# Tripathi v. M/s U.P. State Spinning Mills

- **Citation:** High Court of Judicature at Allahabad #39148
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tripathi-v-m-s-u-p-state-spinning-mills-39148
- **Pages:** 3

## Text

2ALL U.P. State Spinning Mill Co. Ltd. V. N. K. Tripathi and another 25
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By the Court

1. The Special Appeal in hand is directed
against the judgment and order dated
17.8.1995 of the learned Single Judge in Civil
Misc. Writ Petition No.18277 of 1987 (N.K.
Tripathi Vs. M/s U.P. State Spinning Mills
Company (No.2) Limited, Unit-1, District
Jaunpur through its Manager Administration
and another) whereby the learned Single
Judge "set aside" the order dated 11.5.1987
impugned in the writ petition whereby the
services of the petitioner-respondent were
terminated by the appellant-employer with
immediate effect as "no longer required" by
giving a month's salary in lieu of the notice
period.

2. It is not disputed that the petitionerrespondent Nawal Kishore Tripathi was
appointed Assistant Mill Engineer in the
Jaunpur Unit of the Mill on a consolidated
salary
of
Rs.1200/-
plus
allowances
mentioned in the appointment order dated
1.9.1986 which contained a stipulation that
the services were purely temporary and liable
to be terminated without assigning any
reasons by giving month's notice from either
side. The illegality of the order was
challenged before the learned Single Judge on
grounds, inter alia, that he had been
discriminated in the matter of employment in
that one Shri B.N. Sachan who came into
employment five months after the petitionerrespondent has been retained while the
services of the petitioner-respondent came to
be terminated in "arbitrary and copricious
exercise of power", that the order of
termination was hit by Article 14 and 16 of
the Constitution: and that it was otherwise bad
in law. The writ petition was opposed by the
appellants herein on the ground that the
petitioner-respondent was found "unsuitable"
and his services were, therefore, terminated
on the ground of unsuitability in terms of the
service conditions. Learned Single Judge held
that since one of the grounds of termination as
stated in the counter affidavit was the
"charge" that the petitioner used to remain
absent without obtaining leave and, therefore,
the services of the petitioner were liable to be
terminated without notice and enquiry in tune
with the principles of natural justice.

3. We have had heard the learned counsel
appearing for the parties and gone through the
judgment under challenge as also the fact of
the case. It has been submitted by the learned
counsel appearing for the appellants that the
services of the petitioner-respondent who was
a temporary hand were terminated by an order
of termination simplicitor casting no stigma;
that the order of termination was passed on
26 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
the ground of "unsuitability" and since no
stigma was cast, the learned Single Judge was
not justified in interfering with the order of
termination.

4. The submission made by the learned
counsel appearing for the appellants cannot be
countenanced. It is not disputed that the
petitioner-respondent
was
granted
an
increment vide order dated 30.12.1986 and it
being not the case of the appellants that the
petitioner-respondent
could
earn
the
increment irrespective of his performance
being good or bad, termination of his services
as "no longer required" cannot sustained
unless valid justification is shown in the
counter affidavit. When the services of
temporary
government
servants
are
terminated as "no longer required" the
question arises as to why the services are no
longer required - whether the post has been
abolished or the employee has been found
unsuitable for the job ? In the counter
affidavit the order of termination is sought to
be justified on the ground that the services of
the petitioner-respondent had been dispensed
with by a simplicitor order of discharge as the
management found that the petitioner was not
"suitable" for the post for which he was
appointed i.e. the post of Assistant Mill
Engineer in that during the short span for one
year there was report of "inefficiency" and
that he was also in the "habit of going on
leave without proper sanction." Termination
of the services of temporary government
servants on the ground of "inefficiency" is
punitive termination. Where, therefore, there
are reports against the employee concerned
about "inefficiency" and any act or omission
amounting to misconduct and his services are
terminated in the background of such report,
the order of termination becomes punitive and
it cannot be sustained if it has been passed
without holding an enquiry. In Shamsher
Singh Vs. State of Punjab, AIR 1974 S.C.
2192, their Lordships of the Supreme Court
were considering the question as to when the
termination of services of a probationer could
be held to be punitive. It was held : "If a
probationer is discharged on the ground of
misconduct, or inefficiency or for similar
reason without a proper enquiry and without
his getting a reasonable opportunity of
showing cause against his discharge it may in
a given case amount to removal from service
within the meaning of Article 311(2) of the
Constitution."

5. The principles governing termination of
service of a temporary employee are more or
less same as those of a probationer. From the
decision aforestated it is apparent that the
termination of services of the petitionerrespondent on the ground of "inefficiency"
was punitive in nature and since principles of
natural justice were violated, the order of
termination was rightly set at naught by the
learned Single Judge. Further more, in the
counter affidavit filed in the writ petition it
has been stated that not only there were
reports of "inefficiency" against the petitioner
but he was also in the "habit of going on leave
without proper sanction." This is our opinion
was rightly held by the learned Single Judge
to be tantamount to a charge of misconduct on
which
the
services
of
the
petitionerrespondent were not liable to be terminated
without
enquiry.
In
other
words
the
termination of service on the ground of
unauthorised
absence
is
tantamount
to
termination of misconduct which could not
have been done without holding proper
enquiry. On the facts of this case it is
established that the termination of the services
of the petitioner-respondent was grounded on
"inefficiency" and "misconduct". In Dipti
Prakash Banerjee Vs. Satvendra Nath Bose
National Centre for Basic Sciences, Calcutta
and others (1999) 2 UPLBEC 1048 it has
been propounded that if the findings were
arrived at in inquiry as to misconduct, behind
the back of the officer or without a regular
departmental enquiry, the simple order of
termination is to be treated as 'founded' on
the allegations and will be bad in law. The
2ALL Archana Srivastava V. Vice Chancellor, University of Allahabad 27
decision aforestated will be applicable to
the facts of the present case.

6. In Robert D'Souza Vs. Executive
Engineer, Southern Railway and another,
1982 (1) SCC 645, it was held that striking of
the name of the concerned employee from the
rolls for unauthorised absence from duty for 8
consecutive days amounted to termination of
services on the ground of misconduct and
termination of service on such grounds
without complying with minimum principles
of natural justice would not be justified. In
H.D. Singh Vs. Reserve Bank of India and
others, (1985) 4 SCC 201, the Supreme Court
held that striking of the name from the rolls
for the reasons of unauthorised absence from
duty amounted to arbitrary action. In State
Bank of India Vs. Workmen of State Bank of
India and another, JT 1990 (3) SC 589, the
Supreme Court considered the effect of
discharge from service on similar ground on
one month's notice or pay in lieu thereof and
held that it was not a discharge simplicitor or
a simple termination of service but one
camouflaged for termination based on serious
misconduct. In Mafatlal Narandas Barot Vs.
J.D. Rathod, Divisional Commissioner, State
Transport Mehsana and another, AIR 1966 SC
1364, it has been held that, "an employer may
visit the punishment of discharge or removal
from service on a person who has absented
himself without leave and without reasonable
cause, but this cannot entail automatic
removal from service without giving such
person reasonable opportunity to show cause
why he be not removed."

7. In D. K. Yadav Vs. M/s J.M.A.
Industries Limited, JT 1993 (3) SC 617, the
decisions aforestated have been relied on and
it has been held that termination of services of
the workmen therein in terms of Clause
13(2)(iv) of the Standing Orders which
provided for automatic loss of lien on the post
in case of expiry of eight days' absence from
duty was struck down on the ground of having
been passed in breach of principles of natural
justice. Learned Single Judge, in our opinion,
committed no error in quashing the order of
termination. The appeal is, therefore, liable to
be dismissed.

Accordingly the appeal fails and is
dismissed, however, without any order as to
costs.
Appeal dismissed.

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By the Court

1. The petitioner passed her B.A.
examination from Allahabad University in
1996 in second division with 57.19% marks.
In January 1997 notification was published in
newspaper inviting applications for LL.B. first