitioner were retained and
this was in violation of the settled
principle 'first come last go'. To meet this
assertion, the contesting respondents have
taken stand to the effect that while the
work and conduct of the employees
retained was satisfactory the work and
conduct of the petitioner was not found
suitable. This stand has been upheld by
the Tribunal. Nothing has been pointed
out before this court to show that the work
and conduct of the other employees who
were retained in service and were
allegedly juniors to the petitioner was not
suitable. Therefore, as a matter of fact, it
cannot be held that in retaining the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
349
services
of
other
employees
and
dispensing with the services of the
petitioner any illegality or irregularity was
committed. Otherwise also, reliance upon
the principle 'first come last go' is
misplaced in as much as this principle is
not applicable in the case of termination
of services of temporary employee in
terms of the conditions of the appointment
and in accordance with the provision of
Rules
regulating
the
termination
of
services of temporary employee.

10. All told, in the opinion of the
Court, the petition is devoid of substance
and liable to be dismissed summarily.

Accordingly,
the
petition
is
dismissed summarily.
Petition Dismissed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 90 6$+$, -
7+( +21·%/( 90 6$+$, -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

&RPPLWWHH RI 0DQDJHPHQW «3HWLWLRQHU
9HUVXV
3UHVFULEHG $XWKRULW\ 8S]LOD 0DJLVWUDWH
DQG RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 9LQRG 6LQKD
6KUL 63 6LQJK
&RXQVHO IRU WKH 5HVSRQGHQWV
6&
6UL .ULVKQD 3UDVDG

6RFLHWLHV 5HJLVWUDWLRQ $FW 6
3UHVFULEHG
DXWKRULW\ ZKHWKHU DFWV DV
(OHFWLRQ
7ULEXQDO
ZKLOH
H[HUFLVLQJ
SRZHUV XQGHU WKH $FW
+HOG3DUD
7KHUHIRUH WKH 3UHVFULEHG $XWKRULW\ LQ
H[HUFLVH
RI
KLV
MXGLFLDO
IXQFWLRQ
DV
7ULEXQDO KDV KHOG E\ WKH LPSXJQHG RUGHU
GDWHG WKDW HOHFWLRQV RI WKH
SHWLWLRQHUV DQG UHVSRQGHQW QR ZHUH
LOOHJDO
FRQWUDU\
WR
E\HODZV
RI
WKH
VRFLHW\ DQG LW GLUHFWHG IRU KROGLQJ IUHVK
HOHFWLRQ , GR QRW ILQG DQ\ LOOHJDOLW\ LQ WKH
LPSXJQHG
RUGHU
SDVVHG
E\
WKH
3UHVFULEHG $XWKRULW\
&DVH /DZ
 83& %(& 'LVDSSURYHG
 83& %(& '% IROORZHG

By the Court

1. The petitioner's committee of
management was elected on 03.02.2000.
The District Basis Education officer on
28.02.2000 recognised the election and
attested the signature of the Manager. On
08.03.2000 renewal of the society was
granted in favour of the petitioner. The
election of the respondent no. 4 was held
on 05.02.2000 and the respondent no. 4
made a complaint before the Deputy
Registrar, Firs, Societies and Chits, the
respondent no. 2. The respondent no. 2
made a reference to the Prescribed
Authority under Section 25(1) of the
Societies Registration Act 1860(in brief
the Act). The prescribed Authority on
18.12.2000 has held that elections of the
petitioner and respondent no. 4 were
illegal and were contrary to the bye-laws
of the society, therefore, he directed for
holding fresh election. It is this order
which has been challenged in this
petition.

2. Sri Vinod Sinha the learned
counsel for the petitioner has vehemently
urged that the prescribed Authority while
exercising power under the Act, does not
function as Election Tribunal and he